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Subscribe to this list via RSS Blog posts tagged in Remain Silent

It's not a perfect system.  It is a system of people, and people make mistakes.  So the system is only as good as the people in it.  

 

False Allegations:  Sometimes the trouble starts when people accuse others of crimes that didn't happen.  It happens frequently, but the damage is greatest when the innocent person is accused of something like rape or child molestation.  An objective investigator can ferret out false allegations, but too often they presume the honesty of the "victim" without question.

  1. Student Arrested In False Sex Assault Report On Campus
  2. Woman Lied About Rape to Get Boyfriend Home from Military (But then they cut her a break.)
  3. Woman Cries Rape Because She Didn't Enjoy It
  4. ELEVEN False Rape Claims
  5. Campus Rape Claims Prove False
  6. Man Beaten To Death After False Rape Allegation.  Apparently, the cheating female didn't want to admit that the sex was consensual.
  7. Student Charged Over False Sexual Assault Accusation. 

 

False Arrests: False arrests aren't as bad as convictions, but they can be costly for taxpayers too.

  1. LONG ISLAND WOMAN RECEIVES $1.12 MILLION FOR FALSE PROSECUTION
  2. New York City Arrests, Prosecutes, Eventually Settles With Legal Knife Owner for $7500 (Note that his public defender told him to plea guilty even though he had committed no crime.
  3. Judge Looks Away While Officer Arrests Woman Accusing Him of Assault
  4. $25,000 For Woman Arrrested For Recording Police
  5. Connecticut Man Sues For Unconstitutional Arrest  because he wrote profanities on his ticket.
  6. Audio Recording Exonerates Uber Driver Falsley Accused Of Rape

 

False Confessions:  The easiest way to not be tricked into a false confession is to refuse to speak to the police at all.  But unfortunately, police are very good at getting people to talk.  So sometimes, false convictions are based on false confessions.  (Yes, people sometimes really do confess to things they didn't do.)

  1. The 5 Most Controversial False Confessions
  2. Why Do People Confess to Crimes They Didn't Commit?
  3. False Confession Sent An Innocent Man To Prison For 22 Years
  4. Why Do Innocent People Confess?
  5. List of False Confession News
  6. Famous False Confession Cases
  7. False Confessions Plague Criminal Justice System With Wrongful Convictions and Wrongful "Guilty" Pleas

 

False Convictions:  Here are a few articles I've collected about those who were wrongfully convicted of crimes they didn't commit.

  1.  Wrongly convicted man released from US prison after 39 years
  2. Man in prison 19 years freed after claim recanted
  3. Georgia General Assembly Awards Wrongfully Convicted Man $400,000
  4. The Staggering Number of Wrongful Convictions in America

 

 

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The Free Thought Project has published their own Top 10 Reasons to Not Talk to Police.  It's similar to my own list but this advice can't be given often enough.

Here is their list:

REASON #1: Talking to the police CANNOT help you.

REASON #2: Even if you’re guilty, and you want to confess and get it off your chest, you still shouldn’t talk to the police.

REASON #3: Even if you are innocent, it’s easy to tell some little white lie in the course of a statement.

REASON #4: Even if you are innocent, and you only tell the truth, and you don’t tell any little white lies, it is possible to give the police some detail of information that can be used to convict you.

REASON #5: Even if you were innocent, and you only tell the truth, and you don’t tell any little white lies, and you don’t give the police any information that can be used against you to prove motive or opportunity, you still should not talk to the police because the possibility that the police might not recall your statement with 100% accuracy.

REASON #6: Even if you’re innocent, and you only tell the truth, and your entire statement is videotaped so that the police don’t have to rely on their memory, an innocent person can still make some innocent assumption about a fact or state some detail about the case they overheard on the way to the police station, and the police will assume that they only way the suspect could have known that fact or that detail was if he was, in fact, guilty.

REASON #7: Even if you’re innocent, and you only tell the truth in your statement, and you give the police no information that can be used against you, and the whole statement is videotaped, a suspect’s answers can still be used against him if the police (through no fault of their own) have any evidence that any of the suspect’s statements are false (even if they are really true).

REASON #8: The police do not have authority to make deals or grant a suspect leniency in exchange for getting as statement.

REASON #9: Even if a suspect is guilty, and wants to confess, there may be mitigating factors which justify a lesser charge.

