Without getting into the scope of the 1001 statute (I think they're probably mostly right about it), I just want to chime in with a nit about the example they chose:
If you take a job at a health provider that you later learn is corrupt, and later knowingly transport false vouchers as part of your job while otherwise avoiding direct participation with the more overtly criminal parts of the enterprise, you are a criminal. What you're doing is wrong. Put into that situation unexpectedly, you must either quit, or immediately report your employer (and, presumably, then quit). You can't knowingly accept a paycheck from a criminal enterprise if doing so requires you to help carry out criminal actions. The law says that's criminal, but even if you don't care about that, so does the social contract.
Are you less culpable than the owners? Sure, of course you are. But this article chose I think a really terrible example, one that creates a false sense of what it means for someone to be incidentally and unjustly swept up in a crime they themselves tried to avoid.
We in this industry all need to be taking more responsibility for our individual actions and the net impact they have on society.
Regarding the scope of the 1001 statute: U.S. v. Yermian (which held that you don't have to know you're talking to the government, i.e. that the government does not have to prove mens rea as to one element of the crime) is a terrible opinion. Justice Rehnquist's dissent is far more convincing: https://supreme.justia.com/cases/federal/us/468/63.
My read on that anecdote wasn't that the author was implying it wasn't criminal, but rather that he was constructing a narrative that the average reader could identify with. Most people don't consider themselves criminals, but most people could probably imagine finding themselves in the situation described.
Yeah, I get that part, and I agree with you that most people in that situation would not consider themselves a criminal. My point is simply that they would in fact be criminals. It would be a miscarriage of justice (perhaps a small one) if there were no consequences for it.
The article also touches on the case where the person is not legally qualified to understand that what they have done is criminal. Or even to understand that what the company is doing is criminal. Unfortunately it's a smaller part in the article and I think it makes a stronger case. What makes an even stronger case is that you can be prosecuted not only without wrongdoing but without any knowledge of wrongdoing.
A better case is: you are a healthcare worker. A federal agent asks you about your ex-employer. You always had a bad feeling about that company but you put in your 40 hours for your paycheck and kids' health insurance. Perfectly willing to help the investigation, you answer truthfully. You are asked about a co-worker you slept with after you had met your girlfriend, but before you started dating. Your girlfriend is in the room. Thinking it doesn't matter and not wanting to discuss it with a stranger in front of your girlfriend, you lie. Turns out the co-worker was involved. If the prosecutor decides he doesn't like you, congratulations you are now a federal felon. You don't even need a fun story about a personal relationship: say you misremember something. Or someone else does, and contradicts your truthful story but the feds think you're the one who's lying.
Also I'm not sure the label "criminal" is a useful one. It's almost certainly the case that every adult US citizen is a criminal. They simply haven't been caught yet. Every modern US president has admitted in public to being a criminal (drugs). The expanse of laws is so vast, vague, complex, interpretable and arbitrary it's impossible to not break one. If there were consequences for every lawbreaking act, everyone would be in jail and there would be no-one left to prosecute or to do the prosecuting.
I'm not sure I follow your example but I'm sure it's better than the one given in the article, where an employee knowingly and deliberately facilitates fraud, begrudgingly, in order to collect a paycheck.
I agree that the labels aren't helpful, but it's vitally important to society that employees don't kid themselves about their responsibility (and culpability). Many employees are paid and treated abusively by their employers. Nonetheless, they cannot allow themselves to become instruments of crimes.
> You don't even need a fun story about a personal relationship: say you misremember something.
To be fair, the statute does say you must knowingly and willingly be lying. Theoretically, that would be on the feds to prove. Of course, I don't think it's possible to prove whether someone knows something. But if they can prove that you at one time did know, or with a perfect memory should have known... I don't know how that works. Would it be a coin flip at that point whether the jury would believe that you simply "misremembered"?
3. Is testifying for the promise of leniency of immunity.
4. And is quite happy to throw the CEO, the CFO, and, since the FBI asked him about your name, you under the bus.
Regardless of whether or not his claims are true, he will be happy to testify that yes, you absolutely knew about the criminality, because you discussed it with him at lunch, and did nothing about it.
This may, or may not be true. He may or may not have misremembered this conversation. He may be trying to save his ass. Either way, it's your word against his, and the prosecutor, who pleads to the jury that there is no possible way you didn't know about your involvement.
You may well be found innocent, but you never want to put yourself in this position. Talking to the police is just giving them more rope to try to hang you with.
That's a good point. However it's also worthwhile to consider that you are a criminal and so is pretty much every single adult US citizen. The massive expansion in criminal code over the past 50 years has ensured that crime is very commonplace and that enforcement rates are very low.
Harvey Silverglate, a Harvard law grad who works as an attorney, estimates the average American commits three felonies per day. He published an entire book on the topic[1]. The number is probably a lot higher for people who have built or served as directors of a company.
That's a clickbait book title, not an academic study. The book cites examples of prosecutorial overreach, not all of which obtained convictions. And the examples tend to the arcane, like importing food, not activities most people engage in.
The most commonly commotted one is lying to an employer to claim a paid sick today... And frankly it's unclear to me why people thing that's acceptable, but taking $100 from a convenient store cash register is not.
> "And the examples tend to the arcane, like importing food, not activities most people engage in."
Another common one is people borrowing parents from their parents to make a down payment on a house. Lots of people do it, but the sentence for using such a loan and not disclosing it is 30 years.
This particular violation is referred to as a "head shot" by investigators looking for something with which to nail a suspect.
The sentence isn't 30 years. The maximum sentence, assuming all the guideline accelerators are met, might be. In reality, the sentencing guidelines --- which if not followed make the sentence at least appealable --- for this probably result in probation for a first-time felon.
This doesn't detract from your point! Any felony conviction is a nightmare for someone just trying to build up a down payment for a house! But the way we talk about sentencing needs to be more sophisticated.
That's true. To go a bit further, most people aren't even charged, let alone sentenced. There are two problems with the ongoing expansion of US criminal code. One is the world-leading incarceration rate. The second and often ignored issue is as common practices are criminalized but only selectively punished, the country inexorably moves from a rule of law society, towards a rule by law society.
How about in the case of Uber and Uber drivers? Uber's initial operations in certain FL counties lead to both civil and criminal charges.
Uber was literally hiring contractors for the purpose of breaking the law, in one case actively recruited a driver from a county where it was was legal to a county where it was illegal (driver was arrested), provided drivers training on how to avoid police detection, and even provided at least Miami drivers a lawyer when charged (lawyer was an Uber lobbiest not a traffic lawyer).
Net impact on society: a bunch of rides subsidized by VC money and a lot of unemployed/underemployed workers left with marks on their driving record or criminal records which likely caused them to lose their Uber job and further hurting their chances of future employment.
Net impact on society: You and all your friends use UberPool to get around San Francisco for a few bucks one way. No more car insurance or car lease payments for 24 year olds. Now the Uber riders can afford their medical bills or college tuition. Uber is bad, right?
