Brit Police Dramas, Right to Remain Silent US vs UK

[SethInMI 145]

I've watched "Line of Duty" enough to get curious about the differences between the "Miranda Warning" / 5th amendment rights differences between the UK and US. A brief summary for people who like that sort of thing (and correct me pls brits). 

if you refuse to answer a question during a police interview:

USA: it does not impact your trial at all.

UK: you cannot later supply an answer at trial (in other words you have to stick to your silence defense)

if you refuse to answer a question in a trial

USA: a criminal jury cannot take that as an indication of your guilt

UK: a jury can draw an "adverse inference" and regard your silence as one indication of guilt (there must be other corroborating evidence)

Also of interest was in the UK, without a constitutional backing, there is more flexibility to modify the law. In 1994 the "adverse inference" bit was added to the law, which in the US is hard to imagine without a constitutional amendment...
 

[jakee 1,254]

21 minutes ago, SethInMI said:

I've watched "Line of Duty" enough to get curious about the differences between the "Miranda Warning" / 5th amendment rights differences between the UK and US. A brief summary for people who like that sort of thing (and correct me pls brits). 

if you refuse to answer a question during a police interview:

USA: it does not impact your trial at all.

UK: you cannot later supply an answer at trial (in other words you have to stick to your silence defense)
 

No, that's not true. Your defense can use at trial things you didn't say during an interview. There is still the adverse inference thing though. This is all pretty obvious from the standard police arrest/interview warning “you do not have to say anything but it may harm your defence if you do not mention something when questioned that you later rely on in court. Anything you do say may be given in evidence”.

[JerryBaumchen 1,048]

1 hour ago, SethInMI said:

I've watched "Line of Duty" enough to get curious about the differences between the "Miranda Warning" / 5th amendment rights differences between the UK and US. A brief summary for people who like that sort of thing (and correct me pls brits). 

if you refuse to answer a question during a police interview:

USA: it does not impact your trial at all.

UK: you cannot later supply an answer at trial (in other words you have to stick to your silence defense)

if you refuse to answer a question in a trial

USA: a criminal jury cannot take that as an indication of your guilt

UK: a jury can draw an "adverse inference" and regard your silence as one indication of guilt (there must be other corroborating evidence)

Also of interest was in the UK, without a constitutional backing, there is more flexibility to modify the law. In 1994 the "adverse inference" bit was added to the law, which in the US is hard to imagine without a constitutional amendment...
 

Hi Seth,

Got hooked on that show, didn't you?

Jerry Baumchen

[kallend 1,623]

43 minutes ago, JerryBaumchen said:

Hi Seth,

Got hooked on that show, didn't you?

Jerry Baumchen

So did I.

And "Unforgotten"

And "Silent Witness"

And "Bosch" (except that's a US show).

 

[kallend 1,623]

1 hour ago, jakee said:

No, that's not true. Your defense can use at trial things you didn't say during an interview. There is still the adverse inference thing though. This is all pretty obvious from the standard police arrest/interview warning “you do not have to say anything but it may harm your defence if you do not mention something when questioned that you later rely on in court. Anything you do say may be given in evidence”.

The jury can draw any inference it chooses, not necessarily an adverse one.

And while a jury may be told to disregard a refusal to answer on the grounds that the defendant may incriminate his/herself, it is very difficult to unhear that response.

[SethInMI 145]

1 hour ago, jakee said:

it may harm your defence if you do not mention something when questioned that you later rely on in court

I read there is a "ambush the prosecution rule" that says you can't refuse to answer questions and then provide an answer in your defense at trial. I guess there is some room between interview and trial for working that all out?

[SethInMI 145]

18 minutes ago, kallend said:

And while a jury may be told to disregard a refusal to answer on the grounds that the defendant may incriminate his/herself, it is very difficult to unhear that response.

this is very true. the fact that the only reason someone would not testify is if they would incriminate themselves does make it hard for a jury to disregard. In practice it sounds like the two systems end up similar, but it was odd to read the fact that British juries are specifically allowed to consider silence as one factor in a guilty verdict.

[SethInMI 145]

1 hour ago, JerryBaumchen said:

Got hooked on that show, didn't you?

ha. yeah. Season 3 seemed to have a few more credulity stretching moments that the prior seasons, but we enjoyed it. As this post demonstrates, to me the differences in procedure bring a fresh feel and some fascination as a long time police procedural watcher (Law and Order NYPD Blue etc)

[jakee 1,254]

21 minutes ago, SethInMI said:

I read there is a "ambush the prosecution rule" that says you can't refuse to answer questions and then provide an answer in your defense at trial. I guess there is some room between interview and trial for working that all out?

