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Silence Equals Guilt in American Criminal Justice System

Posted by Joseph Tully | Sep 30, 2016

Book Review: You Have The Right To Remain Innocent: What Police Officers Tell Their Children about the Fifth Amendment. By James Duane. 137pp. Little A, New York.

James Duane's new book, You Have the Right to Remain Innocent, provides a frightening and priceless glimpse into the state of the modern American criminal justice system and what we as citizens must do to protect ourselves when interacting with law enforcement.

Duane opens with a section titled, “Don't Talk to Police,” a piece of advice that is simpler said than done (to many innocent citizens' detriment). He makes his point with the scary statistic that 25% of 250 prisoners wrongly convicted and later exonerated by DNA evidence made either a false confession or an incriminating statement.

Duane emphasizes how “overcriminalization” in today's criminal justice system is all the more reason to keep your silence when confronted by cops. U.S. Congress passes a new criminal law once every week on average. So much so that the Congressional Research Service is no longer able to keep count of the exact number of federal crimes.

And any one of us can be convicted and imprisoned for a crime without any knowledge that our conduct was forbidden by law.

For example, Duane points out that you can go to prison for six months for wearing a 4-H emblem if you are wearing it to imply you are a member of 4-H when you aren't – just one of a dozen examples as to how out of hand criminal law has gotten.

Duane also explains that most of these laws are “carelessly and clumsily crafted.” It's so bad that the average American commits approximately three felonies a day. “That is why you cannot listen to your conscience when faced by a police officer and think ‘I have nothing to hide.'”

He covers the “outrageous forms of deception” that police use to get even innocent people to make outright confessions.

Sixteen-year old Nga Truong falsely confessed to killing her infant son after two hours of interrogation because police told her they wanted to “help her” and made an explicit promise that, because she was a juvenile, she would face nothing more than minimal punishment. She was tried as an adult, convicted, and spent more than 3 years in jail before the charges were dropped based on lack of evidence and illegal interrogation.

Police can outright lie, promising you will not be prosecuted, your statements will be “off the record,” you are just a witness – they may even promise you immunity. And the law and judges support these deceptive tactics police use in interrogation, saying the defendant should have known that the police cannot be trusted.

In a very interesting section on Miranda warnings, Duane explains that the phrase, “anything you say can be used AGAINST you in a court of law,” means that nothing you say can be used to SUPPORT you in a court of law.

Because of the law of evidence and the law of hearsay, a judge will not allow you or your lawyer to tell the jury any statements you made during interrogation that supports your innocence. Only statements that can be used against you are admissible. In other words, there is zero point in trying to explain your innocence to a cop.

Long interrogations are very likely to produce false confessions. Duane illustrates this statement with the case of 23-year old soldier Eddie Lowrey, who spent more than 20 years in prison on rape and murder charges after giving a detailed confession following a day-long interrogation. When he was later released after evidence proved he was innocent, Lowrey said he confessed because he didn't know any other way out except to tell them what they wanted to hear.

Another frightening account shows how you could be perfectly innocent and tell the truth to try and help the investigation, only to end up in prison. This happened to Ronald Cotton, who spent over 10 years in prison for rape until DNA evidence proved his innocence.

He had freely offered to help the police by answering questions. Cotton told police he was with friends on the night of the incident. It ends up he got the dates wrong. The police concluded he had lied to them, and Cotton was convicted of the crime.

Here, the government can also decide to prosecute you for the separate criminal offense of lying to the government!

Duane throws in some impressive “tricks” he plays on the reader to demonstrate just how easy it is for police to get you to say certain things. I fell for them all. He shows how easy it is for police to make mistakes in recall. When officers record only portions of an interrogation or when audio is faulty, the courts rely on what the police can remember about your discussion.

In 40 confirmed false confession cases, there was not one case with a complete recording of the entire interview.

You Have the Right to Remain Innocent files quickly through a series of interesting and frankly horrifying true stories of innocent people who spent decades in prison, often more than half their lives, because of statements they made trying to help with the investigation and tell the truth. Earl Ruffin was convicted of raping a woman and spent more than 20 years before being exonerated by DNA evidence.

When trying to explain where he was at the time of the crime, Ruffin just happened to mention he had a girlfriend who lived in the neighborhood where the crime occurred. The statement was a major factor in getting him convicted.

If anyone knows the inside scoop on tactics used by law enforcement, it's James Duane. The Harvard Law School grad is a professor of law at Regent Law School in Virginia Beach.

He speaks as a legal expert on television and radio (has guested on NPR's All Things Considered), has testified before the Advisory Committee of the United States Judicial Conference on the Federal Rules of Evidence and is an academic contributor to Black's Law Dictionary.