REASON #10: Even for a completely honest and innocent person, it is difficult to tell the same story twice in exactly the same way.

It's a good list.  Read the details here.

 MORE:

Why Do Innocent People Confess?

$teakley'$ Golden Rule$

Top 10 MORE Things Clients Do To Damage Their Cases

Top Ten Ways to Damage Your Criminal Case

Famous False Confession Cases

False Confessions Plague Criminal Justice System With Wrongful Convictions and Wrongful "Guilty" Pleas

The Sad Case of Lester Eugene Siler

Don't Talk To The Police - EVER!

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Posted by on in Criminal Defense Blog

Here's a long, thorough look at some of the reasons behind false confessions.  Let me reiterate that if people would just refuse to talk to the police at all, a false confession wouldn't be a possibility.  That's one of Steakley's Golden Rules.

On the other side of the equation, law enforcement agencies should adopt policies requiring the recording of interrogations whenever possible.

Full Article

After decades of resistance, even the FBI has finally agreed to start recording interviews.

 MORE:

False Allegations, Arrests, Confessions and Convictions

Another Top 10 Reasons to Remain SILENT

FBI To Finally Start Recording Interrogations

List of False Confession News

Top Ten Ways to Damage Your Criminal Case

Famous False Confession Cases

False Confessions Plague Criminal Justice System With Wrongful Convictions and Wrongful "Guilty" Pleas

Don't Talk To The Police - EVER!

 

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Most people are shocked to learn that the FBI has until this year refused to record investigations.  By not recording investigations, a jury will hear only the FBI agent's summary of what was said, not what was actually said, and that is how the FBI liked it. 

But things change.  The FBI says they will now start recording interrogations "when possible."   Now if only state and local law enforcement would follow suit, we would all be better off.

More here, and here.

Forbes has a long piece here.

MORE:

Don't Talk To The Police - EVER!

False Confessions Plague Criminal Justice System With Wrongful Convictions and Wrongful "Guilty" Pleas

Famous False Confession Cases

Top Ten Ways to Damage Your Criminal Case

List of False Confession News

Why Do Innocent People Confess?

Another Top 10 Reasons to Remain SILENT

False Allegations, Arrests, Confessions and Convictions

 

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Popular Mechanics magazine has posted their "Top Ten Tips to Avoid Speeding Tickets."  Of course, my favorite is #4:

Keep quiet. Diamond says to present your license and registration and insurance card, and that's it. "You don't have to answer [anything] else—you have to say you're asserting your right to stay silent, or 'Please speak to my lawyer.' Do it in a polite way, nice and respectful. Antagonists get the most tickets. There are no warnings for a**holes." 

It's good reading and generally good advice.    Enjoy.

Top Ten Ways to Damage Your Criminal Case

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In the United States District Court for the Eastern District of Wisconsin, case 13-M-449, titled "In the Matter of the Decryption of Seized Data Storage System," the court has held that the owner of several hard drives seized by the FBI cannot be compelled to come to court and decrypt the drives for the FBI, because that would violate the Constitutional protection against self-incrimination. 

From the opinion:

On January 22, 2013, a warrant was issued allowing the FBI to enter and search Feldman’s residence, including electronic storage media, for evidence of child pornography. The warrant was executed two days later. 

During the search, Banner spoke briefly to Feldman before he invoked his right to counsel.  Specifically, Feldman stated that he had lived at his current residence for the past 15 years, and that he was the sole occupant of the residence.  Other evidence showed that Feldman is the only person paying taxes and receiving mail at his residence.  Feldman has a computer science degree from the University of Wisconsin–Madison.  He is a longtime employee of Rockwell Automation, currently holding the title of Senior Software Development Engineer.  In 2010, Feldman filed as a co-inventor for a U.S. patent for a “system and method for interfacing with an enterprise resource planning system.” 

Agents seized 16 storage devices during the search.  Five devices showed no traces of electronic data, and two devices were not encrypted.  The remaining nine devices contained data inaccessible due to encryption.  The encryption programs on the storage devices appeared to be the sort that would lock or damage data if too many incorrect password guesses were made. FBI analysts have spent over four months attempting to access the encrypted files without success. 

