The Right To Remain Silent: The Best Way To Stay Out Of Jail

posted August 19, 2009 12:00:00 AM CDT | 61 comments

Former New York City Department of Correction Commissioner Martin Horn gave a speech to City Hall in 2008 about juveniles in the justice system. This is what he had to say about the adolescents on Rikers Island.

…They tend to be detained on more serious charges than our older adult population. While 76% of our older adult males were in custody on felony charges, 93% of our adolescents were charged with felonies…Most adolescents in our custody are people of color; approximately 65% are black and 30% are Latino.

In other words, an astounding 95% of the adolescents on Rikers Island are either Black or Latino and are facing serious jail time.

Here are two ways to explain these statistics:

A.    Younger criminals are less experienced and are, therefore, easier to catch.
 

                                                      And/Or

B.    Younger arrestees don’t know any better and fall for police interrogation tactics. Therefore, they confess to crimes at a higher rate than adults with more experience in dealing with the police.

If (B) is true, we have a problem. As some of you may know firsthand, confessions don’t always mean you’re guilty. You’d be surprised at what actually constitutes a “confession” in the eyes of the jury.

Put simply, if you’re not careful, you may find that your words will make you confess to a crime you didn’t do.

The goal of this article is to give you the confidence to never, ever confess to a crime you didn’t do.

It’s easy. If all else fails, just remember these two words: SAY NOTHING.

Let me say it again. If you only read two words in this entire article, let it be these two: SAY NOTHING.

Again, if you want to stay out of jail, SAY NOTHING

SAY NOTHING!!!!!

It sounds like a no-brainer but you’d be surprised at how easy it is to forget this simple rule, especially when law enforcement “creatively” employ tactics designed to get you to say things you really shouldn’t. I went undercover in two New York-area District Attorney’s Offices and uncovered some examples of “creative” law enforcement. I’ve changed names and places to protect the innocent.

But before I spill the beans, what was that rule again? 

SAY NOTHING!!!!!!!

Example # 1: The Phantom Witness.

There’s an interrogation tactic commonly used in New York City that I like to call “The Phantom Witness.” This technique is responsible for a huge number of juvenile convictions. Why? Because it takes advantage of our psychological desire to talk our way out of trouble.

Pablo, a 16-year old arrested a few hours earlier in Bedford-Stuyvesant, Brooklyn is accused of Assault in the first degree. He allegedly smashed someone’s face with brass knuckles to steal his Sidekick.

Now, here are some things Pablo didn’t know. (I knew this stuff as an observer to the interrogation at Kings County Central Bookings). One, Pablo was picked out of a photo lineup by the victim approximately five days after the incident. The victim was apparently unsure at first, but was persuaded by detectives that his attacker was, in fact, Pablo. (That’s strike one. The Constitution protects the accused from suggestive lineup procedures. The DA knows this but she carries on anyway). Two, there is a racial element to the offense. The victim told police at the scene he was attacked by a black male. Pablo is Latino. (Call this strike two. The DA knows this inconsistency as well but she carries on anyway). Of course, Pablo doesn’t know any of these things. If he were a lawyer, however, he’d know that the DA has a very weak case against him. Unfortunately for Pablo, he talked himself into a guilty verdict. Here’s how it went down.

After spending 12 hours in the bullpens of Kings County Central Bookings, Pablo is summoned up to the interrogation room away from the holding cells. At 16, he’s just happy to be able to walk around outside the cage. As he sits down across the Assistant District Attorney and an NYPD detective, he’s immediately given his Miranda Rights. Yeah, they’re the same ones you’ve heard on TV your whole life:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you.

BUT WAIT! Before Pablo can assert his right to remain silent or his right to have an attorney, the DA throws this little epilogue in:

If your version of the events differs from what we’ve heard, this is your only chance to be heard. With that said, would you like to say something?”

Now, honestly, if you were:

16; in handcuffs; ignorant of your rights; and deprived of your freedom;

Would you remember the Miranda warning? Probably not. Most juveniles don’t. Pablo opened his mouth and there began the beginning of his end:

I didn’t do it.

Like blood to a shark, the DA and the detective honed in on him. Because he didn’t assert his right to remain silent or retain an attorney, everything Pablo says from this point on is considered to be voluntary. What’s a synonym for a voluntary statement made about the commission of a crime again? A CONFESSION. Everything Pablo said from this point on was viewed as a confession.

Without getting into it word for word, Pablo consistently gave alibis for his whereabouts at the time of the incident and, one by one, the DA and the detective planted doubts in his head. 

Ultimately, they hit him with The Phantom Witness:

We have a witness who places you there.

Who?

He doesn’t know you.

He’s lying.

He has no reason to lie.

