
Reminder: Oh, Won't You Please Shut Up? (2011) - wglb
https://www.popehat.com/2011/12/01/reminder-oh-wont-you-please-shut-up/
======
chimeracoder
> The lesson — other than that criminal justice often has little to do with
> actual justice — is this: _for God 's sake shut up_. Law enforcement agents
> seeking to interview you are not your friends. You cannot count on "just
> clearing this one thing up." _Demand to talk to a lawyer before talking to
> the cops._ Every time.

This is a very good reminder, and everything he says is both important and
true. Unfortunately, it's sadly much easier said than done.

I know my rights. Both nationally, as well as the specific nuances of New
York[0] (both city and state). I have even conducted multiple "Know Your
Rights" training events educating people (generally students) about the rights
that they do and don't have when speaking with LEOs, and how to exercise them.
But even then, when push came to shove and I was in this position, I found
myself hesitating and second guessing my knowledge, despite all the practice I
had and the trainings I'd helped conduct myself.[1]

LEOs - especially Feds - will do everything they can to intimidate you, make
you uncomfortable, lower your confidence, etc. It's literally their job to
make people like you make mistakes. It sucks, but that's what you're up
against.

[0] PSA: Did you know that possession of < 27g ( _not_ a full ounce) of
marijuana is only a criminal offence in NY if "burning or open to public
view"? Did you also know that this means that you should never, ever turn out
your pockets if a cop asks you, because then you've exposed said contraband to
"public view"? Wait for him/her to frisk you, and at least then your lawyer
will have a slight chance at getting the charge dismissed.

[1] It didn't help that most of my knowledge (as is often the case) centred
around local police, whereas the situation regarding border crossings and the
TSA is more thorny.

~~~
SilasX
>LEOs - especially Feds - will do everything they can to intimidate you, make
you uncomfortable, lower your confidence, etc. It's literally their job to
make people like you make mistakes. It sucks, but that's what you're up
against.

I don't know why we tolerate that. Imagine if doctors used such techniques to
get people to participate in medical trials. We'd reject any claim that the
subjects gave consent.

Or imagine if any interested party used those techniques to get you to do
something that every competent professional would advise against? Again, not
good enough to be consent.

But if law enforcement does the same thing? "Just good ol fashioned police
work".

~~~
mhaymo
We don't expect criminals to consent to being prosecuted. Those parallels
really don't make a lot of sense.

~~~
Spooky23
The problem is that everyone is viewed as a perp, particularly if you are
black. "Innocent until proven guilty" means something.

~~~
rayiner
It means something specific: at trial, the police must prove your guilt by a
reasonable doubt, and doubt is resolved in favor of the accused. That's all it
means.

This is not to say that law enforcement doesn't need to cut back on the
aggressive tactics. But rather that the presumption of innocence has nothing
to do with why.

~~~
vdaniuk
You are conveniently ignoring a great number of plea deals when 'justice' is
served without a case being heard in court.

~~~
rayiner
Pleas aren't scrutinized by trial, but they are heard in court:
[http://wakeforestlawreview.com/2015/01/fourth-circuit-
holds-...](http://wakeforestlawreview.com/2015/01/fourth-circuit-holds-guilty-
plea-was-supported-by-an-adequate-factual-basis). At least at the federal
level, judges may only accept a guilty plea after conducting a colloquy with
the defendant and convincing themselves that the plea is voluntary, the
defendant knows his rights and consequences of the plea, and that there is a
factual basis for the plea. In federal courts, the factual basis will usually
be a detailed document enumerating the facts the prosecution is prepared to
prove at trial, which if proven will establish the defendant's guilt.

------
hawkice
> Hence, the government's chickenshit false statement trap works — even though
> the government agents set it up from the start.

If you don't read Popehat, this might be the moment you realize it's a good
idea to start. Very rarely do you see legal discussion detailed enough to be
meaningful, while informal enough to hold your attention.

