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How To Turn Red Into Black
November 29, 2007 12:06 AM   Subscribe

"A detective does his job in the only possible way. He follows the requirements of the law to the letter -- or close enough so as not to jeopardize his case. Just as carefully, he ignores that law's spirit and intent. He becomes a salesman, a huckster as thieving and silver-tongued as any man who ever moved used cars or aluminum siding -- more so, in fact, when you consider that he's selling long prison terms to customers who have no genuine need for the product."

A legal examination of the creative circumvention of Miranda rights in Baltimore as presented by David Simon in Homicide: A Year on the Killing Streets.

Previously.
posted by dhammond (95 comments total) 22 users marked this as a favorite

 
"Homicide" was one of the greatest tv shows ever shown on tv. It was even great on VHS. It was so great, it almost launched the acting career of Richard Belzer. It also featured Yaphet Koto and his hair.

I watched that show with a fervor the clergy would have loved to co-opt.

I was so saddened when the show ended. That Simon guy then went and did some cable thing 14 people really like, but otherwise was never heard from again.

...dons only half of the flame-retardent suit. It's effing cold this morning and I could use the warmth. Oh, and sweet article, thanks.
posted by From Bklyn at 12:21 AM on November 29, 2007 [1 favorite]


it almost launched the acting career of Richard Belzer.

I'd say it did launch the acting career of Richard Belzer, who's played the same character in over a half dozen series, most recently in the upcoming final season of the The Wire.
posted by dhammond at 12:30 AM on November 29, 2007


Aw, who gives a shit about blatant abuse of power? Let's talk about TV instead!
posted by nasreddin at 12:36 AM on November 29, 2007 [1 favorite]


it almost launched the almost-acting career of Richard Belzer.

Fixed it. For me.
posted by wendell at 12:36 AM on November 29, 2007 [1 favorite]


Has anybody here ever seen The First 48? I was actually stunned after watching it for a few seasons: I realized that the vast majority of their victories (maybe 80% according to my memory of the episodes) came from interrogation-room confessions. They would often find the body, the murder weapon, bloody footprints, and then a suspect with bloody sneakers, but then the narrator chimes in telling you how that still isn't enough evidence to convict without a confession.

And in some sense, thats true. Even the bloody sneakers only prove that the suspect was at the scene -- that he actually fired the fatal shot is still unproven. So they need a confession.

And the really funny thing is, they almost always get one.
posted by Avenger at 12:44 AM on November 29, 2007


Regarding the original subject of the post: This is MetaFilter. We have no concept of "the right to remain silent" here. Self-incrimination is a way of life.

And if the NSA had Pembleton and Bayliss working for them, they wouldn't need to waterboard anybody.
posted by wendell at 12:44 AM on November 29, 2007 [2 favorites]


They would often find the body, the murder weapon, bloody footprints, and then a suspect with bloody sneakers, but then the narrator chimes in telling you how that still isn't enough evidence to convict without a confession.

You mean that doesn't ONLY apply to celebrities in L.A.?
posted by wendell at 12:49 AM on November 29, 2007


Sorry for the derail:

I don't spend any time reading law journals. Is it normal for people writing about the law and it's application and enforcement to rely on one journalists depictions? I don't know, I'm asking. To me it's one of the most interesting things about the articles, but don't they come close to being a discussion of a fictional state of affairs? I don't mean Simon was a bad journalist and thus not trust worthy, but - and it's mentioned in the first article - he's clearly biased. Doesn't that bias then influence any interpretation derived from the reporting?
posted by From Bklyn at 1:10 AM on November 29, 2007


I'd say it did launch the acting career of Richard Belzer, who's played the same character in over a half dozen series, most recently in the upcoming final season of the The Wire

...thereby infecting countless other programs with the Tommyverse.
posted by grouse at 1:32 AM on November 29, 2007 [3 favorites]


So they need a confession.
And the really funny thing is, they almost always get one.


This is the very thing that drives me batshitinsane about the various flavors of CSI. Every damn case the person can't wait to incriminate themselves. Especially the really kooky ones where the person has naught but the flimsiest of motives via the evidence that would never stand up at a trial, so keeping quiet would be smart. But no... they get diarrhea of the mouth as soon as they're confronted with something that says they might have been within 2 miles of the crime scene sometime in the last calendar year. I know it's to give closure to the episode before the credits roll, but it leaves a bad taste in my mouth especially when they've tracked down someone who's been meticulous in planning/cleaning over 50 minutes, and now in the last scene they just won't. shut. up. about it.
posted by barc0001 at 1:48 AM on November 29, 2007 [3 favorites]


Aw, who gives a shit about blatant abuse of power? Let's talk about TV instead!

Aw, who gives a shit about people saying what people want to say? Let's talk about what you think people should be saying instead!
posted by Wolof at 2:13 AM on November 29, 2007 [5 favorites]


Sorry for the derail

Next time, maybe you could refrain from derailing. Then you wouldn't have to be sorry, and I wouldn't have to read a bunch of irrelevant trivia in a thread that started out being about something important.
posted by Kirth Gerson at 3:27 AM on November 29, 2007


Great post, dhammond.
posted by Kirth Gerson at 3:47 AM on November 29, 2007


You really think that the citizens of any country give a shit whether lying to a suspect in order to get them to incriminate themselves is unfair?

The sad fact is they don't. They don't even care if police shaft innocent people because they see the police as careful and infallible and if a person is charged and then dropped the populous just attaches the stigma of "oh he got off on a technicality" or some other retarded bullshit.

