Bruch said, "I try not to bring anyone in to the interview room who's innocent. And there are a couple that I have let walk away because they were innocent." That means if he brought someone into the interview room, he initially thought they were guilty. If they talked and he let them go, that means the person conviced him they were innocent.
I would say that changing the cop's mind from thinking that you're guilty to thinking that you're innocent, is certainly "helping you". That's true even if the cop's initial state of mind (that you were guilty) might not have been enough for him to make an arrest.
(I assume you meant 5th Amendment, not 4th Amendment -- the person who started this thread used the wrong subject.)
If you read the link that I provided: http://rychlicki.net/inne/201_Fed.Appx.430.pdf
and search for "Fifth Amendment", you'll find the section where Josh Wolf raised it as a defense and the judge rejected it.
Consider the case where you're guilty but if you answer all the cop's questions, they'll ask the judge for leniency. If you refuse to talk until you get a lawyer, and then "cooperate" through your lawyer, are the cops just as likely to recommend leniency?
Remember in general police don't ask for or against leniency, they just testify. About the only "asking for leniency" a typical judge would give serious weight too(in part because it's a case of having CYA) would be if it came from the prosecutor. Prosecutors and police are generally on the same side, but any deal made by one isn't binding on the other and the only one who really matters is what the prosecutor agrees too. So as in any other field, don't give away leverage until you get something for it. Remember the prosecutor isn't after "justice" as one would normally think of it, but rather punitive convictions that will allow for re-elections and advancement. On that topic I recommend the book "The Collapse of American Criminal Justice" or at least the short review of it here:
One possibility is that if you talk to the police, for example, to help them catch a criminal, that may benefit you (insofar as it makes your neighborhood safer) and perhaps you might sincerely care about making your society safer as well. However, that doesn't benefit the lawyer, so they don't care.
I don't know what kind of answer this is, but it isn't an answer to the question I asked.
What I meant was: You asked, "Why would a lawyer not advise a person to speak to the police?" One possible answer is that if there are benefits to speaking to speaking to the police. However those benefits don't accrue to the lawyer, so they may not take it into account when telling you never to talk to the cops.
Of course, the very one you just used - in asserting that the 5th Amendment doesn't change the outcome, you assumed 1) that coercion of confessions is explicitly banned (and reasonably defined) and 2) that the putative ban is likely to be enforced and 3) that the putative ban additionally prohibits the use of confessions already obtained by confession. Some of our rights are predicated on "nature," some merely on common law precedents. The 5th Amendment embodies one borne more from game theory and political realism. It is one that is critical to the protection of innocent people, as well as those guilty of minor crimes in the context of a draconian police state.
If you want an additional scenario, here's one, which gets to the heart of the matter without some extenuating circumstances pertaining to an investigation or particular primary crime:
At some point, I lie to the police about whereabouts, associates or other matters in order to hide my sexual orientation. Lying to the police ("false statements") is a crime in many if not most US jurisdictions. Later, in court, I take the 5th in order to avoid incriminating myself for commission of those statements (and likely revealing the secret to an even wider audience - though perhaps a less violent).
Unfortunately, I give it all away when I start making out with a portrait of George Mason on my way out the court house.
I've said from the beginning that I think people ought to be free to say to the police or the courts, "I didn't commit the murder, but it's none of your business where I was."
Unfortunately, if you have lied to the police about your whereabouts to cover up your sexual orientation (instead of just saying "It's none of your business where I was"), it's not obvious to me why you deserve protection in that case. Even if the police don't care about your sexual orientation, if they were asking you where you were and you lie, they may waste valuable time checking your story. You ought to just say (and ought to be allowed to just say), "I'd prefer not to say where I was."
"As I explained in the first article: If you take away the "right to remain silent", a suspect can still say, "No, I didn't do it," and the police options for "coercing" them are the same as they were before."
Not their legal options. You argue against yourself. You appear to be saying that the existence of the law doesn't matter because police and courts will ignore it anyway. Yet we have 200+ years of history showing that it DOES make a difference.
If that isn't what you're arguing, then I don't understand what you're trying to say.
All I'm saying is:
Suppose you're innocent the police ask you if you're guilty. With the Fifth Amendment, you can refuse to answer. Without the Fifth Amendment, you would just say "No."
At that point, if the police don't like the answer that you're giving, and if they're corrupt enough, they could just beat you until you confess -- and since that's happening outside the boundaries of the law anyway, the Fifth Amendment doesn't help you. The police will just say that you waived your Fifth Amendment rights and confessed.
For that matter, since the police aren't allowed to beat you, they'll have to lie in court about how the confession was obtained. And if they're willing to lie in court anyway, they can just lie and say that you confessed, even if you didn't. Again, since they're acting outside the law, the Fifth Amendment doesn't help you.