Very few people care about the direct negative externalities you mentioned, including here in HN.
The thread is about workers' (criminal) liability for the actions they take at the direction of the company they work for....there is literally an entire thread about it for a post that made it to the front page, so I think it's at least of interest to HN, I'm not even sure what your comment is about.
I never saw that post, so you could link to it. Not sending a downvote, but I would... (citation needed, (criminal))
Nobody should have criminal liability for actions they took on the direction of their employer, while the employer gets away without consequence. Otherwise we should all get law degrees for free.
To add to that: Lots of people that would like to commit the crimes don't have the skills and they're more than happy to recruit those who do, either directly or through all kinds of obfuscation. The fact that 'someone else would otherwise do it' is absolutely no defense.
If you don't want to come out and point blank refuse you can always say that you can't do it because you're not that good. That's a perfectly valid excuse and one that I've used on occasion. (Long story, maybe one day.)
> chose I think a really terrible example, one that creates a false sense of what it means for someone to be incidentally and unjustly swept up in a crime
I think the author chose an example from their own experience. Just because it seems ridiculous, doesn't change its accuracy.
I think it is quite relevant because it gets past the people who "can't believe that such a thing would happen to them".
It doesn't matter what kind of flexibility you have. Poor people also can't steal cars --- and virtually none of them do. An argument could be made (probably only on a message board) that between being forced into petty theft and forced to be a cog in a criminal conspiracy, the petty theft option is more justifiable --- all the proceeds address a real need, and the action itself is "honest" about the tradeoff being made. But we have no trouble recognizing theft as theft, even when done out of economic necessity.
actively committing a crime ("stealing cars") v.
passively committing a crime (failing to do something or looking the other way)
Also ignoring intent, People don't unintentionally steal a car. People can unintentionally fill out a form or misunderstand or be unaware of the requirements of the law.
Additionally, theft is ingrained into the fabric of society and religion. Following some sort of government reporting requirement is not included in any religious teaching that I am aware of.
No, you're misunderstanding the example. The issue isn't "looking the other way". I am not arguing that someone is or should be criminally culpable for doing workmanlike work at, e.g., administering benefits at a health management organization they happen to know is corrupt.
I am talking instead about a situation where an employee knows the organization is corrupt, and then knowingly and actively participates in some of those criminal actions. You can't deliver vouchers you know to be fraudulent. If you do, you are and should be criminally liable. Large-scale organized fraud depends in part on the willingness of every cog in the organization to perpetuate the criminal enterprise.
Still, you must ask yourself, what does it mean to criminalize theft when huge segments of the population either does it, or has the privile of not needing it, or is an supposedly unwitting beneficiary. If I indirectly aid a possibly criminal act to feed my family, why are my spouse and children more innocent than someone who lacks a criminal benefactor?
At least as reported, petty theft seems quite rare; poor people qualify for food stamps, food banks, etc., or just beg/panhandle for money, so there aren't many cases. This profile of them suggests most shoplifters do it more for the thrill than any kind of necessity: http://www.shopliftingprevention.org/what-we-do/learning-res...
Most people really don't have the flexibility to not quit. See, if you don't then you could easily end up in the kind of trouble that will cause your life to go right off the good path and onto a terrible one. Keep in mind that simply committing one crime makes you more likely to commit others just because you are now vulnerable. That tactic has caused many smart and otherwise good people to lose their bearings.
I don't think it's quite fair to suggest people use their flexibility to commit crimes rather than avoid them. I'd rather assume that people don't have the foresight to analyze risks properly (especially in the face of the unknown.)
Because at the end of the day, you know you can probably get away with institutional crime quite easily, but not with petty theft. And most people know what the consequences of the latter are, but not so for the former.
A person who feels that they don't have the flexibility to quit is also probably a person who doesn't have the resources to hire an attorney to consult with and represent them at an interview (something that could easily cost hundreds if not thousands of dollars). Public defenders are not available for this sort of thing.
> A person who feels that they don't have the flexibility to quit
I am NOT saying "feels" - I am saying "they do NOT have the flexibility to quit".
For example, my sister and her husband do not have that flexibility. They are at the limit of what their "barely above minimum wage" jobs support. They have some savings and they are very good about managing their resources; however they are a job loss or injury away from going negative and both work in jobs that are physically demanding.
> Whether you speak, what you say and how and when you say it can have a profound effect on your future when you find yourself involved in a white-collar criminal investigation.
It is very disturbing that we live in a society with laws so obscure to the common person. Unless you know this "one weird trick to avoid indictment under Title 18, United States Code, Section 1001", your life is held potentially at the whim of some random prosecutor. Such detachment of one's legal fate from one's actions has no place in modern lawful society.
Information asymmetry is one of the primary sources of power disparity. Dividing those subject to whimsical prosecution into the "in-the-knows" and "know-nots" – whether through this law, civil forfeiture, the obscure tax code, or pay-to-play building codes – is a progenitor of the police state. Free society requires transparent law.
I don't see it prudent to submit to an interview even when the agents assure you that the interview is only administrative or that they are not investigating you. The agent can lie without penalty. Unless this is something official, in writing, from the AUSA's office that was verified by one's lawyer, it's likely to be a trick. It's a standard tool in any law enforcement officer's arsenal. I always see scenes on TV where in an emergency people talk to the FBI telling them where the perp went or some other details and I think: if this were real life, I would expect the FBI to be turned away every time, even when lives are at risk and people will die because the FBI cannot get the information they need. It's too bad that this is the kind of society we chose to create, one where trying to help law enforcement is simply too risky to oneself.
It's worth noting that outside the US, things are different. Here in Australia, you can't have 'not talking to the police' held against you... unless you were already talking to the police and shut up when they started asking questions. If you were being friendly and shooting the breeze with them, then they starting questions and you shut up, that change in manner can be held against you, for example.
If you're not in the US, it's worth checking out what your own local jurisdiction expects - all the items in the Don't Talk to the Police video still stand (because they're about human psychology, not points of law), so it's worth knowing how much you can just shut up around police.
Unless you're in New South Wales. I suggest you look up the Evidence Amendment Act of 2013. There your silence to any question may be used against you, so long as the question(s) you were silent about are any part of your defense.
It was imported from the UK legal system in an ill considered way. It is rather nuanced though. Ironically it has led to solicitors choosing not to attend interviews to avoid the possibility of the special caution requirement occurring.
Fair point. The person who told me the above had just graduated from a Victorian law school. In any case, it's worth checking out how things are wherever you live :)
In the US, the Bill of Rights gives an absolute right to remain silent; but, like other rights, you can waive it. The courts' idea of "voluntarily waived the right" doesn't match what many people expect ( http://criminal.findlaw.com/criminal-rights/waiving-miranda-... , "implied waiver"). And, for an "absolute right," there are a surprising number of exceptions.
