> 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.
>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".
The individual choice in doctors, while not perfect (because of cost, geography, etc.), is vastly more substantial than individual choice in police officers and their policies. It is not remotely surprising that doctors do a better job at their job than police officers.
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.
"innocent until proven guilty" is both a legal and an ethical doctrine. in the legal sense it establishes that the burden of proof is on the prosecution, not the defense. in the ethical sense it informs us to avoid persecution, ostracism, or other extra-judicial punishments of a person who is merely accused of a crime.
Pleas aren't scrutinized by trial, but they are heard in court: http://wakeforestlawreview.com/2015/01/fourth-circuit-holds-.... 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.
And we don't expect people to just give their health to medical research either, but we still require consent, and don't accept a fuzzy, intimidated substitute.
I feel like at some point in time, entrapment was frowned upon...
Unfortunately it's this behavior that reinforces - not helps fix - the often maligned urban/minority fear of ever helping the police in any way ever. Does the entire neighborhood know who committed crimes X? Yes. Will anyone ever talk to the police?
If you read the ferguson report -- and I can't do it justice -- the police were systematically used to assault black people, and use them as a cash source to fund local government. Meanwhile, white people skated on the same charges. I can't do the report justice, but it's utterly appalling. And while white people might not know what is going on, trust me, black people damn sure do. To say the least, this does not improve cooperation with the police.
One should understand that the Justice Department did not simply find
indirect evidence of unintentionally racist practices which harm black
people, but "discriminatory intent”—that is to say willful racism aimed to
generate cash. Justice in Ferguson is not a matter of "racism without
racists," but racism with racists so secure, so proud, so brazen that they
used their government emails to flaunt it. [1]
This is the result of the crazy patchwork quilt of small municipalities in St Louis County. All of these municipalities need money and property taxes are usually not enough to fund the police etc.
So they use ticketing as a revenue generator and that has really screwed up the relationship between the officials and the people who live in those towns.
There's a tiny tiny town called St. John. It has a tiny tiny city limits boundary on the highway (I-170). Yet they use that to capture speeders and generate enormous revenue. Every local knows not to speed through that tiny corridor on 170. Then there's the next city boundary on the same highway and the one after. Often filled with speed traps.
The whole county needs to consolidate all these tiny municipalities and put the police under one large force like Indianapolis or Louisville or others.
That sounds like a red herring. Without reading the story further than the first paragraph, I guess the reality is more like this:
Police in city of Ferguson knows of 16 000 arrest warrants for people from all over the USA, plus a number of foreigners, and Ferguson has 21 000 residents.
Some smaller city may have just 210 residents, and its police force may (theoretically) also know of the same 16 000 arrest warrants. Does that tell us that the USA is a horrible police state? No. It tells us that people are comparing numbers in a way that does not make sense.
If you do read the story further, and the NBC story it links to, you'll see that these 16 000 arrest warrants were issued by the Ferguson Municipal Court; they're not merely warrants known to Ferguson police but originating elsewhere.
> It tells us that people are comparing numbers in a way that does not make sense.
From the HuffPo article:
"To give some context as to how truly extreme this is, a comparison may be useful. In 2014, the Boston Municipal Court System, for a city of 645,000 people, issued about 2,300 criminal warrants. The Ferguson Municipal Court issued 9,000, for a population 1/30th the size of Boston's."
"arrest warrants on more than half of its citizens" -- that is clearly not true. Many of the warrants are on people who are not its citizens.
There sure are problems in places like Ferguson, but this comparison seems not entirely honest. Why do you compare arrest warrants of a single municipal court vs. number of residents in that small municipality, and then the arrest warrants of a much larger municipal court system and number of residents in that much larger municipal system? Of course these ratios are different, because by nature a single, small municipality issues many arrest warrants for people who are not residents, while a larger system mostly handles people living inside its constituency.
Compare St. Louis metropolitan area and Boston metropolitan area, then you see the scale of problems. It is there, so there should be no need to do flimsy tricks on apples and oranges. The war on drugs sure brings problems, and this is one symptom.
> Of course these ratios are different, because by nature a single, small municipality issues many arrest warrants for people who are not residents, while a larger system mostly handles people living inside its constituency.
Could you explain that in more detail? I would have assumed, perhaps naively, that the larger municipality would have had more non-residents (commuters, tourists, out-of-town shoppers, people coming in for an evening out) than the smaller one.
And even accepting your point for the sake of argument, can that really account for the Ferguson courts issuing a hundred times more warrants per head of population than Boston's?
When the small municipality is part of a larger metro area, those commuters and out-of-town shoppers come from a large area and pass through this small administrational area, so it is natural that the ratio of things like arrest warrants can be large when compared to number of residents.
To understand this outside the context of Ferguson and the racially loaded atmosphere in this discussion, take for an example the City of London Police.
It's a police force that handles an area which has just 7400 residents. (Yes, that's the resident population in City of London). The police force for this area has 1300 employees, 750 of them full-time police officers. Are we saying that the ratio of policemen to residents is a sign of a horrible police state in London, with every tenth person in the city a police officer? No, of course not. There's a huge amount of crime? Well, many think so.
The ratio is so silly precisely because we're looking at a small area that belongs to a greater metropolis.
I suppose the problem in Ferguson is more about out-of-town shoppers than commuters. Specifically, out-of-town shoppers for controlled substances. So this is yet another symptom/consequence/whatever in the war on drugs.