No, because you're still plain wrong. Again, it's all in the standard police warning. "... if you do not mention something when questioned that you later rely on in court." How would you later rely on it in court if you were not allowed to rely on it in court?

The "ambush defense" refers to introduction of expert witnesses or testimony not previously disclosed, as a cursory Google search reveals. https://en.wikipedia.org/wiki/Ambush_defence

[SethInMI 145]

38 minutes ago, jakee said:

How would you later rely on it in court if you were not allowed to rely on it in court?

yeah I see what you are after. You can rely on a fact, but the jury is allowed to consider, to your detriment, the fact that you earlier refused to provide such facts.

My comment on ambushing the prosecution was taken from this link, which to me reads that the caution you refer to is referencing the "ambush defense"
https://en.wikipedia.org/wiki/Right_to_silence_in_England_and_Wales#Facts_later_relied_upon

The US courts have no such provision. If you don't want to answer police questions, it may not mean you are guilty, just that you don't like police and want to make their life harder.

[kallend 1,623]

Interesting that the Miranda "you have the right to remain silent" does not specify any particular reason being required (hating the police being, apparently, an acceptable reason), but the 5th Amendment "nor shall be compelled in any criminal case to be a witness against himself" suggests that the silence is only applicable to self incrimination.

[JerryBaumchen 1,048]

2 hours ago, SethInMI said:

ha. yeah. Season 3 seemed to have a few more credulity stretching moments that the prior seasons, but we enjoyed it. As this post demonstrates, to me the differences in procedure bring a fresh feel and some fascination as a long time police procedural watcher (Law and Order NYPD Blue etc)

Hi Seth,

Re:  a long time police procedural watcher (Law and Order NYPD Blue etc)

As I am; in case you had not noticed.  

Law & Order, the original, is my all-time favorite tv show.  I do not think any character in any show was better cast than Jerry Orbach as Lenny Briscoe.

Jerry Baumchen

[JerryBaumchen 1,048]

3 hours ago, kallend said:

So did I.

And "Unforgotten"

And "Silent Witness"

And "Bosch" (except that's a US show).

 

Hi John,

IMO with the exception of 'Bosch,' all good shows.

Jerry Baumchen

PS)  The best two shows I have seen recently ( although not police shows ) are The Trial of the Chicago Seven & Dr. Death; both based upon true events.

[ryoder 1,382]

1 hour ago, SethInMI said:

The US courts have no such provision. If you don't want to answer police questions, it may not mean you are guilty, just that you don't like police and want to make their life harder.

Or it may mean you have listened to this law professor (and former defense attorney):

 

[jakee 1,254]

1 hour ago, SethInMI said:

My comment on ambushing the prosecution was taken from this link, which to me reads that the caution you refer to is referencing the "ambush defense"
https://en.wikipedia.org/wiki/Right_to_silence_in_England_and_Wales#Facts_later_relied_upon

Your comment could not possibly have been taken from that link, because it simply does not say that you're not allowed to ambush the prosecution with your own personal testimony. Whatever you read, you didn't read it there.

[jakee 1,254]

1 hour ago, kallend said:

Interesting that the Miranda "you have the right to remain silent" does not specify any particular reason being required (hating the police being, apparently, an acceptable reason), but the 5th Amendment "nor shall be compelled in any criminal case to be a witness against himself" suggests that the silence is only applicable to self incrimination.

The Miranda rights are read when you're being arrested. This guarantees you're under suspicion of something and therefore it is possible in that situation that absolutely anything you could say might be construed as self-incriminating. If you were being interviewed solely as a witness to a crime you wouldn't be Mirandised.

[SethInMI 145]

45 minutes ago, jakee said:

Whatever you read, you didn't read it there.

From the "adverse-influences" section of cps.gov.uk (crown prosecution service website)

Regarding Section 34 of the 1994 act (the provision mentioned below):

"The Court of Appeal approved the statement of the trial judge in Brizzalari [2004] EWCA Crim 310, that the mischief at which the provision was primarily directed was the positive defence following a "no comment" interview and/or the "ambush defence"."

I think my use of "can't" is throwing you off. I think "may be held/used against you" is more acceptable. 