Which brings it back to my original article: To show the benefits of the Fifth Amendment, you need to come up with a specific, precisely defined scenario where the outcome is different depending on whether we have the Fifth Amendment or not. The scenarios that people have been proposing, all fail that test, for the reasons described above.
"That's why I said in the first article: the only answer I would accept is a specific scenario in which the outcome is different because of the Fifth Amendment."
Do you have any idea how many people were NOT convicted because they pled the 5th? You can look them up yourself... I'm not going to do it for you. But I would say that 99% of those made a difference.
What makes you think they wouldn't have also been acquitted if they had just said "I didn't do it"?
But I can give you one (although I don't have an actual citation at hand... it shouldn't be hard to look it up). The recent Federal case in which the judge ruled that the suspect could not be compelled to hand over the password to his hard drive is a specific example of one situation in which it almost certainly made a difference.
The Jeffrey Feldman case you're referring to, in conjunction with the Josh Wolf case, is a good illustration of the argument I was making in my second article: http://yro.slashdot.org/story/13/09/09/136255/the-reporters-fifth-amendment-paradox
Jeffrey Feldman was possibly guilty, and refused to give up information to aid in the criminal investigation, and the judge said that was permitted. Josh Wolf was definitely innocent, and refused to give up information to aid in the prosecution of someone else (for vandalizing a police car), and Wolf went to jail as a result. He was, in effect, punished for being innocent -- if there was any chance he had taken part in vandalizing the police car (but not enough evidence to convict him of it), he could have pled the Fifth and gotten away with remaining silent. Where's the sense in that?
A few people who don't understand the problem keep saying: "But that would be self-incrimination!" Yes, I know what "self-incrimination" is. The question is why we give people a sacred right against "self-incrimination" but not against "other-people-incrimination". If Jeffrey Feldman has a right to silence even though he
You fail to remember that it was not just Prof. Duane, but also a police detective that stood up there and told everyone the exact same thing.
Officer Bruch gave multiple real-life examples from his own career of people who helped themselves by talking to the police. (Either they were innocent and managed to convince him of that fact, or they were guilty but the police recommended leniency to the judge because the defendant cooperated.) Unless Bruch was lying, those examples do undermine Professor Duane's point.
2. The argument about the danger of talking to cops is based on a sampling error. Professor Duane says that criminal defense attorneys "always, always say it was a bad idea for their client to talk to the police". But this sample obviously only includes people who talked to the police and ended up getting arrested, and charged, and needing a criminal defense attorney. The sample wouldn't include anyone that the police talked to and decided not to arrest -- whether they were initially brought in as a suspect but then convinced the police that they were innocent, or whether they were simply third-party witnesses who volunteered information to the police that they thought was useful.
Of the many, many, many attorneys that I know (many of whom are family/friends/etc) and the many cops that I know (former military turned police), they will all tell you the exact same thing. It CANNOT help you to talk to the police, even if you are innocent of the crime you are being questioned about. They both even tell you quite specifically that even though you may be innocent of the crime you are being questioned about, you may, without realizing it, incriminate yourself in an unrelated crime
Yes, you might. However, the examples Bruch gave showed that you might also convince the police you're innocent. Since it could go either way, that means it's not correct to say that "It CANNOT help you to talk to the police".
His advice ignores the benefits of leniency if you're guilty and you're almost positive you'll be caught anyway. For most of this discussion I've been focusing on the merits of talking to the police if you're innocent. But Officer Bruch also says that if people in the interrogation room answer questions and cooperate, then even if they're ultimately convicted, the police do testify to the judge that you were cooperative, and the judge can take that into account and reduce your prison sentence. That is at least theoretically another legitimate reason to violate Professor Duane's "Don't Talk To Cops" rule, if you're 99% sure that the police will find enough evidence to convict you anyway, you can hope for leniency by cooperating. That's essentially why I do talk to the police if I get pulled over for speeding -- I've gotten off with a warning a few times, whereas I'm pretty sure that if I'd just sat silently and stared straight ahead, I would have gotten the ticket.
This is where your lack of legal knowledge truly shows through. Just because YOU may be positive that the police will find enough evidence that you are guilty does NOT mean that they gathered the evidence legally, that the evidence is NOT circumstantial, or that the evidence could also point at someone else. Even if you are guilty, and you know they are going to find out, a lawyer can help to mitigate the punishment or possible have you acquitted due to many many many loopholes and legalities that you as a layman may not know.
Actually, yes I did know that could happen.
But again it's a situation where that might happen. Or it might also be the case that the police recommend leniency because you cooperated right away. (If you refuse to talk until your lawyer shows up, possibly the next day, and then only "cooperate" through your lawyer, the police might not be as eager to recommend leniency to the judge. That's especially true if the
Yes a couple of people have said that basically what Duane meant was, "If you talk to the police, it might help, but it won't help you any MORE than if you had simply waited for your lawyer and communicated through your lawyer."
