Episode 004 of Inside the Law features author and Regent University School of Law Professor, James Duane.
Professor Duane is the author of You Have the Right to Remain Innocent: What Police Officers Tell Their Children About the Fifth Amendment. The book outlines 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.
(from Amazon's summary of the book): Professor Duane shares "a vigorous defense of every citizen’s constitutionally protected right to avoid self-incrimination. Getting a lawyer is not only the best policy ... it’s also the advice law-enforcement professionals give their own kids.
Using actual case histories of innocent men and women exonerated after decades in prison because of information they voluntarily gave to police, Professor Duane demonstrates the critical importance of a constitutional right not well or widely understood by the average American. Reflecting the most recent attitudes of the Supreme Court, Professor Duane argues that it is now even easier for police to use your own words against you."
Check out Professor Duane's Op-Ed in The Los Angelos Times, "Innocent? Don't talk to the police."
And Professor Duane's "What Every Lawyer Needs to Know About the Fifth Amendment" (PDF).
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TRANSCRIPT: I was invited to give you a taste of a typical law school classroom experience here today and I thought I would take advantage of this opportunity to do something that's been on my mind for a while to stand up and it probably say God bless America God bless the Bill of Rights and thank God for the Fifth Amendment I'm not ashamed to say I'm proud of the Fifth Amendment and I'm not I'm proud to admit on camera and on the internet that I will never talk to any police officer under any circumstances Welcome to another episode of Inside the Law. My name is Mark Gavagan. Today’s episode is an excerpt from a lecture called Don’t Talk to the Police, given by Regent University School of Law Professor James Duane. He literally wrote the book on these issues, called You Have the Right to Remain Innocent. And we have a link to that book on our website insidethelaw.co That’s inside the law dot co. The Fifth Amendment to the United States Constitution provides no person shall be compelled in any criminal case to be a witness against himself and this one fortune amendment has gotten a bad rap in recent times much of it tragically unnecessarily through as you may have heard the headlines. Let me read you something that was taken out of the newspaper this morning and I want you listen to it closely I'm giving you heads up I'm warning you in advance which is not fair to you not fair to me but I'm giving you head I'm giving you a warning that I'll be quizzing you on this in just a few minutes this will test you have to do the legal study and legal practice listen closely won't take long last night agents of the Norfolk Police Department found three victims of an apparent murder dead in an apartment in the east oceanview area the apparent victims of a gangland style slaying and possibly the victims of gang related violence the police are investigating this as a possible murder and suicide but right now suspect that the three were all killed by the same individual No suspects have yet been identified in the slaying but veteran police detective George group has confirmed that police are following up on evidence pointing to the possible involvement. An off duty naval officer as the perpetrator the bodies which were found by the apartment manager at about eight o'clock in the morning appear to have been slain sometime earlier in the same evening probably sometime between midnight and two o'clock in the morning. That's it those are all the facts all I ask you to remember and it won't be for very long either Let's see how well you do I'll be quizzing you just a few minutes Now here's the easiest question you'll ever get from a client it all the days of your life question hey the police are here they want to talk to me what should I do well I could give you my answer to that question in case you haven't already guessed it but what do we go to a real expert just as Robert Jackson a prosecutor's prosecutor like me he began his private practice in Buffalo New York of years before I did and after that he served as general counsel for the Bureau of Internal Revenue the U.S. Department of Treasury the Security Exchange Commission assistant U.S. attorney general for the text of Asian later the solicitor general and the attorney general of the United States and then the chief U.S. prosecutor for the Nuremberg trials that's an impressive resume years later when he was a justice on the Supreme Court Justice Jackson stated quote any lawyer worth his salt today would say his or her will tell the suspect his client in no uncertain terms to make no statement to the police under any circumstances there's the title of my talk I'm here to explain you the surprising and somewhat counterintuitive and in Italy unlikely reasons why Justice Jackson was right. I'm reminded of this because I'm amazed we're all amazed by the frequency with which we see newspaper articles coming out all the time from people who really ought to know better who say well I'll talk to the police I mean after all I'm I'm a senator I'm a I'm O.J. Simpson I'm I mean experience highly polished individual I've got a lot of experience with public relations even criminal defense attorneys there was a local news story here in the Virginia Pilot just a couple of months ago of a nick experience criminal defense lawyer who ended up getting convicted of criminal assault because he talked to the police he was accused of having assaulted another attorney in the hallway there were no other witnesses to