On one of the unencrypted devices, a Dell computer, FBI examiners found a peer-to-peer software program called “eMule.”  Within eMule, log files indicated that 1,009 files were received, distributed, or stored using eMule, with most of the files having titles mainly indicative of child pornography.  Examiners also found evidence that some of these files had been downloaded to various devices connected to the Dell computer—particularly, the “F,” “G,” and “I” drives.  The “I” drive corresponded to one of two encrypted devices.  The “F” and “G” drives might correspond to any of the other connected devices.  The Dell computer’s login screen showed only one username, “Jeff.”

So it seems pretty clear that this guy has been downloading some child porn and most likely storing it on encrypted external hard drives.  The FBI apparently gave up trying to break through the encryption themselves and went to the court to force Feldman to do it for them.  But doesn't that violate his right to remain silent?

Yes it does, said the court: 

[T]he government has shown that the encrypted devices contain data. In addition, during the search of the unencrypted Dell computer, the government found a peer-to-peer software program whose log files indicated that 1,009 files were received, distributed, or stored using the program, with most of the files having titles mainly indicative of child pornography. Examiners also found evidence that some of these files had been downloaded to various devices connected to the Dell computer, including one of two encrypted devices. In short, the government already knows the names of the files (which indicate child pornography) and their probable existence on the encrypted hard drives. Under these facts, “[t]he existence and location of the [files] are a foregone conclusion.”

Still, however, there is an issue of possession and authenticity. Feldman has a computer science degree, is a longtime employee of Rockwell Automation (currently, he holds the title of Senior Software Development Engineer), and filed as a co-inventor for a U.S. patent for a “system and method for interfacing with an enterprise resource planning system.” Accordingly, unlike in Subpoena Dated March 25, 2011, here, the government has shown that Feldman may very well be capable of accessing the encrypted portions of the hard drives.

But the following question remains: Is it reasonably clear, in the absence of compelled decryption,7 that Feldman actually has access to and control over the encrypted storage devices and, therefore, the files contained therein? To be sure, the storage devices were all found in Feldman’s residence, where he has admittedly lived alone for the past 15 years. In addition, the unencrypted Dell computer, which showed connections to the encrypted storage devices, has a login screen with only one username, “Jeff.” Nevertheless, unlike in Boucher and Fricosu [cases], here, Feldman has not admitted access and control.

This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with “reasonably particularity”—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.

So it seems that what really violates his Fifth Amendment protection is admitting that he can decrypt the drives, not necessarily the act of decrypting them.  If the officer had asked early on, "Can you decrypt these for us if you wanted to?" and Feldman had said yes, the case may have turned out differently.

From JSOnline:

FBI Special Agent Brett Banner suggested in an affidavit that the increasingly common use of encryption could become a real hardship for law enforcement if courts don't order suspects to decrypt possible evidence.

Well, yes, it could become a real hardship for law enforcement if citizens had a way to keep things private from the authorities.  That's the point, Agent Banner.  The point of the Constitution and the Bill of Rights is to protect citizens from government.  That means citizens don't always have to do what the government wants, no matter how much the government wants it.

Encryption is amazing stuff when used correctly.  I prefer TrueCrypt myself.  Use a strong key.

UPDATE:  TrueCrypt has fallen into disfavor since this blog post was published, although it still works for many functions.  Here are some alternatives to TrueCrypt:  https://www.comparitech.com/blog/information-security/truecrypt-is-discoutinued-try-these-free-alternatives/

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To follow up my previous post "You Are Probably A Child Pornographer", we have a young Arizona couple who made the increasingly-unwise mistake of taking their family photos to a Wal-Mart: 

In 2008, Lisa and Anthony "A.J." Demaree took their three young daughters on a trip to San Diego. They returned home to Arizona and brought photos of their then 5, 4 and 1 1/2 year old daughters to a local Walmart in Peoria to be developed.
 
. . . Walmart employees reported the Demarees to the Peoria Police Department on the suspicion that they had taken pornographic images of their children. The police, in turn, called in the Arizona Child Protective Services Agency, and the couple lost custody of their daughters for over a month.

Apparently the Demaree's had photographed their children during and immediately after their baths because they thought their children were being cute.

A Maricopa County Superior Court judge ruled that the photographs were not, in fact, pornographic, and a medical exam revealed no signs of sexual abuse. The girls were returned to their parents.

Good for you, Judge.  But was it really necessary for a medical exam to probe these little girls' nether regions? 

The couple's named went on a central registry of sex offenders, and "We've missed a year of our children's lives as far as memories go," Demaree told ABC News.

