Shut Up, I Explained, Mostly Pointlessly

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95 Responses

  1. Thomas Reed says:

    Ken, I'm not a lawyer but I have a keen interest in the law/constitution, and I was wondering what are the very rare cases when asking for a lawyer could hurt you? Also, if everyone knew and exercised their rights, the First 48 on A&E would be a lot shorter and less interesting; and if you haven't seen that show don't watch, you will spent the entire hour yelling at the stupid suspects on TV who fall for every single ruse and lie the cops tell, and only 1 out of 20 asks for a lawyer.

  2. Jay Lee says:

    Shut up! Shut up you American. You always talk, you
    Americans, you talk and you talk and say 'Let me tell you something' and
    'I just wanna say this', Well you're dead now, so shut up.

  3. MattS says:

    Donkey: What about my Miranda rights? You're supposed to say, "You have the right to remain silent." Nobody said I have the right to remain silent!
    Shrek: Donkey, you HAVE the right to remain silent. What you lack is the capacity.

    http://www.imdb.com/character/ch0002010/quotes

  4. tsrblke says:

    So,
    Legitimate question here though. Hypothetical story.
    Neighbor shoots off some fireworks (which are of course not kosher around here.) Cops get called. Meanwhile I'm out in my yard with some friends around a fire pit (which is legal here!)
    Cops decide since I'm visible I must be questioned (fence, totally need to get a fence. I've only lived here for 7 months though.)
    Cops tell us they have "reports of gunshots." (Obviously either they're bluffing or someone who called 911 is an idiot.)

    What does one do in this situation? You really don't want to rat out the neighbor (he's nice enough.) But saying "I refuse to talk to you" probably isn't going to go over well.

    Thoughts?
    (FWIW, in this *hypothetical case* someone may have told the cops they heard what were clearly fireworks/firecrackers but didn't really know where they came from. Cops hung around for a bit, shined their bright light around my yard then drove off.)

  5. Ken Mencher says:

    I'd say something snarky, but Ken told me to shut up…

  6. Clark says:

    > What does one do in this situation? You really don't want to rat out the neighbor (he's nice enough.) But saying "I refuse to talk to you" probably isn't going to go over well.

    I still like "I refuse to talk to you", but " I saw some fireworks up up there " could work.

  7. Real says:

    Although I appreciate the lesson taught here today, I have a hard time feeling sorry these guys…

  8. Ron says:

    That charge of lying to an FBI agent really bugs me. In fact I think this law now does the FBI more harm than good. The FBI has used it since 9/11 to charge people who they think might be affiliated with someone who performs, or condones, terrorism. What as happened is that an agent will ask someone who attends a mosque some questions about someone else, or an event. If they can get someone else to contradict their statement, then they can charge them with this offence.

    It doesn't matter how small or trivial the "fact" is. It doesn't matter if the other person lied. It can be as small as you got the day wrong. Or an address wrong. If they can get two different people to say two different things, then they can charge one with this offence.

    Once they can catch someone with a fact that contradicts someone else, they can use this offence to attempt to leverage some other larger goal. This can be to get them turn states evidence. To get them deported, or whatever.

    Because of this, imams have told their congregation to refuse to speak to the FBI. Even if you are completely innocent, and you know that someone in your congregation is up to no good, you risk being prosecuted yourself by telling the FBI what you know, or what you THINK you know.

    I think in the end, this ends up harming the FBI's goal of trying to prevent acts of terrorism. It is is hindrance to people who want to do the right thing, but can't risk getting caught in the maul of the justice system because some overzealous FBI agent wants to flip them.

  9. Krono says:

    You post reminds me of this old lecture I ran across on Youtube a while back entitled "Don't Talk to Cops": http://www.youtube.com/watch?v=i8z7NC5sgik

    @tsrblke In that case it's probably pretty reasonable to say that you heard something that sounded like fireworks and leave it at that. A few years ago, while I was at my computer I heard something that sounded like firecrackers, or a car backfiring. A cop came around in response to a report of gunshots, my dad and I told him that we'd heard something that sounded like firecrackers or a car backfiring but it didn't sound like gunshots, and that was the end of it as far as we were concerned.

  10. Brian Trosko says:

    I liked the part where they bashed down his door with a battering ram, entered his house pointing guns at him, cuffed him, and then took the cuffs off, sat down to interrogate him, and then told him he *wasn't under arrest*.

    "Then am I free to leave, officer?"

  11. Noah Callaway says:

    The "Don't Talk to Cops" video is really good. I encourage anyone who hasn't seen it to watch it.

