Questions Can TRAP You!

[00:00:00]three little words and phrases that can be very dangerous in any context, but the context I'm going to use is a police interview to give you some context. So, here goes. Stop saying maybe, stop saying I guess, and stop saying probably because especially in a police interview, what those three little words and phrases do could be genuinely dangerous. They turn a genuine innocent phrase of I don't actually know into I might be hiding something or worse, it looks like you're admitting something or you're at least accepting that there's a possibility that what they're putting to you might be true. It is a common tactic used by police and uh prosecution advocates to get you to at least admit that something possibly is true or even defense advocates if you are a witness for somebody and they're trying to put you in doubt as to what you're saying as to whether it's true or not. You know, isn't it true that this could be the case of X? And you say, well, maybe, you know, if you don't know, you say you don't know. You say, well, I don't know.

[00:01:04]How am I supposed to know that? So, let's give you some context here. But first of all, please do subscribe to the channel. I'm a barristister of England and Wales. I enjoy helping you to understand law and how these little things can drag you into something. When innocent people do get arrested, they do get prosecuted and they even go to prison for things that they didn't do.

[00:01:22]We've had people such as an Andrew Malinson went to prison for 17 years for rape and he was innocent and the real culprit has now gone to prison for that instead. So, please do subscribe to the channel and I'll help you to try to avoid these things. Now, I'm going to show you exactly why and exactly what to say instead of these little phrases that might trip you up. And so, let's just be clear. This is not, you know, advice on how to get out of a crime or anything like that. I don't advise people on those kind of things. It is about how innocent people who simply don't remember or you know they don't know what happened genuinely they talk themselves into trouble with vague hedging kind of language trying to be cooperative all the while they might think they're being helpful and cooperative but it might land them into trouble because these words here the words that they choose under pressure are far more than people ever realize and they can do far more damage than ever realize. So let's begin with this.

[00:02:22]We have to look at what this context is.

[00:02:25]Now I've said you can use this idea in any context but particularly in a police interview because with more and more people you know 12 13,000 people a year in the UK being arrested for all sorts of speech related offenses which include malicious communications which includes tweets and posts and Facebook posts and things like that. You might end up being called in for an interview. I had an inquiry just recently where someone was invited and went to a voluntary police interview because somebody that they had employed was upset by something that they'd said in an email and so they dragged them in and they were discussing it with the police. Make of that what you will but people are being interviewed for these things. So this is the setup what an interview actually is.

[00:03:05]Let's start with the police interview.

[00:03:06]What it is what it's for because I think many people misunderstand it particularly when it is couched in language of a voluntary interview. Now, a police interview is going to be under caution. It's not just a chat. It's not just a casual discussion to work things out. It will be evidence created in real time by what you say and what you don't say to some extent because there are there are bits of laws in place and you'll recall the caution. It may harm your defense if you fail to mention when questioned something that you later rely on in court. And anything you do say may be given in evidence. So, everything you say is recorded. It can be played to a jury. It's likely to be played to a jury. Or if it's completely agreed, they just might read out the transcript to the jury and provide that to the jury.

[00:03:52]And that changes everything about how you should approach even a voluntary interview. You're not there to explain yourself or clear up a misunderstanding.

[00:04:02]You're certainly not there to be helpful so that they just let you go as quickly as possible. If you're there in an interview, unless it's absolutely clear that you're there as a witness and in which case it won't be an interview, you'll be making a statement. So, make sure you understand the difference. If you're there in an interview, ordinarily speaking, you're there as a suspect of something and the single most important thing you can do is to get legal advice before you say a single word. You are entitled to it. It's part of the pace codes. If they deny you of it, then it might be an unfair interview. But absolutely 100% get legal advice. So let's take my recent example as the example. They were going to go in and just say, "Oh, well, here's what happened." And just tell them everything. Thinking that that'd be helpful. But actually, that would have led them into a bit of a trap. So instead, we ensured that they had the proper legal advice and they were told, "Well, only answer the specific questions that they have and only factually and keep it at that." And they were out within a couple of hours and that was it. So, always seek legal advice. It doesn't make you look guilty.

[00:05:06]It is your right and it can keep you from saying the wrong thing. And so, I will say that throughout. Free legal advice is available to everyone at the police station any time of day. And you are entitled to seek your own representative if you want someone quote unquote better than you think you're going to get as the uh duty solister.

[00:05:26]So, that's the big thing to bear in mind here. Uh, and the rest of this video sort of sits underneath that guidance.

[00:05:31]But let's face it, people do talk because they think that silence makes them feel guilty or makes them look guilty. They might talk because they're frightened. They might talk because they want to get it over with. And when they talk under stress, they reach for hedging words because they either don't know or they do know and don't want to say. So they say something vague.