 

[jakee 1,254]

6 minutes ago, SethInMI said:

I think my use of "can't" is throwing you off. I think "may be held/used against you" is more acceptable. 

Your use of "can't" is throwing me off because you clearly did mean "can't". In your first post "UK: you cannot later supply an answer at trial (in other words you have to stick to your silence defense)"

"May be held against you" is more acceptable because it is correct, whereas you were wrong.

[SethInMI 145]

8 minutes ago, jakee said:

you were wrong

Glad you got me sorted.

eta: my "can't" was in the vein of "you can't do that without adverse consequences".

Which reminded me of Kristen's(?) sig line one of my favorites:
"There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences. -P. J. O'Rourke" 

Edited August 10, 2021 by SethInMI

[jakee 1,254]

4 minutes ago, SethInMI said:

Glad you got me sorted.

Anytime. Though you could make it easier next go around.

[mistercwood 287]

1 hour ago, jakee said:

The Miranda rights are read when you're being arrested. This guarantees you're under suspicion of something and therefore it is possible in that situation that absolutely anything you could say might be construed as self-incriminating. If you were being interviewed solely as a witness to a crime you wouldn't be Mirandised.

Oops Jakee, seems you've picked up some misinformation of your own from the teevees. Miranda rights only have to be read when you are in custody and being formally interrogated, not before. Reading them as the cuffs go on is a trope, not a legal requirement...

[jakee 1,254]

35 minutes ago, mistercwood said:

Oops Jakee, seems you've picked up some misinformation of your own from the teevees. Miranda rights only have to be read when you are in custody and being formally interrogated, not before. Reading them as the cuffs go on is a trope, not a legal requirement...

I see your point, but that is just semantics. While in the state of being under arrest vs not, is my point. Exactly when the warning is read doesn't change that.

[mistercwood 287]

15 minutes ago, jakee said:

I see your point, but that is just semantics. While in the state of being under arrest vs not, is my point. Exactly when the warning is read doesn't change that.

Nooo, the "and being formally interrogated" is the turning point. Cops can arrest you and sit you there as long as they're legally allowed, but the Miranda reading isn't required until an interrogation begins. If the cuffs go on and they chuck you in the back of the squad car, and you start spilling your guts before they get you to the station and start an actual interview, your rights aren't violated because they didn't Mirandise you beforehand.

Mate it's a bit rich to say this is semantics when you just spent half a page berating Seth for not getting his wording/interpretation perfect.

[wolfriverjoe 1,340]

49 minutes ago, mistercwood said:

Nooo, the "and being formally interrogated" is the turning point. Cops can arrest you and sit you there as long as they're legally allowed, but the Miranda reading isn't required until an interrogation begins. If the cuffs go on and they chuck you in the back of the squad car, and you start spilling your guts before they get you to the station and start an actual interview, your rights aren't violated because they didn't Mirandise you beforehand.

Mate it's a bit rich to say this is semantics when you just spent half a page berating Seth for not getting his wording/interpretation perfect.

Yes and no.

In general the cops read the Miranda rights on arrest. 
In part because it's really rare for them not to do some sort of questioning then and there.

 

If a suspect volunteers information before being informed of their rights, that's fine.
If a cop asks for information before the 'reading of the rights', any of that information may be disqualified from use at trial.

At the 'formal' interrogation, the rights are read again, and the arrestee is generally asked to sign a form that they have been read and understand their rights.

[jakee 1,254]

6 hours ago, mistercwood said:

Nooo, the "and being formally interrogated" is the turning point. Cops can arrest you and sit you there as long as they're legally allowed, but the Miranda reading isn't required until an interrogation begins. If the cuffs go on and they chuck you in the back of the squad car, and you start spilling your guts before they get you to the station and start an actual interview, your rights aren't violated because they didn't Mirandise you beforehand.

Right, I already mentioned being interviewed in my previous post and it's clear from the context of Kallend's post that I'm replying to that being interviewed is the scenario we're talking about. Again, I see your point but you've over stretched. You're forcing an equivalence that doesn't exist.

Quote

Mate it's a bit rich to say this is semantics when you just spent half a page berating Seth for not getting his wording/interpretation perfect.

That's not true. He wasn't not perfect, he was actively, unambiguously wrong in the information he created this thread specifically to offer - and by the way invited people to correct him. It took half a page because he kept arguing that he wasn't wrong before changing his mind and claiming he meant something else all along. That's not my fault.