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Bennett Haselton's Response To That "Don't Talk to Cops" Video 871

Posted by samzenpus
from the to-talk-or-not-to-talk dept.
In response to both of my previous articles raising questions about the Fifth Amendment, people sent me a link to a famous video titled "Don't Talk To Cops" delivered by Regents University law professor James Duane. Whether his conclusion is correct or not, I think the argument is flawed in several ways. Please continue reading below to see what I think is wrong with his position.

In my first article about the Fifth Amendment, I asked: Why is it a good thing that the Fifth Amendment allows a suspect to refuse to answer "Yes" or "No" as to whether they committed a crime or not? (I was emphatically not saying that a suspect should have to answer questions that are nobody else's business -- if you weren't at the scene of the crime, you should be free to say, "I wasn't at the scene of the crime, but I would prefer not to tell you where I was." However, the Fifth Amendment lets you refuse to answer the question of whether you even committed the crime at all, and I didn't see what was so great about that, because it is everybody's legitimate business whether or not you committed the crime.)

In the second article, I asked a different question: If you do accept the rationale for allowing a suspect to refuse to answer the question of whether they committed the crime or not, why don't we extend the same protection to third-party witnesses? In other words, if Bob commits a crime and Alice is a witness, and the police ask Bob and Alice the same question -- "Did Bob do it?" -- and both refuse to answer, then Bob is allowed to do this but Alice can go to jail for remaining silent, even though Bob might be guilty, and Alice is the one who is known to be innocent! That seems crazy.

The full arguments are given in each of the articles linked above (and dissected further in the comments) and I don't want to rehash either of them here, but in response to both articles, multiple people sent me the link to Professor Duane's "Don't Talk To Cops" video, which has been viewed about 2 million times on Youtube. (Professor Duane also ceded half his presentation time to police officer George Bruch, giving him the chance to offer a 'rebuttal', which has been uploaded as a separate video -- Bruch's video has been viewed about 1 million times.) I've watched Professor Duane's presentation twice, and one problem I have with the video is that I don't know what Professor Duane's actual position is. Yes, he says that he would "never talk to any police officer under any circumstances, ever", but does that really mean that if he witnessed a violent altercation on the street and the cops wanted to ask him about it, that he wouldn't say a word to them? Or, if he got pulled over for speeding, would he really hand over his license and registration and then sit silently in the driver's seat refusing to respond the cop's questions (which pretty much eliminates your chance at being let off with a warning)? What if his house got broken into, would he really refuse to call the cops and tell them? And, uh, there's a police officer who co-presents in the video with him, didn't Professor Duane have to talk to him to get him in the video? In fact, he speaks directly to the cop on camera! Busted!

"Oh, stop being so literal, Bennett, you know that's not what he meant!" OK, but what did he mean? One problem with staking out a fairly extreme position to begin with, is that if you describe it hyperbolically, there's no way for people to know what your actual position is. I emailed Professor Duane to ask if he could clarify, but didn't get a response. (Since his video has been viewed over 2 million times, possibly my email got lost in the pile of mails he gets every week saying, "Oh shit I got arrested and I opened my big mouth, you got any ideas for what I should do now??")

For the purpose of this discussion, let's assume that Professor Duane means that if the police approached him with questions about a crime (and excluding "hot pursuit" situations such as when the police are chasing a mugger and ask "Which way did he go?"), he would refuse to talk to them. In that case, I have a couple of points to make in response to the video, but first, if you haven't seen it, you may want to watch it now, along with the 'rebuttal' offered by police officer George Bruch, and see if you come up with the same objections that I did.

Everybody back? OK, here are my thoughts:

1. The video is answering a different question from the one I asked. The video weighs the costs and benefits to the individual, of remaining silent; I was asking whether the defendant's right to remain silent is good for society as a whole. Of course if you're innocent, then it's in both your interest and society's interest for you to go free. If you're guilty, on the other hand, you may want to walk free, but it's usually in your society's interest for you to be convicted. (You could argue an exception for pot laws or whatever, but generally speaking, we do want criminals to get caught.)

