until proven innocent


The Criminal Justice Process

old
typewriter, guilty until proven innocent

Boring text warning: This describes details of the criminal justice process as applies to people on the autism Spectrum. If this isn't engaging, consider skimming it or skip down to the "not guilty" section.

Summary

Many of the assumptions of the criminal process focus on "normal" NT behaviour. This generally is not a problem, but there are times when police and court efficiency conflicts with the reality of normal behaviour of autistics.

It is therefore possible that someone on The Spectrum will have a run-in with the criminal justice system.

"The Spectrum" generally means the autism Spectrum, including Asperger's syndrome, HFA, PDD and Kanner's autism. Many of us are comfortable with the generic reference of "autistic".

For the above reason someone on The Spectrum should be prepared for an encounter with the criminal justice system. This is a four-fold process:
  1. initial police encounter
  2. investigative and interrogative procedures
  3. prosecution
  4. prison environment

The Procedure

The four steps can be explained as follows. (If this explanation is boring, skip to "The Strategy".)
1. Initial Police Encounter
This is the event of initially meeting the cop. Examples would be a traffic stop, a policeman meeting you on the street, or a soldier asking questions of a civilian as part of the soldier's official duties.
2. Investigative and Interrogative Procedures
The police have reason to believe a crime is committed, and the civilian is a suspect. The difference between "investigative" and "interrogative" is insignificant. The purpose at this point is to obtain sufficient evidence, including confessions, to convict. From this point on, the only determination of "innocence" will be that the state has an insufficient case.
3. Prosecution
In some countries the interrogation is part of the prosecution. Prosecution includes the state presenting evidence to the court to prove guilt. There is a built-in presumption that the defendant must have committed the crime; otherwise would not have been arrested.
4. Prison
At this point the person must work within the system.

The Strategy

If a person has gone through the criminal justice process and had not been convicted, that person is innocent. It is a near-certainty that the person never committed the crime. Therefore it is essential that you do whatever is necessary to avoid creating evidence of guilt.

The single most important type of evidence which can be "created" is the confession. A confession can range from a statement such as, "I did it," to a qualified denial. The thing to remember is, "Anything you say can and will be used against you."

If you suspect that the police consider you to be a suspect, it's time to shut up. The interrogation is intended to generate evidence; they are not trying to make a determination of innocence.



1. Bad Cop! ... No Donut! (Police Encounter and Disclosure of Autism)

Police are trained to react to body language and to use body language. Usually this is not a problem but is something the autistic should be aware of.

Obviously most police encounters are insignificant, or to use the colloquial expression, "are non-events". In such cases it is unnecessary to discuss autism. This is because by discussing autism you are distracting the police officer and essentially asking for something (favourable consideration of autism) when there is no need.

Occasionally, the police are focused on you as an individual. It is at this point that you must use your best "negotiated transaction" skills.

So the major issue is when to disclose autism. This involves:

A determination of whether disclosure even matters.
If you're getting directions, your neurological condition is largely irrelevant, even if your condition affects the transaction. On the other hand, if the cop is likely to evaluate you through your behaviour, disclosure will let the cop know that some of the basic body language presumptions won't work.
A determination as to whether the cop will appreciate the significance of autism spectrum disorders in that particular circumstance.
The effect on disclosure on people you are with at the time.

Partial Disclosure

It is not always necessary to provide a full explanation of an autism spectrum diagnosis. Sometimes a partial explanation is all that is necessary. This is important where the encounter is trivial or disclosure will affect your relationships with people who are with you.

Obviously you wouldn't explain autism to a parking enforcement person (meter maid). All you care about is finding out whether the dime in the meter will save you from the ticket.

Field Sobriety Tests

As an example of measured disclosure, if a driver is asked to take a "field sobriety test" consisting of coordination exercises, it may make sense to refuse and state "I have mild apraxia." Mild apraxia is obviously a partial disclosure. If you are with people who don't know about your Asperger's syndrome or other spectrum condition, you have only disclosed that you are "clumsy". Meanwhile the officer has the information that you don't intend to take the coordination tests because you state you are unable to complete such tests. In most jurisdictions a refusal to take these "field sobrieity" coordination tests is fully permissible.