Should Brooks, a resident, and Johnson, a non-resident, have been arrested? According to law, yes. Is this fight on drugs working? Probably not. But should the residence status impact whether they are arrested? No. Does this make it silly to compare number of arrest warrants to number of residents? To some extent, yes. No doubt that the situation is worse in St. Louis than in Boston, but it's not just one Ferguson.
Among Greater London's boroughs (not including the City), the out and out winner for outstanding arrest warrants, with more than twice as many as the runner-up (in both absolute terms and per head of population), was the City of Westminster. The vast majority of these -- 535 of 587 -- were for "other offences" (i.e., not actual bodily harm, burglary, robbery, possession of an offensive weapon, serious violence, or sexual offences). What do you suppose that's all about? Can't all be MPs fiddling their expenses.
I've looked over the report, and the only thing I can say on it is that it has no basis in reality, it simply makes narrative-supporting statements and uses disingenuous context-removed statistics to support those statements.
I'd encourage everyone to look into the details, and verify them with reason, instead of wholly accepting the government's and media's narrative and spin.
For example, the report and media claim this:
"Ferguson an apartheid police state: 3 out of 4 residents have open arrest warrants"
Except it seems like the majority of those arrest warrants are for people who where highway driving passing though Ferguson, do not live in the Ferguson municipality, are from a greater area with a much much larger population, and a few of them forgot to show up or pay the fine. So they got a bench warrant (which do not expire).
It's a mild reenforcement but the root reason to fear and not cooperate with the police is the same as ever. When most police resources in the USA are focused on drug enforcement and most Americans have committed federal felonies they don't think they should be incarcerated for and most underclass young men are committing them routinely, you can't expect crime ridden communities to see the police as any kind of blessing.
"the situation regarding border crossings and the TSA is more thorny"
Since the TSA is fishing on behalf of local cops' revenue raising operations more and more and the CIS has become the state's lever to repeal the Fourth, it seems like we need a lot more information about TSA and borders than how to say no to regular cops.
But I don't see much about it online. And the law seems unsettled, so it should be even more discussed.
In particular, Customs and TSA are more and more taking smartphones and laptops and using them and their stored passwords to get access to personal and business online data stores to plant long term monitoring and download personal data from all your customers. Immigration is asking me a lot more personal questions and apparently recording the answers whenever I cross the border.
The saddest part of this is that not only do most people NOT know their rights, but they're dead certain that they know things to be true, that aren't.
I got into a debate on Quora in which the other party insisted that your right to silence couldn't be invoked until you were Mirandized, which is completely untrue.
I got into a different argument that insisted that it was illegal to deny cops some basic information, like your name, driver's license and address. That may be true in some instances, but isn't necessarily true everywhere.
Beyond all that, the worst argument is the one which asserts that by invoking your right to silence, even peaceably, the cops will likely harass you and/or find some other reason to arrest you. That argument is the worst because it's the most likely to be true.
>Beyond all that, the worst argument is the one which asserts that by invoking your right to silence, even peaceably, the cops will likely harass you and/or find some other reason to arrest you. That argument is the worst because it's the most likely to be true.
Why is it worst by being likely true? It's probably not a good idea to immediately invoke the Fifth on a routine traffic stop, for instance, for exactly that reason. (It wouldn't cause them to arrest you, sure, but they'd look a lot harder for reasons to cite you that would otherwise "not be worth it".)
Because the cops don't have the right to detain you without suspicion of you having committed a crime, and (at least historically), invoking the fifth is not evidence of guilt.
In that case, the cop is already detaining you on suspicion of wrongdoing, and they already have significant discretion in what to look at. Sure, when it gets to trial, "alright, maybe I wouldn't have bothered checking for weapons if he hadn't immediately invoked the fifth", and you get a gold plated legal victory.
Or you could be on your way in ten minutes and avoid the charade.
The question of if the situation really is something where you could be "on your way in ten minutes" becomes a lot more complicated when you add in the risk of stuff like "parallel construction" and "follow someone until you find some excuse to pull them over".
When one part escalates the potential risk, defense against those risks must respond in kind. It would be really nice if law enforcement (and the government in general) decided to cultivate trust so we could reasonably assume a "traffic stop" really was about moving violations. Unfortunately, we seem to be moving rapidly away from that trust, making the hard-line approach a necessity.
What's more offensive is if you get caught with that pot in ny, it will essentially get dismissed as long as you have money and get a real lawyer, not a public defender.
tl;dr: misdemeanor cases, despite your supposed right to a speedy trial, regularly drag out over years. If your lawyer understands how to work the system, misdemeanors appear to largely just go away because the court system is simply incapable of dealing with them within the bounds of the law.
> 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.
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.
Another thing to note is that Popehat is a group blog. Ken does most of the posting and is the reason most people read but there are other posters too.
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?
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".
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.
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]
If you are a lawyer, you need to make clear that something you say isn't "legal advice" because you can otherwise be held accountable for it.
I think the "IANAL" disclaimer is just a step beyond that so non-lawyers can't be mistaken for acting as lawyers giving out legal advice (not sure what liabilities that would entail).
The disclaimer is just a way to say "this is a complex subject; things might be different in your situation; get real legal advice". A lawyer would use something "I am not your lawyer" or "I am not a lawyer in your jurisdiction".
