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[Slide 1] In Praise of the Fifth Amendment Right to Not Be a Witness Against Yourself.
Why I am proud to admit that I will never talk to any police officer.

[James Duane] I was invited to give you a taste of a typical law school classroom experience here today, and I thought I would take advantage of this opportunity to do something that's been on my mind for a while. To stand up and to proudly say G-d bless America. God bless the bill of rights and thank God for the fifth amendment. I'm not ashamed to say I'm proud of the fifth amendment, and I'm not- I'm proud to admit on camera and on the Internet that I will never talk to any police officer under any circumstances, with all due respect sir.

I'm doing something really extraordinary here today. something you'll almost never see another law professor do as long as you live. I'm really putting myself on the spot here. At my- This was my idea. By my invitation, I have given up half of my time, approximately. I'm giving equal time, and the last word, to an expert who really know something about what I'll be talking about. So I'm opening myself up to the possibility that he will contradict me.

I was a criminal defense attorney when I was in private practice. So I want to make sure in fairness to you, if I'm misleading you or giving you a slanted or one sided presentation, you'll be able to get the last word from somebody else. I'm sure he'll have a lot to teach all of us, including myself.

[Slide 2] In Praise of the Fifth Amendment
*The Fifth Amendment provides:
*"No person ... shall be compelled in any criminal case to be a witness against himself."

[James Duane] The Fifth Amendment of the United States Constitution provides: "No person shall be compelled, in any criminal case, to be a witness against himself."

And this unfortunate amendment has gotten a bad rep, in recent times. Much of it tragically and unnecessarily through, as you may have heard, the headlines. There was a recent Regent law school graduate who was in all the news for a couple of weeks. She was a- an outstanding former student of mine, and she really got quite a lot of undeserved flak for the fact that she chose to exercise here right to remain silent, when the senate wanted to ask her certain questions that arguably might have tended to incriminate her. All the world was aghast. The Christen community in particular looked at this and said, "how could a Christen do such a thing? How could a Christen take the Fifth Amendment?" And I said, "you go girlfriend, I'd do the same thing, I'll do it every time." And I want to talk to you about why that's true, but first a quick listening test.

[Slide 3] First -- a Quick Listening Test

[James Duane] Let me read to you something that, uh, was taken out of the newspaper this morning, and I want you to listen to it closely, and I'm giving you a heads up, I'm warning you in advance, which is not fair to you. Not fair to me! but I'm giving hea- I'm giving you warning that I'll be quizzing you on this in just a few minutes. This'll test your aptitude for legal study and legal practice. Listen closely, it won't take long.

"Last night. Agents of the Norfolk police department found three victims of an apparent murder dead in an apartment in the east Ocean View area. The apparent victims of a gangland style slaying, and possibly the victims of gang related violence. The police are investigating this as a possible murder and suicide, but right now suspect that the three were all killed by the same individual. No suspects have yet been identified in the slaying, but veteran police detective George Bruke has confirmed the police are following up on evidence pointing to the possible involvement of an off duty navel officer as the perpetrator. The bodies which were found by the apartment manager at about eight o'clock in the morning appeared to have been slain some time earlier in the same evening, probably some time between midnight and two o'clock in the morning."

That's it. Those are all the fact I'll ask you to remember, and it won't be for very long either. Let's see how well you do. I'll be quizzing you in just a few minutes.

[Slide 4] The Easiest Question You Will Ever Get From a Client
"The police are here. They want to talk to me. What should I do?"

[James Duane] Now. Here's the easiest question, you'll ever get from a client, in all the days of your life. Question: "Hey, the police are here. They want to talk to me. What should I do?" Well I could give you my answer to that question, in case you haven't already guessed it, but why don't we go to a real expert.

[Slide 5] Justice Robert Jackson
* General counsel, Bureau of Internal Revenue, 1934-1935
* Special counsel, U.S. Department of the Treasury, 1935-1938
* Special counsel, Securities and Exchange Commission, 1936-1938
* Assistant U.S. Attorney General, Tax Division, 1936-1938
* Solicitor General of the United States, 1938-1939
* Attorney General of the United States, 1940-1941
* Chief U.S. prosecutor, Nuremberg Trials, 1945-1946

[James Duane] Justice Robert Jackson, a prosecutors prosecutor. Like me, he began his private practice in Buffalo New York, years before I did. And after that he served as General counsel for the Bureau of Internal Revenue, the U.S. Department of the Treasury, the Security and Exchange Commission, Assistant U.S. Attorney General for the Tax Division, later the Solicitor General and the Attorney General of the United States, and then the Chief U.S. prosecutor for the Nuremberg Trials. That's an impressive resume.

