7 ms·

I was on a jury a few months ago (in the UK) where we were given the transcript of the police interview. If it had been a series of refusals to answer, it would

I was on a jury a few months ago (in the UK) where we were given the transcript of the police interview. If it had been a series of refusals to answer, it would have looked very shady. The shock and surprise of the accused was palpable from the transcript and believeable.

edoo 7y ago
In the UK silence can be taken as proof of criminality. In the US the following statement would mean there is no transcript: "I'm asserting my 5th amendment right to silence not because I believe I have done anything wrong but because anything I say can and will be used against me in a court of law"
- philjohn 7y ago
  The "miranda" rights in the UK are "You do not have to say anything. But, it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." But the usual advice of - don't say a damn thing until you have legal representation still stands.
polymatter 7y ago
The UK doesn't have the same right to silence. Nor anything about taking the fifth either. Refusal to answer could be taken as obstruction of justice or contempt of court, and will likely be considered relevant information for a jury.
- jmkni 7y ago
  It goes further in Northern Ireland, the jury are allowed to infer guilt from your silence - https://cain.ulster.ac.uk/othelem/organ/ai/1993-02-01_ai.pdf https://cain.ulster.ac.uk/othelem/organ/ai/1993-02-01_ai.pdf
  - Joeboy 7y ago
    Also in England and Wales, since the Criminal Justice and Public Order Act of 1994 I believe.
- marksweston 7y ago
  This is strongly overstating the case: The UK right to silence is pretty well summarised in the modern wording of the police caution: "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." Staying silent is not obstruction of justice or contempt of court. No one is ever required to respond to questioning. But it might lose you credibility in court of you produce an alibi or other defence at trial that you didn't mention during questioning. The only exception is passwords and encryption keys, which have to be supplied if a court order is obtained and aren't considered testimony.
  - andyjpb 7y ago
    The right to silence was changed to this in the 1994 Criminal Justice and Public Order Act. The reason for the change (AIUI) was due to the arrest of IRA dissidents who remained silent and then produced alibis in court that would have been easy to dispel at the time but were not so easily dismissed in court, once they had gathered support from their communities. Incidentally, the 1994 act also banned music containing "repetitive beats" and legalised anal sex between heterosexual couples, albeit with a number of caveats and conditions. More info is available at the Wikipedia page: https://en.wikipedia.org/wiki/Criminal_Justice_and_Public_Order_Act_1994 https://en.wikipedia.org/wiki/Criminal_Justice_and_Public_Or...
- cameronh90 7y ago
  It's a bit more nuanced than that. Obviously we can't "take the fifth" since we don't share the US constitution, but we do have a right to silence when you're the defendant in typical criminal proceedings and you can't be held in contempt for that silence. However there is no right to silence for example during investigations by the Serious Fraud Office, or when requiring disclosure of encryption keys under RIPA. However in the case of a SFO investigation, if they then want to charge you criminally, you have the right to silence and they can't use evidence you've been compelled to give previously. The RIPA stuff is bullshit and is widely considered overreach but the powers that be really don't want to change it for obvious reasons. In criminal proceedings, you have a right to silence - however in limited, defined situations, adverse inferences can be drawn from that silence. Adverse influences can't be drawn until you've had the opportunity to seek legal advice, so the advice to shut up and ask for a lawyer still stands. The cases where adverse influences can be drawn are things like refusing to answer why you were in a particular place at the time of arrest and for example only coming up with an answer days later or even at court. Your lawyer will of course advise you what you need to answer. That said, irrespective of what the law says and how the judge directs the jury, nothing can stop them drawing adverse influences from whatever they want to draw adverse influences from. So it's possibly worth considering that when deciding to remain silent.
