25 takeaways from this lecture:

–PART 1. ENTER LAW PROFESSOR JAMES DUANE —

00:01:04 The Fifth Amendment of The United States Bill Of Rights provides that “No person shall… 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.”

Unfortunately, pleading the 5th amendment has gotten a bad reputation due to the fact that many people and cultures, and exacerbated by the media’s quest for drama and headlines, assume that ‘pleading the 5th’ and refusing to answer questions may be proof of lying or deception.

‘Too many, even those who should be better advised, view (the 5th amendment) as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit purgery an claim the priviledge. (U.S. Supreme Court: Ullmann v. United States, 350 US 422,426 (1956))

[EDITOR’S NOTE: For more on the awkward relationship between media and profit, check out John Oliver’s emission When Content Meets Native Advertising. For more on cultural beliefs and differences, watch my lecture Managing Age, Cultural & Personal Differences, Jerks & Assholes.]

“The police are here. They want to talk to me. What should I do?”

00:03:05 Justice Robert Jackson‘s advice to this question was “[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.”

00:04:01 It’s shocking the amount of people who say they will voluntarily talk to the police with the logic of: “I’m a professional/attorney/celebrity/authority figure/respected individual…”

00:05:20 One major reason for refusing to give up your 5th amendment right is that modern criminal law is so complex – crossing several thousand sections of the US code – that even the federal government is unable to identify the current number of federal crimes on the books that a person can be charged with. Current guestimates put the total number of federal crimes at roughly 10,000.

This problem is further compounded by the ‘virtually infinite variety of facts and circumstances that can trigger a criminal investigation.’ This makes it impossible for anyone to know beforehand during police questioning whether or not you are, or may inadvertently become, a suspect in a criminal investigation, and whether or not your statements may be (mis)interpreted by a prosecuter, causing you to appear guilty.

With roughly 10,000 crimes and an infinite number of ways to be pulled into a criminal investigation, it’s shocking the amount of people who say they will give up their 5th amendment right.

Top 10 reasons why you shouldn’t waive your 5th amendment right to remain silent:

08:23 Talking to the police will not help you because:

• Talking to them in no  way prevents you from being arrested. A police officer’s job is to develop a good, strong case with probable cause and preferably with a confession and then hand it off to the Commonwealth’s attorney for prosecution as quickly and easily as possible.
• By law, any information you provide can and will be used against you in the court of law, but it’s highly unlikely it will be used to actually help you during trial because it would be regarded as ‘hearsay’ under the Federal Rule of Evidence 801(d)(2)(A).

00:10:07 You have no guarantee of benefit in return for your talking to the police and/or admitting to anything. Police may say they will ‘put in a good word for you’ or that ‘cooperating with them on this investigation may reduce your sentence,’ but any and all negotiations are for your attorney to do with the other attorney and/or the judge, not you with the police officer. The police officer is not in a position to promise deals with you in terms of sentencing.

[EDITOR’S NOTE: For an interesting look into how the legal process applies to business owners, check out F*ck You, Pay Me by Mike Montiero and his lawyer.]

“86% of all defendants plead guily at some point before trial.”

“More than 1 out of 4 people wrongfully convicted but later exonerated by DNA evidence made a false confession or incriminating statement.”

–The Innocence Project

00:13:46 Even if you are innocent, it is possible that you can get carried away, tell a little white lie, make a slight exaggeration, or get mixed up in the facts and timeline of the story, thus shooting yourself in the foot.

Saying just one little thing that isn’t true can call into question the integrity of your entire story, or alibi.

00:14:39 Even if you are innocent and don’t make any of the mistakes mentioned above, you don’t know how your statements will be (mis)interpreted by the police officer who is providing a character reference of you while you were making those statements, or by a prosecutor in light of new evidence after you have made your statements. You may still inadvertently provide information which can be used to convict you.

00:16:02 ‘One of the basic functions of the 5th amendment is to protect innocent men who otherwise might be ensnared by ambiguous circumstances. Truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the goverment with incriminating evidence from the speaker’s own mouth.’ (U.S. Supreme Court: Ohio v. Reiner, 532 U.S. 17,20 (2001))

00:17:47 Even if you are innocent, don’t make any of the mistakes mentioned above, and don’t inadvertently provide the police with anything incriminating, it is still possible that the police forgets, (mis)interprets, or alters your testimony, thus causing you to appear guilty in front of a jury of your peers.

The human brain hears things and then fills in the details afterwards. This happens to everyone; even police officers.

00:19:40 Even if you are innocent and avoid all of the mistakes mentioned above, AND even if your statements are videotaped, your statements could still be used to find you guilty if the police forget, (mis)interpret, or alter the questions they asked you that lead to your answers.

00:21:38 Even if you are innocent and you do not make one of the mistakes mentioned above, it is still possible to be found guilty if later in their investigation the police uncover any evidence (even mistaken and unreliable) which can lead the police, and a jury of your peers, to believe that you were untruthful or deceptive with any statement you made.

— PART 2. ENTER POLICE OFFICER GEORGE BRUCH —

People are inherently honest and want to tell their side of the story. This is their biggest downfall.

