You Have the Right to Remain Innocent Read online

  Advance Praise for

  YOU HAVE THE RIGHT TO REMAIN INNOCENT

  “In this quick and wonderful read, one of America’s most eloquent writers on legal subjects makes clear why you should never, ever answer police questions about your past conduct, however virtuous and civic-minded you may be. You Have the Right to Remain Innocent describes a stream of miscarriages of justice that occurred only because innocent suspects cooperated with deceptive officers preying on their ignorance and good intentions. The book makes its case with verve and passion, and even if you are a tough-on-crime conservative or a police chief, it is likely to persuade you.”

  —Albert W. Alschuler, University of Chicago Law School former federal prosecutor

  “James Duane is an experienced criminal defense lawyer and a tough-minded legal scholar. This is not just a book of advice; it is a passionate and disturbing critique of the rules governing police interrogations in the United States. It repays careful reading.”

  —David Alan Sklansky, Stanford Law School former federal prosecutor

  “The stories in You Have the Right to Remain Innocent will help you remember why you should not talk to the police and exactly how to assert your rights. This book could save you—or your children—years of imprisonment for a crime committed by someone else. Read it and then make sure your kids read it too.”

  —Randy E. Barnett, Georgetown University Law Center director of the Georgetown Center for the Constitution

  “James Duane’s amazing but true stories of innocent people exonerated after decades of wrongful imprisonment (which could have been avoided if they had just insisted on their fundamental right to avoid self-incrimination) are riveting reminders of the high price we pay, as individuals and as a society, when we fail to assert our constitutional rights.”

  —Laurence H. Tribe, Harvard Law School

  Text copyright ©2016 James Joseph Duane

  All rights reserved.

  No part of this book may be reproduced, or stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without express written permission of the publisher.

  Published by Little A, New York

  www.apub.com

  Amazon, the Amazon logo, and Little A are trademarks of Amazon.com, Inc., or its affiliates.

  ISBN-13: 9781503933392

  ISBN-10: 1503933393

  Cover design by Tim Green, Faceout Studio

  Dedicated with love to my sons, Daniel and Solomon.

  CONTENTS

  I DON’T TALK TO POLICE

  II DON’T PLEAD THE FIFTH

  III PLEAD THE SIXTH

  ENDNOTES

  ABOUT THE AUTHOR

  I

  DON’T TALK TO POLICE

  [A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.

  —Former United States Attorney General and Supreme Court Justice Robert Jackson, Watts v. Indiana, 338 U.S. 49, 59 (1949) (concurring opinion)

  In the past five years, I have spoken dozens of times to thousands of individuals around the United States about the right to remain silent. Most of my audience members have been students in college or law school. Everywhere I go, I just about always make a point to ask how many people in attendance have a parent who is a police officer or a prosecutor—and of those attendees, what their parents have advised them about the Fifth Amendment. In almost every group, there is at least one student who tells me that his father is a state trooper, or that her mother is a prosecutor. Every time this happens, without exception, the student in question has told me basically the same thing: “Years ago, my parents explained to me that if I were ever approached by a law enforcement officer, I was to call them immediately, and they made sure that I would never agree to talk to the police.” (Most of these young people also volunteered that their parents in law enforcement advised them to never allow an officer to search their apartment or car, but that is the subject for another book.) Not once have I met the child of a member of law enforcement who had been told anything different.

  Everyone who is privileged enough to know how the criminal justice system operates in America would never advise their loved ones to waive the right to remain silent in the face of a criminal investigation. We routinely see people in power, such as police officers and government officials, pleading the fifth (like Lois Lerner, the former director of the Internal Revenue Service’s Exempt Organizations unit, who asserted her Fifth Amendment privilege and refused to answer any questions when she was summoned before a congressional committee in 2013).1 These are officials who have made a career out of talking people into waiving their right to remain silent, but when the questions are suddenly directed at them, they will not waive their own.

  You need to pause for a moment and let that sink in.

  It doesn’t matter whether you are a liberal or conservative. I do not even care whether you are heartless enough to remain unconcerned about the fact that our legal system routinely convicts innocent people. Nobody of sound mind can dispute that there is something fundamentally wrong, and intrinsically corrupt, about a legal system that encourages police officers and prosecutors to do everything in their power to persuade you and your children (no matter how young or old) to “do the right thing” and talk—when they tell their own children the exact opposite.