Professor Duane, beginning at the 24:50 mark, specifically invokes Martha Stewart, Marion Jones, and Michael Vick, as examples of people who he thinks would have gotten lighter sentences, or gotten off completely, if they had remained silent throughout their legal ordeals. Yes, but all three of those people were guilty (Martha Stewart, very probably; Jones and Vick, beyond any doubt), so while it may have been better for them to remain silent, it would not have been better for the legal system as a whole. (All three of them had supporters who said the laws they were being charged under, were unjust in the first place, but that's a separate problem.)

This is not an explicit error on Professor Duane's part -- since he was arguing that remaining silent is good for the individual, not for society -- but it does mean the video is not precisely a response to the point I was making.

2. The argument about the danger of talking to cops is based on a sampling error. Professor Duane says that criminal defense attorneys "always, always say it was a bad idea for their client to talk to the police". But this sample obviously only includes people who talked to the police and ended up getting arrested, and charged, and needing a criminal defense attorney. The sample wouldn't include anyone that the police talked to and decided not to arrest -- whether they were initially brought in as a suspect but then convinced the police that they were innocent, or whether they were simply third-party witnesses who volunteered information to the police that they thought was useful.

In fact, in the 'rebuttal' video from Officer Bruch, he says at the 6:20 mark:

"You're going to lose [in the police interrogation room], unless you're purely innocent. On the other side of it, I don't want to put anyone who's innocent in jail. I try not to bring anyone in to the interview room who's innocent. And there are a couple that I have let walk away because they were innocent."

This appears to contradict Professor Duane, who said repeatedly that even if you're innocent, "it CANNOT help" to talk to the police, and that "you CANNOT talk to the police out of arresting you". Unless Bruch was lying, then Duane's statement was wrong, although neither of them seemed to notice. But if you did talk the police out of arresting you, then you wouldn't end up in Professor Duane's sample of people whose ended up needing a defense lawyer.

And even this sample is restricted to people who are brought into the interrogation room, where Officer Bruch said he tried not to bring anybody in at all unless the thought they were probably guilty. If you include all the people that the cops try and talk to, who the police don't think are guilty -- people casually stopped on the street, or called on the phone, or visited in their house, because they might have relevant information -- then your sample becomes much larger, and the proportion who talk to the cops and do not subsequently get in trouble, goes way up.

Also, of course, Professor Duane's sample includes people who talked to the police and were convicted, who were in fact guilty. Their defense attorneys may wish that their clients had kept silent and possibly walked free as a result, but that wouldn't be good for the rest of us.

3. His advice ignores the benefits of leniency if you're guilty and you're almost positive you'll be caught anyway. For most of this discussion I've been focusing on the merits of talking to the police if you're innocent. But Officer Bruch also says that if people in the interrogation room answer questions and cooperate, then even if they're ultimately convicted, the police do testify to the judge that you were cooperative, and the judge can take that into account and reduce your prison sentence. That is at least theoretically another legitimate reason to violate Professor Duane's "Don't Talk To Cops" rule, if you're 99% sure that the police will find enough evidence to convict you anyway, you can hope for leniency by cooperating. That's essentially why I do talk to the police if I get pulled over for speeding -- I've gotten off with a warning a few times, whereas I'm pretty sure that if I'd just sat silently and stared straight ahead, I would have gotten the ticket.

4. Professor Duane's argument is about talking to the cops; I'm asking about the merits of the Fifth Amendment as it applies in a courtroom as well. At the 15:22 mark, for example, Professor Duane gives the fictional example of a suspect who says to the police:

"I don't know what you are talking about. I didn't kill Jones and I don't know who did. I wasn't anywhere near that place. I don't have a gun, and I have never owned a gun in my life. I don't even know how to use a gun. Yeah, sure I never liked the guy, but who did? I wouldn't kill him. I've never hurt anybody in my life, and I would never do such a thing."

Professor Duane continues: "Let's suppose every word of that is true, 100% of it is true. What will the jury hear at trial? 'Officer Bruch, was there anything about your interrogation, your interview with the suspect that made you concerned that he might be the right one?' 'Yes sir there was. He confessed to me that He never liked the guy.'"

