You Have the Right to Remain Innocent
Book by James Duane
DETAILS
Publisher : Little A (September 20, 2016) Language : English Paperback : 152 pages ISBN-10 : 1503933393 ISBN-13 : 978-1503933392 Item Weight : 4.8 ounces Dimensions : 5 x 1 x 7 inches Best Sellers Rank: #41,147 in Books (See Top 100 in Books) #8 in Law Enforcement (Books) #15 in Law Enforcement Politics #17 in General Constitutional Law , An urgent, compact manifesto that will teach you how to protect your rights, your freedom, and your future when talking to police. Law professor James J. Duane became a viral sensation thanks to a 2008 lecture outlining the reasons why you should never agree to answer questions from the police―especially if you are innocent and wish to stay out of trouble with the law. In this timely, relevant, and pragmatic new book, he expands on that presentation, offering a vigorous defense of every citizen’s constitutionally protected right to avoid self-incrimination. Getting a lawyer is not only the best policy, Professor Duane argues, it’s also the advice law-enforcement professionals give their own kids. Using actual case histories of innocent men and women exonerated after decades in prison because of information they voluntarily gave to police, Professor Duane demonstrates the critical importance of a constitutional right not well or widely understood by the average American. Reflecting the most recent attitudes of the Supreme Court, Professor Duane argues that it is now even easier for police to use your own words against you. This lively and informative guide explains what everyone needs to know to protect themselves and those they love. Read more
REVIEW
I recommend Professor Duane's book. In my opinion, the book should more thoroughly address a common exception that traffic court prosecutors handle on a fairly routine basis. That exception is found in the scenario of being involved in a property damage or personal injury or death accident, and the concomitant legal duty to give information to the police. Failing to heed this exception, under some circumstances, may lead a person to a felony conviction. (See, for example 625 ILCS 5/11-401 and People v. Brady, App. 2 Dist.2007, 308 Ill.Dec. 356, 369 Ill.App.3d 836, 861 N.E.2d 687) Professor Duane comments on this issue in a footnote in the book on page 122, advising his readers to talk to the police as briefly as possible under these circumstances. However, in my opinion, the book could be improved by exploring this issue more thoroughly. The issue is so common that I see multiple such cases per year even in my small, rural county. Similar laws are found across many jurisdictions, including Duane’s home state of Virginia. I have been a prosecutor for over a decade in two states. In that time, I took one such case to a jury trial that resulted in a felony conviction of someone who failed to give information to the police. In Professor Duane’s video, “Don’t Talk to Cops, Part 1”, he said, “Here’s the easiest question you’ll ever get from a client in all the days of your life. ‘The police are here. They want to talk to me. What should I do?’” He then quotes Justice Robert Jackson from 1949: “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statements to the police under any circumstances.” Jackson’s statement allows no room for exceptions of any kind. It was risky for Justice Jackson to throw around phrases like “in no uncertain terms” and “under any circumstances”. However, he must at least be prepared to defend those words when somebody raises the possibility of an exception. Jackson’s statement was made in 1949. Is it possible that new 5th Amendment issues have been raised by legislation drafted since 1949? It’s certainly possible. Since 1949, entire articles and chapters have been drafted around motor vehicle law alone. So, people should be skeptical of Jackson's statement. In the video, Professor Duane agrees with Jackson, stating that a lawyer should always advise a client to avoid talking to police under any circumstances. He further suggests that there is no way that talking to the police can help you, and that it will always hurt you. Duane further says that there are “surprising and somewhat counterintuitive, and admittedly unlikely reasons why Jackson was right.” In his book, “You Have the Right to Remain Innocent”, Duane changes and softens the main conclusion and advice of his “Don’t Talk to Cops” video. On page 6, he provides a clarification, and acknowledges a few obscure situations in which giving information to the police is acceptable. The exceptions are certainly uncommon. He poses examples such as trying to get into your own house or car after being locked out, or walking around a government building at night after it has been locked, or walking down an alley with two new bicycles. He generally summarizes a common theme by advising that you may provide information to the police that would answer two questions: “Who are you?” and “What are you doing right here, right now?” (pages 6 and 8). He says that, “Those are the only two things you should tell the police officer in that context, and they are both in the present tense.” Later, he says that, “…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.” (page 8). In a footnote he says that "at the risk of stating the obvious", you should talk to the police in those situations in which the law requires you to call them. He mentions involvement in an automobile accident as an example. I don't think