No, most people I know don't have an actual lawyer they know already. "don't talk without your lawyer" means to get a lawyer representing you before you talk. It isn't meant to imply that you must have one to begin with.
So how do you google for an appropriate lawyer when in custody and you only get one phone call? Not cynical, I really wonder. I guess the exact same problem exists where I live (the Netherlands).
"So — you have a name. Either it's the name of someone who has been recommended to you, and they are expecting your call, or it's someone who was on the first page of Google results for +oh +shit +need +lawyer +Pismo Beach +dwarf +public +indecency +hedge-clippers or something.
There's no "gotcha" where you have to find a lawyer under certain constraints or they get to question you without one.
You have the right to legal counsel. That means they have to let you do what you need to do to find a lawyer, or provide you with one. They can't just say, "sorry, time's up, now we go question you anyway." They could in theory detain you for a while longer without a lawyer, but they couldn't continue to question you.
In the Netherlands, you don't 'get one phone call'. You have (since very recently, and only in some cases) the right to talk to 'a' lawyer before you are questioned. Hence, either the police provides you with one if you don't know who you'd like, or the questioning has to wait until your lawyer is present (bar some limits like withing x time, I don't know the procedural rules by heart - how things are actually applied also varies by area).
The whole "you get exactly one phone call" is largely a movie trope used for dramatic effect. The exact number of phone calls you get is very much dependent on where you got arrested, what you got arrested for and even the mood of the person in charge. But basically you'll generally be allowed to (eventually) make the number of calls necessary to either get a hold of your lawyer or get a hold of someone who can find and call a lawyer for you.
In Germany, in many cities and towns, local attorney associations provide emergency phone numbers. The provide free legal advice on the phone and provide you with a free attorney for the duration emergency (e.g. while a search warrant is executed).
Intrestingly, I just noticed that I have the number stored in my cell phone (since before I had a smart phone). That may not be the smartest way to do it.
Another German here. I have legal insurance. Comes with a card for your wallet listing a 24 hrs hotline that puts you in touch with a lawyer (for free) within seconds.
I've actually made use of it several times to get a professional opinion on difficult situations.
I believe every single EU country will have public lawyers that you can talk to while arrested. It might take a few hours to get one summoned,but you definitely can. Obviously this is not an option when you are being interviewed by the police on the street.
The "don't talk to the police without a lawyer" thing is a meme that is pretty overblown. It doesn't hold for stuff like getting a minor speeding ticket, being a witness to a crime that clearly you aren't involved in, the cop just talking to see whats up (when you aren't otherwise committing crimes).
You really need a lawyer:
When the cops are interrogating you
When you are a suspect or it looks like you may be one. If your wife winds up dead, you are a suspect. If money at work goes missing and you had access, you are a suspect. But if you just happen to see a random kid get hit my a car, you can talk to the police without a lawyer.
When you actually committed a crime.
Or if you are were involved in some accident, dispute, whatever and there might be a lawsuit.
But, IMO, if you try to lawyer up at a traffic stop (when you aren't committing real crimes), when a cop asks how you are doing in a park, or when you are clearly a third party witness; then you'll probably just cause yourself more grief by asking for the lawyer.
Lawyers are expensive, you make yourself suspicious, and you might cause the cops to detain you longer.
If you ask for a lawyer and don't have one, (I THINK) they're obligated to either get you one (public defenders are free) or wait for your lawyer to arrive before interrogating you. You can refuse to answer police questions, and theoretically nothing bad happens to you (though they get to keep holding you until the lawyer arrives).
most American's have no lawyer to call. the expression "don't talk to police without your lawyer present" should be extrapolated to mean all of the following:
if the police want to question you, say no. if the police serve you with a warrant and detain you for questioning, exercise your 5th amendment right (the right to remain silent, so as to avoid self-incrimination). the only thing you should say to a police officer when you are being questioned is that you will not answer any questions until you have consulted legal council. if you do not have legal council available you may request a public defender (another legal right of citizens). if you have the means to hire a private attorney instead, its probably better to do that. only a lawyer who is professionally obligated to represent you can give you good legal advice about what you should and should not say to the police.
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.
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.
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.
> 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.
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."
Or the "right" colour and class: viz Christopher Jeffries, a (white) landlord and retired teacher, somewhat eccentric but otherwise respectable, who was arrested for the murder of his tenant (and vilified in the national press) after volunteering what he thought might be relevant information about the night of her disappearance.
(He was later released without charge and won substantial libel damages from a number of newspapers.)
Again, I haven't watched the video for several years, but I thought I remembered him using the example of a police officer coming to an apartment complex and asking residents questions about a recent reported crime. I don't think reporting crimes came up, and it probably doesn't apply, since when you call 911 you (as far as I know) do not talk to police officers.
It applies. Again, note how many "nevers" he gives and how exceptionless his advice is. Is the idea that, when the police follow up, you keep saying, "sorry I can't talk to you even though I want your assistance; give me that 911 lady again"?
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.
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.
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.
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.
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.
The OP talks about local police. In US, the customs are unfortunately a very different form of jurisdiction. Sometimes I hear citizen aren't in the US jurisdiction until they've crossed the border. Which is a problem that US citizens probably need to solve through their democracy.
Centuries ago, constitutions were written to protect citizen with a heavy focus on local police scopes, but now that we all routinely walk through borders and on planes, we probably need to rewrite those constitutions with international police checks in focus. We can't afford to be in a no-law situation a dozen times a year.