- NeedMoreTea 7y ago
  In one of my stints of jury service, the accused had heavily exercised his right to silence over a lengthy period. At the subsequent trial the judge made a point of instructing the jury we must infer nothing at all from his silence and judge solely on the facts of the case, as presented in court. I do not know what edge cases the addition of "But, it may harm your defence if you do not mention when questioned something which you later rely on in court." was meant to protect against, and how, but it is absolutely nowhere near obstruction of justice or contempt of court.
  - AmericanChopper 7y ago
    > I do not know what edge cases the addition of "But, it may harm your defence if you do not mention when questioned something which you later rely on in court." was meant to protect against Technically this is true. If you make a statement to the police, then that statement can be used as evidence at trial (both against you and in your defence). If you don’t make a statement, then the only way to get your testimony in front of the jury (should that be necessary), is to take the stand, where you will be subjected to cross examination. A process where you (probably not a lawyer) will have to argue with a lawyer who will be doing their best to make you trip over every single thing you say, in front of a jury, for a number of hours. So while it does potentially have a benefit, it’s still always a bad idea, because you’ll want to see the discovery before you say anything at all.
    - jhauris 7y ago
      That benefit seems extremely marginal when the presumption if innocence is the standard. Your explanation for the UK police caution phrasing makes perfect sense, but I wonder now if it's not meant to scare people into talking?
      - AmericanChopper 7y ago
        The presumption of innocence is theoretical at best. A prosecutor will present a theory of the case along with their evidence. Simply undermining that theory is often not enough to convince a jury, they’ll often expect the defence to put forward and substantiate a superior theory. I don’t know the motives of putting that in the warning. But it is at least true, even if it’s almost universally not a good idea.
- hef19898 7y ago
  In Germany you do not have to answer questions in cases you would imply yourself or a family member. No idea how it impacts any trials if you do, but from I read and heard it usually doesn't have negative impacts.
  - Lev1a 7y ago
    > ~~imply~~ > implicate FTFY
- throwawayhhakdl 7y ago
  Refusal to answer can bite you in the ass in the United States. Make sure to say “I want my lawyer” nonstop.
tyingq 7y ago
That goes hand in hand with the UK providing you with a higher quality lawyer if you can't afford it. In the US, the cops try very hard to question you (for hours) without one. And while there is a public defender system, it doesn't usually provide a competent lawyer.
- chimprich 7y ago
  The UK's budget for legal aid has been slashed dramatically in recent years under the Conservative government under the guise of austerity. This is well documented in the (very readable) book "The Secret Barrister". https://thesecretbarrister.com/ https://thesecretbarrister.com/ The author claims that the cuts are not even cost-effective, often leading to more spending by government to deal with the consequences.
  - johnnycab 7y ago
    I will second the book. The author also has a presence on Twitter: https://twitter.com/BarristerSecret https://twitter.com/BarristerSecret
- teddyuk 7y ago
  How do you get to be a lawyer in the US if you aren't competent?
  - tyingq 7y ago
    Passing the bar implies some level of technical competence. It doesn't say much about the service delivered to indigent defendants. I suspect it is a mix of overworked, burned out, jaded, pressure to take a plea deal to reduce load, etc.
  - Broken_Hippo 7y ago
    Well, it isn't always that they aren't competent. Put that same lawyer in a position where they are paid, and I'm guessing things would improve. But what actually happens is that the system makes them incompetent simply being in the job. For example, the caseload is too high, which means that they cannot spend the time a paid lawyer would spend on it. Folks also get little choice in which of these cases they take and which they do not. On top of all of this, they are working in a system stacked against them and they usually aren't getting paid much.