While a reason for refusal isn't required, it is possible to give reasons as appropriate. :

  • Unable for medical reasons
  • No, for medical reasons -- apaxia
  • No. The test would show I have apaxia, and therefore would be meaningless.
  • I am uncoordinated because of a medical condition.
  • I am neurologically unable.
Use the term(s) "politely" and "respectfully", e.g., "I politely and respectfully decline because I have an apaxic condition." "I will submit to a prelimiary breath tester (or 'Alcosensor' if you remember the name) if you wish."

(This applies to North American jurisdictions where drivers are presumed to give "implied consent" is to a chemical test (breath, urine or blood). Note that there may be jurisdictions which will file charges without a chemical test, but it is unlikely that the evidence would be sufficient to convict. There may be countries which require consent to all tests. I know of no North American jurisdictions which extend "implied consent" to "field sobriety" coordination tests. If there is implied consent, then the police should tell you.)

"Field sobriety" coordination tests are significant to people on The Spectrum because their function is to generate evidence of poor coordination. The purpose of the "field sobriety test" is to gather evidence; not to determine intoxication. Intoxication is determined by the chemical test. Refusal to take a "field sobriety test" may be introduced as evidence, but that evidence is generally meaningless. Poor performance in the test is far more detrimental.

Expect coercion to take the "Field sobriety" coordination tests, such as a threat of a blood test. Don't respond to the coercion.

Police are increasingly relying on uncertified breath testers for preliminary screening. (Most look like a pen or flashlight.) These devices are referred to as "preliminary breath testers, PBTs, and "Alcosensors". There is nothing wrong with this because the the uncertified testers are not used as primary evidence. These uncertified testers help the police in screening but their evidentary value is pretty much limited to the description of the arrest procedure. As someone who doesn't violate drunk driving laws but has been pulled over numerous times for suspicion, I am in favour of the use of such devices.

Be careful not to accidentally refuse a chemical test. If you don't know if you've been asked for consent for the chemical test, state that "My understanding is the law gives you implied consent to take a chemical test." (North America) In some jurisdictions, you should state every time, "I will take the chemical test if asked."

Many local defense lawyers state that if you don't expect to pass a test, then "pass on" the test by not taking it. This gives your lawyer a chance to prove that the police did not have probably cause to stop you, although this may or may not be sufficient for a dismissal.

This is not an automobile law site, so for better information you'll need to go elsewhere. Also, check the law on this in your local jurisdiction.

There's a reason these discussions focus on driving. Most people encounter the police on the roadways, typically in traffic enforcement. If you drive, learn your local rules, especially on alcohol testing, because if you're on The Spectrum, you will be pulled over eventually. Fortunately the police are usually fairly good at vetting drunk drivers, even if they don't understand autism.

Nevertheless, the point is that there is such a thing as partial disclosure. Examples:

It can be presumed that if there are people with you, whatever hear will be repeated. If your disclosure is "mild apraxia", people will know that you are slightly clumsy. That will have a lot less impact on your life than telling people about your Spectrum condition without your having made a conscious choice to do so.

Don't be afraid to request, "I request that medical information be kept confidential." The police may or may not comply, but you can at least ask.

For some people, it may be worth printing an autism handout. (Print text beginning with "Persons With Autism" and keep in wallet.)

When talking to the police, if a previous incident will be on their computer records, advise the police of it. Sometimes this will be irrelevant, as with a traffic stop, but if they will consider it relevant, you should be the one to bring it up. There are even times when this can turn out to be very useful to you, for example if you are reporting harassment from someone who has previously invoked the criminal process.

Webpage with information for police http://policeandautism.cjb.net/ -- This also includes links on airport security procedures.


2. Crime and Prosecution-Before-Punishment

elizabeth warren with quote - You know, I just want to note on this: There are district attorneys and US attorneys who
are out there everyday squeezing ordinary citizens on sometimes very thin grounds and taking them to trial in order to 'make
an example,' as they put it. I'm really concerned that too big to fail has become too big for trial.

