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Thursday, April 16, 2009
Should you talk to the cops?
The issue of whether you should ever speak to the police is very contentious in society. Apart from the moral civic duty question of whether one should agree to a polce interview request, the legal advisability question is another thing. Defense lawyers will always say "no", especially in the United States. Martha Stewart, notwithstanding, what about people who are completely innocent? In these two clips (h/t Adam Knisley), Professor James Duane presents a cogent case for why you should never speak to the cops, and a police officer (who is also a law student) speaks and agrees also:
I would love to hear from Canadian defense lawyers or police officers on whether any of this applies in Canada. (cross posted at the University of Alberta Law Blog)
Update: Zebulon Pike asks if refusing to speak is obstruction of justice, and that is a good question. It would be hard to refuse to speak if a police officer saw you on the street and just wanted to talk. Not being an expert on Canadian criminal law, I won't hazard a guess, which is why I qualified my remarks earlier and linked to the two clips. If anyone has a more informed view, I would love to hear.
Update 2: Thanks to Shane Matthews for the clarification. The point of the question I posed (and the videos I linked) is purely from a self-serving perspective. Your point about catching criminals is what economists would call the externality of cooperation.
Update 3: Thanks for the comment - the US Supreme Court has also held that failure to identify oneself to a police officer can be grounds for arrest. So it seems that the claims in the videos are limited to scenarios where the police ask you to come down and speak at an interview room.
Update 4: Nothing wrong with helping the police. I myself interned at a prosecutors office in the US and worked with the cops all the time. Hence, my question was qualifed as to the narrow legal, as opposed to moral, question posed by the professor and police office in the two clips, which I found provocative. For example, Canadian disclosure laws would force the Crown to hand over most of what the police had in terms of tapes etc., whereas in many US states, their disclosure laws are not as strong. So does this negate some of the concerns the professor expressed in the first video? My apologies for not being clear in the purpose behind my post.
Posted by Moin A Yahya on April 16, 2009 | Permalink
Comments
Isn't that considered obstruction of justice?
Posted by: Zebulon Pike | 2009-04-16 5:51:43 PM
Zeb, Section 139 of the Criminal Code defines obstruction of justice as interfering with the proper functioning of a court: Witness tampering, jury tampering, intimidating, refusing subpoenas, destroying evidence, and so forth. It has nothing at all to do with the police.
There is a Section 129, "obstructing an officer," which basically means you're interfering with the ability of an officer to do his job: Trying to tamper with the crime scene, assaulting the officer of physically barring his path, and so forth. You can also be charged with obstruction if you fail to produce a license or registration, fail to provide a breath or blood sample, fail to provide identification, resist arrest, etc.
However, simply refusing to respond to interview questions is not obstruction. As the Americans say, "You have the right to remain silent." Plus, of course, there is a difference between answering a cop's questions as a witness and answering them as a suspect.
There's also another point that people have so far failed to address: If nobody spoke to the police, they'd never be able to catch anyone, which would mean more crooks on our streets.
Posted by: Shane Matthews | 2009-04-16 6:05:33 PM
Telling a Canadian police officer you have nothing to say to him or her is an invitation to get arrested if not tasered. Ask a cop, they'll tell you they assume a citizen is guilty if they talk like that. Sometimes it's better to use a little charm to get out of a jam. At the very least I'd recommend saying something like "Respectfully, officer, if I am to be arrested here I'd prefer to save my explanation for a judge, I'm shocked at the moment and don't know what to say.", police do not like stand offish citizens and don't put up with it.
This isn't America, and actually the Supreme Court of Canada ruled recently on the right to remain silent; I won't tell you what they ruled, though, you'll have to find that yourself. Hint: yet another asinine ruling by the Supreme Court ignored by those who claim to be libertarians.
Posted by: No Commies | 2009-04-16 6:38:29 PM
What's wrong with helping the police? Most of them are decent. I had awesome experiences with the New York Police Department and the Calgary Police Service.
Toronto's cops are absolutely useless - they're more of a slave patrol. The one time I called 911 there, they said that it was none of their business.
Posted by: Zebulon Pike | 2009-04-16 6:45:33 PM
I'll second that; I've spoken to the police a number of times (never as a suspect), and I've never had any reason to fault any of them. I'd really like to think that the bad stories we keep hearing about remain the unfortunate exceptions.
Posted by: Shane Matthews | 2009-04-16 7:47:46 PM
The key issue is whether you are a suspect or just a witness. My understanding of Canadian law is that if you are only a witness, not a suspect, then the police will not read you your rights because they cannot use your testimony in Court, anyway (it would be hearsay). If you are a witness, the only interest the police have in your evidence is for investigative purposes, or to build their case in the event that the Prosecutor needs to subpoena you to testify in Court. So if you are not read your rights, you should have nothing to fear in speaking to the police (assuming you do not inadvertently incriminate yoruself in one of the other 25,000 crimes on the books...).
The problem is very acute in cases of alleged intimate partner violence (IPV). As soon as one party makes an allegation to the police against the other party, the other party becomes a suspect and is well advised not to speak to the police, for all the reasons Professor Duane mentions. But this gives altogether too much power to the person who is the first to make an accusation; the other party cannot safely get their story heard. How can the police possibly get to the truth of what happened in a he-said-she-said situation when one party is effectively precluded from speaking?