The only time the author mentions administrative interviews, or promises of non-investigation, is in the context of:
1.) You're a government employee, and thus not answering will result in your losing your employment
2.) You're working for a private employer who states that continued employment in contingent upon being interviewed
3.) You are the officer or director of a company that is regulated, or does business with the federal government, and not being interviewed could result in sanctions from the federal government.
I don't see it prudent to submit to an interview even when the agents assure you that the interview is only administrative or that they are not investigating you.
Other people, with advice of counsel and hopefully with counsel present, may find it appropriate in those instances to be interviewed rather than lose employment or face federal sanctions.
Ken White, a criminal defense attorney and former US prosecutor at Popehat.com, writes about these subjects, and has an entire series devoted to this sort of thing under the what-it-says-on-the-tin tag of Shut Up:
His writing makes for accessible, knowledgeable and amusing posts on a very serious topic and are extremely well worth a read. But the summary version is pretty straight forward: there is no such thing as an out-of-the-blue innocent visit from Law Enforcement, ever. This is kind of common sense when you stop think about it: agents are not free and budget is not infinite. If they are actually devoting an actual warm body to talk to you, particularly a warm body to visit you, it is always, always potentially serious. It is not on a lark, they did not roll some dice and have your number come up for a community chat. They're talking to you for a reason and given their fundamental purpose that reason may be quite bad for you, whether you did anything wrong or not. The true super power of government is patience and grinding, relentless inertia. By the time they talk to you odds are high that they have already done their research, extensively. They have a legal theory and narrative already in mind. If the Feds are knocking it's time to get a lawyer, period, particularly if you're fully innocent.
When two FBI came looking for me, they went to my mother's old employer that she had left 6 years prior. Someone at the school called her and she called me.
I called the agents and they asked if I could meet them at their office. I agreed.
I had invested in a project with an out of state person. He was referred to me by a close friend. When I stopped sending money, the person disappeared. This person had a reputable background, a family and lived in an expensive house. But he'd call me crying begging for money, claiming other investors were closing soon.
I being young and foolish, contacted his partners and my friend. I could had handled it better but I knew I hadn't broken any laws. I did tell him I'd tell everyone he knew that he was a con-artist.
The FBI agents were comically dense. One was dressed in tactical gear. They claimed they had an email I sent where I threatened the investor's young children. I strongly denied this and then asked to see it.
They refused to show me and responded, "We are the Federal Bureau of Investigation not the Federal Bureau of Information". Then they asked me if I was a member of a foreign intelligence service but mispronounced the name.
They told me not to contact the person and I should consider a lawsuit.
Before I met with them, I did ask a US based intel person what he thought. He said FBI agents are sometimes employed by private interests and that I should ask for identification and verify it with the local branch. I'm not sure if this is actually true but it certainly wasn't in my case.
While I agree, these were 2 FBI agents in a town of 100,000 people. And my mother knew the son of one of them. To me, it seemed like the person who scammed me had some law enforcement connections and they did it as a favor.
Certainly some agents are extremely bright, and if you are involved or connected to a serious crime, there's likely to be agents interviewing you trained in deception.
A couple of cops showed up asking for my roommate once. I had no reason to think that he'd done anything questionable, but my first instinct was still to hedge and find out what they wanted before admitting he was in. Turned out they were returning his lost wallet. I was so relieved that I hollered for him immediately, and all was well.
In retrospect, I probably still should have hedged, said "let me see if he's in" and got his okay first. Even if they do mean well, it costs nothing to be cautious.
> In retrospect, I probably still should have hedged, said "let me see if he's in" and got his okay first. Even if they do mean well, it costs nothing to be cautious.
Yeah, I wouldn't put it past a cop to lie to you about returning his wallet.
This was an apartment building with a locked, windowed outer door and a bellbox. If someone knocked on my front door I could use the peephole, but if someone rang the bell you had to step out into the hall, and then they could see you as well as you could see them.
This was an apartment building with a locked, windowed outer door. If someone knocked on my front door I could use the peephole, but if someone rang the outside bell you had to step out into the hall, and then they could see you as well as you could see them.
You strangely discount the quite reasonable possibility that something serious happened and you have important information about it but are not a suspect. Now, law enforcement can certainly abuse their power, but there is nothing axiomatically entailed that makes a critical witness into a suspect.
True that it's a possibility, but FWIW I think if they're actually just seeking relevant information from a third party who they believe to be completely innocent, they're much likelier to call than conduct an in person interview. And in either case, you are still exposed to legal risk from the interaction.
3. you either feel some sense of moral responsibility in helping to catch the criminal, or you just feel unsafe in your home and want to feel safe again;
then I don't see what's wrong with taking part in a conversation with a police officer that goes specifically along the lines of "we know you were at [place] at [time]" or "[crime] happened in your building", followed by "did you see or hear anyone or anything suspicious?"
Sure, if the conversation goes anywhere else, lawyer up. But is there any risk in providing the same statement when the police come to you, that you'd have willingly provided by actively going down to the police station to give a witness statement?
(Which is, after all, the majority of the interviews the police do. For every one person the police speak to under suspicion, they speak to 5+ other people—witnesses—to figure out who to suspect. This is exactly the "research" you mention above.)
>If the police are at your door, they might just know you might have been a witness to something, and are there to look for leads (i.e. "we know you were at [place] at [time]" or "[crime] happened in your building", followed by "did you see or hear anyone or anything suspicious?")
And if you accidentally screw up the answer (very possible, people's memories are terrible even without stress and in a rush to answer) you may now be a criminal, or (possibly just as bad) might make them think you're a criminal. The latter isn't even just about you, it's about overall justice and society too: if they're spending time and resources investigating someone innocent, by definition that's time and resources not spent on whomever actually did it.
Like all general guidelines, there are always limited exceptions to the rule, every adult should be able to use their brains a bit and know when considered deviation is justified. Yes, there may be times where instantaneous response really matters, you can perfectly well imagine scenarios where a criminal literally just ran by and an officer runs up asking if you saw them, no of course you don't need to insist on a lawyer. But in most cases seconds/minutes are not of the essence, and the benefit/risk ratio of just invoking your rights and going through the process carefully is so hilariously (or terrifyingly as the case may be) weighted towards counsel that it really should be considered the standard course of action. We are almost always operating at a vast situational knowledge disadvantage in any of these interactions, and it's prudent to take that into account. This isn't about not cooperating or not appreciating the police or importance of justice, it's about proceeding with due deliberation.
I don't think this disagrees completely with the cited source!
> So, I say, don't talk to the cops. Ask to speak with an attorney, and get competent advice before you answer the cops' questions. Are there mundane situations in which you might rationally decide to talk to the cops — say, if a neighbor's house is burglarized, and they come to ask if you saw anything? Sure. But you should view each interaction with the cops with an extreme caution bordering on paranoia, as you would handle a dangerous wild animal.
As soon as you open your mouth, "what you say" becomes your word against the officer's word.
The officer can write down whatever notes he/she wants, however inaccurate, whether intentionally inaccurate or otherwise, then go testify in court later, under oath, that this is what you admitted to.