Society doesn't want the system to be fair. They want the police to catch the bad guy or the closest thing to the bad guy and put them in jail so they can feel safe in their gated communities at night.
posted by Talez at 4:03 AM on November 29, 2007


Just what I was hoping for this morning... another discussion here on Metafilter about the police... 'cuz we do it so well....
posted by HuronBob at 4:16 AM on November 29, 2007


Homicide was great, up till about season 4 or 5. Then it was just good.

The Homicide Movie never really happened as it generally sucked.
posted by Brandon Blatcher at 4:27 AM on November 29, 2007


What is getting insufficient amounts of attention is the book Homicide, linked to in the original post as well. This is the basis for the the Homicide TV show and has lots of overlap with The Wire. As good as the first few seasons of the TV show is, the book is better.

Main lesson: keep your mouth shut except to ask for a lawyer no matter what the police say. Oh, also appearing really relaxed when talking to the police is a bad sign. You know who is comfortable talking to the police? Criminals.
posted by shothotbot at 4:47 AM on November 29, 2007 [2 favorites]


A bunch of stories from the book make it into the Wire, particularly the tale of Snot Boogie, who had it rough, then had it worse.
posted by Swandive at 5:20 AM on November 29, 2007


My reply, written in fluent BunkMcNultiese:

Fuck? Motherfucker. Fuckity fuck. Fuck! Fuck! Fuck-fuck, Motherfucker. Fucking fuck in Fucktown, Fuckland. Motherfucker fucks a fuckton of fuckwads on fucking fuck motherfuckers. Fuck fucking fuck fuck fuckity fuck Inner Harbor fuck fucking motherfucker.

Translation, via BabelFish:

Homicide? Great book. Really good. But I'm not sure if I trust Simon's descriptions. He's just too close to Baltimore, Maryland. So he ends up reveling in the squalor and the faded majesty of the city, the tarnished honor of those few knights who try and defend it. He's really good at it, sure, but I wonder how much of the truth is lost by that grimy, vaguely New Journalist sheen. But then again, I'm just a white dude from Annapolis and the closest I came to the mean streets was when I got lost on my way to the Inner Harbor one night.
posted by robocop is bleeding at 5:29 AM on November 29, 2007 [6 favorites]


And in some sense, thats true. Even the bloody sneakers only prove that the suspect was at the scene -- that he actually fired the fatal shot is still unproven.

Note that circumstantial evidence is enough to convict anyone of any crime. There's an oft-repeated story about how circumstantial evidence cannot be the sole basis for a conviction. That's not true.
posted by Ironmouth at 5:40 AM on November 29, 2007


Also, the cops can lie to you all they want about circumstances and facts. It is a legal practice. They cannot decieve you as to your rights however.
posted by Ironmouth at 5:42 AM on November 29, 2007


You really think that the citizens of any country give a shit whether lying to a suspect in order to get them to incriminate themselves is unfair?

This thread is evidence to the contrary.
posted by Ironmouth at 5:43 AM on November 29, 2007


I would really feel better about that if it hadn't become about a TV show almost immediately. Opiate of the masses or something.
posted by IronLizard at 5:47 AM on November 29, 2007


Has anybody here ever seen The First 48? I was actually stunned after watching it for a few seasons: I realized that the vast majority of their victories (maybe 80% according to my memory of the episodes) came from interrogation-room confessions. They would often find the body, the murder weapon, bloody footprints, and then a suspect with bloody sneakers, but then the narrator chimes in telling you how that still isn't enough evidence to convict without a confession.

And in some sense, thats true. Even the bloody sneakers only prove that the suspect was at the scene -- that he actually fired the fatal shot is still unproven. So they need a confession.

And the really funny thing is, they almost always get one.
posted by Avenger


That is the most fascinating aspect of that show.

I'm glad the bad guys get caught, and I'm glad they confess. But when they start talking without a lawyer, I always yell out (mentally) WHAT ARE YOU DOING!!??

I remind my teen daughter (who of course will NEVER have any brush with the police) that IF anything ever happened where she is in custody to NEVER say anything except the minimal legal requirements without an attorney. (ID, where you live, etc.) It is indeed too easy for a cop who wants a brownie point to twist things, and stories of false confessions are not uncommon. "Just say it was an accident and you can go."
posted by The Deej at 5:57 AM on November 29, 2007


Best damn cop show, ever. The movie, no so much.
posted by tommasz at 5:59 AM on November 29, 2007


From Bklyn writes "Doesn't that bias then influence any interpretation derived from the reporting?"

Well if he is biased in the sense that he despises both law circumvention practices and these who deliberatedly or negligently circument law , and that "shows" he is not prejudiced, but rightfully disgusted by gross abuse of law, callous disregard for the very same rights a careerest "cop" stomps on so carelessy.

The first knee jerk reaction would be sending the asshole to salt mines do dig his own survival, see what rights and laws are about when they are crushed.

But on a second tought, they just need to be removed and stopped systematically.
posted by elpapacito at 6:04 AM on November 29, 2007


Oh, and the cops who don't want to technically lie might say something like "Just say it was an accident, and we're done here." Yes, we are done "here" in this room, but then we go to the holding cell.

I saw one show (American Justice maybe?) about a decades-old murder on a Naval submarine. The suspect was brought in, and apparently he had killed a crewmate in a fight, because the suspect had stolen some money. The officers pounded him that if it was manslaughter, and not premeditated, the statute of limitations was up and he would not go to jail, but he should confess so he can get if off his chest, and they can close the case. He asked for lawyer numerous times, and they talked him out of it. He finally gave in after asking several times for clarification that if it was manslaughter he would go free. He confessed the whole thing. He was arrested for premeditated murder. The officers explained to the film crew that premeditation can be just a split second of planning before the murder. I think the suspect did go free, though, because the confession would not hold up in court.
posted by The Deej at 6:05 AM on November 29, 2007


Is it normal for people writing about the law and it's application and enforcement to rely on one journalists depictions?

