When you have the right to remain silent, but not the ability!

By December 11, 2011Criminal Defense

By Mark C. Cohrs
Senior Investigator
The Gasper Law Group

The average law abiding citizen will likely have very few occasions to interact with the police. One of the most common occasions will probably occur because you committed a traffic violation, or because you became the victim of a crime or a perceiving eye witness to an incident. In the latter cases, the police will typically interview you about particular details of the event that are professionally referred to as the six essential elements of information; Who, What, When, Where, Why and How. This process is generally referred to as an interview, although some procedures simply involve the process of you writing out a statement about what happened.

In the case of the traffic offense, the seasoned officer will cleverly elicit an admission of wrong doing by asking “Do you know why I stopped you?”, to which you will probably feel compelled to answer something to the effect of “I was speeding” or “I didn’t come to a complete stop at the stop sign.” Human nature seems to cause us to believe that admitting the offense will dissuade the officer from issuing the ticket. Where that may work on some occasions, your admission will more often be documented in the officer’s affidavit in the same quotation marks as written above.

Now, let’s move on to inquiries of the more serious nature, professionally known as the interrogation. The interrogation is employed when you are suspected of committing an offense, and is designed for the very purpose of eliciting a confession. Law enforcement tactics have advanced well beyond the rubber hose and blinding light routine of yesteryear. Those tactics are now considerably less recognizable as being the adverse objective of the questioning officer. Officers are taught to employ methods of empathizing with the suspected offender by saying something like “That’s really a nice car; I probably would have taken it if I saw that the keys were in it,” or “I would have punched that guy if he said that to me.” Those type of quips will usually be followed up with the question “Is that what happened with you?”
And by the way, the police are allowed to lie to you under these circumstances. They may tell you that they have a witness that doesn’t really exist, or that they found and processed your fingerprints when no such evidence was found. The officers may pull out the old Good Cop /Bad Cop routine from their bag of tricks, which is when one officer becomes aggressive and confrontational with you while the other officer pretends to calm that officer down and befriend you. They may try to get you to play the “It’s Possible” game, where they ask you to speculate on any conceivable way that something could have occurred. For example, they may ask you “Is it remotely possible that her hand could have been slammed in the door when you closed it on your way out?” Or you may even hear a combined method question such as “Can you possibly explain why the witness (who we now know doesn’t exist) said that he saw you break down the door (where your fingerprints weren’t really found)?” That last question may be a bit of a stretch, but trying to answer a confusing or illogical question is something that we, as humans will sometimes try to do. Self preservation instincts often dictate that we try to provide logical explanations for our actions, especially when we’re confronted with wrong doing. We also have an instinctive tendency to perceive our own actions in the best light possible, but the explanation of those actions won’t necessarily pass the logic test, especially when the actions were the result of a highly emotional event.

Finally, don’t forget that the officer may not need to advise you of those much anticipated Miranda Rights. Depending on the environment and circumstances of the questioning, the officer may create a non-custodial situation in which Miranda won’t be legally necessary. The problem may then become your failure to remember that you have that right to remain silent. However, in the hands of trained professionals who are tasked with solving crimes via confessions, you may fail to possess the effective ability to do so.