Now you're trying to argue to a jury that you(the accused, but of course, presumed innocent...yea right) is telling the truth, and the sworn officer is lying.
That's not a good situation to be in, regardless of your actual guilt or wrongdoing.
There is a reason that anyone who has ever had any substantial contact with law enforcement will tell you NEVER TALK TO THE POLICE. You have a 5th amendment right, and a very well known Supreme Court case Miranda V Arizona that clarifies that.
I personally have seen literally hundreds of cases that would have been dismissed before they ever made it to a jury had the defendant not opened his/her mouth. I make no judgments on the actual guilt of the defendant.
> The officer can write down whatever notes he/she wants, however inaccurate, whether intentionally inaccurate or otherwise, then go testify in court later, under oath, that this is what you admitted to.
In a day and age when every is carrying around an audio recorder, this can be mitigated to some extent, in the case where there may be an exigency which motivated you not to want to wait to get a lawyer involved, by asking the officer to permit you to record the interview.
(Police body cams may also mitigate it in principle, but even in departments which use them they seem to have been conveniently switched off when people are most interested in what they contain.)
If the officer refuses, well, that's probably a pretty strong signal that despite the apparent exigency, you need to involve a lawyer.
Interesting. So, would you advise—if you do want to give a witness statement, because, say, someone close to you was attacked—just telling the officer (in not so many words) to go away; and then, later, writing out a witness statement and bringing it down to a police station?
Depending on the exigency of the circumstances I would definitely suggest not giving a verbal statement, and preferably consult a lawyer before giving any statement whatsoever to the police.
If your friend's life is at risk or in danger, you may not have some of these options and would have to make a judgement call at that time.
I personally would do almost anything to protect someone I cared without regard to the risk to myself.
See, that's the thing, though; I see this kind of weighted decision-tree logic as only being applicable exactly when the situation has dire risks on both sides.
Disregarding risk when someone you care about is in danger, is exactly how people end up with charges pinned on them, no? If you, concerned about a missing friend, talk to police about how you were likely the last person to see them, then if they turn up dead, you might to blame.
It's important exactly for these cases to be able to know what you should do, and how to do it properly, in order to be able to do the most to help those you love, with the least risk. Not to say "never"; not to say "screw it, this time's different, tell them everything"; but to know the precise shape of the middle path you must tread.
One time I had a friend who was robbed in Philadelphia and beaten enough to be hospitalized. A detective came and talked to me, alone, with my parents in another state, with no attorney. He informed me that if my friend died, I'd be a 'prime suspect'! Apparently, based on nothing other than their lack of other information... Or he was trying to intimidate me in case i did know more. I wasn't even 18.
Who knows... you do hear of cases where crimes are pinned on innocent people, seemingly because some DA would rather prosecute anybody than leave it 'unsolved'.
I worked at a pizza chain in college; closing manager on the night shift. Due to some stuff I won't get into here, tons of "safety" stuff in the store didn't work (camera was fake, bell on the door broken, etc), and I ended up getting robbed at gunpoint one evening.
I called the police, they interviewed me. Came back a few days later and did it again. At the time, what I remember feeling like was that they were trying to figure out if I made it up and kept the money rather than actually catching the person who had a gun to my head. I was pissed.
And also, if someone was murdered a few blocks down and then you refuse to say anything and say that you want your lawyer, won't that just needlessly make them suspect you for the murder? I'm all for encryption and a right to privacy and so on but I mean when it's obvious they just want to solve a crime and they are looking for info from you as a witness, well I don't see any reason not to be helpful.
> And also, if someone was murdered a few blocks down and then you refuse to say anything and say that you want your lawyer, won't that just needlessly make them suspect you for the murder?
You watch too much TV. I know it's hard, but when talking about real life law enforcement, try to forget everything you've ever seen about it on TV. It's about as accurate as the hacking scenes in NCIS.
Saying something you would think is harmless might very well lead them to suspect you. It's not the police's job to decide your guilt or innocence, it's their job to collect evidence and find someone the state can prosecute. Even if you are innocent, it will cost you hundreds of thousand of dollars and being arrested and innocent goes on your record.
The justice system in the US is completely broken. You should be very afraid.
As I understand it, I suppose it could make the cops suspicious, but "So-and-so refused to answer questions and asked to speak to a lawyer first" is legally inadmissible in court as evidence against you.
If the police are suspicious of you, it makes it more likely that they will be inclined to view information recieved from other sources in a light unfavorable to you, and devote resources to investigating you rather than others. Depending on how focussed that gets, you run into the "Three Felonies a Day" problem.
To be fair, if you read up on the 'three felonies a day' book, you find that most of the examples given are fairly contrived. Some of them are things you should absolutely know are likely to be illegal, the rest are situations that require significant legal contortions to be plausible and are unlikely to survive scrutiny by a judge. Average Joe doesn't really go around committing three felonies a day.
But then in the one case the cops have everything someone else said against you; in the other case the cops have everything someone else said against you and everything you incriminated yourself with by opening your damn yap. So clamming up is definitely a strategic option.
This advice is too generic to be used in every situation. If I see a van drive up, a man come out and throw a child in the back and speed off, I'm damn well going to tell the police everything I saw immediately, without waiting on a lawyer.
Perhaps more obviously, if you've been a victim of a crime—especially one you have reason to believe will likely be repeated or escalated without police involvement—while it might not be a bad idea to involve a lawyer in your law enforcement contacts if you have the means to do so immediately, there may be very good reason to report the crime to police without delay, even if that requires talking to them without an attorney. (And, yes, the basic risks of talking to police still apply. But there are, in this cases, risks of not doing so, as well.)
OTOH, I think the advice is strongest in the case where the police are initiating contact, and you don't have a pre-existing and independent basis to think there is an interest in talking without delay that justifies the additional risk of doing so without an attorney.
Sure I do. The person walking through the door could mug me, getting a free first punch at me because my hand is on the door.
The question is, what are the odds? Most people walking through the door don't do that to me.
But if the police come to your door, what are the odds that they're going to treat you unfairly? I suspect, higher than the odds that the person I hold the door for is going to punch me. Are the odds with the police unacceptably high? For me, no. (But then, first, I've never yet been treated unfairly by the police, whereas at least three times I've received better treatment than I objectively deserved. And second, I'm white and fairly conservative in appearance, so I'm probably going to get as much benefit of the doubt as anyone ever does.)
> Sure I do. The person walking through the door could mug me, getting a free first punch at me because my hand is on the door.
What are the highly likely penalties for an assailant attacking you in broad daylight like that, in a society under rule of law?
Now, what are the penalties to the FBI treating you unfairly during a surprise visit?
Further-- in the extremely unlikely event of getting punched in the face in broad daylight because you held the door open for somebody, what's it like to recover? Keep in mind that the public at large, law enforcement, and the court system would very likely all be on your side as you seek medical care, justice and remuneration.
Same question for FBI treating you unfairly after entertain their surprise visit without counsel. What does a recovery from that look like, and who would you likely have on your side?
