Rights to Silence in the US and Iraq
There are times when I wonder whether or not constitutional rights, as implemented, seem almost designed for the elite, and developed in a manner that ends up causing significant damage to the less advantaged. I am not suggesting this is necessarily intended, in fact often I would assume that it is not, but when the elite who manage the system after all try to come up with what they consider a reasonable panoply of rights, they do seem to reflect the interests and desires of what people like them would want rather than what the disadvantaged, who are more often than not the accused, might actually need.
What prompted this thinking was a recent conference in Basra I did not have the privilege to attend. But I've heard of it at some length from several different friends, and apparently a senior police officer, unaware of established global standards, suggested after being told of a recommendation that an accused be informed of his right to remain silent, thought about it, and then decided to oppose this supposed amendment because what would happen if defendants actually used these rights, what kind of obstruction would that be to law enforcement.
So this was hah hah let's take an opportunity to laugh at those dumb ignorant Iraqis and pat ourselves on the back at how wonderful we are because our police take these rights so seriously, we don't ignore them. And we do, of course. But let's look, seriously, at how they work. I wonder if the Iraqi officer after we do look at them was expressing anything but the view of most US law enforcement, albeit a bit inartfully.
To be completely clear, I do very much think any reasonably professional cop out there in the US would take any suggestion that they don't follow procedure, to the letter, as an insult. They would say I read rights when I arrest, or I secure a written waiver, because that's a requirement, and I take constitutional requirements seriously. I don't mess around with the constitution, I do my job by the rules. Let's acknowledge for a moment they do that, I think they do, my experience hasn't led me to think otherwise, no reason to doubt their sincerity when they say it.
But then ask what happens, and usually the answer is, well, we ask questions. If they're voluntarily willing to talk, why not? What's wrong after we've read them their rights, or we've asked then to sign a paper they could read that waived them, to note whatever they do say and take it down and note it for later? After all, if I've told him he has a right to an attorney and the idiot blathers he did it, I should ignore it? Come on.
So they ask. And they might ask a lot, unless the guy asks for an attorney and says he won't talk until he gets one. And they might suggest gee they might want to help, it all looks bad but maybe there's an explanation, they're all ears. And if he talks then he talks. We didn't beat the guy, we didn't waterboard him, he just talked. No cop would be embarrassed by a confession so obtained, no judge would think he should be. It's good law enforcement to do that, that's what a good cop does. Wasn't that the argument by the left by the way for NOT waterboarding this Nigerian dude who tried to blow up the plane? Why waterboard, our law enforcement people are good, they'll get cooperation, they don't have to resort to illegal techniques. ie he will be read his rights, and our people have methods, noncoercive legal methods (emphasize legal, and constitutional), to ensure that he won't use those rights.
So let's be realistic for a second. Our Iraqi cop was being inartful, but he wasn't expressing a concern that US law enforcement people don't have. They might smile at his comment, and not deem it acceptable of course as a method of practice, again no doubt sincerely. But if he followed up, and said "no seriously, what if everyone remained silent, how could I move forward on a case?" I might predict the following exchange with US law enforcement
"Come on, you have evidence. Silence doesn't doom the case, just get your evidence together. And also they won't all stay silent, don't worry, most won't in fact"
"well why won't they?"
"here's what you do. You read the rights, you have to. It's his right to have them, don't ignore his rights. If for nothing else, you don't want a judge bouncing the case because you messed up. Then after you read them, you say you want to help him , you really do, but he's got to help you, etc. etc. etc."
"Can I beat him?" asks the Iraqi.
"No, I just said, you can't violate his rights. It's constitutional, don't you care abotu the rule of law in your own society? You have to. OK even if you don't, a good judge will make you look stupid, so no beating. Look, they'll talk most of the time, 90%, if you just do what I say, you don't need to beat the guy or not read him his rights to get what you need. The other 10% is the price of living in a free society and like I said, you have other evidence you use that."
And that's all fine, most people even me on most days think that's the way it is and should be, we do need effective law enforcement after all. But still I wonder, when we laugh at the Iraqi who asks this question are we really all that different? Aren't we really reading the rights and taking that piece seriously but still hoping the defendant doesn't use them? Sure I and others reading the blog if picked up by the police are likely not to be dumb enough to talk to the cops without an attorney present once we're accused of something. but we're also not likely to be accused of something. That's partly because I didn't do anything (I didn't, I didn't!), but also because there's an assumption that people like me don't do bad things. My guess is most people who are wrongly accused (I assume with entirely good faith by the police) won't use the Fifth Amendment most likely. They won't know well enough to use it. And so then I wonder what the hell is it for, if not for them, and why didn't we design it better to suit people other than us, who don't usually have such problems.
