There is a video that my YouTube app continues to suggest to me called “Don’t Talk To The Police.” I recently cleared my search and watch history so the app has no idea that I have already watched the video. To the best of my recollection, the video is basically a criminal defence lawyer giving a lecture to a university class in which he relates his experience and knowledge about the nature of conversations between law enforcement personnel and members of the public. His view is that NO ONE but a lawyer should talk to the police and in the event that someone is a lawyer, they should keep their mouth closed and let their lawyer do the talking. What is extra funny about the video, at least as I am remembering it now, is the presenters comments to a second speaker who will follow him, a member of law enforcement, in which they both agree that you should not talk to the police.
The lawyers view is that the police have a job to do, one that is potentially very dangerous and challenging. They have been tasked with enforcing the law and identifying people to charge with crimes. For the overwhelming majority of the public, the police satisfy these tasks by playing a crime prevention role and the administration of traffic tickets for moving violations. For the civilians who get pulled over, it can be slightly intimidating and unnerving. This isn’t a big surprise given that getting a traffic ticket can be expensive and can increase the cost of our mandatory insurance. Driving however is a privilege and since the government has a monopoly on violence and a responsibility to keep all citizens safe, we agree to certain things whenever we make the decision to drive. As such, if we are driving a motor vehicle and a police officer pulls us over we must show them our licence, vehicle ownership, and proof of insurance. In the event a driver doesn’t have a licence on them, they MUST reveal their name. Other than these three items, we have no obligation to say anything else. They can ask us any number of questions and we are free to refuse to answer them, just as we are free to say anything we want.
HOWEVER, choosing to remain silent or refusing to answer their questions, while not an indication of anything subversive, can lead to a more complicated interaction and a less desirable outcome. E.g. if they were considering just giving you a warning, refusing to answer their questions may serve only to ensure that they give you a ticket. If, in the very unlikely case you do happen to match a person of interest who they are looking for, not answering their questions does nothing to eliminate you as being the person of interest.
In all cases OTHER than being pulled over while driving, you have the right to say nothing to the police, to tell them that you do not answer questions or to request a lawyer to be present when they are questioning you. You maintain these rights forever and regardless of what the police may suggest. This is the essence of what the YouTube video is all about. Do not, under any circumstances, talk to the police or say more than you are legally required to say. You do not have to identify yourself, you do not have to explain what you are doing, where you are going or coming from, where you live or work, give a reason for being where you are, or identify any of the people you are with. In the event that they need to know these things, they will arrest you, take you to the police station, and allow you to connect with and bring-in your lawyer to do the talking for you. They cannot compel you to talk REGARDLESS of what they may try to do.
This is important. They are just doing their jobs, but since a big part of their job is to identify people to charge for crimes, it is safe to proceed under the assumption that they are trying to figure out what crime they can charge you with. This is such a big part of their job that the US has the Miranda warning that law enforcement personnel need to give to those they take into custody (those individuals who have been deprived of their right to liberty, which is the freedom to walk away at will). There is a script that most of us have heard dozens of times on Law And Order and on any number of crime shows, but a verbatim reading of the script is not actually a requirements. The law enforcement person must make the detained person aware of four things:
1) they have the right to remain silent
2) anything the suspect says can and may be used against them in a court of law
3) they have the right to have an attorney present before and during the questioning
4) if they cannot afford the services of an attorney, they have the right to have one appointed, at public expense and without cost to them, to represent them before and during the questioning
If they do not make a person aware of these things and proceed with questioning them, there is a near certain chance that any of the information they uncover will not be admissible in court. This may not matter if they are able to surface the information independently, but if the only source of the information is the non Mirandaized suspect, it cannot be introduced during a trial.
Related to the Miranda warning is the Fifth Amendment to the United States Constitution. This amendment gives a number of rights to citizens of the US as they relate to crime procedures. There are a number of rights, but the relevant one here is that of the right to NOT incriminate oneself. When someone pleads the fifth, they are invoking the right to not answer a question that they believe may lead to self-incrimination. This is similar to the Miranda warning but is used in more formal situations such as criminal trials, depositions, and speaking in front of congress or other legislative bodies. The point of each is the same, there is a separation between the government and the individual citizens and while the government holds practically all of the power, the citizens must have the right to safely resist this power in a way that ensures they are not victimized by the government without having the opportunity to consent to it.
