You Have the Right to Remain Innocent

by James Duane

  The use of dishonesty and trickery by the police always poses a risk of serious injustice, even if it does not cause an innocent person to confess altogether, and even if it only gets him or her to talk just a little bit. As we will see, there are many different ways that the mere act of talking to the police can get you in a great deal of trouble, even if you do not technically admit your guilt, and it almost does not even matter what you say.

  The bottom line is clear. Even if you are innocent, the police will do whatever it takes to get you to talk if they think that you might be guilty. That includes saying just about anything, no matter how dishonest, to help persuade you that it might be in your best interest to give them a statement. And the courts will generally say whatever they need to say to excuse the dishonesty on the part of the police, even if the courts have to say something that is just as dishonest. This ought to be a national scandal and not swept under the rug the way that it is. This is not a legal system that is deserving of our respect, much less our cooperation. If a used car salesman engaged in this sort of deception, he would be thrown behind bars. It boggles the mind that we regularly allow police officers to do the same sort of thing to our children—but of course we’re only allowing it because we don’t know that it is going on.

  What if you give information to a police officer or any other individual that you think might support your claim of innocence? Will that person be allowed to share that information with the judge or the jury at your trial? The answer will surprise you: no, almost certainly not—not unless it hurts your case. Once the case gets to trial, as you know from television, the police and other witnesses are not allowed to share all the information in their possession—not even if they wanted to do so—because they are subject to a collection of rules known as the law of evidence. Those rules define certain kinds of information that are inadmissible, and which therefore cannot be revealed to the judge or the jurors who are deciding the case. And one of the most famous of those rules is the law of hearsay, which generally prevents the police from telling the judge about information that they have heard from other witnesses—including of course the defendant. So even if your lawyer asks the police officer to tell the jury the “helpful things” you told the police to support your claim of innocence, the prosecutor will object, and the judge will usually refuse to allow the officer to answer the question.

  But it gets even worse than that. Unfortunately for the defendant, there is a major exception to the hearsay rule in every state and federal court, which does in fact allow the police officer to tell the jury about a statement made by the defendant, or about any portion of his statement, but only if that information is used against the defendant at the request of a prosecutor who is trying to prove the defendant’s guilt. If a prosecutor asks the officer to tell the jury about portions of the defendant’s statement that can be used to help persuade the jury of the accused’s guilt, the defendant’s lawyer cannot object that this is hearsay, and the testimony will be allowed. But nothing you tell the police will be of any value to your lawyer at the trial. That is just one more reason why the police know they are lying when they tell you or your frightened child, “I just want to help you.”

  We are all familiar with the famous Miranda warnings, written by the Supreme Court a long time ago, which require arresting officers to advise the suspect that, among other things, “anything you say can be used against you in a court of law.” The problem with that warning, as most criminal suspects unfortunately do not understand, is that it is literally true. What you tell the police, with extremely rare exceptions, will never be revealed to the jury at your trial unless it is offered by the prosecutor and is used to help get you convicted.

  Because of these rules of evidence, a prosecutor is allowed to handpick the parts of your statement to the police that might be used against you, reveal those parts to the jury, and keep back the rest. Take for instance Jasper Perdue, who agreed to give a statement to a special agent of the FBI in a bank robbery prosecution.50 When the case went to trial, the agent testified that the defendant had admitted that he was involved in a robbery, but only as a lookout. The defense attorney was concerned that the agent was only relating a small portion of the conversation and was giving the jury the misleading impression that the defendant had confessed—when in fact, he argued, the overall tenor of the interview had been just the opposite. On cross-examination, he tried to ask the officer several questions in an effort to set before the jury the rest of the story and the rest of the interview, and to confirm that Perdue had not admitted that he had shot the clerk during the robbery. The prosecutor objected, and both the trial judge and the court of appeals held that the officer would not be allowed to answer any questions about the portions of the interview that might have helped the defendant. Perdue was convicted and sentenced to prison for 122 years. The United States Court of Appeals said it had no problem with that arrangement, because that is what happens at trials all the time.51 I have no idea whether Perdue is innocent or guilty, but I can guarantee you this: the FBI agents who told him that it might help his situation if he agreed to talk were lying to him, and they knew it.

  In other words, talking to the police is at best a no-win situation for someone suspected of committing a crime. If you talk to the police for three hours and give them three hundred details that would all tend to support your defense, and you only mention three details that might help get you convicted, the prosecutor has every right under the law to ask the officers to only tell the jury about the three details that seem to implicate you in the crime. Do you think the police officers who falsely promised you that they were somehow offering to “help you” by collecting information to present to the judge will regret their lie after you have been convicted? No chance. They have done it to countless other criminal suspects, and they will do it again. But you can be sure that they have already made sure that no police officers will ever do it to one of their children.

  When confronted with police officers and other government agents who suddenly arrive with a bunch of questions, most innocent people mistakenly think to themselves, Why not talk? I haven’t done anything. I have nothing to hide. What could possibly go wrong?

