
A Law Professor Explains Why You Should Never Talk to Police - monsieurpng
http://www.vice.com/read/law-professor-police-interrogation-law-constitution-survival
======
grecy
> _He didn 't say a word. And there's no doubt that he was exercising his
> Fifth Amendment privilege, but he didn't [formally] assert his Fifth
> Amendment privilege. So the five Republican [appointees] on the Supreme
> Court said, Because you didn't tell the police that you were using your
> Fifth Amendment privilege, your exercise of the privilege, or your decision
> to remain silent can be used against you as evidence of guilt._

Wow, just wow. Even when you choose to say nothing, that can be used against
you as guilt. It really seems like the American way is guilty until proven
innocent, and there will be no let up and everyone is in jail!

~~~
nextweek2
> Because you didn't tell the police that you were using your Fifth Amendment
> privilege, your exercise of the privilege,

That ruling needs challenging. It runs contrary to the Miranda rights. The
police explicitly state that you have the right to remain silent. They don't
say that you need to invoke the right.

~~~
rayiner
Miranda is only implicated when you're taken into custody, which didn't happen
here. It doesn't protect you from incriminating yourself in a voluntary
conversation with the police, which is what happened here.

The _purpose_ of _Miranda_ , and the Fifth Amendment generally, is not to keep
guilty defendants from incriminating themselves. It is to keep the State from
using its coercive power to extract unreliable confessions from the accused.
When an accused incriminates himself without the coercive power of the state
being invoked, excluding the evidence does not serve the purpose of the Fifth
Amendment. The Supreme Court has given a pretty broad reading to when the
coercive power of the state is invoked, but has drawn the line just short of
"any interaction with the police."

------
maxxxxx
This may be good advice but it indicates that something is very, very wrong
with this society if you can't talk to cops.

~~~
praptak
Might it be as simple as the economy? I mean the police needs unchecked power
to keep the bottom of the 99% in line.

~~~
DelaneyM
I don't think there's any indication that the bottom 99% commit fewer crimes
or require less policing.

------
tzs
How far do you take this? If I see someone in a car throw some trash at a
bicyclist, and then swerve and knock the cyclist off the road...should I not
give a description of the car and driver to the police?

Or suppose a child disappears on the way home from school. Police ask people
along the child's normal route if they saw her that day (they are trying to
narrow down where she may have been abducted). I was out mowing the lawn that
afternoon and did see her walk by, and know the time to within 5 minutes.
Should I not tell the police?

In prior discussions of this video on other forums, people have told me that
based on it they would in fact not say anything in the above examples. If
people won't tell the police these kind of things, it is going to be a lot
easier to persuade people to support pervasive public surveillance.

~~~
jjoonathan
How the hell are you supposed to behave?

Police officers have the informal authority to make your life miserable
(detaining for 24hrs without cause, selective enforcement, the ability to lie
both to you and the court and be taken at their word, etc). No lawyer is going
to advise talking to the police, but there's clearly an element of selection
bias in that. In cases that don't wind up requiring a lawyer, cooperation with
the person who has this power over you is almost certainly to your benefit.
The real question is how to draw the line, and all the lawyerly "never say a
word to the police ever unless you're invoking the 5th" really doesn't help.

~~~
tptacek
Most people just talk to the police. The overwhelming majority of interactions
with police are benign.

Consider avoiding police interactions if you are black/latino and not a
resident of the neighborhood where the interaction occurs; if the police are
knocking on your door or doing something else that deliberately involves them
confronting you; if you carry or have casual access to firearms or contraband;
if you have any criminal record.

Statistically, most people don't fall into these buckets and thus don't land
in the fact patterns that generate the majority of abusive interactions.

I know it's hard to believe on Internet message boards, but in majority-
minority neighborhoods in the US, the primary complaint residents have with
the police is that _they aren 't doing enough_.

(I do not also mean to say that residents of black neighborhoods aren't also
concerned that the police will casually murder them in tense/hostile
confrontations, because that is a real concern as well).

