You Have the Right to Remain Innocent

Perhaps it was true a century ago—I deeply regret that it is no longer true—but the United States criminal justice system long ago lost any legitimate claim to the loyal cooperation of American citizens. You cannot write tens of thousands of criminal statutes, including many touching upon conduct that is neither immoral nor dangerous, write those laws as broadly as you can imagine, scatter them throughout the thousands of pages of the United States Code—and then expect decent law-abiding, unsuspecting citizens to cooperate with an investigation into whether they may have violated some law they have never even heard about. The next time some police officer or government agent asks you whether you would be willing to answer a few questions about where you have been and what you have been doing, you must respectfully but very firmly decline.

If a police officer encounters you in one of those moments, he or she has every right to ask you two simple questions. Memorize these two questions so you will not be tempted to answer any others: Who are you? What are you doing right here, right now? If you are ever approached by a police officer with those two questions, and your God-given common sense tells you that the officer is being reasonable in asking for an explanation, don’t be a jerk.

[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.

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.

The complexity of modern federal criminal law, codified in several thousand sections of the United States Code and the virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law, make it difficult for anyone to know, in advance, just what particular set of statements might later appear (to a prosecutor) to be relevant to some such investigation.

If you are asked any question by a police officer or a government agent and you realize that it is not in your best interest to answer, you should not mention the Fifth Amendment privilege or tell the police that you wish to exercise your right to avoid incriminating yourself. In this day and age, there is too great a danger that the police and the prosecutor might later persuade the judge to use that statement against you as evidence of your guilt. And if they do, to make matters much worse, you have no guarantee that the FBI agent in your case will not slightly misremember your exact words. [....] Even if the officer gets only a few words wrong, it only takes a slight rewording of the privilege to make it sound like a confession. So what do you do instead? Instead mention your Sixth Amendment right to a lawyer, and tell the police that you want a lawyer.

Nobody of sound mind can dispute that there is something fundamentally wrong, and intrinsically corrupt, about a legal system that encourages police officers and prosecutors to do everything in their power to persuade you and your children (no matter how young or old) to “do the right thing” and talk—when they tell their own children the exact opposite.

The other problem is that they are working within a legal system that is highly imperfect. That is not their fault, because they did not design the system.

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. In fact, do not ask any questions when you insist on the presence of a lawyer. Do not even use the words I think or might or maybe. You need 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.

How do you request a lawyer? There is no need to be rude, naturally. And most people instinctively recognize that fact. The police officer does not deserve your disrespect, because he or she is only doing his or her job in a criminal justice system that is terribly out of control. Unfortunately, far too many individuals in the real world go in the opposite direction, and for some reason think that they need to be overly polite to the police. They seem to instinctively fear that they might come across sounding a little rude or disrespectful if they make their request sound too confident or unequivocal.

Anybody who understands what goes on during a police interrogation asks for a lawyer and shuts up,

Those are the only two things you should tell the police officer in that context, and they are both in the present tense. (You might as well cooperate with such a request, by the way, because the Fifth Amendment does not normally give you the right to refuse to tell the police your name anyway. That is it. But if the police officer tries to strike up a conversation with you about the past, and where you were thirty minutes earlier, and who you were with, and where you had dinner, and with whom—you will not answer those questions. You will not be rude, but you will always firmly decline, with all due respect, to answer those questions.

In 2004, Illinois police officers called to investigate the disappearance of a three-year-old girl mistakenly thought her father might be a suspect. Under the pretense that they were looking for the parents’ help in locating the girl, they invited the parents to the station and questioned them for an hour before they finally told the parents that her dead body had already been found, even before they asked the parents to come down to the station.

police officers, like all humans, are subject to a powerful phenomenon that psychologists call confirmation bias. This means that after they have come to a conclusion, especially if it is a conclusion that they have publicly announced (for example, by arresting someone and accusing him of a serious crime), it is very difficult for them to admit that perhaps they have made a terrible mistake. It is much easier and more comfortable for them to convince themselves that they did not make a mistake, and that their initial accusations were correct. Their memories will gladly cooperate in that effort. Even if they are not aware of how it is happening, they might recall nonexistent details to coincide with and corroborate the story they have already begun persuading themselves to believe.

The first problem with the police is that they are only human. They cannot know everything.

Any time you agree to talk to the police or government investigators, you are rolling the dice and taking a terrible chance with your life. You do not know what you are up against, because you do not necessarily know what crime they are really investigating. They may tell you, but what they say may be a lie. You also do not know what evidence they already think they have against you. They may tell you, but again, they might only be lying. And even if you are completely innocent, there is absolutely no way you could possibly have any idea whether the truthful details you give the police could tragically get you ensnared in a web of ambiguous circumstances, later leaving you in the position of trying in vain to convince the jury that it was all just an amazing coincidence. I

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.

The bottom line is plain: you cannot safely trust a single word that you hear from the mouth of a police officer who is trying to get you to talk.

been largely left in the hands of the lower courts, they have been so severely watered down that police officers can lie to you concerning just about every aspect of the investigation, and do so without corrupting the admissibility of your testimony. They

and they can be prosecuted or sued if they are caught using intentional deception to defraud you into giving up a mere twenty dollars. So it stands to reason, innocent people frequently assume, that there must be some similar rules restricting the ability of the police to trick you into giving up your most precious constitutional rights. I would not blame you for thinking such a thing, but you would be dead wrong. The

In the aftermath of the Salinas case

But if the police officer tries to strike up a conversation with you about the past, and where you were thirty minutes earlier, and who you were with, and where you had dinner, and with whom—you will not answer those questions. You will not be rude, but you will always firmly decline, with all due respect, to answer those questions.

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.

You need 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.

That is why the Supreme Court also stated that the Fifth Amendment privilege, “while sometimes a shelter to the guilty, is often a protection to the innocent.

The thousands of American criminal statutes no longer coincide with common sense.

I intend to bring to an end, once and for all, that obscene double standard in the American criminal justice system that allows only the citizens who are in the know to protect themselves from a legal system that is designed to prey upon ignorance and good intentions.

Instead mention your Sixth Amendment right to a lawyer, and tell the police that you want a lawyer. Is that honest? Not entirely, because it sounds like you are implying that you might be willing to talk to them after a lawyer shows up, and of course that is not true, and your lawyer will not agree to that.

The Department of Justice has now served official notice that it believes the courts should allow a prosecutor to argue under any circumstances that your willingness to assert the Fifth Amendment privilege can and should be used against you as evidence of your guilt.