by James Duane
The set of facts I give them, as you saw for yourself, is short and sweet and takes less than thirty seconds to read slowly. And I might add that these audiences are far above average in terms of their linguistic sophistication, as they are law students, lawyers, or judges, all well rested and seated comfortably at a daytime conference—nothing like a typical individual, perhaps just a teenager, who is being questioned for hours in the middle of the night by people who think this person has done something terrible that he or she did not do. And yet, of the many hundreds of individuals who have taken this little quiz at my request, nearly 100 percent get it wrong, as you almost certainly did as well.
Of course, they get most of the questions right, as I am sure you did, but when I ask how many women were found killed at the crime scene, virtually everybody raises their hand high in the air, confident and without any hesitation, in order to assure me that they distinctly remember me saying that two women were found at the scene. (You remember that as well, don’t you?) I put this question to nearly a thousand audience members in the last three years, and only two or three have shown any hesitation in insisting that they heard me say such a thing.
Go back and read it again. I never said that two women were found at the crime scene. I said nothing about their sex or gender at all. I said that there were two victims, but I was very careful not to tip my hand or to say whether they were two men, or two women, or one of each. You thought I said that, but you were wrong. Go back and look again, and you will see for yourself. And yet look how certain you were just a minute ago about what you were sure that you had read. Why did you make that mistake? Perhaps it was because I told you that they were nursing students, or because they were victims of sexual assault, and you probably knew that a high percentage of both of those groups are women. But not all of them. Or maybe you were misled when you read that one of the victims had a twin sister. Most people who have a twin sister are women. But not all of them; some men have twin sisters. Of course, in your defense, it is true that you were making a reasonable assumption, and it is true that a very large percentage of nursing students with twin sisters are women. But that is not the point.
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.
What I have just demonstrated—that your memory can deceive you—can cause unimaginable grief in a criminal investigation. Suppose you have been questioned by the police, perhaps for several minutes, or maybe several hours. They have given you a great deal of information about the crime, although not all of it is accurate, and some of it is intentionally false. You have met with several officers during the interrogation, some of whom may have been in the room at different times, in addition to another officer who had escorted you downtown, and another one who had brought you a cup of coffee. Some of them have been feeding you different details about the case, while others merely mentioned them in your presence. At one point in the questioning, possibly after hours of this informal process, one of them tells you that the victim has identified you as the attacker. In exhaustion and frustration, you turn to the police and respond, “Then she is either lying or mistaken, because I never attacked anyone.” Then you shut up and ask for a lawyer (just a few seconds too late, as it turns out) and refuse to say anything else.
Could that simple little one-sentence denial somehow be used to convict you of a crime that you did not commit? Absolutely yes, without a doubt, and it happens all the time. But how? How could the police officer and the prosecutor use against you the fact that you made a simple denial of your guilt? Here’s how it has played out, again and again, in case after case around the country. When the case against you finally goes to trial, here is what the jury will hear from the prosecutor and the police officer:
Q. Officer Krupke, did the defendant say anything to you at all?
A. Almost nothing, but what he did say was extremely significant.
Q. Oh? What was it?
A. When I told him that the victim had identified him as the attacker, the defendant became indignant, and suddenly replied—here, let me read to you from my notes—“Then she is either lying or mistaken, because I never attacked anyone.”
Q. I am confused, officer. Why was that statement so significant?
A. Because we never told him that the victim was a woman. He was the first one to make any mention of the gender of the victim!
You see what they did there, don’t you? At this point, the jury will gasp and wheel around to face the defendant, who will return their gaze with a nervous and confused look, even if he is totally innocent. But the poor jurors will naturally think that they have just heard the “case cracker.” The officer will then proceed to explain how he was trained at the academy to very carefully and skillfully refrain from disclosing too many details to the suspect, and how he followed those instructions in this case, all so that he could possibly trip the suspect into revealing that he knew (wait for it) details that “only the real criminal would have known.”
This happens all the time, probably every day of the week. In one New York case, a police officer testified that, when the defendant was brought to the station for a lineup behind a one-way mirror, he reportedly asked one of the officers afterward, “Did she really pick me out?” That simple little question is not incriminating at all by itself, but it became extremely damning evidence of guilt after the officer insisted that he had never told the defendant that the victim was a woman, or had even mentioned it in his presence.90 The defendant in that position then has to explain, if he can, how and when he thinks he overheard some police officer mention that detail, but now it is his word against the police’s. And guess who will win that argument almost every time?