[Slide 6] Justice Jackson's View
*"[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances."
*Watts v. Indiana, 338 U.S. 49, 59 (1949) (Justice Robert Jackson concurring in part and disse... emphasis added)

[James Duane] Years later, when he was a Justice on the Supreme Court, Justice Jackson stated quote: "Any lawyer worth his salt", today we would say his or her, "will tell the suspect", his client, "in no uncertain terms to make no statement to the police under any circumstances." There's the title of my talk.

I'm here to explain to you, the surprising, and somewhat counterintuitive, and admittedly unlikely reasons why Justice Jackson was right. I'm reminded of this because I'm amazed, we're all amazed, by the frequency with which we see newspaper articles coming out all the time from people who really ought to know better who say "well I'll talk to the police, I mean after all I'm- I'm a senator, I'm a- I'm O. J. Simpson, I'm a- I'm an experienced highly polished individual, I've got a lot of experience with public relations," even criminal defense attorneys.

There was a local news story here in the Virginia Pilot just a couple of months ago about a experienced criminal defense lawyer who ended up getting convicted of criminal assault because he talked to the police. He was accused of having assaulted another attorney in the hallway. There were no other witnesses to this. A woman said that he grabbed her by the throat during an argument over a case. He denied it. At trial it was his word against hers. He said "I did not even touch her." But unfortunately for him when the police had approached him earlier and said "would you be willing to answer some questions?" He said "sure, why not. I'm a- I'm an attorney, I'm a criminal defense attorney, I'm savvy, I'm sophisticated, I've got oratorical prowess, I'm- I'm accustomed to dealing with the police, by all means." And then there was a conversation that was not recorded. When the case went to trial it was no longer his word against hers, because when he testified at trial "I never touched her," the officer took to the stand and testified "well when I met with him, he said he did put his hand on her throat, but just as a joke." Then he had to take the stand again and say "that's not true. I never said that. I never admitted to you that I-" Now it's his word against two people. Who's telling the truth? We'll never know for sure, but he was found guilty.

[Slide 7] The Heart of the Problem
* "Estimates of the current size of the body of federal criminal law vary. It has been reported that the Congressional Research Service cannot even count the current number of federal crimes. And these laws are scattered in over 50 titles of the United States Code, encompassing roughly 27,000 pages. Worse yet, the statutory code sections often incorporate, by reference, the provisions and sanctions of administrative regulations promulgated by various regulatory agencies. Estimates of how many such regulations exist are even less well settled, but the ABA thinks there are nearly 10,000."
* Paul Rosenzweig. The Over-Criminalization ... Economic Conduct. The Champion 28, 29 (A...

[James Duane] Now. Here's part of the problem. The heart of the problem, as Justice Briar, on the U.S. Supreme Court explained in 1998 is, quote: "The complexity of modern federal criminal law, codified in several thousand sections of the United States Code, and 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 when a particular set of statements might later appear to a prosecutor to be relevant to some investigation."

One expert on criminal law recently noted "estimates of the current size of the body of federal criminal law vary, although it has been reported that the Congressional Research Service can no longer even count the current number of federal crimes." That's right, even the federal government has lost count. "These laws are scattered over all fifty pages of the U.S. Code, encompassing roughly twenty thousand pages. Worse yet, these statutes often incorporate by reference to the provisions of administrative regulations. Estimates of how many such regulations exist are even less well settled, although the ABA thinks there may be nearly ten thousand."

[Slide 8] Just One Example
* 16 U.S.C. 3370: "It is unlawful for any person ... to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal ... law or regulation of any State o... any foreign law."

[James Duane] Here is one of those ten thousand federal criminal statutes on the book, that you probably never heard about. It's called the Lacy Act. Sixteen U.S.C. section 3370 says "It's a federal offense for any person to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or sold in the violation of any law, treaty, or regulation of the United States or any Indian tribal law, or any state law or any foreign law."

