03 November 2016

"You Have the Right to Remain Innocent"

Erstwhile colleague Jim Duane's book, subtitled "What Police Officers Tell Their Children about the Fifth Amendment,"  answers two very important questions but only suggests a third about which I'll speculate.

But first, the answers. Don't talk to the police. Plead the Sixth Amendment.

Second, the background. Who knew that there are more than forty federal agencies employing a total of more than 140,000 armed investigative agents? Who'd have guessed that among the gun-totin' agents are those from the Library of Congress and the Railroad Retirement Board?

Who knew that any of these federal agents as well as those of the fifty states and thousands of smaller entities of the states are free to lie about just about everything (like the crime they are investigating, what evidence they have against you, whether your statement is off the record, and what others have said (or not said)) when they question you? Well, maybe those who watched "Making a Murderer."

Who knew that police officers can testify from their reports about anything they thought you said that may be incriminating but that any exculpatory statements you may have made in the same conversation are inadmissible hearsay? That people, especially juveniles, confess to crimes as serious as murder that they haven't committed? That they couldn't have committed because the "victim" is still alive? That there are "countless bogus experts out there, all more than willing to testify in exchange for the generous compensation that is paid to them by willing prosecutors"? Which is really good to know because they can (and do) testify incompetently or corruptly and will twist even truthful information against you.

Jim's first piece of advice--don't talk to the police--thus seems well warranted.

But why plead the Sixth? Doesn't the good old Fifth Amendment work just fine? I would have thought so until I read Jim's book. It turns out that simply remaining silent can be used against you. That improperly or imprecisely or tentatively asserting your rights under the Fifth Amendment means you haven't done it at all. And, what's even worse, your improper, imprecise, or tentative assertion of the Fifth can be used against you!

Thus, "by invoking your Sixth Amendment right [to talk to your attorney before talking to the police] ... you will probably be able to keep that information from the jury." But don't hesitate or turn your statement into a seemingly more respectful question.
There is only one way to avoid this problem. When you ask for a lawyer, do not worry about sounding polite, because that will make you sound unduly tentative or equivocal. Never ask the police officers what their opinion might be. Do not even use the words I think or I might or maybe. You meed to say, with no adverbs, in only four words, "I want a lawyer." And then you need to say it again, and again, until the police finally give up and realize they are dealing with someone who knows how our legal system really works.
What about my third question, the one Jim didn't answer, at least not clearly? Why should we care about the "right to remain innocent"? I understand why I should care about me and my family but should I also care about you and yours? After all, most of the time the investigative skulduggery Jim describes in uncomfortable detail puts away someone who is actually guilty. Sure, more than a trivial number of innocent folks have been locked up, in some cases for more than two decades, but what the heck, a few eggs must be broken to make an omelette.

Jim seems to think that we should be exorcised by the facts he describes because, after all, both the innocent and the guilty have Constitutional rights. But I wonder. Do most Americans agree? I suspect that more and more do. Even the law-and-order conservatives surviving from the Nixon era are showing some concern about the overreach of the government at all levels. Yet even for them, I wonder if that concern may be focused on the group of which they find themselves a part. In other words, do folks care about the Other as much as those who look like or talk like or worship like them?

You'll have to answer that question for yourself but in the meantime read this book. You'll be glad, even if only for yourself, that you did.

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