by James Duane
As Mark Twain once famously quipped, the difference between the right word and the wrong word is like the difference between lightning and a lightning bug. Even innocent criminal suspects, when they are a little bit nervous, can say things that they did not mean to say—as we have seen—or accidentally provide mistaken information. But that is only half the problem. The other party to the conversation—the police officer—is also human, just like you, and he or she can make mistakes as well. If an officer’s recollection of your conversation is not 100 percent accurate, even an innocuous or innocent remark can become devastating evidence against you.
The most obvious possibility is that a police officer might simply be unsure about exactly what you said, or did not hear you correctly. Maybe it was your fault for not speaking clearly enough, or maybe the officer was having a little trouble hearing that day. Even if it was only one word that was misunderstood, perhaps just a simple little pronoun, it can make all the difference in the world. In one Virginia case, a police officer who tricked a suspect into talking to him (he took advantage of the fact that he was dating the young man’s mother, and falsely offered to “help” him) later testified that the first thing the suspect said at the beginning of their interview was, “I messed up,” which is of course more or less a confession of guilt.65 Fortunately for the defendant, however, the police officer was honest and self-aware enough that he was forced to admit that what he might have heard the defendant say was, “This is messed up,” which is of course a protest that the criminal investigation was focused on the wrong man, a protestation of innocence. The difference between two possibly muffled pronouns in that case was quite literally the difference between guilty and not guilty.
An innocuous statement by a person professing her innocence can be terribly incriminating if someone else does not recall it with perfect accuracy. In California, a woman named Shirley Smith was accused of killing her infant grandson while she babysat for his mother. This woman had no criminal record, no possible motive to hurt this child, and there was no dispute that she loved him deeply. But she foolishly agreed to be interviewed about the death by a social worker, who later turned out to be a key witness against Smith at her trial for the murder of the child. According to the social worker, when Smith was told that the official diagnosis for the child’s death had been changed from sudden infant death syndrome to shaken baby syndrome, the heartbroken grandmother supposedly replied, “Oh, my God. Did I do it? Did I do it? Oh my God.”66
Though these questions were not even a statement, much less a confession, the prosecutor successfully used these alleged questions to help persuade the jury to convict Smith of murder, arguing that no innocent woman would even ask such questions out loud when confronted with such accusations. But another witness who was at the same interview (Smith’s daughter and the mother of the victim) denied that Smith had said such a thing, and testified under oath that Smith actually said, “No, I didn’t.” Unfortunately for Smith, there was no way for sure to resolve what she had actually said. But the reordering of just a few short one-syllable words can spell the difference between guilty and not guilty. Indeed, even if police officers or social workers correctly recall your response word for word, you may unwittingly incriminate yourself if they mistakenly misinterpreted the inflection of your question (“I killed the baby?” can become “I killed the baby”).
Should the police actually understand what you say, there is of course always the danger that they will misremember what you said, or that perhaps they will remember a couple of extra words that you did not say. That is how the Commonwealth of Virginia convicted Earl Ruffin, an innocent man who spent more than twenty years of a life sentence in a Virginia prison for a rape he did not commit, until DNA evidence proved that he was innocent.67 When he heard the police were looking for him, he voluntarily turned himself in to answer a few questions and to perhaps help their investigation. He knew that he had done nothing wrong, thought perhaps he could help clear things up, and did not see how it could go awry. Stop me if you’ve heard this one.
When the police officer questioning Ruffin asked where he was on the night of the rape, the officer typed in his notes that Ruffin “stated he was with his girlfriend that night. He said he’s sure he was with Rosemary.”68 That information turned out to be 100 percent accurate. When the officer went to check out Ruffin’s alibi, he learned that Ruffin was indeed playing a game with his girlfriend, Rosemary, as well as two of their other friends, and all three of those individuals independently verified that the four had spent the evening together. So far, so good. His story checked out, just as he knew it would. So how on earth could that evidence possibly be used to help convict an innocent man? Chances are good that you mistakenly think there is no way, but you would be dead wrong.
When he showed up to testify against Ruffin at the trial, the police officer stunned the attorneys for both sides. He brought with him a copy of his typed notes from the interview with Ruffin, which he had typed up during their interview three months earlier. But now he had changed those notes and had added three more words that were handwritten. Now those new and improved notes contained the report that Ruffin had “said he’s sure he was with Rosemary at her house.” Those last three words had not been in the notes when they were first typed. Incredibly, the officer did not remember those words until after several months had gone by, and after he claims he sat looking at the notes for more than an hour. The officer also testified under oath that he was “[100] percent sure” that Ruffin had spoken those three words, even though they were left out of the original summary of the interview. The problem for poor Ruffin, unfortunately, was that his three alibi witnesses had all told the police that they were playing together at his house, which contradicted the officer’s new version of his statement and made him look guilty. Were they telling the truth when they gave that information to the officer? Almost certainly yes. After all, we now know that Ruffin was in fact innocent, as the DNA evidence proved twenty years later, so there would have been no reason for any of them to lie to the police about what he was doing that night.