Other discussions of note is the bizarre sentencing of Petraeus:
[https://www.popehat.com/2015/03/03/a-few-comments-on-the-
dav...](https://www.popehat.com/2015/03/03/a-few-comments-on-the-david-
petraeus-plea-deal-what-money-and-connections-buy-you/) and the way Darren
Wilson's potential prosecution was evaluated:
[https://www.popehat.com/2015/03/04/darren-wilson-and-the-
ben...](https://www.popehat.com/2015/03/04/darren-wilson-and-the-benefit-of-
doubt/)

Double standards are a recurring theme, you could rightly deduce. As a largely
technical crowd it might bother us as much as it bothers lawyers.

~~~
Zaephyr
Also of note for those new to Pope Hat, Ken White is a former Federal
Prosecutor. His perspective from both sides of federal law makes for some
interesting posts.

------
skrebbel
I'm not American and I have a question. Everybody in this thread repeats to
"never talk to law enforcement without your lawyer present". I don't have a
lawyer. I don't know a lawyer. I've hardly ever even talked to a lawyer. If I
were in the USA and I'd get picked up for questioning, I wouldn't know who to
call.

Does every American "have a lawyer"? Do you know their phone number by heart?
Is having a lawyer like having a health insurance, in that you could do
without but it'd be pretty stupid? Isn't that a suffocating thought? How do
you deal with it?

~~~
techstrategist
No, I think that most Americans don't have a lawyer on call.

The typical advice I have heard is to do a little research on lawyers in your
city, and have a phone number of a reputable lawyer (or a few) in your wallet
in case of a potentially severe legal situation. When you call them and
establish a relationship where you are paying for their services they become
"your lawyer".

(this is not advice, I'm not a lawyer, etc)

~~~
skrebbel
> _(this is not advice, I 'm not a lawyer, etc)_

Related: will people sue you if you don't include that disclaimer?

~~~
jessaustin
IANAL, but I believe that in this case the disclaimer is just a courtesy. That
is, before one makes a life-altering decision, one should consult a real
attorney, not just us morons on HN.

~~~
cookiecaper
If you don't include it when discussing any vaguely law-related matter,
Internet Tough Guys will be quick to call you out for "practicing law without
a license". [1]

[1]
[https://news.ycombinator.com/item?id=9088475](https://news.ycombinator.com/item?id=9088475)

------
bcg1
Actually over the years, I've found that shutting my mouth would be helpful
not only when talking to law enforcement. Not always so good at carrying that
out though.

Anyways, it reminds of the time I was arrested for smoking the forbidden devil
vegetable. We were brought into the city court room to be indicted while we
were waiting two suburban white teenagers were in from the bench getting
chewed out by the judge, saying that he's sick of seeing these kids from the
suburbs coming into the city to buy drugs and encouraging crime in his
neighborhood. After he finished his rant, he asked them what they plead and
they said not guilty of course. Then one of them felt the urge to speak up and
said, "I just want to point out one thing before we go... the police officer
wrote down that it was crack cocaine, but it was regular cocaine, not crack."
After the judge picked his jaw up off the floor he broke character and told
them to shut up until they had a lawyer.

~~~
dantillberg
I can't help but wonder if those kids would have gotten the same apparently-
lenient/gracious treatment from the judge if they'd instead been POC teenagers
from the inner city.

~~~
bcg1
Actually he seemed genuinely ticked off at those kids, and I wouldn't say he
was lenient (I wasn't really trying to make a statement about that with my
story, so maybe I gave a false impression by mistake). I'm white and my friend
that I was arrested with was black, and we received the same treatment from
the judge (not from the cops though, but that is a different story) - and from
what I saw those two kids were the only ones who got chewed out, the rest of
us were just arraigned and sent on our way for further processing.

------
lgierth
Also very enlightening, and many probably already have watched this:
[https://www.youtube.com/watch?v=6wXkI4t7nuc](https://www.youtube.com/watch?v=6wXkI4t7nuc)

> Dont Talk to Cops

> Mr. James Duane, a professor at Regent Law School and a former defense
> attorney, tells you why you should never agree to be interviewed by the
> police.

~~~
SilasX
Thanks, but I'll continue to report crimes and assist canvassers looking for
anyone who saw a suspect.