Even if that scenario is a valid reason not to talk to the police, it wouldn't be possible in a courtroom, where all of your answers are recorded, and it will be obvious if someone is trying to distort the meaning of something that you said earlier.

This is also not an error on Professor Duane's part, since his talk was called "Don't Talk To Cops", not "Don't Ever Answer Questions In Court". (While he's right that most criminal defense attorneys wish that their clients had not talked to the police, some criminal defense attorneys do encourage their clients to take the stand at trial.) So it's not relevant to the question of whether society benefits from giving defendants a Fifth Amendment right to remain silent in a courtroom.

5. Finally, are the police really that corrupt and/or stupid? Go back up to Professor Duane's hypothetical in which a suspect protests his innocence, and Duane imagines that Officer Bruch -- Professor Duane's real-life co-presenter in this talk! -- takes five words out of context and testifies in court, "He confessed to me, 'I never liked the guy'."

When the real Officer Bruch gave his 'rebuttal', he started out by started out by saying, "Everything he just said was true. And it was right, and it was correct." If I had been in the room at the time, I would have asked him, "Seriously? Were you listening when Professor Duane said that if a suspect protested his innocence in the way that he described, you would take that out-of-context quote and only tell the jury that he said 'I never liked the guy?'" Well, we already know that George Bruch didn't really agree with everything that Professor Duane said, since Bruch contradicted him on some points, such as Duane's claim that "talking to the police cannot possibly help you even if you're innocent". But I would have liked for Officer Bruch to say if he thinks the police are anywhere as stupid and corrupt as Professor Duane was implying that they are.

More to the point -- and I went into this in my first article about the Fifth Amendment -- if the police and the courts are even remotely that corrupt and incompetent, then that's a wide-ranging problem that applies to all types of evidence gathered in the case, not just statements from suspect. And if that's the case, then the Fifth Amendment is just a band-aid that only solves the stupid-cops-and-courts problem as it applies to suspect statements specifically. It doesn't solve the problem as it applies to circumstantial evidence, unreliable eyewitness testimony, false memories, evaluating the credibility of other witnesses, and other factors.

In other words, if you're arrested, suppose the cops really are so dumb and/or evil that they would quote your "I never liked the guy" out of context to try and get you convicted. So, taking Professor Duane's advice, you say nothing. Do you still trust those same police officers to handle the other aspects of your case fairly? To make sure any exculpatory evidence is brought to light? To interrogate other witnesses without leading them towards a pre-set conclusion?

As I said in my first article, that doesn't mean that this is not a valid argument for the Fifth Amendment. But it means that if this is the primary argument in favor of the Fifth Amendment, then what the people making this argument are really saying, is that the whole system is broken.

The Weekly Standard published a more devastating rebuttal to Professor Duane's video, in which the author describes the devastating effects that the "Don't Snitch" movement has had on high-crime neighborhoods, as a result of large numbers of people following Professor Duane's philosophy to the letter. The article quoted one rap celebrity saying that he wouldn't even tell the police about a known murderer living next door to him. Professor Duane may not endorse that view directly, but he could hardly disagree that it follows logically from his admonition to "never talk to the police under any circumstances, ever". This is essentially the same logic error that I pointed out in point #2 -- if you focus only on people who talked to the police and ended up getting arrested, you're ignoring the benefits of people talking to the police who not only don't get arrested, but may help stop a crime or catch a criminal. It might still be a bad idea on balance to talk the police, but you couldn't make that argument by limiting your sample to the people who get arrested.

More generally, there may be an argument why either the individual or society benefits from the legal right to remain silent -- but it would have to be based on a sample drawn from all innocent people who talk to the cops, and the proportion who subsequently benefit as a result, and the proportion who are subsequently penalized, and weighing the magnitude of the benefits versus the drawbacks, and the likelihood of each. The "Don't Talk To Cops" video doesn't do that.