  I intend to bring to an end, once and for all, that obscene double standard in the American criminal justice system that allows only the citizens who are in the know to protect themselves from a legal system that is designed to prey upon ignorance and good intentions. Most people have no idea what they are up against when they agree to talk to the police. Everybody in this country faces a terrible risk, however small, that someday the police will come calling. Someday, you might even be arrested and asked whether you would mind answering just a few questions to “help clear things up.” You have no way to know whether that fateful moment will ever come your way, or when it will happen. But if it does happen to you, or perhaps to one of your children, it will come without warning and you will suddenly have to make one of the most important decisions of your life. You will almost certainly not be offered the chance to speak to anyone other than the officer. The only advice you will receive in that moment is likely to come straight from the police officer, who will lie to you by claiming to represent your best interests. And the police will make these claims very convincingly, because they have been practicing the same lies on other people for years. In that moment, if you make the wrong decision, or if you simply don’t know any better, what you say could cost you your freedom, perhaps for the rest of your life.

  This book will explain what every police officer knows about the American criminal justice system. It will explain how even innocent criminal suspects can unwittingly give the police information that can be used to help convict them of a crime they did not commit. I am not claiming, of course, that it is never a good idea to talk to the police. A few years ago, I recorded a lecture about the importance of the Fifth Amendment and some of the reasons why you should never agree to answer unexpected and unsolicited questions from the police. That video has been viewed millions of times on YouTube, which is a great thing for the country. As a result, my mailbox has been filled ever since by comments and questions, many from those who wonder whether I mean that one should avoid speaking to police in every imaginable scenario. Of course not. That would be ridiculous.

  Let me quickly clarify and acknowledge that there are several situations in which it is perfectly fine to talk briefly to the police. For example, you might get locked out of your own house and find
you have to climb into your darkened home in the middle of the night through a window, perhaps by breaking the glass. Or maybe you have some strange reason for standing outside at night and looking through the windows of your home with a flashlight or for jimmying the lock of your car. Or perhaps you have some lawful reason to be walking around in the middle of the night inside a government building that has been locked up, one which nobody else has any reason to be inside. Or you’re a teenager with an innocent explanation for walking down an alley carrying two brand-new bikes while everyone else your age is in school. These are all reasonably suspicious activities.

  If a police officer encounters you in one of those moments, he or she has every right to ask you two simple questions. Memorize these two questions so you will not be tempted to answer any others:

  Who are you?

  What are you doing right here, right now?

  If you are ever approached by a police officer with those two questions, and your God-given common sense tells you that the officer is being reasonable in asking for an explanation, don’t be a jerk. Even if you are angry and frustrated about being locked out of your house, try to see this from the police’s point of view. They are only looking out for your best interests. Would you want them to ask those same questions of any other individual caught breaking in through one of your windows, or watching your family? Of course you would. If you have an innocent explanation for your presence at that time and in that place, tell the police about it. Tell them that it is your own house. Or tell them that you are in an empty courthouse in the middle of the night because you work there, and show them your identification. They will appreciate your cooperation, and that will be the end of it. If you unreasonably refuse to answer those two questions, they might put you under arrest, and I would not blame them.

  I am not a member of a racial minority, and I am well aware of the reality that far too many individuals of color are harassed by officers for no good reason, so it is easier for me to give the above advice than for others who have been subject to such harassment. After all, I have never been stopped by a police officer who thought I was riding a bike that looked like it might be too expensive for somebody of my race. And I cannot imagine how frustrating such prejudicial suspicion must be.

  But you cannot make your situation any better by refusing to cooperate with the officer, no matter how unreasonable you may think the police officer is being, or by refusing to disclose two simple things: (1) your name, and (2) whether you have some lawful reason for your curious presence or conduct at that moment at some place where the officer already knows you are, because he or she is standing right there with you.

  Those are the only two things you should tell the police officer in that context, and they are both in the present tense. (You might as well cooperate with such a request, by the way, because the Fifth Amendment does not normally give you the right to refuse to tell the police your name anyway.2) That is it. But if the police officer tries to strike up a conversation with you about the past, and where you were thirty minutes earlier, and who you were with, and where you had dinner, and with whom—you will not answer those questions. You will not be rude, but you will always firmly decline, with all due respect, to answer those questions.3

  Everybody in this country owes a deep debt of gratitude to law enforcement officers. Many of them take great personal risks every day for our protection. All of us depend on them heavily, more than most of us appreciate, for the defense and protection of our lives, our property, and our most cherished liberties. I thank God for the unselfishness and the bravery of police officers, and not one word in this book should be taken to imply otherwise.

  So then why do I say that you should almost never talk to the police when they come to you with questions about your past? They are not generally any more dishonest than most individuals you will deal with. Of course, we all know that the worst officers (just like the worst defense attorneys, in my line of work) are sometimes caught red handed and convicted of terrible crimes, maybe involving fraud and deception. But I’m not writing about those police officers. If you ever fall into the hands of a police officer so corrupt that the officer would intentionally lie in order to cause undeserved legal trouble for you, there is unfortunately nothing you can do to completely protect yourself from that risk. (Although even in that case, as you will see, your odds of staying out of trouble will be better if you keep your mouth shut, because you will make it a little harder for the officer to successfully lie about what you said.)

