You Have the Right to Remain Innocent
© 2016 James Duane
It is perfectly possible for good and innocent people to lose decades of their lives languishing in prison because a stray word ensnared them in the criminal justice machine. Like clothes and hair in a factory setting, both of which must be securely fastened to avoid a nasty accident, words must be guarded in the presence of a police officer or a federal agent — especially the latter. In You Have the Right to Remain Innocent, legal professor and defense attorney James Duane expands a captivating lecture he gave some years ago into a case for keeping mum.
Long gone are the days when an individual’s conscience was a good rule-of-thumb guide to ward one away from criminal behavior. Assaulting people, invading their homes destroying or stealing goods — all these are moral norms that everyone is aware of and can avoid transgressing. Today, though, writes Duane, the US criminal code expands with such rapidity that not even defense attorneys who are paid to stay conversant with it can keep pace — in part because not all criminal infractions are contained within the criminal code. Many are the spawn of regulatory agencies, who instead of merely fining citizens for running afoul of a policy they had no idea even existed, tar them with the same brush as a rapist or bank robber: criminal. (Hence the title of a book edited in 2004 by Gene Healy: Go Directly to Jail: the Criminalization of Everything)
Innocent people can be hooked and booked for legitimate offenses they had no association with, only because they were too eager to share information with investigating officials who use every tidbit they can to try and fill in the blanks of a crime. Duane cites many examples: , but in one instance a man who was brought in denied being on a given street at a specified time. Of course, he added, he had a girlfriend on that street previously, but he wasn’t OVER there. That little detail, unsolicited and useless for him to share with the police, was used as part of case to damn him. If a person attempting to remember facts makes a mistake, innocent hiccoughs of memory will be spun as willful deceit. Police interviewers may also unknowingly manipulate innocent people into confessing by strongly implying that they’re doomed anyway, but a confession will ease the consequences. Detectives and judges can be perfectly conscientious — utterly moral, veritable knights in shining Armani suits. — and still make mistakes. Even if a case is appealed, someone who is drawn into the system will lose years of their lives and considerable money.
Unfortunately, minimizing one’s profile isn’t as simple as pleading the Fifth, because the Gang of Nine, in its infinite wisdom, has decreed that overtly invoking the Fifth Amendment can be used as evidence of guilt. (Another marvelous bit of judicial wisdom: recently a court decreed that cops breaking and entering to execute a warrant can shoot the house dog if it ‘barks or moves’.) In response, Duane advises readers rely on other parts of the Bill of Rights: by all means, don’t volunteer information and decline to answer questions beyond one’s name — but employing the Sixth amendment, the right to an attorney, is a more reliable shield against a black-robed inquisition.
This briefing in avoiding justice jihads is short, to the point, amply referenced, and.well organized I watched his lecture in 2010 and have since viewed it several times, along with its companion talk by a seasoned detective, who shares the various ways well-meaning cops can elicit confessions from even the innocent. (One of his favorite tricks: bringing in a recorder into an interview room, and then visibly ‘turning it off’ to coax the suspect into being more forthcoming — not knowing that there is no off the record, because the room has other recording equipment!)
A must-read for any American — there’s more to the Bill of Rights than the first two!
- Don’t Talk to the Police, James Duane &Office George Bruch. Warning: Duane talks fast. There’s an updated version of the speech also available, “You Have the Right to Remain Innocent”.
- Go Directly to Jail — the Criminalization of Everything, ed. Gene Healy. I read this earlier in the year and will revisit it.
- Busted: the Citizen’s Guide to Surviving Police Encounters. Civil liberties program with dramatized scenes. Revised and released as 10 Rules for Dealing with the Police.