Pleading the 5th

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Pleading the 5th

Post  Buster on Fri Mar 29, 2013 4:11 pm

Hi

After watching this



http://m.youtube.com/#/watch?v=6wXkI4t7nuc&desktop_uri=%2Fwatch%3Fv%3D6wXkI4t7nuc

I know this is from American law and I know we have a right to silence in this country but my question is does exercising this right not make you out to be a guilty party and is this right to silence meant to apply just till your lawyer turns up.

It must be easy to say something and drop yourself in it and not even realize it.

cheers

Buster
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Re: Pleading the 5th

Post  Wayne Harrison on Sun Mar 31, 2013 6:24 pm

Chris will reply from the police view, from the criminal view if you committed the crime it is advisable to say nothing in the police interview. Unless you have got a good head on your shoulders and can account for any evidence put to you. If the person can be sure of the latter, then the latter is advisable.


If a person goes into a police interview and stays silent, they are obviously not co-operating with the police. Don't expect the police to cooperate with you! If a person accounts for all evidence put to them in the interviews (irrespective of whether it is true) then they have the interviewing officers/custody sarge (the custody sarge has a special legal responsibility and can overrule interviewing officers, thought tends to go with their recommendations), the initial courts for bail, and the trial in the end. At these steps what is said can be used to get the person free. However, as the caution itself says, it can and will be used against you.


The inference is, that an innocent person should be reasonably expected to account for all questions put to him. And in court, this is used by the defence, if innocence is being implied - should he be able to account. Should the person refuse to account for the evidence put to them, then that will be used against them in court.

There is much credit in an investigation when, during interview, you provide all the information you can. Its helps the investigation. And you can't be accused later of changing or updating your story as the investigation unfolds. There is much more credibility in providing all details at the start.

Saying nothing (to me) should only ever be considered by someone who has broke the law. In 13 years in the criminal justice system i only saw maybe 3 folks who may have been genuinely innocent. The news highlights abuses of power, it seems often. In reality, it is a small grain of sand in the thousands of procedures by UK criminal justice system each day. No system is perfect they say, but the criminal justice system tends to get it spot on, or thereabouts. An innocent person should have nothing to fear from being open.

warmest wishes

Wayne

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Re: Pleading the 5th

Post  Chris on Tue Apr 02, 2013 5:46 am

The right of silence in the UK is an interesting topic and not a simple and straight forward concept to understand.

Please keep in mind that presumption of innocence and the right to silence has kept jurisprudence scholars occupied since the 17th century in the UK alone so don't expect anything other than the broad strokes of a response here.

The first thing to say is that the right to silence is a fundamental corner-stone of any Criminal Justice System. Each and every person under suspicion of a criminal act should be accorded the privilege against self incrimination that the right to silence offers. There can be NO criminal conviction based solely on silence and it is likely that any conviction based mainly on silence and adverse inferences would also fall on appeal.

Think about this logically for a moment. Any individual should have the right to offer no evidence of their innocence. The presumption of innocence says that you are innocent until proven guilty. Therefore, it would be illogical to then have a compulsion to offer evidence on your own behalf. Why would you need to, you are innocent at the point of any questioning and up until a judge or jury delivers a verdict.

There may be any number of valid reasons why you do not answer a question when posed with it. It does not inherently follow that a failure to answer a question makes you more or less likely to be guilty of a criminal offence. Plus... as mentioned before... you have no need to prove your innocence. (except in detailed circumstances that we wont go into here or I'll be typing all week.) That doesn't mean that you should not decide to offer information in support of your innocence just that you are not compelled to do so.

The law and wording of the police caution changed in the 1990's in the UK after much deliberation and hand wringing from all concerned. The Criminal Justice and Public Order Act 1994 changed the wording of the police caution for those under questioning to state

""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."

pretty wishy washy and wooly right? You don't have to say anything (well what happens if you don't? the Act doesn't tell you) Not saying anything may harm any fact related defence (but we wont tell you what harm it may do) and we wont tell you what rely on in court actually means.

Basically.. what it is saying. Adverse Inferences may possibly be drawn if you don't mention something fundamental which you later want to raise in court as support for your defence.