That's probably closer to the truth, however it still ignores a couple of possibilities. What if you have time-sensitive information that can help the police catch the real perp, or help prevent another crime? If you're innocent and you wait for your lawyer, it might be too late. If you're guilty but you're hoping for leniency because you helped the police catch a more serious criminal, then it might also be too late by the time your lawyer shows up, and you've missed your best chance at getting the cops to recommend leniency to the judge because you cooperated.
Your main argument is how talking to the police benefits the society as a whole rather than the individual. Let's take a look at two recent high profile examples which contradict your point.
On the one hand we have Ross Ulbricht who was caught running Silk Road. The evidence that lead to his arrest is pretty solid as you can read in the criminal complaint. If he had cooperated with the investigation, he gets a reduced sentence. How is that fair to the society as a whole?
Well when I say that the defendant cooperating the police benefits society, I mean that the standalone act of his cooperating, benefits us (saves us some effort gathering evidence against him). Now, because that standalone act benefits us, we might offer him something in return, and after the quid pro quo is done, the entire net transaction might no longer be beneficial to us, if the quid pro quo was too generous. But that has no bearing on the original point, which is that the act of his confessing to the police would help us.
On the other hand we have Aaron Swartz. He clearly understood not talking to the police, but his girlfriend Quinn didn't, as a result subjected herself and Aaron to unnecessary harassment by the prosecutor. It costed their relationship, and eventually, Aaron caved under the pressure and took his own life. In Aaron's case, it wasn't clear what is the maximum extent he could be charged for what he did, but cooperating definitely made it worse. It's like the prosecution ripped him off by charging him 10x for his crime, and then generously offered a 10% discount as leniency.
If you believe what Aaron did was good for the society, you would have advised Aaron and Quinn not to talk to the investigators.
In the case of Aaron Swartz, I think the law he was being charged with was an unjust law (at least under the prosecutor's interpretation of the law and the penalties that they were seeking).
So of course that makes the prosecution's tactics look horrible, but the trouble with that line of reasoning is that every law enforcement method looks horrible, when the law that they're enforcing is clearly unjust. So you can't use that as the standard for judging a law enforcement tactic.
What if some guy Bob found himself in the same situation, except that Bob had robbed a liquor store, and the cops came to talk to him, and Bob lawyered up but his girlfriend Jane spilled the beans and ultimately got Bob arrested. Would it still look so unfair for the police to have used that tactic?
I don't care about the minutiae of either side of this argument. What I care about it the truth of a position. The central tenant to wisdom is the ability to rigorously critique and defend any position you might hold eg Socratic thought. When I read your discourse on the morality of the the Fifth Amendment, I see text that was written to support a judgement already made. I don't think you have wrestled with the ramifications of your position enough. A good sit down with some Kafka might cure you of this.
> Do you think Officer Bruch was lying or was Professor Duane wrong?
First take my point on philosophy. You've just committed a false dichotomy. I think the people who "helped themselves" could have done so without risking talking to the police.
That's fair, so perhaps what he should have said is, "It can help to talk to the police, but not any more than it would have helped if you had just waited for your lawyer to show up."
So, is that really correct? Consider the case where you're guilty but if you answer all the cop's questions, they'll ask the judge for leniency. If you refuse to talk until you get a lawyer, and then "cooperate" through your lawyer, are the cops just as likely to recommend leniency? Maybe not. Perhaps especially not if it was a time-critical case, and another more dangerous criminal got away while you were waiting for your lawyer, when your information could have helped catch the guy.
Considering the number of police questions in the course of history, I'm sure there are at least a small number of cases where a person was able to manipulate outcomes in their favor by talking to police especially if it helped the police nail someone else.
I'll offer a question in return. Lawyers have a fiduciary relationship with their clients and almost universally recommend to not speak to police. In light of your position, why you suppose this is?
One possibility is that if you talk to the police, for example, to help them catch a criminal, that may benefit you (insofar as it makes your neighborhood safer) and perhaps you might sincerely care about making your society safer as well. However, that doesn't benefit the lawyer, so they don't care.
A scenario where the Fifth Amendment "indirectly" affects the outcome would still be allowed, as long as the outcome is probably different depending on whether we have the Fifth Amendment or not. What's an example of one?
Bruch also gave the example of someone who is guilty but gets leniency by cooperating with the police.
If that person had lawyered up right away and "cooperated" only through their lawyer, it's not obvious that the police would have given the same recommendation of leniency to the judge.