This trick works so well in obtaining incriminating statements from guilty suspects, some police officers simply cannot stop there, and they routinely use it against innocent suspects as well. One recent study of proven false confessions from innocent suspects revealed that almost every one of them (thirty-eight out of forty confessions) was full of extremely incriminating details that “only the real killer would have known”—which all sounded extremely damning, until you find out that all of these confessions have come from someone who is totally innocent.91 (I told you about one of those cases earlier, involving a sixteen-year-old named Felix who allegedly gave such a confession to the police before they found out that he was locked up in a juvenile detention center on the day of the crime!)
How does this happen? How could it possibly be the case that a perfectly innocent man could give a confession, or even just a short statement, or maybe just ask the police a single question, that seems to prove that he knew some details about the crime, even though the police will invariably swear that they never told him about those details? Perhaps the officer simply does not know, or cannot correctly remember, every word of exactly what was said in the suspect’s presence while he was at the station house for several hours. Or maybe the suspect simply assumed that he was told some detail that he actually was not told—just as I tricked you moments ago into thinking that I told you about two women when I said no such thing.
In ordinary conversations, all of us are constantly making assumptions and deductions based upon things that our interlocutors did not actually say, but which we gather that they meant to imply. It saves us all a great de
al of time, and it is all just harmless fun in the context of a chat between two friends. But this natural human tendency, which normally works in ways we do not even perceive, can get you into a great deal of difficulty if you ever agree to talk to the police. Even if you were not present at the scene of a crime and know nothing about it, it is impossible for you to answer questions (or just to make truthful denials) about that event for several hours without eventually slipping up and unintentionally revealing that you have made an assumption about something that you were not actually told. And heaven help you if even one of those assumptions turns out to be true, because then you have just incriminated yourself.
Every American over the age of five knows a little bit about the Fifth Amendment to the United States Constitution, and the right of every citizen to not be a witness against himself. Most Americans are not aware, however, of just how unspeakably precious this right is for every criminal suspect, even the innocent. That is why, tragically, the vast majority of all people who believe they have nothing to hide willingly agree to waive their Fifth Amendment privilege and talk with the police. But you now understand why that mistake is a foolish and tragic gambit. And now you also understand why police officers and prosecutors around the country advise their own children not to talk to the police, while at the same time they give the opposite advice to everybody else’s children.
At this point, many readers might be tempted to put this book down, thinking to themselves, OK, I get the picture, and now I understand what I need to do. If the police ever ask me whether I want to talk with them, I will simply remain silent. Or else maybe I will tell them I want to assert my right to remain silent. But it is not that simple at all. Either one of those choices, believe it or not, could prove a different kind of mistake, one no less grave and imperiling as talking in the first place.
II
DON’T PLEAD THE FIFTH
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.
—Supreme Court Justice Antonin Scalia, Mitchell v. United States, 526 U.S. 314, 332 (1999) (dissenting opinion)
Until a few years ago, most judges and lawyers believed that one’s silence in the face of questioning by the police could not be used as evidence of one’s guilt. In fact, not long ago, the Supreme Court wrote that “evidence of silence at the time of arrest” generally does not tell us very much about guilt or innocence. The court correctly recognized that “at the time of arrest and during custodial interrogation, innocent and guilty alike—perhaps particularly the innocent—may find the situation so intimidating that they may choose to stand mute.”1 That is why the Supreme Court also stated that the Fifth Amendment privilege, “while sometimes a shelter to the guilty, is often a protection to the innocent.”2 As a result, the Supreme Court back then held that a prosecutor was not allowed to tell the jury about the fact that a defendant had invoked his right to remain silent.3
In other words, the Supreme Court understood that the Fifth Amendment was written for the protection of both the innocent and the guilty, and that both groups have many reasons for asserting the privilege. In the last several decades, however, a conservative majority has emerged on the Supreme Court and undermined the basic protection of your right to remain silent.
Few men or women in our lifetimes have been so unjustly vilified and portrayed in the popular media as the late Justice Antonin Scalia of the United States Supreme Court. If you are not a lawyer who read his opinions, if you know nothing about Justice Scalia other than what you have read in the popular press, you have surely been deceived into believing that this man was some sort of archconservative who could regularly be counted upon to side with the government and trample the constitutional liberties of the poor and the powerless. The truth is much more complicated than that. While Justice Scalia was, by his own admission, exceptionally stingy in refusing to accept arguments about constitutional rights that involved some aspect of general “liberty” that are not explicitly mentioned in the Constitution—rights like abortion, or same-sex marriage—when it came to the defense of constitutional liberties that are explicitly described in the Constitution, no other recent member of the Supreme Court was so uncompromisingly passionate and liberal in refusing to water down those protections.4
But with all due respect to Justice Scalia for his passionate defense of the most precious constitutional rights that are explicitly laid out in the Bill of Rights, nobody else on the court has been such an articulate and ardent proponent of the view that the Fifth Amendment privilege only protects the guilty, and that innocent people have no reason to even assert, much less treasure, that privilege. And Justice Scalia used that misguided assumption, as well as his considerable influence on the court, to help shape the development of American constitutional doctrine in ways that have endangered anyone pulled into a criminal investigation.