More foam from a camel's mouth to quote Ali b Abi Talib.
HAH
What prompted this thinking was a recent conference in Basra I did not have the privilege to attend. But I've heard of it at some length from several different friends, and apparently a senior police officer, unaware of established global standards, suggested after being told of a recommendation that an accused be informed of his right to remain silent, thought about it, and then decided to oppose this supposed amendment because what would happen if defendants actually used these rights, what kind of obstruction would that be to law enforcement.
So this was hah hah let's take an opportunity to laugh at those dumb ignorant Iraqis and pat ourselves on the back at how wonderful we are because our police take these rights so seriously, we don't ignore them. And we do, of course. But let's look, seriously, at how they work. I wonder if the Iraqi officer after we do look at them was expressing anything but the view of most US law enforcement, albeit a bit inartfully.
To be completely clear, I do very much think any reasonably professional cop out there in the US would take any suggestion that they don't follow procedure, to the letter, as an insult. They would say I read rights when I arrest, or I secure a written waiver, because that's a requirement, and I take constitutional requirements seriously. I don't mess around with the constitution, I do my job by the rules. Let's acknowledge for a moment they do that, I think they do, my experience hasn't led me to think otherwise, no reason to doubt their sincerity when they say it.
But then ask what happens, and usually the answer is, well, we ask questions. If they're voluntarily willing to talk, why not? What's wrong after we've read them their rights, or we've asked then to sign a paper they could read that waived them, to note whatever they do say and take it down and note it for later? After all, if I've told him he has a right to an attorney and the idiot blathers he did it, I should ignore it? Come on.
So they ask. And they might ask a lot, unless the guy asks for an attorney and says he won't talk until he gets one. And they might suggest gee they might want to help, it all looks bad but maybe there's an explanation, they're all ears. And if he talks then he talks. We didn't beat the guy, we didn't waterboard him, he just talked. No cop would be embarrassed by a confession so obtained, no judge would think he should be. It's good law enforcement to do that, that's what a good cop does. Wasn't that the argument by the left by the way for NOT waterboarding this Nigerian dude who tried to blow up the plane? Why waterboard, our law enforcement people are good, they'll get cooperation, they don't have to resort to illegal techniques. ie he will be read his rights, and our people have methods, noncoercive legal methods (emphasize legal, and constitutional), to ensure that he won't use those rights.
So let's be realistic for a second. Our Iraqi cop was being inartful, but he wasn't expressing a concern that US law enforcement people don't have. They might smile at his comment, and not deem it acceptable of course as a method of practice, again no doubt sincerely. But if he followed up, and said "no seriously, what if everyone remained silent, how could I move forward on a case?" I might predict the following exchange with US law enforcement
"Come on, you have evidence. Silence doesn't doom the case, just get your evidence together. And also they won't all stay silent, don't worry, most won't in fact"
"well why won't they?"
"here's what you do. You read the rights, you have to. It's his right to have them, don't ignore his rights. If for nothing else, you don't want a judge bouncing the case because you messed up. Then after you read them, you say you want to help him , you really do, but he's got to help you, etc. etc. etc."
"Can I beat him?" asks the Iraqi.
"No, I just said, you can't violate his rights. It's constitutional, don't you care abotu the rule of law in your own society? You have to. OK even if you don't, a good judge will make you look stupid, so no beating. Look, they'll talk most of the time, 90%, if you just do what I say, you don't need to beat the guy or not read him his rights to get what you need. The other 10% is the price of living in a free society and like I said, you have other evidence you use that."
And that's all fine, most people even me on most days think that's the way it is and should be, we do need effective law enforcement after all. But still I wonder, when we laugh at the Iraqi who asks this question are we really all that different? Aren't we really reading the rights and taking that piece seriously but still hoping the defendant doesn't use them? Sure I and others reading the blog if picked up by the police are likely not to be dumb enough to talk to the cops without an attorney present once we're accused of something. but we're also not likely to be accused of something. That's partly because I didn't do anything (I didn't, I didn't!), but also because there's an assumption that people like me don't do bad things. My guess is most people who are wrongly accused (I assume with entirely good faith by the police) won't use the Fifth Amendment most likely. They won't know well enough to use it. And so then I wonder what the hell is it for, if not for them, and why didn't we design it better to suit people other than us, who don't usually have such problems.
