Police Question Videographer, Sorry I do not answer questions

[Frank Ettin]

It can also be about giving away your constitutional presumption of innocence....

Exactly where in the Constitution is there anything about a presumption of innocence?

Indeed, it's not there. The presumption of innocence comes from the Common Law and is simply a legal rule affecting the burden of proof in a criminal trial. At a criminal trial the prosecution has the burden of proving all the elements of the offense beyond a reasonable doubt; and should the prosecution fail to do so, the defendant is, because of the presumption of innocence, entitled as a to an acquittal.

 

[buckhorn_cortez]

Please see page 1 of this official state document from the NM DPS which says only giving a name may not satisfy the requirements of the statute.

In the case of a traffic stop, you're required to give them the same information that is contained on your driver's license as you're required to give the police your driver's license on demand.

However, since the NM driver's license no longer contains your Social Security number - you are not required to provide that information.

 

[44 AMP]

If someone has a clean record, WHY have a file on LAW abiding people??

You want comments? Here are some...

there are a number of entirely valid reasons for having a file on "law abiding" people. One of them is simply, they don't know you are a law abiding person until they run your records, which, also, means a file.

Officers, (and I would expect particularly investigative officers) keep notes. Records. These will include the names (and other data) about everyone they talk to during the course of the investigation. They use the data to write their reports, etc.

I forget which cop drama it was I was watching, but one episode of one show, part of the plot involved an older detective searching through his "files" (pocket notebooks in a box) looking for, and eventually finding where he had interviewed the murder victim about something several years before....

The point is, the cops talked to the guy, about something, and made notes. Later, that information had a bearing on a current investigation. They take notes (they keep files), it's what they are expected (and I suspect, trained) to do this.

Now, for all those who have met the bad apples, my sympathies. But I think a general suspicion and distrust of the police should not be warranted. And, think about it, while there could be a down side to the police knowing who (and what) you are, there can be an up side, as well.

There may come a time when, because you are "on file" and known that an officer might be inclined to be reasonable and actually listen to your side of a story....

A while back we had an "abused animal "complaint" made against us. We had a foundered horse, in a small pen, that could be seen from the road. A particular someone was concerned we were mistreating the horse (they couldn't see any hay in the pen when they drove by..etc.) Over the course of a month or so, we met about every sheriff's deputy in the county.

We were following the proper treatment for the horse, under a vet's supervision. After this was explained to the deputies, after a while they would apologize for bothering us, but they had to respond to the complaint.

Apparently every week the complainer would drive by, see nothing changed, and make another complaint. After about a month or so, the visits stopped, and we were promised that they knew us, our situation, and would not take the complaint seriously again, possibly looking into charges against the constant complainer. Never found out if they did, or not, don't care. The horse eventually recovered and moved out of the holding pen.

Now, this doesn't translate to much else, especially urban situations, other than, in general, law enforcement knowing who you are, and maybe a little bit about you isn't AUTOMATICALLY a bad thing.

 

[TimSr]

Exactly where in the Constitution is there anything about a presumption of innocence?

I'm not speaking in the context of "innocent until proven guilty in a court of law". I'm talking about the general implications as they pertain to the burden of showing cause to stop and question someone. Police cannot just randomly stop citzens, and interrogate them until the citizen proves he is not doing anything illegal. Cooperating with such efforts is waiving your constitutional rights, and when rights are waived on a regular basis, denying those rights soon becomes standard procedure. While the words "presumption of innocence" are not there, there a case to be made that the 4th, 5th, and 14th amendments imply treatment as such. This really doesn't impact my point, though, that you have no duty to prove your innocence to an officer in order to not be detained, and he carries the burden of showing cause to detain you. That is a constitutional protection.

 

[Frank Ettin]

....While the words "presumption of innocence" are not there, there a case to be made that the 4th, 5th, and 14th amendments imply treatment as such. This really doesn't impact my point, though, that you have no duty to prove your innocence to an officer in order to not be detained, and he carries the burden of showing cause to detain you. That is a constitutional protection.

If we are going to discuss rights protected by the Constitution it is important to understand how the Constitution and those protections work. That will help us understand the scope and limits of those protections. And when discussing legal matters, it's useful to use technical terms correctly.

The term "the presumption of innocence" has a precise meaning in law. I outlined that meaning in post 61.

On the other hand, a requirement that an LEO be able to show a good reason for stopping someone, detaining him, and asking him questions flows from the protections against unreasonable searches and seizures set out in the Fourth Amendment (and made applicable to the States under the Due Process clause of the Fourteenth Amendment). There is considerable case law discussing when and how a stop, detention, questioning and arrest by an LEO can be justified under the Fourth Amendment. The applicable standards don't involve the LEO establishing guilt -- only various levels of need or suspicion, depending on circumstances, the nature of the "seizure" and purpose.

