You Have the Right to Remain Innocent

by James J. Duane

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?

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.

overcriminalization,

it is no longer possible to avoid becoming a criminal by relying on one’s conscience and general understanding of the law.”

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 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.

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. So even if your lawyer asks the police officer to tell the jury the “helpful things” you told the police to support your claim of innocence, the prosecutor will object, and the judge will usually refuse to allow the officer to answer the question.

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.

Miranda warnings, written by the Supreme Court a long time ago, which require arresting officers to advise the suspect that, among other things, “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.

Natasha Ryan, then fourteen years old, who had been missing for nearly five years at the time of his murder trial. The prosecution’s case was based almost entirely on his recorded confession to the crime, because there was no other substantial evidence of his guilt, but that was enough to persuade the prosecution to go ahead with the case. Late in the trial, however, Fraser received an incredibly lucky break when it was suddenly discovered that Ryan—the woman he’d confessed to having murdered—was discovered alive and well! She had been living in her boyfriend’s house for years. The charge was dismissed and the case was thrown out of court.57 Had Ryan not been discovered during the trial, Fraser almost certainly would have been convicted after he confessed to murdering a woman who wasn’t even dead.

“I didn’t know any way out of that, except to tell them what they wanted to hear, and then get a lawyer to prove my innocence. . . . You’ve never been in a situation so intense, and you’re naive about your rights. You don’t know what [someone] will say to get out of that situation.”58

Ronald Cotton.62 He spent more than ten years in a North Carolina prison for a pair of rapes that he did not commit, and he would have been there for the rest of his life if he had not been ultimately exonerated by DNA evidence that proved his innocence and established the identity of the guilty man. When he first learned that the police were looking for him, he foolishly did what most innocent people do under those circumstances: he went down to the police station to meet with them, answer their questions, and attempt to clear things up. He did not take the time to kiss his mother and girlfriend goodbye, because he never imagined he wouldn’t be alone with them again for more than a decade. When he was told by the officers about the date of the sexual assaults, he helpfully volunteered some details about his whereabouts, what he had been doing that night, and who he was with. He even invited the police to check with those individuals to verify his story. Unfortunately for Cotton, he had gotten his dates mixed up, and he’d actually told the police about where he was on another night. As a result, when the police checked with his supposed “alibi witnesses,” they were not able to confirm Cotton’s story but in fact contradicted it. What he thought would be helpful evidence for his defense had now only made things worse, further arousing the suspicions of the police. After they came back to confront Cotton with the seeming holes in his story, he realized that he had made an inn...

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.

Perhaps the greatest risk of all from giving the police inaccurate and false information is the possibility that the government may decide to prosecute you for the separate criminal offense of lying to the government!

Why would Earl volunteer the fact that he once had a girlfriend in the same neighborhood? If he had taken only a second to think about it, he would have immediately realized that there was no possibility that this information would help prove his innocence,

The last time Morton ever saw his wife alive, she was sleeping in their bed when he left for work. Several hours later, while she was home alone with their young son, someone broke into the house and brutally murdered her. There was also evidence that she had been sexually assaulted. But there was never any eyewitness or physical evidence to suggest that Morton had committed the crime. In fact, their son—who saw the murder—later told the police that the killer was not his father, but a man he called “a monster.” The police and the prosecutor never gave that information to Morton or his lawyers.

For example, Morton admitted to the police that the night before the murder, he and his wife had been in a little argument.84 It had been his birthday, and he was disappointed that she had fallen asleep before they could engage in some romantic intimacy. In fact, he had actually left her a handwritten note in their bathroom before he left for work the next morning, expressing his disappointment with that fact. In the opinion of the prosecutor, and then the jury, and then the Texas Supreme Court, this evidence was the most important evidence against Morton, because it showed his supposed motive to commit the crime. There were many other details that Morton

Ford should have sent word to the police in writing, perhaps through an attorney, that he knew about their interest in meeting with him, but that he would very respectfully decline to answer any of their questions.

suspiciously nervous or calm.) But he did not stop there. He also told police that, by an unfortunate coincidence, he had been at the jewelry shop, apparently just a few hours before the shooting, and had asked the merchant if he had any work for Ford to do. When the merchant said he had no work to offer, Ford asked if he could borrow some money in advance. But the merchant declined that request as well. Ford told the police that he then left the store. There was no other witness to that meeting, and no way the police could have learned those details from any other source if Ford had not told them himself. But armed with this information, the police and the prosecutor concluded that Ford had both the motive and the opportunity to commit the crime.

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 Explicitly Invoke Your Constitutional Rights

You Must Not Tell a Lie

Anybody who understands what goes on during a police interrogation asks for a lawyer and shuts up.1 —Professor Franklin E. Zimring, UC Berkeley School of Law, 2015

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.