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#203884 - 06/24/10 12:03 PM Re: A couple of videos I saw today [Re: oldsoldier]
bws48 Offline
Old Hand

Registered: 08/18/07
Posts: 831
Loc: Anne Arundel County, Maryland
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."
"Better is the enemy of good enough."

#203886 - 06/24/10 12:50 PM Re: A couple of videos I saw today [Re: bws48]
TheSock Offline

Registered: 11/13/07
Posts: 471
Loc: London England

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
The world is in haste and nears its end – Wulfstan II Archbishop of York 1014.

#203888 - 06/24/10 02:00 PM Re: A couple of videos I saw today [Re: TheSock]
roberttheiii Offline

Registered: 02/13/09
Posts: 350
Loc: Connecticut, USA
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.

#203970 - 06/26/10 10:20 PM Re: A couple of videos I saw today [Re: oldsoldier]
EMPnotImplyNuclear Offline

Registered: 09/10/08
Posts: 377
Originally Posted By: oldsoldier
So, you silence, in the end, could incriminate you.

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
Originally Posted By: http://www.washingtonpost.com/wp-dyn/content/article/2010/03/24/AR2010032402907_3.html

1. Always be calm and cool.

2. You have the right to remain silent.

3. You have the right to refuse searches.

4. Don't get tricked into waiving your rights.

5. Determine if you're free to go.

6. Don't do anything illegal.

7. Don't run.

8. Never touch a cop.

9. Report misconduct: Be a good witness.

10. You don't have to let them in.

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