My suggestion is that when investigating an alleged incident of IPV, the police should do all of their initial interviews deliberately without giving the constitutionally required warnings, so that nothing the parties say in these initial interviews can be used in Court. Only after they have developed a theory of the case based on all available information should they re-interview the ultimate suspect(s) with the proper warnings. That would almost certainly prevent a lot of false or vexatious allegations being pursued into Court.
I have often wondered about the constitutionality of Practice Note 8 in Family Law in Alberta. That Practice Note directs an automatic investigative process by a social worker and a police officer working in tandem as soon as an allegation of child sexual abuse arises in the context of a custody dispute. I once advised one of my clients not to speak to the police in the course of a Practice Note 8 procedure, for all of the reasons Professor Duane gives. As a result, no report could be produced to Court, as contemplated by the Practice Note. Justice Trussler said that as long as my client was unwilling to speak to the police, and as long as she had no report to go on, he would not get any unsupervised access. I pointed out that this in effect negates my client's constitutional rights, by holding his right to remain silent ransom to seeing his child; but Justice Trussler wouldn't make a ruling in the absence of a full-blown challenge to the Practice Note (with all the notices being sent to the Justice Ministers, etc.). She said that the initial purpose of Practice Note 8 was to protect parents from false allegations, and in fact over 80% of the reports came back as "unfounded." My client couldn't afford to finance a constitutional challenge to Practice Note 8, so he ended up talking to the police and was exonerated in the end. Not only did the police want to talk to him, they asked him to do a polygraph test, which he refused. His refusal was even noted in the report to the Court (as an indication of guilt?). When we went back before Justice Trussler, she aasked why he had refused the polygraph test. I replied that a polygraph is inadmissible in Court and anyway, if 80% of these investigations come back as "unfounded," then the better question is why the police don't require the person making the allegation to undertake a polygraph test in the first instance, to determine if there is even any reason to interview the respondent. The answer, obviously, is that the police are ONLY interested in catching the accused; they are NOT interested in determining that the accuser is guilty of perjury, making a false statement to the police, or obstruction of justice.
Professor Duane is right that you can never talk a police officer - or a prosecutor, for that matter - out of pursuing charges. I had a case where a client's wife had disappeared with their child, and he knew that three of her friends were sheltering her because he saw her vehicle around their homes and workplaces at various times. The mother successfully evaded service of Divorce papers, so we got an order for substitutional service on the three friends, and he tracked them down and served them. They made a complaint to the police that he was "stalking" them, and the police charged him. He showed the police and the prosecutor his order for substitutional service, which gives him the legal right to serve them with the papers they were assisting his wife to evade, but that made no difference. They wasted two days in Provincial Court at his criminal trial - examining and cross-examining the three women - before the judge threw out the case and told the prosecutor he was wasting everyone's time. This was at the same time as the provincial Prosecutor's Office was publicly complaining about not having enough lawyers and resources to deal with all the criminals in Alberta...
Finally, I'm shocked by all of the comments attesting to the honour of police officers. Has nobody learned anything from the Dziekanski inquiry? Or do you naively believe that this is an isolated incident? Police are VERY human, in every way. They are NOT to be trusted - especially by men who are accused of a gender crime.
Posted by: Grant Brown | 2009-04-16 11:36:22 PM
Sadly I am no longer shocked by examples such as the one provided by Grant. I used to have respect for the police in general when, at least in my view, they were concerned with law and order. Now there are too many cases of them harassing and intimidating citizens not involved in criminal activity while pretty much turning a blind eye to real crime. Only yesterday in returning from town I encountered three RCMP constables stopping all vehicles to see if the drivers and occupants were wearing seat-belts. Although I had mine on, I resent this kind of harassment (assuming people guilty until proved innocent) along with the fact that three constables were removed from dealing with real crime. When the issue of all the shootings is raised by the public, the RCMP cry they are understaffed and need more officers.
Posted by: Alain | 2009-04-17 10:55:13 AM
Good comment Grant, I'd like to see more of your expertise in a post on the subject rather than buried in the comment section here.
"Professor Duane is right that you can never talk a police officer - or a prosecutor, for that matter - out of pursuing charges. "
This being the internet, I have to find something with which to disagree :-) I would strongly advise Canadian citizens who are facing an arrest not to be too standoffish with the police. Sometimes an explanation for your actions might prevent a charge from getting laid, sometimes a police officer will interpret stonewalling as an admission of guilt and immediately lay charges, and of course sometimes it is best to very, very politely decline to answer their questions.
If we accept your premise that the police have not earned unlimited trust, and I sure do, then it follows that we maybe shouldn't trust them to act fairly or logically or professionally when dealing with the public, all the more reason to think twice before asserting our somewhat contested right to remain silent.
Still, good comment, I wish you'd post more about this stuff.
Posted by: No Commies | 2009-04-17 11:51:17 AM
I recently felt inclined to stand up to the police due to my belief that someone calling 9-1-1 from the suite upstairs (and then having them deny it -- probably the kids) from me wasn't probable cause for them to go charging through my suite uninvited.
I ended up doing nothing in order not to invoke their suspicion or ire. It was annoying, but not a hill worth dying on.
Posted by: K Stricker | 2009-04-17 5:19:13 PM
Talk to the cops if you are innocent, not if you're guilty. Never submit to a lie detector.
Posted by: Agha Ali Arkahn | 2009-04-17 11:59:29 PM
I think the most dangerous situations are traffic stops where an officer thinks you are dissing him, the RCMP are especially sensitive to that and things can quickly escalate. I just try to say as little as possible.
Posted by: Dan | 2009-04-18 11:36:36 AM
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