People have been convicted in federal court for violating this statute because they brought back a Bony Fish from Honduras, not knowing that Honduran law, not American but Honduran law, forbade the possession of the Bony Fish. People have been convicted under this law because they were found in possession of what's called a short lobster, a lobster that is under a certain size. Some states forbid you from possessing a lobster if he's under a certain length. It doesn't matter if he's dead or alive. It doesn't matter if you killed it, or if it died of natural causes. It doesn't even matter if you acted in self defense. Did you know that? Did you know it could be a federal offense to be in possession of a lobster? Admit it, raise you hand if you did not know that. There's the problem. And that's only one of ten thousand different ways.

You know, the government gets pretty upset when people like me instruct the client, people like me and Justice Jackson, don't talk to the police, don't answer any questions. But you know they can't have it both ways. You people, you've got ten thousand different ways of convicting us, good for you, but you know with the bitter come with the sweet, with the good comes with the bad, that's ten thousand different ways my client might unknowingly implicate himself in some sort of a criminal transaction.

One of the reasons I decided to give this talk. I recently received a phone call from a former student of mine. A Regent law school graduate, who may be watching this online, we're putting it on the Internet. And he told me "hey, I've been approached by the Internal Revenue Service. They want to ask me a couple of questions. They asked if I'd be willing to. Uh, but they say that I'm not a suspect, and I know in my heart I don't I've done anything wrong in violation of the Internal Revenue Service provisions." Lord have mercy. There's no man on earth, there's no woman in this country who can honestly say with complete confidence "I know I have never violated any provisions of the Internal Revenue Code." He said, "but they say I'm not a suspect, and I know I've done nothing wrong. It's OK if I talk to him?" I said "No. No, you tell them you will not talk to them without immunity." I explained to him why that was true and they never, he never heard from them again.

[Slide 9] Why You Should Never Talk to The Police
The Top Ten Reasons

[James Duane] OK, why you should never talk to the police. Let me just spell it out for you, let me make it plain to all of you. These are the top ten reasons. I don't want to actually really lie to you. I don't really have ten, I don't have time for ten. But I've got time for eight, and that'll be close enough.

[Slide 10] Why Not Talk to the Police?
* 1. There is no way it can help.
* You can't talk your way out of getting arrested.
* You can't give them any information that will help you at trial. See Federal Rule of Evidence 801(d)(2)(A).
* What you tell the police is only a... is offered against you by the pro...

[James Duane] Number one! And this really ought to be good enough. Contrary to what you laymen instinctively and naturally suppose, it, can, not, help. There is no way it can help you. Plenty of folks think that it can and they're always wrong. You cannot talk you way out of getting arrested. Officer Bruke, you've interviewed thousands of criminal suspects. Have you ever- How many times in your experience, have you approached someone, asked if you could ask them some questions because prior to the interview you had some evidence pointing to his possible guilt. And because of the extraordinary persuasiveness and eloquence with which he articulated his innocence you said "Oh, sorry, nevermind. Bad call, my bad, I won't- and you- he talked you out of arresting him."

[George Bruke] Oh, you know the answer to that.

[James Duane] Never. Never, it never happens. I've often asked other criminal defense attorneys, "in all of you experience, have you ever once had a case where you looked back in hindsight and said 'thank God my client talked to the police.'" They laugh at me. They laugh at me. They say "you've got to be kidding me." It cannot help you. You can't talk your way out of getting arrested, and contrary to what you might suppose if you never studied the rules of evidence, what you tell the police, even if it's exculpatory, cannot be used to help you at trial. Because it's what we call hearsay. Under the rules of evidences, specifically rule 801 d 2 a if you want to look it up, everything you tell the police, as the saying goes, can and will be used against you but it cannot be used for you. From time to time I've know attorneys who've tried to call the stand a police officers and say "officer, would you tell the jury what my client told you, because what my client told him was actually good for my case." If you try that at trial the prosecutor will object that it's hearsay, and the judge will agree. The police will not be allowed at you request to tell the jury what your client told him, no matter how good it may be for you case. It, can, not, help. And that ought to be good enough reason. That ought to be reason enough to keep you mouths shut.