wil421 7y ago
You are not allowed to take the persons silence as a sign of guilt in the US. If you invoke your right there wouldn’t be a transcript.
- n8henry 7y ago
  The US Supreme Court has said that you must invoke your right to remain silent. It doesn't seem constitutional, but it is currently the law. (Salinas v. Texas and People v. Tom)
  - deleted 7y ago
    [deleted]
  - testvox 7y ago
    That's not entirely true. They ruled that silence in a non-custodial interview could be admissable at trial. Silence in custodial interviews is still not admissable and they didn't actually decide the question of whether or not silence can be taken as substantive evidence of guilt.
    - khuey 7y ago
      What is "silence in a non-custodial interview" and how is that different from no interview at all?
      - n8henry 7y ago
        It means remaining silent when you are not under arrest or being detained.
        testvox 7y ago
        Sadly the court considers detainment to be non-custodial and rarely do they venture to better define when a detainment turns into an arrest.
- bnegreve 7y ago
gdfasfklshg4 7y ago
You have no obligation to say anything until provided with a solicitor.
- chrisseaton 7y ago
  You have no obligation to... but the jury can hold that against you. It seems somewhat reasonable to me - if you have an alibi then you should tell that to the Police as soon as practical. Otherwise you're wasting everyone's time.
  - MereInterest 7y ago
    I am not a lawyer. I have not studied law, and do not know what comments are innocuous to make, and what comments would be used against me. I do not know what constitutes an alibi in the eyes of the law. I do not know what questions police are legally allowed to ask. It is unreasonable to expect a person to know the detailed workings of the legal system. It is therefore unreasonable for there to be any negative consequences whatsoever for waiting until there is a legal expert present.
    - chrisseaton 7y ago
      > It is therefore unreasonable for there to be any negative consequences whatsoever for waiting until there is a legal expert present. You don't need to be a legal expert to answer basic questions from a Police officer about did you do something or were you in a location at a time. They aren't lawyers either! And I didn't say you couldn't ask for a lawyer and wait for one to turn up before answering... But if they charge you for speeding, and then you wait six months until the trial, and claim only at that point that you weren't the one driving. Come on... that's a waste of society's time.
      - deleted 7y ago
        [deleted]
      - mattlutze 7y ago
        In many jurisdictions, law enforcement have gray areas as to what they can ask, how they can ask it, and how they can use your answers. Their job is to collect evidence and send it to the prosecutor. They're given wide latitude to collect it as quickly as possible, and while law enforcement and the public attorney's offices are by and large just trying to see justice done fairly, they're almost always understaffed and over-pressured. People act weird in pressure situations. Law enforcement personnel deal with law breaking every day, but the rest of us don't. If you're innocent and confronted with an accusation of a crime, in your resulting heightened emotional state, you don't want to say something stupid or in a way that makes you look unnecessarily suspicious. In this situation it should be ok for you to not answer questions, wait until your involuntary adrenaline reaction wears off, and then have a conversation about it.
bobloblaw45 7y ago
I think this is where having a great lawyer comes in.
3fe9a03ccd14ca5 7y ago
I don’t think he meant never talk to them, but never talk to them until have you’ve set up your legal counsel and sought their advice. People talk all of the time without lawyers, thinking lawyering up might make them look guilty.
jopsen 7y ago
There is a difference been the US and many other places. For starters the prosecution isn't trying to scare people into a plea bargain. Many places the police aren't allowed to lie to you. And many places the police can be called to testify on your behalf.