So back to talking, or not talking, to the police. Given that one of their main responsibilities is to identify people to charge with crimes, it makes sense for us to unpack this a little more. Crime is not always or mostly a zero sum type of thing. In some instances, there will be one victim for each perpetrator – think about a mugging or a common assault. But in most other cases there can be more than one perpetrator – a gang attack, criminal syndicate, or most white collar crimes. With the exception of Bernie Madoff, who by all accounts was the sole perpetrator of a ponzi scheme that netted millions of dollars, most white collar crimes involve groups of people who are aware of what is going on and many more who are wilfully ignorant to what is occurring. This means that it is possible for hundreds of people to be guilty of a crime even if there was only one victim and even if there was no victim. People can be guilty of conspiracy and “after the fact” crimes.
This being said, the police have a responsibility to assume that EVERYONE they interact with might have broken the law. This is most likely true given the number of laws that are on the books. The police do not need to be actively investigating a crime in order to arrest someone for it, all that is required is a substantial belief that a crime has been committed by the person to whom they are speaking OR sufficient evidence of guilt that there is a reasonable chance that the person would be convicted at the end of a trial. Note that the person who gets convicted does not necessarily need to be the person who committed the crime, nor does a crime actually need to have been committed. A reasonable belief or sufficient evidence of guilt are enough to garner first the charge and then subsequent finding of “guilty.”
This is the underlying reason why the lawyer was telling the law students to NEVER speak to the police. His motivation is not to be a jerk or to make the job of police more difficult, although it could be for the first point and absolutely does cause the second. The human brain is not a fully logical operator, and it does NOT take in and process ALL of the available information because there is just too much. It then uses this incomplete information to manufacture an on-the-fly meaning and to then make predictions about the future based on this meaning and the experience it has previously had. Further to this, once it makes a prediction, this is used in the process of manufacturing meaning. The consequence to any interpretation and prediction is the re-prioritization of what information is important and what can be ignored.
This entire process makes a lot of sense as it serve the primary goal of all living beings, which is to remain alive. This is a remarkable achievement given just how complicated the physical world is. But the world of law and order exists primarily on the brains of human beings. It is therefore more abstract than tangible, which renders the human brain inadequate for accurately addressing it in an error free way. Ideas are the currency of thinking. Since these are made-up of electrical activity within the brain, they can only exist when someone is thinking them. The brain has a finite capacity and a finite speed, so the complex ideas that contain “law and order” come into existence when they are triggered and will fade away quickly when they are no longer being activated. This is the very reason why we cannot trust our brains completely in the moment and the reason why the clarity of our thinking will always benefit from taking more time to process and assess more of the information AND have a willingness to see the things that are not deemed to be meaningful by our initial interpretation.
The willingness is critical because without it, if someone has a vested interest in seeing things a particular way they will see things that way. Any conflict of interest has the possibility of altering the meaning that a person puts onto something, which will then alter the predictions they make, altering what information they pay attention, further impacting the meaning. Things can and do speed off into the realm of untruth very quickly rendering the predictions inaccurate and changing the way a person thinks, and about what they think, so profoundly that their predictions seem completely accurate.
In the case of the video, the lawyer is speaking to the conflict of interest that the police have when interpreting meaning out of their conversations with people. Since crime is everywhere and since most drivers routinely break the law, there is a near certain chance that any time a police officer speaks to someone that they are speaking to someone who has broken the law. The overwhelming majority of the people and crime pairings are inconsequential in the grand scheme of life – rolling a stop sign, speeding while keeping-up with the flow of traffic, etc… – but they are crimes nonetheless. Ones that, had the cop been looking for someone to be committing them WHILE the person committed them, they would have intervened and issued a citation for the violation. The fact that they did not see it while it was occurring is irrelevant to the fact that the person did violate the law.
We would like to believe that the police have no incentive OTHER than upholding the law when they do their jobs, but this simply is not true. Some officers are tasked with investigating a particular type of crime and are less inclined to care about other types of crimes, but, when all is said and done, crime is crime and there is a belief that someones past is the best predictor of their future actions. While moving or parking violations are not necessarily gateway crimes for drug trafficking, armed robbery, or tax evasion, there is an all or nothing quality to crime that is a slippery slope. It implies that maybe the speeder WILL become a thug because they have already shown a propensity if not a predilection towards violating the law. Since the police have the responsibility of enforcing the law and since most adults who drive violate the law fairly consistently, any conversation an officer has with an adult is also a conversation with a potentially violent criminal.
Three things here:
The first is that I am not suggesting that this makes anything more than narrative sense. I’m guiding you down the path in such a way as to make the conclusion seem inevitable. The fact that it matches reality is why I am doing this.