Circumstances where adverse inferences may be drawn are limited to.

Failure to mention any fact which you later rely upon and which in the circumstances at the time the accused could reasonably be expected to mention
Failure to give evidence at trial or answer any question
Failure to account on arrest for objects, substances or marks on his person, clothing or footwear, in his possession, or in the place where he is arrested
Failure to account on arrest for his presence at a place.

What you could be reasonably expected to offer in answer to any questioning officer is subject to age, experience, capacity, sobriety, knowledge or legal advice. Too many variables to cover in this reply but it is worth noting that the Judge in any proceedings with a jury will be obliged to give a direction which outlines the limits of what can be inferred from the silence of the accused.

Big point. Don't expect to remain silent and then spill forth at any trial with any number of answers which fit into the circumstances above. i.e. I was wearing... xyz. I wasn't there I was somewhere else. I had blood on my shirt because I'd had a nosebleed earlier etc etc etc.

This is of course much more serious at a jury based trial where the charges tend to be more serious with heavier potential sentences, where the jury decides your fate (for the most part) and failure to adhere to common sense in how you handle your defence with your legal representation can have much more serious outcomes.

Magistrates Courts (where 97% of all criminal cases are heard and resolved) spend FAR less time looking at inferences and much more time sorting through the actual evidence of the case in hand. Taking into account that the majority of criminal cases heard by Magistrates will have guilty please entered or will crack before the case reaches the trial stage. Those not guilty pleas entered will be decided on the basis of the evidence available and that is typically more than enough. Cases which go to trial, where the accused is pleading not guilty and has not given any statement in support of their defence are like hens teeth.

Think about it from the perspective of the normal human being and then from the habitual criminal (which the vast majority of accused in criminal proceedings are)

If you are the typical man in the street and you feel you are innocent then you are usually over the moon to state your case as soon as possible and loudly as possible and as many times as possible to whoever will listen.

If you are someone who is familiar with being inside the criminal justice system then you are likely not very bright, and or fully aware of the procedure and will co-operate with questioning because it is a product of the process. Familiarity removes inhibition. Now in those circumstances its not really about whether these people talk or not, it's about whether they are lying or not. Plus there tends to be more than enough additional evidence to prosecute with regardless of what the accused says or does not say. When the accused does say something it very often is a confession because they do what they do fully aware of the consequences and they have been caught "bang to rights."

So.... the whole thing can be a bit of a storm in a tea cup in practical terms. Unless you are a newcomer to the system and facing a serious charge then it's largely inconsequential in my view. (conceptually it's imperative to the process overall and fundamental to a fair and just system) certainly if you are potentially heading to the crown court on a charge then I would absolutely suggest seeking legal advice asap. I would also suggest that the job of any police officer is not to prove your innocence of guilt. Their role is to gather evidence that indicates whether there is a case to answer. That means in real terms that most police officers ask questions intended to show that the required parts of the offence are in place to secure a conviction. Their intent is to have a file which potentially gives a CPS reviewer all they need to know to make a decision on whether to proceed or not with a prosecution.

Circumstances will vary but here are some general rules of thumb.

The police interviewer is not interested in proving your innocence. Their questions are designed to show that the elements of the crime are present.
Any statement you do make needs to be considered, very brief, very direct and very to the point.
Do not be afraid to wait until you have obtained legal advice before speaking to any police officer. You are perfectly within your rights to say that you will make statements but you wish to speak with legal representation before doing so.
Magistrates wont really care if you speak to the officers or not. They will simply look at the evidence they DO have and make their decisions from that.
By making statements of the wrong type at the wrong time you may be inadvertantly confessing to a crime. i. e. self defence as a defence is a perfect example. Lots of people have made statements relating to a violent event and effectively confessed to assault because they were not legally acting in self defence.

Bottom line, know what you are saying and know what those statements may mean within the criminal justice system. If you have any doubt then ask to see legal representation before making any statements at all. No inference can be drawn if you wait until you have spoken to a lawyer before cooperating with an interview.
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Re: Pleading the 5th

Post  Wayne Harrison on Tue Apr 02, 2013 9:35 am

Well wrote post Chris.