But if you're not persuaded let me go talk about a couple of others.

[Slide 11] Why Not Talk to the Police?
* 2. If your client is guilty -- and even if he is innocent - he may admit his guilt with no benefit in return.
* What's the rush?
* In federal court, 86% of all defendants plead guilty at some point before the trial.
* Your statement to the police ma... admissible evidence by the time ...

[James Duane] Number two, obviously one of the most, obvious. If your client is guilty, as many of them are, but even if he's not, even if he's innocent, he may well admit his guilt with no benefit in return. Now of course, many of you are thinking to yourself, "well what's so wrong about that. I mean shouldn't guilty people be confessing. Confession's good for the soul. It's good for law enforcement. It's good for the prisons." Yes. Yeah, sure, all those things are true. And like the rest of you, if I or anyone close to me is ever the victim of some sort of a serious crime, I hope they get the right guy, I hope they convict him, I hope they put him away. We all feel that way. Hey, but what's the rush friends? You don't gotta admit your guilt the first time they come by to meet with you. In federal court eighty pesix- eighty six percent of all defendants plead guilty at some point before the trial. If your client is guilty and really ought to punish, and really ought to have a- go through some sort of a cleansing act of contrition, and fess up, and admit his guilt. The'll be plenty of time to do that, they almost always do. No need to rush, no need to tell the police something. Wait and see if where- perhaps your client can work out some sort of an arrangement. Where maybe he'll make some sort of compensation to the alleged victim, or maybe he'll be able to get some sort of a discount on his sentence. And he'll be able- he'll be treated fairly then, like everybody else who had the benefit of a good lawyer who said "please do not talk to the police."

And don't forget by the way. Even if- even if your client only admits things, that the police already knew. You might think "well what harm could it do. He says he wants to talk to th police. All he wants to do is admit that he was there, but the cops know that he was there. Alright, go ahead and tell 'em. How can it hurt." It might hurt, if the police officer becomes transfered to Minnesota, or deceased, or injured, or comatose, or can't be located by the time of trial. The case will be dismissed if there's no confession. But if your client admits true things, that confession is freely admissible against him and it can be a bases for getting him convicted all by himself.

[Slide 12] Just Ask Him ...
(Photo of Senator Larry Craig)

[James Duane] Senator Larry Craig can explain all this to you.

[Slide 13] Even Innocent People Confess
* The Innocence Project
* "In more than 25% of DNA exoneration cases, Innocent defendants made incriminating statements, delivered outright confessions or pled guilty."
* www.innocenceproject.org/understand/falsa...

[James Duane] The innocence project of the United States has confirmed, that in more than twenty five percent of all the cases where an innocent convicted and then later released from prison after he was exonerated by DNA evidence, in more than a quarter of those cases, these innocent people, people we know to be innocent, made incriminating statements, delivered outright confessions, or pled guilty. How do they do that? He'll tell us all about it I trust.

[Slide 14] Just ask Them
(Photo of Eddie Joel Loyd) (Photo of Earl Washington)

[James Duane] Here's a couple of famous examples, you can just ask them, you don't have to take my word for it. They are on the left of us, Eddie Joel Loyd. He was convicted in 1984 for the murder of a sixteen year old girl in Detroit, after he wrote to police with suggestions on how to solve various recent crimes. During several interviews police fed details of the crime to Mr. Loyd, who was mentally ill, and they lied to him, and convinced this mentally ill man that by confessing he might help them smoke out the real killer. He later signed a confession, gave a tape recorded statement. The jury deliberated less than one hour before convicting him on the bases of this confession, there was no other substantial evidence against him. The judge said "I'd hang you if I could," but the death penalty was not available in Michigan at the time. But now- after almost two decades in prison he was released, after DNA evidence proved that this man was innocent, and falsely commi- confessed to a crime that he did not commit.

On the right is Earl Washington, who was released from prison just a few years ago here in Virginia, after spending eighteen years behind bars, for a- after be committed of a rape and a murder that we now know he did not commit, after having been exonerated by DNA evidence. But be- this man, Mr. Washington, who was in fact confirmed to be mentally retarded, was able to confess to several crimes at the request of the police. Some of which we know he could not have committed. That's the problem.