The Fifth Amendment (made applicable to the States under the Due Process clause of the Fourteenth Amendment) protects one against being compelled to be a witness against himself in a criminal case (and protects several other rights not germane to this discussion). How that might apply to a person being asked questions by an LEO again depends on the circumstances.

These finer points have been alluded to in a number of posts in this thread.

 

[spacemanspiff]

JYD, and all others who advocate for not answering any question a police officer asks you, here is my question.
If the majority of your problem with being asked questions by police stem from the bad apples of your local law enforcement agencies, are any of you doing anything in YOUR local community to make people aware? Are you offering advice to those in your community who apparently may need the help understanding what those bad apples are doing?
Are you attending town meetings or whatever the equivalent is and voicing your concerns to whatever committees and councils will listen to you?
Or are you merely advising millions of internet users, many of whom do not have the problems with bad apples like you all seem to, to make the jobs of all law enforcement more difficult by refusing to talk or answer simple questions like 'what is your name?' 'what are you doing out at this hour?' 'have you had any alcoholic beverages before driving?'

 

[tyme]

IF, for example you are videoing a police action (say a traffic stop) in public, absent specific state statutes, you have every right to do so. BUT you being there means that both you and your camera are witnesses. And refusal to even talk to the police could result in a fully justified obstruction of justice charge. Failure to follow an officers commands can also lead to fully justified charges.

Any socially competent police officer (you'd think that would be a job requirement) could express, "Hey, you're taping this? Alright, but you're a witness and can I please have your name and address so if it's necessary we can subpoena a copy of your video for trial?" They can do that without being aggressive, or demanding other things. I've never seen a video of cops interacting with an police-event videographer in that way; if it happens it seems to be a rarity. It's always "What are you doing here?" "Turn that off (almost never a "please"), and follow-up harassment and fishing expeditions, and occasionally theft of the camera (has the confiscated video in those cases ever been needed or used at court proceedings for the event being recorded?). There's an undercurrent of, "You shouldn't be doing that, but I can't do anything about it without getting into trouble." LEOs are getting better, but it seems to me that's due to fear of youtube shaming more than anything else.

Urban police tend to believe they are the force standing between civilization and the dark ages, and they should be allowed to impose their will on others for everyone's well being. When someone or something bucks their authority, they're not happy. Most of the time they don't lash out at bystanders just because they're unhappy with the situation, but they're still unhappy. The uncommon and unfortunate events that get youtube'd are the tip of the iceberg of urban police (and a few small-town Barney Fifes) who resent not being treated as Gods of their realm.

I think the only way to fix this is to make wholesale changes to the culture of police forces and small town government, and those changes would have to be laws at the State level and would be extremely controversial. The concept would be to create organizational change by carefully constructing rules and procedures for LEO agencies that prevent the development of "us vs them" mentality. I'm not sure what form those rules should take, but it would be necessary to disrupt the "thin blue line" as an insular social enclave that LEOs can live most of their lives within. LEOs need to socialize and re-identify with the non-government employees they're mostly assigned to protect & serve. Of course, it's easy to imagine what the reaction to such laws would be. "Activists/Anarchists trying to pass laws to disrupt police effectiveness and threaten officer safety..."

I'm not asserting that's absolutely true, but it seems to fit what I've observed.

 

[greyeyezz]

IF, for example you are videoing a police action (say a traffic stop) in public, absent specific state statutes, you have every right to do so. BUT you being there means that both you and your camera are witnesses. And refusal to even talk to the police could result in a fully justified obstruction of justice charge.

Do not agree. Being a witness is not being involved in criminal activity and police have absolutely no right to detain you for questioning. You are not obligated to utter a single word other than name, address and DOB. The OOJ charge would never stick.

Failure to follow an officers commands can also lead to fully justified charges.

An officer cannot command you to speak.

 

[4thPoint]

Perhaps not, but the courts CAN.
And since refusing to identify oneself during the course of an officer's investigation into a suspected crime is in itself a crime in most states, the police will already have a name to be subpoenaed, should the prosecution decide it warranted.

 

[KyJim]

Exactly where in the Constitution is there anything about a presumption of innocence?

Indeed, it's not there. The presumption of innocence comes from the Common Law and is simply a legal rule affecting the burden of proof in a criminal trial. At a criminal trial the prosecution has the burden of proving all the elements of the offense beyond a reasonable doubt; and should the prosecution fail to do so, the defendant is, because of the presumption of innocence, entitled as a to an acquittal.

