Thursday, May 22, 2014

Law Professor's Advice: Guilty or Innocent, Never Speak to Police.. Ever

by Nomad

If there's one thing that most defense lawyers will tell you, it is this: Whether you are guilty or innocent, never dare to speak to the police.
Once upon a time, the Supreme Court gave its full support to every citizen's constitutional right to remain silent. 

Here's an interesting - but rather long- lecture by Mr. James Duane, a professor at Regent Law School and a former defense attorney, telling his students why a defense attorney should always advise his client never, under any circumstances, talk to the police. His reasoning is sound but it's the kind of advice that most police investigators would prefer you didn't know.. and certainly not apply. 

In rapid order, Professor Duane gives excellent reasons why citizens should always be accompanied by a lawyer in any meeting with police. 

Even in the most seemingly casual situations. If a lawyer doesn't happen to be in your back pocket, then, he suggests, keep your trap shut.

The professor's advice is based on the self-incrimination clause of the Fifth Amendment. "Taking the Fifth" has picked up a lousy reputation over the years. When we hear the phrase, we normally think of gangsters or alleged Communists at congressional hearings. It has come to mean a ploy or a loophole used by somebody who has something to hide. In turn, hiding means you have something worth hiding, presumably your guilt.

Yet, despite this conventional wisdom, the fifth amendment was written to protect the innocent, not to allow the guilty to escape.

The Truth about The Fifth

In fact, this amendment is one of the most effective means of protecting the innocent against incompetent or over-zealous authorities.
Strictly defined, here's the meaning of the phrase :
To "plead the Fifth" is to refuse to answer any question because "the implications of the question, in the setting in which it is asked" lead a claimant to possess a "reasonable cause to apprehend danger from a direct answer", believing that "a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result."
Under interrogations, fairly benign statements can have all kinds of implications. Without legal counsel, it could be very easy to say the wrong thing, to have your words twisted, or to simply misstate things which, in turn, could land you a whole heap of trouble. 
 Here's a little more legalese about self-incrimination:
The privilege against self-incrimination is "[t]he privilege derived from the Fifth Amendment, U.S. Const., and similar provisions in the constitutions of states....[that] requires the government to prove a criminal case against the defendant without the aid of the defendant as a witness against himself...."
If you are suspected of a crime, your testimony is not required. A case against cannot be based solely on your confession. It's a remarkable idea, isn't it? A confession is usually considered a "slam-dunk" for prosecutors.

Since there is always a possibility that the focus of an investigation might include you, you-whether innocent or guilty- are not at all required to provide the police with any evidence whatsoever. 

As one jurist put it, the advice and protection of an attorney is not restricted to the sedate and supervised atmosphere of the courtroom. Legal counsel ensures that your rights are respected whenever you enter- at any stage -into the justice process.
(As we shall see, the present Supreme Court, on that point, would beg to argue with over two hundred years of legal precedent.)

Rebuttal and Proof

TV cop shows have programmed viewers to think that cases are dramatically "broken" by confessions. It's a nice neat way to package the abstract concept of justice. However, that's not the kind of justice that our Founding Fathers would have endorsed.

They knew that, under duress, people will confess to almost anything. The stronger the pressure, the harsher the setting, the most threatening or accusatory the interviewer, then the more likely the confession. Even when it is pure fiction.

(This is something that torture-endorsing officials in the Bush Administration, like Dick Cheney, failed to recognize. He fails to admit it even now.)

The professor has his critics. The Duane lecture was criticized by a writer for The Weekly Standard:
The basic problem with Prof. Duane's argument is that he completely discounts the utility to the community of people talking freely with the police. After all, most communication with the police does not take the form of a custodial interrogation. Rather, people talk to the police when requesting help or to report suspicious activity. Without this information, it's hard to imagine how law enforcement officials could ever apprehend criminals before an offense is actually completed.
That's probably true, of course. Police investigations might be harder if everybody followed the professor's advice. In any case, it is not strictly a citizen's duty to make the job of law enforcement easier, especially when even an innocuous conversation could lead to an arrest.
Instead of relying on the highly dubious system of civilian informants, police would have to rely on solid incontestable evidence, like, for example, DNA and other forensic techniques.

There's no shame in that. Look at how many falsely-convicted prisoners have been released on that basis. These advances have already proved that forced confessions have made the justice system more unjust.
If everybody followed the professor's advice, investigations might be harder but they may also more just. The authorities would be less inclined to focus on one suspect and less eager to wear that person down until they obtain an admission of guilt.
(The botched investigation of JonBenet Ramsey is an example that comes to mind.)

In case after case, we have seen how forced confessions have led to miscarriages of justice.  Perhaps you've heard of The Innocence Project, It is a non-profit organization dedicated to assisting prisoners who could be proved innocent through DNA testing.
Since 1992, the organization has found more than 300 people in the United States who have been exonerated by DNA testing. That includes 18 who served time on death row. These people served an average of 13 years in prison before their exoneration and release. 