------
LyalinDotCom
As someone who used to put on the uniform i can tell you this is really good
advice. Be smart, it can save you.

~~~
oofabz
The surprising thing is, it can save you even if you're innocent.

~~~
jessaustin
ISTM silence is even better for the innocent than it is for the guilty. An
innocent suspect has no idea what sorts of statements will be interpreted as
incriminating.

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paulsutter
One flaw with this advice is that it's difficult, impolite, awkward and
unrealistic to stay perfectly silent.

How about "my lawyer would be happy to answer all your questions"? Does that
work?

~~~
jimmywanger
That is _exactly_ what the police want to exploit when they're questioning you
- social norms and politeness.

When you're having a conversation, we're conditioned to find long pauses
awkward and uncomfortable. That's why when you start not saying anything
during a conversation, the other person will jump in and start filling the
dead air.

It's useful during negotiations, because the person will start jumping in with
concessions, trying to make things less awkward, when you let silences stretch
out when it's "your turn to talk".

Just remember, the police are not your friends. They want something out of
you. Don't give them a single inch.

"I want a lawyer" or "I want my lawyer" and then shutting up has nothing
difficult, impolite, awkward, or unrealistic about it.

If you're worried about politeness when the cops are trying to pin a crime on
you, I really don't know what to say except think about how impolite it would
be for them to arrest you.

------
Diederich
What's even more impressive about this old presentation is the second half:
[https://youtu.be/d-7o9xYp7eE?t=26m52s](https://youtu.be/d-7o9xYp7eE?t=26m52s)

This is where a cop comes up after the 'slick lawyer' (who is giving fantastic
advice the whole time) and completely agrees with him.

------
tsomctl
TLDR: The lawyer in the viral YouTube video on not talking to the police has
written a book on it. Also, due to a Supreme Court ruling, saying that you
invoke the 5th amendment can be seen as admitting guilt.

~~~
aidenn0
IANAL, but my understanding of the supreme court decision is that if you stop
answering questions, that can be presented to a jury as evidence that you may
be guilty. A stupid example:

Q: Did you kill Alice?

A: No.

Q: Did you kill Bob?

A: No.

Q: Did you kill Carol?

A: _silence_

They can then make the argument in court that since you stopped answering
questions at the 3rd one that you are trying to hide something. This is why
the advice is to just straight up refuse to answer any questions without a
lawyer. "I want a lawyer" is not refusing to answer the question, just
delaying it, so may not be covered by the current precedent.

~~~
mark212
I am a lawyer, and a former prosecutor and former defense attorney (I do civil
law now). And invocation of your right to counsel is supposed to terminate all
questioning. Very clear that it cannot be presented as evidence if the matter
goes to trial.

~~~
aidenn0
My understanding is that in Salinas v. Texas the issue was that the defendant
did not explicitly invoke this right, but was quiet; though apparently, at
least one of the Justices was of the opinion that the 5th amendment rights do
not apply when the person being questioned is not being detained.

------
ap22213
What does one do if stopped in traffic? Just say, 'I want a lawyer?' Seems
like that would get you arrested (or worse).

~~~
TeMPOraL
I'm waiting for this scene to really happen in the US:

(A police officer walks into a doughnut shop.)

\- Good day Sir, how much these doughnuts cost?

\- I want a lawyer.

~~~
falcolas
Is it sad that I can visualize a scene where that's the right thing to do?
Such as when the prices are clearly marked, and the person behind the counter
is on parole (but hasn't violated it).

Yeah, it is sad.