edoo 7y ago

In the UK silence can be taken as proof of criminality. In the US the following statement would mean there is no transcript: "I'm asserting my 5th amendment right to silence not because I believe I have done anything wrong but because anything I say can and will be used against me in a court of law"

philjohn 7y ago
The "miranda" rights in the UK are "You do not have to say anything. But, it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." But the usual advice of - don't say a damn thing until you have legal representation still stands.

polymatter 7y ago

The UK doesn't have the same right to silence. Nor anything about taking the fifth either. Refusal to answer could be taken as obstruction of justice or contempt of court, and will likely be considered relevant information for a jury.

jmkni 7y ago
It goes further in Northern Ireland, the jury are allowed to infer guilt from your silence - https://cain.ulster.ac.uk/othelem/organ/ai/1993-02-01_ai.pdf https://cain.ulster.ac.uk/othelem/organ/ai/1993-02-01_ai.pdf
- Joeboy 7y ago
  Also in England and Wales, since the Criminal Justice and Public Order Act of 1994 I believe.
marksweston 7y ago
This is strongly overstating the case: The UK right to silence is pretty well summarised in the modern wording of the police caution: "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." Staying silent is not obstruction of justice or contempt of court. No one is ever required to respond to questioning. But it might lose you credibility in court of you produce an alibi or other defence at trial that you didn't mention during questioning. The only exception is passwords and encryption keys, which have to be supplied if a court order is obtained and aren't considered testimony.
- andyjpb 7y ago
  The right to silence was changed to this in the 1994 Criminal Justice and Public Order Act. The reason for the change (AIUI) was due to the arrest of IRA dissidents who remained silent and then produced alibis in court that would have been easy to dispel at the time but were not so easily dismissed in court, once they had gathered support from their communities. Incidentally, the 1994 act also banned music containing "repetitive beats" and legalised anal sex between heterosexual couples, albeit with a number of caveats and conditions. More info is available at the Wikipedia page: https://en.wikipedia.org/wiki/Criminal_Justice_and_Public_Order_Act_1994 https://en.wikipedia.org/wiki/Criminal_Justice_and_Public_Or...
cameronh90 7y ago
It's a bit more nuanced than that. Obviously we can't "take the fifth" since we don't share the US constitution, but we do have a right to silence when you're the defendant in typical criminal proceedings and you can't be held in contempt for that silence. However there is no right to silence for example during investigations by the Serious Fraud Office, or when requiring disclosure of encryption keys under RIPA. However in the case of a SFO investigation, if they then want to charge you criminally, you have the right to silence and they can't use evidence you've been compelled to give previously. The RIPA stuff is bullshit and is widely considered overreach but the powers that be really don't want to change it for obvious reasons. In criminal proceedings, you have a right to silence - however in limited, defined situations, adverse inferences can be drawn from that silence. Adverse influences can't be drawn until you've had the opportunity to seek legal advice, so the advice to shut up and ask for a lawyer still stands. The cases where adverse influences can be drawn are things like refusing to answer why you were in a particular place at the time of arrest and for example only coming up with an answer days later or even at court. Your lawyer will of course advise you what you need to answer. That said, irrespective of what the law says and how the judge directs the jury, nothing can stop them drawing adverse influences from whatever they want to draw adverse influences from. So it's possibly worth considering that when deciding to remain silent.
NeedMoreTea 7y ago
In one of my stints of jury service, the accused had heavily exercised his right to silence over a lengthy period. At the subsequent trial the judge made a point of instructing the jury we must infer nothing at all from his silence and judge solely on the facts of the case, as presented in court. I do not know what edge cases the addition of "But, it may harm your defence if you do not mention when questioned something which you later rely on in court." was meant to protect against, and how, but it is absolutely nowhere near obstruction of justice or contempt of court.
- AmericanChopper 7y ago
  > I do not know what edge cases the addition of "But, it may harm your defence if you do not mention when questioned something which you later rely on in court." was meant to protect against Technically this is true. If you make a statement to the police, then that statement can be used as evidence at trial (both against you and in your defence). If you don’t make a statement, then the only way to get your testimony in front of the jury (should that be necessary), is to take the stand, where you will be subjected to cross examination. A process where you (probably not a lawyer) will have to argue with a lawyer who will be doing their best to make you trip over every single thing you say, in front of a jury, for a number of hours. So while it does potentially have a benefit, it’s still always a bad idea, because you’ll want to see the discovery before you say anything at all.
  - jhauris 7y ago
    That benefit seems extremely marginal when the presumption if innocence is the standard. Your explanation for the UK police caution phrasing makes perfect sense, but I wonder now if it's not meant to scare people into talking?
    - AmericanChopper 7y ago
      The presumption of innocence is theoretical at best. A prosecutor will present a theory of the case along with their evidence. Simply undermining that theory is often not enough to convince a jury, they’ll often expect the defence to put forward and substantiate a superior theory. I don’t know the motives of putting that in the warning. But it is at least true, even if it’s almost universally not a good idea.
hef19898 7y ago
In Germany you do not have to answer questions in cases you would imply yourself or a family member. No idea how it impacts any trials if you do, but from I read and heard it usually doesn't have negative impacts.
- Lev1a 7y ago
  > ~~imply~~ > implicate FTFY
throwawayhhakdl 7y ago
Refusal to answer can bite you in the ass in the United States. Make sure to say “I want my lawyer” nonstop.

tyingq 7y ago

That goes hand in hand with the UK providing you with a higher quality lawyer if you can't afford it. In the US, the cops try very hard to question you (for hours) without one. And while there is a public defender system, it doesn't usually provide a competent lawyer.

