Caleb Brown: This is the Cato Daily Podcast for Thursday, November 3, 2016. I’m Caleb Brown. You should never talk to the police. No, not in that situation and no, not in that case either. That’s the message from James Duane, Professor of Law at Regent University and author of the new book You Have the Right to Remain Innocent. In that book he describes the advice that lawyers and cops give to their own children, which is never talk to the police. We spoke last month.

What you have to say comes as no surprise to libertarians throughout the country, many of whom came to know the case that you make in this book through the video that became so popular – and I personally have shared it a bunch of times. My friends who are criminal defense attorneys share it all over the place. But, even for people who understand what their rights are and are clear on it and are almost itching for the opportunity to assert those rights, there still is a desire to help the police solve crimes. And the biggest impediment in my head is, well yeah, I would like to help the police solve crimes and I would like to cooperate with them in their attempt to legitimately put bad people behind bars. Of course, the title of your book is You Have the Right to Remain Innocent. The title of the video, which I’m sure you did not select, was “don’t talk to the police” or “never talk to the police.” So, let’s reconcile that.

James Duane: Sure, yes. You’re right, by the way, about your assumption. The famous video that is on YouTube has been given multiple titles and none of them were selected by me. Although it is — the main point behind the video, and the main point behind the book, is to advise people as to what they need to know in advance for those terribly unfortunate episodes that come at you without warning when you suddenly learn that you are, or may be, a suspect in a serious criminal investigation. And, of course, tragically, there’s no way to be able to predict when that’s likely to happen to you. Even if you know that you are totally innocent of any wrongdoing, you have no idea whether perhaps the police have come into possession of information from, perhaps from a mistaken eyewitness who says that they think they saw you commit something and the truth is they are wrong about you, but they seem quite sincere and they seem quite convincing. And they are convincing because after all if it’s your word against theirs, the jury and the prosecutor every time will say to themselves, well he’s got a motive to lie to exonerate himself. There’s no reason that she should lie when she says that she saw him there. But we know that mistaken eyewitness identification is a very serious threat to the administration of criminal justice. And the Innocence Project has determined that approximately three-fourths of all the innocent people falsely convicted and later exonerated were convicted in part on the basis of eyewitness identification – mistaken eyewitness identification. So, the problem you are describing, as I said, often arises for people when they suddenly find without warning that the police come by – or some other government agent comes by, it doesn’t make a difference – and wants to ask you a couple of questions about this case. People in that scenario often find that maybe if I talk to them – or talk to them long enough, or repeat my story long enough, I’ll eventually convince them that I didn’t do it. Even if I have no idea who the real perpetrator actually was. But that’s a mistake. That’s a terrible mistake. Because the odds that you are actually going to talk your way out of it are really quite slim. There’s almost nothing you could possibly tell them that couldn’t wait until later when you’ve had a chance to get a lawyer to evaluate the case for you. And then the facts could be disclosed much more safely and the odds are much greater that you will actually say something that will help convince the police that you did it, or at least will help them convince the jury that you did it.

Caleb Brown: Randy Barnett commented on your book, praised it considerably. But he brought up something that, from the prosecutor’s perspective, that I thought was something that ought to stick with people, which is when prosecutors are handed a case where there is a suspect and there are perhaps charges pending – so part of the prosecutor’s job is to weed out the bad cases – and they are not being presented with an alternative case. They’re not being presented with well, this person probably didn’t do it. They’re being presented with this is the person we think is most likely to have done it. And you know, those are different things.

James Duane: Yes. Yes. Whenever you get caught up in the criminal justice system as an innocent criminal suspect there’s an awful lot of psychological phenomena that are working against you. One is the natural human tendency on the part of every human participant in the process to get closure. That’s just human nature. All of us want to believe that if a terrible crime has been committed, there’s a way, there’s got to be a way, that we can find the guy who did it. We don’t want to wrestle with, or even deal with, the reality that sometimes, truth be told, some very serious crimes actually do go unsolved. And this tendency, which is true on the part of the prosecutor and the police and the jury, no matter how well-intentioned they may be, all of them work against you if you are the only suspect that can be identified. You know the old adage that if you’ve only got a screwdriver in your toolbox, every problem starts to look pretty quickly like a screw. And if this guy is the only suspect we can possibly find or identify or locate, son-of-a-gun if he doesn’t start to look more and more guilty the longer we look at him.

Caleb Brown: It goes from being — your motivated reasoning stops being about solving the crime and it begins to be about convicting this person.