Actually, the "airports aren't national territory" myth has no legal basis and is mostly just propagated to make it easier to turn people away.
Legally, once you leave the plane, you're under the jurisdiction of whichever country you landed in. Unlike embassies, airports aren't anything special in that regard.
But sadly it doesn't really matter what international law actually says but how laws are enforced. Good luck escalating to the Hague over whether or not the TSA can detain you or refuse entry.
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.
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.
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?"
Or, in my case a couple weeks back, "any reason you were going so fast?"
You don't have to answer. I didn't (though I may have babbled some irrelevancies while digging out the paperwork). It's actually quite a mental & social breakthrough to realize you don't have to answer people's questions.
As for being a victim or witness, still best to keep statements very short, as in "that man assaulted me, there's the stick he hit me with, and that woman walking away saw it, I want to press charges and I need to talk to a lawyer" or "I witnessed the attack, here's my contact information". You say what you must to establish legitimate victimhood ("she stole my cocaine" isn't), identify perpetrators and witnesses, and identify probable perishable evidence.
Then.
Shut.
Up.
The only thing to say at this point is "am I free to go?" - repeatedly, if necessary. They'll say & do darned near anything, but at some point they have to either arrest you or not stop you from leaving.
You: "I wasn't going fast. I was driving at a safe and prudent speed given the conditions."
ADD: It is good to know if the state you are in or states your frequently drive in is/are "Maximum Speed Limit" or "Presumed Maximum Speed Limit" state(s). I grew up in Minnesota which is a "Presumed Maximum Speed Limit" but now live in WI which is a "Maximum Speed Limit". The nice thing about Minnesota and "Presumed Maximum Speed Limit" is that if you are on a highway outside of a municipality (so in a township) then the posted speed limits are only presumed to be the maximum speed limit. Going faster is prima facie evidence of going to fast and allows officers to stop you. However, if you choose to fight the ticket in court, you can admit to going faster than the posted limit and argue that you were still driving a safe and prudent speed given the conditions. So, if you were in the country driving 65 on a straight and level road with a posted speed limit of 55 on a clear, dry day with 10+ miles of visibility and no other cars on the road, people or animals int he ditch or near the shoulder and a cop caught you on his laser device sitting 1/2 mile down the road, assuming you slowed down to 55 mph before getting close to him, you could argue these facts in court and argue that "the facts and outcomes speak for themselves"... no one was harmed or injured showing again that the speed of 65 mph in those conditions and circumstances was in fact still safe and prudent. In Wisconsin, if you admit to going over the posted speed limit anywhere, you're guilty of not driving a safe and prudent speed no matter what.
I couldn't figure out why the downvotes so fast, but after reading my reply I think I get it. Because my reply suggested talking to the police. If so, you're are correct, I take back my suggested response above. It only can clue in the officer to note any and every adverse condition regarding the stop. Saying instead "I don't believe I was going fast." is the most one should say in a reply to the question "any reason you were going so fast?"
Downvotes perhaps because lying to a cop, or resorting to yes-it-is-vs-no-it-isnt with authorities is stupid. He stopped you, and has far more weight in court regarding whether conditions were safe for that speed than you do. Doing 54 in a 40 is fast, and neither the cop nor judge will agree with your assessment.
Cops may let you go faster, and they're authorized to do so if conditions fit ... but they also get to say "the speed limit is a limit" and charge you accordingly. There are a few areas where speed limits are broadly understood, even codified, as suggestions (they post limit signs to elicit federal funds, but on a dry sunny day all they care is you can stay on the road and can stop in time), but nearly everywhere else just realize speed limits are just that, and if you violate them don't be surprised if the jurisdiction decides to profit off your actions.
How can saying "Yes, I know" get you into bigger trouble than a speeding ticket? At best you can try to lie and state a legal speed if you were going in a borderline speed.
Anyway, it could be different in the US (I'm from Israel, where police is brutal only if you're Palestinian or holding a political rally. Otherwise they're mostly useless). I only got pulled once, for not coming to a complete stop on a stop sign (I slowed down to almost a complete stop). I just politely said "yeah officer, I did slow down, but it's my bad, sorry". The reaction was "oh well, I see you don't have any prior traffic violations, I'm going to let this one slide, have a nice day".
I agree "no" is a bad idea. But I doubt "yes" has to do with intent at all.
I think procedurally what the officer is doing is establishing a documentation record to support their speed facts because that makes it easy for them if/when you contest the ticket in court.
The officer has a preferred narrative/mold and is trying find a way to document that you agree with that version at the time you were pulled over in case you try to change the story later in court. So "yes, I know" seems to work essentially as that blanket acceptance of the officer's narrative.
I'm not in the US. Our police officers aren't desperate to meet quotas and don't have any reason to assume a driver is armed and/or dangerous. I don't have any reason to believe a conversation with a police officer in my country will lead to anything other than improving my chance to be let go with a warning instead of a fine.
That said, I'm still in my probation period (only started driving a little more than a year ago) and haven't violated any traffic laws yet at all. Most speeding checks are done with unmanned cameras anyway, so your first contact with the orderlies will be a flash followed by a stern letter a few weeks later.
But what's the worst that could happen? Let's say you're not drunk, you don't have anything illegal in your car, and the speed is nothing too bad. You were just speeding. Can anything you say result in anything worse than a ticket and a fine?
