This article was originally published on Sept. 20, 2016 on Vice.com by Harry Cheadle
James Duane doesn’t think you should ever talk to the police. Not just, “Don’t talk to the police if you’re accused of a crime,” or, “Don’t talk to the police in an interrogation setting”—never talk to the cops, period. If you are found doing something suspicious by an officer (say, breaking into your own house because you locked yourself outside), you are legally obligated to tell the cop your name and what you’re doing at that very moment.
Other than that, Duane says, you should fall back on four short words: “I want a lawyer.”
In 2008, Duane, a professor at Virginia’s Regent Law School, gave a lecture about the risks of talking to police that was filmed and posted to YouTube. It’s since been viewed millions of times, enjoying a new viral boost after the Netflix documentary Making a Murderer spurred interest in false confessions. His argument, which he’s since expanded into a new book called You Have the Right to Remain Innocent, is that even if you haven’t committed a crime, it’s dangerous to tell the police any information. You might make mistakes when explaining where you were at the time of a crime that the police interpret as lies; the officer talking to you could misremember what you say much later; you may be tricked into saying the wrong things by cops under no obligation to tell you the truth; and your statements to police could, in combination with faulty eyewitness accounts, shoddy “expert” testimony, and sheer bad luck, lead to you being convicted of a serious crime.
Duane’s book details several outrageous incidents just like that around the country, clearly showing the many ways the system is stacked against suspects. These include a proliferation of poorly written laws that make nearly anything a potential crime, rules that allow prosecutors to cherry-pick only the most damning parts of police interrogations at trials, and a little-known 2013 Supreme Court ruling allowing prosecutors to tell juries that defendants had invoked the Fifth Amendment—in other words, telling an officer you are making use of your right to remain silent could wind up being used as evidence against you. For that reason, Duane thinks that you shouldn’t even tell the police that you are refusing to talk. Your safest course, he says, is to ask in no uncertain terms for a lawyer, and keep on asking until the police stop talking to you.
Though Duane said in his lecture he would never speak to the police, he has no problem speaking to anyone else, and in advance of his book coming out Tuesday, VICE talked to him about that lousy Supreme Court ruling, ways to reduce false confessions, and why he’s cool with his book helping guilty people go free.
VICE: How did you get into the business of telling people not to talk to the cops?
James Duane: I never planned or anticipated that this was going to become a specialty of mine. I taught a class at my law school in 2008 and decided to talk about the Fifth Amendment. The particular precipitating catalyst that prompted me to talk about that subject was I had seen some things in the paper quoting various individuals—knowledgeable folks, folks who ought to know better—who were basically suggesting, “Well, if somebody takes the Fifth Amendment, I guess that kind of proves that they’re guilty.” Which is monstrously false. I thought, Why don’t I say something about that?That’s what prompted me to do that original recording. When it went viral like that, I started getting phone calls and letters and emails from different people with lots more questions and feedback and many, many invitations to come and speak to different groups of lawyers, judges, law students, and college students—and I said yes to almost every one of them.
I had a lot to learn, too. The thing I didn’t fully understand, because I had been in the business for so long, is how surprising and counterintuitive all of this is to the average guy on the street. I spoke to so many sophisticated audiences, college students, law students, and they said, “This was astonishing, we had no idea, we never heard any of this, we never knew any of this.” And that was what reminded me, it’s important to get this message out to as many people as possible.
In your book, you advise people not to even take the Fifth thanks to a Supreme Court ruling. Could you talk a little about why?
Up until about five years ago, lawyers would give out business cards to their client and say, “Read this to the police,” and it’d say, “At the advice of my attorney I decline to answer on the grounds that it may incriminate me, I’m invoking the Fifth Amendment.” And there wasn’t a lot of soul-searching and agonizing that went into all of this, because as long as the jury never finds out that you took the Fifth, it’s a perfectly sensible solution. But the tide turned three years ago in 2013 with this wretched, abominable decision by the Supreme Court in Salinas v. Texas that changed everything.
In the Salinas case, a young man was interrogated by the police, and when they asked him a bunch of questions that didn’t seem to be very threatening, he took the bait and answered them all. Then all of the sudden, they [asked a question that made it] obvious they wanted information that might expose him to criminal prosecution, and he just got silent. He didn’t say a word. And there’s no doubt that he was exercising his Fifth Amendment privilege, but he didn’t [formally] assert his Fifth Amendment privilege. So the five Republican [appointees] on the Supreme Court said, Because you didn’t tell the police that you were using your Fifth Amendment privilege, your exercise of the privilege, or your decision to remain silent can be used against you as evidence of guilt. Which probably had a dozen Supreme Court justices rolling over in their grave.
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