Paul Mosley, one of the accused in the Derby house fire tragedy, has just been found guilty of manslaughter. He refused to answer anything in interviews, and also never gave evidence in his own defence. His defence said the evidence against him was flimsy, though i haven't saw what that is. I suspect that if he had accounted for evidence put to him he would have had more of a fight.

From being around plenty of murder accused and lifers in prison, I know that huge inference is drawn from someone who doesn't take the stand in a murder trial. Whether that is a legal point or not i'm not sure matters. What goes on in a jurors head i expect may often be kept within their head.

In the two Jury trials I was in, counsel advised me that i should take the stand. It never reached that far thankfully. I know of one man, a hitman and special branch informer, a real turd (personal differences), he decided to sack his legal team. Which happened to be the same as mine, the best in Northern Ireland (i would claim) and he defended himself. The proverb at the beginning of Blackstones 'a man who represents himself has a fool for a client' came to mind. Anyhow, a trial over 1 million quid, and he got himself life (much to my relief). There's something to be said for saying toooooooo much, for sure!

warmest wishes

Wayne
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Re: Pleading the 5th

Post  Chris on Tue Apr 02, 2013 11:30 am

Couple of things I know to be true.

You can guarantee there is a reason why someone stays quiet when charged with a serious crime. Multiple attempts by the police to interview and multiple responses of no comment AFTER gaining legal advice. Now accused's can certainly be stupid people but most know enough to listen and take heed of their counsel.

Lawyers tell the version of the truth they want you to believe. Just because they want a jury to believe the prosecution case is weak does not actually make it so.

Homicide (manslaughter or homicide) has one of the lowest recidivist rates in any criminal justice system. Why, because a large percentage of people charged with homicide are first time killers. Vast majority hqve never done it before and vast majority are caught first time.There are professional criminals which step over the mark but generally killers have never done it before and would never do it again. They aren't that difficult to convict of murder or manslaughter if they are actually guilty.

Jury's like defendants on the stand.

There may be a very good evidential reason you don't want to give testimony and open yourself up to cross exam. At a high level in crown court it is a chess game.
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Re: Pleading the 5th

Post  DaveCollins on Tue Apr 02, 2013 12:31 pm

As someone who is qualified legally, my personal approach, should I find myself in a cop shop, would be to politely refuse to answer questions until I had spoken to legal representation. Shut up and leave it to the experts like Chris is my view.

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Re: Pleading the 5th

Post  Wayne Harrison on Tue Apr 02, 2013 12:40 pm

Chris wrote:
There may be a very good evidential reason you don't want to give testimony and open yourself up to cross exam. At a high level in crown court it is a chess game.


It sure is. Anyone that can read should mould their psyche into their P.I. & disclosure papers. Counsel are the experts, though experience has shown me that an extra pair of eyes - the defendants - plus a dose of some law, such as Blackstones or Archbold (which I meant with the proverb quote earlier, i not read blackstones, prisons only supplied archbold), may do wonders for ones trial.

A person should realize that counsel are the experts, however they work for you. Some take this too far and direct counsel in silly ways. The best approach is to be an active participant in the preparation of your own defence and follow their lead. For whatever reason, counsel can miss things. Criminals have a jaded view of even defence counsel. Rightly or wrongly claiming defence, prosecution and even judges are all golfing buddies and things are sorted often out of courts hours. And certainly in chambers and not the court room itself.

Taking the stand runs the risk of a situation occurring in which the witnesses character is called into question by the defendant. This is in the criminal justice act 2003, but i recall it prior to that. Once that happens the floodgates open and the defendants prior record is in play with the jury.

DaveCollins wrote:
As someone who is qualified legally, my personal approach, should I find myself in a cop shop, would be to politely refuse to answer questions until I had spoken to legal representation. Shut up and leave it to the experts like Chris is my view.

Hi Dave i thought Chris is a police officer, not a defence solicitor. Ya know, if I ha solely left it to my barrister in my first trial he would have missed the fact my fingerprints weren't on the cash box, others where (so it wasn't wiped), and the armed robbers in their wisdom used no gloves and grabbed the box with their hands. I picked up on it pre-trial and told counsel. They still missed it in trial. So i had to send a note to remind them. few mins later the judg directed there was no case to answer.

