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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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  • Shoot first (Score:5, Insightful)

    by suso (153703) * on Monday October 07, 2013 @10:06AM (#45059001) Homepage Journal

    Given recent events, you'd be lucky if you even had a chance to open your mouth.

    • by duckintheface (710137) on Monday October 07, 2013 @10:52AM (#45059691)

      The British shot people too. The reason we have a protection against self incrimination is the history of American colonists being forced by the British to confess to crimes they didn't commit. Many law enforcement personnel attempt to do this constantly. To them it is a game and they win if you confess. Truth plays no role.

      From the article: "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)? "

      Right there you admit that the police will act differently toward silent citizens even if those citizens have every right to remain silent. THAT is the problem. That is coercion and it happens as a routine part of current policing.

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

      by sjwt (161428) on Monday October 07, 2013 @11:10AM (#45059905)

      The real question here is...

      Why is Slashdot publishing legal advice given by someone with a master's degree in mathematics that contradicts the advice given by a law professor?

      This is as bad as news.com.au having a front page artical today, that was about fastfood and it was just a collection of Reddit quotes, and most if not all where from Americans...

      It seems reporting is dead, and so to is the last drop of common sense the upvotes and editors have.

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

        by Jeff Flanagan (2981883) on Monday October 07, 2013 @11:32AM (#45060173)
        Good point. What's next, an economist claiming that evolution is a lie from the pits of hell?

        Educated professionals often function very poorly outside their knowledge-domain, and due to a lifetime of considering themselves to be smart people, assume they're competent where they are not.
      • Re:Shoot first (Score:5, Insightful)

        by RespekMyAthorati (798091) on Monday October 07, 2013 @12:27PM (#45060953)

        Why is Slashdot publishing legal advice given by someone with a master's degree in mathematics that contradicts the advice given by a law professor?

        One reason: because he is a buddy of samzenpus.

        The real question is : why does samzenpus think that anyone would give a flying fuck what this bozo Haselton thinks about anything?
        How low can /. sink?

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

        by nomadic (141991) <nomadicworld@NOSpam.gmail.com> on Monday October 07, 2013 @12:38PM (#45061159) Homepage
        As a Slashdot reader since 1999, I can assure you that the Slashdot editors have a long and stories history of making the strangest decisions as to who is an "expert" in the field they want written about (Jon Katz anyone?).

        As a licensed attorney since 2006, I can also assure you that Bennett Haselton always gets the law wrong at a deep, fundamental level. I used to post explanations of where he went wrong on his stories but then I just gave up.
    • Re:Shoot first (Score:5, Insightful)

      by PoliTech (998983) on Monday October 07, 2013 @12:02PM (#45060627) Homepage Journal
      "Finally, are the police really that corrupt and/or stupid?" Yes, and for anyone who says that corrupt and/or stupid cops are a small minority, remember that the so-called "Honest" cops know about that corrupt and/or stupid cop and will almost always provide cover for him/her. Complicit and accessory. It doesn't surprise me one bit that a member of the police would advise people to ignore their fifth amendment rights. It does surprise me that this fascist nonsense was posted as a serious article on /. of all places. Parent modded down as troll should be corrected. Its not like there aren't constant reports and videos of cops abusing their authority.
    • Re: (Score:3, Informative)

      by krovisser (1056294) *
      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.
  • Police and Judges. (Score:5, Insightful)

    by nospam007 (722110) * on Monday October 07, 2013 @10:06AM (#45059003)

    "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. "

    You are mixing police and justice.
    Both Bob and Alice should not be talking to the police.
    Then the chances that one of them will be accused is much slimmer.
    Not talking to the police is allowed, not service as a witness before a judge not.

    " 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. "

    If you don't talk to the police, chances are great that you will never be arrested and put before a judge, rightfully so or not.
    Ask Martha, she went to jail for lying to the police, that's always the risk, even if you escape being punished for the real alleged crime.

    That was kind of his point, which you seem to have missed entirely.

    • by lister king of smeg (2481612) on Monday October 07, 2013 @10:14AM (#45059131)

      More to the point if you the original video say to not answer any questions until you have your legal representation present. This guy seems to think that is bad for justice some how not to wait until your attorney to be present.