  12. Nicholas Weaver says:

    The feds certainly like busting the door down when they don't actually need to. Probably a mix of machismo and that the intimidation factor makes it far more likely for the poor schlub to squeal like a pig.

  13. Trebuchet says:

    Good old TODDI defense! Probably worth a whole post of its own.

  14. David says:

    And guess which statute the college kids arrested in Boston today are being charged under!

    Shut. Up.

  15. Noah Callaway says:

    I have a question regarding situations where you really believe that:

    a) You're a witness and not a suspect
    b) You have information that can help the police.

    For example, if I witness a car accident between parties that I'm unrelated to: how much of a risk am I taking by giving a statement to the police? My inner defense attorney is now constantly shouting "NEVER talk to the police"; when is it appropriate to ignore that advice?

  16. tsrblke says:

    @Krono,

    I think if I had been in my house (hypothetically of course) that would have been the end of it.
    But I wasn't I was outside with friends, drinking around a fire pit.

    Also I think the cops thought they had stumbled upon some teenagers and figured "ah, this should be easy" but instead find a group of late 20-30 somethings who own the home sitting there.

  17. Shane says:

    I was put through a simulated situation of having to deal with the police and just because I say it was simulated doesn't mean any of the factors that would be encountered weren't at play in my situation. I am normally a pretty mute person in RL, but I think it is a human heuristic to try to de-escalate situations. The pressure to speak in these situations if very intense, and if you haven't experienced it can be a rude shock. Usually police/FBI show up, like the story indicates, in very unpleasant situations. This is the nature of the beast. And one smart officer is going to play good cop, and because something very outside of most peoples experience, is going to leave the person desperately trying to "get back to good". And this is what gets people in trouble because they think OMG this is guy is talking to me normally and I want things to be normal so I will make casual conversation so that I can feel better about it all.

    It is your duty as a citizen to understand at least enough of the law as to not make your attorney's job a complete nightmare. The video mentioned in previous posts is very good. But remember when the adrenaline is rushing that you need to have a very low level understanding that talking to the police is not in your best interest. What I use as a tool for this is the ole Name, Rank and Serial Number. If the police ask questions that are along those lines I answer with just that information, and all the while politely asking for my lawyer.

    Another tangent: the cops are neither your friends or your enemies. They are just fact collectors. The police themselves won't be then ones that put the real hurtin' on you it will be the prosecutor/plaintiff's attorney that will take what the cop wrote down and hang you with it. It will be the jury that sees the tape of you interacting with the officers and how you look sound will be a factor in their decision. So really you aren't being polite for the sake of the cop, you are being polite for the unseen people that will judge you.

    Act accordingly :)

  18. Nicholas Weaver says:

    I really like the officer's response to the "Don't talk to cops" talk. "Yeah, its right. Don't talk to cops".

  19. David M. Nieporent says:

    For example, if I witness a car accident between parties that I'm unrelated to: how much of a risk am I taking by giving a statement to the police? My inner defense attorney is now constantly shouting "NEVER talk to the police"; when is it appropriate to ignore that advice?

    You can talk to the police if you are 150% sure that you are not a suspect. For anything.

    The example I give people — about the only one I can think of where it applies — is if you're a pedestrian and they're investigating a car accident that you just witnessed. I highlight that last part because if cops come to your house and say that they want to talk to you about an accident that happened nearby earlier that week, they may just not be telling the truth. They may be really trying to pin down your whereabouts at a certain time for some other reason.

  20. Ken White says:

    Ken, I'm not a lawyer but I have a keen interest in the law/constitution, and I was wondering what are the very rare cases when asking for a lawyer could hurt you?

    Sure. Say you are Billy-Ray Bob, and the police come looking for Ray-Billy Bob about that hoss he shot. If you shut up, and don't explain that you're Bill-Ray Bob and Ray-Billy Bob is two houses down, maybe you spend the weekend in jail until they straighten it out.

    Or, by invoking, some cop who is an asshole may decide to retaliate against you by jailing you for the weekend.

    All of these risks are short-term and pale next to the long-term risks of talking.

  21. En Passant says:

    Shut Up, I Explained, Mostly Pointlessly.

    With some who enthusiastically aspire to be defendants the Lardnerian approach needs Whistlerian reinforcement: "I am not arguing with you. I am telling you."

  22. Joe Pullen says:

    Note: "Shut up" also applies to inherent self righteous desires to express one's side of the story publicly whilst involved in (or with potential to be involved in) a lawsuit. It's exceedingly difficult when one believes one is in the right not to want be vocal. However, what has been said and/or posted publicly cannot be unsaid. Lawyers tell clients to shut up all the time – and for good reason.