this a woman said that he grabbed her by the throat during an argument over a case he denied it at trial it was his. Word against hers he said I did not even touch or. But unfortunately for him when the police had approached him earlier and said Would you be willing answer some questions he said Sure why not I'm an attorney I'm a criminal defense attorney I'm savvy I'm sophisticated I've got oratorical prahus I'm accustomed to dealing with the police by all means and then there was a conversation that was not recorded when the case went to trial it was no longer his word against hers because when he testified at trial I never touched her the officer took to the stand and testified Well when I met with him he said he did put his hand on her throat but just as a joke then he had to take the stand again to say that's not true I never said that I never admitted you that I now it's his word against two people whose telling the truth will never know for sure but he was found guilty. Now here's part of the problem the heart of the problem as just as briar on the U.S. Supreme Court explained in one thousand nine hundred eight is quote the complexity of modern federal criminal law kind of fight in several thousand sections of the United States Code and the virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law make it difficult for anyone to know in advance just when a particular statement might later appear to a prosecutor to be relevant to some investigation. One expert on criminal law recently noted that estimates of the current size of the body of federal criminal law vary although it has been reported that the Congressional Research Service can no longer even count the current number of federal crimes that's right even the federal government at last count these laws are still over all fifty pages of the U.S. Code accompanying roughly twenty seven thousand pages worse yet these statutes often incorporate by reference to the provisions of administrative regulations estimates of how many such regulations exist are even less well settled although the A.B.A. thinks there may be nearly ten thousand Here's one of those ten thousand federal criminal statutes on the books that you probably never heard about it's called the Legacy act sixteen U.S.C. Section thirty three seventy says it's a federal offense for any person to import export transport sell receive acquire or purchase any fish or wire life or plant taken possessed transported or sold in the violation of any law treaty or read. Relation of the United States or any Indian tribal law or any state or any foreign law people have been convicted in federal court for violating the stage because they brought back a bony fish from Honduras not knowing that one during law not American but Hundred law forbade the possession of the bony fish people have been convicted of the US law because they were found to possession of what's called a short lobster a lot of this under a certain size some states forbid you from possessing a lobster it was under a certain length it doesn't matter if he's dead or alive it doesn't matter if you killed it or if you died of natural causes it doesn't matter if you acted in self-defense did you know that. There's you know it can be a federal offense to be in possession of a lobster administration if you did not know that there's the problem. And that's only one of ten thousand different ways you know the government gets pretty upset when people like me instruct the client people like me and Justice Jackson don't talk to the police don't answer any questions but you know they can't have it both ways you people you've got ten thousand different ways of convicting us good for you but you know with the comfort of the sweet with the good comes the bad that's ten thousand different ways my client might unknowingly implicate himself in some sort of criminal transaction one of the reasons I decided to give this talk I recently received a phone call from a former student of my original school graduate who may be watching this online we're putting it on the Internet and he told me hey I've been approached by the Internal Revenue Service they want to ask me a couple of questions they ask if I would be willing to but they say that I'm not a suspect and I know I my heart I don't think I've done anything wrong in violation of the Internal Revenue Service provisions Lord have mercy. There's no man on earth those knows no woman in this country who can honestly say with complete confidence I know I've never violated any provision of the Internal Revenue Code he said but but they they say I'm not a suspect and I know I've done nothing wrong it's OK if I talk to him I said no no you tell them you will not talk to them without immunity. I explain to him why that was true and they never you never heard from them again. Ok why you should never talk to the police let me just spell it out for you let me make it plain to all of you these are the top ten reasons I don't actually like you I'd only have ten I don't time for ten but I've got time for eight and they'll be close enough. Number one and this really ought to be good enough contrary to what you would laymen instinctively naturally suppose it can not help. There is no way it can help you plenty of folks think that it can and they're always wrong you cannot talk your way out of getting arrested officer broke you've interviewed thousands of criminal suspects have you ever how many times in your experience have you approached someone asked if you could ask him questions because prior to the interview you had some evidence pointing to his possible guilt and because of the extraordinary persuasiveness and eloquence with which he articulated his innocence you said oh sorry never mind bank