Stopping talking because the questioning has taken a turn can be used as evidence of your guilt. Salinas v. Texas found:
"When petitioner had not yet been placed in custody or received Miranda warnings, and voluntarily responded to some questions by police about a murder, the prosecution’s use of his silence in response to another question as evidence of his guilty at trial did not violate the Fifth Amendment because petitioner failed to expressly invoke his privilege not to incriminate himself in response to the officer’s question."[0]
Combined with some circumstantial evidence or a mistaken eye witness, you've given the police reason to start building a case against you. Unless you're the one reporting the crime, think twice before you volunteer information to police.
(Not a lawyer, not legal advice, etc., just interested in this stuff.)
The police aren't Feds. Talking to police has its own, but different dangers.
My understanding is that in my state filing a false instrument is a criminal act... so a materially wrong report is an issue. With the Feds, much more subtle falsehoods or erroneous statements can be crimes in themselves.
Personally, as a citizen if I witness a crime I have and would report or attempt to provide information to aid an investigation as a matter of conscience.
Local cops may hit you with obstruction of justice, which is usually a misdemeanor that will be resolved in a low level court. This means your defense attorney will only charge $5000-$10000 to take your case.
18 USC 1001 is a felony charge that will be in Federal district court. $25K-$50K in legal fees easy.
> Sure, if the conversation goes anywhere else, lawyer up.
That's part of the point.
Once you're talking about the situation or really anything, people tend to continue talking. They don't realize that they've crossed the line or admitted to something else entirely. They don't realize that they should have kept their mouth shut and now they're in trouble. Or something as simple as mis-remembering something that they have proof of and poof now you're in trouble too.
Your pride will cost you.
Do the smart thing. Get an attorney and talk to them FIRST.
Ken White would say the exact same thing about talking to the police. I think there's an unspoken subtext to this, which is especially painful on nerd message boards where we contest the existence of unspoken subtext, that you'll still help the police do their job when it makes sense to do so.
That's very much a mindset from your generation. It's not at all prevalent in the newer (millennial and younger) generations. We grew up with more real world tales of people being screwed over by overzealous police than real world tales of murder, muggings and drug crime. We're more likely to give the benefit of the doubt to anybody suspected by the cops than we are to give the benefit of the doubt to the cops themselves.
Eh, I don't know. Have you lived in a ghetto†? (Not a racial ghetto; I mean a class ghetto—the part of a city usually referred to as "the projects.")
In a ghetto, "murder, muggings and drug crime" are [still] facts of life. In a ghetto, police cars are like beacons radiating "no crazies are gonna try to get in your face" as long as you stay within line-of-sight of one. Homeless people cluster near police stations in ghettos—for protection.
In a ghetto, someone's always passed out on a street corner, and the police are always there trying to see if they're just drunk or if they need to get to the hospital. Once or twice a night (more often on Fridays), you'll see a dude being forced into a cop car while a working girl stands there crying and bruised.
If you live in a ghetto, you've probably been mugged yourself. In fact, it's probably happened more than once. (3 times for me!) As well, you've probably been "threatened"—ended up surrounded by some "friendly" strangers, in situations that could very well have resulted in your death, if you did anything to provoke anyone. You've also probably had people follow you for blocks ranting and trying to grab at you. Or follow you, giving you a "guided tour" you didn't ask for, then insisting you pay them for their "tour" to get them to go away. And each time one of these things has happened, you've likely wished that there was a police officer nearby, but there wasn't; they were too busy dealing with all that other shit above.
If you live somewhere "nice", police officers can seem kind of pointless, and might in fact be a bit stir-crazy and awful. But if you live in a place where they're as over-worked as hospital ER staff with all the shit that goes on each day, you're usually somewhat thankful to have them there. Even if you still do feel intimidated and a bit scared every time you pass by one.
---
† To disclaim in advance: I don't mean one of those weird mid-US ghettos, with the police who grew up somewhere else, likely of a different race from the people who live there; the kind where all the awful racial police violence happens. I mean a ghetto patrolled by its own.
Do the majority of the generations I mentioned come from ghettos? I'm not arguing against the efficacy of the police or whether or not we need them. I'm describing a mindset prevalent among a large number of people. I'm aware exceptions exist.
Yes and no; the majority of young people living on their own in large cities at this point are living in half-gentrified previously-class-ghetto areas, still home to many social-housing buildings, and still with high crime rates. Because these are the "affordable" places to live in a city.
I don't know what percentage of the generations you mention qualify as "young people living on their own in large cities", but I think it's a fair amount. Enough to skew the results against a supermajority having your described viewpoint.
I live on a majority black block and have watched my neighbors help the police. The notion that black and latino people automatically oppose law enforcement is also troubling. Like (I presume?) most black people, I believe policing is structurally racist. But then, so too is exposure to crime, which disproportionately impacts poorer minority neighborhoods. The notion that black people and the police are natural adversaries doubly victimizes poor black people: first by ratifying the hostility they (definitely) experience from police officers, and second by putting them out of the protection of the law itself.
It's an easy way to try to score points on a nerd message board, amongst an audience of people who are extremely unlikely to experience violent crime. It's also callously instrumentalist. Find a better way to make this point, is what I'm suggesting.
I bet someone who lives outside the US (say, a British person, or someone from Kenya) would also have a completely different perspective. I would invite those, too, but their perspectives might make the commenters here extremely confused, if they didn't mention they were talking about non-American police.
No, the advice, insofar as it applies, applies to all law enforcement; the narrow exceptions may be more likely with local LE thna federal agents, but the general principle is the same, as are the considerations that go into deciding whether an exigency that creates an exception applies (including that you must apply extreme distrust to any statement by the LE agent, local or not, that seems to suggest such an exigency since they can and will lie to get you to believe such a situation exists.)
Provide the information anonymously. There are multiple layers of danger in doing otherwise, even aside from the widely cited don't-talk-to-police video. You must consider possible collusion between the police and criminal gangs, for example. The criminals may be using the police to identify witnesses for elimination.
That seems to depend on how it's consistent. If it consistently consolidates the power of the police, it's probably worse than inconsistent. (And I find it weird calling it "less of a police state", despite the deviation from the provided definition...)
If it is consistent in always acting against those doing the most harm, with "the most harm" determined in line with the intent of the laws being broken, that seems substantially better - probably even desirable, given limited resources.
This is really excellent advice. I work in legislative affairs with lobbyists and lawyers. After 12 years working in DC with and for congress, I can say unequivocally there is absolutely nothing good that can come from voluntarily cooperating with the police. You should avoid them at all cost. Do not volunteer. Speak through your lawyer if you speak at all, and never allow yourself to get trapped. It's nice to think prosecutors won't go after small fish, but to them you are worth nothing, and they will hang you out to dry if it gets them even the most remote, minor, or inconsequential conviction.
Probably a daft question but I'm curious as to what others have to say. If this happens, what kind of attorney or lawyer should you contact? Is simply googling "attorney's near me" and reaching out to the first result good enough? The lawyers I work with are all corporate contract lawyers, not the kind that deal with criminal law.