Investigative and Interrogative Procedures

There is a world of difference between solving a crime and prosecution of the crime. Solving the crime often takes skillful investigation (colloqually called "gumshoe work". In the 1930-1950 time period, most work shoes had leather soles, but rubber sole shoes were often used in street work by detectives. The term is used as a reference to field investigative work.) There are police procedures for preserving evidence for trial, but the police detective work is in identifying the culprit.

I don't know if "gumshoe work" is a term used by police to describe this part of the investigation, but there clearly is a distinction between identifying criminal activity and suspects, as compared to gathering the evidence and applying the evidence to the suspect.

Once the police identify the culprit, the "gumshoe work" is finished. If the police are able to find a suspect, they can easily match the evidence if that suspect is in fact the culprit. They "solved the crime".

At this point the investigation turns to obtaining documentation and confessions. If the prosecutor determines a crime has been identified, the prosecutor files charges. At this point, it is exceedingly unlikely the case will be dropped unless the prosecutor is convinced that an error has been made. (More likely the prosecutor doesn't really care if an error is made, but will drop charges when the prosecutor determines he or she "has no case".)

an important note: The suspect is not going to convince the police of innocence once the police have made up their mind. The only way the police will be convinced of innocence is if they are unable to present a viable case. It may be that a criminal lawyer can explain that, but it is unlikely that the defendant will.


Keep Your Mouth Shut

The first thing to remember is to take seriously the words of the Miranda warning:
"You have the right to remain silent. You have a right to a lawyer. ... Anything you say can and will be used against you."
The Miranda warning is US law but the right to remain silent before speaking with a lawyer applies in most countries and is often the most reasonable response in almost all countries.

US precedental case law (Supreme Court cases) talks about a point when a police inquiry changes from "investigative" to "accusatory". This has legal meaning regarding such things as Miranda rights, but you should consider all questioning accusatory unless you have reason to believe otherwise. The controlling issue is whether the police are trying obtain information about you. If they are, it's time to keep your mouth shut.

There are certain situations where this cannot be done. If you are stopped for a traffic violation, you will typically be asked a question which has an incriminating answer. But even there, it is possible to politely decline. "I try to observe traffic laws and drive safely." (On the other hand, if you intend to pay the ticket without going to court, then it's okay to confess.)

Some of the information below was gleaned from documents captured from nefarious persons. I consider the people who wrote the documents to be repugnant. The information is nevertheless researched by them and can be valuable.

Things That Are Okay to Say

Of course you would give the "Geneva Convention" information ("name, rank, and serial number" which in a civilian police context means your identification information). Also when you are arrested, you should think about where you were going and where you were coming from. Unless this is incriminating, you would probably want to answer police questions regarding this.

Do not lie. Even lies about non-criminal items can be used to "paint" you as being deceitful.

Decide ahead of time how you will describe your disabilities. Examples include:

Whatever you do, decide ahead of time, even if "ahead of time" is in the police holding cell.

Do not attempt to give explanations of AS. If you'd like, offer to help the police understand after the investigation is closed.

Of course if you are in an informal setting, and you must talk, talk about things other than the incident.

If questioned about drugs found on you, do not make a confession. If the drugs were prescribed, it is okay to say that the drugs were obtained by prescription or were prescribed by a doctor. Do not describe their use without an attorney present. If the drugs are illegal, keep your mouth shut. If the drugs are illegal but decriminalized, keep your mouth shut.

The Police Interrogation

Once in the interrogation process, the police purpose is no longer investigative. Police interrogators are expert at asking questions that:
  1. Elicit answers which compromise the defendant.
  2. Elicit answers which lead the conversation to compromising explanations.
You are unlikely to be skilled in this sort of dialogue, so don't engage in it.

Some interrogators may try to confuse the suspect, distort the suspect's reasoning, and tangle the suspect's thoughts by throwing many questions at the suspect at the same time and not allow the suspect a chance to answer. This is combined with coercion, thereby intimidating the suspect to speak quickly or provide a confession. In the case of an autistic person, that confession can easily be false, but still used against the suspect.