He witnessed some protesters vandalizing a police car, but there was never any claim that he himself had vandalized the police car. The government wanted his evidence against the protesters. He tried to invoke the Fifth. The judge rejected it, saying Wolf had no reasonable basis for believing that he could incriminate himself in his testimony, so he had no right to remain silent, and he went to jail because he wouldn't talk.
This is what seemed absurd to me -- that if there was any chance he had been involved in torching the car, he could have pled the Fifth and remained silent and not gotten in trouble! But since it was completely established that he was innocent, he was essentially punished for that by being sent to jail for remaining silent. That's the point I made in the second article: http://yro.slashdot.org/story/13/09/09/136255/the-reporters-fifth-amendment-paradox
Surely Ken doesn't think this is literally true? Don't the police sometimes ask questions of third-party witnesses that they have no intention of building a case against?
What do you think he probably meant? When they police bring you in and ask you questions, they're trying to build a case against you? Does it still apply if they call you on the phone?
OK, so what he should have said was something like, "If you talk to the police, it might help you, but not any more than it would have helped you to wait until you got a lawyer"?
On the basis of the statements in the video, it's not clear if that's true. Consider the case where you're guilty and you get some leniency for cooperating. If you lawyer up right away, and eventually your lawyer shows up and you "cooperate" through your lawyer, will the police be as eager to tell the judge that you deserve leniency for cooperating? I wouldn't assume so, especially if it happened to be a case where another criminal was on the loose and time was of the essence.
On the other hand, consider the other case: you're innocent and you would be able to convince the police of that fact, but instead you wait for your lawyer. In this case, we can assume you still get off (let's reasonably assume the lawyer is at least as good at talking to the police as you are), so you probably don't make things worse by staying silent. But even in this case, would you make an exception if there's a dangerous criminal getting away, and every minute counts while you're sitting and waiting for your lawyer instead of telling the police what you know?
Well if you assume the cop is definitely corrupt and say nothing, you may miss the opportunity to talk your way out of it by telling the truth. Officer Bruch said there were definite examples of people who had done that.
If you think the cop is probably corrupt, you can stay silent. If you think the cop is honest, you can talk. My point is that if Officer Bruch's stories are true, then Professor Duane is wrong when he says "it CANNOT help to talk to the police".
Obviously, I don't mean that the government should be able to force you to say you're guilty.
But I don't see the big problem with requiring you to answer truthfully as to whether you're guilty or not.
I wonder how many people may have misinterpreted my point to mean that I thought the government should be able to force you to say that you're guilty (even if you're innocent). Duh, that would be silly.
Yes, that's a good point, if it makes no difference either way, why bother?
I think because it bothers me to hear arguments that manifestly make no sense, such as when people say that "We need the Fifth Amendment otherwise the government would be able to torture people", or "We need the Fifth Amendment because otherwise if you say you didn't do it, the government could charge you with lying" [to do that, they would need to convict you of the crime itself, and if they do that, you're screwed anyway].
And sometimes we have to decide how constitutional protections should be extended to new arenas, and the logical way to do that is to ask, "What was the rationale for this right in the first place?" and then "Does that rationale still apply in this new arena?" We can't do that for the Fifth Amendment if the rationales make no sense.
OK now we're getting somewhere -- realistically weighing the pros and cons and their probabilities. If you're innocent and the police want to question you, what is the likelihood that the police will misinterpret everything and end up arresting you, versus the likelihood that they'll get the information they need and let you go, and maybe you'll even help them catch the real perp in the process? Professor Duane's presentation gave no means of answering those questions.
This is only an issue at all if you get arrested and go to trial. My entire point is that Professor Duane was looking only at the sample of situations where people end up getting arrested, and ignoring the people who help themselves by talking to the police and subsequently do not get arrested.
This thread was about the case of getting pulled over -- if you talk to the cop instead of sitting stone-faced and silent, you might get off with a warning. Officer Bruch gave another example, saying that he brought in some people for interviews who in fact convinced him that they were innocent, so he let them go. Both of these examples contradict Professor Duane's assertion that "it CANNOT help to talk to the police".
Professor Duane said "It CANNOT help if you talk to the police". Officer Bruch gave multiple real-life examples from his own career of people who helped themselves by talking to the police. Do you think Officer Bruch was lying or was Professor Duane wrong?
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Bruch said, "I try not to bring anyone in to the interview room who's innocent. And there are a couple that I have let walk away because they were innocent." That means if he brought someone into the interview room, he initially thought they were guilty. If they talked and he let them go, that means the person conviced him they were innocent.
I would say that changing the cop's mind from thinking that you're guilty to thinking that you're innocent, is certainly "helping you". That's true even if the cop's initial state of mind (that you were guilty) might not have been enough for him to make an arrest.
(I assume you meant 5th Amendment, not 4th Amendment -- the person who started this thread used the wrong subject.)