    • by Austrian Anarchy (3010653) on Monday October 07, 2013 @10:19AM (#45059209) Homepage Journal
      All that is true and Haselton is responding to something he was never asked to begin with. The video was up for quite some time before he wrote his articles. If he formulated an actual response to the video, rather than a response to himself using a video that never anticipated him as some sort of 'evidence,' he might form a better argument. But I doubt that.
    • by MisterSquid (231834) on Monday October 07, 2013 @10:21AM (#45059239)

      What's really boneheaded about this rebuttal is that people who speak to the police provide material with which they can be convicted. Making a mistake when speaking to the police, which all of us do even under the most relaxed conditions, is called "lying" and is a felony in and of itself. In other words, misremembering something and telling the police about it is a felony.

      For my money, I will take the advice of every defense attorney who has spoken on whether one should talk to police which is DO NOT TALK TO THE POLICE WITHOUT THE PRESENCE OF YOUR ATTORNEY.

      • by i kan reed (749298) on Monday October 07, 2013 @10:30AM (#45059353) Homepage Journal

        See, the difference between "don't talk to the police" and "don't talk to the police without an attorney" is huge, and the latter is a much more reasonable position to take. An innocent witness could reasonably want to tell the police what they know, but run it by their attorney first, but it's hard to take unnecessary silence as anything other than a denial of something. You can't legally make yourself guilty through silence, but you can certainly make yourself a suspect.

      • by JaredOfEuropa (526365) on Monday October 07, 2013 @10:37AM (#45059479) Journal
        Is it really a felony to lie to the police in the US? That stinks, and even worse if they truly prosecute otherwise innocent people for it. Over here (NL), lying to the police is not punishable, whether you are lying about a case that involves you, or one that you merely witnessed. The only times you are obliged by law to tell the truth is when the police ask for your identity, or when you're put under oath.
      • by anagama (611277) <obamaisaneocon@nothingchanged.org> on Monday October 07, 2013 @10:50AM (#45059655) Homepage

        What's really scary about this rebuttal is the proposition that people should not have 5th amendment protections. Just how much more obvious does it have to be that we are falling into a police state/authoritarian mindset at an amazingly fast pace -- the very idea that this is up for debate is shocking. And worse, the author does so without even a remote sense of shame or embarrassment.

        • by operagost (62405) on Monday October 07, 2013 @11:35AM (#45060215) Homepage Journal
          I'm appalled that someone would write such a lengthy article about rights without cracking a history book to find out where the 5th amendment came from. In common law, confessions via torture were admissible. Even when torture was outlawed, it continued to be done in secret as defendants could still be compelled to testify against themselves. The only way to rectify this to a great degree is to give the defendant the option of remaining silent. This way, if he is coerced and thus blabs to avoid torture, it will raise questions. The small potential benefit to the prosecution is not worth the high risk of being caught torturing people.
      • by Tom (822)

        For my money, I will take the advice of every defense attorney who has spoken on whether one should talk to police which is DO NOT TALK TO THE POLICE WITHOUT THE PRESENCE OF YOUR ATTORNEY.

        I dimly remember (never been in that situation, fortunately) that you don't talk to the police, period. You talk to your lawyer, and your lawyer talks to the police.

      • by Aighearach (97333)

        I agree. Another boneheaded thing is that if you know you're going to get caught anyways, talking to police is going to add charges, not get you leniency. Talking to the DA, after your lawyer makes a deal, is what might get you leniency.

        Turns out the lawyers know the details, and the person seeking out to argue with them... doesn't. This editorial had no chance to be useful or correct, because he didn't even think about it long enough to understand what he is arguing with. (or ask somebody to explain it to

      • by Montezumaa (1674080) on Monday October 07, 2013 @12:32PM (#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.

  • Silly. (Score:5, Insightful)

    by Anonymous Coward on Monday October 07, 2013 @10:07AM (#45059019)

    Even the first point was silly, as it presumes that authority figures are perfect angels. Looks like someone doesn't understand the fifth amendment...

    • by Dunbal (464142) *
      Or the whole point of government, for that matter.
    • Re:Silly. (Score:5, Insightful)

      by MozeeToby (1163751) on Monday October 07, 2013 @10:24AM (#45059275)

      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?

      His opinion seems to be "if they're so corrupt to take you out of context they'll screw you some other way so you may as well make said screwing easier for them". What he doesn't understand is that even if the entire system is 90% squeaky clean, the 10% can still ruin your life forever. Especially when the 90% don't do their job in identifying and removing from power the 10%.