Simon is widely regarded as having written the best and most intimate portrayal of police detectives interrogating murder suspects. Not having been inside the box in either capacity, I'm not especially qualified to judge, but I think there's pretty good reason to think that he knows what he's talking about. I don't think anyone would argue that this study obviates the need for more traditional scholarly examination of police tactics.
posted by Horace Rumpole at 6:20 AM on November 29, 2007


So he ends up reveling in the squalor and the faded majesty of the city, the tarnished honor of those few knights who try and defend it. He's really good at it, sure, but I wonder how much of the truth is lost by that grimy, vaguely New Journalist sheen.

the truth is that the "War on Drugs" is destroying the criminal justice system or, you could say, has destroyed...

oh, and Baltimore was never majestic.
posted by geos at 6:23 AM on November 29, 2007 [1 favorite]


Great post, dhammond; too bad most people prefer to talk about TV shows, but perhaps this excerpt of the central argument of Kamisar's excellent piece will help:
Early in its Miranda opinion, the Warren Court vents its judicial ire at the interrogation manuals which instruct the police to "persuade, trick, or cajole" suspects out of exercising their constitutional rights. Twenty pages later, the Court returns to this point: "[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental . . . and not simply a preliminary ritual to existing methods of interrogation." ...

It is not because a police officer is more dishonest than the rest of us that we should demand an objective recording of the critical events in the station house. Rather, it is because we are entitled to assume that an officer is no less human -- no less inclined to reconstruct and interpret past events in a light most favorable to himself -- that we should not allow him or her to be a judge of his or her own cause.

Unless tape-recording of police interrogations is required, it will be of no great moment whether Miranda is expanded or cut down or reshaped. For absent such a requirement, sweet-talking police interrogators will be able to assail, maim, and all but kill Miranda (or, for that matter, any other confession rule).
It's not just Bush & Co. who are trying to turn the U.S. into a police state. The police themselves will do it if given half a chance—all from the best of motives, of course: "We're just trying to put the bad guys away to keep you safe, sir." And they, of course, know who the bad guys are. Because they're cops.
posted by languagehat at 6:24 AM on November 29, 2007 [4 favorites]


I think the suspect did go free, though, because the confession would not hold up in court.

But if there had been no film crew there, he's still be in jail. Which is the point that the first essay in the OP makes. If cops will lie to a suspect to get him to surrender his rights, why should we be confident that the cop won't lie about having lied to the suspect?
posted by Kirth Gerson at 6:28 AM on November 29, 2007


Reading your post, I thought: yes, another article (who knows, maybe a book!) like Simon's 'Homicide'. I was vaguely disappointed when it turned out to be Simon's work after all. I'll just have to reread it then.
posted by NekulturnY at 6:39 AM on November 29, 2007 [1 favorite]


I think the suspect did go free, though, because the confession would not hold up in court.

But if there had been no film crew there, he's still be in jail. Which is the point that the first essay in the OP makes. If cops will lie to a suspect to get him to surrender his rights, why should we be confident that the cop won't lie about having lied to the suspect?
posted by Kirth Gerson


Right, which is an excellent point. And you can't help but wonder what goes on with no cameras present. In the few cases I have seen where the internal interrogation video or audio has been made public, some of it is quite alarming.

I am far from "anti-police" but it's important to remember that in the event I am ever arrested, the police are not my friends.
posted by The Deej at 6:59 AM on November 29, 2007


Homicide was one of the best books I read in the past year, and the quoted section about interrogations really blew my mind. I'd never thought about how the psychology of an actual interrogation would play out; I just sort of pictured detectives steamrolling their way towards the truth somehow. Simon's salesman analogy seems a lot more realistic, and describes a disturbingly less-precise process.

Weirdly, I read this article in the Minneapolis paper this morning about turmoil on our local homicide unit and thought that the four or five subplots roiling around in there sound like something David Simon would turn into great drama.
posted by COBRA! at 7:08 AM on November 29, 2007


If you people keep talking about TV, someone's gonna get tased.
posted by yerfatma at 7:18 AM on November 29, 2007


I have the whole series run on dvd...fantastic stuff

That box and the full run of The West Wing are my desert island discs. Hell, my kid has learned more about government watching TWW than he has in school.

Interesting thing that probably only I am dork enough to have noticed -- on TWW, when Abbey Bartlet is being investigated, Oliver Babish is reading off a list of malpractice suits against her, he mentions one of the patients was a "Francis Pembleton"

She says....yeah..."Frank Pembleton"

coincidence...or homage
posted by timsteil at 7:32 AM on November 29, 2007


My father was a cop. For many years a detective in Anne Arundel County, just south of Baltimore City. And I can remember several conversations we had when I was younger during which he advised me that if I was ever arrested for ANYTHING to lawyer up as fast as I could. He liked his fellow cops. He trusted his fellow cops. But he knew just how good his fellow cops were at twisting things just enough to get information out of a suspect without breaking the law and he wanted me to make sure I always knew and protected by rights.

I am always stunned when I watch shows like the aforementioned First 48 and see how many people waive their rights. (It's also why shows like Criminal Intent bother me, despite my undying love for Vincent D'Onofrio. Why are you talking to this schizo detective? Can't you see he's trying to trick you? Get your lawyer, moron! Oops...that's a tazin'.)
posted by LeeJay at 7:42 AM on November 29, 2007


If you people keep talking about TV, someone's gonna get tased.