The conservative majority on the Supreme Court, under the eloquent leadership of Justice Scalia, accepted three of the most monstrous and dangerous lies that have ever been sold to the court by the prosecutors of the nation:
1. They believe that only guilty people would ever knowingly refuse to talk to the police, because the innocent have nothing to hide. Justice Scalia talked a majority of his colleagues into joining an opinion that he wrote, in which he sincerely but mistakenly asserted that the problems caused by the risk of self-incrimination are “wholly of the guilty suspect’s own making,” because “[a]n innocent person will not find himself in a similar quandary.”5
2. And since the court now believes that the innocent have nothing to fear from the police, the Supreme Court has mistakenly reasoned that nothing but good can come out of a legal system that gives the police every possible tool and incentive to get you to waive your right to remain silent. The Supreme Court has recently held several times, again in a line of opinions written by Justice Scalia, that it is not evil but “an unmitigated good” when criminal suspects voluntarily agree to make a statement that can be used to help convict them.6 That is painfully false, and it would be true only if nobody but a guilty man could possibly get himself convicted by talking to the police.
3. And because of that mistaken assumption, 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. Justice Scalia has put the point this way: “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.”7 Justice Scalia’s assessment of his son’s silence makes perfect sense, but his analogy was nonsense. With all due respect, he simply did not understand the reasons why young men interrogated by their fathers do not face the same perils encountered by innocent suspects who are questioned by a police officer they do not know, as this book has explained. His mistaken intuition is also plainly refuted by a study of innocent prisoners who were convicted of crimes they didn’t commit only to be cleared by DNA evidence, which found that 39 percent of those innocent defendants had decided not to testify at the trial where they were falsely convicted.8 It is absolutely false to suggest that the silence of the accused is important evidence of guilt.
Because of this mistake, the Supreme Court made legal history when it held just three years ago that the silence of a criminal suspect in the presence of the police does in fact support the conclusion that he or she must have something to hide.9 In the case of Salinas v. Texas, decided in 2013, the five most conservative justices on the court (the only five appointed by Republican presidents) held for the first time that the silence of a criminal suspect, at least if the suspect is not in custody, is logically relevant evidence that is admissible against the suspect at trial and may be used to help persuade the jury that the suspect is guilty! Those five members of the court agreed that the State of Texas was therefore within its rights to prove and argue that a young man named Genovevo Salinas was probably guilty of a crime because he remained
silent when the police asked him a question about it.
Incredibly, the Supreme Court was also persuaded to adopt this position by the supposedly liberal administration of President Barack Obama and the Department of Justice led by Attorney General Eric Holder (who, Obama later said, has “worked passionately to make sure our criminal justice system remains the best in the world”).10
Shortly before his recent death, Justice Scalia candidly confessed that “we federal judges live in a world apart from the vast majority of Americans,”11 which is so heartbreakingly true. Justice Sonia Sotomayor, lamenting the lack of diversity on the Supreme Court, recently complained that “there is no criminal defense lawyer on the court.”12 Even Justice Kagan, one of the supposed liberals on the court, confessed that one of the best things about her new job is that she no longer has to go through security at airports.13 Small wonder, therefore, that these justices are in over their heads when called upon to imagine what perils are posed by police encounters for the rest of us ordinary Americans.
The Salinas decision was tragic for so many different reasons, including the fact that the court was simply wrong about the pivotal assumption that only guilty people have any reason to remain silent. But it was unbearably ironic that the court would reach that result in a case like this one, because the precise question that young Genovevo “suspiciously” refused to answer from a police officer was whether shells from a shotgun that Genovevo owned “would match the shells recovered at the scene of the murder.” Even if he was completely innocent and knew nothing about this alleged murder, his refusal to answer a question like that one was exceptionally smart, for all the reasons outlined in this book. There is no way that I would have answered it, and I have practiced and taught criminal law for more than thirty years. But if I had been in Genovevo’s position and knew I was totally innocent, and if I only had a few days to live and nothing to lose, I would have been tempted to say this much to the officer: