Nonfiction Review: You Have the Right to Remain Innocent by James Duane (2016, Little A)

Believe it or not, this is the single most important self-defense tip you will ever learn from the Internet, and the best part is, anyone, regardless of age or gender, can put it into practice.

You may already know James Duane, even if you don't recognize him. A 2008 lecture he delivered at Regent University School of Law entitled, "Don't Talk to the Police" went viral on the internet, garnering millions of views and sparking discussions about everything from the Fifth Amendment to the problems inherent in the US criminal justice system.

You Have the Right to Remain Innocent serves as Duane's follow-up to this original lecture, as well as a basic encapsulation of the lecture itself, and at 152 pages written in the same leisurely, entertaining style as Duane's verbal delivery, you can breeze through it in a matter of hours. If you don't have a few hours, or don't want to cram another book onto you already-overloaded and slumping shelves, then at the very least you owe it to yourself, your loved ones, and especially your children (this goes double if your skin is any shade darker than my pasty-white countenance or you speak with an accent indicating American English may not be your first language) to watch his original presentation.

If it's been a few years since you saw it, watch it again. If you don't live in the US but will be visiting for any length of time, watch it. Especially if you are not a criminal. Go right ahead, I'll wait. In fact, if you want to watch the video then close this post without leaving a comment or upvoting, I'll be perfectly happy with that outcome. That is how important this lecture is to anyone who spends any amount of time on US soil.

What's so instructive about this video isn't James Duane's persuasive presentation, but the fact that after his roughly twenty minute talk, he opens the stage up to George Bruch, a real life police officer with decades of experience on the force, and allows him to have the last word.

Now you would think that, at the very least, a veteran cop is going to argue with everything Duane has just said. After all, if people stop talking to the police (with two very important exceptions that Duane covers in the lecture and I'll repeat below), doesn't that make it harder for them to do their jobs? Wouldn't this make it more likely that criminals will go free? Why, if you have done nothing and have nothing to hide, would refusing to talk to the police be at all helpful?

You'd think that, but Officer Bruch disagrees. In fact, the first words out of his mouth once he reaches the podium are, "[E]verything he said was true." This, in fact, is one of the first things members of law enforcement, whether they're rookie cops, seasoned veterans, detectives, FBI, county or state, local or federal, tell their children: if you're ever in a situation where a cop wants you to talk to them, or wishes to search your person, your home, your property, or your vehicle, decline. If they persist, tell them you want a lawyer in no uncertain terms ("I want a lawyer."), and repeat this phrase until you're provided with council or they leave you alone.

Now, why would a police officer argue that people shouldn't talk to him? People talking to the police makes their jobs easier...and that's a bad thing.

It's a bad thing because talking to the police is inherently stressful. Even if you've done nothing wrong and have no reason to be concerned, that doesn't mean you won't make a mistake that could result in you spending time behind bars. As Officer Bruch points out, nearly all people, especially the innocent, want to do the right thing--we bend over backwards to be helpful, to be truthful, to be nice. Unfortunately with the way the US criminal justice system is set up, doing the right thing can land you on death row.

Duane points out several examples of people who were convicted in court, sentenced, and served stints in prison for crimes they did not commit because they said the wrong thing, and the police nailed them to the wall. These were not guilty people, they were innocent people whose convictions were later overturned thanks to groups like The Innocence Project who work to free people wrongfully sentenced. And once the police have you talking, like it or not, your every word will be scrutinized, picked apart, and evaluated based on every other word you uttered. You can wind up confessing to a crime you didn't commit, or didn't even realize you had committed because you didn't know it was a crime, because the police have the protected power to lie to and deceive you by any means necessary during an interview.

In the book, Duane gives a jaw-dropping example of a man who was convicted of a murder he did not commit because, when the police asked him his whereabouts at a certain time, the man truthfully stated that he and his wife were out eating dinner together at a restaurant. How, Duane asks, could telling the police you were eating dinner at a restaurant with your wife possibly result in your conviction? He invites the reader to imagine any scenario, any situation at all, where the act of eating dinner with one's spouse could get you sent to prison.

Then he unravels the horrifying ball of yarn.

There was no physical evidence linking this man to his wife's murder, but between this single, truthful statement and the testimony of an expert witness at the trial who stated the contents of the murdered woman's stomach indicated a specific window for time of death, the prosecution was able to place her husband in close proximity to her during that window. Conviction was secured on that basis alone.