Yawl think yer better'n me jes cuz ya can read!
posted by The Deej at 8:02 AM on November 29, 2007


Really? There's a schizophrenic detective on Criminal Intent?
posted by agregoli at 8:02 AM on November 29, 2007


Seriously, I don't understand how cops don't get this is a horrible idea. The last thing you should want is for someone who is *actually* guilty to get out of prosecution because you skirted the whole Miranda issue. Of course, then there's that whole sending innocents to jail thing, but feh, those guys aren't all that important.
posted by teleri025 at 8:10 AM on November 29, 2007


agregoli: Well, no, not exactly. His mother was schizophrenic and he fears he might be but I don't think that he is. He has issue of his own, though.
posted by LeeJay at 8:15 AM on November 29, 2007


oh, and Baltimore was never majestic.

Not to be too banally a Baltimore booster, but you're very wrong. Baltimore was a very important city in the 19th century in America, with a bunch of first (including an exemplary sewer and water system and the first gas street lights in America). Certainly the great fire of 1904 destroyed a lot of the grandeur, but there's still plenty left.

Maybe read some Mencken.
posted by OmieWise at 8:27 AM on November 29, 2007 [1 favorite]


If you read the book, teler1025, you'll see why the cops aren't worried about it. They still get people to sign all the right forms, they just do it in a sort of mambo that makes people sort of not notice.
posted by Bookhouse at 8:30 AM on November 29, 2007


The last jury I was a part of in Chicago, the police got a a verbal confession from the suspect. They didn't record it. they didn't have him write it down. they didn't write it themselves and ask him to sign it -- they just put into their notes that he confessed. The case would have been a lot more slam dunk if they had better evidence of the confession.

It's obvious on TV that the suspects should lawyer up immediately. It's less obvious in real life. A cop can question you anywhere, not only at the police station. If you get pulled over for a suspected dui, you can refuse to take the street tests -- it's giving evidence against yourself. However, not cooperating just gives the officer the excuse to detain you.
posted by garlic at 8:35 AM on November 29, 2007


Great post, great article. I just ordered Simon's book. It is tragic how ill-prepared most citizens are when they encounter our adversarial legal system. I wonder if there are free classes or something out there that teach people how to deal with the law, and explain to them their basic rights and what the system is really like?
posted by AceRock at 8:42 AM on November 29, 2007


Fascinating.

One of my favorite episodes of the TV show was a break-the-fourth-wall one where all the various detectives walk the viewer through the arrest and interrogation process. In my (not entirely accurate memory) practically every other scene Bayliss or Pembleton looks straight into the camera and says something like "The police officer is not your friend. When you are in this room [the box] and he asks you a question, shut up."
posted by rtha at 8:42 AM on November 29, 2007


That's a tazin'!!!
posted by The Deej at 8:57 AM on November 29, 2007


rtha do you remember which episode/which season that was?
posted by AceRock at 9:02 AM on November 29, 2007


Three things, which may or may not have anything to do with the article:

1.) Back when I was going to raves on a regular basis, the ACLU would occasionally show up and hand out cards that would walk you, step by step, through what to do if you were picked up by the cops. There were a lot of things on the list, but the most important one boiled down to "don't say shit without a lawyer present, no matter what the cops tell you". It was as a result of seeing these cards that I made my first donation to the ACLU, and I continue to do so to this day.

2.) Does anyone else watching the first season of Homicide ever get totally taken out of the moment by the characters named after grunge rockers. The first episode that I ever watched, Black and Blue (still my favorite episode), has a subject named Lane Staley (similar to Layne Staley of Alice in Chains), and there were a few other names that peppered the season.

3.) My grandmother once got out of jury duty because when they asked her if she had any reason to believe that the defendant was guilty, she said that he probably was, because the police had arrested him. She was not, I'm ashamed to say, looking for a way out of jury duty; she actually believed it. As bizarre as I found it then, I now find even more bizarre that a shocking number of otherwise intelligent people think the exact same way.
posted by Parasite Unseen at 9:13 AM on November 29, 2007 [1 favorite]


AceRock - it's "The Documentary", from season 5. Fantastic ep.
posted by rtha at 9:22 AM on November 29, 2007


AceRock: The episode in question is The Documentary (season 5, ep 11 according to IMDB). Brodie (Max Perlich) made a documentary about the unit and Bayliss and Pembleton were addressing his camera. It is a great episode, and most of what they say comes verbatim from the book, especially from the section quoted in the linked article.
posted by HSWilson at 9:37 AM on November 29, 2007


Guess I should have hit refresh.
posted by HSWilson at 9:37 AM on November 29, 2007


uh....I'll take the 5th..(for now)
posted by S. Karin at 9:41 AM on November 29, 2007


Until shows like Homicide came along, detectives themselves had no idea how other detectives outside the tiny sample they had been able to observe personally behaved in the interrogation room.

Now they have models, dazzlingly charismatic ones, and as sure as the Mafia has aped The Godfather, and military interrogators 24, you can bet detectives are doing their best to live up to their media images. God knows how many slaps to the head Andy Sipowitz is personally responsible for.