I was just using speeding as an example of an interaction that most of us have probably had at some point. No, you probably won't end up with anything worse than a fine. But just like with more serious matters, you might be getting yourself in trouble unnecessarily. Sometimes police will stop someone they believe to have been speeding, without any evidence to that fact. (They saw you zip by, but don't have you on radar, and didn't get a chance to pace you, for instance.) If you say, "Yes, sorry I was speeding," or, "I thought I was only about 5 over," or whatever, now they can ticket you.
The only responses you should use in such situations are:
'No comment'
'Am I free to go?'
Plus the statutory minimum ( name, address, DoB according to your local legislation ).
Psychologically it is very, very difficult. One way to try to handle it is to pretend you're responding to Emacs Eliza, which will always try to turn your words back onto you.
Have you used either of those responses before? Judging from my limited exposure with the police this sort of "technically I don't have to do this\answer this" response is an invite for a cranky cop to do everything they can to inconvenience you as a punishment.
For example in my case if I'd carried on doing what I was doing (talking to my friend at conversational level and smiling, while a passing police officer told me "you can wipe that smirk off your face or I'll do it for you" followed by vague suggestions that I should be taken to the police station) I should be able to rest easy knowing I've done nothing wrong and there's not a single crime I could've been found guilty of at that moment. However, they probably could've made my life extremely unpleasant - taking me in for some sort of "questioning", spending a night in the cells - who knows.
So this is a long-winded way to ask - is that totally ironclad\foolproof, or is there a non-zero chance that this response will make the situation worse despite being totally legal?
One thing they can easily do, which once happened to me after being nothing but polite: take your driver's license, walk back to their car, and play on their phone for half an hour. I imagine the chances of that would go up with a non-cooperative response.
I'm certainly not saying you should spill your guts, but at least being as polite as possible without saying anything incriminating seems sensible.
Can that make the situation worse? Absolutely. A cop can, at least where I live, throw you in a cell for 48 hours for any reason (other than being a member of a protected class) or none, just on their say-so. If they do it every day their superiors are going to start asking questions, but for a one-off "trust me on this one guys" a cop definitely has that legal authority, and if you piss them off enough it could be the difference between walking away and spending those two nights in jail. (More realistically, it'll make the difference between walking away and going down to the station to be fingerprinted and the like and released after a few hours).
But if you incriminate yourself, or commit a crime by e.g. making a false statement as in the article, then you could be looking at a lot more than two nights.
Exactly - I know someone who tried to go the smart-arse route, and the police ended up spending 45 minutes looking into every possible detail of the car, right down to "the lights have the wrong pattern on them". Ended up costing them far more than just accepting a speeding ticket.
If you answer directly, it should be to say "I only know what my speedometer displays." And then politely decline to mention the number it had been displaying. If you say a number, in the cops eyes, you are either lying or confessing. If you just say "yes", you cut off certain affirmative defenses you could otherwise raise. If you say "no", the cop may charge you with reckless or inattentive driving rather than speeding. There is literally no way to answer that question that can help you, the best you can do is say the thing that hurts you least.
The answer that you should train yourself to give is "I do not consent to searches, seizures, or questioning without the assistance of legal counsel. Am I free to go? If not, why am I being detained?"
The same response covers all police questions in the US. You can repeat the entire thing on subsequent questions, or you can shorten it to "I don't consent to questioning without the assistance of legal counsel." You have to train yourself. Your natural instinct will be to present as nonthreatening and cooperative. You need to be nonthreatening and unimaginably stubborn. If you have ever seen the television show "COPS", very nearly every "guest star" just talks himself right into a trip to jail. Almost every episode is a variation on this:
COP: Sir, can you think of any reason why I should arrest you tonight?
Dumb-Assed Suspect: I have drugs in my pocket.
COP (to DAS): Put your hands behind your back.
[COP handcuffs DAS and performs a search.]
COP (to camera): He just gave us reasonable suspicion, so I searched him and found drugs.
He's going to jail now.
Don't be that guy. After you give your canned response, one of several things should happen. The cop realizes you're going to be actual work, and releases you with a stern warning, so he can pursue easier marks. The cop realizes that he gets overtime pay for appearing in court to testify, and you might go to trial, so he issues the summons. The cop gets personally offended at your "constitutional bullshit" and actually arrests you on a "contempt of cop" pretext charge, which will vary by jurisdiction. This is a punitive inconvenience for you, but you can then launch a civil suit that will probably pay out, after you consult with a civil rights attorney.
If you have any inkling it might go down the third way, it would be wise to record the entire encounter and make public records requests for any recordings the police may have in their possession as soon as you possibly can. And you should have such an inkling. So record every police encounter, always. If it's a routine encounter, you can always delete the video, but if it goes bad, you can't magic up a recording out of thin air.
There is no such jurisdiction in the US. Those laws are struck down on constitutional grounds when they are challenged in court.
It cannot be illegal to record a public official, in public, while performing his or her public duties, or there is no future for democracy. Individual jurisdictions may specify whether such recordings can be made secretly or not, but if you are openly and obviously recording, you shouldn't have a problem anywhere.
Your guilt doesn't matter. You can still incriminate yourself even if you have committed no crime.
It sounds like grandparent didn't go to jail, so even though he calls it a "bad tactic" it seems to have worked out fine.
The people who actually know this stuff, i.e. lawyers and cops, all universally advise people not to talk to the police without counsel. Never have I seen one add the qualifier "but it's fine if you're not guilty." I'm inclined to take their word for it.
