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Comment by _drimzy | Hacker News Reader

Given that people who know the law, can plead the fifth and avoid being interrogated at all, why doesn't the law just ban interrogation of the accused altogether? It creates a divide between people who have access to good lawyers vs those who don't and fall prey to such coercion.

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Swedish criminal law implement something that could be considered a partial application of that idea, but instead of outlawing interrogation, any admission of guilt is only to be considered as part of evidence in a case.

Thus when the courts do their work correctly, it's almost impossible to be convicted on your admissions alone, especially for more serious crimes.

There are however instances where this has still happened, indicating that maybe confeso of guilt should not be admissible as evidence at all, though material evidence found through interrogation probably should.

" any admission of guilt is only to be considered as part of evidence in a case."

This makes sense to me. Someone confessing to a crime is certainly a strong indicator they did it but it's not 100%.

In Sweden any evidence is admissible, and it's up to the judge(s) to decide if and how to weigh it.

Have there been any cases of someone being exonerated for lack of evidence despite pleading to be arrested for their bloody cannibalistic rape spree?

Since Sweden has already been mentioned in this subthread... The case of Sture Bergwall / Thomas Quick comes quite close.

https://en.wikipedia.org/wiki/Sture_Bergwall

Optimizing your justice system for bloody cannibalistic rape sprees seems unwise.

That’s true in the US too.

Can the police lie in Sweden?

Afaik they aren't allowed to in Denmark... Sure, you can tell a man ready to jump off a ledge anything.

But in an interrogation, the police can't lie, or try to extract a confession.

There are so many differences.

I assume swedish courts use juries?

Regardless of the technical rules about how confessions should be treated, a jury will always overvalue a confession. The same applies to eyewitness testimony, which is basically useless but juries accept it as undeniable truth.

The game of prosecution is not "prove the accused is guilty". The game is "convince these random people that the accused is guilty". The later is a decent approximation of the former but I wish we had something better.

It really should ban interrogation without a lawyer but also if someone waives their rights they should have a mandatory discussion with a lawyer. If they waived their rights before a lawyer even showed up thats a whole lot of sketchiness going on.

How accustomed to (ab-)using the coercieve power of interrogation do you have to be to think arresting a public defender when they insisted on representing their client during questioning was a good idea?

https://www.youtube.com/watch?v=7qhzdxYnwhg

Such interrogations can often occur before someone is accused. At that point, they're just a potential witness and may not be in custody and therefore might not even have been 'Mirandized'.

As I understand it anyway, I'm a furriner. We don't have anything like Miranda in the UK, but of course the same ethical issues apply.

> We don't have anything like Miranda in the UK, but of course the same ethical issues apply.

We definitely do, the wording is just a bit different to the US version: https://en.wikipedia.org/wiki/Right_to_silence#England_and_W...

And note that within the UK there are some big differences! The wiki link in the parent comment is for the England and Wales version of the police statement made at time of arrest, which points out that:

> You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.

But in Scotland, which has a slightly different (and obviously, of course, much better) legal system, the police statement is:

> You are not obliged to say anything but anything you do say will be noted and may be used in evidence.

The difference is due to the fact that under Scots Law, no adverse inference can be drawn based on a persons silence.

I am not a lawyer, but I would assume that they would recommend getting arrested in Scotland, rather than England, if you absolutely must commit crimes in the UK...

Ooh, I've never thought about it before, how do police chases work at the border. Presumably Scottish police or English police have the right to arrest following a border chase, or do they have to detain and get assistance for the actual arrest.

Reminds me of a trope from old USAmerican movies where criminals are trying to reach the state line because the police aren't allowed to cross it.

As with all things like this, it's complicated.[0]

It used to be the case that the right did not exist, but there are now provisions that allow cross-border arrests under 'urgent' circumstances even if there is no arrest warrant. This is confounded by the fact that some crimes do not exist or have different names or are classified differently. So, if I was North of the border in possession of an air rifle without a license, and was then chased by a Scottish Constable across the border into England, well... I have no idea if they could then detain (that is, arrest) me, since in England air weapons do not require a license. Anyone curious about this should try the experiment and report the results...!

0. https://assets.publishing.service.gov.uk/government/uploads/...