I used to love Homicide, but when the show decided it was just too threatening to have a deeply black detective be so much smarter than everybody else, and gave Pembleton a stroke, I lost interest.
posted by jamjam at 9:46 AM on November 29, 2007 [1 favorite]


when the show decided it was just too threatening to have a deeply black detective be so much smarter than everybody else, and gave Pembleton a stroke, I lost interest.

jamjam, I think that's a pretty crazy misreading of the Pembleton-stroke subplot. While I do think it was a sign of a show flailing around for drama to boost ratings, it's always seemed to me like an exploration of a character who is all about pride and control facing an event that profoundly sabotages both. The notion that Pembleton was just too magnificently black for television, and had to be humbled by The Man, is a little paranoid.
posted by Horace Rumpole at 10:22 AM on November 29, 2007 [1 favorite]


I used to love Homicide, but when the show decided it was just too threatening to have a deeply black detective be so much smarter than everybody else, and gave Pembleton a stroke, I lost interest.

Everything that I've read suggests that the stroke storyline was at the request of Andre himself, who was feeling that playing the same infallible superman forever just wasn't giving him any opportunities to let the character grow.
posted by Parasite Unseen at 10:23 AM on November 29, 2007


jamjam - If I remember correctly it was Andre Braugher that wanted Pembleton to have the stroke. He felt Pembleton was too good at his job and that the character was becoming boring. His recovery was because of negative reaction from the fans, originally it was supposed to take him much longer to recover. I don't think the stroke decision had anything to do with his race. (I'm going from memory on this, so I might be completely off.)

On topic: I've been on the wrong end of a police interrogation before, and having seen what they try to do (very poorly in my case) I would never say anything to a cop ever again.
posted by HSWilson at 10:25 AM on November 29, 2007


Links to the ACLU's "Know Your Rights" pocket card and pamphlet, both in PDF.
posted by AceRock at 10:31 AM on November 29, 2007 [1 favorite]


rtha thanks!
posted by AceRock at 10:34 AM on November 29, 2007


Links to the ACLU's "Know Your Rights" pocket card and pamphlet, both in PDF.

From a contrary perspective: "Know Your Rights."
posted by nasreddin at 10:58 AM on November 29, 2007


shotbot: You know who is comfortable talking to the police? Criminals.

Yep, that's what cops always think.
posted by lodurr at 11:01 AM on November 29, 2007


Parasite Unseen, I was an alternate on a jury where a fellow juror who was a lawyer said the same thing.

That experience, which I have ranted about before, made me distrust the legal system even more than I had already. They wouldn't tell us (the jury) what the law was. They wouldn't tell us what the defendent had supposedly done, though we could sort of guess. The defendent's attorney was obviously one of the free ones- maybe even a student- and she was incredibly incompetent and irritating. Horrible.
posted by small_ruminant at 11:18 AM on November 29, 2007


I used to love Homicide, but when the show decided it was just too threatening to have a deeply black detective be so much smarter than everybody else, and gave Pembleton a stroke, I lost interest.

I'm going to strongly disagree here. I don't think the show had some bullshit racist reason for Pembleton's stroke, but that he had become an omnicompetent supercop, like D'Onofrio's character on L&O:CI, and in a show like Homocide it just didn't work. (On preview, what a bunch of other people said.)

As to the article...I personally, have little problem with the various "sales" techniques used by detectives. I believe in Miranda, and the accused knowing their rights, but with interrogation being so integral to building a case, I believe detectives must use whatever psychological tricks they have access to. I mean, why not just require an attorney to present during all interrogations? Because police need that breathing room, otherwise one of the most potent evidence gathering methods just goes out the window.
posted by Snyder at 11:19 AM on November 29, 2007


"With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him."

-Former Attorney General and Supreme Court Justice, Robert H. Jackson, April 1, 1940
posted by landis at 11:21 AM on November 29, 2007 [4 favorites]


is it better that a murderer go free than be tricked into confessing?
posted by bruce at 11:38 AM on November 29, 2007


No but sometimes innocent people are tricked into confessing.
posted by The Deej at 11:44 AM on November 29, 2007 [2 favorites]


is it better that a murderer go free than be tricked into confessing?

Brilliant! Here, let me help follow up on your insight:

is it better that a murderer go free than be tortured into confessing?

is it better that a murderer go free than be killed without trial?

is it better that a murderer go free than his entire country be nuked into the Stone Age?

Gosh, once you realize that a murderer going free is the worst thing in the entire world, all sorts of things become reasonable, even irresistible!
posted by languagehat at 11:45 AM on November 29, 2007 [10 favorites]


is it better that a murderer go free than be tricked into confessing?

I don't think you can really make this sort of statement, because it ignores the fact that we are not discussing a particular case- we are discussing a widespread practice that is in use beyond murder cases. On the other hand, one could ask if it is better that a mentally handicapped person be sent to death row because a cop lied to them and put a confession in their mouth rather than allow people who have committed victimless crimes know their own rights? It's basically the same question, from the other side, and it does just as little to clarify the issue.
posted by 235w103 at 11:51 AM on November 29, 2007 [1 favorite]


wow, if false equivalencies from overt criminal-sympathizers were money, i'd feel like i just found a bank bag on the sidewalk.
posted by bruce at 12:02 PM on November 29, 2007


the detective assures the suspect that he will honor his rights if he invokes them, but in the next breath warns him that asserting his rights would make matters worse for him. For it would prevent his friend, the detective, from writing up the case as manslaughter or perhaps even self-defense, rather than first degree murder. The detective emphasizes that he is affording the suspect the opportunity to tell his side of the story (Did the man you stabbed come at you? Was it self-defense?), "but once you up and call for that lawyer, son, we can't do a damn thing for you . .