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Bennett Haselton's Response To That "Don't Talk to Cops" Video

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  • Fundamentally flawed (Score:5, Informative)

    by ziggy_az (40281) on Monday October 07, 2013 @11:19AM (#45059201) Homepage

    You must not have watched the entire video. The advice is "Don't talk to the cops without an attorney". There is always time later to confess, but the fundamental reality of our criminal justice system is that it is a bargaining table. A suspect who gives up everything they have to bargain with at the very beginning is ultimately unable to win a fair sentence. Again, the U.S. Criminal Justice system is a bargaining table. Lawyers know this. Judges know this. Pretty much all legal professionals know this. Therefor, don't talk to the cops *without a lawyer*.

  • Re:Dear Samzempus (Score:3, Informative)

    by Enry (630) <.ten.agyaw. .ta. .yrne.> on Monday October 07, 2013 @11:20AM (#45059217) Journal

    Given the number of people who are actually innocent and wound up going to jail after intense questioning or through other faults in the legal system (some of which went to death row and have since been executed), I'd take the word of a law professor at an actual university over a no-name whatever-Bennett is.

  • Too many laws (Score:4, Informative)

    by hawguy (1600213) on Monday October 07, 2013 @11:26AM (#45059297)

    However, the Fifth Amendment lets you refuse to answer the question of whether you even committed the crime at all, and I didn't see what was so great about that, because it is everybody's legitimate business whether or not you committed the crime.)

    But *which* crime? There are so many laws that even the federal government can't tell you how many they are. How can anyone possibly know that they haven't committed a crime and that their statments might come back to bite them later?

    Just like the huge tax code, the criminal code needs a major overhaul and simplification.

    As Duane says:

    [James Duane] Now. Here's part of the problem. The heart of the problem, as Justice Briar, on the U.S. Supreme Court explained in 1998 is, quote: "The complexity of modern federal criminal law, codified in several thousand sections of the United States Code, and virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law, make it difficult for anyone to know in advance just when a particular set of statements might later appear to a prosecutor to be relevant to some investigation."

    One expert on criminal law recently noted "estimates of the current size of the body of federal criminal law vary, although it has been reported that the Congressional Research Service can no longer even count the current number of federal crimes." That's right, even the federal government has lost count. "These laws are scattered over all fifty pages of the U.S. Code, encompassing roughly twenty thousand pages. Worse yet, these statutes often incorporate by reference to the provisions of administrative regulations. Estimates of how many such regulations exist are even less well settled, although the ABA thinks there may be nearly ten thousand."

  • Hearsay. (Score:5, Informative)

    by D'Arque Bishop (84624) on Monday October 07, 2013 @11:28AM (#45059327) Homepage

    IMHO, the most important reason is the one Professor Duane gave regarding what weight the statements have in court. Anything you say can and will be used against you, but nothing you say can be used for you. Anything you say in your defense would be ruled as hearsay and as such inadmissable.

    So, on a personal level, at the very best nothing happens to you and at the very worst you admit to a crime (and maybe not even the one you're being questioned about!) and get hauled off to jail. On a societal level, at the very best you MIGHT give some information that is useful but at the very worst (and probably more likely) an innocent individual faces charges for a crime he didn't commit.

    That's why I would never agree to police questioning without an attorney.

  • Re:Who? (Score:5, Informative)

    by Jah-Wren Ryel (80510) on Monday October 07, 2013 @12:00PM (#45059771)

    So who the fuck is Bennett Haselton?

    He made a name for himself as a teen with Peacefire [wikipedia.org] as an anti-filtering advocate.

  • Re:Silly. (Score:5, Informative)

    by ShanghaiBill (739463) on Monday October 07, 2013 @12:05PM (#45059837)

    They did make that show, it was called "The Shield".

    "The Shield" was based on the Rampart CRASH unit [wikipedia.org], and many of the events in the show were based on things that had happened in real life. Anyone who thinks we don't need a 5th Amendment because we can trust the police is an idiot.

  • by GodfatherofSoul (174979) on Monday October 07, 2013 @12:07PM (#45059857)

    He's an ex-cop who makes videos about all the extremely shady tactics cops use to get a drug bust; including lying to gain access to your property where they would have no rights to search or manipulating search dogs to create fake drug hits.