James Duane: Well, if it’s…

Caleb Brown: And of course it is, right?

James Duane: Sure. Sure. And of course I’m not suggesting that anybody in the process would knowingly ever say well I don’t really care if he’s guilty. Quite the contrary. But people are surprisingly good, if that what it takes, at convincing ourselves of the things that we need to believe to help us sleep at night. And sometimes one of the things we need to believe is that we’ve got the right guy. If he’s the only suspect that could possibly be found, letting him off, or letting him go, or acquitting him might mean trying to spend the rest of our life with the knowledge that, I guess, whoever actually committed this crime will never be caught. That’s something we don’t like to contemplate. That’s something we’d rather convince ourselves if we can is not the case and in fact maybe we do have the right guy. The other psychological phenomenon that is certainly working against you is the way in which the various witnesses, let’s say against you, if there’s several of them, tend to corroborate each other in ways that have a synergistic effect. One of the most unspeakable tragedies about the American system of criminal justice is the fact that our courts impose no limits of any kind whatsoever on the extent to which police officers are allowed behind closed doors to freely share the details with one witness of what they learned from some other witness. For example, the case of Ronald Cotton. He was a man, an African-American in North Carolina, who was convicted of raping a pair of white women who were apparently raped by the same man on the same evening in the same neighborhood. And he spent more than ten years of a life sentence in a North Carolina prison before he was exonerated by DNA evidence. So we know for sure that he was innocent. One of the many remarkable things about his case is that the first time his picture was shown to the two victims, one of the women was less than totally confident and the other woman actually said he wasn’t the guy. In fact, when he was brought in front of her in a lineup the woman actually picked out another man. She looked him right in the face and picked out someone else in the lineup. Which, in hindsight, is not surprising because, after all, we all now know that he was innocent. And yet, incredibly, when that case went to trial, by the time it went to the second trial, both women testified that they were 100% absolutely certain that he was guilty, and that they said they had no doubts in their minds. It’s heartbreaking to think that any jury would convict a man under those circumstances because I guarantee you if I was in the jury I would have said to myself how could we trust the word of this woman, no matter how sincere she says she is now, when we’ve learned during the trial that she couldn’t even identify him the first time she saw his face. How can her most – how can that memory be less reliable than this most recent memory? But the other thing we learned from this case, and so many others like it, is the way in which witnesses who at first may not be totally sure about the case, as the case gets closer to trial because the things they learn behind closed doors from the police or from the prosecutor, they say, oh he’s got a record? Oh, I didn’t know that. Oh, oh, he made a confession? He made an incriminating statement? Oh, oh the other witnesses say that he was there? Oh, there are other witnesses? And next thing you know, sure as I’m sitting here, I guarantee you those witnesses are going to start to say to themselves yeah, now that I think about it, yeah he is the one. Yeah, he is. I am sure about him now that I think about it. Nowhere in the world outside of the American system of criminal justice do witnesses regularly find that their memories are getting better, more vivid, more solid with the passage of time. Which is absolutely the contrary to the natural human reality, but it happens all the time in our system. And all these facts conspire to work against innocent suspects.

Caleb Brown: You quote Antonin Scalia in your book, “If I ask my son whether he saw a movie I had forbidden him to watch and he remains silent, the import of his silence is clear.” That’s from the case of Mitchell v. United States from Scalia’s dissenting opinion. What ideas did Scalia help – and I think some of my friends who are criminal defense attorneys have wonderful things to say about Antonin Scalia.

James Duane: Oh, yes, and you can put me near the top of that list.

Caleb Brown: But what did he get the court to accept that was problematic with respect to the Fifth and Sixth Amendments?