  23. naught_for_naught says:

    You can pin a note to their shirt reading, "In case of arrest, shut your mouth and call me", but people will be true to their natures. In this case you have two weasels doing the weaselly thing.

    My problem with the Ars Technica piece is the cliche manner in which it tries to make sense of it all, bringing in the sister's sad little tale of a cleft palette and ADHD. What a pant load.

    To me it's simple: you have a pair of middle-class low-life gambling addicts, both imbued with a cowardly and thieving nature, too stupid to think through the crime they were trying to pull off. It is like something from the Coen brothers. Fortunately I'm not an attorney, so I can just sit back and enjoy the image of these tossers standing there in their underpants ratting each other out.

  24. KP says:

    Ken – If you haven't done so in a post in the past perhaps you could in the future on this: what should a (generally) law-abiding citizen do, if anything, to prepare in advance for an unlikely situation where a good criminal attorney is needed? Seems to me like overkill to do a lot of advance planning when the need for a criminal attorney will probably never surface, however relying upon a public defender in the absence of a prior relationship also seems risky when you are given your "one phone call."

  25. Ken White says:

    @KP:

    Actually, so long as you are able to shut up — and listen to a public defender telling you to shut up — you will have time to find the right lawyer, or have your family find a right lawyer, using these techniques.

    So long as you are shutting up, and listening to your lawyer, very little can go permanently wrong at the start of a case. You'll have time. If you are eligible for the public defender, many — despite unfair public perception — are quite good. (They are hideously overworked, which is a separate issue). If you can afford a lawyer, you will have time to find the right one. The notion you need to have Saul's number right from the start is a myth, unless you need Saul there to keep your mouth shut for you.

  26. PLW says:

    I understand the point of the "shut up" mantra. With the "until you talk to your lawyer" addendum, it always seems a little self-interested, to me–especially when suggested by a lawyer. I'm not indigent, so talking to a lawyer is going to be expensive. I understand that saying the wrong thing can be "going-to-jail" bad, especially in the circumstance where I know I did something illegal. But if I don't believe that I've done anything wrong, isn't calling a lawyer every time the police want to ask me a question kinda like buying an extended warranty on every appliance I buy? I mean… how could I lose?!?

  27. Northenter says:

    PLW- you need to go watch the video referenced above. Pay particular attention to the second part where the career police officer says "Everything the lawyer said is true."

  28. David Aubke says:

    @PLW – I can count the number of times police have wanted to ask me questions on one hand. All except one were instances where it was clear it wasn't me they were looking for (like I witnessed a traffic accident or something). That one time was for a noisy party where I foolishly took the initiative to represent the house to the police. (To their credit, the other partiers pitched in to spring me from lock-up.)

    I don't think you're going to go broke covering your ass whenever you're in doubt.

  29. Nicholas Weaver says:

    Another 3 reasons to SHUT UP

    From the MA US Attorney's twitter feed:

    Three men arrested in connection with Boston Marathon bombing. Conspiring to obstruct justice and false statements charges.

    Translation, arrested for talking to the FBI rather than shutting up.

  30. PLW says:

    Obviously, if they pull me out of the house in my undies and take me to the station, I'm going to hire a lawyer. I also have homeowners insurance on my house. But lets take your party example. What if they had found cocaine while busting up the party (not yours)? It's these sorts of hypotheticals that often get trotted out on why you should always lawyer up.

  31. Phalamir says:

    @PLW
    The operative phrase is "I don't believe I've done anything wrong". what you believe and what is real may not be the same thing. All a prosecuter needs to do is give the 12 mouth-breathers a sclinta of a reason to find you guilty. "He lied about his birthday" is pretty much functionally equivalent to "He admitted to raping, murdering, and then eating that toddler". And the police can make their jobs much easier if they don't have to hunt down a pedo-cannibal when your dumb a$$ is willing to hang yourself for it. And since the cops can lie to you, it doesn't matter what they say, you are a thousand types of stupid to assume they aren't out to get you. You ask if you are free to go, and if they say yes, you scarpper ( if they are in your house, you literally wander outside and down the street). Some states require you to tell the police stuff like your name and address, so if you are asked about those, you answer and then leave. If they say you cannot leave, you ask for a lawyer – and then shut up until he or she arrives. Hell, I wouldn't talk to the police sans lawyer if I was the victim of a crime, since you can sell yourself up the creek by inadvertantly admitting to a crime while giving a statement – and considering the LAPD and NYPD, I just want somebody to be there on the off chance the cops decide it is Broomhandle Rape Thursday

  32. C. S. P. Schofield says:

    @Brian Trosko

    If feds busted into my house, 'cuffed me, un-'cuffed me, and THEN told me I wasn't under arrest, I would pick up the telephone and dial 911, saying "Hello, Police? A group of people claiming to be FBI agents have broken into my home, without a warrant, I want them arrested for home innovation, brandishing weapons, and acting like pillocks."