If you read the link that I provided:
http://rychlicki.net/inne/201_Fed.Appx.430.pdf
and search for "Fifth Amendment", you'll find the section where Josh Wolf raised it as a defense and the judge rejected it.
Consider the case where you're guilty but if you answer all the cop's questions, they'll ask the judge for leniency. If you refuse to talk until you get a lawyer, and then "cooperate" through your lawyer, are the cops just as likely to recommend leniency?
Remember in general police don't ask for or against leniency, they just testify. About the only "asking for leniency" a typical judge would give serious weight too(in part because it's a case of having CYA) would be if it came from the prosecutor. Prosecutors and police are generally on the same side, but any deal made by one isn't binding on the other and the only one who really matters is what the prosecutor agrees too. So as in any other field, don't give away leverage until you get something for it. Remember the prosecutor isn't after "justice" as one would normally think of it, but rather punitive convictions that will allow for re-elections and advancement. On that topic I recommend the book "The Collapse of American Criminal Justice" or at least the short review of it here:
http://www.nybooks.com/articles/archives/2011/nov/10/our-broken-system-criminal-justice/?pagination=false
One possibility is that if you talk to the police, for example, to help them catch a criminal, that may benefit you (insofar as it makes your neighborhood safer) and perhaps you might sincerely care about making your society safer as well. However, that doesn't benefit the lawyer, so they don't care.
I don't know what kind of answer this is, but it isn't an answer to the question I asked.
What I meant was: You asked, "Why would a lawyer not advise a person to speak to the police?" One possible answer is that if there are benefits to speaking to speaking to the police. However those benefits don't accrue to the lawyer, so they may not take it into account when telling you never to talk to the cops.
Of course, the very one you just used - in asserting that the 5th Amendment doesn't change the outcome, you assumed 1) that coercion of confessions is explicitly banned (and reasonably defined) and 2) that the putative ban is likely to be enforced and 3) that the putative ban additionally prohibits the use of confessions already obtained by confession. Some of our rights are predicated on "nature," some merely on common law precedents. The 5th Amendment embodies one borne more from game theory and political realism. It is one that is critical to the protection of innocent people, as well as those guilty of minor crimes in the context of a draconian police state.
If you want an additional scenario, here's one, which gets to the heart of the matter without some extenuating circumstances pertaining to an investigation or particular primary crime: At some point, I lie to the police about whereabouts, associates or other matters in order to hide my sexual orientation. Lying to the police ("false statements") is a crime in many if not most US jurisdictions. Later, in court, I take the 5th in order to avoid incriminating myself for commission of those statements (and likely revealing the secret to an even wider audience - though perhaps a less violent).
Unfortunately, I give it all away when I start making out with a portrait of George Mason on my way out the court house.
I've said from the beginning that I think people ought to be free to say to the police or the courts, "I didn't commit the murder, but it's none of your business where I was."
Unfortunately, if you have lied to the police about your whereabouts to cover up your sexual orientation (instead of just saying "It's none of your business where I was"), it's not obvious to me why you deserve protection in that case. Even if the police don't care about your sexual orientation, if they were asking you where you were and you lie, they may waste valuable time checking your story. You ought to just say (and ought to be allowed to just say), "I'd prefer not to say where I was."
What is your evidence to support what you're saying?
"As I explained in the first article: If you take away the "right to remain silent", a suspect can still say, "No, I didn't do it," and the police options for "coercing" them are the same as they were before."
Not their legal options. You argue against yourself. You appear to be saying that the existence of the law doesn't matter because police and courts will ignore it anyway. Yet we have 200+ years of history showing that it DOES make a difference. If that isn't what you're arguing, then I don't understand what you're trying to say.
All I'm saying is:
Suppose you're innocent the police ask you if you're guilty. With the Fifth Amendment, you can refuse to answer. Without the Fifth Amendment, you would just say "No."
At that point, if the police don't like the answer that you're giving, and if they're corrupt enough, they could just beat you until you confess -- and since that's happening outside the boundaries of the law anyway, the Fifth Amendment doesn't help you. The police will just say that you waived your Fifth Amendment rights and confessed.
For that matter, since the police aren't allowed to beat you, they'll have to lie in court about how the confession was obtained. And if they're willing to lie in court anyway, they can just lie and say that you confessed, even if you didn't. Again, since they're acting outside the law, the Fifth Amendment doesn't help you.
Which brings it back to my original article: To show the benefits of the Fifth Amendment, you need to come up with a specific, precisely defined scenario where the outcome is different depending on whether we have the Fifth Amendment or not. The scenarios that people have been proposing, all fail that test, for the reasons described above.
"That's why I said in the first article: the only answer I would accept is a specific scenario in which the outcome is different because of the Fifth Amendment."