James Duane: Well, God bless Justice Scalia. He was a champion for the rights of criminal defendants, as I mention, by the way, in the book. He once said when speaking at Wellesley University, “I ought to be a pin-up for the criminal defense bar,” which is absolutely true because no other recent members of the Court were so passionate and uncompromising in the defense of these rights that are set forth in the Bill of Rights for the protection of criminal defendants. But unfortunately when it came to the Fifth Amendment and the right to remain silent, he missed the boat entirely. Again and again in various opinions like the Mitchell opinion you quoted a moment ago, Scalia didn’t hold back at all on the expression of his view that innocent people have no reason to assert the Fifth Amendment, that it’s only for the benefit and for the protection of the guilty, and therefore if you choose to assert the Fifth Amendment, as in the hypothetical example of his son in the movie, well then it stands to reason that logically you’re probably the one who did it, which is so emphatically false. As I mention in the book, one very important study confirmed that approximately 40% of all false convictions of innocent men we now know looking back in hindsight were of men who didn’t testify at their trial. So, even though that sounds perfectly sensible to Justice Scalia and to many members of the jury and to many other uninitiated observers on the street, that’s just simply not true, that the mere fact that a guy chooses to remain silent is a pretty good indication that we might have the right guy. Unfortunately you said a minute ago that in Mitchell, Justice Scalia was expressing his point in a dissenting opinion where he only spoke for four members of the court. But more recently in a couple of other cases, including the Brogan case and the Salinas case, both of them are described in the book and mentioned in the book, Justice Scalia was able to use his considerable influence over the other members of the Court to talk a majority of his colleagues into adopting new rules that undermined the protections of the Fifth Amendment for guilty and for innocent suspects alike.

Caleb Brown: You made note during your talk here at the Cato Institute that you are not concerned about this book “falling into the wrong hands” – that is guilty people using the information here in order to protect themselves from a just and guilty verdict. Because these are, many of these are people who interact with the criminal justice system on a regular basis. They are repeat offenders and your argument is, of course, on behalf of innocent people to have this information and arm themselves with it, because in part because those people don’t interact with the criminal justice system on a regular basis. So, what would shock people to learn about how police go about doing their jobs when it comes to asking questions, or go on fishing expeditions, or eliciting confessions or information that may be used to prosecute an innocent person?

James Duane: Boy, that’s a great question. And a tough question too, because I do sincerely believe that this book is filled, almost every page, contains information that really is likely to astound, and to shock most Americans. And I say that, you know, with all due humility, not because the book is all that ingenious, not at all, but I’ve spoken around the country to thousands of college and law school students over the past eight years about this subject. Virtually everywhere I go, almost nobody gets up and leaves before I’m done. And everywhere I go I’m approached by large groups after the audience of well-educated, sophisticated college and law school students, who tell me I had no idea. I never would have imagined that’s the way it works. So I know with some personal experience that this information comes as a great surprise to a large cross-section of the American population. The greatest surprise in this book for most readers I suspect will be the unspeakable extent to which our judicial system knowingly allows and encourages police officers to engage in the most unspeakably grotesque forms of deception and dishonesty and treachery. And if that’s what it takes to break you down and to break your will and to deceive you into thinking that maybe it might be in your best interest to go ahead and tell them what you know, and what you were doing and where you were, and to waive your right to remain silent and to waive your right to a lawyer. And this is just a partial listing. As I explain in the book, and as every reader of the book will quickly come to understand, it is no exaggeration to say you cannot believe one word from the mouth of a police officer who is trying to get you to waive your right to remain silent, because the courts will let them lie to you about everything. They will lie to you frequently – now I am not saying that everything you hear from the police is a lie. Of course not. Sometimes they’ll tell you the truth. But you don’t know what you’re up against. When you agree to talk to the police on a voluntary basis in the course of an investigation, it’s like agreeing to play a card game where one side has to put all his cards on the table and the other side doesn’t have to put any of his cards on the table, and in fact doesn’t even have to tell you which cards he holds, or how many cards he has, and is allowed to put some cards on the table without truthfully telling you whether they are his cards or not. That’s ridiculous. Who would agree to wage five bucks on a game like that? And we’re talking about an arrangement where you are wagering so much more than five bucks. It could be your liberty or your very life. To give you a couple of examples. All around the country all day, every day and every night, police officers behind closed doors are meeting with frightened young people, many of them innocent, and telling them lies about how strong the case is against them. Sometimes what they’ll do, if they think it will improve their chances, they’ll exaggerate the strength of the case against you. They’ll falsely say we’ve got three other witnesses who will say that you were there. Stop lying to us, Johnny, we know that you were there. We know that you did it. Your buddy, your best buddy is down the hall right now, and he just gave you up. He just gave us a signed statement saying that you were the one who did it. You were the shooter. He said you were the one who had the gun. And this is, I mean information like this can be devastating to the already fragile psyche of an unfortunate young man who knows that he is innocent. He hears what the — my friend are telling me that I did it? And then the police know for a fact that naturally he’s going to rise to the occasion and say well that’s not true, let me tell you what really happened to correct the record, and tragically he too often finds out later that it was all a lie. Nobody is down the hall. And if they are, they’re not making a statement of any kind, or they’re not making the statement that — but meanwhile they’re lying to Johnny down the hall, the other kid, and saying yeah your friend Barry, he just told us that you’re the one who did it. And they’ll say we’ve got videos that prove that you did it. We’ve got eyewitnesses. We’ve got DNA evidence, hair evidence, fingerprint evidence that proves that you were there. You’d better stop lying. You’d better come clean, because this evidence gives me enough to convict you. You know, a child doesn’t have to be, a young man or an adult, doesn’t have to be a fool to fall for this ruse. If he thinks that the police are telling him the truth, even a rational individual, even a perfectly rational criminal suspect could easily conclude after six, seven, eight hours of this sort of madness, that oh my God, I know I didn’t do it but I’d better tell them that I did because he’s telling me that this case is going to be a slam dunk. And he’s sitting there and the cop is telling me that the judge is going to hammer me if I falsely deny my guilt. And then, conversely sometimes at the other extreme, just as often police officers will understate the strength of the case against you to get you to lower your guard and to relax and to think oh I’ve got nothing to be afraid of. They’ll say, oh Johnny, we know you weren’t involved. We know you didn’t do it. You’re not a suspect. We don’t plan to prosecute you. We’re not going to prosecute you. We want to use you as a witness against the other kid. You’re part of our team. And again you can easily understand how easily those kinds of lies could deceive an unsuspecting young criminal suspect into thinking okay good, maybe I’d better talk to them. And in the book it gives numerous examples of people who actually fell for that, made that mistake of talking to the police. They took the bait and ended up helping to talk themselves into a jail cell.