chimprich 7y ago
The UK's budget for legal aid has been slashed dramatically in recent years under the Conservative government under the guise of austerity. This is well documented in the (very readable) book "The Secret Barrister". https://thesecretbarrister.com/ https://thesecretbarrister.com/ The author claims that the cuts are not even cost-effective, often leading to more spending by government to deal with the consequences.
- johnnycab 7y ago
  I will second the book. The author also has a presence on Twitter: https://twitter.com/BarristerSecret https://twitter.com/BarristerSecret
teddyuk 7y ago
How do you get to be a lawyer in the US if you aren't competent?
- tyingq 7y ago
  Passing the bar implies some level of technical competence. It doesn't say much about the service delivered to indigent defendants. I suspect it is a mix of overworked, burned out, jaded, pressure to take a plea deal to reduce load, etc.
- Broken_Hippo 7y ago
  Well, it isn't always that they aren't competent. Put that same lawyer in a position where they are paid, and I'm guessing things would improve. But what actually happens is that the system makes them incompetent simply being in the job. For example, the caseload is too high, which means that they cannot spend the time a paid lawyer would spend on it. Folks also get little choice in which of these cases they take and which they do not. On top of all of this, they are working in a system stacked against them and they usually aren't getting paid much.

wil421 7y ago

You are not allowed to take the persons silence as a sign of guilt in the US. If you invoke your right there wouldn’t be a transcript.

n8henry 7y ago
The US Supreme Court has said that you must invoke your right to remain silent. It doesn't seem constitutional, but it is currently the law. (Salinas v. Texas and People v. Tom)
- deleted 7y ago
  [deleted]
- testvox 7y ago
  That's not entirely true. They ruled that silence in a non-custodial interview could be admissable at trial. Silence in custodial interviews is still not admissable and they didn't actually decide the question of whether or not silence can be taken as substantive evidence of guilt.
  - khuey 7y ago
    What is "silence in a non-custodial interview" and how is that different from no interview at all?
    - n8henry 7y ago
      It means remaining silent when you are not under arrest or being detained.
      - testvox 7y ago
        Sadly the court considers detainment to be non-custodial and rarely do they venture to better define when a detainment turns into an arrest.
bnegreve 7y ago

gdfasfklshg4 7y ago

You have no obligation to say anything until provided with a solicitor.

chrisseaton 7y ago
You have no obligation to... but the jury can hold that against you. It seems somewhat reasonable to me - if you have an alibi then you should tell that to the Police as soon as practical. Otherwise you're wasting everyone's time.
- MereInterest 7y ago
  I am not a lawyer. I have not studied law, and do not know what comments are innocuous to make, and what comments would be used against me. I do not know what constitutes an alibi in the eyes of the law. I do not know what questions police are legally allowed to ask. It is unreasonable to expect a person to know the detailed workings of the legal system. It is therefore unreasonable for there to be any negative consequences whatsoever for waiting until there is a legal expert present.
  - chrisseaton 7y ago
    > It is therefore unreasonable for there to be any negative consequences whatsoever for waiting until there is a legal expert present. You don't need to be a legal expert to answer basic questions from a Police officer about did you do something or were you in a location at a time. They aren't lawyers either! And I didn't say you couldn't ask for a lawyer and wait for one to turn up before answering... But if they charge you for speeding, and then you wait six months until the trial, and claim only at that point that you weren't the one driving. Come on... that's a waste of society's time.
    - deleted 7y ago
      [deleted]
    - mattlutze 7y ago
      In many jurisdictions, law enforcement have gray areas as to what they can ask, how they can ask it, and how they can use your answers. Their job is to collect evidence and send it to the prosecutor. They're given wide latitude to collect it as quickly as possible, and while law enforcement and the public attorney's offices are by and large just trying to see justice done fairly, they're almost always understaffed and over-pressured. People act weird in pressure situations. Law enforcement personnel deal with law breaking every day, but the rest of us don't. If you're innocent and confronted with an accusation of a crime, in your resulting heightened emotional state, you don't want to say something stupid or in a way that makes you look unnecessarily suspicious. In this situation it should be ok for you to not answer questions, wait until your involuntary adrenaline reaction wears off, and then have a conversation about it.

bobloblaw45 7y ago

I think this is where having a great lawyer comes in.

3fe9a03ccd14ca5 7y ago

I don’t think he meant never talk to them, but never talk to them until have you’ve set up your legal counsel and sought their advice. People talk all of the time without lawyers, thinking lawyering up might make them look guilty.

jopsen 7y ago

There is a difference been the US and many other places. For starters the prosecution isn't trying to scare people into a plea bargain. Many places the police aren't allowed to lie to you. And many places the police can be called to testify on your behalf.