there is any undue risk in stating this. A felony conviction may be at stake. I think his point needs to be gravely emphasized to his readers. There are many people I know of who have remained silent when police approached them and questioned them after involvement in a motor vehicle collision involving property damage or personal injury. Perhaps they feared that drugs may be found. Perhaps they may have thought that they should wait to speak with a lawyer before giving any information in response to an officer's questions. But, the failure to give information under those circumstances can eventually lead to a felony conviction. I’ll explain, and I’ll use Illinois law as an example, because I am most familiar with Illinois. (But, I could have chosen Duane’s home state of Virginia with equal effect). Under some circumstances, in order to comply with the Illinois Vehicle Code, you are required to give information to the police. The statute (625 ILCS 5/11-403) provides that, “[t]he driver of any vehicle involved in a motor vehicle accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person shall give the driver’s name, address, registration number and owner of the vehicle the driver is operating and shall upon request and if available exhibit such driver’s license to the person struck or the driver or occupant of or person attending any vehicle collided with and shall render to any person injured in such accident reasonable assistance, including the carrying or the making of arrangements for the carrying of such person to a physician, surgeon or hospital for medical or surgical treatment, if it is apparent that such treatment is necessary or if such carrying is requested by the injured person. If none of the persons entitled to information pursuant to this Section is in condition to receive and understand such information and no police officer is present, such driver after rendering reasonable assistance shall forthwith report such motor vehicle accident at the nearest office of a duly authorized police authority, disclosing the information required by this Section. Any person failing to comply with this Section shall be guilty of a Class A misdemeanor.” 625 ILCS 5/11-403. Further reading under 625 ILCS 5/11-401 shows that failure to comply with 11-403 under some circumstances may result in a felony conviction. Under 5/11-401(a), the statute provides that, “[t]he driver of any vehicle involved in a motor vehicle accident resulting in personal injury to or death of any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible and shall then forthwith return to, and in every event shall remain at the scene of the accident until the requirements of Section 11-403 [625 ILCS 5/11-403] have been fulfilled. Every such stop shall be made without obstructing traffic more than is necessary.” 625 ILCS 5/11-401(a). Furthermore, some circumstances place time constraints on the duty to give information to the police. Under 5/11-401(b), the statute provides that, “[a]ny person who has failed to stop or to comply with the requirements of paragraph (a) shall, as soon as possible but in no case later than one-half hour after such motor vehicle accident, or, if hospitalized and incapacitated from reporting at any time during such period, as soon as possible but in no case later than one-half hour after being discharged from the hospital, report the place of the accident, the date, the approximate time, the driver’s name and address, the registration number of the vehicle driven, and the names of all other occupants of such vehicle, at a police station or sheriff’s office near the place where such accident occurred. No report made as required under this paragraph shall be used, directly or indirectly, as a basis for the prosecution of any violation of paragraph (a).” 625 ILCS 5/11-401(b). Also, “[a]ny person failing to comply with paragraph (a) shall be guilty of a Class 4 felony. Any person failing to comply with paragraph (b) is guilty of a Class 2 felony if the motor vehicle accident does not result in the death of any person. Any person failing to comply with paragraph (b) when the accident results in the death of any person is guilty of a Class 1 felony.” 625 ILCS 5/11-401(c), (d). Here are three observations. First, the statute has a built-in protection against self-incrimination. This is found in the final sentence of paragraph (b). Second, this statute imposes a duty. The duty involves giving information about a past event to a police officer. Duane’s advice generally prohibits reporting on past events to a police officer. (Duane said on page 8, “…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.”) Third: the statute provides for a 30-minute time limitation under some circumstances. This is, ironically, the same amount of time Duane used in his example. But, it serves to further emphasize the point that there is some information that you cannot legally wait to give to the police until the trial date. Please note the case of People v. Brady, App. 2 Dist.2007, 308 Ill.Dec. 356, 369 Ill.App.3d 836, 861 N.E.2d 687. In this case, Benjamin Brady was found guilty of a violation of 625 ILCS 5/11-401 (Leaving the Scene of a Death Accident). Brady failed to report to the police the information required by statute. On appeal, Brady contended that, as applied to his conduct, 625 ILCS 5/11-401 violated his constitutional privilege against self-incrimination. The court rejected his argument. First, the court noted that 625 ILCS 