Furthermore,  it was determined that in 25% of DNA exoneration cases, the defendants made incriminating statements, delivered outright confessions or pleaded guilty. This is the result of a system that, in many cases, is built not on physical evidence, but on coerced confessions.

Justice's Dirty Secrets

If that weren't bad enough, one of the dark secrets of the American justice system is the number of mentally-ill or retarded suspects who are vulnerable to coercion by police seeking a confession.

In these cases, it may well be a case of false confession (rather than coerced), since the interviewee may simply want to help the police or be unable to handle the stress of the situation. In many cases, police have found to have lied to mentally-handicapped or juvenile suspects in order to obtain a confession.

As a report by Northwestern University noted:
Lying by interrogators, which occurs in virtually all false confession cases, should be strictly limited. Lying is presently permitted under 1969 Supreme Court decision known as Frazier v. Cupp. The interests of justice would be better served by the suppression of all confessions by juveniles, the mentally retarded, and the mentally ill to whom interrogators have lied.
The effect of a coerced confession is something far removed from an ideal justice system. Don'e believe me? Well, here are some facts to consider:
  • Police-induced false confessions are among the leading causes of wrongful convictions.
  • In Bedau and Radelet's 1987 study, false confessions were the third leading cause of wrongful conviction; In Warden's 2003 study they were the single leading cause.
  • More than two-thirds of the DNA-cleared homicide cases documented by the Innocence Project were caused by false confessions.
  • 63% of false confessors were under the age of 25, and 32% were under 18; yet of all persons arrested for murder and rape, only 8 and 16%, respectively, are juveniles.
  • 22% were mentally retarded and 10% had a diagnosed mental illness.
  • Multiple false confessions to the same crime were obtained in 30% of the cases, wherein one false confession was used to prompt others.
Considering these facts and figures, the Fifth Amendment is clearly there for a good reason.

The Supreme Court Flip-Flop

This phenomenon of the forced/false confession was noted by the highest court in the land in 1964, in Escobedo v. Illinois.

In giving its opinion, The Supreme Court of that day made this interesting remark:
We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the "confession" will, in the long run, be less reliable, and more subject to abuses, than a system which depends on extrinsic evidence independently secured through skillful investigation.
The Court cited a 1904 quote by John Henry Wigmore, Dean of Northwest College and an expert in the law of evidence. Wigmore felt that a forced confession should never be a source of proof of guilt.
It was, he said, too easy for a system to forget the limits to its power. Such a system would natural resort to bullying. It was, he said, all but inevitable.
[A]ny system of administration which permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer morally thereby. The inclination develops to rely mainly upon such evidence, and to be satisfied with an incomplete investigation of the other sources. The exercise of the power to extract answers begets a forgetfulness of the just limitations of that power. The simple and peaceful process of questioning breeds a readiness to resort to bullying and to physical force and torture.
If there is a right to an answer, there soon seems to be a right to the expected answer -- that is, to a confession of guilt. Thus, the legitimate use grows into the unjust abuse; ultimately, the innocent are jeopardized by the encroachments of a bad system.
According to the Supreme Court, there was a very good reason for the Fifth Amendment's inclusion in the Constitution.
We have also learned the companion lesson of history that no system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens' abdication through unawareness of their constitutional rights. No system worth preserving should have to fear that, if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system.
All of us may want to help solve crimes by cooperating with police, but as the professor reminds us, without written guarantees of immunity, we do so at our own risk. 

"Pleading the Fifth" is by no means an admission of guilt. It's a privilege our Founding Fathers gave us to protect us from bullies. We should all thank their wisdom and that we live in a country that has that kind of protection.
And now for the bad news. 

*    *    * 
That was back in 1964. Today's Supreme Court interprets the Fifth Amendment in a very different way. Some would say this new view is just another example of the way the present-day Supreme Court has been undermining your constitutional rights. 

In a ruling last July in Salinas v. Texas, the court decided that, despite the Constitution and the long history of cases, citizens do not have the right to remain silent unless they expressly demand this constitutional protection. (That's an extremely short summary of a convoluted decision. For a full explanation, you can read the article at this link.)

The justices ruled that if you do not say "I wish to remain silent"- in no uncertain terms- you cannot claim 5th Amendment rights. So if you are ignorant of your rights and do not express them loud and clear, those rights, according to the court, do not really exist.

Moreover, the court also decided that this condition applies even before you’re arrested when the police are just informally asking questions. This strange ruling seems to contradict everything the Court said back in 1964 and in multiple preceding cases.
As one reporter summed up:
In other words, the next time that you have a casual conversation with a police officer, proceed with caution, because anything you don't say may be used against you in court.
Bit by bit, the wise protections of the constitution appear be dissolving before our eyes, thanks to a court clearly out of touch.

So the question is: Why aren't we all angry about this?