Some of you are thinking to yourself, "well none of this concerns me because I'm not guilty of anything and I never will be, and I will never represent people who do." OK. Let's talk to you people. You innocent folks. Those of you who have never committed a crime and never will, and none of your clients will either. And no- and you wouldn't go out with a girl who did. Fine. You better not talk to the police either, OK. Because number three, we'll put the guilty behind us, forget about them. Let's talk about innocent people.

[Slide 15] Why Not Talk to the Police
* 3. Even if your client is innocent and denies his guilt and mostly tells the truth, he can easily get carried away and tell some little lie or make some little mistake that will hang him.

[James Duane] Number three. Even if your client is innocent, and denies his guilt, and almost entirely tells the truth, odd are good he will easily carried away and tell some little lie or make some little mistake that will hang him. This is human nature. He gets in there, it's a stressful situation. Imagine a perfectly innocent client. The police say he's been guilty of a murder. He's totally innocent, as innocent as any one of us. So he goes in there, he meets with the police, he says "I don't know what you're talking about, I- I was nowhere near there. I- I- I didn't kill him. I've never killed anybody. I don't have a gun, I've never had a gun. I've never touched a gun in my life. I was nowhere near Virginia beach that la- that la- that night-" Ah, en en, that last line was a lie. He went over the top. He was getting carried away. He got into this groove, he started say all kinds of things, almost all of them true, that he knew would tend to exculpate himself. Then he got carried away and just said one thing that wasn't true, and unfortunately for him they can prove that it wasn't true. He may be convicted on that basis alone.
But let's say your- let's say all that's not a problem. I'll tell my client only to tell the truth. I- I've met with him, I know he won't lie to the police, he won't make any mistakes. OK, that's still no guarantee he won't be getting into trouble.

[Slide 16]
* 4. Even if your client is innocent and only tells the truth, he will always give the police some information that can be used to help convict him

[James Duane] Because even if your client is innocent and only tells the truth, and doesn't say anything that is false. Now already mind you we're pretty well nigh into fantasy land. This odds of this being- anybody being able to pull this off are really quite slim, no matter how innocent they may be. But just the same- let's pretend. Let's assume he gives the police nothing but the truth, and he is totally innocent. He will always give the police some information that can be used to help convict him. Always.

[Slide 17] What Your Client Told the Police
* "I don't know what you are talking about. I didn't kill Jones and I don't know who did. I wasn't anywhere near that place. I don't have a gun, and I have never owned a gun in my life. I don't even know how to use a gun. Yeah, sure I never liked the guy, but who did? I wouldn't kill him. I have never ... in my life, and I would never do ...

[James Duane] For example, suppose you tell this to the police. Here's what you client tells to the police, in his denial of guilt: "I- I don't know what you are talking about. I wouldn- I didn't kill Jones and I don't know who did. I wasn't anywhere near that place. I don't have a gun, and I have never owned a gun in my life. I don't even know how to use a gun. Yeah, sure I never liked the guy, but who did? I wouldn't kill him. I have never hurt anybody in my life, and I would never do such a thing."

Let's suppose every word of that is true. One hundred percent of it is true. What will the jury hear at trial? "Officer Bruke, was there anything about this- your interrogation, your interview with the suspect that made you concerned that he might be the right one?" "Yes there was. He confessed to me that he never liked the guy'"

[Slide 18] What The Police Will Tell the Jury
* "I NEVER LIKED THE GUY."

[James Duane] And then the prosocuter'll put that up in big letters. And he'll say, "ladies and gentlemen of the jury, it's pretty clear that we've got the right guy here. We've proven that he was in Virginia Beach that night, that's opportunity. And remember Officer Bruke admitted that after extended questioning he was finally able to get the defendant to admit that 'he never liked that guy.' There's your motive. Motive plus opportunity. Wham, bam." Please. But juries eat it up. And innocent people get convicted this way sometimes. How often? Hopefully not too often, but we know it happens.

[Slide 19] The Point of the Fifth Amendment
* Ohio v. Reiner, 532 U.S. 17, 20 (2001)
(internal punctuation and citations omitted):
* "One of the Fifth Amendment's basic functions 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 gov... incriminating evidence from the ... mouth."