  Well, among other things, you could end up confessing to a crime you didn’t commit—or your child might, if you have not warned them. The problem of false confessions is not some sort of urban legend. It is a documented fact, and extensive psychological research has confirmed how these false confessions can be linked to certain commonly used police interrogation techniques.52 Indeed, research suggests that the innocent are, ironically, sometimes the most likely to be unfairly influenced by deceptive police interrogation tactics, because they tragically assume that somehow “truth and justice will prevail” later even if they falsely admit their guilt.53 Nobody knows for sure how often innocent people make false confessions, but as Circuit Judge Alex Kozinski recently observed, “Innocent interrogation subjects confess with surprising frequency.”54

  It happens especially in cases when the suspect is young and vulnerable. A thorough analysis of 125 proven false confessions found that 33 percent of the suspects were juveniles at the time of arrest, and at least 43 percent were either mentally disabled or ill.55 In Oakland, California, police isolated and interrogated a sixteen-year old named Felix in the middle of the night without a lawyer and denied his requests to see his mother. Eventually he gave them a detailed videotaped confession to a murder, allegedly filled with numerous specifics only the real killer would have known. At that point, it looked like there was little chance this young man would have been able to avoid a conviction; when a jury hears that someone has confessed, they are almost certain to convict. But fortunately for him, it was later revealed that young Felix had an airtight alibi, because he had been locked up in a juvenile detention facility the day of the killing! The charges were then dismissed, and he was released from jail.56

  Leonard Fraser, fifty-one years old at the time, was charged with murdering Natasha
Ryan, then fourteen years old, who had been missing for nearly five years at the time of his murder trial. The prosecution’s case was based almost entirely on his recorded confession to the crime, because there was no other substantial evidence of his guilt, but that was enough to persuade the prosecution to go ahead with the case. Late in the trial, however, Fraser received an incredibly lucky break when it was suddenly discovered that Ryan—the woman he’d confessed to having murdered—was discovered alive and well! She had been living in her boyfriend’s house for years. The charge was dismissed and the case was thrown out of court.57 Had Ryan not been discovered during the trial, Fraser almost certainly would have been convicted after he confessed to murdering a woman who wasn’t even dead.

  Eddie Lowery was a twenty-two-year-old soldier stationed at Fort Riley, Kansas, when he was interrogated for an entire workday about a rape and murder he never committed. Like a typical innocent man, he persisted for hours in emphatic assertions of innocence. Like typical police officers, the interrogators acted open minded and unconvinced. Perhaps, he foolishly hoped, he might persuade them of his innocence if he repeated his story over and over again at greater and greater length. After the day-long interrogation, he was worn out and gave them a detailed confession. He served more than twenty years in prison until he was recently released, after evidence proved that he was actually innocent. So why in the world did he confess to such a terrible crime, when we now know that he was innocent all along? He explained the mindset of someone who has been broken down by seven hours of relentless interrogation: “I didn’t know any way out of that, except to tell them what they wanted to hear, and then get a lawyer to prove my innocence. . . . You’ve never been in a situation so intense, and you’re naive about your rights. You don’t know what [someone] will say to get out of that situation.”58

  One analysis of forty-four proven false-confession cases revealed that more than a third of the interrogations lasted six to twelve hours, many lasted between twelve and twenty-four hours, and the average length was more than sixteen hours.59 The longer you speak to police officers, the more likely it is that you will confess to some crime that you did not commit—isn’t that enough of a reason to avoid speaking to them?

  These dangers, of course, are greatest among the most psychologically vulnerable, including the youngest suspects. Another study of 340 exonerations found that 13 percent of the adults falsely confessed compared to a whopping 42 percent of the juveniles.60 It is unconscionable that our system supports such heinous practices—nearly half of exonerated children were put behind bars because of something they said to police without an attorney present. Someday soon, perhaps when you least expect it, a police officer may receive mistaken information from a confused eyewitness or a liar, or circumstantial evidence that helps persuade him that your child might be guilty of a very serious crime. Under the law, the police do not need to obtain your consent, or even to notify you, before they approach your son, for example, and ask if he will agree to answer their questions. They do not even need a warrant for his arrest if they can deceive him into thinking that it might be a good idea for him to accompany them on a trip to headquarters “voluntarily” to try and clear a few things up. If he is innocent of any misconduct or wrongdoing, he will of course emphatically deny it again and again, perhaps for six hours or more. The problem is that guilty people do the same thing, so the police officers have heard it all a million times and will not be moved at all by his passionate denials. But to keep him talking, they will deliberately pretend that perhaps they are uncertain or confused about how they wish to proceed, and they will do this even if they have already decided that he will definitely be arrested no matter how the interview ends. After six hours of relentless questioning, he might well break down and confess in exasperation and exhaustion, perhaps because he foolishly believes that it is his only way to get out of that room. All he needs to do is respectfully tell the police that he will not answer any questions and that he would like a lawyer—the same thing that the officers have instructed their own kids to do in that situation.

