Just Shutup, Part 1

Myth 1: When a police officer questions me, I must respond.

First, I want to disclaim: Thank god for this myth. If every petty criminal were intelligent enough to know that this myth is not true, our criminal system would buckle. Police hands would be even more tied than they are now. However, knowledge is power and since our Byzantine legal system requires that knowledge, this post remains.

Donny lives in a shady neighborhood. He is a good, mostly law-abiding citizen, but has friends who he knows are law-breakers - let's just assume they are drug dealers. Donny is not a model citizen because he doesn't rat out his friends, and he does this for a few reasons, the most important being his safety. An intelligent detective comes to find these drug dealers and the old lady landlord says Donny has information and may even be one of the drug dealers. The detective stops Donny in the street to question him. What are Donny's options?

He can tell all he knows. He can talk minimally to try and get the detective off his back. He can lie and try and throw the detective off the scent. He can shutup.

The 5th Amendment of the U.S. Constitution is more powerful than most people know. Let me just quote the pertinent part here: ...nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law []. Now, anybody who avidly watches Law & Order, or any other courtroom drama iteration, will understand the first part of the quoted Amendment. If you are asked a question in the courtroom that makes you either implicate yourself (or commit perjury and lie) you can raise the protection of "the fifth." The latter part, which most people don't understand, are the protections outside of the courtroom.

Let's get back to Donny. There is a binary question that must be answered. T he question is whether Donny is in custody. Now you answer will obviously Donny is not in custody if the detective just walks up to him in the street. This is usually true, but take these additional facts. Donny steps under a doorway to get out of the rain. The doorway is locked, and Donny has no access to the lock. The detective stands in the doorway so that Donny cannot easily get past without pushing the detective, and when Donny tries to push past politely the detective physically stops him. Many courts would consider this custody. Donny is deprived of liberty momentarily. Custody does not require handcuffs.

If Donny is taken into custody, his rights change (this will be discussed in Just Shutup, Part 2). But, out on the street not in custody of the detective the Fifth Amendment allows Donny to just walk away.

The detective's job is to root out the truth and find the perpetrator. To do this he might question Donny in a way that makes it seem as if Donny is a suspect (and he may as well be for this scenario). Most detectives know how this works; they have to get the person to speak of his own free will. So as Donny is walking away, the detective is chasing after Donny and telling him how Donny is on the chopping block, do the right thing, or any number of fish hooks.

This is where most stupid criminals may trip up. Now they have been implicated. The detective asked him, "Donny, are you dealing drugs?" If Donny says "no," but is later charged as a knowing accomplice, this evidence may be used against him. If Donny says "yes," the detective is going to handcuff him and definitely take him into custody. But, most Donnys feel the need to answer. If they don't, most people feel like then they are practically saying, "yes, I deal drugs." The reasoning goes if you don't have anything to hide.

This is not the case. The detective cannot assume guilt from silence. Sure, the detective may feel that Donny is hiding something and use other means of finding out the information. But, nothing can be assumed from choosing to hide behind the rights of the Fifth Amendment. If every Donny out there knew this, the efficiency of detective and police work would plummet.

So what should you take from this, good citizen? Am I saying never tell nothing to nobody? No, obviously the police and your neighborhood can benefit from your help. Say a neighbor murdered his wife a few doors down. Your answers to the police may help a lot, and you might really want to help them. On the other hand, there might be times when nothing you say will help that person's case and it might make things worse for you (a portrait I tried to paint with Donny).