You Have the Right to Remain Innocent

by James J. Duane

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?

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.

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.

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 arrest 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.

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. Congress has exploited that loophole with ruthless impunity and has passed countless laws that do not require the prosecutor to show that you had any idea that your conduct might be illegal.

The monstrous potential for injustice created by this modern farce has become, quite by accident, the most important reason why the Fifth Amendment is now more precious than ever before. Even in this modern age, there are many ignorant sentimentalists who believe that our government is deserving of our loyal cooperation and support, and that every good patriot with an innocent conscience should be glad to answer any questions from government agents. That is hogwash. Perhaps it was true a century ago—I deeply regret that it is no longer true—but the United States criminal justice system long ago lost any legitimate claim to the loyal cooperation of American citizens. You cannot write tens of thousands of criminal statutes, including many touching upon conduct that is neither immoral nor dangerous, write those laws as broadly as you can imagine, scatter them throughout the thousands of pages of the United States Code—and then expect decent law-abiding, unsuspecting citizens to cooperate with an investigation into whether they may have violated some law they have never even heard about. 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, and to use all sorts of grotesque deceptions if that is what it takes to get you to waive your right to remain silent. The police are well aware that many of us harbor the mistaken assumption that they are even our “friends.” But the truth is that you cannot safely trust a single thing police officers say when they are trying to get you to answer their questions.

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:

If you are being questioned by the police and trying to decide what your next move ought to be, you need to proceed on the assumption that everything you think you know about the investigation is a lie, and that you know absolutely nothing for sure about what is going on outside that room.

In another Massachusetts case, a suspect agreed to let FBI agents record him making statements that were later used against him, even though those agents had given him promises of “immunity”—but those promises were later broken by the agents and by the Department of Justice. The United States Court of Appeals concluded that was not a problem, because a promise of immunity is no good unless it is authorized by an Assistant United States Attorney.

It is possible, although the matter seems debatable, that we could justify all these outrageous forms of deception by the police if there were some way to be sure that all of the people who waive the right to remain silent are guilty. After all, the cynical observer might be tempted to reply, “If we know that they have confessed, that means they are guilty, and so this is just good police work.” But that is far too simplistic, for two reasons. First, not everybody who makes an outright confession is in fact guilty, as I have demonstrated, and some of them will later be proved innocent. Besides, not everyone who is tricked into waiving the right to remain silent is in fact making a “confession” of guilt; many of the suspects in the cases I have described here denied their guilt but simply made a partial admission of some fact that was used to help convict them.

The use of dishonesty and trickery by the police always poses a risk of serious injustice, even if it does not cause an innocent person to confess altogether, and even if it only gets him or her to talk just a little bit. As we will see, there are many different ways that the mere act of talking to the police can get you in a great deal of trouble, even if you do not technically admit your guilt, and it almost does not even matter what you say.

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. Once the case gets to trial, as you know from television, the police and other witnesses are not allowed to share all the information in their possession—not even if they wanted to do so—because 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.

Basically, the police can only used testimony from you that "can be used against you." They can't use anything you say that can help your case.

In other words, talking to the police is at best a no-win situation for someone suspected of committing a crime. 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. Do you think the police officers who falsely promised you that they were somehow offering to “help you” by collecting information to present to the judge will regret their lie after you have been convicted? No chance. They have done it to countless other criminal suspects, and they will do it again. But you can be sure that they have already made sure that no police officers will ever do it to one of their children.

conservative majority of the court now agrees that when a criminal suspect does decide to remain silent, that fact logically supports the conclusion that the suspect must be guilty. Justice Scalia has put the point this way: “If I ask my son whether he saw a movie I had forbidden him to watch, and he remains silent, the import of his silence is clear.”7 Justice Scalia’s assessment of his son’s silence makes perfect sense, but his analogy was nonsense. With all due respect, he simply did not understand the reasons why young men interrogated by their fathers do not face the same perils encountered by innocent suspects who are questioned by a police officer they do not know, as this book has explained. His mistaken intuition is also plainly refuted by a study of innocent prisoners who were convicted of crimes they didn’t commit only to be cleared by DNA evidence, which found that 39 percent of those innocent defendants had decided not to testify at the trial where they were falsely convicted.8 It is absolutely false to suggest that the silence of the accused is important evidence of guilt.

I have no idea how Duane can so admire Scalia, yet recognize the danger and damage his rulings have had on the 5th Amendment.

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.