------
Waterluvian
I would love to know how legally and practically this all works in Canada. I
feel like it may be very similar, but different enough to matter.

~~~
feklar
The same, by not saying anything to police who question you on the street it
can be 'obstruction' if you don't ask for a lawyer first before being silent,
unless you are arrested and your right to be silent is given to you. Also in
Canada police don't have to stop talking to you if you've requested a lawyer
they can still keep you in interrogation trying to get you to talk for as long
as they want, which usually means all weekend until you see a judge on Monday
morning.
[http://www.edelsonlaw.ca/news/show/40/8/0000/0](http://www.edelsonlaw.ca/news/show/40/8/0000/0)

Any informants they place in your cell with you, regardless of you asking for
a lawyer may continue to interrogate you as well. Your prison phone calls can
also be recorded and used against you, again regardless if you've asked and
not seen a lawyer so if you phone your job and make up an excuse why you won't
be there on Monday morning, that excuse can be used against you in court. A
well known trick is for the police to place you with an informant who offers
you a cellphone, because typically you have to call 3-4 people when arrested
(family/gf, job, a lawyer) instead of just the one phone call they have to
give you (which they don't have to provide until days after you are arrested).
This contraband phone will be recorded hoping you say something incriminating,
or just hoping you lie so they can prove later you are a "known liar" since
most people don't want to tell their employer they've just been arrested and
will lie about it.

~~~
pmiller2
That's even worse than in the US. I'm shocked.

~~~
rayiner
The procedural protections of the criminal justice system are weaker in many
developed countries outside the US. E.g. Italy where you can keep trying
someone for murder until you get the result you want. What makes the overall
system worse in the US is how militarized the police are, how over the top
aggressive prosecutors are, and how long sentences are.

~~~
staticautomatic
Italy is bananas. A few years ago I accidentally drove a rental car through a
ZTL in Rome. Some months later I received a letter in the mail at my home in
the U.S. asking me to pay the fine (even though I had already paid it to
Avis). What was astonishing was that the ticket said you were allowed to
contest it, but if you contested it and the authorities decided against you,
the fine would significantly increase.

------
partycoder
Some cops are more patient and compliant with the law than others. It does not
matter how well you know the law, if you have someone that has a strong
preference towards violence (e.g: asking for identification, then shooting you
dead when you reach for your wallet = suspecting you are armed).

------
aaronbrethorst
Predictably, the SCOTUS case discussed in the article, Salinas v. Texas, split
down conservative/progressive lines, with Kennedy casting the deciding vote to
abrogate our 5th amendment privileges. Three members of the Supreme Court are
over the age of 70—Kennedy is 80. Vote accordingly next month.

~~~
briandear
However, Scalia's dissent in Maryland vs. King was a truly conservative-based
dissent. You also have Kyllo vs. United States where 'liberals' Kennedy and
O'Conner dissented and 'conservatives' Scalia and Thomas joined Ginsburg and
Breyer in the majority that established using FLIR without a warrant was a
violation of the 4th Amendment.

In US vs. Jones, Scalia again wrote the majority opinion enstablisbing that a
GPS tracker on a car is a violation of the 4th.

We also have Riley vs. California, Hamdi vs. Rumsfeld (where Scalia'd dissent
was joined by John Paul Stevens.)

My point is that we need justices that follow the Constitution and not
justices that follow a party. I don't particularly trust Clinton to pick
constitutionalist justices while Trump is a wildcard (he isn't even remotely
conservative, so it's likely his picks would likely be more centrist to please
his own centrist views without alienating the Republican voters.)

I don't like Trump or Clinton, but I think Trump picks will likely be more
moderate than anyone Clinton might select.

However my opinion doesn't matter, what I'm trying to say is that a vote for
Hillary doesn't mean a vote for judges that will rule correctly. It doesn't
mean a vote against those judges either. But 'vote accordingly' is meaningless
because there is no 'accordingly.' For example, look at Kagan's opinion in
Ransom v. FIA Card Services.. She sided with the credit card company over a
consumer in a bankruptcy case while Scalia was the only dissent in the 8-1
decision.

Vote accordingly.. ok how? Meaning, there is no such thing. "Liberal" justices
aren't always "liberal" in ways that you might like and "conservative" doesn't
always mean what you think. The court is far more nuanced. A balanced court is
far safer than one ideologically disposed to one extreme or another. It would
be very dangerous to have an entire court of John Paul Stevenses just as it
would be dangerous to have a court filled with Clarence Thomases.