00:29:30 Nobody is innocent; everybody does something wrong with some degree of frequency. A police officer can follow anyone, and sooner or later that person will break some law that the police officer can legally stop and charge you for.

00:30:27 (In addition to, and in part because of, the complexities of the criminal code outlined above) People are stupid and/or act foolishly.

00:31:51 When being interrogated or investigated by the police – even if you are innocent and have nothing to hide –  you generally find police interrogations uncomfortable and want to end as quickly as possible. The police officer, on the other hand, has handled police interrogations just like yours thousands of times before, and keeping you as long as legally possible might even give the officer extra overtime pay. It is therefore in the officer’s best interest to keep you as long as possible. This puts the police officer in a position of power in your situation.

00:31:40 A good police officer’s job is to develop a good, strong case with probable cause and preferably with a confession and hand it off to the Common Wealth’s Attorney for prosecution as quickly and easily as possible.

A good defense attorney’s job is to hope they can get to their client before the client has made any statements to the police.

00:33:27 Good police have techniques of getting information bout of people who are trying not to give information to the police.

00:33:32 Good police will not want to put an innocent person in jail. Good police will also try to do his or her work thoroughly enough so that he or she doesn’t bring an innocent person into an interrogation room.

00:34:13 The first thing a police officer does when placing a person into police custody is to give the person a Miranda warning:

1. You have the right to remain silent.
2. Anything you say can and will be used against you in a court of law.
3. You have the right to an attorney.
4. If you cannot afford an attorney, one will be appointed for you.

Most people usually don’t listen to their Miranda warning.

Before asking the person if they understand and are willing to talk to the police officer, the officer may chose to give the person a storyline of all the facts the officer knows thus far (which, if they are good police, will usually be pretty close to the truth) while reading the person’s body language for guilty/innocence clues and to confirm the elements of the officer’s story.

It isn’t until after the officer has done this that the officer will ask if the person would like to speak. Asking before if the person would like to speak to the officer before outlining the facts may cause the person to immediately shut up, and the officer will have lost his or her advantage in the situation.

Upon confirmation that the person is willing to speak, the officer may then go on to explain the difference between a truth and a lie, stressing that if the officer goes before the judge explaining that the person lies to the officer during questioning, the judge will not be happy about it. However, if the officer goes before the judge explaining that the person told the truth and took responsibility for his or her actions, the judge will take that into consideration.

Follow this script, and a good police officer is very likely to get the person being questioned to waive his or her 5th amendment rights and confess to the crime, or share whatever information they know.

00:36:40 There are generally four types of people:

1. Those with whom the police officer must get into the person’s frame of reference and ‘become’ the person in order to get them to cooperate, such as identifying with a rapist in order to get him or her to open up and start talking.
2. Those with whom the police officer can be him or herself and have an discussion with the person without having to ‘become’ them.
3. Those people who like to tell stories in an attempt to hide or justify the crime.
4. Those people who you can just sit there in silence with and wait until they eventually start talking all by themselves because they are uncomfortable with silence.

00:39:27 Carry a recorder and start each interview by saying ‘I’m going to record our discussion because my handwriting is terrible.’ Asking if they are okay with this is not necessary because if they are not okay with it they will tell you or won’t speak, and in a police interogation room everything is being recorded anyway.

If during the interview you want to dig deeper, you can always change the tone of the interview and say, “can I ask you something ‘off the record?’” Even if you turn your digital voice recorder off in front of the person, everything that is said and done in a police interrogation room is recorded.

There is no such thing as ‘off the record.’

[EDITOR’S NOTE: Recall in my interview with Public Relations Professional Daphné Claude that in public relations, sometimes clients want to please journalists so much that they’re ready to talk bad about their competition and use ‘off the record’ when they shouldn’t. The idea of ‘off the record’ isn’t the same for the client as it is for the journalist.

For a journalist, ‘off the record’ means they can use the information you gave them, but they can’t quote you directly as the source. For the client, ‘off the record’ means the journalist won’t use the information at all, which is completely useless when you think about it. Why say something to the journalist if you don’t want him or her to use it? You either don’t say anything or you say it.]

00:42:01 Good police instinctively write down and record EVERYTHING that happens or is said in any situation, knowing that they can use it in the court of law, or at some time in the future.

00:43:55 You don’t necessarily need a recording of a discussion for it to hold up in the court of law. The police officer’s word against your word is adequate.

00:44:00 In the court of law, while you are legally innocent until proven guilty, you are also being tried by a jury of your peers. And as mentioned above, people make mistakes and can be influenced by many different things:

A jury usually is already biased against a person who has a defense attorney, assuming the person must have done something to deserve being in court.

[EDITOR’S NOTE: The above cognitive bias is refered to as the just-world hypothesis.]

A jury is usually biased for an officer or a professional witness in a suit who is testifying against an alleged criminal.

[EDITOR’S NOTE: The above logical fallacy is referred to as an argument from authority.]

00:45:44 The word interrogation has a negative connotation to it, and nobody likes being interrogated. Simply calling a police interrogation a police interview changes the entire dynamic of the discussion. Good police take full advantage of linguistics.

—

About the lecturers:

• James Duane is a law professorfrom Regent Law School in Va Beach, VA and is former criminal defense attorney
• George Bruch is a police officer from the Va Beach Police Department