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. And after Salinas, as we have seen, that means that you cannot simply remain mute in the face of police questioning, but rather must say something to invoke your legal right to refuse to answer their questions. 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. Just a few years ago, the Supreme Court held that a man who sat almost entirely silent for nearly three hours in the face of continuous police questioning had not in fact made a valid assertion or exercise of his right to remain silent.15 According to the Supreme Court, his extended silence was merely ambiguous as to whether perhaps he wanted to talk to the police. The conservatives on the court apparently thought that when a person looks at you without saying a single word while you sit there asking questions for three hours, it is possible that person is still trying to make up his or her mind about whether to speak or not! (It would be fascinating to watch those justices at breakfast with their spouses.) Consequently, the court held, the police were entitled to continue to question that man until they finally wore down his resolve, broke his will, and got him to talk. All because he did not m...

If you are an ordinary American who is not accustomed to expressing yourself in such a clear way, you may easily be tempted to make the terrible mistake of thinking that perhaps you can “just say no” when questioned about something you would rather not discuss. That natural mistake has gotten some people in a great deal of trouble. One criminal suspect was charged with lying to the police when he told them, “I don’t know what you are talking about.” The government later charged and proved that he was lying when he said that, because they were able to convince a jury that he did have some information about what they were asking him about.16 Obviously there is a very fine line between telling the police, “I do not wish to discuss this matter,” and, “I do not know anything about this matter.”

The Department of Justice a couple years ago helped to persuade the Supreme Court that prosecutors should be allowed to tell juries about the fact that a suspect who was not in custody tried to exercise the right to remain silent if the suspect did not tell the police explicitly why. So that means you should tell the police that you wish to exercise your privilege against self-incrimination, right? Wrong. The same year the Supreme Court decided Salinas, the Department of Justice also helped persuade another federal court in another case that it should be lawful and permissible for a prosecutor to argue that anyone who explicitly asserts the right against self-incrimination is also admitting guilt.

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. It is too soon to know whether all of the federal courts will yet go along with that radical suggestion, but at least one circuit of the United States Court of Appeals has already done so, and the grave danger is that others will follow suit. What does this mean for the liberty of ordinary American citizens? The implication is as obvious as it is shocking. In light of the ongoing war now being waged against the Fifth Amendment by the federal courts and the Department of Justice, the precious constitutional privilege against self-incrimination is no less important than in the past, but it has now become “the constitutional privilege that dare not speak its name.”

If you are asked any question by a police officer or a government agent and you realize that it is not in your best interest to answer, you should not mention the Fifth Amendment privilege or tell the police that you wish to exercise your right to avoid incriminating yourself. In this day and age, there is too great a danger that the police and the prosecutor might later persuade the judge to use that statement against you as evidence of your guilt. And if they do, to make matters much worse, you have no guarantee that the FBI agent in your case will not slightly misremember your exact words. 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.” Even if the officer only gets a few words wrong, it only takes a slight rewording of the privilege to make it sound like a confession. So what do you do instead? 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 li...

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.2 And even if you cannot keep it out of the evidence at trial and the jury is allowed to learn what you said to the agent, it will sound far less suspicious if you merely told the officer that you wanted a lawyer present before you agreed to be interviewed.

So here are some of the things that actual criminal suspects have said in real cases, when they were trying in vain to end the interrogation and keep themselves out of trouble: “Maybe I should talk to a lawyer.” “[B]ut, excuse me, if I am right, I can have a lawyer present through all this, right?” “I think I would like to talk to a lawyer.” “What time will I see a lawyer?” “I think I want a lawyer.” “I can’t afford a lawyer but is there anyway [sic] I can get one?” “Could I call my lawyer?” “I think I need a lawyer.” “Do you think I need a lawyer?” Every single one of the above quotations was taken directly from the mouth of a criminal suspect who was trying to ask for a lawyer, but who tragically decided that he might sound more polite and respectful if he did not act too confident about his desire.3 In every one of these cases, the police ignored the suspect’s tentative and mealymouthed expressions of interest in a lawyer, persisted in their questioning, and successfully managed to get him to make some damaging statements (not necessarily a confession) that could be used to help convict him, and the courts concluded that such statements were admissible against the suspect because he had not made a clear and unequivocal request for a lawyer. In dealing with the police, that kind of politeness is a tragic mistake. In many of these cases, the suspect never would have been convicted if he had simply made his request unambiguous—and we will never know for sure how many of th...

There is only one way to avoid this problem. When you ask for a lawyer, do not worry about sounding polite, because that will make you sound unduly tentative or equivocal. Never ask the police officers what their opinion might be. In fact, do not ask any questions when you insist on the presence of a lawyer. Do not even use the words I think or might or maybe. 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.

This may be the most important quote in this book!

Salinas v. Texas, 133 S. Ct. 2174 (2013).

Berghuis v. Thompkins, 560 U.S. 370 (2010).