Note that this is not the same as the "if you're honest, you have nothing to hide anyway" argument in favor of mass surveillance. This is about answering a specific set of questions from a member of law enforcement in the course of a specific investigation. You always have the right to decline to answer questions under the Fifth Amendment in that situation as well (another way to avoid telling a lie). Obviously that's not true under a regime of mass surveillance, which is one of the many reasons I think mass surveillance is a bad idea and unconstitutional.
The Martha Stewart case is a prime example of why you should never talk to investigators. Never help any investigator. Ever. I'm pretty sure you can find something to hang me by if you let me ramble for hours.
> You always have the right to decline to answer questions under the Fifth Amendment in that situation as well (another way to avoid telling a lie).
I've read criminal defense lawyers advise people that they first contact a good lawyer before contacting the police (and have them present during any communication) if their spouse is missing.
What we have to remember is it is just a job for law enforcement and prosecutors. It is best to think of them as machines that act on some kind of feedback loop (incentives). We cannot directly make improvements to the machines. We have to try to change the incentive structure if we want any change in how the machines work.
So the question is: what are the incentives and what needs changing?
To a lesser extent this happened to General Flynn when he was charged, however in his case the Feds made a rare show of pseudo-apology and abandoned the case.
Richard Jewell is a famous example of naive talking (not even lying) being used against him - there's a Clint Eastwood releasing this weekend about his case.
Regardless of which political side you prefer, these tools of circular prosecution have and will be used against anyone when anything ranging from a media frenzy, to executive pressure, to a couple ambitious agents deems it warranted.
Not yet, they haven't abandoned the case yet. It was put on hold when Sidney Powell, Flynn's lawyer showed that FBI manipulated his 302 transcripts and the FBI replied that they would like to put the case on hold until the IG report is out.
In General Flynn’s case, his lawyer’s latest submission (3 weeks ago) also shows that he didn’t actually lie. FBI attorney Lisa Page edited his testimony and overnight, the testimony went from one thing to something he never said. Then FBI used that manipulates testimony to make him plead guilty because he had to sell his house and he went bankrupt from his past lawyer fees. The judge will most likely throw his case out now after this IG report is out which shows gross misconduct from FBI.
Lisa Page manipulated Flynn's transcripts.
Kevin Clinesmith altered CIA's email to say "Carter Page was not a CIA source" when the opposite was true.
I believe Clinesmith was referred for criminal case by the IG but I don't know if anything happened to Lisa Page.
Hold up, "boisterous storytelling"? Is that the new "boys will be boys"? You make it sound as if Stone was just caught lying about his weight.
Roger Stone was convicted of Witness Tampering, Obstruction of Justice, and lying about the actual subject of the investigation.
This is pretty poor advice. A prosecutor will absolutely subpoena your phone records and use the fact that you called a lawyer first to convince a jury you're guilty.
But you're right - in most cases, talk to investigators as little as possible. The classic YoutTube video [1] on this topic is worth a watch if people haven't seen it.
1. Police and prosecutor will pull your records anyway, they generally look at spouse and people close to you first regardless of your innocence. 2. If this is the only evidence they have on your guilt, then you're likely to win on appeal if the jury is insane enough to find your guilt based on zero evidence.
I also imagine it’s very difficult to make a decision like this when distraught. I‘m pretty sure I’d (perhaps foolishly) only be thinking about finding my spouse, not the legal implications for myself. It seems like this would be the case for the vast majority of people in that situation.
I'm not saying be that guy at the DUI checkpoint screaming about being a sovereign citizen (Although I do have a fair bit of sympathy for them) but you can talk yourself into way more trouble than you're going to be able to talk yourself out of.
I only watched till the first example, where he brings the example of a stupid lawer who talked to the police .. when his problem was lying to the police and giving contradicting accounts of what happened. Yeah, this is stupid.
But I do really not like the idea of mandatory lawers as it cements the class justice system, with good outcome for people who can afford good lawers and people qho cannot.
When I have done nothing wrong I don't want to need a lawer by design. But it makes sense, that lawers think different about that.
Note also that even an innocent person will almost always give contradicting accounts of a situation if interrogated for long enough.
[edit]
There were several such examples, including the one I remembered from 14-23 minutes.
Yes. It's much closer to the end of his talk where there is an erroneous contradicting witness and you can wind up convicted of lying to the police.
He also points to things like "Possession of a lobster can be a felony". You simply can't know all the laws, so getting a lawyer forces the police to narrow the scope immediately. At that point you can address the actual charges rather than letting the police fish through hours of your babbling hunting for something to hang you with.
> When I have done nothing wrong I don't want to need a lawer by design.