  33. David Aubke says:

    "What if they had found cocaine while busting up the party (not yours)?" Without going into too many details, believe me, thoughts like that were running through my head as I sat cuffed in the back of the cruiser for what seemed like an eternity.

    The party example was more of a "what not to do". I shoulda stayed holed up in the house with the rest of the hooligans – or at least let some other schlub take the fall.

    I don't necessarily regret not having kept my mouth shut or calling a lawyer because the stakes were pretty low but strictly speaking, it would have been to my advantage to keep quiet.

  34. Michael says:

    I was once "brought in for questioning" about something I was very peripherally involved with. I refused to answer any questions and kept demanding to see a lawyer. After an hour I was let go. I immediately went to see my lawyer. He told me I'd done the right thing. The next day the cops came to see me at my house. I still refused to talk to them or even let them into the house and I called my lawyer. After a while he showed up and the cops left. That was the end of it as far as I was involved.

  35. Rachel says:

    @tsrblke I kind of agree with Krono. I say when it comes to the law (not just criminal- this should apply to everything except a contract) use KISS. Keep It Simple Stupid. "I don't know" "It may been gun shots, it may have been somethings else." That's it- get in, get out, get on with your life.
    You don't want to not answer, such that you could be arrested for obstruction of justice. (see AZ§13-2409)

  36. David Aubke says:

    @C. S. P. Schofield
    You must be a total bad-ass.

    Plus, maybe your home could use a little innovation.

  37. Clark says:

    @Shane:

    the cops are neither your friends or your enemies.

    You're half right.

    They are just fact collectors.

    Now you're talking nonsense.

    The police themselves won't be then
    ones that put the real hurtin' on you it will be the
    prosecutor/plaintiff's

    Unless they decide to taze you (perhaps to death), pepper spray you
    (perhaps to death), analy rape you with a broken broom handle (perhaps
    to death), shoot you (perhaps to death), etc.

  38. MattS says:

    C. S. P. Schofield,

    "I would pick up the telephone and dial 911, saying "Hello, Police? A group of people claiming to be FBI agents have broken into my home, without a warrant, I want them arrested for home innovation, brandishing weapons, and acting like pillocks.""

    This makes me wonder, in this situation, do the FBI agents shoot you or the telephone?

  39. MattS says:

    Clark,

    I know there have been tazer related fatalities, but are there any recorded incidents of pepper spray related fatalities?

  40. Linus says:

    Rachel, sorry, you're wrong about AZ 13-2409. The text of the statute states: "A person who knowingly attempts by means of bribery, misrepresentation, intimidation or force or threats of force to obstruct, delay or prevent the communication of information or testimony relating to a violation of any criminal statute to a peace officer, magistrate, prosecutor or grand jury or who knowingly injures another in his person or property on account of the giving by the latter or by any other person of any such information or testimony to a peace officer, magistrate, prosecutor or grand jury is guilty of a class 5 felony" Ariz. Rev. Stat. Ann. § 13-2409

    No way in hell you get charged (let alone convicted) with that for saying "I want to talk to a lawyer." Ain't even in the same ballpark. And you also need to be careful with "I don't know". There are lots of cases where the feds charged people with the lying-to-a-fed charge because they said "I don't know" and the feds proved later that they did know. Ken's right, just shut up. Don't get cute or clever.

  41. GregS says:

    Ken – the question has been asked "is there ever a case where not talking could hurt me."

    But perhaps more instructive would be:
    "In anyone's experience has there EVER been case you know of where talking helped in ANY meaningful way?"

    I'm pretty sure the answer is NO – but I'd be interested in the view of all the experts here.

    …and if the answer is "No, we've never seen a single case where it helped." then the take-home message for all the viewers at home is:

    The overwhelming odds are that you'll only do damage by talking. Sure, if you're a lock at winning the lottery, you might find it useful. But unless you have luck that is god-like, you're just not winning on the odds that talking will help.

  42. Mike says:

    @ C.S.P. Schofield:

    "I want them arrested for home innovation,"

    I also would like to see HGTV arrested, but only after the History channel for fraud.

  43. Bren says:

    MattS Please google "pepper spray man to death" 3 Million results.