So, having done nothing wrong; having been convicted of no crime; these parents were nevertheless branded as "sex offenders" and separated from their children while strangers probed their daughters' vaginas.

In 2009, the couple sued the city of Peoria and the State Attorney General's office for defamation. They also sued Walmart for failing to tell them that they had an "unsuitable print policy" and could turn over photos to law enforcement without the customer's knowledge.
 
A federal judge in Phoenix sided with Walmart, ruling that employees in Arizona cannot be held liable for reporting suspected child pornography. The Demarees appealed to the 9th Circuit Court of Appeals, and on March 6 the court held a hearing before three judges. It's unknown when the appeals court will rule on the case against the city and Walmart.

So expect Wal-Mart to look at your family photos. 

Walmart did not respond to an interview request from ABC News. But, according to Courthouse News the company's lawyer, Lawrence Kasten, argued that under Arizona statute employees who report child abuse without malice are immune from prosecution. He added that there was no indication of malice in this case.

The problem isn't Wal-Mart. They are in a no-win situation because of "mandatory reporting" laws.  Most states have laws that not only encourage the reporting of suspicions of crimes against children but punish the failure to report it.  (Apparently, our governments do not believe that we citizens are moral enough to report such things voluntarily and thus must be threatened with punishment for failing to do so.)  Wal-Mart is trying to error on the side of caution by reporting anything that might remotely be criminal, lest their employees face criminal charges for not reporting it. In other words, the law has left no room for common sense.

The story is here.

So if you are a parent of anyone under 18, remember that Big Brother is watching.  Big Brother has also conscripted Wal-Mart, teachers, doctors, and anyone else they can to help keep an eye on you through "mandatory reporting" laws.  Do not photograph or video your children doing anything without appropriate clothing.  If you do have such videos or photographs, do not email or text them, or post them on the internet.  Keep them on an encrypted hard drive with a strong key.  And if anyone from the government asks for permission to search, the correct answer is "no." 

Protecting yourself from government stupidity begins with protecting yourself from the government.

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Posted by on in Criminal Defense Blog

A woman in England has been arrested for making false rape allegations for the eleventh time:

Elizabeth Jones, 22, was exposed when CCTV footage disproved her allegation against a man she ‘did not like any more’.  She had made her first false rape claim in 2004 when she was just 13. . . . Between 2005 and 2007 she made another eight allegations which police investigated and dismissed. . . .   In 2009 she was sentenced to a ten-month detention and training order for a similar offense. 

Jones’s latest victim was a boyfriend against whom she made the allegation after the pair had an argument.  Police began an investigation after Jones . . . persuaded a friend to report she had been assaulted.

So not only does she fool the cops, she fools her friends.

She later went to the police station for a medical examination and repeated her allegation. The man was arrested and questioned for nine hours before being released without charge.  Prosecutor Jennie Rickman said he denied rape and detectives later viewed CCTV covering part of the house in which Jones claimed to have been attacked.  The video did not support her story that the man forced himself on her.

So because she screams rape and puts on a show, some poor guy gets arrested, booked, photographed, fingerprinted, and interrogated for nine straight hours.   That's the sort of thing that leads to innocent peple making  false confessions just to get the cops off their back.

What if the CCTV footage hadn't existed?  It wouldn't just be her word against his, because these medical examinations almost always find a way to support the accuser.  It's usually some weasel words like "the medical findings are consistent with the patient's accusations" or are "not inconsistent with sexual assault."  Jurors latch on to that as proof of rape, even when the medical evidence is just as consistent with consensual sex.

I feel sorry for any man accused of rape, because they don't get fair trials. I've tried several rape cases in my career, and I'm always amazed at how closed-minded some potential jurors are. I've had potential jurors say, "A woman would never lie about being raped" and they mean it.  I guess these people have never heard of the Runaway Bride

It's tough for a man accused of rape to get a fair trial.  Men accused of rape or any other sexual offense need to make sure they have an experienced attorney on their side before walking into the courtrom.  

-John

UPDATE:  Here's another example of an innocent man accused of rape because the "victim" didn't want to confess to consensual sex with her friend's boyfriend.

Ashleigh Loder, 25, wasted at least 100 hours of police time by inventing the assaults.  She first told officers she had been attacked by two strangers in an alley before changing her story to say a man she knew had forced her to have sex in her home.