    I have no clue who this Haselton guy is, but he sounds like douche. I got 1/3 through the article and decided he's not worth listening to. Find Barry Cooper's videos and you'll understand why. Yes cops ARE that corrupt.

  • Re:Shoot first (Score:3, Informative)

    by krovisser (1056294) * on Monday October 07, 2013 @01:04PM (#45060645)
    Ooh, is this another reference to the Martin shooting? Because out of the ~2 million defensive uses of a gun a year [nap.edu], one of them goes to trial since it's unclear what happened. He's acquitted. Martin attacked first. End of story. But no, you have one case plastered over the news so it's an epidemic.
  • by Goobermunch (771199) on Monday October 07, 2013 @01:07PM (#45060669)

    Here's an example of why we should not be as trusting as Bennett: http://www.innocenceproject.org/understand/False-Confessions.php [innocenceproject.org]

    --AC

  • by Sarten-X (1102295) on Monday October 07, 2013 @01:07PM (#45060689) Homepage

    A downmod on this is a shame. Allow me to rephrase in a less inflammatory tone:

    Lawyers are not necessary in every situation, but should be readily consulted as soon as they are needed, and not a moment later. Lawyers, as a profession, exist solely to provide advice. If you have the slightest doubt about the law's application, you should call a lawyer immediately. On the other hand, if you're comfortable with the situation and understand well what the risks are, getting a lawyer is often an unnecessary expense.

    Unfortunately, lawyers' time is expensive, because they are highly-skilled and highly-educated professionals. There are few good solutions to this problem, but some cities do have legal assistance charities that have lawyers on staff for basic needs, and often receive pro-bono assistance from other local lawyers. Look into such an organization, and be able to call them when needed.

    To avoid the hassle and expense of a lawyer, the other option is to learn the law yourself. There are several good resources online (my favorite is the Illustrated Guide to Law [lawcomic.net], which provides a good summary of laws in an easily-accessible format, with an explanation of why the law is how it is), and the local library is an excellent place to get information on local ordinances, as well.

    Once you've put in the time to learn your rights (your actual rights, not the exaggerations and myths so often spouted on forums), you have little to worry about when talking to police. Most importantly, you should not (and have no obligation to) commit to anything you are not absolutely certain of - and you should be certain of very little. Even if you witnessed a crime directly, for example, and are sure you saw someone in a black hoodie, that may have been an illusion from the lighting, or your mind may be unconsciously be associating the real perpetrator (who wore a black hoodie) with someone else wearing a blue coat. Unfortunately, even our own memories are terribly unreliable, and we often can't realize it.

    For this reason, you should be extremely cautious when phrasing your statements. Phrases such as "as I recall" and "I think that..." are vitally important for marking those parts of your statement as unreliable. If you don't know something, say so rather than speculating. Give written statements whenever possible, so there can be no misunderstandings about what you say. Never intentionally lie, and be aware of the officers' time constraints. His job is to gather evidence about the event, not to hear you ramble on about how you know your rights and are intent on exercising every last one of them.

    You are not legally required to assist in an investigation, but you are not legally allowed to hinder it, instead.

  • Just SHUT UP! (Score:4, Informative)

    by jamesl (106902) on Monday October 07, 2013 @01:12PM (#45060745)

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

    SHUT UP.
    http://www.popehat.com/?s=shutup [popehat.com]

  • Re:Shoot first (Score:5, Informative)

    by PoliTech (998983) on Monday October 07, 2013 @01:18PM (#45060825) Homepage Journal
    I think it was more of a reference to things like This, [businessinsider.com] this, [q13fox.com] this, [alternet.org] this, [foxnews.com] and this [informatio...ration.com].
  • by Montezumaa (1674080) on Monday October 07, 2013 @01:32PM (#45061063)

    You're incorrect in your belief that unintentionally providing incorrect information to police, in a criminal matter(one can legally lie to the police all day, if it isn't in the course of their "official duties" and one isn't being questioned in the course of an investigation or other "official matter". Outside of "official duties", law enforcement officials are just regular members of society. The caveat to that is if your lie causes law enforcement to bring charges against a person that didn't commit the alleged criminal act, that lie is also a crime.), is a crime. Providing false information to law enforcement requires "intent", yet you falsely claim that "making a mistake"(whereas a "mistake" implies one did wrong unintentionally) is sufficient is endure the punishment of a felonious act. You couldn't be more wrong.