5/11-401(b) provides that “…No report made as required under this paragraph shall be used, directly or indirectly, as a basis for the prosecution of any violation of paragraph (a).” The court ruled that the statute, as drafted, did not violate the constitutional privilege against self-incrimination; the statute's provisions did not present a substantial and real hazard of incrimination, and the act of identification, by itself, in no way related to circumstances of the accident or provided information concerning details of the past event; A communication must be testimonial, incriminating, and compelled in order to qualify for Fifth Amendment protection; The Fifth Amendment privilege against compulsory self-incrimination protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. For an interesting read, consider another case in which a lawyer attempted to help his client comply with 625 ILCS 5/11-401(b), and was ultimately vindicated in his attempt, even when the police refused to receive information that he tried to give them! Talk about the shoe being on the other foot! The case is Cesena v. Du Page County, 1991, 163 Ill.Dec. 911, 145 Ill.2d 32, 582 N.E. 2d 177. The issue is rich with interesting cases, and I would love to see Duane’s view on that case. But, that’s enough about Illinois. What about Professor Duane’s home state of Virginia? The statute is Va. Code Ann. § 46.2-894, and is entitled, “Duty of driver to stop, etc., in event of accident involving injury or death or damage to attended property; penalty” and provides, in part, “The driver of any vehicle involved in an accident in which a person is killed or injured or in which an attended vehicle or other attended property is damaged shall immediately stop as close to the scene of the accident as possible without obstructing traffic, as provided in § 46.2-888, and report his name, address, driver's license number, and vehicle registration number forthwith to the State Police or local law-enforcement agency, to the person struck and injured if such person appears to be capable of understanding and retaining the information, or to the driver or some other occupant of the vehicle collided with or to the custodian of other damaged property.” Relevant Virginia case law is also available, namely Banks v. Commonwealth, 217 Va. 527, 230 S.E.2d 256 (1976). That case is summarized by Lexis as follows: “State’s Interest Outweighs Self-Incrimination Factor. Even though there may be a "real" possibility of self-incrimination to the "hit and run" habitual offender stemming from enforcement of this section and the information gained by compliance therewith in a prosecution under former § 46.1-387.8 (see now § 46.2-357), the State's vital interest in its self-reporting system compels rejection of an effort to extend the self-incrimination privilege to such a statutory framework.” So, it appears (to me, at least) that the law in Professor Duane’s home state of Virginia provides even less protection than Illinois law! At least Illinois provided a written statutory protection for the motorist. Virginia provides no such written protection, and merely applies a balancing test between the State’s Interest and the Citizen’s Constitutional Right. That begs for a whole chapter in Professor Duane’s book. A second criticism (only a side note, but I will mention it anyway): on page 45, Professor Duane describes an Australian case (Queensland) in which a murder “victim” turns up alive. The prosecutor’s case was “based almost entirely on his recorded confession…”. He explains that “there was no other substantial evidence of his guilt….” Duane asserts that, “[h]ad Ryan (the murder “victim”) not been discovered during the trial, Fraser almost certainly would have been convicted after he confessed to murdering a woman who wasn’t even dead.” How certain are we about that? What about the issue of corpus delicti (“body of the crime”) principle? In some jurisdictions, the prosecution is required to produce some evidence that tends to corroborate the confession. See People v. Willingham (1982), 89 Ill.2d 352, 358-59, 59 Ill.Dec. 917, 432 N.E. 2d 861 and People v. Nachowicz, 340 Ill. 480, at page 495, 172 N.E. 812, which the court explained that, “[w]hile it has been held that a defendant's confession, when the corpus delicti is not otherwise proved, is insufficient for a conviction, this does not mean that the corpus delicti must be proved by the evidence, aside from the confession, beyond a reasonable doubt….” Professor Duane's book could be improved with the inclusion of the issue of corpus delicti. Assuming that the living murder “victim” remains hidden in her boyfriend’s closet until after a guilty verdict, what does Australian law say about “corpus delicti”? Is the confession alone a sufficient basis for a conviction under Australian law? If the reader is interested in “Will it Play in Peoria?” (or Virginia Beach, Virginia for that matter), given the protections of state and federal constitutions and evidence law, what may the reader expect to find? I’m curious about whether Australian law really would have provided no such protection. Overall, I recommend the book. It could have been improved by more thoroughly addressing the aforementioned issues. But, otherwise, Duane makes a compelling argument. I am requiring my 13-year old daughter to read it. But, as a supplement, I discussed with her the important exception that I detailed above.
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