[00:05:56]hedging, you know, it may be this or it may be that or yes, you may be right in that this might have happened in that way or this might have happened. And that is the trap. But let's go back to the caution for a moment because that is very helpful and it's the bit that most people only half remember from a TV show or something else. They either half remember it, half understand it. So let's go through that in detail because it's really important. You do not have to say anything, but it may harm your defense if you fail to mention when questioned something that you later rely on in court. And anything you do say may be given in evidence. And so the middle bit of that, if you fail to mention when questioned something that you later rely on in court, that is a dangerous one and it exists because of section 34 of the Criminal Justice and Public Order Act of 1994. In plain English, if you stay completely silent and don't answer a question, but then later at trial, you produce an explanation that you could have reasonably given in an interview, the court is allowed, and the court includes a jury, by the way. The court is allowed to draw what we call an adverse inference. That means a jury can be invited to think, well, if that was really true, why didn't he just say that when he had the chance to do so in interview? So, this is a really fine balancing act here. Complete silence can do some harm to you. Although, a very good defense advocate can explain why you remained silent. Maybe it was flimsy evidence. Maybe you didn't know what you were being accused of. Maybe it was just vague questions and you didn't want to say anything. But, and here's the really important point for this video about these sort of vague hedging statements, vague speculative guesswork can probably do more damage than staying silent.

[00:07:38]Because, as I said, if you stay silent, there might be an adverse inference, but a good defense advocate might be able to explain why you didn't answer that question. But a vague or speculative guess answer might do more damage to you because now you're not being silent and you're not being clear either. You've put words on an evidential transcript record of your interview that can and most probably will be turned against you, especially in cross-examination. It will be put to you. you said maybe this could be the case and you've still failed to give a clean account that protects you for whatever the question was under section 34. These hedging words are probably the worst of both worlds because when you say maybe or I guess or probably or I think so or I might have or possibly or sort of or I suppose you're right, I suppose that could have happened, you're doing a number of damaging things all at once.

[00:08:35]First, you're creating an appearance at least of being evasive or vague because if you genuinely didn't know, but they are saying that you did know and you're being vague about it, it looks like you're evading the question. And an experienced interviewing officer is trained to probe these inconsistencies, often just as well as advocates are. In fact, many advocates were once serving police officers. I've taught some when I was lecturing at the bar school and a string of these qualifiers on a interview transcript read as someone who's a bit shifty, a bit unsure, maybe hiding something or at least that's how it could be put to a jury. And even if you're being completely honest about it and you simply don't remember and you say maybe I was there, you know, I guess around 8, I don't know, maybe, you know, it looks evasive on paper or it might be put across as evasive when they play back the interview, even if you genuinely didn't know and you genuinely had no recollection. But a transcript, if it turns into a transcript and there's no dispute as to what was said, then that can look evasive on paper. The jury might not hear that you're nervous or they might not hear that you're hedging the situation. And even if they play the interview, it might look like that as well. But the second point, and this is a real killer here, you can accidentally manufacture an admission because most people think an admission is yes, you're right. I did it. I was there. It was me. Most people think that is an admission or a confession. But a confession is actually defined as any statement that is at least partially adverse or against the maker of that statement and it's in words or otherwise. So if you just went like this, it looks like you don't care. That is at least partially adverse to you if they're putting something serious to you and you make like you don't care about it because most ordinary people would care that somebody was hurt, for example. So, if they ask you, "Were you at that property that night?" and you say, "I don't know, might have been."

[00:10:42]And you're really sort of vague or hedging about it, you've just at least partially placed yourself at the scene.

[00:10:49]Not because you were there necessarily.

[00:10:52]Maybe you just don't remember, but maybe you just made a guess or you made a vague statement to fill that void, to fill the silence. And that phrase might have been there can now be presented as a partial admission against you. And you can take all of this out of the police interview context for a moment. You know, did you spill the milk by the thing? And you say, I don't know, might have done. You know, you might get blamed for the milk even though it was nothing to do with you. So these things can affect you in any of those situations. You know, were you at the property that night? If you don't know, you say you don't know. I would have to check. If someone asks me, you know, did I do something? Was I there? Or can I be there? I my default answer is I don't know. I would have to check because unless I check, I don't know. You know, if I asked you, "Where were you on the 15th of this month?" That's only a few days ago. Okay? The 2nd of this month, where were you on the second of this month at 8:00 p.m.? You don't know unless you check. You don't even know what day of the week it was. Probably.

[00:11:49]So, you would have to check. If they said to you, "Were you at this property on the 2nd of June of this month?" And you say, "Ah, maybe." You know, because it might it might be a property that you frequently go to. But if they ask you that and you don't know, say you don't know. And so this answer, I don't know.

[00:12:06]I would have to check is not evasive.

[00:12:09]It's completely honest. It's precise because you don't know at that point in time. Now, many people obviously will now say, "Oh, well, if they say I don't know to everything," that might seem evasive. Well, maybe it does, but it depends on the question because certain things you might be expected to know.

[00:12:24]And if your answer is, "I don't know to everything," then they would say, "Okay, we'll pause the interview so you can go and check." and then we'll come back and ask you the question and then at which point obviously you need to either have an answer or an answer as to why you don't know or can't find out. That's the distinction between a short evasive vague answer maybe I was there which is a partial confession in some sense or I don't know. So the golden rule is really simple. If you don't know say you don't know. If you can't remember you say you can't remember. And you know seasoned criminals are actually pretty good at this. You know, they do often say, "I don't know. I can't remember. Uh, I don't recall that. I don't know if I was there or not." You know, they are very good at doing this without turning it into a confession. I don't know, however, is not a hedge. It is an accurate, complete, defensible answer because nothing places you at the scene.

