Mar 28, 2008 The ambiguity of silence; the silencing of ambiguity
Undoubtedly, cops have legions of tricks to convince suspects to give up their Miranda right to remain silent, starting with delaying an arrest and detention so as not to need to give such rights yet, proceeding to intimidating body language (including patting the cop’s handgun and handcuffs), and proceeding to leaving the suspect the choice between languishing in a depressing, decrepit, smelly, and confining lockup while waiting the weekend to see a judicial officer for a bond review or to be taken on a McDonald’s field trip with unlimited Coca Colas and fries in exchange for spilling the beans. Of course, the "persuasion" methods to getting a waiver of Miranda rights can become more sinister, including police lying that Miranda rights were given and waived in the first place, threatening harm or other problems to the suspect or his or her loved ones, alternatively yelling and mollycoddling the suspect (sometimes through good cop/bad cop or a legion of them parading in and out and at times leaving the suspect alone, in suspense over what will happen next, and whether a good cop or back cop will enter next) over a sustained period of time, and proceeding to all sorts of physical discomfort that reveal no visible scars or bruises (including forcing the suspect to sit in underwear on an ice-cold steel chair or to be blindfolded with a urine-soaked cloth); ask the CIA and other interrogators of suspected terrorists for additional methods of such heavy-handed interrogation methods.
Cops should have little to no excuse for not using videocameras for interrogations to enable judges and jurors to reach their own conclusions about the extent to which a confession is voluntary. Of course, the videotape only captures what the camera and editing show, still leaving questions about what takes place before and after the camera rolls, outside of the camera’s view (e.g., is a cop standing behind the camera pantomiming the slitting of the suspect’s throat should s/he not "please" the cops), and in front of the camera, too (sound and picture quality always can be altered through editing or distorted by poor quality of the equipment or use of the equipment, and by dimming of lights and playing loud noise in the background).
Last Tuesday, Steve Silverman of FlexYourRights.org and I talked to a bunch of George Washington University law students about their rights with the cops, which revealed how critical are the Busted video and such rights lists as ours. Even for law students who on the intellectual level understand the right to remain silent and to refuse searches, numerous of the students still wondered, for instance, whether refusing to talk with cops or to consent to searches (since when are police "consent searches" consensual in the first place?) will make them harass suspects all the more or even to assault them. As Steve always emphasizes, if a suspect gives up such rights with merely a fear of harassment, being beaten, or other detriment without being able to relate that fear to anything concrete done by the cops, then the suspect has given up much chance of getting evidence suppressed. When a suspect calmly and peacefully says the mantra "no" to all searches and statements, the cop is left with a peacefully annoying person and with more reason to seek out a more pliable crime suspect than to continue to have to deal with a person who incants "no" — as peacefully as Gandhi, who hated nobody — as if it were religious gospel.
No means no, and saying no or remaining fully silent (possibly even with a Gandhian calm smile (watch out for the cop intoning "What’s S/HE smirking about?)) will help prevent the cops from finding ways to push past the no. For instance — and this is not meant to give cops any ideas, but they probably already know the following approach — if a suspect refuses to speak to the cops, the bad-playing cop may turn to the good-playing cop, and yell in front of the suspect: "Mr. amateur lawyer wants to play difficult. Fine, then, please write up your report, and say the suspect refused to talk or cooperate. What a stupid move; how the hell can the prosecutor give a fair shake to the suspect if we don’t have his version of the story? Maybe there is an innocent explanation for all this, but the suspect’s not telling us a damn thing."
When suspects deal with cops, it is like an amateur playing against a decorated pro basketball player. Saying no to cops is the only way to start leveling that playing field, which can only be fully leveled by bringing in a qualified criminal defense lawyer. However, do not put it beyond cops to try to deprive a suspect from access to a lawyer for a long time, including during the time a suspect waits to get photographed, fingerprinted, and further "processed" before waiting longer still to appear before a judicial officer to have a bond set.
Most people cannot remain silent very long. It might work for a few minutes or one or two hours for those with more fortitude. However, remaining silent becomes harder as the suspect languishes in a police car slowly taking the longest, most uncomfortable roundabout route to the destination; and often in the initial instance deprived of food and water, reading materials, and much or any telephone access. It can be excruciatingly difficult to remain silent in the back of a police car or in the police "processing room" (ostensibly for taking mugshots and fingerprints) while two cops talk in front of the suspect about how some "misguided" do-gooder group has convinced the defendant to remain silent where in the real world "that the do-gooders never see" the suspect would be better served to talk. Even for a suspect to break the silence by talking about things seemingly unrelated to the suspected crime is a bad idea. For one thing, anything a suspect says (and the suspect’s demeanor) can be intentionally or unintentionally twisted around by cops to the suspect’s detriment. Second, saying anything to the cops leads down a Simon-says path, which gets the suspect’s tongue wagging about something (even if it is only about March Madness) and gives the cops an opening to steer the conversation back to the suspected crime (for instance: "Too bad you won’t be seeing any more March Madness if you don’t get out of the lockup.")
What happens when a suspect asks a cop: "What happens to me if I refuse a search, or if I refuse to talk?" I imagine the cop replying: "We cannot help you if we don’t have your version of what happened, or if we cannot independently verify your explanation with a search of you or your car." The cop might also initiate the following to his or her partner in front of the suspect: "What a fool not to talk with us or to let us search. If s/he has nothing to hide, wouldn’t s/he cooperate with us? If the suspect’s explanation is convincing, we can let him or her go, rather than detaining further. If we find nothing through a consent search, the suspect can go, rather than our waiting a long time for the drug-sniffing dogs ("What’s that you say? Our dog handler can’t be here for another four hours, in this rain?) or for us to get a search warrant ("How many hours will it take us to get a judge to sign the warrant? They are all asleep now.")
Thus, we return to the power of just saying no to the cops.
Some suspects might fear keeping silent or refusing a police search, lest the suspect look guilty in front of the jury for having made such a refusal. However, invoking the right to remain silent and to refuse a search is not permissible for the jury’s ears. However, the cops do not have to tell suspects that, nor do cops need even to warn suspects that they have a right to refuse a search.
What happens when a non-cop (for instance, a loss prevention officer for a bank) investigates a potential crime and the suspect refuses to speak, or does not return phone calls? Silence and non-responsiveness are too ambiguous to be permitted to be used against a criminal defendant, and this point must be driven home fully to deciding judges. Weitzel v. Maryland, 384 Md. 451, 863 A.2d 999 (2004). This Weitzel case brings us back to the title of this blog entry: "The ambiguity of silence; the silencing of ambiguity." Weitzel supports keeping out a suspect’s silence as being too ambiguous as to both cops and non-cops, let alone as being inadmissible when one refuses to talk with cops. Keeping silent is the best way to eliminate ambiguity in the first place about a suspect’s words. People mis-hear and mis-quote others all the time, starting with newspapers. Cops should not be expected to be any more accurate in relating a suspect’s words than journalists, the best of whom are more skilled than most cops at accurately conveying what a person has said.
The cops might try to trick a suspect into writing down a statement, by saying that "This way, nobody can twist around your words." Oh no? The times must be countless and continuing that a bunch of cops surround a suspect while the suspect writes a statement, nodding to each other in agreement for each phrase with which they approve, and frowning facially and by conversation (and calling the line B.S.) at phrases that do not meet their approval. Furthermore, anything a suspect tells the cops in denying culpability can lead one to Martha Stewarts’s convicted and jailed fate, should a jury deem that the suspect was lying and obstructing justice.
With the cops, no word is more valuable than "no". Jon Katz.