"But he obviously didn't mean _that_!" Then why the extreme repetition of
"never"?

~~~
praptak
I would seriously consider reporting anything non-lethal in US, see _" Good
Samaritan Backfire or How I Ended Up in Solitary After Calling 911 for Help"_:
[https://medium.com/human-parts/good-samaritan-
backfire-9f53e...](https://medium.com/human-parts/good-samaritan-
backfire-9f53ef6a1c10)

~~~
Torgo
There is a corollary to "don't talk to cops" which is "if you do talk to cops,
minimize the encounter" closely followed by "always obey direct order from cop
to leave" and concluding with "if you are incarcerated, shut up until you're
completely out of confinement."

------
tsotha
I thought everyone knew this. Never talk to representatives or agents of the
US federal government without your lawyer present. Never, ever, ever.

When they make contact, ask them for a phone number your lawyer can call. Ask
them what matter the questions will be regarding. Get a card if it's in
person. They're going to tell you there's no reason to hire a lawyer and you
can clear the whole thing up in five minutes if you talk to them. They're
lying, which is something they can do legally, but if you do it you're off to
the gray bar hotel.

[http://corporate.findlaw.com/litigation-disputes/how-to-
avoi...](http://corporate.findlaw.com/litigation-disputes/how-to-avoid-going-
to-jail-under-18-u-s-c-section-1001-for-lying.html)

~~~
ptaipale
That is slightly weird. How would I, for instance, arrange a lawyer to be
present when I step out of a plane at JFK and talk to the immigration officer,
who quite legitimately just wants to see my passport? He'll also be asking
questions which I'm obliged to answer. There's no choice, but there's seldom
any trouble, either.

~~~
jpatokal
If you're a US citizen returning to the US, you actually are _not_ obliged to
answer their questions. That said, this is a pretty grey area and they
certainly don't like it if you don't.

[https://greyenigma.wordpress.com/2012/03/30/i-am-detained-
by...](https://greyenigma.wordpress.com/2012/03/30/i-am-detained-by-the-feds-
for-not-answering-questions-nomad-lawyer/)

~~~
ptaipale
Right, that's nice to know. I'm not a US citizen though, so I think I really
need to answer those questions - without a lawyer - unless I want to be put
back to the next plane heading back where I came from.

~~~
coldpie
Basically, yes. It's an ugly situation and lots of people take the stance of
never visiting the US because of it.

~~~
foldr
You can be subject to the same kind of questioning when entering any country.
The only way to be sure of avoiding it would be never to travel abroad.

~~~
ptaipale
True. The questions on U.S. border may sometimes be a bit more strange and
thorough than in other countries, to the point of obnoxiousness, but there are
similarities in the immigration point to many countries. And there are some
grounds for why it is like this in the U.S. - after all, U.S. is the top
destination for illegal immigration.

The visa and ESTA forms really should get rid of questions about whether I was
involved in the crimes of Nazi Germany between 1933 and 1945. Snare me all
right, but snare me with something more relevant today.

------
mellavora
Remember also we need to end civil forfeiture, which lets police take your
stuff without charging you with a crime. It is a growing business in the US,
police are now regularly trained in the game and rewarded based on their daily
take.

more reading: [https://www.aclu.org/criminal-law-reform/civil-asset-
forfeit...](https://www.aclu.org/criminal-law-reform/civil-asset-forfeiture)
and google suggests the following: [http://fear.org/1/](http://fear.org/1/)
[http://endforfeiture.com/](http://endforfeiture.com/)

~~~
pluma
Or if you're more into being educated by comedy, John Oliver did a nice take
on it:
[https://www.youtube.com/watch?v=3kEpZWGgJks](https://www.youtube.com/watch?v=3kEpZWGgJks)

------
serve_yay
The only time I ever did this, it was a routine traffic stop and I was with my
wife and my parents. The cop was asking me a bunch of questions about why I
was driving so fast, and I just played it off like I didn't understand, just
trying to say as little as possible. It was a bad tactic - it raised suspicion
and I later learned that my mother thought I was actually holding drugs or
something because I was being evasive. I still in general agree with the
advice, but... it requires some subtlety.

~~~
tempestn
This is a good point though. What do you folks suggest for the standard
traffic stop, along the lines of,

"Sir, do you know how fast you were going?"