~~~
mseebach
You seem to imply that the court ruled incorrectly in the Ransom v. case. I
skimmed through it
([https://en.m.wikipedia.org/wiki/Ransom_v._FIA_Card_Services,...](https://en.m.wikipedia.org/wiki/Ransom_v._FIA_Card_Services,_N.A.))
and while I most certainly am not a legal scholar, it seems fairly
straightforward? No, it doesn't cost $28k to own a car you already own
outright for five years (operating expenses are claimed separately and not
controversial here) and you don't get to protect that money in a bankruptcy.

What am I not seeing? (To be fair, and to underscore the degree to which I am
not a legal scholar, I don't understand the substance of Scalia's dissent.)

~~~
venomsnake
I think it is not SCOTUS' job to clean up the congress created mess and Scalia
was cranky because of that.

I think that Scalia strongly believed in laws are set in stone. So if there is
some abmiguity or stupid language it is the Congress' fault and it is not up
to SCOTUS to create laws on the fly by guestimating the congress intent.

------
soVeryTired
Some of what this guy is saying is moot because of the reprehensible tradition
of plea bargaining in the United States. As far as I know (IANAL), most
criminal accusations don't go to trial because the prosecutors throw
_everything_ they have at the defendant.

If you're accused of a crime, it's often crazy to try to defend yourself: if
you try to do so and lose, it'll ruin your life. Better just to plead out and
take a deal.

If the prosecutors can force you to gamble for your life and livelihood, it
doesn't matter what evidence they have against you. The only way around the
problem is to remain compliant and never get accused of anything.

~~~
morganvachon
> _The only way around the problem is to remain compliant and never get
> accused of anything._

The issue with that is that it is becoming increasingly difficult to live a
normal American life without breaking a few laws every now and then, and not
even realizing it. The book's author touched on this during the interview, but
basically more and more "everyday" actions are becoming criminalized over
time.

Technically, committing a crime implies criminal intent, but that notion has
been absent from our justice system for a very long time. Look at how many
laws are on the books about "negligent" crimes, those committed not out of
intent but out of ignorance or forgetfulness. Traffic laws are easy to pick on
for this metric, since in most states the driving tests barely scratch the
surface of the body of traffic law. In some states you can be jailed over any
moving violation at the officer's discretion, and that combined with the
general attitude of "don't fight the ticket, just pay it" means you've just
become part of the system, and this stacks the deck against you making it
easier to gain a conviction if you're accused of a more serious crime later in
life.

~~~
chx
> The issue with that is that it is becoming increasingly difficult to live a
> normal American life without breaking a few laws every now and then, and not
> even realizing it.

Well that has been the case for a while now, the Three Felonies A Day book
[https://smile.amazon.com/Three-Felonies-Day-Target-
Innocent/...](https://smile.amazon.com/Three-Felonies-Day-Target-
Innocent/dp/1594035229) is from 2009. Although of course the bombastic claim
in the title is disputed
[http://skeptics.stackexchange.com/questions/22530/does-
the-a...](http://skeptics.stackexchange.com/questions/22530/does-the-average-
american-unwittingly-commit-three-felonies-a-day) it essentially claims the
exact same as you.

~~~
morganvachon
> * it essentially claims the exact same as you.*

First, I never said "three felonies a day".

Second, I have an inside view -- I work for a law enforcement agency in a
civilian position and have worked in this field for a total of fifteen years
-- and what I've seen bears out what I actually said. Not necessarily three
_felonies_ a day, but as I said, most Americans unknowingly break a few laws
every now and then just living a normal daily life. The problem is that the
number of infractions has been steadily increasing over the past century, and
soon the Dystopian concept of "everything you do is illegal" will begin to
ring true.

~~~
chx
Right, as I said, the bombastic claim of the title is hardly true but if you
deduct that from the book it does claim the same as you: ordinary people with
ordinary lives will break some federal regulations now and then. Peace :)

~~~
morganvachon
Gotcha, I thought you were saying that I was claiming the wording of the
title, not the actual content of the book.