[00:13:18]You've admitted doing nothing. And crucially, it is the truth. Which means it can never be contradicted later by any kind of evidential records or whatever because your answer that is if you didn't know at the time you were questioned what you don't know. They can't say well you were there. You can say okay you've proved that I was there but I didn't know when you asked me the question. Which means it can't be turned into an adverse inference and it can't be turned into a partial confession at the time because you didn't know. And let's take for an example and I'll walk you through very briefly how a prosecution would look if they were let's say accusing you I don't know of inciting racial hatred and let's go for the more vague limb the second one which is not the intent to stir up racial hatred but in all the circumstances that racial hatred is likely to be stirred up. So let's say you're being quizzed over a post that you've made and they'll ask you about that post. First of all, if they read a post to you and you genuinely don't remember, then you just say, "I don't remember posting that." If they show it to you and they prove it to you, then you can obviously answer as to what it looks like in what they show you and say, "Yes, I can see that you're showing me that this is what was posted." But then when they ask you questions such as, "When you posted that, didn't you realize at the time that somebody might have been influenced to think a certain way, to act a certain way, and therefore they might have been persuaded and racial hatred may well have been stirred up considering what was going on." If your answer to that is, "Well, maybe," then that is a partial confession on your part. If when you posted it, you genuinely didn't intend those things, then that should be your answer. No, that wasn't my intention at that time. And if you don't know or you didn't think about that at that time and you and that is the honest answer and you want to be completely honest, you might say, well, I don't know what I thought at that time. I don't know what I was thinking at that time because I don't remember what I was thinking at that time. Now, that might not, you know, get you off the hook if they decided to prosecute you by itself, but what it would do is remove the vague hedged answer where you might say, "Well, maybe I thought that at the time." And then it will look like it is a partial confession because it is at least partially adverse to you, the maker of the statement, in that it is partially an admission that you knew that in all the circumstances, racial hatred would be stirred up. Now, as you know on my channel, I'm always against people being nasty to each other and aggressive with each other and stirring up hatred with each other. I'm always against those things, but at the same time, I'm a stark advocate of free speech and I believe people should be allowed to say what they think and just because someone takes offense to it shouldn't make it a crime. And I don't believe our laws should be so vague that we can just say, you know, in all the circumstances, therefore, you might be guilty of this offense. I don't believe in those. I can tell you what the laws are, and I can tell you, you know, that's how they're prosecuted, but I don't have to agree with those things. I think there really should be a an intent behind those words and that should be proven. The reason there is a vague second limb without intent is that the intent is usually difficult to prove.

[00:16:46]And again, I'm not sort of advising and I'm not persuading anyone to try to get out of an offense or anything like that.

[00:16:53]Although, if someone were defending you, that is their job. Their job is to defend you within the rules to the best of their ability. But what I am here to do is to avoid people saying quote unquote the wrong thing which makes them look bad which makes it look like a confession which may impart some level of guilt to you that there really wasn't. If you posted something in anger and frustration and you or or you just posted your opinion on something and they say to you, "Well, at that time, don't you agree that when you posted that it was likely that some people are likely to be stirred up by this?" If you said maybe, you know, that is at least a partial confession on your part. But if you didn't really think that, and most people wouldn't think that, even though they're expressing their their right, the freedom of expression, most people wouldn't think like that. Some people would, sure, but most people wouldn't.

[00:17:50]And so, if you say maybe, it puts you in the same category as the people who probably did. And if you're not one of those people, then these vague statements can really harm you. And the same can go for any kind of argument and conversation. As soon as you say maybe, it makes it look either like you are hiding or you're trying to minimize guilt or at the very least that's how it can be put against you. And when prosecutors build a case against you and when they build this argument against you in court, they lead to logical conclusions, which I'll probably do in a separate video. Subscribe to the channel. Let me know if you want these sort of how this works in court sort of videos because they will work to logical conclusions. Isn't it right that insert logical statement one and you're likely to agree with it? Well, yes. Well, wouldn't you also agree that insert logical statement number two and you'll probably agree with it? Yes, cuz that's how these are structured. They are structured in a series of questions that you are likely to agree to. And then when putting the final conclusion to you, well, taking all those into account, don't you agree that in all the circumstances, you knew that it was likely that someone would be stirred up by your comment? And it makes you feel like you have to agree. And that is the trick with advocacy. We lead you through logical statements and logical outcomes which lead to a logical conclusion which seals your fate and you will feel like you've got no choice but to agree. I will do some demonstrations for you maybe in another video. Please comment, like the video, subscribe to the channel if you want to see those. But avoid these vague questions. They trap so many people. But with that, thank you for watching. Thank you for subscribing.

[00:19:28]Thank you for your time.