Tuesday, December 1, 2009

Your right to remain silent when questioned by a police officer

If you haven't actually been interviewed by a detective you most likely have seen a police interview portrayed in a movie or television show. Some times the portrayal is very realistic and others times far from reality.

Before continuing I would like for you to take a simple eight question multiple choice survey about the right to remain silent when being questioned by a police officer. Please do not complete the survey after reading this article as it will skew the results. Each question has a 'most correct' answer but this survey is designed to measure common knowledge of the population prior to reading this article.

Access the survey here.

I was drawn to this topic by the recent perjured statements made by Colfax Indiana Marshal Duane Lewellen to the United States District Court for the Southern District of Indiana. More about that is available here. Lewellen had come to my house and asked about a political sign. He then lied about it to the court.

I am reminded that there is no circumstance in which a person should consent to a police interview unless immunity has been granted. There are two phenomena that occur within policing that raise concern and require that you not consent to a police interview. The first is what is known as "testilying" and occurs as part of the police training process.

Testilying is the act of police officers going into court or giving depositions in which the officers fails to abide by his oath to "tell the truth, the whole truth and nothing but the truth". This is often manifested by the omission of exculpatory evidence, statements or events. It can range from simply having "no recollection" of events favourable to you up to saying that you admitted to the crime when you did nothing more than say you want to speak to a lawyer.

Here is an example of "testilying" and just one of the reasons why you don't want to speak to the police. You are asked about a guy who was severely beaten in the parking lot outside a bar after being seen with you inside. During questioning, which you are told is part of gathering "witness statements" you tell the investigator, "I have no idea who could have done it. I didn't see anyone with him. You know, it could have been anyone. He was always arguing and getting into fights. I mean, we were arguing about his girlfriend that night right before he walked out. She had been in there earlier and he smacked her for dancing with some guy and then threatened him. The two of them left and I told him you can't just hit a woman like that. He got all irritated with me and left."

This sounds like helpful information to the police. You have provided information that he gets in lots of fights and had just hit his girlfriend and threatened the guy she was with right before he left the bar. But after the prosecutor finds out that you had been fired from the victim's construction company a week earlier the case takes a different turn. At your trial the officer testifies that, "The suspect told me that he and the victim had been arguing over his girlfriend right before the victim left the bar." Sounds like your "helpful" statement is being used against you.

Another thing that causes officers to target the innocent is "noble cause corruption" [NCC] which is basically a breaking of the rules with an intent to uphold the greater goal of protecting society. Street-level NCC occurs when officers plant evidence, use their “sixth sense” as opposed to establishing probable cause facts, describe the elements of a misdemeanor in such a way that it becomes a felony, and commit "testilying".  All of these are police felonies based on the passion to prevent crime, a rationale that is the linchpin of noble cause corruption.

Although not all officers engage in NCC it is still pervasive and often acquiesced by other officers and administrators. Just look at the Rodney King incident as an example. Police reports put the speed King was driving at 110mph plus in a Hyundai. Officers from three police departments observed a felony in progress, the illegal beating of King, and either participated or did nothing to stop it. These officers have rationalized such willful actions as an ends-justify-the-means rationale, arguing that their necessary violations result in societal predators being incarcerated for as long as possible.  However, our entire criminal justice system is based on the premise that all police officers always tell the truth. The informed populace knows this to not be true.

So, what should you do when the police attempt to or request to interview you? The first thing to do is ask for immunity and then a lawyer. The purpose for the Fifth Amendment protection against self incrimination is to protect the innocent. In Ullman v US [350 US 422 (1956)] the US Supreme Court said, "This constitutional protection must not be interpreted in a hostile or niggardly spirit. Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege. Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States." In Ohio v Reiner [532 US 17 (2001)] the US Supreme Court said, "This Court has never held, however, that the privilege is unavailable to those who claim innocence. To the contrary, the Court has emphasized that one of the Fifth Amendment's basic functions is to protect innocent persons who might otherwise be ensnared by ambiguous circumstances."

Before questioning an interviewee the police are required to read a Miranda Warning. The Miranda Warning is not a right but an explanation of a right. It came about in 1966 as a result of the decision in Miranda v Arizona. Police were able to take advantage of the fact that not everyone knows their rights by heart. In fact, it is likely that most citizens could name a few of their rights as accused criminals, but not all of them. The police's position was that if the accused, for example, spoke about a crime without knowing that they did not need to, that it was the person's fault for not invoking that right, even if he or she did not know, or did not remember, that the right was available.

Misinformation is common about police techniques and the rights of citizen's. I have seen it in many movies and still hear often that "If you ask the cop a question he has to answer truthfully." That is simply not true. Sometimes an officer may say that the questions are "off the record". There is no such thing as "off the record" when talking to a police officer. The courts have ruled that there is no misconduct in police interviewers lying to suspects to elicit information and statements obtained through deceit can be used just as readily as others. United States v. Montgomery, 555 F.3d 623 (7th Cir. 2009).

When it comes to police interviews there is no such thing as an obligation to be helpful, polite, cooperative or to attend. Keep in mind that when the Miranda Warning is read that the police are telling you their bias up front. The purpose of the interview is to gain information to use "against you in a court of law."

Although you may feel that you have nothing to hide, are innocent, haven't done anything wrong, want to help, can talk your way out of it or that cooperating will get you favour with the court, none of that can help you as much as staying silent. Consider your odds of being able to outfox the interviewer. This is someone who has been trained to conduct interviews; knows how to get a subject to relax, can lie to you with a straight face and is willing to get paid overtime until he or she gets you to admit to something just to be able to leave.

If you think you could be pulled off a basketball court, handed a set of clubs and beat Tiger Woods or get yanked off your couch, put in a racecar and beat Michael Schumacher then by all means consent to a police interview. If you don't have those abilities then don't take a chance with your freedom by consenting to a police interview. Demand immunity and then a lawyer.

If you have been accused of a crime, charged, arrested or requested to consent to an interview by police you should contact me immediately.


Indiana Custodial Rights Advocates

©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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