Just because a well-intentioned police officer suddenly remembered three words that had not been in the report before, a statement by the defendant that might have been a key bit of evidence in his defense instantly became a key piece of evidence against him. It was used by the prosecutor to help persuade the jury that Ruffin had lied to the police and had in fact contradicted his own alibi witnesses about where they were that night. And only God knows for sure whether the police also told Ruffin’s alleged rape victim about this supposed false information he gave to the police, and the extent to which that information helped solidify her mistaken conclusion that he was in fact the attacker. Both of those possibilities are quite likely—more than probable enough to make any sensible observer realize that only a fool risks talking to the police at all.
It bears repetition, by the way, that poor Earl Ruffin only thought that his statement to the police could have been a key bit of evidence in his defense. That was a natural mistake, and most innocent people in his position make the same mistake every day and every night, but it is simply not true. As I explained above, the hearsay rules don’t allow your lawyer to force the police to tell the jury about things you told the police that might have been helpful to your defense. And so, even if the officer had not later changed his recollection of what Ruffin had said, the defense lawyer would not have been able to prove at that trial that the defendant had given the police that exculpatory account of where he had been the night of the crime.
Of course, Ruffin’s trial took place more than twenty years ago, and the danger of what happened to him is slightly less severe for most suspects today, because more interviews these days are being recorded with better-quality equipment, which often leaves less room for doubt about exactly what was said or how it was said. But that is not a complete solution to the problem posed by talking to the police. As incredible as it may sound, even now in the twenty-first c
entury, neither state nor federal agents are obligated under all circumstances to record everything you say to them, and unrecorded conversations are still commonplace around the country. Even if they do agree to turn on the recording equipment, machines sometimes malfunction, and parts of the recording may be inaudible—in which case the courts will never hesitate to let the police tell the jury their best (but usually imperfect) recollection of what was said. And even if a good recording is made of the interview, police officers are routinely allowed to testify about additional statements that they remember you having made before the recorder was turned on, or perhaps after it was turned off. In one recent investigation of forty confirmed false-confession cases, the police recorded some portion of the interview in only 58 percent of the cases—and in not one of the cases was there a complete recording of the entire interview before the final statement was recorded.69
One of the many terrifying aspects of the police officer’s testimony in Ruffin’s case was the way it powerfully illustrates the dangers of confirmation bias. There is no reason to believe that the police officer who testified against Earl Ruffin was doing anything to knowingly frame or create evidence against an innocent man. I have no doubt that the officer honestly believed that he had arrested and accused a guilty man of an extremely serious charge. After he accurately typed up some notes about the truthful story he was told about what Ruffin was doing the night of the crime, the police officer went out and interviewed the alibi witnesses—when he discovered that they did indeed back up Ruffin’s story! At that point, the officer was starting to get troubled by the appearance that his case was starting to fall apart. By his own admission, the officer then sat by himself staring at those notes for more than one full hour before it suddenly came back to him that his notes had left out three words—and those magical words, by an amazing coincidence, suddenly converted this document into a key bit of evidence for the prosecution! You think that was a coincidence? Don’t be absurd. But this happens all the time. Because police officers are only human, their memories sometimes deceive them and enable them to “recollect” things that will confirm whatever it was that they originally said when they publicly staked out some controversial position, like making an accusation against someone they arrested. Ask any experienced prosecutors or criminal defense attorneys, and they will all tell you the same thing: after a police officer arrests you, if he later remembers additional details that he initially forgot to write down, those additional details will always confirm the original accusation and help the prosecutor. Those “new memories” will never undermine the original charges and help the defense.
There is only one way to completely eliminate the danger that you might be convicted on the basis of an innocent remark that you made, simply because the police did not quite hear it correctly, or because they did not remember it quite right, or because they remembered a few extra words that you actually did not speak. Do I need to remind you what it is? I doubt it.
