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until proven innocent

The Criminal Justice Process

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.

A companion page, "Guilty until proven innocent." emphasizes the need to never plead guilty if innocent, in any case that makes a meaningful difference. This page describes the bureaucratic "politics" of criminal prosecution.

Boring text warning: This describes details of the criminal justice process.


An encounter with the criminal justice system involves 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)

Obviously most police encounters are insignificant, or to use the colloquial expression, "are non-events". I leave it to others to discuss the issue of consent to search, etc.

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.

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. 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.

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 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.

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 only 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.


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.

4. Prison

Prison circumstance vary. The worst social situations of prisons occur in prisons designed for long term incarceration of repeat offenders.

You should expect minor provocations from other prisoners. 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. Function by avoiding social conflict wherever possible.

For the most part, 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.

The following are general guidelines:

Private property is important.
Don't interrupt conversations.
Don't ask too many questions.
Don't be a snoop (meaning don't pry)

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.

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.

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first posted 10 Nov 02; Last revised 29 Apr 18. This page copyright 2002, Stan Protigal

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