The New Police State is a weekly exploration of policing in America. With the country in the midst of an epidemic of police killings and sometimes violent civil unrest in response to them, we’re talking to people about the role of law enforcement in our society. The starting point of this conversation is the hypothetical question: If you could create a new society overnight, what would that society’s police force look like?
James Duane is something of a singularity among law professors, if only for the reason that he briefly became internet famous when in 2008, a video of him giving a lecture about why you should not talk to the police under any circumstance got major numbers on YouTube. Duane’s book on the same subject, You Have the Right to Remain Innocent, was released last week. We spoke to Professor Duane of Regent University School of Law in Virginia about why talking to the cops is a bad idea, what reforms he’d like to see in the criminal justice system, and how his message applies to people who are worried about surviving an encounter with the police.
If you were drawing up the groundwork for a new society that would take effect overnight, what would the role of law enforcement be in that society?
If I could reengineer our American legal system top to bottom overnight, the first thing I’d want to do is greatly reduce the extent to which our legal system now plays upon and preys upon the ignorance and the good faith of ordinary American participants, including witnesses, criminal suspects, and members of the jury. I’m talking about judges that don’t tell juries everything they need to know about how the system works, and in fact give them a lot of misinformation. And the same is true for police officers. In their dealings with criminal suspects, there’s a lot of information [suspects] ought to have about the way that this works, because the system is far more complicated than the average man on the street could ever imagine or would ever suspect.
I would love to see a radical change in our vision of the investigatory process. In America for too long we’ve taken it as self-evident that the process of investigating crimes or alleged criminal activity ought to be entrusted entirely to individual officers who are meeting with witnesses privately behind closed doors. I would insist that all interviews with witnesses, victims, and especially criminal suspects ought to be video recorded. And nothing [should] be disclosed to these individuals or said or shared with these individuals by police officers or by prosecutors unless that was done in a setting where we had a reliable recording of the entire conversation, so there can be an opportunity later on down the road for judges and juries and the general public to engage in a careful analysis of the extent to which they may have been consciously or unconsciously manipulating the recollection of these individuals, playing games with their minds, or manipulating them through the power of suggestion. Right now this is going on everywhere all over the country every day on a massive scale, and it’s completely immune to any sort of independent oversight because we don’t require this sorts of things to be videotaped. [It’s] madness! Here we are in the 21st century, and virtually everywhere we go in public places—a gas station, walking down the street—there’s probably a security camera making a pretty reliable recording of the entire event. Yet even now, we aren’t requiring the police to videotape everything that’s going on when they’re meeting with the witnesses and the victims and the suspects. It’s indefensible and it ought to be changed right away.
Do you extend that principle to police officers being required to wear body cameras as well?
Yes, I would. I think that the American public has been treated to a real eye-opener in recent years because of the pervasiveness of handheld cell phone video coverage. For far too long throughout American history we have seen countless occasions where individuals who are dealing with the worst elements of the police force come out with incredible accusations of brutal violence, incredible violations of civil rights, and the police officer’s response is 100 percent predictable: every time, without exception, they always deny it. And for far too long the average American thought to themselves, “This is insane, this is unbelievable. I can’t imagine that a police officer would shoot an unarmed man in the back as he tried to walk away from a traffic infraction.” The idea seemed so outlandish that for a very long time most of us thought it couldn’t possibly be true. And any accusations to the contrary by the alleged victims of this kind of police misconduct were routinely dismissed as incredible.
Now because every man on the street is a budding Steven Spielberg by virtue of their cellphones that can take video coverage, we’re getting video of incredible episodes of outrageous police misconduct. I absolutely favor having body cameras made mandatory for every police officer, so that [for] every moment of every encounter with every individual, we’d have a reliable record of what was said and what was done. And this goes two ways of course, not only would it enable these individuals to prove they have been the victims of terrible police misconduct, but just as often it would probably work to the benefit of the police officers allowing them to conclusively refute any irresponsible or frivolous allegations of misconduct. It’s uncanny and indefensible that we don’t require these people and every move they make to be carefully videotaped in a way that will enable some sort of rigorous independent oversight.
What led you to write the book and become an advocate for not speaking to the police? Was it something that built up over time, or did it happen suddenly?
I would imagine that a lot of people who read my book or read about my work would be likely to make the mistake of thinking, “Wow, I wonder if this guy was falsely accused of a crime?” I wouldn’t blame you for wondering, but no actually, that isn’t true. But I [have had] the chance to see firsthand the kind of wretched dishonesty to which certain kinds of personalities will descend if they don’t think you’re showing them enough respect.