Do you have any idea how many people were NOT convicted because they pled the 5th? You can look them up yourself... I'm not going to do it for you. But I would say that 99% of those made a difference.
What makes you think they wouldn't have also been acquitted if they had just said "I didn't do it"?
But I can give you one (although I don't have an actual citation at hand... it shouldn't be hard to look it up). The recent Federal case in which the judge ruled that the suspect could not be compelled to hand over the password to his hard drive is a specific example of one situation in which it almost certainly made a difference.
The Jeffrey Feldman case you're referring to, in conjunction with the Josh Wolf case, is a good illustration of the argument I was making in my second article:
http://yro.slashdot.org/story/13/09/09/136255/the-reporters-fifth-amendment-paradox
Jeffrey Feldman was possibly guilty, and refused to give up information to aid in the criminal investigation, and the judge said that was permitted. Josh Wolf was definitely innocent, and refused to give up information to aid in the prosecution of someone else (for vandalizing a police car), and Wolf went to jail as a result. He was, in effect, punished for being innocent -- if there was any chance he had taken part in vandalizing the police car (but not enough evidence to convict him of it), he could have pled the Fifth and gotten away with remaining silent. Where's the sense in that?
A few people who don't understand the problem keep saying: "But that would be self-incrimination!" Yes, I know what "self-incrimination" is. The question is why we give people a sacred right against "self-incrimination" but not against "other-people-incrimination". If Jeffrey Feldman has a right to silence even though he
You fail to remember that it was not just Prof. Duane, but also a police detective that stood up there and told everyone the exact same thing.
Officer Bruch gave multiple real-life examples from his own career of people who helped themselves by talking to the police. (Either they were innocent and managed to convince him of that fact, or they were guilty but the police recommended leniency to the judge because the defendant cooperated.) Unless Bruch was lying, those examples do undermine Professor Duane's point.
2. The argument about the danger of talking to cops is based on a sampling error. Professor Duane says that criminal defense attorneys "always, always say it was a bad idea for their client to talk to the police". But this sample obviously only includes people who talked to the police and ended up getting arrested, and charged, and needing a criminal defense attorney. The sample wouldn't include anyone that the police talked to and decided not to arrest -- whether they were initially brought in as a suspect but then convinced the police that they were innocent, or whether they were simply third-party witnesses who volunteered information to the police that they thought was useful.
Of the many, many, many attorneys that I know (many of whom are family/friends/etc) and the many cops that I know (former military turned police), they will all tell you the exact same thing. It CANNOT help you to talk to the police, even if you are innocent of the crime you are being questioned about. They both even tell you quite specifically that even though you may be innocent of the crime you are being questioned about, you may, without realizing it, incriminate yourself in an unrelated crime
Yes, you might. However, the examples Bruch gave showed that you might also convince the police you're innocent. Since it could go either way, that means it's not correct to say that "It CANNOT help you to talk to the police".
His advice ignores the benefits of leniency if you're guilty and you're almost positive you'll be caught anyway. For most of this discussion I've been focusing on the merits of talking to the police if you're innocent. But Officer Bruch also says that if people in the interrogation room answer questions and cooperate, then even if they're ultimately convicted, the police do testify to the judge that you were cooperative, and the judge can take that into account and reduce your prison sentence. That is at least theoretically another legitimate reason to violate Professor Duane's "Don't Talk To Cops" rule, if you're 99% sure that the police will find enough evidence to convict you anyway, you can hope for leniency by cooperating. That's essentially why I do talk to the police if I get pulled over for speeding -- I've gotten off with a warning a few times, whereas I'm pretty sure that if I'd just sat silently and stared straight ahead, I would have gotten the ticket.
This is where your lack of legal knowledge truly shows through. Just because YOU may be positive that the police will find enough evidence that you are guilty does NOT mean that they gathered the evidence legally, that the evidence is NOT circumstantial, or that the evidence could also point at someone else. Even if you are guilty, and you know they are going to find out, a lawyer can help to mitigate the punishment or possible have you acquitted due to many many many loopholes and legalities that you as a layman may not know.
Actually, yes I did know that could happen.
But again it's a situation where that might happen. Or it might also be the case that the police recommend leniency because you cooperated right away. (If you refuse to talk until your lawyer shows up, possibly the next day, and then only "cooperate" through your lawyer, the police might not be as eager to recommend leniency to the judge. That's especially true if the
Yes a couple of people have said that basically what Duane meant was, "If you talk to the police, it might help, but it won't help you any MORE than if you had simply waited for your lawyer and communicated through your lawyer."
