A couple of videos I saw today

Not really sure these are pertinent to the forum, but they were pretty interesting.

Don't talk to the police - Part 1

Don't talk to the police - part 2

I didn't have the patience to sit through the full 49 minutes but if the professor continued as he started. I.e he would never talk to a police officer. That is bad advice.

"So you say you shot a 'mugger with a knife'. But no one can back up your story and there's no knife.

Now you are telling us you could have pointed out the knife got thrown across the street in the struggle and if we'd looked at the time we'd have found it and his dna on it. But a passer-by must have picked it up since
And you could have told us a crowd saw the whole thing and if questioned could have verified your story?
And you could have told us his cronies were heading up the street and we could have caught them.
But you chose not to tell us any of these things that would have proved your innocence. So what we have is you admitting to shooting a man who we have no evidence was an armed threat to you.
Congratulations on standing up for your right to silence!
Do you like prison food?"

The Sock

I watched the videos and the second one especially is funny.
Worth watching if you think you could not give yourself away in a police interview.
But the lecturers claim that no one has ever talked themselves out of being arrested is simply untrue.
When I wore the blue I didn't arrest many people because of what they said to me.
Brilliant defenses like
'no I'm not him, he lives next door'
'no that's my brother, he's in the kitchen'
'no i wasn't involved in any fight down the road, I've just come out of that pub where I was all night. The staff will confirm that.

Of course if you ARE guilty. Shut up. They shouldn't even know what your voice sounds like if they only meet you in the interview room.

The Sock

Sock, different recommendations for different judicial systems. I don't doubt your advice is helpful in the UK.

Here in the USA we have no expectation or obligation to "prove our innocence." Even though the video speech-rate was amazing, the content was the same as I've heard again and again both from attorneys and from law enforcement officers. If THEY were the ones being questioned, they wouldn't talk without an attorney. But that's here in the USA and not in your country, so I don't presume to contradict you.

A fellow officer once got involved in an off duty shooting. When the officers (from a different agency) arrived at the scene, the shooter would not tell them anything. The victim, now missing two fingers (thanks to grabbing the muzzle of a loaded, off safety shotgun and yanking), just said "he shot me." Witnesses, all friends of the victim, all said "he shot him." So the officer got booked for ADW. Later, when his association rep (kinda like a union rep) arrived and talked to him, the officer then told how he was trying to make an off duty arrest and the victim grabbed his weapon (there might be a little more to the story, but that is not important here). Cell door open, home he went. But only after spending a night in jail, which is never fun. Had he told his story first, he never would have seen the inside of the cell...

Atually Naro the shooting scenario is a quote from massad ayoob the US gun writer.
But i appreciate what you say. our caution on arrest goes:

'You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.'

So you could go to court with 6 people providing an alibi
and the judge (note not the prosection; the judge!) will be pointing out you sat in a police station for a week without telling them you had an alibi and now suddenly when
you have had the opportunity to brief them they turn up. And they should regard that as an indication of guilt.

Maybe you have a right to silence that can't be used against you.
But as OBG says when it's a simple matter of explaning why not talk?
The Sock

I have shot, fatally, in self defense. The county prosecutor, an elected politician, turned a situation the police, a major city homicide detail, considered clear self defense into a homicide prosecution to appease community activists (long before Niphong).

I was eventually acquitted by a jury that also found self defense. The prosecution, with a 911 call before the incident in my favor, eye witnesses supporting self defense and the forensic evidence in my favor, tried to twist my words to make me the aggressor.

One lesson I took from my experience, tell the officer's who respond that you acted in self defense and then shut up until you have an attorney. The second lesson, have a lawyer familiar with self defense before you need her...

Doug

Welcome Newguy! Glad your incident turned out the way it did...

I think Doug has it. When you meet the officers tell them what it's in your interest for them to know.
At the interview stage; shut up till you have a lawyer there.
Like the videos said I've never known anyone in an interview room talk themselves out of trouble.
The videos don't clearly distinguish between the intial meeting with the police and the interview stage.
But spending a week in a cell because you refused to say 'no he lives next door' is silly.
Sorry you got lumbered with the adversial court system Doug. Britains worst contribution to it's former colonies!
The Sock

In my case, as least, the adversarial system worked. And in hind sight being tried and acquitted was probably better than not being charged. In some states, like Michigan, not being charged leaves the record open and it can never be expunged. It can follow you the rest of your life (it does anyway, but nice to close the official record.