You witness a mugging. You get a good look at the person who did it. A cop comes up to you and says "did you see what happened?"
What's the right thing to do here? Shut up and demand a lawyer before you'll answer any questions?
You hear about a shooting in your neighborhood on the radio. Walking to the subway, you see a person with a gun run down an alley. At the subway station a cop asks you if you've seen anything suspicious.
What's the right thing to do here? Shut up and demand a lawyer before you'll answer any questions?
Personally, I don't want to live in a society in which no one helps anyone because of fear.
It's worth keeping in mind that Ken White is a defense attorney, writing from a particular perspective, which may not cover all possible situations. His advice is great if you are the subject of a criminal investigation. Most people are not subjects of criminal investigations.
Specific to traffic stops, neither officers nor attorneys recommend shutting up and demanding a lawyer as the first move. They recommend: make the officer feel safe, be polite, don't lie, and decline a search if requested.
Editing since I can't reply to rosser (what's the point of a discussion forum if I can't have a discussion?):
My point is that writing as either a defense attorney or a prosecutor, his posts take a more a narrow view of police interactions than the entirety of how someone might interact with the police. I doubt he would recommend against reporting a crime if you are the victim or a witness, for instance, or if he did, I doubt he would find many peers to agree with him.
"Keep your head down, never talk to a cop," is certainly a strategy for getting through life, but it's not necessarily globally optimal.
Cops are an active deterrent towards good citizenship because good citizenship is punished. The citizenry is under no obligation, moral or ethical or it-would-be-nice-if, to help them when they have proven unwilling to help the citizenry in aggregate or, especially as regards minorities and those weaker than they are, in particular.
It's economics. People respond to incentives. I am not incentivized to help the cops because it's never going to be better for me to do so. I'll act differently when they are different, get me?
.
(You make a good point about traffic stops, though it speaks remarkably of the shitty nature of police interactions that somehow it's on you to make an officer feel safe. Never mind that an officer will regularly attempt to make you feel threatened or unsafe to get you to say something stupid...)
When we're this deep into a comment chain, you just need to wait for a few minutes before the "Reply" button appears. Design in HN to slow down flame wars, I suppose.
I think you make good points. People say things like "don't ever talk to a police without lawyer", because they want to make a political point.
I am not American, and not resident in the US, but I do not believe that a total "I don't talk to police without lawyer, ever" is really wise. Either in US or elsewhere - you have to understand your surroundings.
My latest interaction with an American police officer was on a business trip on September 12, 2001. Independent of the bad TV shows the previous day, I was driving to the local office where I was visiting. Boss from Europe called me on my cell phone. I didn't think it was a good idea to speak on the phone while driving, so I took the exit from highway and stopped on the curb of a smaller road. After talking for a moment, I noticed a police car stopped next to me. I rolled down the window, and the police asked me why I stopped there. I told him, to speak on the phone. He told me to move over because I would be blocking other traffic. I hadn't noticed it but he was right. I said "sorry, I didn't notice, I'll get moving", put the phone away and got moving. End of story.
Instead of telling him "Speaking on the phone", should I have responded with "No comment, I want my lawyer"? That would have been absurd, and probably a very good reason for this officer to get suspicious of me, possibly starting to check my papers - which I'm sure he's the right to do - and possibly ticket me for simply breaking the traffic law and then being a prick about it.
It might be reasonable to talk to cops in those situations. I don't know. "Don't talk" seems to apply to when you are, or might be, accused of a crime. There, your guilt or innocence does not matter in the least. Don't talk.
You're right that nobody recommends demanding a lawyer for a traffic stop. But they do recommend not talking to the officer beyond the minimum requested. For example, it's standard for an officer who catches you speeding to ask "do you know how fast you were going?" If you give a number that's over the posted limit, then they have you admitting to breaking the law. If you give a number that's under the limit and they know you were going faster then they have you lying to an officer.
I don't think it's worth keeping in mind that Ken White is a defense attorney because I've seen this exact advice from many places, both lawyers and cops, and there's never any disagreement. I have seen cops say that traffic stops will go a lot easier if you're nice and polite to the officer. But that does not mean you have to answer all their questions. Immediately shouting "I demand a lawyer!" is a good way to get written up for every minor infraction the officer can find, but nicely declining to answer questions you're not required to answer is fine.
> Personally, I don't want to live in a society in which no one helps anyone because of fear.
You shouldn't talk to police in the situations you describe. And of course we don't want to live in this type of society. It would be great if police behaved differently.
Obviously there's a balance here. You don't want to put people in danger with your silence. The answer depends on what you look like, what you are doing (are you carrying contraband?), and the situation.
Being a witness in general is a real pain in butt in any case, particularly if you are witnessing a non-trivial crime.
They do not care if you are guilty or not. They manufacture criminals. That's their job. To create "product". They need raw materials. Don't provide anything at all. Zero raw materials is always going to be better than potentially unsuitable materials that can't quite be hammered into prosecutable shape.
Even worse, usually you cannot even submit what you said as evidence, because if YOU ask officer to repeat what you said, the judge can expunge the testimony because it is hearsay (double indirection).
Of course, the officer can be asked their side of the story, which will be accepted as an eyewitness (single indirection).
So anything you say can (and will) be used against you y the prosecution, but almost never in your own defense. Many people understand at least the basic concept that your words can be used against you, but the fact that those same words cannot help you in most cases is not addressed very often.