all my bad I won't and you he talked about arresting you. Never never it never happens I've often asked other criminal defense attorneys and all of your experience have you ever once had a case where you look back and hides and said Thank God my client talk to the police they laugh at me they left me they say you got to be kidding me you cannot help you you can't talk your way of getting arrested and contrary to what you might suppose if you never said to the rules of evidence what you tell the police even if it's exculpatory cannot be used to help you at trial because it's what we call hearsay under the rules of evidence specifically Rule eight zero one D two A If you want to look it up everything you tell the police as the saying goes can and will be used against you but it cannot be used for you from time to time I've known attorneys who try to call to the stand a police officer and say Officer would you tell the jury what my client told you because what my client told him is actually good for my case if you try going to trial the prosecutor will object that is hearsay and the judge will agree the police will not be allowed at your request to tell the jury what your client told him no matter how good it may be for your case it can not help and that ought to be good enough reason that ought to be reason enough to keep your mouth shut but if you're not persuaded any good talk about a couple of others Number two obviously one of the most obvious if your client is guilty as many of them are but even if he's not even if he's innocent he may well admit his guilt with no benefit in return now of course many of you are thinking to yourself What's so wrong about that I mean should guilty people be confessing confessions good for the soul it's good for law enforcement it's good for the prisons Yes yes sure all those things are true and like the rest of you if I or anyone close to be is ever the victim of some sort of a serious crime I hope they get the right guy I hope they convict him I hope they put him away we all feel that way but what's the rush friends you don't get to admit your guilt the first time they come by to meet with you in Federal Court eighty percent eighty six percent of all defenders plead guilty at some point for trial if your client is guilty and really ought to punish and really got to have a go through some sort of a cleansing act of contrition fess up and admit his guilt they'll be plenty of time to do that they almost always do no need to rush no need to tell the police something wait and see if we perhaps your client can work out some sort and arrangement where maybe he'll make some sort of compensation to the alleged victim or maybe he'll be able to get some sort of a discount in a sentence he'll be able to treat will be treated fairly then like everybody else who had the benefit of a good lawyer who said please do not talk to the police I don't forget by the way even if even if your client only had bitter things. That the police already knew you might think well what harm can a deal he says he wants to talk to the police all you want to do is admit that he was there but the cops know that he was there all right go and tell him Well how going to hurt it might hurt if the police officer becomes transferred to Minnesota or deceased or injured or comatose or cannot be located by the time of trial the case will be dismissed if there's no confession but your client a bitch to things that's confession is freely admissible against him and can be a basis for getting him convicted all by himself so the Larry Craig can explain all this to you. The Innocence Project of the United States has confirmed that in more than twenty five percent of all the cases where an innocent man was convicted and and then later released from prison after he was exonerated by D.N.A. evidence and more than a quarter of those cases these innocent people people we know. To be innocent made incriminating statements to live it out right confessions are pled guilty how do they do that they'll tell us all about it I trust Here's a couple of famous examples you can just ask them you don't have to take my word for it they're on the left was Eddie Joe Lloyd he was convicted in one thousand nine hundred four of the murder of a sixteen year old girl in Detroit after he wrote to police with suggestions on how to solve various recent crimes during several interviews police Fed details of the crime to Mr Lloyd who was mentally ill and they lied to him and convinced that this mentally ill man ended by confessing he might help them smoke out the real killer he later signed a confession it gave a tape recorded statement the jury delivered in less than one hour before convicting him on the basis of this confession there was no other subject eleventh against him the judge said I'd hang you if I could but the death penalty was not available in Michigan at the time but after almost two decades in prison he was released after D.N.A. evidence proved that this man was innocent and it falls to commit to confess to a crime that he did not commit on the right as role Washington who was released from prison just a few years ago here in Virginia after spending eighteen years behind bars for after being committed of a rape in a murder that we now know he did not commit after having been exonerated by D.N.A. evidence but the this man Mr Washington who was in fact confirmed to be mentally retarded was able to confess to several crimes at the request of the police some of which we know he could not have committed. That's the problem. Some of you are thinking yourself and none of this concerns me because I'm not guilty of anything and I never will be and I will never represent people who do OK. Let's talk to you people you