      I wish someone would make a cop show a la Breaking Bad. A good cop, doing the best that he can. Bends the rules occasionally to get the job done but things slowly, inevitably get out of hand as the bending becomes breaking and the breaking becomes outright flaunting. End it with him sending someone to death row and the whole thing finally come crashing down on his head. Hell, I'd just be happy if once the "bad guy" that they railroaded into a conviction from one episode turned out to be innocent later on and the real criminal is off killing people in the meantime.

    • Re:Silly. (Score:5, Insightful)

      by Peristaltic (650487) * on Monday October 07, 2013 @10:27AM (#45059305)

      Bennett sounds like he has the luxury of time in a quiet, relatively stress-free environment to calculate hazard ratios and probabilities, unlike most people thrown with little warning into a possibly contentious interrogation.

      To be honest, he comes off sounding like a hair-splitting idealist.

      As unlikely as it might be, If I ever find myself having to deal with US authorities in a situation involving a criminal case, I think that I'll follow Professor Duane's advice.

      By the way, who is this guy that gets to editorialize on Slashdot? Are the Dice suits trying to liven things up?

    • Re:Silly. (Score:5, Insightful)

      by JaredOfEuropa (526365) on Monday October 07, 2013 @10:46AM (#45059609) Journal

      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

      How is that even a rebuttal? The devastating effects are the result of criminals, not of Prof. Duane's position, and it in no way invalidates his statement. If the police want people to talk to them, they need to make very, very sure that innocent people truly have nothing to fear from them. A lot of people probably follow his advise because it it necessary.

      • Re:Silly. (Score:5, Insightful)

        by Entropius (188861) on Monday October 07, 2013 @10:53AM (#45059703)

        "they need to make very, very sure that innocent people truly have nothing to fear from them. A lot of people probably follow his advise because it it necessary."

        This is exactly it. If the police want to make it easier to investigate real crime then they need to make innocent people comfortable around them. Cut the overzealous traffic enforcement and drug war.

    • Re:Silly. (Score:5, Insightful)

      by asmkm22 (1902712) on Monday October 07, 2013 @12:36PM (#45061123)

      Who exactly is Bennett Haselton, and why should I consider his opinion on this? He really just sounds like some random guy at a bar giving relationship advice.

  • by Anonymous Coward on Monday October 07, 2013 @10:11AM (#45059069)

    How much did Bennett Haselton have to pay Dice Media to be allowed to post his comments above the big green line, instead of down here with us proles?

  • Martha Stewart (Score:5, Insightful)

    by stoolpigeon (454276) * <bittercode@gmail> on Monday October 07, 2013 @10:11AM (#45059085) Homepage Journal

    Why did Martha Steward go to jail?

    If someone with that kind of money and influence can do time just for talking to cops - what do you think that means for the rest of us?

    • Re:Martha Stewart (Score:5, Insightful)

      by Austrian Anarchy (3010653) on Monday October 07, 2013 @10:23AM (#45059257) Homepage Journal

      Why did Martha Steward go to jail?

      If someone with that kind of money and influence can do time just for talking to cops - what do you think that means for the rest of us?

      She went to jail for answering a question from a federal cop incorrectly. She was asked if she made money off of an investment and said "no," when in fact she did make money off of the investment. Even though there was no criminality on her part with the investment to begin with. It is right up there with going to jail because a cop asks you if the sky is blue and you give any answer at all.

      • Re:Martha Stewart (Score:5, Interesting)

        by bennomatic (691188) on Monday October 07, 2013 @10:51AM (#45059685) Homepage
        I'd put a different spin on it. I'd say she went to jail for being criminally assholish. When she said she didn't make any money, it was because she looks at $30,000 (IIRC, the amount she profited) like most of us look at pennies on the floor of our cars. For the cop in question, that was half his annual income, so he took her in.

        At least that's how I like to look at it :)
      • Re:Martha Stewart (Score:4, Insightful)

        by GodfatherofSoul (174979) on Monday October 07, 2013 @11:01AM (#45059781)

        She did more than that. She even started to erase documents/emails which she somehow restored after thinking it through. Honestly, I think her case was a red herring to take the attention off of the much larger fish that were committing corporate crimes at the time.

  • by Anonymous Coward on Monday October 07, 2013 @10:12AM (#45059095)

    Why does Slashdot feel compelled to let itself be Bennett Haselton's personal political soapbox?

    • by RogueyWon (735973) on Monday October 07, 2013 @10:41AM (#45059555) Journal

      I've no idea what's been going on with slashdot for the last 6 months or so. I've seen perfectly reasonable science, IT and gaming submissions rejected, while the general drift seems to be towards "the crazier the submission the better".