(this topic is discussed in the famous - and VERY HIGHLY recommended viewing - video that hoaTeRo linked to, "Dont(sic) Talk to Police" ( https://www.youtube.com/watch?v=6wXkI4t7nuc ) )
Edit: this is literally what happens in Ken's hypothetical story. If the subject didn't lie about the phone call, they couldn't be charged with a false statement.
"If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him." – Cardinal Richelieu, 1641
Maybe he honestly didn't think he was lying, since he never discussed the case on the phone call. Someone told him it was happening and he hung up the phone. Most people wouldn't necessarily consider that talking about something.
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.
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.
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".
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.
timv: the OP is warning people to avoid talking to cops. "Most cops are good" is a very common sentiment that is even inculcated in kids growing up attending public schools. This widespread common belief contributes to people speaking naively to police and thereby getting themselves in trouble. That is what I meant by dangerous. I didn't explain this in my reply to mikeash because it seemed to me that mikeash was being obtuse given the context of the OP.
The good cop:bad cop ratio is utterly orthogonal to whether or not it's a terrible idea to talk to them without a lawyer present. They still have to do their jobs, and if you say something in the course of speaking with them that furthers their investigation, directly or indirectly, they're kinda obligated to pursue it.
Even if they're the nicest person you've ever met.
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.
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.
The very blog post which prompted this discussion explains the danger of assuming even impartial investigative intentions of cops, let alone "good" ones.
See, he's not holding himself to your standard of evidence. That would require mass mindreading, plus the ability to irrevocably demonstrate the authenticity of such.
Rather, he's backing up that statement with evidence in the reader's head, counting on most readers to reflect back on their life experience and see if his statement fits. He has faith that it will. In my case, it does: I agree. I'll even upvote him.
If we are going to get real reform, we need the police to also buy in. Alienating them doesn't help.
The drive to consider oneself a "good person" is fundamental to human nature (yes, psychopathy is a pathology). The issue is that "good" is socially defined. LEOs operate in a very odd social space.
How do we get LEOs to want to align more with a more civil social space? This is the nut we need to crack.
"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."
1. Name the town? (Make the news?)
2. I'm not going compare good/bad cops. (It's impossible to
argue, unless the Federal government just finished an investigation. A investigation that didn't get much attention?)
3. I live in a low crime county, but I am seeing cops doing
things they didn't do 15 years ago. My town is Marin County.
4. I'll start with Revenue collection. Yes--it's not about safety in my county anymore--it's about Tickets. The amount
of tickets written is staggering. Many people honestly don't
know what law they broke. It's gotten ridiculous.
5. "The broken window theory"! Yes--every town in my
county is putting that theory to the test. They are stopping
people, frisking them, and digitally taking their picture. They are harassing people. It's beyond disturbing to watch
a group of officers swoop down on a female for sitting on a curb. Watch them frisk her.(they used a enthusiastic female cop for the frisk)
Empty her purse. Take her picture. And then let her go??
(I won't bring up the metaphors.)
6. As to good/bad cops, I don't care; I don't trust any of them anymore. Yes, I can say that because I live in a low crime community, but I don't think it needs to be this way?
7. As to self preservation, just a name and address, but I'm
polite. I do have front and rear cameras that turn on when
I put the key in the ignition. When walking, riding, or running I always have a smart phone with video app queued up.
8. I am a middle aged white guy, and I feel like this?
9. I feel sick just writing about this. I might understand
the mentality if crime was going up, but every decade it has
decreased in proportion to population. It's about Revenue, and Gentrification, and yes--I recall a cop retrieving a lost
cell phone. It made the paper. The kid said he found the phone. The cop accused the kid of lying. I don't know the outcome, but it did happen once--it's in the marinij.com somewhere. What's ironic is it only seemed to happen once? I wonder why? It's like getting a cop to come to the swap meet to retrieve your stolen bike--good luck! No revenue in the end? As to gentrification, it's even more ironic because local cops can't even afford to live in this county?
4. The revenue generation aspect of traffic enforcement is deeply worrying. However, I don't think you have to be a bad cop to participate in that. The problem is the system, where the laws are written in a way that ignores how people actually behave, and thus virtually everyone breaks them. There's no need to entrap or falsely accuse people for the purposes of revenue generation, because there's more than enough true violations out there.
How are people in your area unable to know what law they broke? It's always been clear for everyone I know: exceeding the posted speed limit, parking where prohibited, etc. The issue is simply that driving the posted limit is nearly impossible in many cases (everybody else is going faster and it's dangerous if you don't too), parking signs have poor visibility and are difficult to understand, etc.
"Bad cops" is an easy answer to the woes of modern-day policing, but I just don't think it's the root of the problem.
When you become a cop (and I use that word loosely to mean anyone who is empowered by the broad law enforcement system) everyone else becomes a potential criminal.
Put yourself in the shoes of a federal agent investigating a crime. Crimes happen all the time; they're commmitted by people who then try very hard to hide what they did.
So a criminal investigator is going to treat everyone they interview with suspicion from the start. That suspicion is not a personal failing any more than a software QA tester who doesn't trust the latest build. It's inherent in that type of job.
And investigators only have certain tools that they can use in order to find the criminals who are lying to them. If they get information the wrong way, even if it is accurate information about a real crime, it will be ruled inadmissable and the criminal will get away.