If the FBI wanted to interview you, your best bet would probably be to ask one of the corporate contract lawyers for a white collar criminal defense lawyer. If you couldn't do that for whatever reason your next best bet would be to shake your network to find another lawyer and ask him for a recommendation for a white collar criminal defense lawyer.
Me personally? I'd ask my family law attorney for a referral first (he's the guy who did our wills), and then go straight to the local bar. But you can ask your corporate contract lawyers, friends, colleagues, parents, priest, or mentor for referrals.
I'm sure this is good advice, but just stating it like that makes it seem like a protection racket, doesn't it? The only way not to suffer at the hands of these people is to hire them...
While it may not be bad advice, it's also interesting to note how a lawyer basically explains that you should always pay a lawyer.
In my very expensive experience with lawyers I have to say that they only care about my needs about 20% of the time, and usually these 20% happen before I sign their contract.
As much as it's probably correct to not fully trust an FBI agent it's also probably correct to not fully trust a lawyer. One needs to be able to defend oneself to a certain degree.
You should also remember that FBI agents, police officers, et al do NOT have the authority to grant immunity. They can claim things will "go easier" for you, promise you won't be charged, etc but all that counts for nothing.
I'm always surprised when watching one of those reality TV detective shows... inevitably there is someone who knows the police have nothing, yet never insists on a signed agreement from the prosecutor before spilling the beans.
The guys that submit to grueling interviews following their spouses' murder, on things like Dateline, mystifies me.
I'm sure there lots of off camera stuff where they make it seem not an interrogation, but...ugh. Get a lawyer, you are the easiest path to closure for the cops.
Edit: Dateline does usually speculate that anyone that does ask for a lawyer, or declines a polygraph, etc...is hiding something. It's a shame they do that.
> It is crucial to note that affirmatively declining to discuss the investigation in the absence of counsel is not the same thing as remaining completely silent. If you are not in custody, your total silence, especially in the face of an accusation, can very possibly be used against you as an adoptive admission under the Federal Rules of Evidence.
I thought we had the right to remain silent. Can someone explain this?
Not sure if there's case law specifically on this point, thus the hedging from the author with "can very possibly". The Supreme Court has ruled that when in custody, it's not enough to simply remain silent – you must invoke the right. And, it's not an invocation that's valid indefinitely. They can try to interview you again after a reasonable amount of time has passed, so you may need to invoke your right to remain silent every 24 hours.
desdiv's document is a great read. If you're referring to Miranda specifically though, I think a key part there might be "If you are not in custody[...]". The Miranda v. Arizona 1966 SCOTUS ruling had to do with violation of 5th/6th Amendment rights against compelled testimony and right to counsel. If you are arrested and interrogated, obviously you are under the government's direct power by definition, and if law enforcement fails to make clear to those arrested that testimony is not something they can actually coerce then anything they gain might get tossed on constitutional grounds. It's as much for the protection of prosecution as anything actually.
But nothing in the Constitution prevents you from volunteering whatever the heck you want to anyone, including someone from the government, even if it would a completely stupid decision to do so. If an agent/officer just asks you a question that doesn't mean you're in custody. They can legally draw inferences from any of your resulting answers/non-answers, just as they could from 3rd party witnesses, though how well any of those hold up in court is a different question of course. Affirmative assertion of rights is the neutral course there, it doesn't mean anything except that you recognize the situation is serious and want counsel to help you navigate it. It's not an admission of anything, it puts things on hold.
I recall a supreme court case where a suspect during an interview where in general he was talking, remained silent uppon being asked a (rather pertinent) question. This silence was brought as evidence.
The case before the court was that his silence was protected under the 5th, and thus could not be brought as evidence. It was ruled that, since he was already talking to police, and did not positively assert his 5th amendment right the 5th did not apply.
You probably have the right to be silent. But at the same time you also have to comply with commands from officers, and if your silence makes problems to them it may also be a crime in itself.
Not sure if this applies (not a lawyer, not even in the US) but usually in that kind of situation you have protection in one direction but then they can just apply pressure from another.
Stepping back a bit, do people have a lawyer on call? I haven't had to use a lawyer for anything, but I don't have a lawyer when it comes to telling someone that they have to talk to my attorney first.
You don't need a layer "on call" to tell someone that you will have an attorney get in touch with then. You then go online and find yourself council. This was one of the points of the article.
Have you done this before and do you have a sense what's the cost? If it costs $5,000 to have an attorney involved while I'm pretty sure that I'm just a witness, it may not be worth it.
Initial consults before you are charged should be hourly rate. After you are charged many criminal defense attorneys require hefty upfront non-refundable payments. $25K for a non-violent felony charge would not be surprising if the attorney was good. Could easily be $100K if things are serious.
Lawyers are usually on an hourly rate. $200 - $500 an hour is what I've experienced, but I've never employed a criminal lawyer. Lawyers get expensive when they have to do trial because of the time the trial takes and all the discovery (research) that goes into it.
> and all the discovery (research) that goes into it.
Like researching how to try to convince their client to plea before the trial, even after they've collected their client's retainer that would cover the trial, and then get pissed at their client when the plea deal is refused for any reason (even a great one).
It's a tactic to get them to back off. Telling them you want a lawyer present gives you time to find one before they start interrogating you. Even if you are arrested and you need someone else to find one for you, it stops them from being able to pull unethical/illegal tactics to get you to confess to things you shouldn't.
> It's a tactic to get them to back off. Telling them you want a lawyer present gives you time to find one before they start interrogating you.
I don't think that's accurate. It's not a short-term tactic - it's a strategy. And it doesn't give you time before they start interrogating you - it helps ensure that you don't have to be interrogated at all.
I would posit that it is a strategy as well, sort of like calling a bluff. If you have committed a crime, let them charge you. If you yell 'lawyer' and they leave, it is likely you are not chargeable, at least at that time. Might want to google 'lawyers' in the interim though....
It doesn't even sound like either you or that person needs to be in the US. Pretty funny if you combine it with how some countries are willing to bend over to help Uncle Sam's goons jail anyone they label a criminal.
I wonder how deep this goes. What if you a mistyped phone number on a bank form that get submitted to government authorities as part of routine compliance? Is that a crime? Is there even a difference between a mistake and intentionally transposing two numbers?
> difference between a mistake and intentionally transposing two numbers
This is slightly rambling/OT:
I dated a girl who would do that regularly to guys who were being entirely too aggressive about getting her number. She told me it was a pretty effective tactic to shake them off, and even if they figured out it was the wrong number it could be passed off as an innocent mistake.
I'm also fairly certain there's a girl who lives near where I grew up (and likely has a mobile number a short levenshtein distance from mine) who does the same thing, as I have literally no connections to that area, other than my immediate family, who have the same area code and exchange that my mobile number does. Nevertheless, I do occasionally get texts/calls from random guys obviously trying to contact a woman who is not me (this has been happening for almost a decade).