      There's been a big increase in accepted submissions which are inexplicable without prior knowledge of the issue (and without a useful article to elaborate), viciously partisan or, alternatively, huge walls of text devioid of formatting.

      Something's gone badly wrong.

      • I've no idea what's been going on with slashdot for the last 6 months or so.

        I do. This situation was predicted when Dice took over- More mindless, controversial articles and postvertisements = more clicks = more $$.

  • by Anonymous Coward on Monday October 07, 2013 @10:12AM (#45059103)

    and why should I care about his take on this?

    • My thought exactly (Score:5, Insightful)

      by The Last Gunslinger (827632) on Monday October 07, 2013 @11:22AM (#45060037)
      Then I read his article and had my answer: a pedantic nitwit who lacks the historical understanding of corrupt power.

      The 5th Amendment, as with the others in the "Bill of Rights," was designed with the intent to guarantee an individual's liberty against encroachment by the State. The genesis arose from the Crown's ignoble history of coercing confessions under torture and duress, then using said confession as the centerpiece in some mummer's farce of a trial to imprison or execute the persons.

      To examine such a precept through the lens of its utilitarian value to broader society is to fail completely to understand at all its reason for being. If we are to do so, then the author must accept that the consequences of abolishing the 5th will likely include a further degradation of our society into an authoritarian police state that will compel and coerce confessions from citizens. We need look no further than Abu Ghraib to see the truth in this. In this light, it's very simple to make the argument that the 5th Amendment is one of the essential protections that maintains ours as a "free" society.

      Furthermore, it's been well-established that eyewitness and other human testimonials are consistently the least reliable evidence allowed at trials. Frankly, that we still allow for them to be used as the sole basis for indictment and conviction in this modern era of the NSA and forensic science baffles the rational mind.
  • Remember kids... (Score:5, Insightful)

    by Lumpy (12016) on Monday October 07, 2013 @10:13AM (#45059119) Homepage

    "Anything you say CAN and WILL be used against you in a court of law."

    This alone invalidates EVERYTHING said in this article.

    Police look at every single civilian as an enemy first. Remember that.

  • Who is this guy? (Score:5, Insightful)

    by Anonymous Coward on Monday October 07, 2013 @10:16AM (#45059165)

    Bennett Haselton is not a lawyer, a judge, or a cop. He has a degree in mathematics and is a computer professional. Why on earth should I be interested in his opinion on this topic?

    • by CanHasDIY (1672858) on Monday October 07, 2013 @10:24AM (#45059273) Homepage Journal

      Bennett Haselton is not a lawyer, a judge, or a cop. He has a degree in mathematics and is a computer professional.

      ... and, apparently, so shitty at what he does professionally that he has the time to write novels on topics of law he obviously does not understand.

      Nothing about this guy says, "I am someone worth paying attention to." Nothing.

  • by js3 (319268) on Monday October 07, 2013 @10:17AM (#45059171)

    "I was asking whether the defendant's right to remain silent is good for society as a whole"
    The right is to the individual, not society. Besides that a lot of things could be crafted as "being good for society as a whole". Like telling people what to eat, drink and do.

    "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?"
    There are some protections for 3rd party witnesses like spouses, it also varies depending on the circumstances like blackmail, fear or trauma. it's not black and white.

  • Dear Samzempus (Score:5, Insightful)

    by OzPeter (195038) on Monday October 07, 2013 @10:17AM (#45059173)

    Why do you think that your opinion trumps that of Regents University law professor James Duane?

    Please either cite your relevant legal qualifications, or prefix your opinions with IANAL.

    Oh yeah .. TL;ORTFS (Too long; only read TFS)

    • Re: (Score:3, Informative)

      by Enry (630)

      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.

  • Fundamentally flawed (Score:5, Informative)

    by ziggy_az (40281) on Monday October 07, 2013 @10:19AM (#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*.

  • Who? (Score:5, Insightful)

    by luckymutt (996573) on Monday October 07, 2013 @10:19AM (#45059211)
    So who the fuck is Bennett Haselton? More importantly, why do we keep getting front page items about this one guy not understanding the basics of the Constitution? Sure it's a Monday, but why does anyone care about this turd arguing against something he clearly doesn't understand?
  • by dfenstrate (202098) <dfenstrate&gmail,com> on Monday October 07, 2013 @10:22AM (#45059243)
    Should I care about his opinion? Well, I read a brief Bio on Wikipedia. While he's performed some impressive work, I don't see why, in the subject at hand, we should take his opinion over an experienced law professors, or even an ex-police officer's opinion.