Lesson for today: when the cuffs go on, when you hear them droning on about "the right to remain silent," JUST SHUT THE FUCK UP. Do NOT engage them in casual conversation. They are not your friends. They've just arrested you and are trying to send you away for years of your life.
posted by jason's_planet at 12:08 PM on November 29, 2007


wow, if false equivalencies from overt criminal-sympathizers were money, i'd feel like i just found a bank bag on the sidewalk.

If having an authoritarian personality makes you Paul Newman, then you've got a real cool hand.
posted by nasreddin at 12:08 PM on November 29, 2007 [1 favorite]


Well, golly, bruce, it's just that you were obviously doing so well with the false-equivalency thing already, they probably just figured you were a home-boy.

But to get just a tiny bit serious for a minute, bruce: The point is that you can be made to confess, and can be found guilty of something, regardless ... well, of anything. If they want you, they have you, and whether they want you often has little to do with evidence. That's a fact of life -- here, it's a fact of life related by a former homicide detective.

Similarly, with torture, if you are willing to torture someone you can get them to say more or less whatever you want them to say. The relationship of that confession to reality is -- well, probably not very great. For example, the confession might take account of the laws of gravity.

So, if your done trolling, maybe you'd like to go chew on those things for a while.
posted by lodurr at 12:11 PM on November 29, 2007


as much as i admire paul newman, i have no present plans to release a line of salad dressings.

nasreddin suggests that i'm an authoritarian, and lodurr casts me as a pro-torture troll, solely on account of my interest in public safety and willingness to see justice done. is there something in the water here?
posted by bruce at 12:16 PM on November 29, 2007


is it better that a murderer go free than be tricked into confessing?

Yes. This is so because having murders happen is better than having murders happen *and* having habitual lawbreakers running your police and courts.

solely on account of my interest in public safety and willingness to see justice done

Justice doesn't trick. Justice is direct, open, and above all honest.
posted by ROU_Xenophobe at 12:29 PM on November 29, 2007 [1 favorite]


Do the ends justify the means, bruce?
posted by garlic at 12:35 PM on November 29, 2007


that depends on what's at stake here, garlic. if i'm protecting somebody i love, you bet your ass they do.

applause for xenophobe giving me an honest yes or no answer with no veiled aspersions, even though i don't happen to agree with it, or the legitimacy of his dichotomy.

i acknowledge the problem of false confessions and am open to any solution which doesn't throw the baby out with the bathwater. i stand by the fifth amendment's right of no self-incrimination and reject rubber hoses and electric shocks to the genitals in aid of confessions. tricks are not torture.
posted by bruce at 12:45 PM on November 29, 2007


Is it normal for people writing about the law and it's application and enforcement to rely on one journalists depictions?

It's a book review that happens to be in a law journal and written for lawyers. A book review, by its very nature, discusses the world as seen through the book.

This is the very thing that drives me batshitinsane about the various flavors of CSI. Every damn case the person can't wait to incriminate themselves. Especially the really kooky ones where the person has naught but the flimsiest of motives via the evidence that would never stand up at a trial, so keeping quiet would be smart. But no... they get diarrhea of the mouth as soon as they're confronted with something that says they might have been within 2 miles of the crime scene sometime in the last calendar year.

I won't get into the argument whether CSI is realistic, but having been as HSWilson put it "on the wrong end of an interrogation" this year, I can quite reliably say that cops know how to get people to talk. Essentially, when we were having problems with a drug house across the street, they made some wild counter-accusations which a cop decided to corner me on. One of the charges, most assuredly a damned lie, was a felony. I remember quite clearly the moment in my "casual" conversation when I realized it was anything but. I still had a great and compelling psychological need to tell him "my side of the story" -- to say it wasn't "like that". I came thisclose to asking him if I needed a lawyer. Ultimately he accepted my emphatic denial, and within a week, the neighbors finally started getting arrested for the shit they were pulling on a daily basis. But it's been almost four months and the five minute conversation with that cop still makes my blood boil.

Oh, also appearing really relaxed when talking to the police is a bad sign. You know who is comfortable talking to the police? Criminals.

I think whether you appear relaxed or tense the cop knows how to make that an issue. When he started throwing stuff in my face I crossed my arms and clenched my jaw (if drug dealers started accusing you of untrue shit, wouldn't you?), and he almost taunted me for acting defensive. I don't think there is any one way to "act".

Lesson for today: when the cuffs go on, when you hear them droning on about "the right to remain silent," JUST SHUT THE FUCK UP.

Dude, as I learned, you gotta shut the fuck up -- or at least watch carefully what you are saying -- well before they take the cuffs out. The whole point of this thread is that cops try to prolong as much as possible the time before which they are required to Mirandize you.

The last jury I was a part of in Chicago, the police got a a verbal confession from the suspect. They didn't record it.

We can thank torture-cop John Burge for the current CPD policy of videotaping all confessions.
posted by dhartung at 12:47 PM on November 29, 2007 [1 favorite]


bruce: wow, if false equivalencies from overt criminal-sympathizers were money, i'd feel like i just found a bank bag on the sidewalk.

If you've been arrested, you're not a criminal yet. This thread isn't about sympathizing with criminals, it's about the fervor with which police race to fulfill a court-satisfying magic formula that indicates official guilt, in order to advance their careers, or maybe even fill a quota.

And because of the state of our prisons, and the fact that ours is one of the very very few civilized nations in the world that still uses the death penalty, the consequences of an innocent person getting convicted are even more over-ridingly great... or would be, if we really cared about their fate and the honest pursuit of justice.