[James Duane] The United States supreme court, don't take my word for this, in Ohio versus Reiner the supreme court of the United States said, quote: "One of the Fifth Amendment's basic functions 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 government with incriminating evidence from the speaker's own mouth." See, it's not just some criminal defense attorney telling you this. Even the supreme court says I'm right.
In the fact- under the facts of that case by the way, in Ohio versus Reiner, a child tragically was died, apparently the result of shaken baby syndrome. Question was who had shaken this baby to death. And one of the possible suspects was a babysitter, who had spent some time with the child that week. The babysitter's story was, "I- I don't know what your talking about. I did not kill the child. I don- I did not see it happen. I don't know who shook the baby. It was never me. I never did anything of any violent nature to the child." The Ohio state court said, "well, you've got no Fifth Amendment privilege. You- by your own admission told the investigators that you've done nothing wrong, that you were not involved, so obviously your answers can't incriminate you." The United States Supreme Court reversed and said "well that's not true. Even though the chi- this babysitter denies shaking the child, denies seeing the child die, denying kno- denies knowing how the child died." This babysitter, by her own admission apparently was being- was... The government wanted to ask whether the babysitter might have been with the child at some point that week. During the week prior to the death. And that answer, although by itself not sufficient to convict anybody, could help convict her. That means she's got a Fifth Amendment right to refuse to answer the question, the court held. Because it could be used to help convict.

[Slide 20] The Point of the Fifth Amendment
* Ullmann v. United States, 350 U.S. 422, 426 (1956):
* "Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invo... either guilty of crime or com... claiming the privilege."

[James Duane] Ullmann versus United States, the Supreme Court said, more than fifty years ago, eerily prophetic. They said: "Too many Americans, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege." That's not true and it never has been. But it gets worse. Can it get worse? It can.

[Slide 21] Why Not Talk to the Police?
* 5. Even if your client is innocent and only tells the truth and does not tell the police anything incriminating, there is still a grave chance that his answer can be used to crucify him if the police don't recall h... testimony with 100% acc...

[James Duane] Number five. Even if your client is innocent and only tells the truth and does not tell the police anything incriminating, which by the way is almost impossible to pull this off. I mean imagine talking to the police for two, three, four hours, and- and someone like him can't somehow manage to extract from you something that can be use to acul- to convict you. That would be extraordinary. I don't anybody's pulled it off. But even if you could pull it off. There is still a grave chance that his answer can and will be used to crucify you in a court of law if the police, no offense, don't recall his testimony with one hundred percent accuracy.

Alright, now this brings us back to that pop quiz I warned you about. I told you earlier, remember. It's only been a few minutes. And you weren't up all night. And you weren't the subject of physical duress. You were in the relaxed setting of a classroom here. You were given heads up, advanced notice that you would be quizzed on this. Question. We'll start with a couple of easy ones.

[Slide 22] Quick Quiz
* How many people did the police find shot to death last night at the Ocean View apartment I told you about?
* A. One
* B. Two
* C. Three
* D. Four

[James Duane] Remember that article I read you about that- How many people did the police find shot to death last night at the Ocean View apartment I told you about? A one, b two, c three, d four. Who says a? B? C? Get this- get that with a camera. Show- get- move that camera around. Look how many hands we got there for c. OK, d? Your all wrong. Everybody who raised their hand, everybody who raised their hand. You are the kind of people who should never talk to the police under any circumstances for as long as you live. Why is c not the right answer by the way? If you know raise you hand. Yes?

[Random Girl] Because you didn't state the cause of death.

[James Duane] Excellent. I didn't say anybody was shot. I didn't say gun, bullet, shooting, firearms. Didn't use any of those words. But I don't blame you if you thought that I did. This is the way the human mind works. We hear things, we fill in details. I said "gangland style slaying." That may or may not imply something, but it doesn't mean that anybody was shot. And that's the problem.

[Slide 23] Why Not Talk to the Police?
* 6. Even if your client is innocent and only tells the truth and does not tell the police anything incriminating and his statement is videotaped, his answers can be used to crucify him if the police don't recall th... questions with 100% acc...