  Do you know where you were on Thursday evening at about eight o’clock last week, and who you were with, and what you were doing? Are you absolutely certain beyond any shadow of a doubt? Would you bet your life on it? If there is any possibility—no matter how slim or remote—that you could possibly be mistaken about such a thing, you are the kind of person who should never agree to talk to the police under just about any circumstances for as long as you live. And that includes practically everybody.

  God forbid you should ever come to swear under oath that some incriminating thing you told the police—or that they claim you told them—was not what you meant to say. Far too many jurors who have never been in such a difficult situation will find it impossible to believe that innocent people would ever make the mistake of saying the exact opposite of what they meant to say, even though psychologists understand that this is really not unusual at all.61

  Even if you do not misspeak by saying something that is different from what you meant to say, you can still incriminate yourself if you make an honest mistake and tell the police something that you thought was true but turns out to be false. When you are talking to a police officer who is investigating a murder or rape, there is no such thing as a little mistake. Every mistake is a big deal and can make it easier for the state to convict you.

  Consider the tragic case of Ronald Cotton.62 He spent more than ten years in a North Carolina prison for a pair of rapes that he did not commit, and he would have been there for the rest of his life if he had not been ultimately exonerated by DNA evidence that proved his innocence and established the identity of the guilty man. When he first learned that the police were looking for him, he foolishly did what most innocent people do under those circumstances: he went down to the police station to meet with them, answer their questions, and attempt to clear things up. He did not take the time to kiss his mother and girlfriend goodbye, because he never imagined he wouldn’t be alone with them again for more than a decade. When he was told by the officers about the date of the sexual assaults, he helpfully volunteered some details about his whereabouts, what he had been doing that night, and who he was with. He even invited the police to check with those individuals to verify his story.

  Unfortunately for Cotton, he had gotten his dates mixed up, and he’d actually told the police about where he was on another night. As a result, when the police checked with his supposed “alibi witnesses,” they were not able to confirm Cotton’s story but in fact contradicted it. What he thought would be helpful evidence for his defense had now only made things worse, further arousing the suspicions of the police. After they came back to confront Cotton with the seeming holes in his story, he realized that he had made an innocent mistake and tried to set things right by telling the police where he had actually been that night. But it was way too late, and the damage had been done. What he did not know was that the police had already made up their minds that he was guilty, based upon a fairly confident identification they had received from one of the two victims. But police are only human, as I have said, and witnesses are only human too, and none of them knew of the mistakes they had already made. The police concluded that the information Cotton had volunteered was a sign of his guilt.

  If you give the police information that turns out to be inaccurate, and the police mistakenly believe that you were lying to them on purpose, that fact can be devastating to your defense in three different ways. First, it can help to convince the police that they have the right suspect, which might make them less likely to spend additional time pursuing other possible leads that could help them identify the actual offender. Second, the prosecutor can present that evidence to the jury, and the judge will tell the jurors that, if they believe that you knew your statement to the police was false when you said it, they are permitted to regard that knowing falsehood as evidence that you are guilty. (And how will the jury ever really know whether you are lying to the police?
They are only human, just like the cop.) Third, and perhaps worst of all, our legal system places no limits on the ability of the police to share the details of their ongoing investigation with the critical witnesses against you. When a rape victim is told by the police that “the suspect lied to us about where he was that night”—which in Cotton’s case was not true, but they did not know that—it becomes much easier for the witness to convince herself that the “liar” is the one who committed the crime and attacked her.63 Indeed, that is exactly what happened to Ronald Cotton. The two women he allegedly raped were less than completely confident the first time they saw his face in a photo, and one actually picked out another individual as the attacker. But by the time of Cotton’s trial, both women testified that they were completely certain he was the one.

  Perhaps the greatest risk of all from giving the police inaccurate and false information is the possibility that the government may decide to prosecute you for the separate criminal offense of lying to the government! Yes, you heard that right: even though our legal system permits and encourages the police to lie to you about almost everything while they are talking to you, it is a federal offense—indeed, it is a felony—for you to make a single statement to the police that you know to be false. Under Title 18 of the United States Code, section 1001, you may be sent to prison for up to five years if you made a single statement to a federal agent that turns out to be false, as long as the prosecutor and the jury can both be persuaded that you knew it was inaccurate.64 Of course, you might know in your heart that it was just an innocent mistake, as it was for Ronald Cotton, but the police and the jury have no way to know an innocent mistake from a guilty one. They might easily be persuaded that you knew it was a lie when you said it. The proof of your intent is of course only circumstantial, but that is always true in these prosecutions; everybody who is caught in a lie will routinely deny it, so don’t expect them to be impressed when you deny it as well. And if you are charged with a violation of this statute, it does not matter whether it was only a single statement about a fairly minor matter, or whether it ever deceived the police or actually affected their investigation.