Another reason to keep your mouth shut.

This is a discussion on Another reason to keep your mouth shut. within the Law Enforcement, Military & Homeland Security Discussion forums, part of the Related Topics category; I came accross this and found it interesting. A police tactic of using the silent treatment to get a suspect to talk. Miranda and the ...

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Thread: Another reason to keep your mouth shut.

  1. #1
    VIP Member Array havegunjoe's Avatar
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    Another reason to keep your mouth shut.

    I came accross this and found it interesting. A police tactic of using the silent treatment to get a suspect to talk.

    Miranda and the Silent Treatment:
    Check out United States v. Thogsophaporn, a fascinating Miranda case I found via Appellate Law & Practice.

    Facts: Defendant is taken into custody and read his rights. The defendant is asked to waive his rights but he declines. An investigator then sits down in the small interview room with the defendant in silence for five minutes, three to five feet away from him, until the defendant asks for some water. The investigator brings it to him, and then the defendant asks what is going on. The investigator responds that the defendant knows what is going on, and the defendant asks if the police want to talk about him ratting on a cocaine dealier. The investigator then brings up the fact that his colleagues want to talk to him, and the defendant then agrees to talk and waives his rights and confesses.

    Legal question: Is the confession admissible under Miranda?

    Held: Yes, the statement is admissible, because the defendant was the one who reinitiated questioning when he asked what was going on. The court explains:

    [T]he agentís mere silent presence in the room is insufficient to rise to the level of unlawful coercion or pressure. Indeed, because the agent was required to avoid discussions concerning defendantís legal situation, it is hard to find any fault at all in his silence. While silence may feel awkward or uncomfortable under some circumstances, there is no requirement that the police engage in small talk. Nor was the agent required to exit the room and leave the defendant unsupervised. See United States v. Andrade, 135 F.3d 104, 106-07 (1st Cir. 1998) (upholding admission of statements obtained following period in which the defendant did not want to answer questions and slept while officer remained in room). . . .

    In summary, there was nothing improper about [the investigator's] presence in the room or his silence. At no time did [the investigator] attempt to resume questioning or persuade defendant to speak. Defendant was the one who initiated the conversation about his situation

    My reaction: I don't know of any other cases on this particular technique, but this case has my b.s. detectors going off big time. Imagine you're in a police interrogation room with a police officer sitting three feet away from you, completely silent. Maybe he's staring right at you. Maybe he's staring at a wall. After a few minutes, the silence is likely to become unbearable; you're going to at least ask something general like "what is going on?" But presumably you won't know that this kind of general inquiry was held in Oregon v. Bradshaw to be enough to reinitiate questioning (however persuasively), so you're not going to realize that you've just gone back to Miranda square one.

    Meanwhile, presumably the officer does realize this; presumably he is making you sit there with him in a very uncomfortable situation knowing full well that you're likely to eventually ask what is going on. Cf. Missouri v. Seibert. If the test is whether the police "scrupulously honored" the defendant's choice to remain silent based on the totality of the circumstances, I find it rather hard to believe that this type of technique fits the bill. Perhaps there are previous cases allowing this sort of technique that I just don't know about, but it certainly seems fishy to me.

    http://volokh.com/archives/archive_2.......1190675217
    DEMOCRACY IS TWO WOLVES AND A LAMB VOTING ON WHAT TO HAVE FOR LUNCH. LIBERTY IS A WELL ARMED LAMB CONtestING THE VOTE.

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  3. #2
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    Interesting approach and IIRC quite an old one. If a zipped lip is chosen it would have to be adhered to regardless of pressure felt by sustained silence.

    I think this is better suited to LE and Military rather than being in General Firearms discussion.
    Chris - P95
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    Asking for a glass of water is not a waiver of rights, neither is asking to go pee. If someone talks about the case subsequent to a Miranda warning, he's on his own. And he's stupid. This whole thing only proves that the police CAN lie after the person is Mirandized, and they likely WILL. The police will tell you they can help you. They can't. They can and will hurt you. Once you're arrested, you will be treated according to policy, whether you talk to the police or not. After you are booked, you'll be given the opportunity to obtain counsel. He will tell you the same thing: Shut up.
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    VIP Member Array Rob99VMI04's Avatar
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    VIP Member Array SIGguy229's Avatar
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    +1 Rob....that is exactly what I was thinking...ask for my lawyer, phone call and a blanket.
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    VIP Member Array havegunjoe's Avatar
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    Thanks Cris.

    Quote Originally Posted by P95Carry View Post
    Interesting approach and IIRC quite an old one. If a zipped lip is chosen it would have to be adhered to regardless of pressure felt by sustained silence.

    I think this is better suited to LE and Military rather than being in General Firearms discussion.
    I wasn't sure were to put it.
    DEMOCRACY IS TWO WOLVES AND A LAMB VOTING ON WHAT TO HAVE FOR LUNCH. LIBERTY IS A WELL ARMED LAMB CONtestING THE VOTE.

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    Absolutely wait on your lawyers advice......and it will be to keep your mouth shut. I don't see any harm of asking for water, bathroom, etc, but any statement regarding your "case" can likely cause you complications in the future. Of course the investigators will attempt to prod/pry/quiz discussion from you. Just tell them you'll be glad to talk with them........ but not until your attorney is present.
    Turn the election's in 2014 to a "2A Revolution". It will serve as a 1994 refresher not to "infringe" on our Second Amendment. We know who they are now.........SEND 'EM HOME. Our success in this will be proportional to how hard we work to make it happen.

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    Are you guys planning on being arrested sometime soon? Sometimes this forum reminds me of a jail house "education" center.