  44. MattS says:

    Steve, Bren;

    Thanks, but my question was not just were there such fatalities, but was Clark aware of them. I can't Google the contents of Clark's head.

  45. xbradtc says:

    I can't Google the contents of Clark's head.

    You can once you get Google Glass.

  46. naught_for_naught says:

    @Steve

    Holy crap! That is beautiful — a website built just to slam people on message boards and blags who want to use your brain to think. That's niche marketing.

  47. MattS says:

    WLCIII,

    That just goes to prove that anything (even water) can be toxic in sufficiently high doses. The amount of pepper spray applied to that unfortunate person was insane, what did they do, empty a whole case of the stuff on him?

  48. MattS says:

    naught_for_naught,

    It's not about making others think for me. It's about making those who make assertions back them with evidence. It's not my job to prove your assertions if you can't be bothered to do it yourself.

  49. naught_for_naught says:

    It's not about making others think for me. It's about making those who make assertions back them with evidence.

    Oh sweety, you are so close. Let me help you. What you meant to say is, "It's all about me."

    Now, do I have your permission to address another commenter on this blog, who is not you, about a really awesome site that he shared, without making reference to you, without first checking with you? Do I have your permission?

  50. WLCIII says:

    MattS,

    That just goes to prove that anything (even water) can be toxic in sufficiently high doses. The amount of pepper spray applied to that unfortunate person was insane, what did they do, empty a whole case of the stuff on him?"

    I think Clark's point was to suggest that he doesn't trust the police to not "put a'hurtin on you". The police in the article I cited strapped a man into a chair and drenched him in a chemical. And for what? He was restrained. Where was he going? Who was he going to hurt? Why did they keep spraying him? Why didn't they stop and reassess the situation? And since I can't Google the contents of their brains, I'm left to speculate…and I'm inclined to believe it was because they could and because they enjoyed it.

  51. perlhaqr says:

    Man, Ken was right. MattS really is rapidly gunning as hard as possible for the title of the single most annoying Popehat commenter.

  52. perlhaqr says:

    The only time I'll talk to cops willingly is when I've been in a car accident, or (annoyingly enough, not a unique incident) had a vehicle run into while parked in front of my house.

  53. Ken White says:

    Paste awaits.

  54. Clark says:

    I can't Google the contents of Clark's head.

    Something you should be really really really happy about, given what even the first page of results would include.

  55. perlhaqr says:

    Ken: And now I have Hanna Barberra parodies running through my head.

    "CAPTAIN PAAAAAAASTEMAN!"

  56. MattS says:

    naught_for_naught,

    "Now, do I have your permission to address another commenter on this blog, who is not you, about a really awesome site that he shared, without making reference to you, without first checking with you? Do I have your permission?"

    I never said or implied that you need my permission.

    Given that the only link posted by the person to whom your comment was addressed was posted in reply to me, suggesting that it had noting to do with me at all is a bit disingenuous.

  57. MattS says:

    noting -> nothing.

    Damn keyboard gremlins!

  58. James Pollock says:

    I'll say this again… if you're actually guilty of the crime you're being charged with, feel free to chatter about it as much as you want. I've no objection whatsoever to guilty people voluntarily making it easier to convict them.

  59. Nathan says:

    If law enforcement says that they're treating someone as a witness rather than a suspect, are witnesses always entitled to have lawyers present during all questioning? (fed/state/local)

  60. naught_for_naught says:

    @Matts

    Stop. Just stop, if you can.

  61. Shane says:

    @Clark, the police don't try your case. They detain you. They ask you questions and write down your answers. Are they on your side no, will they employ tricks to get you to say things that might be incriminating probably. But at the end of they day they are just clerks for the legal machine. So for me to say that they are fact collectors is not really nonsense at all.

    The incidents that you describe are indeed real, I will not dispute them. I will however say that these incidents are all involved in apprehending you, rightly or wrongly. The cops want to detain you so that they have a captive audience for their questions. They may think that you have broken a law, but they will not be the final determination on your law breaking. And being detained is but a mere inconvenience to you in the big scheme.

    And for the record. I would rather be tazed (to death) than be Bubba's little boy for the next 20 years. And if I am detained in an inappropriate manner, there is a good chance me or my relatives can get some money out of the deal. Not so much if I am convicted. So the real hurtin' a cop can put on you pales in comparison to the hurtin' the prosecutor and 12 people can put on you.

  62. Clark says:

    @Shane:

    the police don't try your case. They detain you. They ask you questions and write down your answers

    They write down other answers that they think sound better. They
    "forget" to turn on the tape recorder. They take the stand later and
    lie. They coach other witnesses on what to say. They pay informants to lie.