I dont agree with leaving it solely to the experts.

warmest wishes

Wayne
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Re: Pleading the 5th

Post  DaveCollins on Tue Apr 02, 2013 1:36 pm

To Wayne,

Oh, don't get me wrong - I work surrounded by lawyers and I wouldn't let any one of them wash my fucking car, quite frankly. I witness the genius of the public school inbreds on a daily basis. However, the criminal evidence game is one for those expert and intimate in that arena. I personally would keep mouth shut until I'd spoken with them.

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Re: Pleading the 5th

Post  Wayne Harrison on Tue Apr 02, 2013 1:58 pm

DaveCollins wrote:To Wayne,

Oh, don't get me wrong - I work surrounded by lawyers and I wouldn't let any one of them wash my fucking car, quite frankly. I witness the genius of the public school inbreds on a daily basis. However, the criminal evidence game is one for those expert and intimate in that arena. I personally would keep mouth shut until I'd spoken with them.

God Dave, your even more jaded than I have been! Laughing .

Totally agree with you to be honest re: waiting. As Chris pointed out, no inference can be drawn from waiting for a solicitor. Another good reason to have a solicitor is that while one is in the cell, they will be in the custody suite, along with the interviewing officer and custody sarge. Both before and after your interviews. Often the solicitor will be told in gerneral terms some evidence that will be put to you. After the interviews, if anyone is going to fight your corner to get you released from the cop shop it will be your solicitor.

warmest wishes

Wayne
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Re: Pleading the 5th

Post  Chris on Wed Apr 03, 2013 3:54 am

Just spent an hour and a half writing a detailed reply to come of the comments above.

Network busy when I tried to post it so it was lost... Twisted Evil

Bottom line. My lengthy post in bullet points.

- The real world is neither LA Law nor is it Rumpole of the Bailey. There is no dramatic "reveal" in the final ten minutes of any trial.You don't know more than your counsel about the law and how it works. You certainly don't know more about evidentiary rules than he or she does. You CAN and SHOULD own your representations effort, don't try and own their expertise.

- I'm not an expert on rules of evidence. Just to hammer my point home. I have a Master of Laws degree that was given to me in large part for a dissertation on Improperly Obtained evidence back in 1998 and I would STILL run for legal advice and representation should I find myself facing an either way or Crown Court only offence charge. Anything else would be equivalent to a GP operating on himself when their are surgeons with real specific expertise available. It's foolishness in the extreme.

- The Criminal Justice System does not exist purely through your individual filter. As decent, law abiding people who would never or very rarely be on the wrong side of a police interview room or custody suite we tend to consider that everyone has the same understanding, feelings and responses to being part of the system. They do not. The CJS is clogged up with habitual offenders to the point where someone with half a dozen arrests and four convictions would be considered "lightly convicted" Most of the accuseds I see have many many previous arrests and convictions, they are typically addicted and they have no or very little fear of the system and what it can do to them. As a result, they take arrests and convictions on the chin.

Incidentally, I'm not a police officer and never have been.
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Re: Pleading the 5th

Post  Wayne Harrison on Wed Apr 03, 2013 4:19 am

Chris wrote: Most of the accuseds I see have many many previous arrests and convictions, they are typically addicted and they have no or very little fear of the system and what it can do to them. As a result, they take arrests and convictions on the chin.


This is true. Habitual crims not only have no fear for the law, it's as if the law doesn't even exist. they see arrest and prison as natural consequences. An occupational hazard. That ain't that much of a hazard really. It's not that difficult to get bail for example, even for someone with a huge record. Unless it has changed the benchmark for bail: dont interfere with witnesses, dont reoffencd, and attend the court hearings, are fairly easy to satisfy, should the criminal have the infrastructure.

I recall the human rights act getting integrated into UK Law. Crminals loved it. IT gave us more rights for bail. while police and prison hated it. Anything that gave us more rights gave them less.