Presumably both "yes" and "no" would be bad. (The former is obvious, and the
latter could mean you're not paying sufficient attention, etc.) So, do you
just stare at them in silence? Do you say something like, "I'd rather not
answer," which while accurate, sure sounds like "yes". (At the very least,
there goes your chance of a warning instead of a ticket...)[1]

I agree with serve_yay that many of these situations start off seeming
innocuous, and staying silent is easier said than done.

Another example is the cops canvasing the area of a crime, looking for info.
Do you just refuse to speak to them without a lawyer, even though you had
nothing to do with it? It's certainly possible (albeit unlikely) that they
actually have you as a suspect and are trying to trick you into some sort of
false statement. (Or a statement that _appears_ to be false because it
conflicts with other evidence, even if it's true!) But in the vast majority of
cases it'll be exactly what it seems. Or say you actually witnessed a crime.
Or were the victim! Still lawyer up before talking to the cops? It appears the
safest thing is, yes, always get a lawyer. But at some point on the spectrum,
does the cost and inconvenience outweigh the insurance factor of doing so?

[1] I've only been in that situation a couple times, but I've tried my best to
answer politely without saying anything material. One way to do that is to
answer questions with questions. "Do you know how fast you were going?" "How
fast was I going, Sir?"

~~~
venomsnake
> "Sir, do you know how fast you were going?"

The proper answer is - "No, because I know exactly where I am"

~~~
Erwin
That's going to get you instantly arrested in Albuquerque, NM.

~~~
venomsnake
They outlaw science there?

~~~
MichaelGG
Perhaps the opposite: Maybe he was referencing the physics research there?

------
NhanH
The question that I have every time I read about something similar to this is
not about the law itself, but about the human who's applying the law: how/
why/ what is the line of thought that would lead them to (supposedly)
knowingly do something like this? I realize that processes, bureaucracy and
generally abstraction can allow people to do less than desirable behaviours,
but I can't quite figure out which abstraction that would encourage people to
do things like that (note: with the term "abstraction", I meant that by using
incentives or measuring the wrong intermediate metrics, we've created a wrong
set of objectives, which might be completely misaligned with the actual goal
we're trying to achieve).

Laws are complex set of statements, which naturally will have more
accidentally complexity as they're developed, a phenomenon that hackers are
extremely familiar with. That's something to be expected. On the other hand,
human, abusing the accidental complexity of law, is not ideal - as anything
else, there should be place and time for trickery, but not the SOP.

That said, what's the rationale for the behaviour of law enforcement officer
in pursuing various type of trap-y actions?

\- Do LEO routinely believes that everyone they investigate to be committing
the crime. Do we have a good priori of P(criminal | under investigation) that
would support this?

\- Did we actually manage to create a powerful enough abstractions that let
actors within the system to, well, behave psychopathically (ie. this button
should be pushed because I'm supposed to do that, I don't really know what
happen behind it)?

\- Trickery are generally being reported out of proportion, and should not be
a general concern for the the majority of us.

\- Malicious intention -- I will assume this percentage to be not higher than
those from a general population.

~~~
mikeash
I would say "all of the above."

LEO do routinely believe that people they investigate must be guilty. They
don't investigate at random, but rather are prompted by some evidence of
criminal behavior. That certainly doesn't mean that you must be guilty if they
investigate you, but it sets _them_ up to _believe_ you are.

The system is set up with compartments so nobody sees the full consequences of
anything and this sort of misbehavior is encouraged. If you send somebody to
jail, they disappear from your life the moment the verdict is reached and you
have no reason to dwell on the harm you've caused them. (And if you do, you
probably think it's a good thing, because you think they're a criminal!) And
you probably get a commendation for putting a bad guy away.

Bad behavior does get reported disproportionately. Most cops are good cops.
For everyone like this, there are ten cops who find a lost cellphone and
personally deliver it back to the owner, as happened to a neighbor of mine a
few months ago. That doesn't make the news. Although that doesn't mean it
shouldn't be a concern for the majority of us. Even a small risk of being
falsely imprisoned is important, and there's no harm in taking the "SHUT UP"
route with a good cop.

Finally, I would be wary of assuming that malicious intent is no higher than
among the general population. Bad people tend to seek power over others, and
what better way to wield such power than to do so _legally_ as a member of the
police? No doubt, the legitimate "protect and serve" folks still greatly
outnumber the bad guys, but I would bet they're more concentrated.

