https://www.scotusblog.com/case-files/cases/salinas-v-texas/
And or course on a recorded interview/questioning, right? Because if there was no recording then it’s my word against police’s, right?
(I am not from US).
Upon arrest, you're not obligated to speak or answer anything.
The police are not officers of the court, nor involved in court proceedings during their interactions with the public, so there is no expectation or explicit penalty for not answering. In court, while being questioned, you're compelled, under penalty of perjury, to testify in full and truthfully unless there is a reason you can or may not:
> Do you solemnly (swear/affirm) that you will tell the truth, the whole truth, and nothing but the truth?
The 4th (unreasonable search and seizure) is generally clearer, but I don’t know how it works online “stop and ID” states. IMO those laws are unconstitutional, but I haven’t looked into it because I don’t live in one.
To be clear, not if you're the defendant.
Yes, it means explicitly saying “I invoke my 5th amendment right.” Generally, if you’re being interviewed, this is surprisingly less of an issue, because you’ve already been read your rights, and the interview will be recorded (theoretically, they can disappear sometimes).
This applies to situations BEFORE an arrest, but you may have already been detained. (The 4th amendment and court precedent has more to say about this, but it’s an aside if you aren’t subject to it.)
If it’s your word against the police, with no recording or some other overwhelming evidence, you will lose in a US court. Police body cams help a lot here, but it’s still best to record every police interaction yourself. It’s an unfortunate situation.
Nope. You need to express your desire to stay silent early in the "arrest or questioning" process with the police. I'm not an expert, so I don't want to pretend when your words can be used against you, but if a cop hears you say something, they can quote you in court.
Also, here is a fun twist. Your words can be used against you in court, but not for you. For instance: if the cop writes down a bunch of stuff you said while being arrested, and your defense lawyer wants to look at it -they are not allowed to see it-. They can only see the stuff the cops use to charge you
This is incorrect.
Withholding exculpatory evidence can get cops & prosecution into a lot of hot water.
This is called the Brady or Brady/Giglio rule.
Brady v. Maryland (373 U.S. 83 (1963)
Giglio v. United States (405 U.S. 150 (1972)
> It cannot help you. You can't talk your way out of getting arrested, and contrary to what you might suppose if you never studied the Rules of Evidence, what you tell the police - even if it's exculpatory - cannot be used to help you at trial, because it's what we call hearsay. Under the rules of evidence - specifically Rule 801(d)(2)(A), if you want to look it up - everything you tell the police, as the saying goes, can and will be used against you but it cannot be used for you.
Professor James Duane, the speaker, refers to Federal Rules of Evidence Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay [1]. My layperson understanding of 801(c) and 801(d)(2)(A) is: if you are the defendant, what you told the police prior to a trial is not hearsay when during the trial the prosecution (of their own volition) tells the court your words as evidence but is hearsay when during the trial you ask the prosecution to tell the court your words as evidence.
You have a First Amendment right to record the police, whether you're involved in a police interaction or you're a bystander [2]. If the police make you stop recording, try to make you delete the recording, or try to forcefully stop/delete/damage the recording/device, you sue them after the interaction is completely over. But regardless, beyond pleading the 5th Amendment, do not talk to the police at all, especially but not exclusively outside of a trial. You talk to your defense attorney, and your attorney handles the talking with everyone else. You can ask your attorney to admit your recording as evidence.
[1] https://www.law.cornell.edu/rules/fre/rule_801
[2] https://www.eff.org/deeplinks/2020/06/you-have-first-amendme...
Extra notes for personal reference. The first speaker in the "Don't Talk to the Police" video is Professor James Joseph Duane of the Regent University School of Law [E1]. The second speaker is Officer George Bruch of the Virginia Beach Police Department (time 26:51 of the video [E2]).
In the US, case law has ended up more protective of people who invoke their right to an attorney than those who merely invoke their right to remain silent.
In certain cases the police can restart interrogations after invocation of a right to remain silent, but if you invoke the right to an attorney any interrogation must stop until your counsel is present. These exceptions are narrow, but “being interrogated by the police” is the last place to chance stumbling into one.
The magic words are: “I will not answer any questions without a lawyer present.”
I’m not interested in lying to the police, but when I know that they can lie to me, it’s a big disincentive to say anything to them at all. This is a problem.
> "you are not legally allowed to lie to the police."
I know that lying under oath in a court is perjury and in certain contexts some investigative agencies like the FBI can put you under oath and in that specific case materially false statements can be actionable. And I know that filing a false police report is against the law but I think that usually requires signing the report and it spells out that lying on the statement is perjury.
But, in the scenario of a police officer just walking up and asking you questions on a street corner, prior to arresting or detaining you, is anything you say about anything which is later deemed to be false or misleading cause for arrest? Maybe it is but I'm trying think of what law it would be violating. I do know that civil libertarians say that if a police officer talks to you, you can ask "Am I being detained?" and if they don't answer "Yes" you are free to just walk away.
My naive prior understanding is that things are more complicated and conditional than simply "Lying to a cop anytime, anywhere is always grounds for arrest and prosecution (even absent any other grounds for arrest)" but perhaps I was misinformed on this.
State laws about lying to police vary by state. Ask your lawyer.
https://www.popehat.com/2009/09/22/today-in-shut-up-moron-te...
Note that the "lawful duties" portion is apocryphal.
It’s shameful though how many false police reports are not prosecuted because they fall in line with the perceived powers of police forces.
I'm curious. How do people get a lawyer, if they aren't exactly prepared for being questioned, but just somehow unexpectedly found themselves in some weird situation?
Somehow, I doubt most common folks already have an established lawyer (especially not knowing what sort of situation they may get into - as I get it, different lawyers specialize on different matters) and remember their phone number (OP reminds me that one probably doesn't want to unlock any phone). Or I'm wrong? What's the general approach here?
Otherwise, you’ll be arrested and taken to jail for processing. Your bail will almost always be predetermined by a bail schedule. For minor crimes you can post bail to the jail and leave within hours. Some jails even take credit cards. Search for a lawyer on your own after you are out.
Otherwise the rules are varied across jurisdictions. “You get one call” is a TV trope” - but you can use any phone calls you are granted to secure an attorney. The state bar, as mentioned, will refer you. Call your family and have them secure one. Some jails have the yellow pages for your own selection. If you have a non-criminal attorney (a will, employment law, etc.) they can give you a referral.
https://slate.com/news-and-politics/2017/10/suspect-asks-for...