Caleb Brown: So to come around to the primary point of your book. What do police and prosecutors tell their children about talking to the police?

James Duane: Yes. As far as I can determine, based upon many years of conversations off the record privately with good friends, close friends, trusted friends who are police officers, prosecutors, former police officers or the children and close relatives of police officers and prosecutors, I can assure you with complete confidence that all of them, 100% of them as far as I know, tell their children no, don’t you ever talk to the police. If you are ever approached by a police officer and they ask you if you will talk to them, you tell them no and you tell them you want to talk to me. And you call me. And that’s it. And by the way, I’ve never ever met one who says well I tell my kids to just let your conscience be your guide. Or, use your common sense and if your gut tells you that it’s safe to go ahead and answer those questions, you go ahead and do so. No, no, no. They say categorically, absolutely no. You don’t talk to the police. I debated this subject, by the way, in front of — one group of college students invited me to come and speak to them about this subject and it was a bit of a debate that we had because they brought in a full-time prosecutor to present the other perspective. I’ve been involved in numerous debates like these and none of them really turned into a real debate because almost invariably the other side of the debate, the prosecutor, without exception, will say, as Randy Barnett did here earlier today, that well, he’s right. It’s true. And then in the effort to create the semblance of some kind of point counter-point or something like a debate, they’ll try to drum up some sort of well, you know, but he’s over-simplifying a little bit, he’s leaving out this nuance, and there is this to consider. In this one occasion I was, as I said I was discussing the subject with this prosecutor on the other side. And she was trying to make the point that I was being a little bit maybe too blunt in saying that you should never talk to the police, that there were countervailing benefits that you might want to take into consideration. And I promptly brought the debate to an end, you might say, by asking her a single question. I said to her, “Listen – do you have children?” And she said yes I do. She said she had a student who was approximately high school/​college age. I said “What if your son called you in the middle of the night and he said listen mom, I’m down here at the police station and they’re telling me,” and she interrupted me right there and she rolled her eyes a bit and said, “Now come on, you know that’s not a fair question.” She didn’t even need to hear the rest of the question. She didn’t even need to hear the rest of the details that I was about to share with her in my hypothetical scenario because she had heard enough. She already knew and tacitly acknowledged that look, that’s not fair, you know that I’m not going to tell my kid to talk to the police, after she had suggested just moments earlier that well, perhaps there is another side of the story that you ought to take into consideration. It’s sort of typical of the mindset of far too many prosecutors, and former prosecutors who are now judges, some of them on the United States Supreme Court, who have become outspoken proponents of the view that other people’s kids really shouldn’t hesitate to talk to the police. And the hypocrisy of that is really, to me, unspeakable galling. Three years ago, in 2013, a five-member majority of the Supreme Court of the United States, in a case called Salinas v. Texas, held for the first time that your exercise of the constitutional right to remain silent, if you’re not careful just how you do it, could very likely be used against you in a court of law as evidence of your guilt, and the prosecutor should be allowed to tell the jury about the fact that you did those things. And the prosecutor should also be allowed in closing argument to invite the jury to conclude that your exercise of the Fifth Amendment was in fact decent if not powerful evidence of your guilt, which to me is unspeakably appalling. And in that opinion, in the plurality opinion in the case by Justice Alito that was joined by the other members of the court, he wrote, he said well, he said we start our analysis with the proposition that the public has a right to every man’s evidence. And he cited some older cases that had used the same language from a totally unrelated context from which he deduced and implied that when the police come up to somebody else’s kid and say listen you mind if we ask you a couple of questions, we’re just doing a little, a bit of an investigation. It’s all voluntary, you’re not under arrest. But if you don’t mind we’d like to see if you can help us clear