    Everyone's got a right to their own opinion, Bennett's in this case seems to be no more relevant that a couple college kids in a dorm bullsh*t session. Further, Bennett talks quite a bit about society's interest, which isn't a concern in the original video. It is in the interest of a Lawyer's individual client to not talk to the police- public interest be damned at that point.

  • Too many laws (Score:4, Informative)

    by hawguy (1600213) on Monday October 07, 2013 @10:26AM (#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."

  • by LordKaT (619540) on Monday October 07, 2013 @10:27AM (#45059303) Homepage Journal

    The basic problem with this article - and the authors previous articles - is that they assume that law enforcement, judges, and government are morally just entities who will always attempt to enforce laws based on their spirit and not their own personal ambitions.

    The reason the fifth amendment exists is not to protect criminals from prosecution - as you ignorantly assume in your first article - but to protect innocent people from prosecution from crimes they didn't commit, a protection that lingers from the days of King George. An individual would be forced to admit their guilt one way or another. If they said they were innocent, and lawyers later proved them incorrect, they would be charged with two crimes. Claim guilt and you get no trial.

    This system allowed two charges to be claimed against the perpetrator, who was potentially innocent of the crime but because of policing techniques and lawyers arguments could be found guilty ... and I've yet to see anyone step up and proclaim that policing techniques, no matter how modern, are perfect.

    The ability to choose not to speak up for yourself means police are forced to perform their duties as efficiently and honestly (although that's not always the case) as possible. It's also a good opportunity for your lawyer to talk strategy with you and see what the potential outcomes are of an investigation and trial.

    Really, all this proves is that samzenpus is a naive little child living in a much larger world where he believes the big government is a protective father, and not an entity of politicians, judges, and LEOs. It's a bad trait of smart people who should know better than this.

  • Can we please... (Score:5, Insightful)

    by TrumpetPower! (190615) <ben@trumpetpower.com> on Monday October 07, 2013 @10:27AM (#45059313) Homepage

    Can we please stop giving air to this obnoxious blowhard who's openly and actively campaigning for a full-on totalitarian police state?

    I mean, really. It's one thing to offer up a controversial opinion every now and again to foster click-throughs, but the level of obscene absurdity this Haselton putz has taken it to is out of hand.

    If /. is really dedicated to giving voice to somebody who thinks KGB- and Stasi-style policing are a good idea especially at a time when the NSA is running amok and our police have already been militarized, that'll be the straw that finally pushes me away.

    Yes, Nazis and Nazi-wannabes like Haselton have the right to freedom of expression, even when they're advocating for those rights to be denied everybody else. But I'll not help magnify their voices. And if /. will, I'll exercise my freedom of association and stop associating with /.

    Cheers,

    b&

  • Hearsay. (Score:5, Informative)

    by D'Arque Bishop (84624) on Monday October 07, 2013 @10:28AM (#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.

  • Why risk it? (Score:4, Insightful)

    by MiKM (752717) on Monday October 07, 2013 @10:30AM (#45059355)

    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.

    Would it not be more beneficial for your attorney to arrange some plea deal? As somebody who is not an expert on criminal law, I would keep my mouth shut until I talked to my attorney. I'd let the expert on criminal justice decide if it was worth confessing instead of hoping for the best.

  • by Austrian Anarchy (3010653) on Monday October 07, 2013 @10:31AM (#45059375) Homepage Journal
    From the seasoned defense attorney I know socially, to my son the new lawyer, his fiancée the newer lawyer, family friend the even newer lawyer, to all of the lawyers I have ever hired, they all say "Don't talk to the cops!" They even have a checklist for when the cops talk to you:
    1. "I don't want to talk to you."
    2. "Am I free to go?"
    3. "I want a lawyer."
  • by guruevi (827432) <evi AT smokingcube DOT be> on Monday October 07, 2013 @10:31AM (#45059379) Homepage

    Yes, cops are that stupid and corrupt. The reason that you don't talk to cops is BECAUSE they are stupid and corrupt and even if they aren't one, they can still be the other. Police exams don't pass people that are too smart (http://abcnews.go.com/US/court-oks-barring-high-iqs-cops/story?id=95836) to begin with so you're most likely (99% of the time) dealing with someone of average IQ or LESS than average IQ, someone who didn't score perfectly on an exam about the rights of the people they serve.