Jerk.
posted by JHarris at 12:51 PM on November 29, 2007


if you've been arrested, you're not a criminal yet.

well, your guilt/innocence hasn't been adjudicated yet, and you are entitled to the presumption of innocence. this is different from whether you are a criminal or not. you are either a criminal or not a criminal at the time of your arrest based on your conduct before the arrest.

court-satisfying magic formula that indicates official guilt...

wtf? official guilt is indicated when twelve people come out of the jury room, line up in their box and announce a guilty verdict. is that the magic formula you're deriding?

jerk.

"it is good that we are being attacked, for it means that we have successfully established a distinction between our attackers and ourselves." --mao tse-tung
posted by bruce at 1:02 PM on November 29, 2007


bruce - you should read the article linked in the post.

Among other things, it's a very smart, clear legal argument against a lot of what you are saying.
posted by From Bklyn at 1:15 PM on November 29, 2007


tricks are not torture.

Maybe not. But tricks are tricks, and are routinely used to get people to confess to things they didn't do. Or believe things that never happened.

It happens all the time. Cheating spouses convince their mates that they're imagining things, well-meaning (and not so much) psychotherapeutic professionals convince people that they were sexually abused, abusers convince people they weren't, interrogators convince people they're criminals (See: STASI), etc., etc., etc.....

Citing Mao was particularly apt, since his secret police did a lot of that.
posted by lodurr at 1:20 PM on November 29, 2007


This is why I don't tell lawyer jokes.

Lawyers are the subject of ridicule only with dip shits. Wait until you need one. And one day you will. In one capacity or another.

People have to know that ANY interaction with the law is going to be a bad experience 80% of the time. And it does not matter if your are innocent or not. Nobody cares. You are just another pain in the ass docket to be cleared.

The one time I ended up on the wrong side of an assault charge I was convinced since "I was right" there would be no issue. The plaintiff was a noted drug dealer scum bag. I had no record. But I did talk too much to the cops without thinking. And scum bags will use the legal system to bargain. They don't just go "Well... you got me officers." They lie like mother fuckers.

Anyway. I was very lucky, being the son of an army officer, I speak "authority-ese" very well and kept my cool during the first exchange with the cops. But after that I figured I could walk into a court and do my Pacino impersonation and everything would work out and I'd be shown to be the hero I felt I was.

I was sooo lucky that I wasn't arrested the night it all happened and before arraignment that a buddy who was a lawyer of mine got wind of the whole thing and called me.

So I had a lawyer present at all the other subsequent interviews and thanks to the lawyer it never went to trial... which if you can avoid DO.

It was disappointing to not have a scum bag get his comeuppance in court but it was better than the legal hell opening my big mouth nearly got me into.
posted by tkchrist at 3:00 PM on November 29, 2007


tricks are not torture

but being innocent and in prison is. tricks landed my friend's younger brother in maximum security prison at the age of sixteen. no lawyer or guardian present, handcuffed too tightly to a chair at two a.m. and scared into an unsupervised interrogation. sure the tricks they pulled weren't torture, getting raped probably was.
posted by andywolf at 3:55 PM on November 29, 2007


3.) My grandmother once got out of jury duty because when they asked her if she had any reason to believe that the defendant was guilty, she said that he probably was, because the police had arrested him. She was not, I'm ashamed to say, looking for a way out of jury duty; she actually believed it. As bizarre as I found it then, I now find even more bizarre that a shocking number of otherwise intelligent people think the exact same way.

I don't see how this is such a bizarre and shocking thing. I know plenty of innocent people are put on trial and that sometimes evidence is falsified or fabricated, but to suggest that the man is not probably (i.e. more likely than not) guilty means you think that this happens in more than 50% of the cases brought to trial. I don't know. I wouldn't be too surprised if that turned out to be true, but it wouldn't be my default assumption.
posted by juv3nal at 4:16 PM on November 29, 2007


“Main lesson: keep your mouth shut except to ask for a lawyer no matter what the police say.”

My uncle gave me some advice a long time ago that’s served me well. He said never admit to anything no matter what.
So, even if they had the body, the weapon, the bloody footprints and bloody sneakers and video of me doing it while I sign my name to the wall, I’d deny everything.

Bit of a problem when I come home from work. ‘Hi, honey, how was your day?’ ‘What day? I didn’t go nowhere.’

“is it better that a murderer go free than be tricked into confessing?”

Yeah. It is. Better in every sense of the word.
The law is geared to protect the rights of the innocent. That includes presumption of innocence as well as preventing laziness from the cops (e.g. grabbing the first guy they see, swindling or beating a confession from him and pretending they’ve done their jobs).
In essence, you are more likely to catch a murder when you use the proper tools lawfully, even though it appears as though criminals are beating the system all the time.
The dramatic nature of the rare events occludes the everyday work.
And apprehension doesn’t equal conviction.
There’s no statutory time limit on murder. So the investigation remains open.
If the first guy or first couple of guys are let go, the cops look through different other suspects and might find one that more perfectly matches the evidence.
Or they might bring a suspect back. He only “goes free” after being given a trial and being found not guilty.
So the police would only “use tricks” to bring him to trial. If those tricks are used against an innocent man apart from the possibility of convicting an innocent, you’re wasting the courts time as well as allowing the REAL murder quite literally to go free.
If he’s not convicted you’ve wasted time, left your department open to a possible wrongful conviction lawsuit, and -while you’re in court testifying you’re not looking for stronger evidence.
So really - even if the tricks work, and the guy is the real murderer - you might not ever be completely sure you put the right guy away because the evidence wasn’t enough to support the merits of the case without using trickery.