~~~
gkop
It's dangerous to bandy around statements like "most cops are good cops" for
which you don't have evidence. Instead, you might say "Some cops are good
cops".

~~~
mikeash
How is it "dangerous"? I'm expressing my personal opinion on a relatively
obscure site on the internet. It is one of the least dangerous activities I
can imagine.

~~~
gkop
Your argument does not rest on most cops being good cops, it stands if some
cops are good cops. So why throw in an assertion you can't back up?

~~~
timv
You asserted that it was "dangerous" for him to bandy around such statements.

Care to back up that assertion?

"Unnecessary" and "dangerous" are quite different.

~~~
baddox
The word "dangerous" is not exclusively used to indicate the likelihood of
physical injury. It is also widely used to describe the likelihood of any
undesirable consequences. The undesirable consequence in this case is a
weakening of the argument being presented.

~~~
stonemetal
How does it weaken the argument? No one has put forth the idea that it is ok
to talk to good cops. Don't talk to cops good, bad, or indifferent in nature.

------
tux
For anyone else that site no longer loads there is a mirror @
[https://archive.today/daFxI](https://archive.today/daFxI)

------
fijal
This is precisely why in Poland (and likely more european jurisdictions) lying
as an accused is not a crime (even if you muddle stuff completely), only as a
witness. It's a bit shocking this is not the case in America

~~~
netrus
In Germany, not even prison escape is a crime per se (unless you hurt someone
or damage property, of course - so it's mostly the "door-left-open"-scenario),
because we recognize the elementary human desire to be free. And you do not
have to accuse yourself, and that includes lying, if necessary. I'd say it
works pretty well.

------
uts
I want to clarify the scope of this advice. If I've actually committed a crime
and a cop is interrogating me about it, I should shut up and talk to my
lawyer. (e.g. I robbed someone's house) In the other extreme, if someone's
committed a crime against me, I should actively call the police to talk to
them (e.g. someone robbed my house).

The majority of interactions with police fall somewhere between these two
examples in terms of susceptibility. What determines when I should be talking
to the cops and when I shouldn't?

~~~
Udo
_> If I've actually committed a crime_

The article (and other such presentations on the subject) indicate very
clearly that innocence is not a factor. It doesn't seem to matter if you've
committed a crime or not - and whether your assessment your own innocence
itself actually holds true or not is yet another uncertain factor.

 _> if someone's committed a crime against me_

Then your lawyer will facilitate all the necessary measures, and he/she'll do
it better and more efficiently than you ever could.

 _> What determines when I should be talking to the cops and when I
shouldn't?_

Beyond basic cooperation at, say, a traffic stop or during an emergency, most
experts seem to agree that you should never, _under any circumstances_ talk
directly to any law enforcement personnel.

------
chx
Read [http://www.amazon.com/Three-Felonies-Day-Target-
Innocent/dp/...](http://www.amazon.com/Three-Felonies-Day-Target-
Innocent/dp/1594035229) even if it's exaggerating, even if it's twisting the
truth as some claim there are some frightening amount of felonies you can
commit and because of that you can't ever presume you are innocent. But even
if you are, as the wonderful video linked by lgierth shows you can be in
trouble. Just don't talk to the police.

------
snowwrestler
The general case here is: don't lie to federal agents. The easiest way to do
that is to stay silent and demand a lawyer.

But understand: if you're on the periphery of an investigation, you're running
a chance of raising a red flag. It's well within your rights, and ultimately
you can't incriminate yourself by being silent. But you could substantially
add delay, frustration, and lawyer costs to the whole experience.

Another way to not lie is to speak the truth. In the specific example from the
blog post, there's no reason to lie--taking that call was not illegal, so
there's no reason to lie.

My question is: how often to federal prosecutions go to trial based _only_ on
a false statement trap? I have no doubt that agents use it as a "cherry on
top" of other charges, but I'm assuming most folks here are worried about
surprise or "gotcha" prosecutions--not actually worried that their criminal
ways will be exposed.

So how often do federal agents clear someone of any substantive wrongdoing,
but still prosecute them based solely on a false statement trap? I would be
surprised if it ever happens.

Edit: Downvotes but no answers are a bummer; I'm asking a question here.

