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On Talking to Police

The lecture by Professor James Duane about why you should not talk to the police (in the US at least) is doing the rounds at the moment. The Google video site doesn’t work for me, so I downloaded it from youtube with the following references:
part 1 [rVq6N0xAEEM]
part 2 [-Z0bpj3EEHI]
part 3 [44-GSZofXIE]
part 4 [zSvxiaO-TG8]
part 5 [gzYHnWrqfWg]
part 6 [BErNzdOnWGY]

The first thing that struck me about this is that it’s the first time I’ve ever seen someone clearly state the problem with the excessive number and complexity of the laws. It’s impossible to know whether you are breaking the law. This is obviously wrong and it should be a legislative priority to reduce the number of laws and the complexity of the laws. If for every law they sought evidence regarding whether it helped people or helped preserve the state then that would be a good start.

The excessive number of laws is not just a problem due to the risk of accidentally breaking a law, but also due to the fact that a malicious cop could arrest anyone that they wished – it would merely be a matter of following them for long enough. In the second half of the lecture Officer George Bruch from the Virginia Beach Police Department gives his side of the story. At one point he cites an example of the road laws where he can follow a car and find a legitimate reason for booking the driver if he wishes.

Virginian law allows the police to destroy primary evidence. If they tape an interview then they can transcribe it to a written record and then destroy the original tape. If the transcription removes some of the content that has meaning then the defendant is probably going to suffer for it. It’s often stated that on the net you have to make extra effort to make your meaning clear as jokes can’t be recognised by the tone of voice. It seems that the same effort would need to be made in a police interview (but without the possibility of going back and saying “sorry I was misunderstood” that you have in email).

It’s also legal for police to lie to suspects. While I can imagine some situations where this could be reasonable, it seems that at a minimum there should be some protection for child suspects against being lied to by police (there have been some travesties of justice stemming from children trusting police in an interview room).

It seems that if someone doesn’t get a good lawyer and refuse to talk to the police then they will be likely to be convicted regardless of whether they are guilty or innocent. Officer Bruch says that he tries to avoid interviewing innocent people. So I guess whether someone ends up in jail or not will depend to some extent on the opinion of a cop who may or may not interview them.

While I guess a high rate of success at securing convictions is in most cases a good thing, the fact that convicting an innocent person is the absolute best way of letting a criminal escape justice seems to be forgotten.

Another issue is the fact that a witness may have reason to believe that they could be a suspect. The advice that a suspect should never talk to a police officer seems to logically imply that intelligent people will be hesitant about providing witness statements in situations where they may be a suspect.

I wonder how the legal system in Australia compares to the US in regard to these issues. I know that we have far too many laws and too many complex laws which can not be understood and obeyed by a reasonable person.

4 comments to On Talking to Police

  • Simon

    I’ve been to a talk in the UK, where essentially the same advice was given by a solicitor (okay he doesn’t get paid if you don’t ask for legal representation).

    His comments boiled down to understand your rights and obligations well enough to get legal representation. Let the professionals take it from there because the law is complex and tricky.

    A friend was interviewed as a possible witness in a murder enquiry, and said that the police repeatedly tried to trip him up in very long interviews. He was never a suspect as far a we know, the police had good forensic evidence from day one, and a fair idea who’d done the murder. My friend just happened to live very close to scene of the murder.

  • Toine

    So if I understood correctly: Because of the sheer number of laws and the complexity of these laws, people unknowingly break them. If these people talk to the police they will assist in their own conviction.
    Now people who knowingly commit crimes, for instance someone who murdered another person, or smashed somebody’s car on purpose, already knew they should not talk to police. Do you advise people who are witnesses to these crimes should keep their mouths shut?
    If someone stole my laptop, and you saw who did it, I would be thankful if you’d tell the police.
    Or would you propose I don’t report the theft at all, and try to get my property back myself? A bit like it was in the old days?

    On a side note: what would you advise police officers to do? They could be breaking the law unknowingly themselves. Should they stop talking to their colleagues and stop making reports or perhaps stop working at all?

    I really wonder if simply abolishing a lot of laws would produce a more balanced and just society.
    When everybody stops talking to the police, society will not become safer. It’s like saying: Let’s abolish the police, because they are lying low lives who are only out to get innocent people convicted, and then everybody will happy because they don’t have to fear the police anymore.

  • etbe

    Simon: His comments did not boil down to understanding your rights and getting legal representation!

    Prior to that lecture I was under the impression that a conversation I might have with a police officer outside an interview room would be relatively safe as long as I didn’t say “I did it” (or anything equivalent). My impression was however grossly incorrect and if I ever end up as a suspect my actions will be very different because of watching it.

    Toine: The number and complexity of the laws means that police who want to book you for something can do so. We are supposed to have a system whereby the police prepare a case and then the magistrate, jury, or judges determine guilt and then the magistrate or judge(s) determine a sentence. If police can always find SOMETHING that you are guilty of (and for which a magistrate or jury will feel compelled to return a guilty verdict) then they have the power to imprison anyone at any time. This is not the design of the legal system!