A big tool they have is relationships. If they can get one person in a criminal network to cooperate, then they can try to traverse the network and find the other criminals. Since criminals rarely want to cooperate with law enforcement, they use "gotcha" type tools to compel cooperation--like the false statement trap. They just need a little leverage on the person to get going.
All that you said is true, but I think it's orthogonal to what I was wondering about -- actually, it just raised more questions for me.
The common legal advice is "do not talk to cop", which presumably because on average, you will actually get into trouble with it. So in a sense, the question was "Why would LEO cause you trouble for those technicality if you're innocent?". I mean, let's say the first innocent guy who got into the false statement trap actually just cooperate, got himself proven innocent, and the investigator let him go from the technicality, and then that's ... it, right? But I don't think that's what the story normally is (is it?). There seems to be too many stories of people getting into trouble for technicality/ trap, while committing no crime originally.
There are several explanations I can think of for the behaviour (in which LEO follow up on trap when investigating innocence), most of them are quite unsettling. Notably, if criminal are getting good to the point that investigation can't truly tell without unreasonable doubt that a criminal has committed a crime, and so has to resort to trap to convict them (which leads using trap in any case they can), then well, isn't that just mean investigation are not effective as well?
I know what we should do to (try to) protect ourselves from the current situation, I was just wondering how we get here.
TL;DR: Law trap by itself is not good, however it's a necessity. But shouldn't it be used as last resort against criminal? Why does the population has to worry about trap as SOP of criminal investigator?
> That suspicion is not a personal failing any more than a software QA tester who doesn't trust the latest build.
There’s no reason to assume software being innocent/bug-free unless proven otherwise. This is not the case with humans, at least in civilized parts of the world.
There is an additional wrinkle here. The overwhelming majority of people prosecuted by the Feds are guilty of something (and not just of some "made up" crime). I worked for a federal appellate judge. Saw dozens of criminal cases come up on appeal. Didn't see a single one from the Feds where the evidence of guilt wasn't overwhelming (even if some convictions were defective for technical reasons, and even if some were for debatably immoral conduct like drug trafficking). They don't go around baiting random people they think are innocent to lie in an interview. They do it to make sure they have concrete points of leverage to get information about the rest of the crimes.
Of course, this really sucks if you're innocent (though even then, often your associates aren't and you were in the wrong place at the wrong time). When these guys see guilty people lie to their face day in and day out, it's hard to give the rare actually innocent person the benefit of the doubt. They have the moral obligation to do that, mind you. It's just understandably hard.
It's not what he was charged with, it's the evil and horrid behavior of Carmen M. Ortiz, the U.S. attorney for Massachusetts, after being charged that disgusts most people.
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
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.
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?
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.
If the police initiate the contact, shut up and talk to your lawyer. Because someone else might have robbed a house, and the police have you as a suspect (maybe you look like the perp) and if you open your big mouth without a lawyer, you could accidentally get yourself into trouble.
See the "never talk to the cops" youtube vid, which is undoubtably already linked somewhere else in the thread, about why you need a lawyer in those circumstances, and why your right to a lawyer is especially there to protect you when you are actually innocent.
Read http://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/... 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.
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.
No, absolutely not. Even if you tell the whole truth as you know it, it can still get you into trouble. Maybe they have another eyewitness that remembers things differently than you do. Maybe they have an eyewitness whose account agrees with yours, but the LEOs themselves misunderstood or misheard or forgot something. The police are going to think you lied. Maybe you just honestly misremembered something. Nope, that's a "lie".
There are so many ways that you telling the truth can hurt you, and basically no ways in which talking can help you, that it's not worth the risk. Law enforcement does provide a useful benefit to society in general, but there is zero reward for helping the cops, and a lot of risk that you could land yourself in hot water for something that seems completely innocuous.
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.
The psychology of the situation is not to your advantage. The LEOs are trying to get you to lie. They know how to do this. I'm not saying you're powerless to withstand them, but the example in the blog post is just an example. They can and will use much more sophisticated tactics to catch you in a lie if they think it will help them.
And even in this example, what if you do tell the truth, and say you did talk to them about it? Then they're going to ask what you talked about with your friend, and maybe you don't quite remember it exactly how they do. That's "lying" in their book. It also opens you up to further questioning in general, and just when you're feeling comfortable talking to you, they'll ask you something somewhat ambiguous that causes you to lie, even unintentionally.
It's just not worth it. When law enforcement comes knocking with questions, they are not there to help you. At absolute best, it's a neutral encounter, but it's very easy for it to go against your best interests.
They can use it as a stick to beat you with to get a plea deal on whatever it is they think you did. Do you think they only indict guilty people?
The other thing is that you could get section 1001'd for something you didn't actually say as FBI agents, for example, usually don't use recording devices and just take notes. If their notes said you said it and you don't have a witness, guess what happens?
Someone else commented that the LEO might use your false statement as leverage to get you to turn on your friends. Even if you are completely innocent you could be useful to them in investigating someone you're close to.
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.
"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.
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.
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.
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 ...
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."
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".
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.
How is it misleading? He thinks it's happening a lot, and he says so. Not everything needs to be demonstrated to the standards of a mathematical proof.
They play that card as a matter of course, because once they've got you for felony false statement, that's leverage to get you to play ball on the real reason they were talking to you in the first place.
"That's a nice, felony conviction-free life you've got there. It would be a shame if something were to happen to it..."
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.
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.