You may or may not remember a couple posts ago when I (1) thought this list of ways to resist authoritarianism was just how people lived:
ICYDAK: 30 Proven Tactics to Resist Authoritarianism in Daily Life
and (2) then had the cringe-inducing "revelation" that actually, no, what I think of as "default" is actually no one's default but my own.
Anyway, that got me thinking: If what I see as obvious in this list isn't obvious to everyone, maybe I should write about it. Hence, this series. In which I will ramble about each of these points until I run out of useful things to say about them!
Today, point one:
Read the Constitution, study local laws, and practice asserting your rights in low-stakes situations so you’re ready when it matters.
A little-known (because rarely-mentioned) fact about me: Once upon a time, I went to law school. I finished law school. I have a JD. I also, for about five minutes, practiced criminal law - both prosecution and public defense. Then the Recession hit and there were no jobs in civil service, so I went and taught college English for a while.
Which is to say: I am not going to re-type you a basic Know Your Rights guide. There are already a lot of good ones out there. For example:
this ACLU "Know Your Rights" guide, which covers filming police, voting rights, protestors' rights, and more
the Immigrant Legal Resource Center (ILRC) has one focused on both documented and undocumented immigrants
see also this one from the National Immigration Law Center
this one from the American Bar Association seems to have more to do with drinking, but...useful?
What I *will* do is give you a couple observations from my five minutes in criminal law.
In my time at the public defender's office, I read anywhere from seventy to 150 police reports a week. Nearly every one contained, substantially, the following paragraph:
I read SUSPECT his rights. I asked SUSPECT if he understood his rights. SUSPECT said he did. I then asked SUSPECT if he wanted to waive his rights and speak to me. SUSPECT said he did. SUSPECT then proceeded to give the following statement: [insert full confession here]
Reader, this paragraph was so common that when it *didn't* appear, I assumed someone had accidentally omitted a page when sending us the police report.
How many people actually waive their Miranda rights varies by study, but I've seen numbers as low as 47 percent (lololol) and as high as 95 percent. Most studies put the number between 80 and 90 percent. I'm more inclined to believe 90 and above.
In case you need a refresher, your Miranda rights apply when you are (a) in custody and (b) being interrogated. If these two things are happening, you have the following rights:
FOR THE LOVE OF GOD, SHUT UP.
and the right to have one appointed by the court if you can't pay for one out of pocket.
FOR THE LOVE OF GOD, TAKE THE ATTORNEY.
When I was in criminal law, simply SHUTTING UP was enough to invoke your right to remain silent. Then Justice Scalia died and we got Berghuis v. Thompkins:
which held that, nah fam, you have to TALK to invoke your right to remain SILENT. Yes, that is exactly as dumb as it sounds.
(And say what you will about Scalia - I do - but the man was a staunch defender of the Fourth Amendment.)
So I know I keep saying "FOR THE LOVE OF GOD, SHUT UP," but actually what I want you to do if you are arrested is to say the following sentence: "I invoke my right to remain silent and I invoke my right to an attorney."
THEN SHUT UP. FOR THE LOVE OF GOD, SHUT UP.
So: I'm not going to sit here and explain the hearsay rule and all of its exceptions and exclusions. Because only law students find it interesting, and more importantly you do not need to understand it to understand this next bit, which is:
Anything you post on social media is fair game in a criminal trial against you.
I'mma give a middle finger to HTML and make that a Heading 3 just to make sure you caught it:
That's because your social media posts are considered "statements of a party-opponent" or "statements against penal interest" (depending on which state you're in). Either way, those statements can be used against you. They're not barred by the hearsay rule, even though they are technically hearsay. Your attorney can't do anything to keep them out.
FOR THE LOVE OF GOD, SHUT UP ON SOCIAL MEDIA.
"But it's fine if I'm not doing anything wrong, right?" No. Because....
Renee Good. Alex Pretti. Trayvon Martin. Philando Castile. Aiyana Stanley-Jones. I can go on.
From the moment the cops decide you look like a "suspect," they're building a case against you. Anything and everything you do from that moment on is suspect. Your vacation photos? Sus. Your happy birthday message to your nana? Sus. Your animated corgi gifs? Sus.
Once you're a suspect, you're in trouble. And the fact that you legitimately were not doing anything criminal may not be enough to bail you out. Because....
Okay, so TECHNICALLY, in a criminal prosecution, the defense rarely has to prove anything. The prosecution has to prove that you committed every element of a charged offense beyond a reasonable doubt. (There are some affirmative defenses, like self-defense, that you do have to prove. But for the charged offense? That's the prosecutor's job.)
IN PRACTICE, however, if you're charged with a crime and you have an alibi, you're going to have to prove it. And the most common alibi in America is (a) nearly impossible to prove and (b) never believed by juries. The most common alibi in America is "I was home watching TV."
It's nearly impossible to prove unless you video yourself watching television. And juries never believe it, because even if you have family who were there with you, so what? Anyone's family would lie and say the same thing.
Juries don't believe this one even though 11 of 12 of them were at home that night watching TV, just like you were.
So get that video. Take those photos. I don't have good advice on how to establish an alibi without also giving a crapton of data to Big Tech yet, but honestly - it's about what you can prove.
And while you're thinking about what you can prove....
Take the lawyer. If you aren't appointed one, get a lawyer. File every motion to quash or motion in limine you have available. Make every defense argument you have. Don't talk. Don't hand over anything you don't have to. Make the police and prosecutors do their job. And DO NOT take a plea.
On both sides of the aisle, I handled about one trial a month. I dealt with a couple hundred pleas A WEEK. If even ten percent more people started insisting on their trial rights, the system would grind to a halt. MAKE THEM PROVE THEIR CASE. DO NOT DO THEIR WORK FOR THEM.
Finally....
Every case has a unique fact pattern, which means every case has unique considerations. I can all caps at you all I want, but only you will know, in the moment, what you did and what you need to do. Only you will be the one talking to your lawyer, and only the two of you will know exactly what evidence is available.
Which, incidentally, is another reason to GET THE LAWYER.
Who isn't me, by the way. I quit for the sake of my cardiovascular health. Motorcycle cyborg experiment notwithstanding, my life has been one steady uphill climb since the day I decided not to practice law anymore. Which is why the rest of this series will be a lot more fun than this first post was.
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