    Due to issues with my ex I've been "talking" to cops a lot. Yes, they will take everything you say and distort it through their own lens. If you are a male trying to get justice from a female; the female starts crying or cries abuse and you're pretty much screwed, admitting either before or after that you 'yelled' at someone or stood your ground or bat off a physical attack pretty much screws you over. The fact that she wrestled a child from your arms doesn't even go in the report because they weren't there to see it (unless you have bruises or cuts). I have learned to say the minimal amount of data and facts I need to get an effective police report, write things down in your own words, then go straight to court with it, the police won't help you.

    The reason you don't talk to cops is because there is a chance that you will get screwed over and not a chance that anything you say will be vindicating you. The cops don't HAVE to say anything to help you in court and CANNOT say anything that will help you. Just as your defense has the right to direct witnesses, so does the offense - ever heard "Objection, narrative", "Objection, guiding the witness" - that's what the prosecution will yell if you ask the cop on the stand to tell you what you said, they might just yell objection just to interrupt the story and disconnect the witness and the jury from the story. The prosecution's own re-election is based on CONVICTION rates, not "innocence" rates, they will likewise coach the witness pre-trial not to say certain things.

    Yes, if you're innocent you'll be let go most of the time REGARDLESS of whether you talk. They can't keep you if you're not talking, not talking does not imply that you're not innocent, it only implies that your IQ is higher than that of the cops. The best thing you can do is tough it out until you get to a judge and even then all you CAN do is present and attack evidence.

    If you're guilty and you know it you should wait for a plea bargain, 90% of the cases don't even go to trial these days. If they don't have enough evidence, the case will be dropped and you're off free, if there is enough evidence, your case will be up for a plea bargain before going to trial. This is true even for speeding tickets, the AG will typically offer you a 'disobey traffic device', which is typically a low fine. Going to the judge and letting the cops tell you how cooperative you were is a crapshoot, if the judge is in a bad mood or it's a jury of your peers, it won't matter all that much.

  • by vivaoporto (1064484) on Monday October 07, 2013 @10:33AM (#45059419)
    About talking to cops and the fifth ammendment, it is a good thing you have there in America, the right to remain silent is one of the few thin lines that separates your country from situations like this [aljazeera.com]

    Yet "police throughout [Iraq] continued to use abusive and coerced confessions as methods of investigations," the State Department cites in its latest report, adding, "Credible accounts of abuse and torture during arrest and investigation, in pretrial detention, and after conviction, particularly by police and army were common." The State Department says former prisoners, detainees and human rights groups detail methods including "stress positions, beatings, broken fingers, electric shocks, suffocation, burning, removal of fingernails, suspension from the ceiling, overextending the spine, beatings on the soles of the feet with plastic and metal rods, forcing victims to drink large quantities of water then preventing urination, sexual assault, denial of medical treatment, and death threats."

    Confessions have long been a deliberate element in Iraqi justice, both before and after Saddam's rule. The justice system, based largely on Islamic and tribal tradition, has always placed the importance of confessions above other types of considered evidence. Here, it's called the Master of the Evidence, similar to the Latin phrase Confession est regina probationum, or "Confession is the queen of proofs," which justified the use of forced confessions during the Middle Ages.

    Denying the state the incentive of extracting a confession "by any means necessary" is one of the best gifts your founding fathers left for you. Removing that safeguard from your justice system will certainly be detrimental. You may think it will never be used against the innocent but one should never forget the famous quotation by H. L. Mencken:

    The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.

  • Cops assume guilt (Score:5, Insightful)

    by boristdog (133725) on Monday October 07, 2013 @10:37AM (#45059475)

    Back when I worked IT for a state office I had to report all missing property (usually computer equipment/parts) to the cops. Why? I wondered about it until the first couple times I did it, then I knew why: The cops ALWAYS assume whoever reports the crime was the one who committed the crime.

    Every time I reported something missing I would get pulled into an empty room and literally given the third degree, light in the face and everything. I would be quizzed about my debts, my expenses, my family problems, my drinking/gambling habits, etc. I wold be left in the room alone for 30-40 minutes at a time while I was watched from outside. Sometimes several cops (possibly "detectives") would question me rapid-fire at the same time. It was like they learned to be cops from a TV show.

