You Have the Right to Remain Innocent by James Duane
Law professor James J. Duane became a viral sensation thanks to a 2008 lecture outlining the reasons why you should never agree to answer questions from the police—especially if you are innocent and wish to stay out of trouble with the law. In this timely, relevant, and pragmatic new book, he expands on that presentation, offering a vigorous defense of every citizen’s constitutionally protected right to avoid self-incrimination.
Quotes from “Duane, James. You Have the Right to Remain Innocent. Little A. Kindle Edition.”
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.” (p. 3)
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. (pp. 3-4)
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. (p. 7)
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. (pp. 7-8)
Those are the only two things you should tell the police officer in that context, and they are both in the present tense. (p. 8)
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. (pp. 8-9)
The first problem with the police is that they are only human. 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. (p. 10)
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. (p. 10)
The other problem is that they are working within a legal system that is highly imperfect. 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.(p. 11)
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. (pp. 12-13)
One recent investigation revealed that the United States Congress was passing a new criminal law once a week on average. (p. 13)
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. (p. 14)
Years ago, the Supreme Court held that you can be convicted and imprisoned for committing a crime even if you had no criminal intent and absolutely no knowledge that your conduct was forbidden by any law. (p. 15)
One reliable estimate is that the average American now commits approximately three felonies a day. That is why you cannot listen to your conscience when faced by a police officer and think, I have nothing to hide. (p. 22)
One of the worst things about talking to the police, as we will see, is the fact that our legal system permits and even encourages the police to lie to you in ways that are absolutely shocking, and to use all sorts of grotesque deceptions if that is what it takes to get you to waive your right to remain silent. (p. 26)
The rampant use of dishonesty and deception by the police is a serious threat to the administration of justice in two different ways. First of all, it is of course one of the most powerful ways to persuade even innocent people to make a false confession, as we shall see. But it also has a more insidious effect as well, because even if the police do not use deception to persuade you to make an outright confession, they might persuade you to give them a little bit of information that can later be used against you in front of a jury. (pp. 27-28)
The bottom line is plain: you cannot safely trust a single word that you hear from the mouth of a police officer who is trying to get you to talk. The police may even lie to you about whether your loved ones are dead or alive. (p. 29).
In Massachusetts, one police officer obtained a statement from a suspect after assuring him that the conversation would be “off the record”—and later admitted at his trial that it was a “lie.” (p. 31)
Even if you are innocent, the police will do whatever it takes to get you to talk if they think that you might be guilty. That includes saying just about anything, no matter how dishonest, to help persuade you that it might be in your best interest to give them a statement. And the courts will generally say whatever they need to say to excuse the dishonesty on the part of the police, even if the courts have to say something that is just as dishonest. (pp. 39-40)
What if you give information to a police officer or any other individual that you think might support your claim of innocence? Will that person be allowed to share that information with the judge or the jury at your trial? The answer will surprise you: no, almost certainly not—not unless it hurts your case. (p. 40)
They are subject to a collection of rules known as the law of evidence. Those rules define certain kinds of information that are inadmissible, and which therefore cannot be revealed to the judge or the jurors who are deciding the case. And one of the most famous of those rules is the law of hearsay, which generally prevents the police from telling the judge about information that they have heard from other witnesses—including of course the defendant. (pp. 40-41)
Unfortunately for the defendant, there is a major exception to the hearsay rule in every state and federal court, which does in fact allow the police officer to tell the jury about a statement made by the defendant, or about any portion of his statement, but only if that information is used against the defendant at the request of a prosecutor who is trying to prove the defendant’s guilt. If a prosecutor asks the officer to tell the jury about portions of the defendant’s statement that can be used to help persuade the jury of the accused’s guilt, the defendant’s lawyer cannot object that this is hearsay, and the testimony will be allowed. (p. 41)
Because of these rules of evidence, a prosecutor is allowed to handpick the parts of your statement to the police that might be used against you, reveal those parts to the jury, and keep back the rest. (p. 42)
Research suggests that the innocent are, ironically, sometimes the most likely to be unfairly influenced by deceptive police interrogation tactics, because they tragically assume that somehow “truth and justice will prevail” later even if they falsely admit their guilt. It happens especially in cases when the suspect is young and vulnerable. A thorough analysis of 125 proven false confessions found that 33 percent of the suspects were juveniles at the time of arrest, and at least 43 percent were either mentally disabled or ill. (p. 44)
One analysis of forty-four proven false-confession cases revealed that more than a third of the interrogations lasted six to twelve hours, many lasted between twelve and twenty-four hours, and the average length was more than sixteen hours.59 The longer you speak to police officers, the more likely it is that you will confess to some crime that you did not commit. (p. 46)
If you give the police information that turns out to be inaccurate, and the police mistakenly believe that you were lying to them on purpose, that fact can be devastating to your defense in three different ways.
First, it can help to convince the police that they have the right suspect, which might make them less likely to spend additional time pursuing other possible leads that could help them identify the actual offender.