That's probably closer to the truth, however it still ignores a couple of possibilities. What if you have time-sensitive information that can help the police catch the real perp, or help prevent another crime? If you're innocent and you wait for your lawyer, it might be too late. If you're guilty but you're hoping for leniency because you helped the police catch a more serious criminal, then it might also be too late by the time your lawyer shows up, and you've missed your best chance at getting the cops to recommend leniency to the judge because you cooperated.
Your main argument is how talking to the police benefits the society as a whole rather than the individual. Let's take a look at two recent high profile examples which contradict your point.
On the one hand we have Ross Ulbricht who was caught running Silk Road. The evidence that lead to his arrest is pretty solid as you can read in the criminal complaint. If he had cooperated with the investigation, he gets a reduced sentence. How is that fair to the society as a whole?
Well when I say that the defendant cooperating the police benefits society, I mean that the standalone act of his cooperating, benefits us (saves us some effort gathering evidence against him). Now, because that standalone act benefits us, we might offer him something in return, and after the quid pro quo is done, the entire net transaction might no longer be beneficial to us, if the quid pro quo was too generous. But that has no bearing on the original point, which is that the act of his confessing to the police would help us.
On the other hand we have Aaron Swartz. He clearly understood not talking to the police, but his girlfriend Quinn didn't, as a result subjected herself and Aaron to unnecessary harassment by the prosecutor. It costed their relationship, and eventually, Aaron caved under the pressure and took his own life. In Aaron's case, it wasn't clear what is the maximum extent he could be charged for what he did, but cooperating definitely made it worse. It's like the prosecution ripped him off by charging him 10x for his crime, and then generously offered a 10% discount as leniency.
If you believe what Aaron did was good for the society, you would have advised Aaron and Quinn not to talk to the investigators.
In the case of Aaron Swartz, I think the law he was being charged with was an unjust law (at least under the prosecutor's interpretation of the law and the penalties that they were seeking).
So of course that makes the prosecution's tactics look horrible, but the trouble with that line of reasoning is that every law enforcement method looks horrible, when the law that they're enforcing is clearly unjust. So you can't use that as the standard for judging a law enforcement tactic.
What if some guy Bob found himself in the same situation, except that Bob had robbed a liquor store, and the cops came to talk to him, and Bob lawyered up but his girlfriend Jane spilled the beans and ultimately got Bob arrested. Would it still look so unfair for the police to have used that tactic?
I don't care about the minutiae of either side of this argument. What I care about it the truth of a position. The central tenant to wisdom is the ability to rigorously critique and defend any position you might hold eg Socratic thought. When I read your discourse on the morality of the the Fifth Amendment, I see text that was written to support a judgement already made. I don't think you have wrestled with the ramifications of your position enough. A good sit down with some Kafka might cure you of this.
> Do you think Officer Bruch was lying or was Professor Duane wrong?
First take my point on philosophy. You've just committed a false dichotomy. I think the people who "helped themselves" could have done so without risking talking to the police.
That's fair, so perhaps what he should have said is, "It can help to talk to the police, but not any more than it would have helped if you had just waited for your lawyer to show up."
So, is that really correct? Consider the case where you're guilty but if you answer all the cop's questions, they'll ask the judge for leniency. If you refuse to talk until you get a lawyer, and then "cooperate" through your lawyer, are the cops just as likely to recommend leniency? Maybe not. Perhaps especially not if it was a time-critical case, and another more dangerous criminal got away while you were waiting for your lawyer, when your information could have helped catch the guy.
Considering the number of police questions in the course of history, I'm sure there are at least a small number of cases where a person was able to manipulate outcomes in their favor by talking to police especially if it helped the police nail someone else.
I'll offer a question in return. Lawyers have a fiduciary relationship with their clients and almost universally recommend to not speak to police. In light of your position, why you suppose this is?
One possibility is that if you talk to the police, for example, to help them catch a criminal, that may benefit you (insofar as it makes your neighborhood safer) and perhaps you might sincerely care about making your society safer as well. However, that doesn't benefit the lawyer, so they don't care.
A scenario where the Fifth Amendment "indirectly" affects the outcome would still be allowed, as long as the outcome is probably different depending on whether we have the Fifth Amendment or not. What's an example of one?
Bruch also gave the example of someone who is guilty but gets leniency by cooperating with the police.
If that person had lawyered up right away and "cooperated" only through their lawyer, it's not obvious that the police would have given the same recommendation of leniency to the judge.
Josh Wolf basically tried this argument and it failed.
http://en.wikipedia.org/wiki/Josh_Wolf_(journalist)
http://rychlicki.net/inne/201_Fed.Appx.430.pdf
He witnessed some protesters vandalizing a police car, but there was never any claim that he himself had vandalized the police car. The government wanted his evidence against the protesters. He tried to invoke the Fifth. The judge rejected it, saying Wolf had no reasonable basis for believing that he could incriminate himself in his testimony, so he had no right to remain silent, and he went to jail because he wouldn't talk.