It initially sounds like a spontaneous conversation but it’s actually a time-tested law enforcement tactic. Here it is once again:

We have a witness who places you there. He doesn’t know you. He has no reason to lie.”

Think about this statement for a second. How would the DA know what she just said is true? How could someone with that much of a massive caseload devote all that time and energy into conclusively saying that her witness doesn’t know you, has no reason to lie and places you at the scene? The answer is simple. She doesn’t. She is lying. She is lying to elicit a response from you. This tactic, which I might consider unethical, is legal. 

Surely enough, Pablo wound up spilling the beans about how he has a stolen Sidekick. Although he maintained he didn’t get it from the victim, the DA and the detective did their job. They got enough incriminating material straight from his mouth to sustain a conviction. He would’ve probably walked out the door with his freedom that morning if he just kept his mouth shut!!

Remember: SAY NOTHING!!

Example # 2: “The cop knows you’re a stupid teenager.”

The next example is a little different from Pablo’s but it illustrates the importance of keeping your mouth shut. It seems every teenager thinks he’s smarter than the cop. Newsflash: you’re not. This dumbass in my next example committed murder in the second degree in the Bronx. He wanted to be a gangster, so he got to be a gangster. Now he’s doing 35 years in state prison. The purpose of this example is to show you how pointless it is to try to get one over on the cop interrogating you. Whether you want to admit it or not, he is smarter than you are. This teenager’s best bet—as your best bet will be—should have been to SAY NOTHING.

The facts of this case were as follows:

Two friends, Deron and Daryl, devised a plan to rob a livery cab driver two summers ago near the Soundview Housing Projects where they lived. The initial plan called for Deron to phone in the cab company and for Daryl to rob the driver at knifepoint. (I hope you all see how stupid this plan was). Deron calls the Boricua Cab Company and arranges a pickup for eight o’clock outside their home. Daryl gets in the cab and tells the driver take him to Yonkers [about a 30 minute drive away]. At a stoplight, Daryl puts his knife to the driver’s throat and demands his money. The driver hits the accelerator and crashes into a tree. In the confusion, Daryl slits his throat and runs outside of the cab. He throws his knife into a nearby gutter. Daryl finds his way to his girlfriend’s house and hides.

Deron, meanwhile, is picked up by detectives about an hour later. The cab company provided the police with his name, phone number and address. Deron quickly caves when interrogated by police. (As an aside, he faced felony murder charges. Put simply, a killing committed during the course of a felony can give a rise to a charge of murder even if you didn’t actually kill the victim. It’s just another reason to NOT do crime). Deron snitches on Daryl and avoids serious jail time, walking away with a criminally negligent homicide charge carrying a four-year sentence.

Daryl was arrested the following morning. His dumb ass waived his Miranda Rights. He should be thankful New York doesn’t have the death penalty. This is how his interrogation went:

So where were you last night?

I was, um, with my girlfriend.”

Where was that?

In the projects.”

What time were you there?

I was there all night. From like seven up until this morning when y'all arrested me.

Are you lying?

Nah, I ain’t lying.”

I know you’re lying.

How you figure that?

Because we have a camera that shows you leaving your house at eight. [Remember that this didn’t have to be true].

Oh, yeah. I meant to say I left my house at eight and then I went to her crib.

“How did you get there?”

I walked.

“We saw you take a cab.”

Yeah, my bad. I forgot I took a cab there.

“What kind of cab was it? Yellow cab?”

Nah. It was a car service.

“What was the name of the company?”

I think it was Mexicana. Something like that.

“Do you mean Boricua?”

Yeah. Boricua. That was the name of the company.

And that was it. Daryl thought he was smarter than the cop, and got 35 years as a result. If he kept his mouth shut, this idiot may have gotten off on a lesser charge. But to be honest, he deserved his fate. I don’t see it any other way. 

There are other tactics you want to look out for. These include:

- Sending a Black/Latino/Asian/White detective to speak to you (If you are Black/Latino/Asian/White). This is a calculated move designed to gain your trust.

- Sending a young DA to prosecute you. The ADA in Mobb Deep member Prodigy’s case, for example, was younger than he was. This was most likely a tactical move by the DA’s office. If Prodigy’s cool, how bout we send our cool ADA to make it look like we’re cool too!

Talking to you on the ride to the police station. This is important. The Miranda warning generally doesn’t apply here and anything you say here is up for grabs to be used against you. Fight the urge to chit-chat. That cop doesn’t want to be your friend.

Good Cop/Bad Cop. When I was arrested for the grievous offense of trace marijuana possession (along with four co-defendants!) I fell for this trick. The “Bad Cop” kicked my car and cursed at me, calling me a “motherfucker.” The “Good Cop” told him to “shut the fuck up” and proceeded to gain my trust. (Even though he arrested me anyway). Since he was my new best friend I told him that we had smoked weed before we started driving and that there was no more left. Bingo. That was all he needed to arrest my ass. In hindsight, I should’ve kept my mouth shut. I learned the hard way that the best thing I—or anyone—could have done was SAY NOTHING!! (There was actually no weed in the car. I would’ve gotten off if I went to trial.)