The second is that I am NOT suggesting that people who work in law enforcement are unethical or are behaving in any way that is different from how most people behave. They are effectively identical to everyone else and are simply doing their jobs as well as they can. If you or I were tasked with doing their job, we would do it in the same way because that is what the job requires. The consequences for a false negative are too high, and there is, after all, a slow and more methodical second evaluation in the form of the court system. This means that false positives can be sorted our later.
The third is about the incentive a police officer might have when doing their job that can be best understood when laid out in a blown syllogism.
If no crime occurs THEN there is no need for a law enforcement agency THEREFORE the police MUST charge people with crime.
There are a few things wrong with this, but it is an overview of the approach that is used almost the world over. Those who work in law enforcement have a vested interest in maintaining the appearance of a certain level of crime because without the crime, there is no need for a law enforcement agency.
Make no mistake about it, I have no problem with the police or with the desire to enforce the law in such a way as to allow people to live as safe a life as possible. I don’t have a problem with a law enforcement officer engaging me with a mindset that I am guilty of something and will talk myself into admitting to it if given a long enough time. Even though I am mindful to the rules of the road and the way in which I operate the cars that I drive, I likely commit at least one moving violation every time I get behind the wheel.
The problem I have is with talking to people who have already made-up their mind about the topic and are simply talking to me in an attempt to surface “proof” that they are correct. The video is used to illustrate the very natural tendency for people to uncover the things that they have an incentive to find, and it is much easier to appreciate this phenomenon when we examine the actions and behaviour of law enforcement personnel.
The fact of the matter is that EVERYONE operates the same way and will use conversation as the means to validate the predictions that they have already made. The only way to combat this biased information seeking behaviour is to limit what we say and to gain a more complete understanding of what we stand to lose when we keep talking.
Take a moment to think back on a real life crime show that included a part that had the interrogation of the prime suspect. When a lawyer is not present, the detectives work hard to get and keep the suspect talking because they know that very few people are capable of relating personal information and experiences without revealing some aspect of questionable behaviour. Once revealed, these details will be used as a wedge to cause their entirety of their story to unravel. We feel great when we believe that the person who is being interrogated is guilty. But we also feel good when the person looks a particular way or is from a particular geographic location. Having bad teeth or being from a country that is not as highly regarded as the US are not indications of guilt or criminal intent, but they are sufficient enough for us to manufacture meaning and make a prediction. So if we feel good when our “not based on anything” opinions are validated, imagine what can go wrong when the police form an opinion and set about getting the suspect to keep talking.
So what?
It needs to be said that the human brain functions in a way that leads to errors that are of a predictable type. It is not capable of keeping EVERYTHING in mind all at once, so it filters out almost everything in an attempt to keep only the relevant things active. This filtering process is not full proof and when dealing with complex things, critical information is discarded.
The filtering process itself is highly influenced by the information that is currently active in the brain and also by the information that is NOT filtered out.
Once a prediction is made, evidence that does not support the prediction or which invalidates it is filtered out. At this point, a cognitive error has occurred and the brain has moved into the realm of fiction.
Once the brain has created this fiction it is very good at asking the questions that reveal information that supports it. However, without information, the brain is mostly powerless at keeping the prediction alive. This means that saying nothing is a more effective way of maintaining the truth than trying to convince someone of it when they have made their mind up about it.
The sayings “their silence speaks volumes” and “if they had nothing to hide they would be willing to talk” are complete bullshit and they actually reveal a lot more about the mind set of someone who says them than of anyone who chooses to say nothing.
Uncomfortable silences benefit those who are seeking information MORE than anyone else, and they benefit those who are seeking biased or fictional information most of all.
If you take anything out of this post try to make sure that it is the following: the words we say change the world in ways that make taking them back impossible, so be sure to speak only when it is necessary, helpful, or true. Even then, always keep in mind that people tend to hear what they believe they will hear while filtering out most of the things that they do not believe they will hear or that they have an incentive to not hear.
NOTE: I am not a lawyer and this post is not intended to be nor is it actually legal advice. Any statements that can be interpreted as being legal advice should be interpreted as being statements about the nature of the human brain and of human behaviour. When in doubt, say less or nothing while seeking out the skilled professional in the area of concern. If someone is pressing you to talk or answer questions, they have a conflict of interest that will be served by getting you to say something. Do not give in to their desire until you have had the opportunity to fully assess the situation, uncover what you stand to lose, and involve the needed experts.