Chris wrote:
Incidentally, I'm not a police officer and never have been.

no probs. Thanks for pointing that out to me.

warmest wishes

Wayne
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Re: Pleading the 5th

Post  Chris on Wed Apr 03, 2013 4:37 am

Bail is an interesting topic.

You typically will start from the basis that everyone has a right to unconditional bail. (not universal but I don't have time to outline the instances where you aren't automatically entitled to unconditional bail)

This is correct and logical bearing in mind that you are still an innocent person until conviction and bail conditions or remand are restrictions of liberty. Effectively sentecing someone before being found guilty is one way to look at it.

When the bail application is granted the Bench will listen to both sides and take into account any issues there may be with granting unconditional bail. i.e. a history of offending while on bail, proximity to witnesses or premises, failure to comply with court orders etc etc. If you are someone who it is felt imposed conditions would be suitable then you may be subject to exclusion orders, non inteference, reporting, reside and sleep, electronic curfew as an alternative to granting unconditional bail on one hand and remand in custody on the other.

If it is felt that no conditions are suitable to prevent a breach and conviction would result in a likely or mandatory jail term then you will be remanded in custody.

For habitual criminals it isn't hard to work out what they need to say and do to be granted bail. BUT.. I see many many applications turned down simply because the person in question was too dim to keep their head down while facing charges (many of them being addicts can't fight the compulsion long enough) and in some instances professional high level criminals who are simply too dangerous or too likely a flight risk to be released for one reason or another.

There is an assumption that bail is easy to get and yes it is.. as long as you keep your nose clean otherwise it goes away pretty sharpish and I've seen on balance more applications have conditions attached or refused than granted unconditionally.
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Re: Pleading the 5th

Post  Wayne Harrison on Wed Apr 03, 2013 4:45 am

Chris wrote:Bail is an interesting topic.

You typically will start from the basis that everyone has a right to unconditional bail. (not universal but I don't have time to outline the instances where you aren't automatically entitled to unconditional bail)

This is correct and logical bearing in mind that you are still an innocent person until conviction and bail conditions or remand are restrictions of liberty. Effectively sentecing someone before being found guilty is one way to look at it.


Oh definitely. And when one appearing in the high court for bail, and they feel they have a good case evidentially, their heart sinks when they hear the mantra "There is a Prima Facie case" by the Judge!!! Hahahaha. Back into the holding cell with a brave smirk, muttering, B*****ds!!!!. Lmao!
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Re: Pleading the 5th

Post  Chris on Wed Apr 03, 2013 6:20 am

It is always interesting to see people react to individual decisions made (for good or bad) without the context of a wider understanding of the CJS.

When you break down each decison, process or procedure you inevitably find that it makes logical sense. You may not agree with it but you usually can see the logic at work.

Not to say that there aren't mistakes made. Inevitably there will be errors and deviation from system guidelines or requirements. That tends to quite quickly result in checks and balances coming into play to rectify the issue.
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Re: Pleading the 5th

Post  Wayne Harrison on Wed Apr 03, 2013 8:25 am

Chris wrote:It is always interesting to see people react to individual decisions made (for good or bad) without the context of a wider understanding of the CJS.


This is true. Criminals of course are only interested in their own circumstances. Much more so before the days of restorative justice. Their understandings of their CJS tend to be personal experiences. Which may be in-depth, or fly-by-the-seat of your pants style.

I'm not sure what wider understanding is needed for the criminal, besides what will directly or potentially affect them. Of course much will not be divulged to the offender, besides what the public know, or what titbits counsel divulge in confidence.


Chris wrote:
When you break down each decison, process or procedure you inevitably find that it makes logical sense. You may not agree with it but you usually can see the logic at work.

Not to say that there aren't mistakes made. Inevitably there will be errors and deviation from system guidelines or requirements. That tends to quite quickly result in checks and balances coming into play to rectify the issue.

Personally, i'm a vocal supporter of the CJS. And have always been treated fairly. Some would say tooooo fairly. My sentiment ain't common within the prisons though. There's a lack of personal responsibility. In part fueled by erroneous media blurb as to what causes crime. Which feeds societies psyche. Personal responsibility is the first stage in a tri-stage theory I have about criminal rehabilitation.

warmest wishes

Wayne
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