More foam from a camel's mouth to quote Ali b Abi Talib.
HAH
With the greatest of respect, I have tried hard but I don't really understand the point that is being made here. There is a big difference between suggesting that someone is not afforded a right (the Basra cop - whose services to comedy gave a number of people including some of his colleagues in the Iraqi police force an opportunity to laugh at him) and informing someone of their right to be silent and then asking him questions which he can choose to answer or not (which you say is the US position).
I think that this difference has important consequences in practice as well as theory.
I have no knowledge of the US position but I can't instinctively agree with your assumption that the American lumpen proletariat in their ignorance of the 5th Amendment are generally unable to understand or make use of their right to silence - a right which is in fact widely used by all sorts of people in other nations. Isn't our general ignorance of our rights the reason that we are informed of them upon arrest?
I can't understand how this particular constitutional right has been "developed in a manner that ends up causing significant damage to the less advantaged". Even if in the US the 'less advantaged' often don't make full use of this right, are you suggesting that everyone but the American elite would be better off without being informed of their right to silence or without having the right to silence?
Constitutions tend to be written by elites and from what little I know of the US constitution it certainly was. There are undoubtedly disparities between the abilities of those with money and those without to take advantage of their rights but perhaps it is a step too far to suggest that the 'disadvantaged' might actually need different rights.
Anyway all that said I applaud your socialist instincts and I have a suggestion for debate that might create more equality between the plebs and the patricians. In the UK the right to silence was long since qualified and now before questioning (usually upon arrest), one is informed that "You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you may later rely on in court. Anything you do say may be given in evidence." This may help to keep the red flag flying by ensuring that the corrupt banker who fails to answer a question about the whereabouts of his assets that he really should have been able to answer shortly after arrest is treated similarly to a blood splattered chainsaw wielding resident of a trailer park.
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Andrew the computer didn't like your comment, so it moved it into the inactive folder on its own. I just read it now when I got into that folder to extract gems like this, hence the delay in getting it posted. It must have been because you said I had socialist instincts, the computer must have thought you were Glenn Beck.
I like your UK suggestion, works better for me than the US system.
But in any event. "You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney, if you cannot afford an attorney, one will be assigned to you. Do you understand these rights? (pause) Now look here Andrew, it's pretty ugly, we found you at the crime scene, three hours after the murder, your friends saw you with a knife just like the one sticking out of your father, and a woman said she saw you do the stabbing. Then there's the old man who says he saw you running down the stairs just after he heard you threaten you'd kill him at the same time. Now I understand it, heck if I had been beaten all my life I might have done the same thing. Outrageous what that man did to you. So why don't you help us out, and tell us what happened, and we'll do what we can to help you out. Because see if you don't help us out, and we have to do this the hard way, then no jury out there is going to help you. You'll be in the chair in six months time. Up to you, dead in six months or tell me now what happened so I can help you."
I think that's uncontroversially okay under US rules. Yet I don't think you have to be dumb to think you'd better say something quick. I think you just have to know that the cop is allowed to mislead or exaggerate, he won't protect your interests like your lawyer will, and that talking early leads to nothing good for you. And if you don't know those things, and I just most people accused of crimes would not, then I do not think the first sentence does you much good at all.
HAH
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I lived next to a public defender for 5 years. The thing that made his job really difficult was that alleged perps very often talk to the police. They have their rights read to them and talk anyway. Why? Often they were poor, uneducated, ill-informed about their rights (i.e., they didn't know a search warrant is required to look in your car's trunk), or just dumb. So I find your argument that "rights" help the elite plausible.
But what's the alternative? Not reading people their Miranda rights? Not allowing cops to ever talk to alleged perps without an attorney?
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Common complaint of public defenders in my experience, they talk too easily.
You could go the other way under some circumstances. As Andrew said, in the UK if you've got blood all over your shirt and the cop asks you where it came from, the fact that you wouldn't answer can be taken as some sort of evidence against you. Or if you've got money in your freezer. I think the idea is when caught in flagrante delicto the lack of an explanation offered, like running from the cops when they ask you a question, can be used when its probative value exceeds its prejudicial. That'll help against the congressman and the guy picked up for an axe murder.
But I take your point, it is hard to protect people from themselves.
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