Acquittal is final judgment. More over the state where I was tried had law providing for specific verdict in cases of self defense. I was not just acquitted because the prosecution couldn't prove guilt beyond a reasonable doubt. I was acquitted by a jury verdict that I had proved by preponderance of the evidence that I was in danger of being killed or great bodily harm, I did nothing to provoke or invite that danger and I used only the force reasonably necessary.

It is just like any other situation one may be have to survive. It helps to be equipped both mentally and physically. And like any other disaster, it isn't something I'd wish on anyone. I was a college student and apartment manager at the time, but before going to college had served 4 years in the Marines and been a small town police officer for a couple years. That training and experience prepared me for a situation where most other college students would have just become another violent crime statistic.

But I wasn't prepared to survive the legal battle that followed. I got lucky, and by serendipity, was socially acquainted with a good lawyer. I was also lucky to have the emotional and financial support of my employer and family.

Doug

Ignatius Piazza told me several years ago during a Front Sight 4 day defensive handgun course that the moment you use lethal force to protect your life or the life of another, plan on spending $50-$100k in legal fees to defend yourself in criminal and/or civil litigation. He also suggested that your past better be squeaky clean when you decide to pull the trigger, because any dirt that can be dragged up by a prosecutor/plaintiff's attorney most certainly will be.

I'm amazed anytime I see someone posting their latest firearm modification on the internet. The absolute last thing in the world that you would ever want to do while defending yourself in court for the use of deadly force is to explain why you reduced the trigger pull/throw, explain away the mall ninja cell phone photographs that you posted of yourself in the mirror with your latest tactical vest, or anything else that made it appear that you had bought a bunch of gear and were just itching to use it.

Jim

I've given up explaining that on this site Paragon. People think by saying you don't have a gun purely to kill, you are advising to shoot to wound.
They repeatedly insiste on a public web site that one can only have a gun to kill people but are expecting a jury to believe they tried to disarm a burglar, only shot when they were forced to and stopped shooting as soon as he was incapacitated.
The Sock

I have no qualifications to comment on this but I just have to ask...

So, Mr. Sock, did you shoot to kill him?
No, not at all, I only wanted to stop him.
But surely you knew that he would be likely to die as a result of your shooting?
Well, yes, I guess so...
So, you only neeeded to stop him, but you shot and killed him, anyway? I rest my case, your honor.

--OR--

So, Mr. Sock, did you shoot to kill him?
Yes.
But why?
I didn't want to, but the only way left to stop him was to kill him.


I'm not a lawer or a judge, but I might be a jury member some day.

Great point Tom, and one my attorney made before trial. It isn't always what you say, but the way you say it.

Questioners, whether police or prosecutor will often try to get you to say something in a way that looks bad for you. In addition to the previous advise about having an attorney, remember, you control the questioning.

Take your time and consider each question. You can decline to answer the question as stated or ask for the question to be stated differently if it is loaded or misleading or requires you to give an incomplete and misleading answer. Don't argue, just state you can't answer the question that was asked. You don't have to answer yes or no to a question that requires explanation.... "I didn't shoot with the intention to kill, I shot for center mass to stop as I have been trained to..." "I fired two shots, as I've been trained, paused to reassess the situation and fired another shot as it appeared the attacker was still coming at me...." There will be lots of loaded questions trying to trick you into admitting something.

And when you have a prosecutor who is trying to fluster you or make you angry during cross-examination, like I did, it frustrates the hell out of them to have to slow down and restate questions so you can answer accurately and completely.

But on TV the attorney is always cutting off the witness and shouting "Just answer yes or no!"

I am a lawyer and a concealed permit holder. Fortunately, in my community, the authorities and jurors seem to grasp the basic concepts of armed self-defense.

If, God forbid, I am forced into a situation where my only remaining reasonable option to prevent imminent death or incapacitation by an attacker is the use of deadly force, my intention will be solely to stop the attack. I have no desire to harm anyone, much less kill a fellow human being.

But I already made a decision that I will defend my life, if forced to, with deadly force, when I decided to own and carry a firearm for self defense. If an aggressor's death is the tragic result of that, I will have to be be prepared to live with all the psychological, legal and moral consequences of my decision. But I will live.