    As an ex-law enforcement officer myself, I can tell you that Bennett Haselton is an idiot(and completely wrong, too), and you, MisterSquid, while most likely well intentioned(I hope so, at least), are also wrong. I should also point out that intentionally providing false information to law enforcement, in all circumstances, isn't a felony, in all jurisdictions. Case in point, in Georgia, according to O.C.G.A. 16-10-25, providing false identifying information to law enforcement is a misdemeanor, and it also requires "intent".

    I will hold one caveat to my view of your information, in that the "super cool" all caps "DO NOT TALK TO THE POLICE WITHOUT THE PRESENCE OF YOUR ATTORNEY" comment is correct, though, with a slight alteration, or two. It is: Do not talk to the police.

    Most, if not all, defense attorneys will forcefully suggest that course of action. The only time that might not be true is when there is strong evidence that the targeted suspect is innocent, or at least not guilty of the criminal act(s) in question, and that another person is. One can never "talk" his or her way out of suspicion, but substantial evidence can help move the focused suspicion onto someone else.

    I do believe that one area of lying is left out(which I commented on earlier in this post), and it is equally important. If one lie to law enforcement, and that lie causes the arrest and conviction(thought conviction is necessary to bring charges for the lie(s)) of a person that isn't guilty of the crimes at issue, the liar(or liars) has committed a criminal act. If it is to the police, usually the crime is the filing of a false report to the police. If one lies on the stand, in court, it would be perjury, both of which also require "intent".

    All of this hinges upon "intent", which a "mistake" doesn't hold.

  • SHUT UP (Score:4, Informative)

    by Erbo (384) <obreerbo@nOsPam.gmail.com> on Monday October 07, 2013 @01:37PM (#45061133) Homepage Journal
    I'll take the advice of Ken White, an actual lawyer and former Federal prosecutor, any day...and he has an entire tag on his blog called "SHUT UP [popehat.com]":
    1. The cops do not have your best interests at heart. Really. Even if you are just a witness, they will be happy if you blurt out something that incriminates you, or seems to incriminate you.
    2. With all respect, you probably suck at answering questions. You have not been trained yet to recognize the tactics cops use to put you ill at ease during an interview. You are probably nervous. You are probably going to be answering questions off of the top of your heard. If you have decided not to take my advice to SHUT UP, you are probably eager to please and will strain to answer questions, even if it means guessing at things you don't know or don't remember. Especially if the questions are complicated — for instance, about a financial transaction — you need to go over the details and any physical evidence to remember exactly what happened. So even if you are trying to be completely honest, if you go into this interview without careful preparation, there is an excellent chance that you will get a key fact wrong through bad memory or nerves. Later, if you remember the right answer, the cops will say you are "changing your story around."
    3. And if you aren't ready to tell the 100% unvarnished truth, God help you. Look: there are only two courses of action to take when the government asks you questions. Either tell the 100% complete truth or SHUT UP. Nothing in between. You may think you are terribly clever and can shade the truth, spin the truth, rely on cute hidden definitions to answer questions, etc. Cut that shit out. They've seen it a thousands time before. Now you've given a misleading statement that's going to be used to show consciousness of guilt, you've locked yourself into a version of events, and you've exposed yourself to prosecution. There was a time when the feds only very rarely prosecuted people for saying "I didn't do it" during an interview. Those days are past. Now, even though it is a chickenshit charge, feds routinely charge people both with the underlying offense and with false statement to the government for when the client lies to them in the interview. SHUT UP SHUT UP.
    4. Yes, you might make the government happier by cooperating. Yes, you may reduce the chances of getting charged. You can still do that after a competent lawyer debriefs you, evaluates your risks, trains you on how to act in an interview, and communicates with the government about your status. A lawyer may be able to get you an immunity guarantee for the interview. If the cops you are dealing with are inclined to shaft you for lawyering up, then they are the sort who would have shafted you one way or the other sooner or later anyway. The cops who are trying to convince you that things will go badly for you if you don't talk right now DO NOT HAVE YOUR BEST INTERESTS AT HEART. They are trying to frighten you into talking without caring whether it is in your best interests.