In the UK, there's more aggressive prosecution of false claims than in the US.  Note, though, that this article is written to complain about the prosecution of false claims, not applaud it.


UPDATE II:  To make the double standard worse, we have people like Zerlina Maxwell arguing that any woman claiming rape should be automatically believed.  That's the attitude men are up against in court.

 

Famous False Confession Cases

 

Woman Cries Rape Because She Didn't Enjoy It

 

False Confessions Plague Criminal Justice System With Wrongful Convictions and Wrongful "Guilty" Pleas

 

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Being accused of a crime is bad enough, but some people still manage to make their bad situation even worse.  Based on my seventeen years in this profession, here are the top ten ways I see people damage their criminal cases:

1. Skip bail.  If you fail to show for court, you're going to lose whatever respect the judge may have for you as well as give the proseuctor an argument for why you aren't a good candidate for probation.  The judge will issue a warrant for your arrest which will pop up at the worst possible time, like when you are standing at the airport trying to leave for vacation or when you get stopped for speeding on the way to your daughter's wedding.

2. Move, but don't tell anyone.  If I can't find you then your bail bonding company probably can't find you and the court can't find you, so now it looks like you've skipped bail, because you won't get court notices in the mail and you won't get letters from your attorney.  See #1.  Just because you may have told the Post Office your new address doesn't mean the Judge has it.  It is not the job of the court system to hunt you down. It is your job to keep them informed of your whereabouts.  If you don't want to do that, at least tell your lawyer and bail bondsman.

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Posted by on in Criminal Defense Blog

Not everyone arrested and accused of something is guilty, even when the arresting officer is a decorated rising star.  Cops are human and make mistakes.  Sometimes they error on the side of arrest and "let the lawyers figure it out."  And then sometimes they are purposefully falsifying the whole thing:

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Posted by on in Criminal Defense Blog

I've written elsewhere in the blog about false confessions, but most people don't realize there are some very famous cases involving false confessions, including the Lindbergh Baby, the Black Dahlia, the "Central Park Jogger" cases from the 1980's, and Atlanta's own John Mark Carr

Police are trained in getting people to talk.  Sometimes, they do their job too well, getting people to confess to things they didn't do.  Most people think of torture and physical abuse when they think about making someone admit to a crime they didn't commit, but police tactics can be much more subtle.

Using techniques as subtle as where they sit you in the room to more cliche techniques like "Good Cop / Bad Cop", police can often pressure people into talking.  "Pressure" may not even be the best word, as the initial attempt is usually to make the subject feel very comfortable and safe talking to the officer.

But how do the police give people the information the people need to sound guilty?  Police can, accidentally or intentionally, "seed" or "plant" facts and information into the conversation that the target picks up as their own information.  If it is a case that has been in the news, it's not hard to gleen facts or fill in blanks to make a story seem like it's coming from someone who was there for the crime.

False confessions lead to false guilty pleas.  Of the people exonorated by DNA, some of them pled guilty!  Why plea to a crime they know they didn't commit?  Often it is to avoid the death penalty or a lifetime in prison (as opposed to decades). 

The points to take from this are that just because someone confesses doesn't mean they are guilty.  Just because they plea guilty doesn't mean they are.  All this trouble starts with people talking to the police on their own without a lawyer present, so NEVER DO IT.

 

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This is the one thing most clients get wrong.  When I first becamse a prosecutor, I was amazed at how many cases are built around a confession.  Clients think they can talk their way out of trouble or that remaining silent will look worse than talking.  Cop have tactics to encourage people to talk, such as "minimization" and accusatory questions.  Most people are shocked to learn that cops are allowed to lie to suspects to convince the suspects to talk.

Then there are cops that just torture people until they get what they want, but we can discuss that in another post sometime. 

Regent U. law professor James Duane does an outstanding job explaining why even the most innocent of suspects should never talk to the police absent a lawyer.  Unfortunately, most citizens do not learn this lesson until it is too late.  For that reason, it is often important to address a client's statement to the police early in the case to determine whether it is admissible in court against him or her. It's a long video, but it's worth it.

If you are detained (meaning you aren't free to walk away) by an officer, you should wait until you've consulted with an attorney before dealing with the police.  Give them your correct name and date of birth (or SSN) and then ask if you are free to leave.  If you are, leave.  If you aren't, ask for a lawyer.

 

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