innocent folks those of you who have never committed a crime and ever will in one of your clients will either know and you wouldn't go out with a girl who did fine you better not talk to the police either OK because number three will put the guilty behind us forget about them let's talk about innocent people number three even if your client is innocent and he denies his guilt and almost entirely tells the truth odds are good he will easily get carried away and tell some little lie or make some little mistake that will him this is human nature he gets in there it's a stressful situation imagine a perfectly innocent client the police say he's been guilty of a murder he's totally innocent as innocent as any one of us. So he goes in there he meets with the police he says I don't know what you're talking about I was nowhere near there I I I didn't kill him I've never killed anybody I don't have a gun I've never had a gun I've never touched again in my life I was nowhere near Virginia Beach that they let night and that last line was a lie he went over the top he was getting carried away he got into this group he started seeing all kinds of things almost all of them true that he knew would tend exculpate himself they get carried away just said one thing that wasn't true and unfortunately for him they can prove that it wasn't true he may be convicted on that basis alone but let's say you're let's say all that's not a problem tell my client only to tell the truth I have met with him I know he won't lie to the police he won't make any mistakes OK that's still no guarantee you won't be getting into trouble because even if your client is innocent and only tells the truth and doesn't say anything that is false now already in the Mind you were pretty well nigh into fantasy land the odds of this being anybody being with a pull this off are really quite slim no matter how innocent they may be but just to say let's pretend let's assume we give the police nothing but the truth and he is totally innocent he will always give the police some information that can be used to help convict him always. For example suppose you tell this to the police here's what your clientele to the police in his denial of jail I don't know what you're talking about I would I didn't kill JONES I don't know who did I was in anywhere near that place I don't have a gun I've never owned a gun in my life I don't even know how to use a gun yeah sure I know like the guy who did I wouldn't kill him I've never heard anybody in my life and I would never do such a thing let's suppose every word of it is true one hundred percent is true what will the jury hear a trial officer broke Was there anything about this in your interrogation your interview with the suspect that made you concerned that he might be the white man yes there was he confessed to me that he never liked the guy and then the prosecutor put that up in big letters and also the latest during the jury it's pretty clear that we've got the ray guy here we've proven that he was in Virginia beach that night that's opportunity remember officer broke at MIT is that it for extended question he was finally able to get to defend it to admit that he never liked the guy there's your motive motive Plus opportunity when bam please. But juries eat it up and innocent people get convicted of this way sometimes how often hopefully not too often but we know what happens the United States Supreme Court don't take my word for this in Ohio versus right of the Supreme Court of the United States said quote. One of the Fifth Amendments basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances truthful responses of an innocent witness as well as those of a wrongdoer may provide the government with incriminating evidence from the speakers all mousy it's not just some criminal defense attorney telling you this even the Supreme Court says I'm right in the fact under the facts of that case by the way in Ohio versus Ryan or a child tragically was died apparently the result of shaken baby syndrome question was who had shaken this baby to death and one of the possible suspects was a babysitter who had spent some time with the child that week the babysitter story was I don't know what you're talking about I did not kill the child I don't see I did not see it happen I don't know who shot the baby it was never me I never did anything of any violent nature to the child the Ohio State Court said well you got a Fifth Amendment privilege you would by your own admission told the investigators that you've done nothing wrong that you were not involved so obviously your answers can't incriminate you the United States Supreme Court reversed and said well that's not true even though the baby sitter denies shaking the child the nice seeing the child die denying No he denies knowing how the child died. This babysitter by her own admission apparently was being was that the government wanted to ask whether the babysitter might have ben with the child at some point that we during the week prior to the death and that answer although But by itself not sufficient to convict anybody could help convict her that she's got a Fifth Amendment right to refuse to answer the question the court held. Because it could be used to help convict. All men versus United States or the Supreme Court said more than fifty years ago eerily prophetic they said to many Americans even those who should be better advised view this privilege as a shelter for wrong doers they too readily assume that those who invoke it are either guilty of crime or commit perjury and claim the privilege that's not true and never has been. But it gets worse coming to us again Number five even if your client is innocent and only tells the truth and does not tell the