You Have the Right to Remain Innocent

The Supreme Court of the United States made this point years ago, when it correctly stated that: “[O]ne of the Fifth Amendment’s basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances. . . . [T]ruthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.”

James Duane in You Have the Right to Remain Innocent

The point I am trying to demonstrate is how often and easily you and I make assumptions and deductions, drawing conclusions and inferences from what we have been told, without even being aware of the fact that we are doing it. And that is why it is so extremely easy for police officers, just like everyone else, to trick you into doing the same thing even when they have no awareness that they are doing it either. And look how easily you were deceived in just thirty seconds, even though you were able to read this statement with your own eyes, and even though I warned you in advance that I would do this to you. Now just imagine how much easier it would be for the police to do the same thing to you, either intentionally or otherwise, when they are selectively feeding you details about a crime for several hours in the middle of the night.

James Duane in You Have the Right to Remain Innocent

One analysis of forty-four proven false-confession cases revealed that more than a third of the interrogations lasted six to twelve hours, many lasted between twelve and twenty-four hours, and the average length was more than sixteen hours.59 The longer you speak to police officers, the more likely it is that you will confess to some crime that you did not commit—isn’t that enough of a reason to avoid speaking to them?

James Duane in You Have the Right to Remain Innocent

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. First, it can help to convince the police that they have the right suspect, which might make them less likely to spend additional time pursuing other possible leads that could help them identify the actual offender. Second, the prosecutor can present that evidence to the jury, and the judge will tell the jurors that, if they believe that you knew your statement to the police was false when you said it, they are permitted to regard that knowing falsehood as evidence that you are guilty. (And how will the jury ever really know whether you are lying to the police? They are only human, just like the cop.) Third, and perhaps worst of all, our legal system places no limits on the ability of the police to share the details of their ongoing investigation with the critical witnesses against you.

James Duane in You Have the Right to Remain Innocent

suspicious activities. 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?

James Duane in You Have the Right to Remain Innocent

The most recent and comprehensive investigation, which took a careful look at 250 prisoners exonerated by DNA evidence, found that 16 percent of them made what’s called a false confession: admitting their commission of a crime that they did not commit.5 Those are the cases in which the defendant actually confessed; in many more cases, the innocent suspect denied all guilt, sometimes for hours, but still gave the police a statement that was then used to help convict him. Out of all the hundreds of innocent men and women who were wrongly convicted but later exonerated by DNA evidence, more than 25 percent made either a false confession or an incriminating statement.

James Duane in You Have the Right to Remain Innocent