~~~
rosser
"If one would give me six lines written by the hand of the most honest man, I
would find something in them to have him hanged." — Cardinal Richelieu

~~~
brohee
This quote is often misattributed. Actually by Laubardemont.

[https://fr.wikipedia.org/wiki/Jean_Martin_de_Laubardemont](https://fr.wikipedia.org/wiki/Jean_Martin_de_Laubardemont)
(no English wikipedia page). He's well known for the Loudun withcraft trials
([https://en.wikipedia.org/wiki/Loudun_possessions](https://en.wikipedia.org/wiki/Loudun_possessions))

------
gadders
IIRC, this was what got Martha Stewart her jail time. Not insider trading, but
lying to a federal investigator.

------
the_mitsuhiko
One thing that is very important to know about this behavior, is that while it
works in the US in your favor, it will not in other states of the world. A
good example is Austria where refusing a statement generally works heavily
against you.

------
spiritplumber
"My name is (name), what is yours? Nice to meet you. Am I free to go?"

"Please, I do not wish to talk to you."

"Please, if you want to talk to me further, I will want my lawyer present."

"Please, I do not wish to participate in a fight with you."

"Please, let us leave each other alone, or I will destroy you and your
organization via technology beyond your understanding." (Be sure you can back
this one up before using it).

Be polite, be professional, speak little unless there's profit in speaking
much. Works with most everyone that is outside your monkeysphere, this
includes cops.

------
mellavora
So my question is what can we, the hacker community, do to change this? Would
pervasive sousveillance help?

Thinking deeper: we need to change the culture of LE in the US. What needs to
change such that LEOs become part of the wider community, so they are held
accountable etc..

Silly idea: a "trip-advisor" or "4-square" for police encounters. Any
encounter with a LEO, you upload the location, their badge number, and give
them a ranking. Did they show compassion/understanding? 5 stars.

~~~
ctdonath
I've considered an app that would, once initiated, aggressively record
audio/video/location/movement/etc, no stop button (!), resisting app
termination, strong encrypting the content, and (key point) immediately
uploading to a deep-storage service like Amazon Glacier. Usage would be free,
retrieval of content would require service-support costs and proof of
ownership or warrant/subpoena.

------
gregors
Dont talk to police
[https://www.youtube.com/watch?v=6wXkI4t7nuc](https://www.youtube.com/watch?v=6wXkI4t7nuc)

------
zkhalique
[https://www.youtube.com/watch?v=6wXkI4t7nuc](https://www.youtube.com/watch?v=6wXkI4t7nuc)

------
jrs235
Remaining silent can hurt you though.

[http://www.huffingtonpost.com/2013/06/17/supreme-court-
silen...](http://www.huffingtonpost.com/2013/06/17/supreme-court-
silence_n_3453968.html)

You need to simply say something along the lines of "I need legal counsel
present while talking to you." After that then shut up.

------
kghose
If you have a competent lawyer, not even a high powered one, a jury of your
peers will be convinced that is indeed bullshit. The problem, of course, is
all the other shit you've done, which HN types think is ok, like running a
drug site on the dark web, which is the actual problem ...

------
jheriko
> Law enforcement agents seeking to interview you are not your friends.

oh dear. this is a very sad statement all on its own, without any of what came
before it.

law enforcement should be our friends.

------
chippy
Anyone have any similar advise for Brits?

~~~
dghf
IANAL, but I would imagine it's a bit trickier, as our right not to
incriminate ourselves is more restricted than that of our American cousins (at
least in England & Wales -- Scotland and Northern Ireland may be different):
the warning given by police is, "You do not have to say anything, but it may
harm your defence if you do not mention when questioned something which you
later rely on in court. Anything you do say may be given in evidence."

~~~
DanBC
I think the advice isn't "say nothing", it is "say nothing until your lawyer
is there".

So, for someone arrested (or questioned) in England or Wales the advice is to
politely say something like "I'm happy to answer your questions officer, but I
am waiting for my lawyer to get here".

------
bsgreenb
I thought this post was going to be about the "Restart or Details" update
dialogue on Macs

------
chrischen
How do they prevent the two investigators from lying about what I said?