    BTW, that tactic is seldom used and its designed for very nervous or less intelligent people. Its on the bottom of the bag of tricks.
    "Just blame Sixto"

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    Quote Originally Posted by SIXTO View Post
    Are you guys planning on being arrested sometime soon? Sometimes this forum reminds me of a jail house "education" center.

    BTW, that tactic is seldom used and its designed for very nervous or less intelligent people. Its on the bottom of the bag of tricks.
    Most everyone here has a license to carry a concealed firearm. Unfortunately, if we have to use that firearm, even if justified, we could likely end up EXACLTY in this position. Talk too much without an atty... your justified action may be twisted into an unnecessary act of violence by an overzealous DA. IMO, this is good information.

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    Good general rule is that once you've invoked your "right to counsel", do not waive it or speak to anyone except your attorney concerning the issue at hand. If you get impatient and start asking questions, shame on you.
    Good Luck
    A Wise Man Changes His Mind, but a Fool Never Does

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    VIP Member Array Janq's Avatar
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    Quote Originally Posted by SIGguy229 View Post
    +1 Rob....that is exactly what I was thinking...ask for my lawyer, phone call and a blanket.
    Ditto and agreed.

    P95 it is an old technique toward interrogation, I recall it from reading WWII vintage books about the then OSS (predecessor to the CIA and NSA) and their techniques to get spys and double agents to talk.

    Asking for water is not a waiver of ones rights.
    Engaging the po-po in chit chat asking if they are wanting to talk about ones knowledge and/or relations to persons of and/or involed with crime and then to willingly without coercion go on to run off at the mouth toward such items is though a waiving of rights by ones bird brained actions.

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    VIP Member Array Janq's Avatar
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    Quote Originally Posted by takurpic View Post
    Most everyone here has a license to carry a concealed firearm. Unfortunately, if we have to use that firearm, even if justified, we could likely end up EXACLTY in this position. Talk too much without an atty... your justified action may be twisted into an unnecessary act of violence by an overzealous DA. IMO, this is good information.
    +1

    Yes it is here very much like a mini training academy, jailhouse chat style.
    We do as much as an exercise for the same reason that criminals and LEOs do same as well.
    Education and practice nearly always prevails.

    - Janq

    "Chance favors the prepared mind." - Louis Pasteur
    "Killers who are not deterred by laws against murder are not going to be deterred by laws against guns. " - Robert A. Levy

    "A license to carry a concealed weapon does not make you a free-lance policeman." - Florida Div. of Licensing

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    VIP Member Array MitchellCT's Avatar
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    Quote Originally Posted by havegunjoe View Post
    I came accross this and found it interesting. A police tactic of using the silent treatment to get a suspect to talk.

    Miranda and the Silent Treatment:
    Check out United States v. Thogsophaporn, a fascinating Miranda case I found via Appellate Law & Practice.

    Facts: Defendant is taken into custody and read his rights. The defendant is asked to waive his rights but he declines. An investigator then sits down in the small interview room with the defendant in silence for five minutes, three to five feet away from him, until the defendant asks for some water. The investigator brings it to him, and then the defendant asks what is going on. The investigator responds that the defendant knows what is going on, and the defendant asks if the police want to talk about him ratting on a cocaine dealier. The investigator then brings up the fact that his colleagues want to talk to him, and the defendant then agrees to talk and waives his rights and confesses.

    Legal question: Is the confession admissible under Miranda?

    Held: Yes, the statement is admissible, because the defendant was the one who reinitiated questioning when he asked what was going on. The court explains:

    [T]he agentís mere silent presence in the room is insufficient to rise to the level of unlawful coercion or pressure. Indeed, because the agent was required to avoid discussions concerning defendantís legal situation, it is hard to find any fault at all in his silence. While silence may feel awkward or uncomfortable under some circumstances, there is no requirement that the police engage in small talk. Nor was the agent required to exit the room and leave the defendant unsupervised. See United States v. Andrade, 135 F.3d 104, 106-07 (1st Cir. 1998) (upholding admission of statements obtained following period in which the defendant did not want to answer questions and slept while officer remained in room). . . .

    In summary, there was nothing improper about [the investigator's] presence in the room or his silence. At no time did [the investigator] attempt to resume questioning or persuade defendant to speak. Defendant was the one who initiated the conversation about his situation

    My reaction: I don't know of any other cases on this particular technique, but this case has my b.s. detectors going off big time. Imagine you're in a police interrogation room with a police officer sitting three feet away from you, completely silent. Maybe he's staring right at you. Maybe he's staring at a wall. After a few minutes, the silence is likely to become unbearable; you're going to at least ask something general like "what is going on?" But presumably you won't know that this kind of general inquiry was held in Oregon v. Bradshaw to be enough to reinitiate questioning (however persuasively), so you're not going to realize that you've just gone back to Miranda square one.


    http://volokh.com/archives/archive_2.......1190675217
    The courts operate under the fiction that the defendant is aware of his rights and the consequences of his actions.

    Their are no consolation prizes or allowances for someone who isn't.

    If you want to assert your rights, assert them.

    If you don't want to talk...don't say any more than ask for a lawyer and a trip to the bathroom.

    Open your mouth at your peril.

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    Nice reminder, Havegunjoe! Thanks!

    We successfully used that technique on our kids when they were young uns', before they figured it out..........

  16. #15
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    Quote Originally Posted by takurpic View Post
    Most everyone here has a license to carry a concealed firearm. Unfortunately, if we have to use that firearm, even if justified, we could likely end up EXACLTY in this position. Talk too much without an atty... your justified action may be twisted into an unnecessary act of violence by an overzealous DA. IMO, this is good information.
    I agree and take no issue with that. I meant it in a kinda joking manner.
    "Just blame Sixto"

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