    So why was I picked to report? Because I was the whitest, most innocent-looking person in the IT department. My boss was black, most of my co-workers were also black, asian or hispanic, some were of middle-eastern or persian descent. I'm sure the cops (all middle-aged white guys) went far easier on me than they would have on my co-workers. But they still tried like hell to pin every crime I reported on me.

    So even as a super-clean, upstanding-citizen-type white guy I learned: DO NOT TALK TO COPS.

    • by h4rr4r (612664)

      Why did you not get a lawyer?

      Here is how that should have went:
      1. Name and Address
      2. Am I under arrest?
      3. Am I free to go?
      4. I want a lawyer

  • by sunking2 (521698) on Monday October 07, 2013 @10:38AM (#45059497)
    Wishing for the days of Jon Katz submissions.
  • by jimbolauski (882977) on Monday October 07, 2013 @10:39AM (#45059521) Journal
    The risk for an innocent person talking to police if very high, an innocent person only gains not having to retain a lawyer IF the police find their statement creditable. The cost to society does not factor into this decision as the 5th amendment is about personal freedoms and personal protection. What the 5th amendment protects against is silence being used against you in a trial, "he refused to answer questions so that must mean he is guilty mentality". Situations where the innocent person may not recall events perfectly and is now forced to testify would become damming evidence of their guilt. That is what the 5th amendment protects against, it protects innocent people from an imperfect system. The downside is that guilty people can exploit that, but I value the rights of the innocent over the Greater Good of society.
  • Corruption (Score:4, Interesting)

    by twmcneil (942300) on Monday October 07, 2013 @10:41AM (#45059539)

    Do you still trust those same police officers to handle the other aspects of your case fairly?

    Nope.

    To make sure any exculpatory evidence is brought to light?

    Nope.

    To interrogate other witnesses without leading them towards a pre-set conclusion?

    And... No.

    I have been a juror on criminal trials and I am always surprised at how hard it is to tell the difference between the cops and the criminals.

  • by h4rr4r (612664) on Monday October 07, 2013 @10:43AM (#45059579)

    You are an adult right?
    You really believe this crap?

    You think no innocent person was ever charged and had to get a lawyer?

    I am about the whitest guy ever, but this level of naivety is unbelievable in an adult.

    Never talk to the cops, yes even if you are not the guilty party. They will pin something on you, they want to get arrests not the right people. It is a numbers game, they need arrests not convictions. The DA needs convictions and if the cops arrested you he will try to get one.

  • Answers (Score:4, Interesting)

    by Hatta (162192) on Monday October 07, 2013 @10:45AM (#45059597) Journal

    1) You ignore the costs to society of coerced confessions.

    2) Some fraction of those who speak to cops suffer. The amount they suffer is quite high, so even if that is a small fraction, speaking to cops is still a high risk activity. There is little to be gained from speaking with cops, so the cost benefit analysis does not work out in favor of speaking with cops.

    You have a point here, that the numbers we have don't let us do the actual math. But by estimation, I think it's a firm no.

    3) Leniancy is a lie cops tell you to get you to confess.

    4) That situation is indeed possible in a coutroom.

    5) Yes. And so are the judges, attorneys, and members of the jury.

  • by GodfatherofSoul (174979) on Monday October 07, 2013 @11:07AM (#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.

  • by Just Some Guy (3352) <kirk+slashdot@strauser.com> on Monday October 07, 2013 @11:14AM (#45059923) Homepage Journal

    Which society do you want to live in:

    a. One where police can compel anyone to give testimony about themselves so that all crimes are solved by someone confessing to them, or
    b. One where innocent people have the right to STFU and the state is required to actually do police work, interview witnesses, gather evidence, and otherwise build a case against suspects?

    The only way you can be opposed to the 5th amendment right not to incriminate yourself is to be completely ignorant of history and utterly devoid of imagination. Frankly, there wasn't a single argument above that wasn't utter bullshit, a troll, or the ramblings of someone who wanted to take a contrary stance just for the sake of being contrary.

  • by PPH (736903) on Monday October 07, 2013 @11:18AM (#45059979)

    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."

    The determination of guilt/innocence isn't the cops job. They are there to round up suspects and collect evidence to support a prosecutor's court case. Being in a police interrogation room implies a type of detention. Technically, you are in police custody and that can escalate into an 'official' arrest at any time the police officer desires. If they just need some information from you, they can meet you at some public* place.