------
elchief
Are we talking about their cool HTTP 503/522 error page?

~~~
Qwertious
Doesn't include italicising or links or title, but:

There's really no excuse for the fact that we don't have a "SHUT UP!" tag; I
shall have to remedy that. After all, "SHUT UP!" is one of our most venerable
and consistent themes.

There's a reason for this. The reason lies at the heart of law enforcement
methodology in general and federal law enforcement abuse of Title 18, United
States Code, Section 1001 in particular.

Imagine this scenario, based on an actual situation:

A business associate calls you and says, "my dear business associate, the shit
has hit the fan; Federal Agency X is investigating Project Y we did together.
Two Agency X agents are interviewing people."

"Oh coitus," says you, or words to that effect, and terminate the
conversation.

Later that day, two well-dressed and polite agents of Agency X visit you.
Because you despise me and want me to weep and gnash my teeth, you consent to
be interviewed. At some point, they ask you "have you talked about this
investigation with anyone?"

"No," you say.

They smile.

At the end of the interview, it occurs to you to ask, "Hey, am I in trouble?
Do I need a lawyer?"

The agents smirk. "No," they say. "I mean, unless you lied about talking to
anyone about this investigation."

See, you've fallen into a false statement trap, which I've talked about
before. The feds know that you've talked to somebody about their
investigation. They were probably standing next to your friend when he made
that call this morning. And now you've talked your way into a felony.

Here's how it works. The feds identify some fact that they can prove. It need
not be inherently incriminating; it might be whether you were at a particular
meeting, or whether you talked to someone about the existence of the
investigation. They determine that they have irrefutable proof of this fact.
Then, when they interview you, they ask you a question about the fact, hoping
that you will lie. Often they employ professional questioning tactics to make
it more likely you will lie — for instance, by phrasing the question or
employing a tone of voice to make the fact sound sinister. You — having
already been foolhardy enough to talk to them without a lawyer — obligingly
lie about this fact. Then, even though there was never any question about the
fact, even though your lie did not deter the federal government for a
microsecond, they have you nailed for a false statement to a government agent
in violation of 18 USC 1001. To be a crime under Section 1001, a statement
must be material — but the federal courts have generally supported the
government's position that the question is not whether a false statement
actually did influence the government, but whether it was the sort of false
statement that could have influenced the government.

Hence, the government's chickenshit false statement trap works — even though
the government agents set it up from the start. Now, however weak or strong
their evidence is of the issue they are investigating, they've got you on a
Section 1001 charge — a federal felony. In effect, they are manufacturing
felonies in the course of investigations.

You think this is an improbable scenario? You think I'm talking about rare and
extreme cases to color the entirety of federal law enforcement? To the
contrary, as a federal defense attorney, I'm encountering this more and more
often. Not to sound like an old fart, but we never indulged in such bullshit
when I was a federal prosecutor (cue the scoffing from many defense
attorneys). But in the last 12 years, I've seen it in a dozen cases, and heard
about it from colleagues across the country. It's now routine for federal
agents to close out an investigation with a false-statement-trap interview of
a target in an effort to add a Section 1001 cherry to the top of the cake.

The lesson — other than that criminal justice often has little to do with
actual justice — is this: for God's sake shut up. Law enforcement agents
seeking to interview you are not your friends. You cannot count on "just
clearing this one thing up." Demand to talk to a lawyer before talking to the
cops. Every time.

SHUT UP.

------
gregory144

      But in the last 12 years, I've seen it in a dozen cases...
    

Once a year, throughout the country? How many thousands of investigations are
performed per year? Doesn't seem very likely to happen.

~~~
mikeash
How many thousands of investigations is he personally involved in per year?
I'd guess something on the order of 0.05.

~~~
mod
Not to mention, I imagine they only play that card when it seems like they
need to for one reason or another.

~~~
caseysoftware
More likely they do something similar relatively often and only spring the
trap if they feel it necessary.

~~~
mod
Yeah I didn't mean they don't trap you often, rather they don't have to use it
that often--certainly not prosecute it often--and therefore the guy doesn't
see it that often.

I should have made my opinion more clear, judging by the downvotes.