  No, the advice contained in this book—the same advice that police officers give their own children—is not based on any assumptions or suspicions about the overall morality of police officers. It is based on two simple but unavoidable facts about every police officer, including the most noble and virtuous. The only two problems I have with the police (although they are very big problems) are these:

  The first problem with the police is that they are only human. They cannot know everything. For instance, when confronted with opposing accounts of the same situation, they cannot know who is really telling them the truth. And because they are only human, police officers, just like all of us, do not like to be embarrassed by admitting that they made some sort of a mistake, especially if it concerns a matter so serious that it might lead to them being sued. They do not even like to admit it to themselves. That is why police officers, like all humans, are subject to a powerful phenomenon that psychologists call confirmation bias. This means that after they have come to a conclusion, especially if it is a conclusion that they have publicly announced (for example, by arresting someone and accusing him of a serious crime), it is very difficult for them to admit that perhaps they have made a terrible mistake. It is much easier and more comfortable for them to convince themselves that they did not make a mistake, and that their initial accusations were correct. Their memories will gladly cooperate in that effort. Even if they are not aware of how it is happening, they might recall nonexistent details to coincide with and corroborate the story they have already begun persuading themselves to believe.

  Just like the rest of us, police are frustrated by important and difficult questions for which there are no discernable answers. And, just like us, they love the powerful psychological satisfaction that comes from convincing themselves that in fact the riddle has been solved. When a terrible crime is committed, every human being with a heart desperately wants to believe that we can find the offender. And if there is only one suspect available to us, most of us are surprisingly good at convincing ourselves that maybe he or she really is the one to blame, and that perhaps the circumstantial evidence against him or her is fairly powerful after all.

  But the fact that police officers are “only human” is only one of the two problems. The other problem is that they are working within a legal system that is highly imperfect. That is not their fault, because they did not design the system. But as this book will demonstrate, it is a broken system that relies heavily on the judgment of judges and juries who are also only human, and who can sometimes be unduly influenced by irrational prejudices and assumptions. They make mistakes too. And judges, for many years, have given police officers encouragement and incentives to engage in all sorts of extraordinary deception when they are interviewing criminal suspects. They receive sophisticated training at the police academy in methods of interrogation that are remarkably successful in getting guilty people to make confessions and incriminating statements.4 You cannot blame them for using such methods—after all, we all agree that guilty people (at least the dangerous ones) ought to be caught and put behind bars—but the problem is that these methods of calculated deception are too effective. They do not merely work on the guilty. At least some of these methods, it turns out, have proven to be just as effective in getting innocent people to make incriminating statements, and sometimes even outright confessions.

  Do not think for a minute that you can trust a police officer who seems to be open minded and undecided about whether he will arr
est you after you are finished with an “interview”—the police are trained to act that way, to get you to talk with them for many hours until you finally give up in exhaustion. The most recent and comprehensive investigation, which took a careful look at 250 prisoners exonerated by DNA evidence, found that 16 percent of them made what’s called a false confession: admitting their commission of a crime that they did not commit.5 Those are the cases in which the defendant actually confessed; in many more cases, the innocent suspect denied all guilt, sometimes for hours, but still gave the police a statement that was then used to help convict him. Out of all the hundreds of innocent men and women who were wrongly convicted but later exonerated by DNA evidence, more than 25 percent made either a false confession or an incriminating statement.6 Every one of those suspects would have been much better off, and might have avoided going to prison altogether, if they had simply read this book.

  Many years ago, when the world was much simpler than it is today, a young legal advisor named Jiminy Cricket was able to cheerfully and enthusiastically advise Pinocchio, “Always let your conscience be your guide!” It was not terrible advice at the time, because in those days there was a fairly close correspondence between law and morality. In those days, nothing was forbidden by the law unless it was obviously immoral, dishonest, or dangerous to the general public. It was almost inconceivable that an accused criminal could ever claim to have no idea that whatever he or she was doing was against the law.

  Those days are long gone. Because of the matrix of rampant horrors often described as overcriminalization, it is no longer possible for you to rely on your own conscience or common sense as a reliable guide for whether you have committed a crime. One recent investigation revealed that the United States Congress was passing a new criminal law once a week on average.7 It has been reported that the problem is so severe that even the Congressional Research Service is no longer able to keep count of the exact number of federal crimes!8 These laws are scattered throughout all the sections of the United States Code and include thousands of criminal statutes. Even if you somehow had the time to read every page of the federal laws written down in the United States Code—and even practicing lawyers no longer have the time to read all those laws—you still would not know all the different ways you could be prosecuted by the federal government. That’s because many of those statutes written by Congress reference the obscure provisions of many thousands of regulations that have been issued by every federal regulatory agency. It has been estimated that there are tens of thousands of these obscure regulations, any one of which could potentially subject you to criminal prosecution.9 And that is just the list of federal criminal statutes; the states have an even greater number of crimes on the books.