You Have the Right to Remain Innocent

by James J. Duane

[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)

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.

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?

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.

One recent investigation revealed that the United States Congress was passing a new criminal law once a week on average.7

Because of laws like these and countless others, legal experts now agree that just about everybody in the nation, whether they know it or not, is guilty of numerous felonies for which they could be prosecuted. 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.

The next time some police officer or government agent asks you whether you would be willing to answer a few questions about where you have been and what you have been doing, you must respectfully but very firmly decline.

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,

They will lie to you about what crime they are actually investigating, whether they regard you as a suspect, whether they plan to prosecute you, what evidence they have against you, whether your answers may help you, whether your statements are off the record, and whether the other witnesses have agreed to talk to them—even about what those witnesses have or have not said.37 That is just a partial list. 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.

If the police “help you out” by helping you get the death penalty, you might fairly wonder: What is the worse alternative if I don’t agree to talk?

The bottom line is clear. 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. This ought to be a national scandal and not swept under the rug the way that it is.

nothing you tell the police will be of any value to your lawyer at the trial.

“anything you say can be used against you in a court of law.” The problem with that warning, as most criminal suspects unfortunately do not understand, is that it is literally true. What you tell the police, with extremely rare exceptions, will never be revealed to the jury at your trial unless it is offered by the prosecutor and is used to help get you convicted.

If you talk to the police for three hours and give them three hundred details that would all tend to support your defense, and you only mention three details that might help get you convicted, the prosecutor has every right under the law to ask the officers to only tell the jury about the three details that seem to implicate you in the crime.

It is a documented fact, and extensive psychological research has confirmed how these false confessions can be linked to certain commonly used police interrogation techniques.52 Indeed, 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.

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.

And the danger that the victim will make a mistake is especially great in a case like this one, where the victim was a white woman and the defendant a black man, because all of us have greater difficulty in making reliable cross racial identifications.)

Any time you agree to talk to the police or government investigators, you are rolling the dice and taking a terrible chance with your life.

you must speak up and specifically tell the police about your desire to assert your constitutional rights.

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 Must Not Tell a Lie

you must speak with a great deal of precision when you are explaining yourself to the police,

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.

Anybody who understands what goes on during a police interrogation asks for a lawyer and shuts up.1

Instead mention your Sixth Amendment right to a lawyer, and tell the police that you want a lawyer.

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.