    But you're right, they don't deal the cards. They merely stack the deck.

  63. Keith says:

    @GregS

    I do have an example of a guy who talked himself out of being arrested.

    Guy bounced 2 or 3 checks on the place I worked, for a total of $1500 or so. We got them back from the bank, logged them in, and when he came back to write another check, we called the cops.

    They detained him. His story was that he received some sort of automatic monthly payment from the Feds (disability or similar), never checked his bank balance, never updated his address so never got bounced check notices or letters from us, never checked his voicemail, and had no idea that the checks he was writing were bouncing.

    Cops called the DA, DA said that he was not willing to prosecute for fraud or petit larceny, because the guy had money coming in (no proof of that though), and being a bad bookkeeper was not a crime. Told us we could file in small claims court if we liked. Cops let him go.

    Guess who never showed up to small claims court, and registered letters to any address provided were all returned.

    I will say that I saw far more people say stupid self incriminating things to the cops when arrested for other things though.

  64. amber says:

    Questions.
    * What should one do when one has photographs, audio, or video of something that the cops think is evidence of an alleged crime, and ask for it?
    * What should one do if one has photographs, audio, or video of a crime, and the cops do not know you have it?

    Somehow, I don't see the cops being willing to accept "I do not have any model releases, and thus can not distribute the requested content. I will dicuss this with an attorney that specialises in entertainment law."

  65. Jack says:

    Okay, I'm curious. Obviously Kadyrbayev, Tazhayakov, and Phillipos opened their stupid yaps and said stupid things. They all should've clammed up.

    What about "Danny," the Chinese immigrant who was (allegedly) carjacked by the Tsarnaev brothers?

    For that matter, what about anybody who makes contact with police voluntarily (or has bystanders contact police on their behalf) because they're the victim of a crime? In this case, information they got from "Danny" helped law enforcement catch up with the (alleged) bombers, and his information probably wouldn't have been as helpful if he'd waited until he had a lawyer available to sit in on what he told the cops.

    Having been in a situation where I was the victim of a home invasion — thanks to quick thinking on my part,, and stupidity on the part of the criminal, he was apprehended almost immediately — I'm perhaps more aware than most people that sometimes you really do need to call in the police voluntarily.

  66. Clark says:

    Questions.
    * What should one do when one has photographs, audio, or video of something that the cops think is evidence of an alleged crime, and ask for it?
    * What should one do if one has photographs, audio, or video of a crime, and the cops do not know you have it?

    I think "don't talk to cops without your attorney present" covers both of these cases, no?

  67. @MattS: +5 awesome for the Bugs Bunny clip.

  68. Ben says:

    Clark,

    I was given the impression (by a police detective) that I do not have the 'right' not to talk to them if I am not the subject of an investigation, and that that is what 'obstruction' is?

    Was he incorrect?

    (Not that it matters, it's all long done. For context sake, I witnessed/did-what-a-911-operator-told-me-to-do in a fatal car crash, where I was a pedestrian. I was uncomfortable because the detective was asking questions about what my impression of one of the drivers state of inebriation/impairment was.)

    So yeah… I always thought the fifth amendment essentially meant, "I think I did something wrong, but I ain't tellin' joo."

  69. Bob Brown says:

    Sometimes the outcome is a foregone conclusion:
    Cop: "Do you know how fast you were going?"
    Me: "67 MPH"
    Cop: "Do you know the speed limit here?"
    Me: "55 MPH"
    Cop" Here's your citation."

    Lawyering up would have gotten me a trip to jail.

  70. What about when cops pull shady shite with questioning of minors? Like the son of the master sergeant who was "detained" in the cop car until he answered their questions?

    When I was in middle school, a neighbor and fellow 12 year old was convicted for indecency with a little kid one day (all the neighborhood kids were out playing in the woods, like every other day.) I did not witness the crime; I was nowhere near. But one day, at lunch, four cops came into the cafeteria, found me, and in front of everyone took me to a private room where they (and some unknown guys in suits) proceeded to GRILL me mercilessly-insinuating that I actually had something to do with it and trying to trick me- for over an hour. When my mother found out about it (after the fact, from me) she was LIVID; she went and chewed the principal several new assholes for allowing them to do that to me without even contacting her. He tried to say he didn't have to contact her, but she wasn't having it. (I don't know what she said, but the cops never bothered me again.) it was TERRIFYING.