Remember that your refusal to talk does not suggest guilt.

If you start to describe or defend the incident, no matter how insignificant you think the information is, you may be opening a door which cannot be closed until you incriminate yourself.

One classic interrogation technique is the "good cop, bad cop" technique. One interrogator acts roughly and is unsympathetic. The other interrogator offers a more sympathetic attitude, which includes kind treatment, expressions of understanding and benevolence. The "good cop" may "cry crocodile tears" (show false sympathy) or offer fatherly advise, in order to urge you to confess.

Also expect to be confronted with real or false evidence which is intended to evoke a response from you. If you are not talking, you won't respond and this should present no problem.

If you are imprisoned, do not discuss the incident with cellmates prior to trial.


3. Prosecution

Interrogation and Questioning

In Common Law countries (mostly former British colonies, including the US outside of Louisiana), the prosecution itself has no "questioning" stage except in court.

In some legal systems, "interrogation" is part of the prosecution. With few exceptions, the defendant should not speak without a lawyer present.

This applies more to Civil Law countries (Roman Law) than Common Law countries (English Law), because in Common Law countries, the prosecutor often bypasses the "questioning" step and begins a prosecution without making an independent assessment of culpability. This is a violation of professional ethics, but nevertheless happens.

Fundamental Differences Between Interrogation and Questioning: Many people confuse the nature of the interrogation with that of questioning, and confuse what should mentioned in the interrogation with that of the investigation.

Interrogation:
Consists of psychological techniques through various questions and answers. Most are intended to elicit a specific response. In some cases the interrogation will use physical and psychological techniques to break the will of the suspect and lead him/her to total collapse. The interrogators are generally police authorities.
Questioning:
Questioning is similar to interrogation, but is conducted by the prosecution. This is a quasi-judicial procedure. Usually coercion is not used. Regardless, the suspect should refrain from saying anything incriminating.

Psychological Warfare

Consider interrogation and questioning to be psychological warfare. Take the following:
  1. Every word you utter will make a negative impact on you. The Aspie trait of talking can work against you if you don't remember to keep your mouth shut.
  2. Ask to see a medical examiner if you have been injured.
  3. Ask that an attorney be present during the questioning process. Mention the name of your attorney if you know one. Do this even if you eventually will work with a different attorney, or with the public defender. (If you are in a foreign country, ask to speak with your government's consul.)
  4. Ask for food.
  5. Ask for medical care if appropriate.
  6. It may be that you are forced to confess. If so, once in the prosecution center, say that the confession was coerced and deny prior confessions.
  7. Do not believe anything of substance which the interrogator tells you.
  8. Do not believe what you are told about things other people said.
  9. Do not discuss the incident with others, including fellow prisoners.
  10. Try to memorize what they are asking and anything you may say.
  11. The less information you provide, the lighter the sentence.

If the interrogators are likely to use coercive measures, you can expect that you will initially be treated kindly. When you refuse to provide information, the interrogator may become more forceful. If they are serious about forcing a confession, another session will be held, perhaps a day later, in which more forceful methods may be used. The defendant is led to believe that by giving in a little, he can avoid harm. The opposite is true, because providing information will actually encourage more forceful methods.

In all of this, any dialog will have as its goal to confuse or overwhelm you or distort your reasoning. Again, keep your mouth shut.

Approach questionings with whatever you use to achieve inner peace. As harsh treatment increases in intensity, its end is near.


Plea Bargains

Meanwhile, the prosecutor will normally attempt to reach an agreement for a plea of "guilty". This increases prosecution efficiency and in exchange the defendant may get a lighter sentence or a reduced charge.

From the defendant's viewpoint, a plea bargain makes sense if the defendant has committed the crime. The defendant will have an arrest for the original crime and a "guilty" determination according to the plea bargain. The plea bargain may or may not include dropping of some charges, and sometimes is limited to a promise of a reduced sentence.


Guilty Until Proven Innocent

Not Guilty

THIS SECTION IS IMPORTANT If you remember one thing about the criminal process, it is:
If Innocent, Do Not Plead Guilty, Even to a Reduced Charge.