Prodigy—I reached out to a lot of rappers for this project and I have to say the only one who came through is the self-proclaimed H.N.I.C. I cannot thank him enough. If you kids won’t listen to me about these tactics, hopefully you will listen to him:

I’m definitely aware of all of that—all the things, all of the tricks. All of the things that the state, police department, agencies, task forces [do]…I’m aware of everything that these people do. I’m definitely aware of it all…

One trick Prodigy alleges his arresting officers did was lie in order to sustain probable cause. (Recall that his vehicle was stopped and the gun was found in a search).

They lied to the jury and said that they saw the gun in my hand. The reason why they lied is to give them probable cause to search my car…they lied to the judge and the jury at my trial.

This is a typical allegation. (No disrespect to Prodigy). Most convicts assert the police lied at some point or another to get probable cause. The sad reality of these allegations is that although they may be true, because the person making the allegation is so uncredible, the jury almost never buys it. Put differently, a gangsta rapper’s word isn’t going to have as much weight as a police officer in the eyes of the typical juror. It’s not fair but that’s life. The police know this and, unfortunately, can conceivably get away with it. (Though I must say to the officer’s credit that we only have Prodigy’s opinion on the issue. To paraphrase the wise words of King Solomon: Everybody’s word sounds genuine until we hear the other side of the story).

With that said, however, it should be noted that there were some, shall we say, “creative” techniques used by the police when he was taken to the precinct. For starters, there is a Miranda issue with Prodigy’s arrest. When asked when he was given his Miranda Rights, he said the following:

I believe they were read to us as soon as they put the cuffs on.

When asked whether he was spoken to on the ride over to the precinct, he had this to say:

“Nah, they didn’t talk to me at all.”

This leads me to believe that Prodigy asserted his Miranda Right to remain silent. If that’s true, then we have a problem. The police pulled him into the interrogation room anyway and offered him a deal. This would be illegal. If you assert your right to remain silent, the police cannot speak to you. There may be factual issues Prodigy isn’t aware of but, assuming that he did assert his right to remain silent, the following exchange constitutes gross misconduct:

Basically, they tried to get me to work a deal and give them some information and basically snitch…they wanted me to plant evidence on 50 Cent and all kinds of wild shit they tried to offer me. But, you know I wasn’t trying to hear none of that shit. So yeah, they were definitely talking to me a whole lot before my lawyer got a chance to talk to me.”

Again, this is Prodigy’s word against the police. In the world of public perception, the police have more credibility than the gangsta rapper. But if there is a grain of truth to Prodigy’s allegation, then he should have gone to trial and fought the charges. Miranda violations such as the one he’s describing constitute immediate reversals on appeal. If he asserted his Miranda Right to silence, and was ignored, the police violated his Fifth Amendment Right against self-incrimination; If he asserted his Miranda Right to counsel, the police violated his Sixth Amendment Right to an attorney; and if there is anything to be said about his allegation of being offered to plant evidence on 50 Cent (I’m not necessarily saying there is), the police conduct makes out a Fourteenth Amendment Due Process violation. Long story short, if what Prodigy says is true, there was blatant Constitutional misconduct going on here.

Currently in the middle of a plea-bargained three-and-a-half year prison sentence, he is a living reminder that incarceration has serious repercussions. A lot of teenagers don’t know any better. If you’re one of them, you really should listen to what Prodigy has to say. First of all he’s been saying it since 1995:

      "As I turn the next page,

      Young niggas holdin' macs

      Acting triple they age

      And they blastin'

      Probably won't reach the age of 20

      Tell them niggas slow down,

      They start looking at you funny
."

      --Temperature’s Rising [Remix]

You gotta wonder where Daryl would be if he just slowed down. Maybe he would’ve left that knife at home. Maybe he wouldn’t be doing 35 years in the pen. Maybe. You just never know. The same goes for Prodigy himself. He’d be free if he just put that pistol to the side.

It’s my hope that the following quote from Prodigy puts things into perspective for everyone who reads this article:

I just got caught slipping because I wasn’t living right.” 

Indeed. Karma catches up to all of us. When it does, remember that the job of Law Enforcement is to take away your freedom. Never, ever make that job easy. Tilt the odds in your favor and SAY NOTHING!!

Rikers Island
photo gallery.

Please note: As a bonus, the pictures used in this article are official Rikers Island mugshots. If you won’t listen to me, and you won’t listen to Prodigy, maybe the following flicks will have you thinking twice.

Chris Thomas
is a 3L at Brooklyn Law School
.

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