Because the man admitted, to the police, during an interrogation, that he'd eaten dinner with his wife earlier in the evening, he lost years of his life in prison before DNA evidence finally overturned his conviction and he was set free.

That's only one instance. There are thousands of similar cases to be found in every state of the Union.

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For me, the single most important fact of both the lecture and the book involves the Miranda warning. If you've ever watched a police procedural, you know Miranda backwards and forwards because the cops always shout it into the suspect's ear as they're bundling him or her into the police cruiser. The most important phrase in Miranda is this:

"Anything you say can be used against you in a court of law."

It may not seem like it, but that begs examination. Read it again. Don't interpret it, read exactly what it says, word for word, and pay particular attention to what it does not say. It's not as straightforward as you think.

Did you catch the important word? I'll help: "Anything you say can be used against you in a court of law."

Because of the way criminal law works, the police are only allowed to present evidence that works towards the conviction of a defendant when testifying in court. Even if you told the police something exculpatory during your interview, if you gave evidence for your innocence when speaking to an officer, whether it was recorded or not, the officer's hands are legally bound. The police, from the arresting officers to the detectives who perform the interrogations, beat cop to Chief of Police, cannot tell the court anything which might serve in your defense. Even when your lawyer gets to cross-examine them, even if your lawyer knows of a conversation you had with an officer with details pertaining to your innocence, any attempt to bring them up in court will be challenged as hearsay by the prosecution under the rules of evidence, and they will not be permitted to speak on your behalf.

In other words: talking to the police can only hurt your case. No matter how much the officer may personally believe in your innocence, no matter how convinced that one friendly detective may be that the state is bringing a case against the wrong person, they cannot provide one word in your defense, they can only testify towards your conviction.

If you don't read the book, if you don't watch Duane's lecture, that right there is the single most important piece of information to be gleaned from them. It is impossible for any law enforcement officer involved in your case to go to bat for you on the witness stand. Before watching Duane's talk (something I have done multiple times ever since I ran across it in 2012), I didn't know or understand this. It seems contradictory. It makes no sense. The police don't want to convict the innocent any more than the innocent want to be convicted. Nevertheless, it is true. The police serve for the prosecution, never for the defense.

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The other thing I'd like to note is Duane's choice of title. You Have the Right to Remain Innocent.

Why is this important? Because if a case goes to trial, there are two possible verdicts the court can render. Do you know what they are?

Did you say 'Guilty' and 'Innocent'?

Sorry, you're wrong.

Courts, whether civil or criminal, decided by a judge or a jury, can never find a defendant "innocent", no matter what exculpatory evidence is presented, even though jurors are always instructed to assume the defendant is "innocent until proven guilty". Once you're a defendant, you cannot be innocent. Innocence is not determined in a court of law, only guilt. Thus, if you wind up the defendant in a legal matter, no matter the charges, the court's options are 'Guilty' and 'Not Guilty'. Even if DNA evidence proves you had nothing to do with the crime, even in the unlikely event that a person stands up in the court room and declares that he or she is in fact the guilty party, you cannot be judged 'Innocent'. 'Not Guilty' is the best outcome you can hope for, especially if you're not actually guilty of the crime for which you have been accused.

Therefore the only way to remain innocent in the eyes of the law is to not be charged with a crime. And the best way to avoid being charged with a crime, especially to avoid being charged with a crime you did not commit, is to never talk to the police...except under two conditions.

Police officers have the right to demand an answer to two, and only two, very specific questions they may ask you. Those questions are, "Who are you?", and, "What are you doing, right here, right now?" As Duane puts it:

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.

That doesn't mean, however, that after establishing those two facts, you should entertain an officer's request for further information about things not happening in the present time. Duane again:

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.

Beyond that, if the officer persists in questioning or detains you, the next four words out of your mouth, no matter how much you want to help the police with their case, no matter how innocent you are, no matter your belief that nothing you say could possibly result in your prosecution because you've committed no crime, must be: "I want a lawyer."

Memorize them. Teach your family. Teach your children. Those four words could mean the difference between life and death one day. If you need further proof and the words of a lawyer who writes in an easy to understand fashion will persuade you, then by all means buy this book, read it, and share it with your friends. Because in the United States of America, you do have the right to remain innocent.

Five enormous law textbooks out of five.