[James Duane] You see, even if your client is innocent and only tells the truth and does not tell them anything incriminating and his statement is videotaped, his answers can be used to crucify him. You might say, "wait, how can that happen? I insisted- at my insistence- I called the police and I said 'lookit, you want to talk to my client. You can talk to him but only if you videotape the whole thing. I don't want there to be any debate between the two of you over what happened.' 'OK, we'll videotape the whole thing.'" If the police don't recall their questions with one hundred percent accuracy, he'll be convicted on that statement alone.

[Slide 24] How Could This Hurt?
* "I don't know who killed Jones. It wasn't me. I have never touched or fired a gun in my life."

[James Duane] For example. Suppose a man goes to the police. They say "we're investigating a possible murder. A shooting." And the guy says, quote: "I don't know who killed Jones officer Bruke, with all due respect. It wasn't me. I have never touched or fired a gun in my life." How can that help incriminate this man? How can that possibly be used against this man, to help convict him? You would think it's inconceivable. But it's as easy as pie. All the officer has to do is read this statement to the jury, and then the prosecutor says, "officer Bruke, was there anything about that statement that confused you or surprised you?" "Yes there was," he says in a moment of sinister high drama in the courtroom. "And what was that?" And then officer Bruke turns to the jurors and he says, "I never said anything about a shooting. I said we were investigating a murder. He was the one who brought up a gun." Then you turn to your client, and your client says, "that's not true, that's not true. I remember he was the one, or one of the cops, I was with them for three hours, one of them in the car said something about, they- they said they had a witness that I was the shooter." OK, I'll put you on the stand. And then you client testifies, "No no no, they did tell me shooting, I mentioned- they mentioned it before I said anything about a gun. They brought it up first." And then the police said, "that's not true." And now what? It's your word against their's? For what? You're gambling with your client's life.

And police officers can very easily make a mistake like that, just as so many of you did just a few minutes ago, about whether you recalled having heard me say something about somebody actually being shot. Police make mistakes. Innocently, inadvertently, unintentionally. Any statement, no matter how exculpatory it may seem on it's face, can be used to crucify you all by itself. If the police are either willing to lie, not likely, or if they just have a mi- innocent misrecollection of the details as to what they did or did not tell you before you told them what you said.

All of these by the way, all of these problems disappear if you take Justice Jackson's advice and say, "thank you very much officer, but no thanks."

How about this one? Here we go, now here's the most surprising of all. I've saved the most surprising one for last. Let's suppose you've got the scenario. Your client's thinking about talking to the police. He acts like- he says "I've got nothing to hide. They think that I killed somebody in Virginia Beach last night." Well where- and this is wha- and this is what you client tells you in confidence: "I don't know who robbed that store. It wasn't me. In fact, I got a pretty good alibi. I wasn't even in Virginia Beach that night, last night; I was four hours away visiting my mother in the Outer Banks."

[Slide 25] How Could This Hurt?
* "I don't know who robbed that store. It wasn't me. I wasn't even in Virginia Beach that night; I was four hours away visiting my mom in the Outer Banks."

[James Duane] "Unfortunately no, I did not pay for gas with a credit card. I used cash and so I've got no witnesses that can prove I was there except my word, and of course mama." For what that's worth, which is of course nothing. Uh. But, uh, so your client says, "so the police want to talk to me, and I want to seem cooperative so what I'll do is I'll tell them I was in the Outer Banks last night." Now, there's nothing, on it's face incriminating about any of that.

Let's assume by the way, that you believe with all your doubt- you've given your client a polygraph exam. You've known him for years, you've been going to the same bible study for thirty years. You know beyond a shadow of a doubt that he's telling you the truth. And he's not admitting anything. He's not admitting motive. He's not admitting opportunity. He's not admitting he was there. Eh, how on earth could this come back to haunt us? How on earth could this come back to be used against us. Be honest, raise your hand if you really think the answer to that question is, "I can't see how it could possibly be used against me."... You're afraid I'll call on you right? I won't call on you.

Well you're wrong, you're dead wrong, you're always wrong, everything you say. Every, time, you talk to the police you will regret it. You see the problem is, here it is, this is the last point.

[Slide 26] Why Not Talk to the Police?
* 7. Even if you client is innocent and only tells the truth and does not tell the police anything incriminating and the entire interview is videotaped, his answers can still be used to crucify him if the police have any evidence, even mistaken of unreliable evidence that any of his statements are false.