  71. Jon says:

    greGs WROTE "In anyone's experience has there EVER been case you know of where talking helped in ANY meaningful way?"
    Just a hypothetical "Yes officer, I did see where the crazy man with the assault rifle went, he broke into my house and is holding my family hostage"

  72. Jon says:

    Isn't a bit ironic for a site dedicated to free speech to advocate the position that one should NEVER voluntarily speak to the authorities out of fear of governmental power to punish you? If fear of government silences each of us, who will speak "truth to power?" Its 6AM on Sept 11, 2001. You speak Arabic and overhear one of the hijackers in the Boston Airport discussing the hijacking plans. Do you really feel that the small possibility of being falsely accused would justify remaining silent since you can't reach your lawyer. Is allowing the attacks to occur the "right" action? Yes, it is stupid to talk to the police if you've done something wrong. Yes, the police are lazy and sometimes incompetent, that doesn't mean that fear of bad police should cow citizens into omerta.

  73. David Schwartz says:

    Clark:

    Obstruction is a form of active conduct that requires you to take steps. Not talking is a form or not doing and thus is also a form of not obstructing. Lying to investigators, destroying evidence, and other forms of actually doing things that interfere with an investigation are obstruction. Not talking is also not obstructing just as it's not eating, not killing, and not riding a pony.

    As for the taking the fifth meaning admitting you did something wrong, that's nonsense. At the very most, it admits that your answer might be incriminating. For example, if I was near the scene of a robbery, saying so is incriminating if the police suspect I'm the robber. That's true even if I'm not the robber.

    Generally speaking, a person has no idea what might be incriminating. If you commit three felonies a day and don't know half of them, you can't be sure any information about your whereabouts isn't incriminating.

  74. Allen says:

    Eh? What trouble?

    If you're part of the trouble it won't get you off, if you aren't you won't be dragged into it.

  75. Ben says:

    David-Clark Hybrid,

    I see, thanks. The detective must have been misinformed. Like I said, it is long since a moot point, but it's good to know.

    So is it just an urban legend that you can be forced to testify if the government gives you immunity?

    I thought I had seen or read something somewhere that they did that to organized criminals/mobsters/something like that. (And by 'that' I mean give them immunity so that they could no longer 'incriminate' themselves, so they had to testify… maybe that was just a movie though.)

    Anyways, thanks again.

  76. Alan says:

    This may be great advice for people living in the USA here in the UK it's bad – if you fail to respond then basically the jury gets to hear "this is the story he made up once he had time to think something up with his lawyer" …..

  77. Clark says:

    @Ben:

    So is it just an urban legend that you can be forced to testify if the government gives you immunity?

    That's true. Which, IMO, is terrible. Words have consequences, and you can be compelled – under threat of State violence – to say things that will destroy your marriage, get your professional certifications revoked, lose friends, etc.

    That's not the kind of government I want or respect.

  78. Brett Middleton says:

    Isn't a bit ironic for a site dedicated to free speech to advocate the position that one should NEVER voluntarily speak to the authorities

    Jon, the freedom to speak includes the freedom to not speak. Supreme Court said so. It isn't just the Fifth Amendment that comes into play, but the First as well.

  79. @Nathan And what if they're lying about the "witness" part to make the person feel important, make them feel like its their civic duty to talk, and lower their guard to get them to say something incriminating?

  80. Nicholas Weaver says:

    Phillipos is a classic example of why even as a witness, don't talk to the cops.

    He is not accused of any crime beyond lying to the FBI about seeing the other two knuckleheads taking the backpack and seeing what was in the backpack, and lying about when everyone realized that the Douchebag White Capped bomber was their friend. Yes, he is being arrested only about lying that he was a witness to a crime.

    And now Phillipos has Carmen Ortiz, who's already been shown is the absolute paragon of prosecutorial discretion [1], gunning for him in court, with a press release gleefully announcing that "Phillipos faces a maximum sentence of eight years in prison and a $250,000 fine.", when the other two knukleheads who actually attempted to commit a crime only "face a maximum sentence of five years in prison and $250,000 fine".

    If this isn't Ortiz clearly demonstrating that one should Never, EVER, EVER TALK TO THE FBI ABOUT A CRIME, I don't know what does.

    [1] There needs to be a Sarcasm HTML tag…

  81. Colin says:

    I have had three situations in my life where talking to the cops helped, however they are probably so inconsequential as to be mostly irrelevant. First, I was stopped for erratic driving at 3am. They undoubtedly thought I was drunk, but I had been up for 48 hours working on a school play, and was just too tired to be driving home. I told them as much, and they escorted me home with a warning.

    Second, I was stopped in WV speeding. The cop asked me if I knew why he stopped me, and I said that it's probably because I was doing 78 in a 65. He said that he caught me at 77, and gave me a warning.