I understand that the proper and accepted technique is to shoot center of mass, and to keep shooting until the attack STOPS. That's how I have been trained, and that's how I practice, and I pray that's how I will perform if my life ever depends upon it.

I deeply and sincerely pray that it never, ever, comes to that. But my decision is already made. I will live, for myself, for my wife, and for my family. A robber can have my stuff, a carjacker can have my car, a bully can insult me or push me around. If I can avoid using deadly force, I will.

But if I must, I will. Hopefully, the facts will be clear, the aggressor will survive, and my actions will be judged as legally and morally justified.

Jeff

The basic premise of the force continuum (force pyramid, etc.) be it for a LEO, a soldier, or simply an average law abiding citizen, is defensive, and only authorizes the use of as much force as is appropriate for a given situation.

Although it varies from state to state, the moral and ethical use of lethal force (or deadly force, or whatever it is termed where you happen to live) is generally authorized only when:

• There is a real and immediate threat of death, serious injury, or sexual assault such that a normal person believes deadly force is necessary.
• The threat must be otherwise unavoidable (except for "castle doctrine" exceptions that stipulate one need not retreat from their residence).
• You must not have instigated the dispute (often may not apply to sworn LEO's).
• You cannot use more force than is necessary.

Most jurisdictions actually define lethal force to be anything that is "likely to result in death or serious/permanent injury". Technically, most police departments consider striking someone on the head (or knee, or any other bony area) with an impact weapon constitutes the use of lethal force.

Even though there is a very high probability that a double tap to the thoracic cavity (or cranial ocular cavity for someone wearing body armor) will result in death, the intent is merely to stop someone's action. Whether someone lives or dies as a result of being shot should not be of any consequence whatsoever, so long as the immediate threat is stopped.

DISCLAIMER: Every situation is unique, and laws vary greatly from state to state, so do not rely on anything that you think that you know or understand regarding the use of deadly force without first consulting an attorney familiar with the laws of your particular jurisdiction.

Jim

Well stated, and I concur, including the disclaimer.

Jeff

You'd have to be a pretty dumb jury member to fall for that twisting of what I said.
If I was asked 'But surely you knew that he would be likely to die as a result of your shooting?' I'd answer the truth: 'No I didn't. There are plenty of places in the centre of the body you can get shot without dying and that's where I aimed like the police recommended firearms course I took advised me to'.
To the question 'did you shoot to kill him?' I'd answer the truth: 'no, I shot to stop. As soon as he stopped I stopped shooting. See the answer to my your previous question as to whether he was bound to die by being hit in the main body mass'.
The Sock

That's what cross or redirect examination is for, explaining and expanding your answers to opposing counsel's hostile questions with the friendly and intelligent guidance of your own attorney.

Jeff

Attorneys are notorius for asking loaded, complex, and presupposed questions in order to shape their argument. Questions such as these oftentimes cannot be answered with either a yes or no answer.

Yes or no -- are you still beating your wife?

Jim

The classic loaded self-defense question -

Do you think that you could have escaped the situation by some means other than shooting?

As soon as a prosecutor starts selling hypothetical alternate actions you could have taken, you are done...

Doug

Absolutely; don't ramble, don't volunteer any information you don't have to and never hypothesise. I gave my two answers to the theoretical ones a laywer might ask fuller than i would for the sake of brevity here.
In reality my answer to both would have been 'no' and then leave it up to the lawyer to prove otherwise. I don't have to give a medical opinion.

The Sock

IMO, like many other things in life, you need to find a balance. In this case the balance in between 1)saying nothing or 2)getting diarrhea of the mouth.

This is also one of those issues where the local legal & political climate can influence what is appropriate.

Resurrecting an old thread in light of recent events:

From the New York Times 1st June 2010

"A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police”

- quote from Supreme Court Judge on a recent decision.

In other words if you want to remain silent you have to speak up!
Else an unthinking answer you give in response to questioning (easier to do than you think), can be used against you. Say "I wish to remain silent".
The Sock

+1, and something else to remember here in the U.S.:

Despite what you see on TV every day, the police cannot take you into the station for "questioning." You can refuse. If they do take you, you are then under arrest, whether they "book" you or not. You must now recognize that you are under arrest: See The Sock's advice and call an attorney.