The thing that drove me to become a spokesman in defense of the Fifth Amendment was sort of twofold. The first was the frequency with which you see otherwise knowledgeable and respectable people commenting in the press or in public that they naturally think that if someone takes the Fifth that must mean that they’re guilty of something. I don’t fault or criticize the people that feel that way, they’re just ignorant. They don’t know about the complexities and perils that are everywhere hidden in the American criminal justice system. They think to themselves, “I guess if the guy’s innocent he’s got nothing to hide.” From that they mistakenly deduce, “If he doesn’t want to answer questions, that logically supports the conclusion that he must be guilty of something.” Which is also painfully false. I want people to understand why they’re wrong about this, because the second and related thing that has caused me a great deal of alarm is the heartbreaking frequency with which this country keeps on convicting innocent people. The Innocence Project, as we all know, has worked to secure the release of over 340 exonerees. Some of them after serving 10, 20, 30 years in prison, or maybe even on death row. We give them a small check, we give them our profuse apologies, and then we’re onto something else, we’re back to Brangelina. We need to ask ourselves what the hell is going on. Why are we convicting so many innocent people?
When you go back and you look at the trial transcripts of these people, you see certain patterns. You see how many of them were convicted, a large number of them, on the basis of things they told the police. Maybe because it was a misrecollection of what was said and how it was said, maybe because there was no recording of the encounter. It’s your word against [the police officer’s] as to what you said or didn’t say. I’m determined to reduce the number of times we prosecute and convict people who aren’t even guilty. The best way to make that happen is to make sure that everybody on the street, including all the future criminal suspects and future members of the jury, understand that the Fifth Amendment was intended as a protection not just for the guilty, but just as much for the innocent.
The Netflix Series Making a Murderer really illustrated how the cops are able to get people to admit to crimes and break them down over time. Have you had a chance to watch it?
I’ve heard a great deal about the series secondhand, most of it from reporters and journalists who called me and wanted to know what I thought about it. In my book I talk a good deal about the extent to which we know from years of painful experience that very often it ends really quite badly [when people talk with the police]. My book explains how that happens. As you might expect, a significant part of the problem is the horrible extent to which we allow police officers to manipulate people.
If police officers suspect that you may be guilty of a crime, and the report seems credible, even if it turns out you’re actually innocent, the police will likely try to see what they can do to trick you into talking to them before they even tell you that you’re under arrest. Because once they get to that point, they’ve got to read you your rights and get you a lawyer. They don’t want to do all that for you. They know from experience that their chances of tricking you into talking to them are much greater if they deceive you in an effort to get your guard down, “Oh it’s no big deal, you’re not under arrest. It’s voluntary. Do you mind if I ask you a couple of questions?” Sometimes they will use this technique even when they already have a warrant to arrest you. They are allowed under the law to lie to you and give you the impression that [they’re] not really looking for you. Sometimes they’ll even lie and say, “We know you weren’t involved,” when it’s just the opposite.
Charitable observers of this present outrage are likely to dismiss all these complaints by saying, “It’s okay if the police lie to you because any innocent man isn’t going to fall for that, he knows in his heart that he’s innocent.” Well that’s just nonsense. It isn’t true. People do make confessions to things that they didn’t do, and one study proved that the average false confession was solicited after around ten hours of police interrogation. If you’re sitting there for ten hours of unrelenting tag team interrogation by one officer after another coming in, saying, “We know you’re lying, we can prove you did it, we’ve got witnesses who saw you do it.” It’s not astounding that someone who’s subjected to that for eight, 10, maybe 12 hours or more is going to reach a point where in exasperation they come to the mistaken conclusion that the only way to get out of [there] is to tell these people what they need to hear. But that’s never the only way to get out of there. You can bring any police interview to an end by simply telling the police directly to their face, “I want a lawyer. I’m done. I don’t want to answer any more questions.” You’ve got that right, but of course the police won’t tell you that, and they don’t have to if you’re not under arrest.
I think anyone can agree that this is crucial information to have. Nobody wants to wind up in trouble because of something they let slip when they were trying to do the right thing, especially if they didn’t do anything wrong. On the other hand, there are segments of the population who are just worried about surviving an encounter with the police, let alone an interrogation. Does your advice apply equally to those people?
That’s a good question, but the answer’s the same. Some critics might be tempted to dismiss my book and say, “Easy for him to say, he’s a white guy.” I’m totally mindful of that reality and I don’t want to seem overly simplistic. We all want to believe that these officers are few and far between, but the fact that these people may be out there doesn’t change in any way my advice. My message to everybody is keep your mouth shut. Don’t talk to the police. If you feel that you’re dealing with an officer [who may harm you] then you should exercise extreme caution, and make sure that you don’t do anything or say anything that could be misinterpreted as disrespectful, discourteous, insolent, or threatening. Don’t make sudden movements, make sure the police can see where your hands are. But that doesn’t in any way mean you should go ahead and talk to them and answer all their questions and waive your right to an attorney, and give them consent to search your car.
I don’t mean to sound like I’m oblivious to the realities of our current situation. Encounters with the police can be particularly dangerous for [minorities] in particular. My advice to them is to remember the critical importance of asking, “Am I under arrest? Or am I free to go?” And if they say, “Yes you’re free to go.” Then you say, “Thanks, bye.” And you walk away. And you insist upon an answer, because they don’t want to give you direct answer to that question. And if they say, “You’re under arrest.” Then you say, “Alright, I want a lawyer.”