Hypothetically speaking...does this work on cops?

May 3, 2010 10:50 PM

Hypothetically...on some police shows and movies, there are scenes where the police are questioning some person, usually a "known" crook. The crook is smart enough to not provide any info, but is coerced into being helpful, and instead of telling what he knows, insists that all the info he's providing is "hypothetical." e.g. "hypothetically, if so and so wanted to rob the bank, he would've done A, B, C." Does insisting that what you're saying is "hypothetical" really work in real life to stop law enforcement from using what you say against you?
posted by edjusted to Law & Government (16 answers total)

Best answer: No. Absolutely not. Statements made by a defendant can be repeated in court by any party who heard it directly (absent some specific privilege, such as spouse or attorney)**. This is an exception to the hearsay rule. The only benefit an accused would get by saying "hypothetically" is that when their statement was heard in court, the jury or judge would hear that the word hypothetically was uttered in the course of the statement. Some help that is, when a defendant is "hypothetically" confessing to a murder.

*** Assuming the statement wasn't beaten out of the defendant, or obtained in violation of Miranda or state constitutional rights, etc. This is not legal advice, but if you don't say anything to police, then you don't have to worry about words like 'hypothetically'.
posted by Happydaz at 10:59 PM on May 3, 2010

Best answer: Does insisting that what you're saying is "hypothetical" really work in real life to stop law enforcement from using what you say against you?

No. The only thing that does is to remain silent.

Much of the interrogator's art is devoted to persuading people to start talking, since it's psychologically more difficult to stop talking than it is to fail to start.
posted by flabdablet at 11:03 PM on May 3, 2010

The sad truth is most crooks are too stupid to play these sorts of games.
posted by KokuRyu at 11:21 PM on May 3, 2010

My husband is a police officer and I can't think of a single instance he's told me about where someone was smart enough, or thinking clearly enough, to couch their statement in some kind of a "hypothetical"... But, the police rarely rely on a single statement anyway (i.e. there usually needs to be some evidence or corroboration to back it up).
posted by amyms at 11:25 PM on May 3, 2010

Best answer: In Western Australia, "hypotheticals" can help send you to jail for more than a decade for a murder you didn't commit:

The video shows Mallard speculating as to how the murderer might have killed Pamela Lawrence; police claimed that, although it was given in third-person, it was a confession
posted by bunglin jones at 11:37 PM on May 3, 2010 [1 favorite]

Think about it this way: of what benefit would stating the hypothetical be to our "smart" crook? The smart thing to do is to clam up and get a lawyer.
posted by Sticherbeast at 11:39 PM on May 3, 2010

Best answer: In these stories, Sticherbeast, there's usually some sort of (implicit or explicit) bargaining going on, like "tell us where Vinnie dumped the body and we won't try to prosecute you for racketeering this week", and so the suspect says, "Well, I don't know anything about Vinnie but hypothetically if I had to dump a body, I guess maybe I'd wrap it in a tarp and bury it at the southeast corner of the construction site on 34th street", and the cops let him go, and then in the next chapter the guy turns up dead because Vinnie really doesn't care that he only "hypothetically" ratted him out.
posted by hattifattener at 12:40 AM on May 4, 2010

In these stories...

But that's just it, stories are stories. In real-life day-to-day police work, the vast majority of guilty parties are at least marginally smart enough to shut the hell up when questioned. The ones who talk are either going to tell you the truth or they're going to tell you a fantastically evasive lie. I've never heard of a real-life criminal creating a narrative in a hypothetical. The only thing that comes close is "Well, what if I did see/know/hear something about this? What happens to me if I tell you?"
posted by amyms at 12:49 AM on May 4, 2010

Best answer: Even if you are completely innocent, and even if you answer completely truthfully, saying anything to the police can still hurt you in astonishing ways. If you say anything there is probably a way it can be used against you, regardless of whether it was couched in hypotheticals or not.

Police procedurals would simply not function if every person interrogated was smart and said nothing. It's a trick of the television screenwriter to somehow make it seem like talking is in any way beneficial to the interviewee, but in reality there is absolutely nothing whatsoever to be gained from uttering one syllable.
posted by Rhomboid at 3:28 AM on May 4, 2010 [2 favorites]

Well, when it goes to trial and you're a juror, what would you think of those remarks?
posted by meta_eli at 5:36 AM on May 4, 2010

So does this mean that, were it not for the issue of double jeopardy, O.J. Simpon's "If I did it" book would result in his conviction for double murder?
posted by randomstriker at 7:01 AM on May 4, 2010

Best answer: The problem is often that the details of the hypothetical often end up being details that only the actual criminal could've known, and clairvoyance is not a defense in a court of law.
posted by astrochimp at 8:14 AM on May 4, 2010

Best answer: No, absolutely not. In fact, it is similar to what police encourage as part of the Reid technique. They will set up hypotheticals, one worse than the other, to try and get people to confess to the least bad one that fits the evidence.
posted by procrastination at 8:24 AM on May 4, 2010 [4 favorites]

Best answer: Randomstriker, yes, if double jeopardy weren't an issue, then a prosecutor could use O.J. Simpson's book and the statements he made in there as a confession. It would be up to a jury whether those statements result in a conviction for double murder.
posted by LOLAttorney2009 at 9:59 AM on May 4, 2010

Best answer: I'm going to say that in the specific example I'm almost sure you're thinking of, it was more of a way for the detective to have some plausible denyability. She knows he's a bookmaker. The bookmaker knows she knows. She's investigating an homicide and just wants to figure out what happened with the macguffin and says so. The crook then goes into his hypothetical.

In real life, of course, police rarely have this kind of "professional" relationship with known criminals no matter how often they are depicted in cop shows. Furthermore, as so many have pointed out above, the best response to most questions from law enforcement is complete silence or "I'm going to remain silent, and want to speak to an attorney."
posted by ob1quixote at 12:25 PM on May 4, 2010

Response by poster: Yes, this is just a...dare I say hypothetical "how tv differs from real life" question. Thanks for the illuminating answers.
posted by edjusted at 11:10 PM on May 4, 2010