But! To add to your point - what if the aggressive dude trying to get your phone number works for a federal LEO? Could they use the system to hold your disinterest in them against you, just out of spite?
I've travelled to many countries and the US is the only country I've been to where citizens have a legitimate and real fear of their government using force against them for something that most people would define as 'not doing anything wrong.'
Perhaps, in America, we should stop putting people in jail for not doing anything wrong.[1][2][3][4]
I wonder what bug resulted in the string "government226128147that" being inserted. Clearly something to do with signed integer arithmetic, but where would that be happening?
> For example, if you lie to your employer on your time and attendance records and, unbeknownst to you, he submits your records, along with those of other employees, to the federal government pursuant to some regulatory duty, you could be criminally liable.
This blows my mind. I have a pretty dim view of lying in general - I've railed on HN against "padding" one's resume in any way, but I for one had no idea you could lie to your employer (decidedly not a criminal act), then through no action of your own your employer could turn around and make you subject to Federal prosecution.
You are right I probably generalized it a little more than I should have. Lying in order to beef up your paycheck or increase billables is very likely criminal fraud.
Oops, just duplicated your comment in reply to the current-top post because the parent of my comment asked a relevant question. I searched the thread for "police" before posting it, but missed your post because "cops" instead of "police" :)
Problem is that the agent doesn't have to identify himself as such. He or she might be dressed casually with no signs of being an FBI agent, he doesn't have to tell you he's an agent, and he may lie as well. He doesn't even have to be an agent. Your employer can submit your lie to an agent. Creepy!
18 U.S.C. section 1001 doesn't apply to just the FBI. It applies to all federal agents.
In the context of this thread about visitors to the US, that would include the guy scanning your passport and asking "What's the purpose of this trip?" and the guy telling you to take off your shoes so they can be x-rayed.
>That's a problem but not one the article solves ...
Says who? There's nothing stopping you from repeating those same phrases the article details while in the company of people who you have no reason to suspect are federal agents, but could be.
For example, if your significant other is nagging or otherwise interrogating you: "I decline to be interviewed without a lawyer." If your SO turns out to be a federal agent, then the article just solved the problem. :)
Joking aside, though, if you said this to an undercover police-officer, I presume they wouldn't reveal themselves at the time—but would it taint any evidence they collected by talking to you after that point, the same way it would if you said it in an interview?
It doesn't always work, because sting operations often involve paid informants who are not police, but assist by luring offenders to a location that's under surveillance.
In such a situation, you might ask a similar question, receive an honest answer, and still get busted, because you participated in a transaction that was recorded by observers.
Plain clothes officers operating undercover aren't always placed in direct contact with targets at the moment of a bust. Sometimes they just need to gather enough information needed to orchestrate a bust, and then they just disappear, as if completely unconnected.
You're lying to your employer who in turn sends your lies to the feds, you're liable. That's unexpected and unintuitive but it's not the same thing as you lying to someone who intentionally hides their status as a federal agent from you. There's no deception in the former case. What the posters here seem to be saying is that you can get in trouble for lying to some rando who happens to work for the man but never told you. That sounds unlikely, to me.
> ... whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully ...
Personally, I would be inclined to agree with you, on the basis that you cannot knowingly and willfully lie in a such a matter if you do not know that you are discussing such a matter. However, I'd believe judicial precedent over my own layman interpretation...
I don't think this is really about a layperson's interpretation, it's the other interpretation that's zany - the sort of thing that happens the nerdforums when you treat law as code.
"Federal law enforcement officers can lie to you" and "Lying to the feds can be a serious crime" are both true but extrapolate these to the maximum and suddenly lying to some dude standing next to you at a bus stop who turns out to be a fed is a crime. This is obviously nonsense. FBI agents can't arrest you and lie to you about your Miranda rights or lie to you that they'll beat the shit out of you if you don't cooperate with them. If there's an undercover agent you don't know about in your organization and you lie to them simply because, say, you don't trust them, you're not automatically looking at an indictment.
If you're afraid of that, use a VPN service to browse these pages, or TOR. But really, thinking that reading this article will put you on a list is kind of paranoid, unless you have other reasons to be paranoid.
We live in a world with the NSA, a group known to flag individuals based on search history (ex. for TOR) and to share with other branches of government (see: parallel construction). Everyone has reason to be paranoid.
Is it normal for people to just have a lawyer they can call? I don't. I wouldn't know how to find a lawyer for this sort of situation, or even what kind to look for. Am I looking for a criminal defense lawyer?
First thing I looked at when moving to the UK in case I get pulled over and know how to comply to law enforcement powers whilst understanding the limitations and my rights...
Are these published in the US, on a state level at least?
No I mean, if you just tell a child "don't ever talk to the police", you're really putting them in danger because they might think it means "avoid or run from the police as if they were dangerous strangers" which can obviously result in tragic outcomes.
Also what if they're the victim of a crime or some other emergency situation and really should talk to the police? If you really absolutize and drill them to "never ever talk to the police", you're setting them up for a worse outcome in that instance too.
College education has almost nothing to do with this. It teaches most people nothing about this subject.
I'm actually somewhat surprised that more people don't learn how to properly not attract the attention of cops while in college.
College campuses are full of cause-less traffic stops that escalate into full on searches, money (fines) to be made from underage drinking and drugs all of which increase people's contact with law enforcement. Pretty much everyone at knows someone who's been mistreated in a petty way by the cops or done something dumb and then compounded it by playing straight into their tactics or not STUFing. College provides ample opportunity to experience or become aware of fairly tame instances of many of the things we as a society don't like about law enforcement.
You have to have your head firmly buried in the sand to not at least learn a little bit about how to conduct one's self during an interaction with law enforcement.
College definitely has something to do with it --for all the reasons you just rattled off. We get fucked once on, say, a misdemeanor, and then we learn this FUCK out of how to handle cops. And a fed is just a cop with better shoes.
I'm saying that despite that environment the number of college educated people who don't know to STFU is low enough that the impact of college is negligible.
not only are they allowed to lie, a law enforcement officer has no authority to offer you this kind of deal, and they know it; so they can't say this without lying about it.
An attorney once added to the info in this article that if law enforcement come to your home and asks, "May we come in?" the answer is always "no." Step outside, pull the front door shut, and then tell them you won't speak without your attorney. If you consent to let them in the house, anything they see of interest is something they can act on.
That seems paranoid to me, but if it's a genuine concern than you haven't gone nearly far enough. Wouldn't posting comments on a thread discussing the article be a much stronger signal than clicking the link?
> Furthermore, a private employer can require you to cooperate with a law enforcement or regulatory investigation as a condition of continued employment.
But how does the employer even find about this? How does the employer determine cooperation? Surely LEO can't blackmail you into cooperation by going to your employer first?
If he doesn't find out, I guess he can't fire you for it. I'm not sure I understand what the underlying question is...
>How does the employer determine cooperation?
Completely arbitrarily. You can be fired for just about anything that isn't explicitly prohibited (e.g. being Black).
