You Have the Right to Remain Innocent

by James J. Duane

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.

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 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.

The first problem with the police is that they are only human. They cannot know everything.

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 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 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 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.

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. 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.

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.

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.

Yes, you heard that right: even though our legal system permits and encourages the police to lie to you about almost everything while they are talking to you, it is a federal offense—indeed, it is a felony—for you to make a single statement to the police that you know to be false.

The astonishing fact illustrated by this story, which would probably come as a tremendous surprise to almost everyone who is not a lawyer, is the breathtaking ease with which any federal agency—when it has too much time on its hands—can turn almost anyone into a criminal,

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.