You can't plead the fifth and then raise things in court later, though. Which does make it markedly different. And I thought in limited circumstances that there was no right to be silent, that it was an offense not to inform the LEOs:

I'm pretty sure that this, http://www.legislation.gov.uk/ukpga/1987/38/section/2 (Criminal Justice Act 1987), says you can't refuse to answer questions or provide documents but that your answer can't be used alone as evidence against you, it must be corroborated. That is, no right to silence.

In the US, the mantra is "Am I under arrest?" and if not, "May I leave?" If you're not under arrest, I don't believe that you need to answer questions. Politely, of course. And if you are under arrest, you have the right to counsel during interrogation.

Even if you are under arrest, you don't have to answer questions. The fifth amendment gives you the right to stay silent.

The key here is that as soon as you can afford a real attorney the prosecution often won't go forward. If you take public counsel, poor people in the system call them 'public pretenders' because the vast majority of the time they are buddies with the DA and will just press you to take the plea deal. Ive read about a few exceptions where they actually represent the clients but the vast majority of the time they just pressure you to take the deal and threaten you with the full penalty under law if you don't deal.

True. And in theory, that's not evidence of guilt. But juries are human, so it might sway them toward guilt, at least just a little.

Also, once you have an attorney, they tell you what to say, and may even say it themselves. Indeed, they may prepare a statement, which you just read.

However, they can subpoena you, and then you do need to answer questions. With your attorney present of course. And then at trial, on the stand.

Edit: And it's not just "stay silent". You need to actually say that you're exercising your right to counsel during interrogation.

This is wrong on several counts. They can't force you to talk at all. A subpoena can't compel you to talk. They can't compel you to talk because you have a lawyer. And they certainly can't compel you to take the stand.

Huh? In the US?

If you mean that they won't torture you if you refuse to testify at trial, you're correct. But the judge may declare you in contempt, and throw you in jail. And if you continue refusing, there's no limit to jail time. It could be for life, if you're determined enough.

Absolutely not. You cannot be forced to testify against yourself and you cannot be held in contempt for refusing to do so.

If you are testifying against someone else there are instances in which you can be compelled. Even then you can't be compelled to testify about anything that would implicate you in a crime.

Actually, in most if not all US states, you do need to explicitly state that you're invoking 5th Amendment protection. And, as you can see from my GP comment, I already acknowledged 5th Amendment protection.

Once you invoke the 5th you cannot be compelled to talk or testify against yourself. Full stop. In your post above you said "they can subpoena you," which they can't. You said in that case "you do need to answer questions," which you don't. And you also said you'd have to answer questions "at trial, on the stand," which you don't.

IANAL, but I believe that the 5th Amendment applies on a per question basis. You can't just say that you won't answer any questions.

> To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.'' [emphasis added]

https://constitution.findlaw.com/amendment5/annotation07.htm...

You're obviously just going to keep dancing around and not admit your error.

Suffice it to say-- one last time-- you cannot be compelled to testify against yourself. Period. End of story. How many times you may end up invoking your right to not testify against yourself, and in what settings, is entirely beside the point.

I never said that "you cannot be compelled to testify against yourself".

I said:

> ... you do need to answer questions.

Your answer may be "I am exercising my 5th amendment right not to answer." But you do need to answer. Simply being silent is not enough to avoid a contempt judgment.

See https://www.nolo.com/legal-encyclopedia/when-how-invoke-your...

That is incorrect. You don't have to answer the cops' questions in any way at all. You don't have to say "I'm exercising my 5th amendment right...". Prosecutors also can't force you to say anything, including "I'm exercising my 5th amendment right...", in private or in court. They can't even call criminal defendants to the stand. The thing you linked to doesn't support your assertions, either.

I'm not sure how police would do their jobs if they could never ask anyone questions without a lawyer present. This would mean for example, that before giving a statement as a witness to a traffic accident resulting in minor injury, that I would need to obtain representation. Of course this is not the kind of interrogation you are talking about, but what would be the bright line rule that separates adversarial interrogation (even for someone not yet arrested or charged) versus just "asking a few questions" ?

You could always go with "Nothing you say can be used against you without declaration of intent (ie 'we are arresting you for ___') and representation"

> plead the fifth and avoid being interrogated at all, why doesn't the law just ban interrogation of the accused altogether?

A lot of these interrogations are of "persons of interest" who haven't (yet) been accused or charged, perhaps having been alarmed by the police telling them that their silence is evidence of guilt?

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