We have seen that you can get into a great deal of legal trouble even if you are innocent and only tell the police the truth—if the police have any confused or mistaken witness or other evidence that can be used to prove that what you said was false. Accounts of this happening are more common than you could ever imagine. Out of hundreds of innocent people in the United States who were wrongfully convicted and later exonerated by DNA evidence, 76 percent were mistakenly identified by an eyewitness.70 More than any other factor, eyewitness testimony causes the most wrongful convictions, and confident eyewitnesses—even if mistaken or confused—are notoriously difficult to cross-examine.71 They are often extraordinarily confident and convincing even when they are totally wrong. It happens all the time.
The dubious “expert” witness, just like the mistaken eyewitness, is another distressingly common way in which the police can discover “evidence” to prove that what you told them was false, even if in fact it was true. How often does this happen? There is no way to know for sure, but it is not unusual. In Boston, Massachusetts, in 2013, a state drug lab was closed, and one of its chemists was convicted on multiple counts of tampering with evidence, after it was discovered that the lab was the origin of thousands of false-positive forensic tests showing a presence of illegal drugs.72 A few months earlier, in Saint Paul, Minnesota, an independent review found major flaws in the procedures followed by a state crime laboratory in its drug analyses and fingerprint examinations.73 Expert firearms analysts from the FBI testified around the country at trials in which they falsely claimed that they could actually identify whether two gun shells had been taken from the same box, and such testimony resulted in numerous convictions around the nation—until the FBI itself admitted, to its great embarrassment, that there was never any scientific validity to this testimony.74 In 2015, the Justice Department and the FBI formally admitted that “nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000,” involving over 2,500 criminal convictions.75 One national news journal correctly concluded that such scandals are now “occurring with mind-numbing frequency.”76 In one recent and thorough examination of 250 cases in which a convicted prisoner was exonerated by DNA evidence, it was revealed that “forensic evidence” was used to help convict an innocent suspect in 74 percent of the cases,77 and 61 percent of the scientists and analysts called as prosecution witnesses gave testimony or made claims that were demonstrably invalid.78
At the time you make the fateful decision to talk to the police, even if you sincerely believe you have done nothing wrong, you have absolutely no way to know whether your truthful information will later be contradicted by some well-intentioned but mistaken eyewitness, or by some corrupt or incompetent so-called expert witness. The police, the prosecutor, and the jury will not know for sure who is telling the truth, but they will look on your denials with great skepticism. After all, since you are the suspect, you will seem to be the only one with a motive to lie. And as we’ve seen, a jury can be persuaded that you lied about something when in fact you actually told the truth. Fortunately, there is one very simple way to eliminate that possibility altogether. Don’t talk to the police.
Even if you strike just the right balance between anxious and cool (both nervousness and calmness have been accepted by the courts as signs of guilt)79 and are completely innocent, and even if the police understand and recall what you said with 100 percent accuracy and have no evidence that anything you said was false, you may find that just speaking the truth can help get you convicted!
You don’t need to take my word for it. The Supreme Court of the United States made this point years ago, when it correctly stated that: “[O]ne of the Fifth Amendment’s basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances. . . . [T]ruthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.”80
But how does this happen?
Let me give you three examples—three men who were sent to prison for life, or sentenced to death, and who all spent decades behind bars before they were recently proved innocent. All three were convicted on the basis of unfortunate coincidences and ambiguous circumstances that they were not able to explain away. In all three cases, most of the evidence that they were unable to explain was information that nobody would have even known about—and they never would have had to try to explain—had they not volunteered to give that information to the police.
Remember Earl Ruffin? I told you about him already. He was convicted of raping a woman in her Virginia home and sentenced to life in prison, where he spent more than twenty years before DNA proved that he was innocent. One of the things that was used to help convict this innocent man was truthful information that he gave to the police. The police asked him if he knew this woman or if he had ever committed sexual assault against her or anyone else. Ruffin told
police the truth: he had never met her, and he had never done such a thing. Then the police asked him if he had ever been in the neighborhood where this crime was committed. Ruffin then made one of the greatest mistakes of his life. Because he actually wanted to cooperate as much as he could and help the police solve this terrible crime, as innocent people usually do, he told the police the truth. Yes, he told them, he once had a girlfriend who lived in that same neighborhood not long before.
Why would Earl volunteer the fact that he once had a girlfriend in the same neighborhood? If he had taken only a second to think about it, he would have immediately realized that there was no possibility that this information would help prove his innocence, assist his defense in any way, persuade the police that they had the wrong guy, or help them find the real rapist. So why did he do it? For the same reason that innocent people constantly make the same terrible mistake: because they think they have nothing to hide, and because they honestly wish to be (or at least to seem) as cooperative as they can with the police.