    * Don't invite them into your home. Once they've got their foot in the door, it can be difficult to get them back out. All they have to do is to declare your residence as some sort of crime scene. Your best bet is to meet in the establishment of some (friendly) third party. You can sit down over a cup of coffee and answer all the questions you want. But if the interview seems to go against you, you give your buddy a sign and he withdraws the invitation for the police officer to be on his premises. The cops leaves or he gets charged with trespassing.

  • Oh God.. (Score:5, Insightful)

    by gallondr00nk (868673) on Monday October 07, 2013 @11:18AM (#45059985)

    Not this shit again.

    Let me condense the argument. I, as an individual, want as many rights and protections as possible. I couldn't give a toss if there's an argument that they're redundant, I'd rather have the rights than not.

    That means advocating that other people should have more rights too. Yes, even bad people. A right that is occasionally abused doesn't mean a de facto argument for its removal.

    Isn't the balance of power between the individual and enormous entities (government, corporations etc.) imbalanced enough without advocating for the removal of more rights?

  • by SoTerrified (660807) on Monday October 07, 2013 @11:28AM (#45060119)

    ...then what the people making this argument are really saying, is that the whole system is broken.

    I read most of the way through your rebuttal, only to find you making the very point that completely invalidates your rebuttal. And that's the truth, the system is broken. Maybe at some hypothetical point in history, the point was to find the criminal. But now, the system is focused on getting a conviction. Any conviction will do. You don't just get charged with *a* crime anymore. Instead, even a minor incident can see you charged with 10-15 separate crimes. Why? Because even if you are innocent of the main crime, they hope that at least one will 'stick' so they can justify their time and energy. No concern is made as to how innocent or guilty you might be. They just want to get you with something.

  • by Dracolytch (714699) on Monday October 07, 2013 @11:33AM (#45060187) Homepage

    "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."

    No. No no no. A thousand times no. If the cops are talking to you about something that could involve a prison sentence, you SHUT THE HELL UP, and you only talk to your LAWYER. You're out of your depth, and the cops do this every day. The point is you have NO MECHANISM to be 99% sure the cops will find enough evidence, and fear of prosecution / hope for leniency are EXACTLY the tools and emotions police use to get confessions in an interview. Keep your mouth SHUT and talk to your lawyer to find out what's really going on, and what you should be doing.

    This is NOT the same as a speeding ticket. If you end up with the worst possible punishment for the average speeding ticket, you'll be inconvenienced but otherwise just fine.

  • by Kjella (173770) on Monday October 07, 2013 @11:46AM (#45060377) Homepage

    Duane spends about thirty seconds of his entire lecture talking about why the fifth amendment exists, then the rest of the time saying that if you have it use it because whether you're guilty or innocent you're better off than if you don't. In the supreme court's own words "one of the Fifth Amendment's basic functions ... is to protect innocent men ... who otherwise might be ensnared by ambiguous circumstances." Or as Cardinal Richelieu put it, "Give me six words of an innocent man, and I will find something in them with which to hang him" Your own words contribute nothing to your defense but can easily be used as circumstantial evidence to convict, for example if you know you are innocent but you are a suspect and was very near the scene of the crime but there's no witnesses to that. Are you going to give the jury rope to hang you by or make yourself a felon?

    You are already making the "information-less" guilty plea, if you plead not guilty but the court ends up finding you guilty anyway that's sort of saying you were lying. Anything else you're trying to do by compelling the accused is to try to extract information from him that could be used to catch him in a lie about something else. I hope Bennet Haselton gets stuck between a rock and a hard place and get the choice between having to answer true, appear guilty and go to jail or lie, get caught and go to jail. Maybe from his jail cell he can get a new perspective on the meaning and purpose of the fifth amendment.

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

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

  • SHUT UP (Score:4, Informative)

    by Erbo (384) <obreerbo@g m a il.com> on Monday October 07, 2013 @12:37PM (#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])

  • You're an idiot (Score:5, Interesting)

    by Lithdren (605362) on Monday October 07, 2013 @12:41PM (#45061185)

    This guy is known for running a website that supports the First Amendment but he argues that the Fifth is a a detriment to society?

    So you have the right to openly and freely speak your mind, but you dont have the right to NOT openly and freely speak your mind? Could you please cite some arguments on how these two views dont completly contradict one another?

    Or are you just speaking out your back end? I'll simply asume you're wrong until you speak to me directly about it, because clearly by choosing not to speak you are admiting I am correct. See how that works?

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