Second, the prosecutor can present that evidence to the jury, and the judge will tell the jurors that, if they believe that you knew your statement to the police was false when you said it, they are permitted to regard that knowing falsehood as evidence that you are guilty.
Third, and perhaps worst of all, our legal system places no limits on the ability of the police to share the details of their ongoing investigation with the critical witnesses against you. (pp. 50-51)
As incredible as it may sound, even now in the twenty-first century, neither state nor federal agents are obligated under all circumstances to record everything you say to them, and unrecorded conversations are still commonplace around the country.
In one recent investigation of forty confirmed false-confession cases, the police recorded some portion of the interview in only 58 percent of the cases—and in not one of the cases was there a complete recording of the entire interview before the final statement was recorded. (pp. 58-59)
Out of hundreds of innocent people in the United States who were wrongfully convicted and later exonerated by DNA evidence, 76 percent were mistakenly identified by an eyewitness.More than any other factor, eyewitness testimony causes the most wrongful convictions, and confident eyewitnesses—even if mistaken or confused—are notoriously difficult to cross-examine. (pp. 60-61)
The dubious “expert” witness, just like the mistaken eyewitness, is another distressingly common way in which the police can discover “evidence” to prove that what you told them was false, even if in fact it was true. (p. 61)
Expert firearms analysts from the FBI testified around the country at trials in which they falsely claimed that they could actually identify whether two gun shells had been taken from the same box, and such testimony resulted in numerous convictions around the nation—until the FBI itself admitted, to its great embarrassment, that there was never any scientific validity to this testimony. (p. 61)
That’s right: after the police found that Ford had alibi witnesses who could verify that he was with them at the apparent time of the killing (which is not unusual for an innocent suspect), their “expert” changed his opinion about the likely time of the death. (p. 73)
Every American over the age of five knows a little bit about the Fifth Amendment to the United States Constitution, and the right of every citizen to not be a witness against himself. (p. 86)
In the aftermath of the Salinas case, therefore, criminal suspects now have—for the first time in American history—a new reason why they must not simply remain mute when they are questioned by the police. If you simply say nothing in the face of police questions, unless you are in custody and under arrest, your silence can and will be used against you as evidence of your supposed guilt in a court of law. To avoid that possibility, you must speak up and specifically tell the police about your desire to assert your constitutional rights. (p. 96)
You Must Explicitly Invoke Your Constitutional Rights
First, you need to make sure that your silence is not held against you as evidence of your guilt if the case later goes to trial. Second, you also need to make sure that you get the police to stop questioning you and leave you alone. You need to bring the interrogation to an end, once and for all, and as quickly as possible. But that will not happen unless you say something. (p. 98)
The agent, who worked for a certain federal agency that I will not name, dropped by my client’s house a couple times, always without warning. My client asked for my advice. I told her to send the agent a letter, explaining that she would be happy to consider answering any questions he might have, but only if he would extend her the minimal courtesy of putting those questions in writing, so that she could also put her answers in writing. (p. 105)
It would enable this woman to think carefully about her answers, possibly obtain the assistance of a lawyer, and check her records to make sure that her answers were accurate. It would also eliminate the very terrible danger, discussed at great length in this book, that the agent might later unintentionally misquote her in ways that could make her statements sound more damaging than they really were. (pp. 105-106)
But that was the end of the investigation, as I knew it would be. When the federal agent was advised that my client would not talk to him unless he was willing to put his questions in writing, he angrily replied that he refused to interview anybody that way, and she has not heard from him in months. (p. 106)
Don’t plead the Fifth
The Department of Justice has now served official notice that it believes the courts should allow a prosecutor to argue under any circumstances that your willingness to assert the Fifth Amendment privilege can and should be used against you as evidence of your guilt. (pp. 109-110)
Even if you take care to say, “I wish to invoke my right under the Fifth Amendment against self-incrimination,” you have no guarantee that the agent will not testify months later at your trial that “he said he would not talk because the truth would incriminate him.” (p. 113)
Instead mention your Sixth Amendment right to a lawyer, and tell the police that you want a lawyer. Is that honest? Not entirely, because it sounds like you are implying that you might be willing to talk to them after a lawyer shows up, and of course that is not true, and your lawyer will not agree to that. But a little dishonesty is a small price to pay to defend your freedom and your constitutional rights, especially when dealing with police officers who will lie to you until the sun goes down. (pp. 113-114)
By invoking your Sixth Amendment right, if you are charged with a crime and the prosecutor wants to use your invocation of that right against you, you will probably be able to keep that information away from the jury under the law, because the federal courts (at least so far) generally agree that you cannot tell the jury that the defendant has asserted the Sixth Amendment right to a lawyer, or to use that as evidence against the defendant. (p. 114)
You need to say, with no adverbs, in only four words, “I want a lawyer.” And then you need to say it again, and again, until the police finally give up and realize they are dealing with someone who knows how our legal system really works. (p. 120)