In the case of "at-will" employment, I can fire someone for literally no reason at all. I can wake up on the wrong side of the bed at 7:00 AM, decide Joe Schmoe is responsible (or not... that guy just gets under my skin), shit shave and shower, then roll into the office at 9:00 and give him the ax.
So, to answer your question, if the I overhear my neighbors gossiping about how you didn't cooperate with police, that's as good a criterion as any for firing you.
>Surely LEO can't blackmail you into cooperation by going to your employer first?
Think again. In principle, police can threaten to tell people you didn't cooperate. I don't know how often this happens but it's perfectly legal to do so.
You're an IT guy who manages your company's MacBooks, including the FileVault institutional decryption key.
A fellow employee is being investigated for a crime, say possession of child pornography. You have no knowledge of what is or isn't happening on the computer.
Your management directs you to cooperate with the Federal Agent, answer questions, and provide technical assistance as required. You refuse without advice of your personal counsel.
End result: You are terminated for insubordination.
In the absence of a contract, your employment is at will and you can be terminated for almost anything.
In many situations where you're covered by a collective bargaining agreement, you're protected by this sort of thing an can have a union attorney involved before this happens.
> Without getting into the scope of the 1001 statute (I think they're probably mostly right about it), I just want to chime in with a nit about the example they chose:
> If you take a job at a health provider that you later learn is corrupt, and later knowingly transport false vouchers as part of your job while otherwise avoiding direct participation with the more overtly criminal parts of the enterprise, you are a criminal.
> We in this industry all need to be taking more responsibility for our individual actions and the net impact they have on society.
Yes, you're correct in an absolute sense, much as the prosecutor who indicted Martha Stewart was correct in an absolute sense. But you're incorrect in a different sense, much as the prosecutor who indicted Martha Stewart was incorrect in that same sense.
Please don't take HN threads on trivial tangents, such as arguing about pronouns when the topic isn't pronouns (which admittedly can be interesting in their own right—but not like this). I get that you also said something about the topic, but that doesn't matter because off-topic provocations always win.
Additionally, it has a longer history than the grammar pedants give it credit for. It has been part of the English language since the 14th century. Meaning it's just as valid as the word "succeed", which was inherited from French in the same time period.
I'll have to keep that link around for reference! I love all the quotes from literary references... I want to see the mental knots that are tied trying to address that cognitive dissonance.
The author was using "literally" chiefly according to its play-on-words definition of the samples having been drawn from literature.
As for the claim that "literally" ever means "figuratively", I have never encountered that use - including in examples offered by those who claim its existence. Literally is sometimes used in figurative circumstance, but I would argue the use is hyperbolic - in the same way we don't say "'days' sometimes means 'minutes'" because people say "I've been waiting for you for days". I have never seen an example that would not have been understood to be figurative but for the addition of "literally".
I disagree with the notion that the novelty of a component of language can be best assessed by when it was first used. In particular, vocabulary is far more mutable than grammar.
Then again, I'm a grammatical traditionalist: I consider English to not have a male gender, but rather the three genders "inanimate", "female", and "animate".
The assessment isn't simply that its first use is ancient, but that it has been used universally throughout the history of the language and occurs routinely in its greatest works --- not just in Chaucer, but in Orwell. See the link I posted downthread. To me, a "controversial" language feature that has been used by Chaucer, Austen, and Orwell is no controversy at all.
The prescriptivists have lost this debate, comprehensively. There may be a language that lacks a gender-neutral singular "they", but it isn't English.
> I disagree with the notion that the novelty of a component of language can be best assessed by when it was first used.
I think novelty is a bad choice of word here, as that has a connotation of being related to time and exposure, which makes your statement seem somewhat contradictory... I think the word "controversial" that Thomas uses is more appropriate. I'll continue as if you had used that instead.
I do agree, that length of attestation does not necessarily mean a feature is non-controversial. But I do think it is likely a prerequisite for being non-controversial, precisely because it allows the usage to be non-novel.
> Then again, I'm a grammatical traditionalist: I consider English to have a male gender, but rather the three genders "inanimate", "female", and "animate".
Ironically for a grammatical traditionalist making a comment about grammar, this sentence is not grammatically correct.
Only when one doesn't know someone's sex. In the case of Mr. Wisenberg, one does.
And you're completely ignoring my substantive point that the fact that someone is technically a criminal does not mean that he actually deserves the full force and power of the State to bear down on him.
From your own Wikipedia link: 'It typically occurs with an antecedent of indeterminate gender,' meaning that use with an antecedent of determinate gender is atypical.
From the same page: 'In some situations, an individual may be known but referred to using the pronoun they. This may occur because the individual's gender is unknown to the speaker, or because the gender is non-binary or genderqueer, so that they regard both masculine and feminine pronouns as inappropriate and thus prefer to be referred to as they.'
Mr. Wisenberg's gender is known and he presents as a man in his profile; there is no reason to use 'they' instead of 'he,' and thus it's simply wrong to do so.
I don't think you intended to be rude to him by failing to use the correct pronoun, but I believe you were.
And, again, you continue to ignore the substantive point.
I think you're responding to the wrong commenter. I didn't provide you with a Wikipedia link. The rest of your comment, which amounts to a rule saying "the singular they is okay but only as a last resort", is incorrect. Singular "they" is correct even with a known gender†. I can, of course, back this up with cites, but at this point you're going to have bet me $100 (charity of your choice) that you're right to make me continue along this tiresome tangent.
† (in my case: I used "they" because I didn't know or care to learn the gender).
I used to hold the line on "the correct pronoun for any person you do not know is female is 'he'" until I saw a list similar to what tptacek linked to (I think in the book Style: Toward Clarity and Grace).
Singular "they" has been used for centuries. Chaucer used it. It wasn't always meticulously used to identify people who don't fit into traditional gender roles. "He" is certainly acceptable for "person without identifying gender," but so is "they."
I have a hard time separating the argument you are attempting to make from the "just following orders" argument. That is, that immoral behavior is excusable or at least less-immoral as long as the actor is just following orders for their own self-preservation. Of course, this viewpoint has not been very well regarded, especially when used by actors of militaristic war crimes.
Is there a difference that you can elaborate for me?
If you take a job at a health provider that you later learn is corrupt, and later knowingly transport false vouchers as part of your job while otherwise avoiding direct participation with the more overtly criminal parts of the enterprise, you are a criminal. What you're doing is wrong. Put into that situation unexpectedly, you must either quit, or immediately report your employer (and, presumably, then quit). You can't knowingly accept a paycheck from a criminal enterprise if doing so requires you to help carry out criminal actions. The law says that's criminal, but even if you don't care about that, so does the social contract.
Are you less culpable than the owners? Sure, of course you are. But this article chose I think a really terrible example, one that creates a false sense of what it means for someone to be incidentally and unjustly swept up in a crime they themselves tried to avoid.
We in this industry all need to be taking more responsibility for our individual actions and the net impact they have on society.