Your Right to Silence: Use It!

I recently happened to stumble upon a YouTube lecture by a law professor named James Duane. Duane doesn’t soft-sell his point: he is in love with the 5th amendment to the U.S. Constitution. If this blog post doesn’t make you love it too, it should at least give you a deep crush.


Most of us are familiar with the 5th amendment from TV and movies, where the cops intone the warnings with great drama, and the warnings have become a sort of plot point saying, “We got the bad guy.” Cut. Print.


The fact is that Miranda warnings are required only when the suspect is interrogated by police while in custody. The law has carved out so many exceptions to the Miranda protections that, frankly, its real-world protections are getting weaker all the time.


Human nature also weakens the 5th amendment. Follow along with me on this hypothetical: You join your old high school buddies at a bachelor’s party for one of your classmates. Somehow, a party crasher starts a loud argument in the back of the room, and since you’re nearby, you move toward the shouts to try to calm things down.


Suddenly, as a number of people move toward the troublemaker, a tray of snacks and plates are overturned and a metal tray flies toward you, which you deflect, ricocheting it at the loudmouth, cutting him badly across the forehead. To you, it’s obvious: it was an accident, or at the worst, self-defense. Who could doubt it, especially given the witnesses
and all the cameras and videos capturing scenes of the party. What police officer would doubt your story? You saw it all clearly, and it’s obvious the party crasher brought it on himself.


If the police have interviewed a few people whose attention was only drawn toward you when the saw the tray moving fast from you, toward the troublemaker, and saw the blood on his face. They all assume you threw it, and a couple claim they actually saw you do it. There is video, but it is confused and become a blurry depiction of the carpet right
when the action happens. Unfortunately, when the cops come to question you, you don’t know any of that. All you know is that you’re innocent, that you were reacting reflexively when you deflected the tray, and that it was purely an accident that the tray struck the injured man.


What harm is there in telling the police exactly why you say you’re innocent? Here are Duane’s top reasons:

  1. You cannot talk your way out of getting arrested if the police think they have probable cause.
  2. Guilty people, and even innocent ones, could unknowingly implicate themselves in a crime.
  3. Even the smallest inaccuracy in your otherwise honest, true statement can later make you look suspicious, even guilty, to a jury.
  4. Even if you are innocent and tell only the truth, you will always provide police with some information that a prosecutor will use to convict you.
  5. Even if you are innocent, tell the whole truth and say nothing incriminating, your statements can still convict you if they don’t have 100% accurate recall of your answers.
  6. Even if you are innocent, tell the whole truth and your answers are videotaped, the police can still convict you if they don’t have 100% accurate recall of their questions.
  7. Even if you are innocent, tell the whole truth and your answers are videotaped, your statements can still convict you if they evidence, real or mistaken, that any part of your statements were false.

    What should you say when police ask to talk with you? “I won’t talk until I speak to a lawyer and he or she advises me to speak to you.”