    People who knowingly commit crimes apparently don’t know that they shouldn’t talk to the police. If you had watched the video I referenced then you would have seen adequate evidence.

    If someone stole your laptop and the witness expected the treatment described by Simon then they might not report it to the police.

    http://criticalsense.berkeley.edu/seri.pdf

    The paper on police discretionary powers has some interesting background material. It seems to me that one thing that the police could do is to lobby harder for a smaller number of laws and for laws which better match community standards. Having police discretion used to determine who gets arrested for drug possession is a bad thing, better to just change the laws so that they match community standards (small amounts of the less harmful drugs are OK, and the more harmful drugs can be used in areas well away from business and residential areas).

    I agree that abolishing a lot of laws would produce a better society, the best place to start would be drug laws.

    I don’t think that anyone is claiming that police are all bad, or even that a majority are bad. What I claim is that a single police officer who gets the wrong idea about you can ruin your life. Ideally if an honest cop genuinely believes that you are guilty of a serious crime (EG murder which is universally considered to be bad) then if you didn’t do it then there should be no evidence that would lead to a conviction. An example cited in the lecture is that if you (in a casual conversation with a cop) admit to disliking the victim then that can be considered as evidence against you!

  • Russell: Excellent point about the excessive number and complexity of laws, and the fine idea of halting the War on Some Drugs as a first step. After my mother served a term on the grand jury of Contra Costa County, California (~100km east of San Francisco), she said that over half the criminal cases the District Attorney brought before them for indictments were drug-related.

    I had a glancing encounter with the War on Some Drugs five years ago: I was driving through a business district in unincorporated San Lorenzo, Alameda County, California (just east across the Bay from San Francisco) on the way to hospital when I passed some sort of police scene in a small shopping centre. I noticed a police cruiser following me, afterwards. My conscience was clear, but I discreetly pulled out my driving licence, vehicle registration card, and proof of liability insurance in case I were pulled over, which I was — and to my astonishment found myself driving into a semicircle of Alameda County Sheriff Department cars and officers with their sidearms drawn. I carefully made no sudden movements, and produced my three documents for inspection.

    Much delay followed, an officer querying me about my purchase of the car, and that officer attempting to demand that I explain why I hadn’t cited the correct month of purchase, having guesstimated a date several months off. (I refused to be intimidated, pointed out that I wasn’t obliged to even guess the correct year, and referred them to the contract of sale stored in my car’s centre console.) They asked my permission to rummage through the junk in my car, which I granted, and insisted on pat-searching my person.

    After more delays and some radio queries, the story came out, and the officers’ attitudes relaxed: Somehow, the used car dealer had sold me my car with the wrong licence plate. That plate belonged to a very different car in the Los Angeles area, 700km south. They didn’t say how they’d noticed the discrepancy, but it was probably an automated licence plate scanner popping up descriptions of each car driving by. I figure they were conducting a drugs raid somewhere at the shopping centre, and hoping to catch couriers and other related criminals as they drove by. I did get the distinct impression that they were looking forward to augmenting their coffee fund by grabbing ownership of my car through forfeiture, if I’d turned out to be a drug or money-laundering courier.

    You might have noticed that Prof. Duane did suggest in passing a way to help the police as a witness, etc., something we’d all like to be able to do as dutiful citizens, without risk of ending up fighting a false criminal accusation that could have been avoided entirely by refusing to help: a written grant of immunity. The sort of immunity that would be required is called transactional immunity. Probably, police officers will choke, sputter, and darkly suggest what you might be trying to hide, at anyone who requests such a paper before answering questions, but I figure they’ll get over it — and, the more citizens politely require such a grant, the more routine it will become. To save time, I might try to draft one in advance. (And, I’d use my own tape/mp3 recorder.)

    I believe Officer Bruch, when he says police in general go out of their way not to interrogate, let alone arrest, innocent people, both because they really don’t want to screw up, and because their job is to bring prosecutable cases to DA, and throwing innocent people in jail tends to boomerang. At the same time, accidents do happen. (See Errol Morris’s The Thin Blue Line.)

    Minor correction: It’s been a few weeks since I saw the two presentations, but I don’t believe Officer Bruch said he could find something to book (arrest) any motorist he stops, but rather that he could find some law that each of them could be reasonably suspected of having broken. Not all laws in the criminal codes are criminal offences: Many, and really just about all the ones likely to apply to a traffic stop, are infractions, something you get a traffic citation for, e.g., the classic “your tail light is broken” scenario that has permitted a myriad of traffic stops when the officer suspected some larger crime worth investigating. (You then can mail in a set amount of “bail” money on the citation and surrender it as (in effect) a traffic fine, or contest the infraction charge in court.) That infraction stop then can provide a proper legal pretext for the officer asking the citizen questions, pat-searching his/her person and plain-sight surroundings, and otherwise lawfully looking for other misdeeds. Many criminals were caught after being stopped for nothing worse than too-fast driving, a rolling stop through a stop sign, an illegal left turn, or a broken tail light (none of those being crimes in themselves).

    Rick Moen
    rick@linuxmafia.com