    (From this aptly named entry [popehat.com])

  • Re:Shoot first (Score:2, Informative)

    by bennetthaselton (1016233) on Monday October 07, 2013 @02:59PM (#45062151)
    You're missing the point, it's the facts which contradict the advice being given by a law professor. It's a question of fact, not a question of law.

    He said "It CANNOT help if you talk to the police". Then he ceded his time to a police officer who gave at least two examples of real-life situations where a person had made themselves better off by talking to the police. Unless Officer Bruch was completely making those stories up, Professor Duane was wrong.

    And then I explained that this was caused by a sampling error -- Professor Duane looked only at the people who talked to the police and ended up getting arrested.

    Which part of this do you think is incorrect?
  • by reve_etrange (2377702) on Monday October 07, 2013 @03:20PM (#45062419)

    Good work.

    The number one reason not to talk to the police has nothing to do with the Fifth Amendment. It's that while "anything you say can be used against you" nothing you say can be used for your benefit in court. No matter how much the police officer may wish to testify that information you gave him leads him to believe you are innocent, he is expressly prohibited from doing so.

  • by reve_etrange (2377702) on Monday October 07, 2013 @03:25PM (#45062487)
    You missed the point. Evidence rules explicitly prohibit the use of anything you have told the police on your own behalf. Therefore talking to the police can at best do no harm, and at worst do much harm.
  • Attn: Haselton (Score:3, Informative)

    by Galactic Dominator (944134) on Monday October 07, 2013 @03:26PM (#45062495)

    Please quit. You're initial analysis was weak, and this rebuttal makes you seem like a much less intelligent person than I think you are. Your rationals remind me of the unrigorous positions of a call-in partisan radio show. If you're going to stick with philosophy, try to understand the fundamentals of forming an argument prior to publicizing this amateur manifesto stuff. Reading more from you is a waste of everyone's time until then.

  • Re:Shoot first (Score:2, Informative)

    by jedidiah (1196) on Monday October 07, 2013 @03:39PM (#45062625) Homepage

    An armed adult gunned down an unarmed kid in the absence of witnesses.

    That doesn't even pass muster by "Wild West" standards.

  • by bennetthaselton (1016233) on Monday October 07, 2013 @04:34PM (#45063407)
    samzenpus is the editor, I wrote the article.

    Anyway, I'm not assuming the police or judges are trustworthy at all. I'm just saying that if they're corrupt, the Fifth doesn't help you.

    Suppose you're innocent and either the cops or the judge asks you, "Did you do it?" With the Fifth, you refuse to answer. Without the Fifth, you say No.

    At that point, you're in the same boat either way. If they fabricate enough evidence to convict you, the Fifth doesn't help you. If the cops haul you away and beat you up until you sign a confession, and then tell the court that you signed the confession of your own free will, the Fifth didn't help you either -- because the cops will just say that you voluntarily waived your Fifth Amendment rights and signed the confession anyway.

    The challenge I posed in the first article was: Come up with a specific scenario where the outcome is different depending on whether we have a Fifth Amendment or not. The scenarios above fail that test. Most of the other scenarios people have proposed, also fail that test. You can assume the government is corrupt, you just still have to show that the Fifth would affect the outcome somehow even if the government is corrupt.
  • by Aryden (1872756) on Monday October 07, 2013 @04:58PM (#45063661)

    You fail to remember that it was not just Prof. Duane, but also a police detective that stood up there and told everyone the exact same thing.