That's fine. But "Shut the hell up" remains good advice. The only benefit to "cooperating" with the police is at SENTENCING. And, if I'm actually innocent, that's a bit of a problem, no?
I agree with the basic advice. That being said, if a cop knocks on my door and says the neighbor's kid is missing, I'm still willing to take the minute personal risk of being implicated in order to help the police in their search.
Yes, technically I could have been the last one to see the kid alive and this could make me a suspect, but I also couldn't live with myself if I knew something but withheld it and something bad happened.
One idea of the police was to be servants of the people and not a power tool of the elite.
The "never speak to the police" paradigm would mean to me that police is all evil intended. And that would be the case, I dont think the solution is just more lawers.
Would that even be admissible?
It comes down to the "calling a lawyer constitutes guilt" argument, which seems like it would cause any judge to roll her eyes.
Just because something is illegal does not mean it should be illegal - and as far as dumb ass things to be illegal goes I think lying to the FBI is high up on that list.
There is already obstruction of justice which is significantly more reasonable a crime to charge someone with and if your lying was not obstruction of justice I don't see why the FBI should get to jail you for it.
Great. It should not be.
They will use any unconscious fib about any detail, no matter how irrelevant, to impeach you in court. The simplest thing to do is not speak to LEOs at all when they approach you.
You almost certainly won't be allowed to impeach the LEO's testimony based on their lies to you or other subterfuge: it's essentially a given that they can do that as part of their investigations, and the court and jury will be very deferential to them and not to the defendant.
It's actually much broader than that. Making a material false statement to any federal agent (for example your local postman), about something in his jurisdiction (say, the mail) is enough to qualify.
Note the "material" part. If you lie about the color of socks you are wearing, it doesn't matter.
If your testimony is important to the trial, you'll be asked to deliver it again in person, or in a deposition; either way you will have an opportunity to prep with your counsel.
In theory, a recording could be detrimental to you, as either the prosecution or defense would have a chance to play up tiny inconsistencies between your first recording and your live testimony/deposition. Without the recording, the best they can do is have the agent testify "that's not what he/she said the first time." Which doesn't really matter.
If you get prosecuted for lying to the agent, again, you would have a chance to testify at trial, and for your counsel to try to impeach the agent in front of the jury.
Lol, your word against a federal agent's. How well did that work out for Martha Stewart and her literal army of top end lawyers?
Interview the person multiple times, grilling them hard, using all the classic techniques. Repeat the exact same questions in each interview, interspersed with variations.
When you don't get any confession or evidence from them, comb through the transcripts to find a place where the "exact same" questions have different answers. All it takes is a slight change, a slip of the memory, a slip of the tongue...
Boom, now you can get them on "lying to the feds", and use that threat to leverage a plea deal or some other information.
It is an abusive tactic used all the time. If I hear someone is getting caught on "lying to the feds" I assume it means the evidentiary case is extremely weak and thats all they can get.
so how can you lie about something you are never taken to court for? if she was guilty of insider trading it would make sense to prosecute that, prove that, then that proves the charge of not telling the truth.
this is all part and parcel of federal prosecutions where they lay on as many charges as possible in order to intimidate you. Welcome to the world that led to Aaron Swartz's death.
I understand that that's how the system works today. I object to it.
1) It doesn't account for fallibility of human memory, and our propensity to make mistakes. I believe that it's easy to badger a person to the point where they're intellectually disoriented, and "lies" become likely even without the suspect have bad intentions.
2) The asymmetry is a problem. Law enforcement routinely lies to suspects. Why is it okay for them morally?
3) We're told that these laws are necessary to prevent obstruction of justice, but it appears that these charges are frequently (maybe usually) when there was no obstruction at all: the police knew exactly what the truth was. They were setting a trap for the suspect, trying to get them to incriminate themselves in a different way.
Caveat: I didn't RTFA, since it's paywalled.
18 USC Section 1001 is notoriously broad - for example, your local postman is a federal agent, it doesn't just pertain to law enforcement officials. You don't even need to lie directly to the agent - for example if you fudge your hours on a timesheet and that timesheet gets sent to the federal government for some use or other, you "knowingly and willfully made a materially false, fictitious, or fraudulent statement in any matter within the jurisdiction of the executive, legislative, or judicial branch of the United States."
It doesn't matter if you're not under oath. It doesn't matter if you've been read your miranda rights - any material lie that is made to a federal employee within their jurisdiction is an offense.
Sadly, this means that in almost every case, the only reasonable thing to do is to refuse to talk to the agent and to ask for an attorney if they insist.
A system that is highly secretive and whose only accountability is to pretend to investigate itself inevitably will be abused more than an open one with transparent checks and balances. One has only to see that FISA has only turned down 85 out of 40k requests to understand this is a rubber-stamp process. (source: https://en.wikipedia.org/wiki/United_States_Foreign_Intellig...)