Structurally it works much better than trying to fit a possibly square peg into a round hole. If you’re a cop, and your suspect fits all the evidence, and you present that evidence and he’s convicted - even if he turns out to be innocent, you have a clear conscience because he was convicted on the merits of the case, not on some bullshit play you tried to slide past the system.
posted by Smedleyman at 4:29 PM on November 29, 2007 [4 favorites]


I don't see how this is such a bizarre and shocking thing. I know plenty of innocent people are put on trial and that sometimes evidence is falsified or fabricated, but to suggest that the man is not probably (i.e. more likely than not) guilty means you think that this happens in more than 50% of the cases brought to trial.

This makes me think of the Gambler's fallacy. Outcomes of current cases shouldn't be treated as though they are influenced by previous ones. The possible prevalence of this error in thinking indicates an unjustified confidence in the infallibility of the police, which does seem shocking and bizarre, in principle as well as in practice.
posted by vira at 5:28 PM on November 29, 2007


I was born and raised just north-west of Baltimore and I was the first hippie to get a cab license in Baltimore. Back then the Baltimore cops where killing niggers in the news for pulling knives on them in seedy alleyways.

Then I got busted for working on an underground newspaper and I can never forget the eyes of the head detective there... the way he looked at me. I didn’t understand it back then, but now I know he had the eyes of a hawk and he was a killer.
posted by Huplescat at 5:50 PM on November 29, 2007 [1 favorite]


This makes me think of the Gambler's fallacy. Outcomes of current cases shouldn't be treated as though they are influenced by previous ones.

Jurors in the act of deciding a case shouldn't let it influence them, but I don't see how, for instance, if you have the same arresting officers involved you can say that, absent other information, knowledge about the officers' past behavior does not influence your off-the-cuff guess about an arrested person's guilt or innocence. We're not talking about dice or coin flipping here. People do sometimes tend to repeat patterns of behavior.


The possible prevalence of this error in thinking indicates an unjustified confidence in the infallibility of the police


I don't think it has anything to do with infallibility. If you say "probably" (and maybe I just don't understand what that word means) all that says to me is "more often than not." 49% is a hell of a long way off from being infallible.
posted by juv3nal at 6:18 PM on November 29, 2007


Even if 99% of all arrests result in convictions, it doesn't mean anything about one particular case.
posted by vira at 8:39 PM on November 29, 2007


is it better that a murderer go free than be tricked into confessing?

The problem is that if you trick someone into confessing, it doesn't automatically mean that they are actually guilty. Unfortunately most people, including those serving jury duty, assume that there's no way a person would confess if they were innocent. But it happens. A lot. False confessions are one of the leading causes of wrongful convictions.
posted by AceRock at 9:00 PM on November 29, 2007


vira, to juv3nal's point, in fact it does -- if the system is non-random, it means something about the probability of guilt in any particular case. (juv3nal seems to get that, but is being hard nosed about use of the term "probability.")

For example, if the system has historically caught people who are then convicted, people will feel confidence that there is a probability that the suspect is guilty.

This would not be an example of the Gambler's Fallacy. What it might be an example of -- what Homicide suggests that it is an example of -- is presuming evidence one does not have. For example, if 80% of suspects are convicted, and we believe we have reason to assume that 99% of those were guilty, then we would also think we have reason to assume that a new suspect was probably guilty.

The problem is that we can't be sure that the convicted are 99% guilty. We don't know what that percentage is. And the critical percentage to tip into "improbable" territory is not necessarily 50%. For example, given an 80% conviction rate, if the number of convicted who are guilty falls below 60% (my math may be off a little), it's no longer actually probable that a person who's brought to trial is guilty.

(And from a suspect's perspective, being subject to gaming and unsure of how well the system works, it's going to look pretty random.)

We also never know what percentage of the convicted are guilty. If even some significant percentage are not, it will cast a pall on the whole process. It's almost worse if we suspect that they're not guilty, than if we know, because then the system is perpetually operating under a cloud.
posted by lodurr at 2:45 AM on November 30, 2007


Getting away from tricksy police for a second, I think the really interesting thing about the original quote is that the detective is convincing the suspect to confess, and a lot of the time he can do it with just salesmen-ship.

I heard a researcher named Mark Frank talk to a financial services conference. He works on micro expressions like the work of Paul Ekman and consults to police departments. The police have a very vivid metaphor of "shaking the tree" to get the truth. This is the 24 brand of interrogation where you berate and threaten a suspect. Turns out that this is not an effective tool. The better way is to is to form a relationship with the suspect and get your information that way.

The micro expression stuff, for a brief derail, is supposed to be a scientific tool to help people detect deception. There are NO LYING CUES. However, people do have typical, involuntary, microexpressions which indicate stress and thus show topics where more pushing is appropriate.
posted by shothotbot at 4:38 AM on November 30, 2007 [1 favorite]


Not a derail in my view.

Here's Mark frank on NPR.
posted by lodurr at 4:40 AM on November 30, 2007


Soup has made a post about wrongful convictions, including this one resulting from a 'voluntary confession.'
posted by Kirth Gerson at 7:57 AM on November 30, 2007


The problem is that we can't be sure that the convicted are 99% guilty. We don't know what that percentage is. And the critical percentage to tip into "improbable" territory is not necessarily 50%. For example, given an 80% conviction rate, if the number of convicted who are guilty falls below 60% (my math may be off a little), it's no longer actually probable that a person who's brought to trial is guilty.

Yeah sorry, that kind of thing (60% of 80% or whatever) was actually what I meant when I was talking about 50%. I was being imprecise.
posted by juv3nal at 2:39 PM on November 30, 2007


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