SC on the 5th...

[Makiaveli]

Didn't see this in a glance over the first page....in short, if you keep your mouth shut during questioning BEFORE you are arrested, this silence can be used against you if you don't verbally invoke the 5th. Seems like this would change the age old debate of what to say or not say after a SD shooting.

 

Would appreciate thoughts and opinions on this.

 

Link

[TrickyNicky]

How hard is this, "officer, my intention is to fully cooperate with you (the police) during your investigation. However at this time I am choosing to remain silent until I have spoken to an attorney."

 

Or maybe this, "Officer, I was in fear for my life. While I do plan on offering my full cooperation through the course of the investigation, I am choosing to remain silent until I have spoken to an attorney."

[Makiaveli]

How hard is this, "officer, my intention is to fully cooperate with you (the police) during your investigation. However at this time I am choosing to remain silent until I have spoken to an attorney."

 

Or maybe this, "Officer, I was in fear for my life. While I do plan on offering my full cooperation through the course of the investigation, I am choosing to remain silent until I have spoken to an attorney."

 

 

"How hard is this"? 

 

Perhaps you've missed the debate where it is proposed that not explaining what happened can lead the police to suspect you, and being human, they then don't look seriously into other possible suspects since they already have the right guy, at least in their mind?

[TrickyNicky]

I'm familiar with the debate, I just can't imagine any LEO in their right mind that wouldn't understand you wanting to keep silent until you had a legal representative present. You think they wouldn't do the same if they were involved in a shooting, on or off the clock? They might give a cursory explanation for what had happened, which is fine, and then have an attorney and/or union rep present for the investigation interviews.


It's well within your rights and IMO certainly within reason.

[Worriedman]

Who thinks that a government intent on divesting you of your liberty is going to allow you to invoke 5th Amendment Rights by declaration?

Edited June 18, 2013 by Worriedman

[Guest PapaB]

So, according to SCOTUS, if you wish to not answer questions, you have to invoke your 5th amendment right to remain silent before you're informed of your right to remain silent, otherwise your silence can be used against you in court. If you don't remain silent, before being informed of your right to remain silent, that can also be used against you in court.

 

That actually fits with this story.

http://www.foxnews.com/us/2013/06/17/west-virginia-teen-arrested-for-nra-shirt-officially-charged/?test=latestnews

 

 

Jared Marcum, 14, appeared before a judge Monday and was hit with formal charges that carry a maximum $500 fine and up to a year in jail.  The Logan County Police Department initially claimed that Marcum was arrested April 18 for disturbing the education process and obstructing an officer.

Arresting officer James Adkins claimed that Marcum’s refusal to talk obstructed his ability to do his job...

 

When I read that, I thought officer Adkins was crazy, until I saw this SCOTUS ruling.

[Guest PapaB]

How hard is this, "officer, my intention is to fully cooperate with you (the police) during your investigation. However at this time I am choosing to remain silent until I have spoken to an attorney."

 

Or maybe this, "Officer, I was in fear for my life. While I do plan on offering my full cooperation through the course of the investigation, I am choosing to remain silent until I have spoken to an attorney."

 

 That might be too much information under this ruling. I've recently seen and heard lawyers and former judges say you can't make a statement and then try to invoke the 5th. Both of your suggestions involve a short statement prior to invoking. Until I hear otherwise from a lawyer I'd say "Due to a recent Supreme Court ruling, I'm invoking my 5th amendment rights at this time." They might not like it, but they can't use it against you in court.

 

Of course, that's only if I'm involved in the situation. If I'm just a witness I'll be spilling my guts.

 

BTW, this is a topic that may be better suited to newsworthy reports or general chat for better coverage. Perhaps a moderator will move it.

Edited June 18, 2013 by PapaB

[RobertNashville]

Didn't see this in a glance over the first page....in short, if you keep your mouth shut during questioning BEFORE you are arrested, this silence can be used against you if you don't verbally invoke the 5th. Seems like this would change the age old debate of what to say or not say after a SD shooting.

 

Would appreciate thoughts and opinions on this.

