Citation: Duane, James, The Right to Remain Silent: A New Answer to an Old Question (February 2, 2012). Criminal Justice, Vol. 25, No. 2, 2010. Available at SSRN: https://ssrn.com/abstract=1998119
The Fifth Amendment: “… nor shall [any person] be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”
When it comes to cops, just shut up. Take the Fifth. Practice taking the Fifth with your wife, your boss, or telemarketers. Say nothing. Practice remaining silent. Easy advice to give, but so few actually take it.
Before I get into this, I want to thank MSG Hall from our Backtalk forum for bringing this up and for providing this link. I know many of you do not access our on-line forum, so I’m regurgitating a lot of what has been said and discussed there, but it bears repeating, if it saves but one person from being falsely convicted.
The video shows Professor James Duane, a former defense attorney, lecturing what I believe to be a law school class on advising clients to always take Fifth when dealing with the cops. The video is very good and extremely educational, if your gut feeling doesn’t already tell you to shut up when cops are around. Prof Duane is a very good speaker and if you have a chance, watch the video; it’s better than my ramblings on the subject.
When my boys were young, I always told them never, under and circumstances, talk to the cops. I said if a cop stops and asks what time it is, say nothing and keep walking. My stint in law school, coupled with my own experiences with the law, taught me well, that nothing good can ever come to talking to cops, ever. I remember reinforcing that in them over and over again– more so than I did about not talking to drug dealers. I knew then, as I do now, that the greater threat to our safety and freedom is not the criminal element, but those that make a living enforcing law. Just keep in mind that firefighters, lifeguards and EMS risk their lives to help us; cops do not. They have one purpose in life and that’s to make an arrest and with any luck, shoot you.
Prof Duane lists 10 reasons why you should never talk to the cops. Well, he said 10, then listed 7, so I’ll round it off to 10:
- There is no way in the world talking to a cop will help you. You may think you’re savvy, smart and too clever to ever say anything that would get you in trouble, but you’d be wrong. There is nothing you could ever say that would be used “for” you, only against you. Even the simplest comment can and will be used out of content against you. Say nothing.
- Whether you’re guilty or not, there is no plus side to talking to the cops at this point. If you’re innocent, stay innocent and don’t say a word. If you’re guilty, don’t indict yourself before allowing your lawyers to work something out. Anything you say can be construed as a confession, so shut up.
- You may get carried away and say something stupid. Even if you’re innocent and babble about your innocence, the more you say, the more chance there is that you’ll hang yourself. I was coming back from a trip once and had a lay over in Chicago. When we landed the pilot told everyone to stay seated. All of a sudden these goons came on, guns drawn, and came up to “me!” They took my briefcase and escorted me off the plane. I was in a squad car speeding down the runway. I had no idea what they wanted. At the time, I didn’t know any better and tried to cooperate. I knew I hadn’t done anything, but at that moment I realized how easy it would have been for them to lock me up and convict me, because I was obviously guilty in their eyes. On the way to the station, I contemplated opening the car door and running, because I didn’t trust these guys and felt I had a better chance on my own, thinking back to my Marine days when they taught us escape and evasion. Your best chance at escape is right away when the enemy takes you, and these guys were cops, the enemy. But I didn’t, mainly because I knew I was innocent. I thought that maybe when I turned in that rental car there was something in the trunk, because I had never opened it, and wondered if there was a dead body or something? Anyway, what happened was a dumb-ass FBI sky cop fingered me as a fugitive while on the flight with me and called ahead. Listen to this and you’ll see how stupid and careless they are… The bulletin sent out, and the one the blind, incompetent FBI guy had to work with, said they were looking for a 5’6”, 160 pound Mexican and had a composite. I had sunglasses on and was the only reason dip-wad fingered me. The fact that I am 6’4” tall, 120 pounds and white as snow didn’t matter; it was the glasses that did me in. You see, it didn’t matter who they got, anyone would do. Eventually, even the cops had to relent and let me go. I missed my connecting flight, was late for a meeting and had a story to tell. I talked, but shouldn’t have.
- It doesn’t matter if you’re innocent; your babbling will be used against you. Let’s say for example that a woman accused you of rape. You say it was consensual, and in reality, it was. At this point it’s your word against hers. But once you talk to a cop, it’s your word against hers and his. He doesn’t have to record your conversation, just recall it the best he can. And if he thinks you raped her, he’ll recall your conversation in ways that would surely convict you. You can say that the two of you arrived at her apartment, she had forgotten her key and asked you to help. You reached through the screen and unlocked the door. Under testimony, all he will say is that you confessed to breaking in.
- No matter what you say, the cop will not recall 100% and in a court room, the cops testimony will always be believed over yours. You’re in court, which is one strike against you. You have a cops, in uniform, another strike, saying you told him you basically did it, another strike. Am I saying cops lie? Damn right I am. They’ll lie out their asses if they want to convict you.
- There are mistakes in testimony. Let’s say the cops told you they are stopping you because you were seen at the scene of a gang style execution. You, being truly innocent, freely tell the cop that you were not anywhere near the scene and that you don’t even know how to shoot a gun. The cop will testify that no one mentioned that they were killed with a gun, so how did you know they were shot? Any jury in the world would see that as a crack in your story and send you away for life. Just because you felt the need to talk. Shut up.
- The cops may say you said something you didn’t. Quite simply put, they have no problem bearing false witness against you. The need to convict overshadows justice. What’s scary is that at the end of Prof Duane’s lecture, he brought a detective up to present the other side. Prof Duane did not know this guy, and had never met him. He wanted an objective, honest rebuttal. The detective said that he agreed with everything Prof Duane said. But this part was disturbing. He said that although he will twist things around to get a conviction, he never did that to an innocent man. What that means is that he will determine your guilt or innocence and based on what he “thinks,” you will either get a fair trial or just go through the motions of a fair trial. Even more reason never to talk to a cop, ever. There is no plus side, ever!
- There is due process guaranteed to you by law. Why give up your rights so soon? Even if you’re guilty as hell, allow your lawyer to work the case. It’s bad enough if you’re innocent, but if you’re guilty, then let the prosecutor do his job and put together a case against you based on evidence that you don’t freely hand over to him.
- Cops will say anything to get you to talk or “cooperate.” They try to make it sound like if you just talk to them, tell them everything, then it will go easier on you. “Be honest with me, that’s all I’m asking.” Not quite true. What they’re really asking is, “Talk, say something I can use against you… go ahead, you know you want to, it’s your nature.” You have to resist these moments of weakness when they appear to be your friend. At this point you’re thinking the worse case scenario, when you’ve just been busted, a team of cops have you surrounded and just waiting for a chance to shoot you. Then one reaches out and wants to be your friend. You feel like latching on to anyone who looks friendly at this point and he gives you a feeling of comfort. You have to remember, just shut up.
- If you and a friend are stopped, perfectly innocent, but talk to different cops about the same thing, there will inevitably be discrepancies in your stories. You say you left your house at 6, your friend says 7. Not a lie, just an innocent mistake. You say you stopped at 7-11, he says you stopped at a gas station (which may have had a 7-11 inside). Fact is, it’s different. And sine they couldn’t care less about t he truth, only an arrest, you will go down based on innocent, truthful testimony. Say nothing to the cops; do not cooperate.
Ok, the bottom line should be obvious. Whether you love the hell out of cops or consider them the enemy of the people, the simple fact is that if you talk, you will regret it. It doesn’t matter if you have a support sticker on your bumper or if you kiss their fat asses, talk and you will live to regret it. You have the right to remain silent. Silence is golden.