[James Duane] Even if you client is innocent and only tells the truth and does not tell the police anything incriminating and the entire interview, questions and answers, are videotaped, your- even his truthful answers can be helped to- used crucify even an innocent man if the police, through no fault of theirs, end up in the possession of any evidence, even mistaken and unreliable evidence that anything your client told them was false, even if in fact it was true. Again, going back to this example from a moment ago. Let's suppose I tell- I go ahead and I meet with the police. I think I got nothing to hid. I tell them "I was in the Outer Banks last night officer." How could that be used to convict me? By itself it cannot, it cannot help at all by itself.

But what if I later find out, to my horror, after I put my cards on the table, that they've got a witness, a girl that I went to high-school with, an unimpeachable witness, we've never been enemies, she'd have no reason to lie. She swears she thinks she saw me in Virginia Beach last night a couple a blocks away from that store, about an hour before it was robbed. Now her testimony by itself isn't going to help the prosecutor. Hell, if she's all they got I'll get this case thrown out before trial. But if like a idiot, I talk to the police, and I told them the truth, I told them I was in the Outer Banks, and now lo and behold, tragically turns out they've got a witness. A false, mistaken, confused, but sincere incredible witness, who can testify that I was here in Virginia Beach. Now they'll likely to get a conviction.

Because what they'll do- I've just turned this cop and this woman into the government's star witnesses. They'll put her- hell they'll put officer Bruke on to testify about how my client lied to him about being in the Outer Banks. And then they'll put on this girl. This girl who otherwise would have not even helped their case at all, who will testify, "no, that's not true, that was a lie, I saw Mr. Duane's client, here, in Virginia, an hour before the robbery, not so from the store."

By herself she would not have helped the government in any significant way. But what I have just done, you see, is given them the other part of the puzzle, and now I'm doomed.

[Slide 27] Just ask them
(Photo of Martha Stewart) (Photo of Mary Ann Jones)

[James Duane] Just ask them. I- I close- I close with this example. Here we have a couple of recent celebrity examples of why it is that even people who admit nothing, always end up denying it- I mean sorry, they always end up regretting it. On the left we have Martha Stewart. She was the victim- the subject of an extensive government investigation that was looking into the possibility that she was guilty of fed- of violations of certain federal laws, securities laws, fraud kinds of things. They couldn't pin that on her, but they were able to get a conviction because she denied it. Talking to the police and later to some of the shareholders, she said "no, it's not true, I was not guilty." So they charged her with lying to federal investigators, and they got a conviction, and she was sentenced to five months in prison.

Mary Ann Jones, on the right side. Another person who would still be out today if she had always uh, taken the advice that I'm giving you now. She was asked to- if she had ever used steroids, a controlled substance. And instead of taking the fifth she said "no, I never took steroids when I won those Olympic gold medals." Uh, later on it turned out that she was lying. She worked out a deal, she pled guilty, she admits that she was lying. And she, over her strenuous tear filled objection, even though she has two young children, was just recently sentenced to prison for six months. The guy who sold her the steroids, the pusher, he got only four months. But she got six months because she lied to the police and said that she did not do it. You see the problem.

Michael Vic, who recently pled guilty, as you know, to these charges with respect to the operation of these dog combat sorta operation in his home. At sentencing, like many other criminal defendants, even though he eventually pled guilty at sentencing, one of the reasons his sentence was a little harder then it might have otherwise been, the judge said, was because when he initially met with the police he lied to them and said "I didn't do anything, I didn't do it, I don't know what you're talking about."

Even guilty people, but not guilty people, will always end up regretting talking to the police. Um, uh. So, my advice to you, Justice Jackson was right. Any sane competent lawyer in his right mind will always tell every client under all circumstances, "I don't care if you're innocent. I don't care if it's the truth. If it's the truth great, we'll tell the jury all about it. The'll be time enough to put our cards on the table. But before we get there, I haven't seen yet what the police got. They may have mistaken and confused witnesses who will contradict even the truthful stuff that you say. We have no way to know. No way to predict whether the information that you give them, even if truthful and reliable, will end up unwittingly spellin- dispelling our demise. So keep your mouth shut, don't answer any questions, let's take the fifth, you'll be glad that you did." God bless America, God bless the bill of rights, and the geniuses who bequeathed it to us.