police anything incriminating which by the way is almost impossible to pull this off I mean imagine talking to police for two three four hours and somebody like him can somehow manage to extract from you something that could be used to help with convict you. Ordinary I don't think anybody's pulled it off but even if you could pull it off there's still a grave chance that his answers can and will be used to crucify you in a court of law if the police no offense don't recall his testimony with one hundred percent accuracy all right now this brings us back to that pop quiz I warned you about I told you earlier remember it's only been a few minutes and you were not all night and you were the subject of physical Darius you were in the relaxed setting of a classroom here you were given a heads up advance notice that you would be quizzed on this. Question we'll start with a couple of easy ones. Remember that article I read you about that how many people did the police find shot to death last night at that ocean view a part of that I told you about A one B two C. Three D. Four who says A. B.. C.. Get this a get there with a camera shows give move the camera look how many hands We've got there for see OK. You're all wrong everybody you raise their hand everybody rakes their hand you are the kind of people who should never talk to the police under any circumstance or long as you well. Why is he not the right answer by the way if you know raise your hand yes. Excellent I didn't say anybody was shot. I didn't say gun bullet shooting firearms didn't use any of those words but I don't blame you if you thought that I did this is the way the human mind works we hear things we fill in details I said gangland style slaying that may or may not apply something but it doesn't mean that anybody was shot and that's the problem you see even if your client is innocent and only tells the truth it doesn't tell them anything incriminating and his statement is videotaped his answers can be used to crucify him you might say wait how can that happen I insisted in my insistence I called the police and I said look I want to talk to my client you can talk to him but only if you get it yet the whole thing I don't want there to be any debate between the two of you over what happened OK we'll videotape the whole thing if the police don't recall the questions with one hundred percent accuracy he'll be convicted on that statement alone for example supposedly and go to the police they say we're investigating a possible murder a shooting and the guy says quote I don't know who killed Jones officer broke with all due respect I wasn't me I have never touched a fired a gun in my life how can that help incriminate this man how could that possibly be used against this man to help convict him you would think it's inconceivable but it's as easy as pie all the officer has to do is read this table to the jury and then the prosecutor's office or group was there I think about that state of the confused you were surprise your guest there was he says in a moment of sinister high drama in the courtroom and what was that and then I was a return of the jurors and he says I never said anything about a shooting I said we were investigating a murder he was the one who brought up a gun. Then you turned your client your client says that's not true that's not true I remember he was the one or one of the cops I was with them for three hours one of them in the car said something about they said they had a witness that I was the shooter OK I'll put you on the stand and then the client testified on the they did tell me shooting that I mentioned they mentioned before I said anything about a gun they brought it up first and then the police said that's not true and now it's your word against theirs or what you're gambling with your client's life and police officers can very easily make a mistake like that just as so many of you did just a few minutes ago about whether you recall having heard me say something about somebody actually being shot. Police big mistake. Innocently inadvertently unintentionally any statement no matter how exculpatory it may seem on its face could be used to crucify you all by itself if the police are either willing to lie not likely or if they just have a innocent Miss recollection of the details as to what they did and did not tell you before you told them what you said all of these by the way all of these problems disappear if you take just as Jackson's advice and say thank you very much officer but no thanks. How about this one and here we go now here's the most surprising of all I've saved the most surprising one for a last Let's suppose you got the following scenario your client thinking about talking to the police he acts like he says I've got nothing to hide they think that I killed somebody in Virginia Beach last night while we're with and this is when this when your client tells you in confidence I don't know who robbed that store it wasn't me in fact I've got a pretty good alibi I wasn't even in Virginia beach that night last night I was four hours away visiting my mother in the Outer Banks Unfortunately no I did not pay for gas with a credit card I used to cash in so I've got no witnesses that can prove I was there except my word of course Mama for what that's worth which is nothing. But good so your client says that so the police want to talk to me and I want to see cooperate so what I'll do is I'll tell them that I was in the Outer Banks last night now there's nothing on its face incriminating about any of that let's assume by the way that you believe with all your doubt you've given your client a polygraph exam you've known him for years you were going to the same Bible study for thirty years you know beyond