This is what seemed absurd to me -- that if there was any chance he had been involved in torching the car, he could have pled the Fifth and remained silent and not gotten in trouble! But since it was completely established that he was innocent, he was essentially punished for that by being sent to jail for remaining silent. That's the point I made in the second article:
http://yro.slashdot.org/story/13/09/09/136255/the-reporters-fifth-amendment-paradox
http://www.popehat.com/2011/03/18/just-a-friendly-reminder-please-shut-the-hell-up/
says, "When the authorities ask you questions... they are trying to make, or improve, a case against you."
Surely Ken doesn't think this is literally true? Don't the police sometimes ask questions of third-party witnesses that they have no intention of building a case against?
What do you think he probably meant? When they police bring you in and ask you questions, they're trying to build a case against you? Does it still apply if they call you on the phone?
OK, so what he should have said was something like, "If you talk to the police, it might help you, but not any more than it would have helped you to wait until you got a lawyer"?
On the basis of the statements in the video, it's not clear if that's true. Consider the case where you're guilty and you get some leniency for cooperating. If you lawyer up right away, and eventually your lawyer shows up and you "cooperate" through your lawyer, will the police be as eager to tell the judge that you deserve leniency for cooperating? I wouldn't assume so, especially if it happened to be a case where another criminal was on the loose and time was of the essence.
On the other hand, consider the other case: you're innocent and you would be able to convince the police of that fact, but instead you wait for your lawyer. In this case, we can assume you still get off (let's reasonably assume the lawyer is at least as good at talking to the police as you are), so you probably don't make things worse by staying silent. But even in this case, would you make an exception if there's a dangerous criminal getting away, and every minute counts while you're sitting and waiting for your lawyer instead of telling the police what you know?
Well if you assume the cop is definitely corrupt and say nothing, you may miss the opportunity to talk your way out of it by telling the truth. Officer Bruch said there were definite examples of people who had done that.
If you think the cop is probably corrupt, you can stay silent. If you think the cop is honest, you can talk. My point is that if Officer Bruch's stories are true, then Professor Duane is wrong when he says "it CANNOT help to talk to the police".
Obviously, I don't mean that the government should be able to force you to say you're guilty.
But I don't see the big problem with requiring you to answer truthfully as to whether you're guilty or not.
I wonder how many people may have misinterpreted my point to mean that I thought the government should be able to force you to say that you're guilty (even if you're innocent). Duh, that would be silly.
Yes, that's a good point, if it makes no difference either way, why bother?
I think because it bothers me to hear arguments that manifestly make no sense, such as when people say that "We need the Fifth Amendment otherwise the government would be able to torture people", or "We need the Fifth Amendment because otherwise if you say you didn't do it, the government could charge you with lying" [to do that, they would need to convict you of the crime itself, and if they do that, you're screwed anyway].
And sometimes we have to decide how constitutional protections should be extended to new arenas, and the logical way to do that is to ask, "What was the rationale for this right in the first place?" and then "Does that rationale still apply in this new arena?" We can't do that for the Fifth Amendment if the rationales make no sense.
[I grew up in Denmark. w00t!]
OK now we're getting somewhere -- realistically weighing the pros and cons and their probabilities. If you're innocent and the police want to question you, what is the likelihood that the police will misinterpret everything and end up arresting you, versus the likelihood that they'll get the information they need and let you go, and maybe you'll even help them catch the real perp in the process? Professor Duane's presentation gave no means of answering those questions.
Well I didn't say lie instead of invoking your Fifth Amendment rights, I just said that an innocent person can say, "I didn't do it."
This is only an issue at all if you get arrested and go to trial. My entire point is that Professor Duane was looking only at the sample of situations where people end up getting arrested, and ignoring the people who help themselves by talking to the police and subsequently do not get arrested.
This thread was about the case of getting pulled over -- if you talk to the cop instead of sitting stone-faced and silent, you might get off with a warning. Officer Bruch gave another example, saying that he brought in some people for interviews who in fact convinced him that they were innocent, so he let them go. Both of these examples contradict Professor Duane's assertion that "it CANNOT help to talk to the police".
I said nothing like that, but in any case, do you have an example of a scenario that you think passes the test?
See the quotes from the officer in points #2 and #3 in the article.
Professor Duane said "It CANNOT help if you talk to the police". Officer Bruch gave multiple real-life examples from his own career of people who helped themselves by talking to the police. Do you think Officer Bruch was lying or was Professor Duane wrong?
http://criminal.findlaw.com/criminal-rights/fifth-amendment-right-against-self-incrimination.html
"Also, unlike defendants, witnesses may be forced by law to testify (typically by subpoena)."