I don't think that logic follows? That statistic could just mean that they're actually doing most things legally and properly, which is the outcome you'd want, right? I'd be worried if a significant percentage of their requests were turned down.
Also, as a comparison point: apparently several federal judicial districts have a 100% conviction rate, and overall, federal conviction rates are pretty high. Do you see these statistics as implying the whole thing is just a rubber-stamp process altogether? [1]
[1] http://justicedenied.org/issue/issue_67/federal_courts_jd67....
That's overstating my (not the GP) view, but I do believe the operational mechanisms in federal law enforcement push heavily towards conviction once accused.
Let me ask you a question: Do you believe there have been zero false convictions in those districts?
Possibly, but that's a separate point from the one I'm making.
> Do you believe there have been zero false convictions in those districts?
Seems unlikely. But that's not the baseline.
Ok, what is, and on who's authority?
And just to be sure I understand, you're judging mechanisms designed to come to factual conclusions by evaluating how many of their decisions lean one way, without reference to or concern with their factual basis?
> Ok, what is
I don't have a number.
> and on who's authority?
By common sense. The only way to get zero error in the absence of perfect information is to avoid convictions entirely. I'm not saying I like this trade-off; I'm just saying this is reality.
> And just to be sure I understand, you're judging mechanisms designed to come to factual conclusions by evaluating how many of their decisions lean one way, without reference to or concern with their factual basis?
No, that's the complete opposite of what I was saying, which was that you have to look a the factual bases and can't just judge by the statistics. Hence my reply earlier: https://news.ycombinator.com/item?id=21773010
I think you're correct that the logic employed doesn't follow. It is useless to look at the statistics alone and conclude one way or the other that FISA is or is not a rubber stamp. However, I think you are doing a category error: Criminal court proceedings are adversarial, FISA court is not.
Because there is no defense, public oversight, or judicial review. FISA cases are sealed, and secret. There is no risk of jury nullification or new caselaw because these cases are not argued by an adversary. Outside entities subpoenad in this fashion are barred from speaking of it (Under 99% conviction federal criminal statutes) Nobody is risking re-election here and the judges are appointed. The adversary is a strawman in FISA. The public is functionally shut out as well. It was designed for this purpose, the lack of accountability is a critical feature.
In order to employ the statistics properly you require context. In my high school sociology class the instructor posed this statistical fallacy: Drownings and grass growth rates are positively correlated. A naive observer born and living on Mars might ban grass to prevent drownings. This missing the mark because correlation != causation, and the true correlation is more people swim in the summer when grass grows faster. There is not swimming on mars.
>Also, as a comparison point: apparently several federal judicial districts have a 100% conviction rate [...] Do you see these statistics as implying the whole thing is just a rubber-stamp process altogether?
Comparing to high criminal conviction rates (often in the high 90%), the prosecutors and attornies general use the conviction statistics for their re-election campaigns. Cases which would result in "Jury Nullification" or some other modification of caselaw or jurisprudence are abandoned, keeping the rates artificially high. Refer to "Stingray" caselaw. This effect is partially caused by the adversarial court system being helmed by elected officials.
This is to say, that the regular criminal courts are an adversarial public system in which the accused get lawyers. Those lawyers sometimes win in court, other times the AG or prosecutor drops the charges when it looks like they will lose due to the legal arguments employed by the adversary. Dropped or unajudicated charges aren't counted in the statistics. Losing cases are not tried.
In order to maintain your claim here, there is some missing data:
1: Who is the adversary in FISA?
2: When does the public review the court proceedings?
Given the answers to 1 and 2 being "Nobody" and "Never", the statistics tell a much different tale than the criminal conviction statistics. Now the logic may follow.
That's not my argument—I think you read more into it than I intended! I wasn't trying to compare criminal courts to FISA courts; that was just an (unfortunate) coincidence in the analogy. The only reason I cited conviction rate as an example here was to illustrate why you can't just look at the statistics and draw a conclusion; that's all. It wasn't meant to serve as an argument for or against FISA courts.
https://www.popehat.com/2011/12/01/reminder-oh-wont-you-plea...
Does this have it's own pitfalls? Certainly. But it's time for the pendulum to swing the other way.
Now, I was under the impression FISA courts has an aversion to allowing spying if there was a possibility of one of the targets being a US national.
Witness Martha Stewart. Now, she’s not your average citizen, but you can see how they railroaded her. Yup, they didn’t get her on FTC violations, nope, they got her for “lying”. If she’s not guilty of a crime how the hell do you get people for “lying”.