these things up. He asserted for the Supreme Court, for a majority of the Court, that a young man in that position has a moral, civic, political responsibility to man up and to fess up and to start talking and to start answering their questions. Which to me is so galling because with all due respect to Justice Alito and the other members of the majority in that case, most of whom I greatly admire for other unrelated reasons, I guarantee you there’s no way he would ever give that advice to his own kids, or to his nieces, and to his own nephews. It’s out of the question. Absolutely not. But they don’t hesitate to publicly pontificate about what a great idea this is for everybody else’s kids. Which, I might add, there is a sobering lesson here for conservatives who, or people who call themselves conservatives, the law and order types who think it’s a great idea that we try to do more to give the police the tools that they need to get people to convict themselves. You’ve got to be careful what you wish for. Be careful what you ask for, because frequently these hard-fought victories by these law and order conservatives, they’re going to rue the day that they actually won them. Salinas v Texas, for example, was a tremendous victory for law enforcement if, and only if, the average man on the street remains in the dark about the opinion and never hears about it. That’s one of the reasons I’m determined to get the word out. I’d like all Americans to know about this case and how this case works and what it means for the protection of our civil liberties because if everybody in America finds out about the Salinas case and how it works, that opinion will end up turning out to be an extraordinary setback for the law enforcement community. Because if everybody understands that, you know, before Salinas was decided, if a police officer approached a reasonably sophisticated individual on the street and said do you mind if I ask you a couple of questions, it would not be unusual, even for somebody in the know like me, to say well, let’s see what the questions are. Go ahead. Shoot. And maybe if I like them, I’ll answer them. But maybe if I don’t like them I won’t answer them. I might have even done such a thing, possibly, depending on what his questions were. I mean, who knows, maybe he wants to sell me a ticket to the policeman’s ball. But after Salinas that is not going to happen. Nobody who has read about that opinion or who listens to this podcast is ever going to talk to a cop again. Because if a police officer comes up to you today and says hey you mind if I talk to you? The correct answer now is no I will not. Am I free to go? No, am I free to go? Am I under arrest? Because if I’m not under arrest I’m going to leave. I will not stand here and let you throw a couple of innocuous-sounding questions at me to get me to lower my guard and then suddenly spring a question out of left field that suddenly reveals to me that apparently I may be the suspect in some sort of a serious criminal investigation. Because if I then try to assert my right to remain silent, the Supreme Court held in Salinas the fact that I suddenly tried to clam up and shut down the interrogation can now be used against me as evidence of guilt. And might I add and emphasize for your listeners that, you know, those who want to vilify this as well, there you go, what do you expect from conservative Republican justices, this outrageous result was one that was advocated in the Supreme Court by the Justice Department of President Barack Obama. He and Eric Holder and the Department of Justice filed a brief with the Supreme Court saying yeah, we agree with the State of Texas. That’s something law enforcement officers ought to be able to do, to their shame. There’s a lot of shame in that case all around. But I want everybody to find out about this case because if everybody in America finds out about this case they will come to understand that now the rules have been changed in a way that completely eliminate any incentive you have to cooperate with any police officer about anything because that’s exactly how they helped to convict Mr. Salinas in that case. They threw a couple of softball questions at him that were quite obviously not incriminating in any way, sort of innocuous-sounding things, and then they sprung the trap and asked him out of the blue suddenly a question that for the first time confirmed that maybe he might be a suspect in a very serious criminal matter. And when he declined to answer that question, that’s what they later used to help convict him and send him to prison for a very long time.

Caleb Brown: James Duane is author of the new book You Have the Right to Remain Innocent. You can watch a forum for the book at Cato​.org. Subscribe to this podcast at iTunes, Google Play, and with Cato’s iOS app. And follow us on Twitter, @CatoPodcast.