a shadow of a doubt that he telling you the truth. And he's not admitting anything he's not admitting motive is not admitting opportunities not admitting that he was there how on earth could this come back to haunt us how on earth could this come back to be used against us be honest raise your hand if you really think the answer that question is I can't see how it could possibly be used against me. You're afraid of calling You're right I won't call you well you're wrong you're dead wrong you're always wrong everything you say every time you talk to the police you'll regret it. You see the problem is here it is this is the last point I think it's almost with even if your client is innocent and only tells the truth and doesn't tell the police anything incriminating and the entire interview questions. Answers are it are videotape your Even his truthful answers can be helped to use crucify even an innocent man if the police through no fault of theirs end up in the possession of any evidence even mistaken and unreliable evidence that anything your client told them was false even if in fact it was true again going back to this example from a moment ago let's suppose I tell I go and I meet with the police I get that I've got nothing to hide I tell them I was in the Outer Banks last night officer how can it be used to convict me by itself it cannot it cannot help it all by itself but what if I later find out to my horror after I put my cards on the table that they've got a witness a girl that I went to high school with and unappeasable witness we've never been enemies she had no reason to lie she swears she thinks she saw me in Virginia Beach last night a couple of blocks away from that store about an hour before it was robbed now her testimony by itself isn't going to help the prosecutor help if she's all they've got I'll get this case thrown out before trial but if like an idiot I talked to the police and I told them the truth I told them I was in the Outer Banks and now along the whole tragically it turns out they've got a witness a false mistaken confused but sincere incredible witness who could testify that I was your Virginia Beach now they're likely to get a conviction because what they'll do I just turn this cop and this woman into the government's star witness they'll put her hell the put officer on to testify about how my client lied to him about being in the Outer Banks and then they'll put on this girl this girl otherwise would have not even help to the case at all who will testify No that's not true that was a lie I saw Mr doing's client here in Virginia an hour before the robbery not so far from the store by herself she would not have helped the government in any significant way but what I have just done you see is given the other part of the puzzle and now I'm doing just ask them I close I close with this example here we have a couple of recent celebrity examples of why it is that even people who emit nothing always in a denying it I mean sorry they always in the end up regretting it on the left we have Martha Stewart she was the victim the subject of an extensive govern investigation was looking into the possibility that she was guilty of that violations of certain federal laws securities laws fraud kinds of things they couldn't pin it on her but they were able to get a conviction because she denied it talking to the police and leading some of the shareholders she said no it's not true I was not guilty so they charged with lying to federal investigators and they got a conviction and she was sent to five months in prison Marion Jones on the right side another person who would still be out today if you had always taken the advice of them giving you now she was asked if she had ever used steroids a controlled substance and instead of taking the Fifth she said No I never took steroids when I won those Olympic gold medals later on it turned out that she was lying she worked out a bill deals you pled guilty she admitted that she was lying and she over her stand was tearful objection even though she has two young children who just recently sentenced to prison for six months the guy who sold her the steroids the pusher he got only four months but she got six months because she lied to the police and said that she didn't do it you see the problem Michael Vick who originally pled guilty as you know to these charges with respect to the operation of this dog combat sort of operation to dissolve at sentencing like many of the criminal defendants even though eventually pled guilty at sentencing one of the things that one of the reasons his sentence was a little harder than it might have otherwise been the judge said was because when he initially met with the police he lied to them and said I didn't do anything I didn't do it I don't we get talking about. Even guilty people but not only guilty people always end up regretting talking to the police. So my advice to you Justice Jackson was right any sane competent lawyer in his right mind will always tell every client under all circumstances I don't care if you're innocent I don't care if it's the truth it is the truth great will tell the jury all about of They'll be time enough to put our cards on the table but before we get there I haven't seen yet what the police got they may have mistakenly confused witnesses who will contradict even the truthful stuff that. You say we have no way to know no way to predict whether the information that you give them even if truthful and reliable will end up on would really spell dispelling our demise so keep your mouth shut don't answer any questions let's take the fifth you'll be glad you did God bless America God bless the bless the Bill of Rights.
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