Yet, the presumption of innocence is required through application of the due process clause. For example, "The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice." Estelle v. Williams, 425 U.S. 501, 503 (1976). But you are correct that it flows from the burden of proof placed on the prosecution.

Interestingly, a defendant may or may not be entitled to a specific instruction on the presumption of innocence:

In short, the failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution. Under Taylor, such a failure must be evaluated in light of the totality of the circumstances-including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors-to determine whether the defendant received a constitutionally fair trial. . . .

The court's inquiry should have been directed to a determination of whether the failure to give such an instruction in the present case deprived the respondent of due process of law in light of the totality of the circumstances.

Kentucky v. Whorton, 441 U.S. 786, 789-90 (1979) citing Taylor v. Kentucky, 436 U.S. 478 (1978).

 

[44 AMP]

I've never seen a video of cops interacting with an police-event videographer in that way; if it happens it seems to be a rarity. It's always "What are you doing here?" "Turn that off ...

I don't recall seeing any of the cops being polite and civil in those situations, either, BUT, might that not be simply because videos of the cops behaving themselves are not news, or profitable? Because they don't fit anyone's agenda?

I think it very likely our perceptions are being skewed because we ONLY see the bad ones, and see them over and over.

like being a responsible, law abiding gun owner, we don't make the news, only the deranged wack jobs that murder innocents, make the news, over, and over, and over...

Reality, and the version of it we get on our screens are NOT the same thing, often, and I do wonder sometimes, if ever...

 

[10-96]

Reality, and the version of it we get on our screens are NOT the same thing, often, and I do wonder sometimes, if ever..

Very true. I do tend to wonder though- Of these folks who delight in taping Officers, stirring the hate & discontent pot, and such- how many Delete Buttons get hit when they realize that the Officers are wearing a uniform camera of their own?

 

[pnac]

Note also that (1) the Fifth Amendment only protects one against being compelled to testify against himself in a criminal case, not against talking with police; and (2) the Supreme Court has ruled that one's silence may be used against him (Salinas v. Texas, No. 12–246, 2013).

Sort of contradicts Miranda doesn't it?

 

[dakota.potts]

I'm not entirely sure it does contradict Miranda. If I remember the court case correctly (correct me if I don't), the ruling was based on a suspect who answered multiple questions and then immediately became silent when asked a certain incriminating question, without any mention he was exercising his rights or wanted a lawyer. They had taken the sudden silence as admissible as evidence in the total context of the situation.

 

[jason75979]

I'm not entirely sure it does contradict Miranda. If I remember the court case correctly (correct me if I don't), the ruling was based on a suspect who answered multiple questions and then immediately became silent when asked a certain incriminating question, without any mention he was exercising his rights or wanted a lawyer. They had taken the sudden silence as admissible as evidence in the total context of the situation.

Sounds as if they were implying he was admitting guilt through his silence? How could a suggestion become hard evidence?
Not familiar with the case you speak of, so, just going off your relation of it.

 

[Frank Ettin]

Note also that (1) the Fifth Amendment only protects one against being compelled to testify against himself in a criminal case, not against talking with police; and (2) the Supreme Court has ruled that one's silence may be used against him (Salinas v. Texas, No. 12–246, 2013).

Sort of contradicts Miranda doesn't it?

Sure looks like you haven't bothered to read Salinas:

1. Salinas, slip op. at 2:

   ...Petitioner’s interview with the police lasted approximately one hour. All agree that the interview was noncustodial, and the parties litigated this case on the assumption that he was not read Miranda warnings. See Miranda v. Arizona, 384 U. S. 436 (1966)...

   
   
2. Salinas, slip op. at 3-4:

   ...The privilege against self-incrimination “is an exception to the general principle that the Government has the right to everyone’s testimony.” Garner v. United States, 424 U. S. 648, 658, n. 11 (1976). To prevent the privilege from shielding information not properly within its scope, we have long held that a witness who “‘desires the protection of the privilege . . . must claim it’” at the time he relies on it. Murphy, 465 U. S., at 427 (quoting Monia, 317 U. S., at 427)....

   
   
3. Salinas, slip op at 4-5:

   ....We have previously recognized two exceptions to the requirement that witnesses invoke the privilege, but neither applies here. First, we held in Griffin v. California, 380 U. S. 609, 613–615 (1965), that a criminal defendant need not take the stand and assert the privilege at his own trial....
   
   Second, we have held that a witness’ failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary. Thus, in Miranda, we said that a suspect who is subjected to the “inherently compelling pressures” of an unwarned custodial interrogation need not invoke the privilege. 384 U. S., at 467–468, and n. 37. Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege“unless [he] fails to claim [it] after being suitably warned.” ...