Never plead guilty unless the trial is just not worth it (e.g., some minor traffic). The plea bargain, if a reduced sentence, can often be approximated after a court finding of guilty anyway. If the plea bargain is presented in contrast with the maximum possible sentence, consider it to be meaningless bovine scatology (BS).

As a matter of reputation, the "guilty" verdict of course carries the weight of the original crime. If one is arrested for civil disobedience acts during a protest, the conviction may be something to brag about, even in a business setting. On the other hand, if the original arrest is for a "sin of the system", a conviction for a trivial crime would still have the taint of the original arrest.

A companion page, "Guilty until proven innocent." emphasizes the need to never plead guilty if innocent, in any case that makes a meaningful difference.


Corroboration

In political situations, the prosecutor may be more interested in obtaining your cooperation or corroboration. In making your decision on corroboration, make a distinction between the political goals of the people who the police are seeking and the crimes that the people are presumed to have committed. If you are opposed to criminalization of the acts you are reporting on, then you will feel badly the rest of your life for corroborating. On the other hand, if the police are seeking information about reprehensible acts in support of what would otherwise be a cause you support, then your corroboration will result in the deterrence of the reprehensible acts. You have to make up your mind on this one.

If you do decide to corroborate, make sure that you believe you will be treated fairly. Also make sure you won't be obligated to take risks. Make it clear that, since you are not skilled at judging people (autism), you do not wish to take any risks.


4. Prison

Prison circumstances vary. In general, temporary facilities are safer, and some prison populations are going to be sympathetic to the plight of the autistic. The worst social situations of prisons occur in prisons designed for long term incarceration of repeat offenders. Some autistic characteristics, such as avoidance of eye contact, may be to your benefit.

You should expect minor provocations from other prisoners. Many autistics will find it easy to ignore these because they fall below the "noise level" of the difficulties of prison society. In these situations, try to avoid "submission" but instead seek "avoidance". It is generally not a good idea to seek protected custody status unless you are subject to discrimination by the population. Being overtly gay or unable to separate yourself from provocations would be examples of being subject to discrimination by the population.

For the most part, you will find that prisoners are generally kind and generous, even though they may be "tough guys" in the free world. There's a lot of "us vs. them" (in terms of prisoners vs. the state) in that everyone is in similar circumstances.

Regardless, IF you are likely to suffer abuse from the general population, point out to the prison authorities that you need to be segregated from the general population. Explain that as an autistic, you are considered to be at extreme risk of abuse.

Function by avoiding social conflict wherever possible. Avoid lengthy explanations of your autistic condition or actions. The following are general guidelines:

Private property
Private property (including prison property in the possession of an individual) is important. Don't touch or handle someone else's property without clear permission. On the other hand, unless the property is considered "currency" (like cigarettes in the old days) prisoners will be generous. Food is usually traded, but after you have enough to eat, it is best to give away any "extras" that others want. Sugar is valued by the community for making pruno (fermented fruit).
Don't interrupt conversations.
Don't ask too many questions.
Asking a lot of questions about someone's life in the free world is okay because it's good conversation.
Don't be a snoop.
meaning don't pry unnecessarily into others' affairs.
One good thing - it's a good idea to Avoid Eye Contact.


Prescription Drugs in Prison

Do not accept prescription drugs (medications) unless you are sure that the prescription matches something which you had already been using. Generally there are no drugs for autism, but the effects of drugs on autistics are not as predictable as on NTs.

In general, you have the right to refuse drugs and medications. There are exceptions, but under international human rights law, a person cannot be forced to take drugs without some form of legal process.

If you are receiving a prescription in the outside world, ask that the identical medication or the generic form of the identical drug be provided. This is different from "the equivalent" medication. Aspirin is considered to be "the equivalent" to ibuprofin, but is not identical. Bayer aspirin and generic aspirin are identical drugs, if the active ingredient is in the same quantity.




to Never Plead Guilty (guilty pleas)
to Police Stops

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First written 1 Dec 02. Last revised 17 Feb 13. This page copyright 2002,
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