Also, it is permissible, legal and done all the time for the police to lie to you during any questioning, trying to get you confused, worried and/or trap you into saying something you should not have said. If you are going to be questioned, have your attorney present. If he is not there, see The Sock's advice.

In terms of preparation, IMO you should have the name and number of a reliable attorney available, even if he is not doing criminal law: he will know someone who does. In the meantime, he can protect your rights.

While I am not an attorney - thus do not take this as legal advice, if I were taken into custody I would invoke my right to council. Invoking my right to remain silent is almost useless in my readings - the right to council is key.

Also - re attorneys asking "loaded questions", I believe they can only ask what everyone is referring to as "loaded" against a hostile witness. So that would be a witness for the otherside on cross or your own witness who refuses to cooperate. If you see an attorney asking their own non-hostile witness leading questions in real life I think someone may be missing an opportunity to object.

R

Very true bss48.
In the UK too the only way you can be made to attend a police station for questioning is by being arrested. So unless they arrest you; say you'll attend tomorrow. And bring a solicitor with you (if he thinks you should go).
Even if arrested you don't have to answer any questions. They can play good cop/bad cop, leave questions hanging, pretend they are about to hit you, all they want. Every interview technique meets a brick wall with silence. If you aren't arrested you can end the interview by simply saying I'm leaving now.
A lot of people go to prison because of what they said to the police. Remember the police can't fine you a penny, or sentence you to a minute in prison. Only a court can do that.
So don't try and convince them you are innocent unless it's provable. Their opinion doesn't matter. Don't try and be clever; don't try and outwit them. Simply shut up!
Here's just some of the statements that sound like they might help you and what they actually mean:
"I didn't want to get involved" is an admission you were involved.
"I didn't mean to hit him that hard" is an admission you hit him too hard.
"I was led into this by my companions" is an admission you were involved in it and are one of a bad company.
"I don't want to answer any questions officer: I'm still in shock from the shooting" is an admission you are not in a fit state to be a reliable witness.
Even not answering a question can be a tacit admission like the hilarous actual cross examination one sometimes sees on the net:
Q: "were you unfaithful to your husband in Los Angeles?"
A: "I wish to use my right to silence"
Q: "were you unfaithful to your husband in San Diego?"
A: "I wish to use my right to silence"
Q: "were you unfaithful to your husband in Hooverville
A: "No"
See the video for lots of other nightmarish examples of how innocent words can come back to haunt you.
The Sock

Um, you can be detained for up to 48 hours, I believe, for questioning, without being arrested. I believe the law reads that, providing an officer states otherwise, once handcuffs are placed on a person, a "reasonable person" assumes he is under arrest. Now, here is how that would break down:
You are a witness to a crime. You are suspicious towards LE. You also vaguely fit the description of a suspect (be it clothing, race, car, etc). Officers arriving on the scene secure the scene for THEIR safety. They put handcuffs on you, for their protection, and yours, and state as such-making it clear you are NOT under arrest. They ask you for a statement, which you refuse to give. They then have the obligation to take you in for questioning, knowing that they can only hold you for X amount of time. And, knowing you are a witness, refusing to cooperate. Technically, you ARE committing a crime, by harboring information, thus a criminal. So, doing their duty, they will detain & question for as long as the law allows.
what is said during transport, or anywhere else, is all admissable as evidence. Its all voluntary-the Miranda warning isnt in effect, as there isnt an arrest at that point.
I am not a lawyer, by ANY means. But I believe that the court system has already ruled when one is, or is not, under arrest. You do have the right to remain silent-even is you are just being PC'ed. But if it comes out later that you withheld information, then you will be brought up on charges. So, you silence, in the end, could incriminate you.

I'm not sure I understand what you mean with "hostile witness". I am pretty sure that if you ever find yourself the main focus of the legal system, you will face questions that are loaded, twisted and made to appear YOU look guilty. And not only from an attorney:

The police will also ask you loaded and leading questions, see TheSock's examples or the video.

If you are in deed innocent you need to realize that the police do not think so - or they would let you go. If the police think you did something it is their job to gather evidence to prove that you did it. You may think they also should gather evidence that you're innocent, but that's not how it works. They work as hard as they can to blame whatever wrong that's been done on YOU. Your mouth blabbing away only makes that job easier.

