Always excercise your 5th amendment rights, even if innocent

This law professor, James Duane, advises never to speak to
police, even if innocent. Our society looks down on people excercising
their 5th amendment right, automatically thinking the person must
be guilty.

An officer also gives his side of the story.

It seems like a lot of innocent folks who have been wrongly
accused were so because they implicated themselves during the
interrogation progress. DNA evidence has exonerated some of them.

It also seems that cops like interrogations that go overtime , they
get paid really good overtime. I wonder how many abuse this.
Seems like we could save a lot of tax payer money if everyone
excercised the 5th.

Google Video Link

Google Video Link

I always thought that tape recorder "on/off the record thing" was real.


Anyway, some good advice-
Always excercise your 5th amendment right, even if you are innocent.

That's an interesting topic, because I can see the argument both ways.

Yes, police often overstep their bounds. And prudence dictates, that if you are accused of a crime, you shouldn't do the accusers job for them. And it certainly is your right to remain silent. It can also make a defence attorney's job easier, as there is less they have to worry about or counter when making their case.

However, why should we have to remain silent to avoid having law enforcement do their jobs incorrectly? If everyone remained silent, through choice or though fear, what would be the impetus for injustices to be corrected? And what kind of society would that lead to?

I find there is a certain admirable quality to forthrightness. I heard a story once (dunno how romanticized it was) about how Ben Franklin, at the start of the revolutionary war, went to various countries looking for support for the revolutionary cause. People said he was crazy, that prudence would dictate caution, but the idea was that he was an honest man, and he thought his cause was just. If it was unjust, best to face that and find out. So he went anyway, and was undeterred by failure, until he finally started to succeed, and his efforts helped the cause for independence immensely. I found that very inspiring.

But, to seek to make one's self a martyr for justice can be foolishness. And we're not all Ben Franklins. So, as in all things, I think a balanced approach is wise -- stand on principle, but don't tilt at windmills.


[edit on 6-6-2008 by Ian McLean]

I watched about half of each.

So my take.....good advice if you are "arrested" and he would be a fun professor to have....but only one side was presented, so there was some important stuff left out....such as "hearsay" exceptions for one.
The cop is a 3L and he sure as hell is not going to contradict his professor.
But....if a cop asks you for your Id. if he asks you your name. You would sound foolish and be wrong to assert your 5th amendment rights.
This applies to when you are "arrested". so don't give the cop any reason to establish probable cause, because then you will be needing to call your attorney.
but.....like I said this was just one side of the story and he wasn't wrong but if you go just by what he said without knowing the rest....well that would not be good.

Remember:

Anything you say, CAN AND WILL, be used against you in a court of law.

I don't mind being upfront and honest, but when someone has already told me what I say is going to be used against me, it makes me think twice.

maybe this is a bit of drift, but I've heard that if the prosecution has enough info from the detectives to make a case,

that's all he's interested in. And by that I mean, the detective may not be finished or there may be

some very hard to obtain evidence, that has yet to be collected....well the DA most likely will prosecute with

what he has and tell the detectives to stop looking. Am I wrong?

Look at the nicarico case where the cops knew an inmate unofficially confessed to it but they went ahead and prosecuted 2 guys that did not do it, which was finally announced years later. cbs2chicago.com...

I wouldn't want to cooperate either...the system is broke

[edit on 6-6-2008 by toasted]

I've been beaten and tased by police after I decided to stop talking to them.

And another thing to keep in mind, whatever you say can be used against you wether or not they read you your rights.

Originally posted by Res Ipsa
The cop is a 3L and he sure as hell is not going to contradict his professor.

Well, I don't think the cop (second speaker) was the professor (first speaker) student, at least not in the sense of him actually being in a particular one of his classes. I think he was there for rebuttal, although it sounded like he agreed with the professor almost completely.

so there was some important stuff left out....such as "hearsay" exceptions for one.

This was one of the most surprising things, to me. For those who haven't watched the videos, I highly recommend watching them, there's some great and subtle legal points made.

Apparently, cops don't have to testify to anything that's said in a police interview, except what the prosecution deems beneficial to their case. Anything outside that scope, that the defense might want to ask, can be deemed as 'hearsay'. Also, apparently cops can make video and audio tapes of interviews, transcribe them, then destroy the original tapes without making them available to the defense. That's surprising!

Can any of the sharp legal minds here on ATS give more details on those two points? Also, what exactly constitutes a 'police interview'? Can a comment made to an off-duty, un-uniformed cop in a coffee shop be entered as evidence, without regard to heresay, bypassing otherwise-applicable rules?

Great stuff -- oh, and I stand by my previous comments on this thread, too, of course: procedural adversariality approximates justice only to the extent that honest and forthright citizens demand.

dont let the cops in the police station bate you into loosing your temper or making a body movement that they can pounce on you for probable attempted assault....

I have to agree to an extent here.

A lot depends on what's at stake.

It's one thing to be arrested for misdemeanor and quite another to be arrested for a felony that will send you up the river for decades.

Clearly, giving your side of the story to the police for minor violations can prevent a lot of grief of going to court because you didn't think it was a good idea to talk to the police and eliminate yourself from suspicion, if you're clearly innocent, that is.

However, once you've been arrested, I think it's best to shut up and lawyer up. At that point, anyone needs and is entitled to legal advice.

...I go with the "what's at stake"...Never mess with the cops..Just, just because you can..use-ing the 5th...man-o-man..don't use it ..just to mess with them...They will mess with you plenty worse...They hate anyone acting smart...Be polite..keep mouth shut...keep my answers short...Don't "run at the mouth".....Most police are a decent bunch...They can turn quick....be careful...

How do you know what's at stake? If you're being questioned by the police, don't assume they're disclosing the true nature of their investigation. Just because you've been arrested on a misdemeanor doesn't mean you can't be charged with a felony, but you shouldn't have to be arrested to invoke the 5th amendment. It's not your responsibility to exclude yourself as a suspect. That's law enforcement's responsibility. Talking to the police puts you at risk even if you're innocent and that was the entire point. Unless you have specific evidence to suggest that the professor was wrong, then don't perpetuate the myth that talking to the police will eliminate you as a suspect. The evidence will eliminate you as a suspect. By talking to the police there is a chance that someone else will contradict your statements even if they are true. Now there's evidence against you that would not have been present otherwise.