 

Link

Prosecutors during a trial are ALWAYS going to cast aspersions on a defendant during a trial; whether he was "silent" or not - sometimes’s casting aspersions and innuendo is 99% of all they have in their bag. However, that doesn't mean it's better to talk and say something stupid or incriminating during an interview immediately following a SD shooting.  Most police agencies understand this and they won't even question their own officers until two or three days after the incident because they KNOW that a person's mind is not "right" immediately following that kind of event. Why should a civilian be granted any less consideration???

 

Moreover, no attorney I've ever talked to nor trainer I've ever trained with that says to say nothing. Rather, they encourage you to have a short statement already committed to memory that you can make to police immediately after a SD shooting and THEN offer no additional information.

 

I'm in a two day training course on this very subject with Massad Ayob in a couple of weeks...I'd be willing to bet he'll have something to say about this decision.

[Makiaveli]

Prosecutors during a trial are ALWAYS going to cast aspersions on a defendant during a trial; whether he was "silent" or not - sometimes’s casting aspersions and innuendo is 99% of all they have in their bag. However, that doesn't mean it's better to talk and say something stupid or incriminating during an interview immediately following a SD shooting.  Most police agencies understand this and they won't even question their own officers until two or three days after the incident because they KNOW that a person's mind is not "right" immediately following that kind of event. Why should a civilian be granted any less consideration???

 

Moreover, no attorney I've ever talked to nor trainer I've ever trained with that says to say nothing. Rather, they encourage you to have a short statement already committed to memory that you can make to police immediately after a SD shooting and THEN offer no additional information.

 

I'm in a two day training course on this very subject with Massad Ayob in a couple of weeks...I'd be willing to bet he'll have something to say about this decision.

 

I knew that was part of their tool kit, but was under the impression that it was something they had to work in, IE they couldn't bring it up without a justification of some sort. This would seem to imply they could just flat out tell the jury he obviously had something to hide etc etc.

 

As to them granting a civilian the same courtesy, that's an easy one in my opinion. They would presume the officer is innocent, and even if he did make a mistake, many would be willing to let it slide if they could see themselves in the same boat. So yea, giving him some time to get his wits together, so as to not risk a media explosion over a stupid statement. Whereas a civilian, who is a complete stranger to them, there job is to find out why they did it. The best way to get the truth is ask them right then and there as a criminal would use the time to polish there story.

 

FTR, I may not have made the best argument above, but I don't have time to sit and polish this post. I am not slamming the rank and file officers here. I am slamming the brass as I've seen innocent officers railroaded on stupid charges just so the dept can give them a day off and make it look like they are policing the police if you will. 

 

The prepared statement idea sounds like great advice, and I would love to hear what Mr. Ayoob has to say. FTR I am not even a little jealous of you getting to attend. :)

[RobertNashville]

The prosecution has to paint a picture of what they think happened (their theory of the crime)...their job, so to speak, is to paint the defendant in the worst light possible. After all, they believe and they want the jury to believe that the defendant is guilty of whatever he is charged with. I'm not saying they will lie but they will do their best to make the defendant look guilty so if insinuating that he has something to hide because he didn't speak at all I'm sure they will.  As far as I can tell, all this decision means is that people ought to do what most attorneys tell them to do anyway, say I don't want to speak or be interviewed, etc. without my attorney present and/or invoke the 5th amendment.

 

As to the police/civilian thing...i don't care what the police think...when the police are investigating a crime they are NOT your friend which is why it's best to stick to your already memorized statement and then shut up.

 

The fact that most police departments, as a matter of policy, wait a couple of days after the incident before they interview the officer involved in a shooting is something your attorney should raise at trial....your attorney and/or expert witnesses often have to "educate" the judge and jury about such things ('cause I bet you the prosecution isn't going to do so).  That's one reason why if you are ever at the defendant's table you need an attorney who knows how to defend someone in a SD shooting.

I'd bet Zimmerman's attorney wishes he had waited a couple of days before opening his mouth about that night...had Zimmerman been able to calmly think through everything and had the help of an attorney his life might be a lot different now.