   
   
4. In other words, Miranda applies only during a custodial interrogation.

Sounds as if they were implying he was admitting guilt through his silence? How could a suggestion become hard evidence?...

Silence is a form of conduct, and it's long been the fact that conduct can be evidence and that a jury may draw inferences from conduct.

• U.S. v. Perkins, 937 F.2d 1397 (C.A.9 (Cal.), 1990), at 1402:

  ...the instruction explicitly stated, "the jury may consider [the false statements] as circumstantial evidence of the defendant's guilt." Id. at 1104. Second, we have approved the use of this instruction on false exculpatory statements. See United States v. Boekelman, 594 F.2d 1238, 1240 (9th Cir.1979) (court noted approval of standard Devitt & Blackmar instruction and distinguished Di Stefano in upholding a variation from the standard instruction); United States v. Wood, 550 F.2d 435, 443 (9th Cir.1976)....

  
  
• State v. Wimbush, 260 Iowa 1262, 150 N.W.2d 653 (Iowa, 1967), at 656:

  ...In Wigmore on Evidence, Third Ed., section 276, Volume II, page 111, under the title 'Conduct as Evidence of Guilt' the editor states: 'It is today universally conceded that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.'
  
  McCormick on Evidence, section 248, pages 532, 533, puts it thus: "The wicked flee when no man pursueth.' Many acts of a defendant after the crime seeking to escape the toils of the law are received as admissions by conduct, constituting circumstantial evidence of consciousness of guilt and hence of the fact of guilt itself. In this class are flight from the locality after the crime, assuming a false name, resisting arrest, * * *.' See also Jones on Evidence, Fifth Ed., section 386, page 717.
  
  We have held many times that evidence of escape from custody and flight of an accused is admissible as a criminating circumstance. State v. O'Meara, 190 Iowa 613, 625, 177 N.W. 563, 569; State v. Heath, 202 Iowa 153, 156, 209 N.W. 279, 281; State v. Ford, Iowa, 145 N.W.2d 638, 641. See also 29 Am.Jur.2d, Evidence, section 280, and 22A C.J.S. Criminal Law § 625 a....

  
  
• State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (Neb., 1991), at 743:

  ... Although Clancy involved evidence of the defendant's attempted intimidation or actual intimidation of a State's informant or witness, evidence which was admissible under Neb.Evid.R. 404(2) ("other acts"), the rationale for "conscious guilt" evidence is equally applicable in Lonnecker's case.
  
  Lonnecker's hiding in the crawl space was evidence of his "conscious guilt" concerning the marijuana located on the premises which were under his control, that is, a conscious guilt concerning possession and cultivation of marijuana as a controlled substance. ...

  
  
• Martin v. State, 707 S.W.2d 243 (Tex.App.-Beaumont, 1986), at 245:

  ...In 2 RAY, TEXAS LAW OF EVIDENCE CIVIL AND CRIMINAL sec. 1538 (Texas Practice 3rd ed. 1980), we find:
  
  "Sec. 1538 Conduct as Evidence of Guilt
  
  "A 'consciousness of guilt' is perhaps one of the strongest kinds of evidence of guilt. It is consequently a well accepted principle that any conduct on the part of a person accused of crime, subsequent to its commission, which indicates a 'consciousness of guilt' may be received as a circumstance tending to prove that he committed the act with which he is charged." ...
  
  See also Cuellar v. State, 613 S.W.2d 494 (Tex.Crim.App.1981)....

 

[jason75979]

"Silence is a form of conduct, and it's long been the fact that conduct can be evidence and that a jury may draw inferences from conduct."

Well, with that, you might as well delete my previous post as I'm not particularly up to speed on legal precedence and such.
Its still strange to me how an implication can lead to a conviction. The definition in itself just negates "a shadow of a doubt" to me. It is an implied fact.
Maybe someone more in tune to the justice system could explain it further?

 

[Frank Ettin]

...Its still strange to me how an implication can lead to a conviction. The definition in itself just negates "a shadow of a doubt" to me....

The standard of proof for conviction in a trial on a criminal matter is not "a shadow of a doubt." It's "beyond a reasonable doubt."

 

[jason75979]

Well, I consider the 2 synonymous Frank.
If something is not reasonable, then its beyond. Beyond reasonable would suggest to me no doubt whatsoever "in reason".
" beyond a shadow of a doubt" to me means nothing left hanging to cast an ugly feeling of doubt. In other words, no question what so ever.

 

[44 AMP]

one could make the argument that there is a "shadow of a doubt" that exists beyond the standard of "reasonable".

"Beyond a shadow of a doubt" would be a higher standard than what the law requires for conviction.

or so I see it, but I have my doubts...