In a refreshing approach, Duane does not lay full blame on law enforcement. He expresses his gratitude to the bravery of our nation's police officers and explains, “The advice contained in this book – the same advice that police officers give their own children – is not based on any assumptions or suspicions about the overall morality of police officers. Police are only doing what they were trained to do, and what they are constantly encouraged to do by the courts… that is the way our corrupt legal system is designed to work.”

In a surprising segment titled “Don't Plead the Fifth,” Duane explains that either to just remain silent or to tell the police you want to assert your right to remain silent, “could prove a different kind of mistake, no less grave and imperiling as talking in the first place.” Until a few years ago, keeping silent during police questioning could not be used as evidence of guilt.

But now, the courts believe that only guilty people would ever refuse to talk to police. Duane writes, “A conservative majority of the court now agrees that when a criminal suspect does decide to remain silent, that fact logically supports the conclusion that the suspect must be guilty.”

He talks about the 2013 case against Genovevo Salinas, where five justices held for the first time that silence of a suspect not in custody is logically relevant evidence admissible against the suspect at trial and may be used to help persuade the jury that the suspect is guilty! The justices agreed that Texas could argue Salinas was probably guilty of a crime because he remained silent when police asked him a question about it.

In my favorite bit of advice Duane gives the reader, he writes, “If you simply say nothing in the face of police questions, unless you are in custody and under arrest, your silence can and will be used against you as evidence of your supposed guilt in a court of law. To avoid that possibility, you must speak up and specifically tell police about your desire to assert your constitutional rights.” Kind of ironic right? You have to speak up to remain silent.

Duane then explains that HOW you assert your right to remain silent is extremely important, using the case of Gillman Long who, when questioned about sexual activity with a minor, said “I don't want to incriminate myself. I would like to stop talking.”

Partly because of this argument, he was found guilty and sentenced to life in prison without the possibility of parole. The prosecutor reasoned that because he said he didn't want to incriminate himself, it meant “any sort of statement as to that topic that they are being asked for would get them in trouble.”

Duane writes, “The Department of Justice has now served official notice that it believes the courts should allow a prosecutor to argue under any circumstances that your willingness to assert the Fifth Amendment privilege can and should be used against you as evidence of your guilt.”

Duane ends his book with perhaps the best advice we as citizens can use to protect ourselves. Invoke your Sixth Amendment right to a lawyer. He says in doing this, don't be polite or wishy-washy about it.

As an example of how NOT to exert your Sixth Amendment rights, Duane refers to the case of 16-year old Tio Sessoms, who told officers when he was being questioned about a California murder, “My dad asked me to ask you guys, give me a lawyer.” Because he didn't say “Give me a lawyer,” but instead only told officers what his dad said, the cops kept going. Sessoms' later statements were used to convict him. After 13 years in prison, his lawyers finally persuaded the US Court of Appeals that he had indeed expressed his desire for a lawyer. 13 years.

Do not worry about sounding polite. Simply say four words “I want a lawyer.” And no more.

Duane brings up instance after instance of situations where anyone would end up talking and digging themselves into a big, freedom-threatening hole. It is a scary realization that any good citizen could find themselves in a situation where law enforcement would use their good qualities against them; being helpful, wanting to talk, and they would most certainly end up facing years behind bars.

I myself would be as guilty as anyone of talking and digging myself a big, freedom-threatening hole. It is a scary realization, and by the middle of the book I found myself thanking God that I hadn't been approached by cops for more than a traffic ticket – and in that instance, I got away free somehow – because I certainly talked and talked, being my friend, always wanting-to-help self.

“Nobody of sound mind can dispute that there is something fundamentally wrong, and intrinsically corrupt, about a legal system that encourages police officers and prosecutors to do everything in their power to persuade you and your children (no matter how young or old) to “do the right thing” and talk – when they tell their own children the exact opposite.”

The book is a quick read, brief and to the point. It avoids legal jargon and dry, inaccessible hoopla.

Duane's goal is this: “…to bring an end, once and for all, that obscene double standard in the American criminal justice system that allows only the citizens who are in the know to protect themselves from a legal system that is designed to prey upon ignorance and good intention.”

I'm getting this book to family and friends, stat. It's a quick and invaluable survival guide for any American citizen who ever chooses to step outside his or her front door.

About the Author

Joseph Tully

Founding Partner, Criminal Law Specialist Our founding attorney, Joseph Tully, is sought out for his expert legal advice throughout California. With over 20 years of experience as a criminal lawyer, in 1000+ felony and other cases, Tully served as felony trial counsel as a public defender before...