    2. The argument about the danger of talking to cops is based on a sampling error. Professor Duane says that criminal defense attorneys "always, always say it was a bad idea for their client to talk to the police". But this sample obviously only includes people who talked to the police and ended up getting arrested, and charged, and needing a criminal defense attorney. The sample wouldn't include anyone that the police talked to and decided not to arrest -- whether they were initially brought in as a suspect but then convinced the police that they were innocent, or whether they were simply third-party witnesses who volunteered information to the police that they thought was useful.

    Of the many, many, many attorneys that I know (many of whom are family/friends/etc) and the many cops that I know (former military turned police), they will all tell you the exact same thing. It CANNOT help you to talk to the police, even if you are innocent of the crime you are being questioned about. They both even tell you quite specifically that even though you may be innocent of the crime you are being questioned about, you may, without realizing it, incriminate yourself in an unrelated crime

    His advice ignores the benefits of leniency if you're guilty and you're almost positive you'll be caught anyway. For most of this discussion I've been focusing on the merits of talking to the police if you're innocent. But Officer Bruch also says that if people in the interrogation room answer questions and cooperate, then even if they're ultimately convicted, the police do testify to the judge that you were cooperative, and the judge can take that into account and reduce your prison sentence. That is at least theoretically another legitimate reason to violate Professor Duane's "Don't Talk To Cops" rule, if you're 99% sure that the police will find enough evidence to convict you anyway, you can hope for leniency by cooperating. That's essentially why I do talk to the police if I get pulled over for speeding -- I've gotten off with a warning a few times, whereas I'm pretty sure that if I'd just sat silently and stared straight ahead, I would have gotten the ticket.

    This is where your lack of legal knowledge truly shows through. Just because YOU may be positive that the police will find enough evidence that you are guilty does NOT mean that they gathered the evidence legally, that the evidence is NOT circumstantial, or that the evidence could also point at someone else. Even if you are guilty, and you know they are going to find out, a lawyer can help to mitigate the punishment or possible have you acquitted due to many many many loopholes and legalities that you as a layman may not know.

    Professor Duane's argument is about talking to the cops; I'm asking about the merits of the Fifth Amendment as it applies in a courtroom as well. At the 15:22 mark, for example, Professor Duane gives the fictional example of a suspect who says to the police: "I don't know what you are talking about. I didn't kill Jones and I don't know who did. I wasn't anywhere near that place. I don't have a gun, and I have never owned a gun in my life. I don't even know how to use a gun. Yeah, sure I never liked the guy, but who did? I wouldn't kill him. I've never hurt anybody in my life, and I would never do such a thing." Professor Duane continues: "Let's suppose every word of that is true, 100% of it is true. What will the jury hear at trial? 'Officer Bruch, was there anything about your interrogation, your interview with the suspect that made you concerned that he might be the right one?' 'Yes sir there was. He confessed to me that He never liked the guy.'" Even if that scenario is a valid reason not to talk to the police, it wouldn't be possible in a courtroom, where all of your answers are recorded, and it will be obvious

  • by cdecoro (882384) on Monday October 07, 2013 @09:42PM (#45065739)

    The difference was that Zimmerman's statements were recorded. Federal Rule of Evidence 106 provides that: "If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time." (I don't know the Florida rule, but most states' rules of evidence are similar to the FRE).

    Generally, any statements made outside of court are inadmissible as hearsay when introduced for the purpose of proving the truth of the statement, unless a hearsay exception applies. Fed. R. Evid. 801 & 802. The largest exception is "statements of a party opponent," 801(d)(1)(2), by which a party can introduce any statements of the opposing side. Thus, Zimmerman's out-of-court statements, while hearsay, were nonetheless admissible pursuant to this exception. And because they were recorded, Fed. R. Evid. 106 allowed Zimmerman to demand the rest be introduced (presumably, I haven't actually seen what the basis for this was, or even if it was argued).

    But on the other hand, whatever Zimmerman said unrecorded to officers at the scene would not be admissible if offered by himself, because no hearsay exception would apply.

We warn the reader in advance that the proof presented here depends on a clever but highly unmotivated trick. -- Howard Anton, "Elementary Linear Algebra"

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