I'm all for being an honest and helpful citizen and helping the police. But you need to realize that if you find yourself in incriminating circumstances the police are not your friend.

That being said, denying the on-scene officer vital information seems rather unproductive, too. Three of them, went that way, one armed with whatever

EDIT: OldSoldier brings up an important point - your legal status and your obligations as a witness versus your legal status when under arrest. Yet another reason to bring in legal councel. It is not about obstructing police work - it is about not worsening your situation by talking yourself into traps set up by professional interrogators.

Um,probably need an expert here, but my understanding is that the Supreme Court has said that once you are not permitted, or reasonably believe you are not permitted to walk away from the police, you are under arrest. Period. Thus, putting you in handcuffs means you are not free to leave and are under arrest, no matter what they say. (they are allowed to lie, remember)

Once you are under arrest, all of your constitutional rights are in force, e.g. right to silence, right to council etc.

So, no, as far as I understand, detaining you for 48 hours for questioning is an arrest.

And if asserting your rights makes them suspicious, so be it. I'd rather that then say something stupid that will make me look guilty later in Court.

In your scenario, they would need probable cause to arrest and hold you. Your scenario makes it clear that there is some evidence that you could have committed the crime. That (they would argue) is their probable cause for the arrest: that you committed the crime. They cannot arrest you for not answering their questions. You are under no legal obligation to respond. In some cases, if you do choose to respond, you can be criminally liable if you lie or deceive with your answers. But if you witnessed a crime and simply don't want to answer and walk away, you are not committing a crime and they can't arrest and hold you "for questioning."

Old Soldier wrote:
'silence, in the end, could incriminate you'.

absolutely correct! Which is why I wrote:
'don't try and convince them you are innocent unless it's provable'.
If it is provable; tell them everything useful to yourself. As I wrote in the second post on this thread.

Virtually everything else he wrote is wrong I'm afraid. You can't be kept and handcuffed without being arrested. You can't be charged with 'harbouring information' by keeping silent.
The Sock

A few comments, none of which are legal advice, talk to your attorney, this is all academic based on things I’ve read and been told and not applicable to real life:

1) The holding period cannot be simply summarized nationwide. For example, by statute, in Massachusetts I believe you have to be arraigned within 24 hours unless there are extraordinary circumstances, or you waive the right. I believe Police questioning must be complete within 6 hours of arrest again, unless you waive the right. I encourage someone to check the state statute on that
2) Again this is all based on my understanding and is not legal advice, exercising your Fifth Amendment right to silence cannot be used as evidence against you. Where you may find yourself in trouble is if you give an incomplete or inaccurate story and swear to it.
3) You should do whatever your attorney tells you, but if I’m ever handcuffed for any reason or I have my freedom of movement restricted, regardless of whether or not I’m told I’m under arrest I’ll consider myself under arrest and I’ll request council immediately. I will not answer any questions regardless of benign they may or may not seem, without my council present.
4) People may have heard of situations where police can, say, question without reading Miranda rights and obtaining a waiver and evidence still comes in. These situations may exist, for example, physical evidence found as a result of a bad interrogation or “fruit of a poisonous tree” will likely be admitted, as will evidence obtained in questioning when public safety is a concern.
5) By “hostile witness” I mean one that is not cooperative. Generally this means the other side’s witness. Say you’re a prosecutor, when you cross examine the defense’s witness they’re likely to be hostile. That said, as defense council you might call a police officer to the stand that the prosecution did not who may go against your cause, as far as I understand it, that person may be a “hostile witness” as they may not give cooperative answers to questions.

Most importantly, remember talk to your attorney, this is all academic based on things I’ve read and been told and not applicable to real life. I am not an attorney; this post merely reflects how I intend to handle myself in a police interaction, not because I don’t want to be helpful but because it is how I understand police/citizen interactions to work. You should seek legal council to determine how you might interact with law enforcement in a situation.

Sorry, no, your silence can never incriminate you. Identify yourself, assert your rights, ask for your lawyer.

Hi, my name is Your Name, and I cannot answer any questions without my lawyer. I am asserting all my constitutional rights and I want my lawyer, now am I free to go or an I under arrest? and where is my lawyer?

How to Flex Your Rights During Police Encounters