    Third, I was headed to a meeting, and a cab stopped short in front of me, which I then rear-ended. I was obviously at fault, but being nice to the cop (and the cabbie was NOT nice), got me off without a citation.

    Of course, none of this involved interrogation…

    Anyway, this has taught me that 1) I'm perhaps not the best driver out there, and 2) while not talking is definitely the best policy, it's also good to do your best to not be a dick (regardless of how the cops are acting).

  82. perlhaqr says:

    @Bob Brown:
    Sometimes the outcome is a foregone conclusion:
    Cop: "Do you know how fast you were going?"
    Me: "67 MPH"
    Cop: "Do you know the speed limit here?"
    Me: "55 MPH"
    Cop" Here's your citation."

    And sometimes it's not.

    Cop: "Do you know how fast you were going?"
    Me: "No sir, I was paying more attention to [the road|other traffic|possible wildlife] than the speedometer, I'm afraid. Was I speeding?"
    Cop: "Do you know the speed limit here?"
    Me: "55 MPH"
    Cop: "Well, you were doing 67. Slow it down and watch your speed, too."
    Me: "Yes, sir. Sorry about that."

    Never admit to a crime. He might not have known how fast you were going, either.

  83. Nathan says:

    @RavingRambler
    Whether they're going to misuse a legal power is not really the point of my question because your comment would apply to just about any other power the police have, such as to arrest and detain which they obviously do have even if it can be abused. Do they have the legal authority to question a witness and get answers without the witness lawyering up and is it recommended practice to do so as a witness?

  84. LauraW says:

    @naught_for_naught: That is beautiful — a website built just to slam people on message boards and blags who want to use your brain to think.

    It's particularly amusing when people here at Google use that to reply to questions on internal mailing lists.

    Disclaimer: I'm a software engineer at Google who found this site during the Prenda festivities. Ken (and all of you) make the law interesting enough that I wonder whether I should have listened to the lawyers I worked with in college when they told me to go to law school. But I enjoy programming too much.

  85. Shane says:

    @Clark … I smell what you are stepping in. Point taken.

  86. Bill says:

    I can personally attest to the fact the FBI does go on wild tears with no evidence all the time.

  87. Amber says:

    Clarke wrote «I think "don't talk to cops without your attorney present" covers both of these cases, no?»

    Material witness: I either have, or am perceived to have evidence that the cops might find useful in their investigation.

    My understanding is that as a material witness, or potential material witness, I do not have the same rights as a suspect has. Specifically, I don't have the right to an attorney.

  88. Bill says:

    @Jon – Ok, would this work then "Never talk to the FBI, unless it's about a mass terrorist plot that you are very sure will happen." But wait, what if I did that, and I just didn't understand Arabic or wasn't sure, so I sent the FBI on a wild goose chase unintentionally, so at 7:00 AM they were running around Pickens SC looking for Islamic terrorist? What if they were on their way to intercept the guys at Logan but found me so convincing they dropped it and headed to GSP? Since we're going to really contrived scenarios, isn't this one just as plausible as the one you came up with?

  89. NickM says:

    The calculus is very different for a traffic stop than for everything else.

  90. Trent says:

    I'm sorry I found this thread so late. First, though the rule of Shut Up hold for both FBI and regular police IMO the FBI has a much stricter version of it considering their use of form 302. For those wondering what the heck I'm talking about I suggest you watch the following:

    http://www.youtube.com/watch?v=PMZrdyCWu7M

    The FBI has a policy to avoid recordings of conversations so that they can IMO deliberately misrepresent what is said and get a lying to the feds charge filed. The have done this to hundreds of innocent Muslims to force them to become informants.

    Amber's question about about Video should also be addressed on this angle. There was a lady in the news awhile ago that go several serious charges filed against her related to whale watching (she ran a boat service). It was claimed she'd violated federal law and had been feeding the whales but it all stemmed from an investigation involving whistling (also apparently illegal) at whales. What she ended up being charged with was tampering with evidence. Simply because she edited a several hour video to the whistling sequence and provided that to the feds. In the end the only charge carried forward was the tampering with evidence, even though it wasn't evidence of any crime. So the proper response is that if you think you've got video/audio evidence you better run that crap through a lawyer IMO if it involves federal statutes.

    And finally lying to the feds doesn't just apply to the FBI, it's ANY federal government employee. The whale case above involved NOAA, not the FBI.

  1. May 1, 2013

    [...] This post was inspired by Ken White, at Popehat, a tireless advocate of "just shutting the f**k up!". [...]