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When Not To Talk To The Police


There's and old joke that goes like this: a prison guard asks an inmate what he's in for. "Talking," the inmate replies.

Law Professor James Duane says it's no laughing matter.  He's the author of the book "You Have The Right To Remain Innocent" and is featured in a video titled "Don't Talk to the Cops" that's garnered thousands of views on You Tube.

Duane says innocent people sometimes get convicted based on information they provide to police in an effort to be cooperative.

Speaking on GLT's Sound Ideas, Duane said no one should speak to police on a criminal matter, even as a witness or bystander to a crime, without the aid of an attorney.

"The problem is that you don't know what you're up against. The police are not required in any way to put their cards on the table ... and they are skillful and highly trained in getting you to admit things that can help get you convicted even you are innocent," Duane said.

A law professor at Regent University in Virginia Beach, Duane speaks Wednesday, April 19, at 6:30 p.m. in the auditorium of Illinois State University's Edwards Hall.

"I wish I could say our legal system requires the police to be honest with you about what their intentions  and expectations are but that's not the case ... Far too many people take the bait and find that the evidence is used against them," Duane added.

Duane gives the example of a man in New Orleans man who was convicted of murder and spent 30 years on death row before he was proved innocent. "Police had no evidence against him except what he gave them," Duane said.

Duane noted, however, that there are problems with invoking the Constitution's Fifth Amendment, the right to remain silent. He said it could appear to many in the public and to jurors at a trial as an admission of guilt.  

"It's gotten to the point where the Fifth Amendment has now become what I call the right to dare not speak its name ... They'll essentially argue that your invocation of this constitutional privilege is tantamount to a confession, which is highly unfair and highly misleading."

Credit Regent University
James Duane is the author of "You Have The Right To Remain Innocent."

To avoid giving that impression, Duane said those being questioned in a criminal case should invoke the right to counsel.

"Tell the police you want to exercise your right to a lawyer. Take the Sixth Amendment. Just tell the police get me a lawyer and we'll talk."

One exception where talking to the police just might help is during traffic stops, Duane said.

"When it comes to routine traffic infractions, police have a lot of discretion about whether to show you a little mercy and let you go with a warning. And whether they decide to exercise that discretion has a great deal to do with whether they believe you are being sufficiently respectful, remorseful and contrite, so I definitely would definitely answer the questions," he said.

"But if police tell you they are investigating a murder or arson or kidnapping," he adds, "forget about it."

Traffic stops become more complicated, Duane said, when police ask for permission to search the car, do a body search, or call in a canine to sniff the car. In that case, Duane said, "Be as polite as you can, but don't agree."

Duane was invited to ISU by Criminal Justice Sciences student Adam Kinross. Kinross said he is concerned about police traffic stops of ISU students for minor infractions that sometimes lead to car and body searches or dog sniffs in search of drugs or other contraband.

The Criminal Justice Sciences department, under the director of Professor Michael Gizzi, analyzed traffic stop data in Normal between 2014 and 2015.  The study found nearly half the 19,637 traffic stops in 2015 involved drivers under the age of 26. Most of those stops resulted in the drivers receiving warning tickets.

"In class we've learned about the idea of profiling and police making stops for minor traffic violations when they have another cause in mind," Kinross said.

"It's in good faith what they are trying to do," Kinross added. "They are trying to keep our streets clean and protect our citizens. But when they push it to an extent where they are making 53 stops a day, which is an extremely high number, it gets to a point where how much is really needed?

Credit Illinois State University
Adam Kinross is an ISU student concerned about traffic stops of students by Normal police.

"There is a difference between good policing and near-harassing a community, though I am not saying that is what is necessarily going on here. But just make sure you are interacting with your community on a good basis too." Kinross added.

Kinross said he hopes Duane's talk will drive home to students "that just because you remain silent does not mean you are guilty .... I think our founding fathers would roll over in their graves if they felt this country had gotten to a point where if people are exercising their constitutional rights, they are looked at as guilty by the public or the police." 

In an interview on Sound Ideas last fall after the police stop data was released, Normal Police Chief Rick Bleichner said his officers do not target any age group for traffic stops.  He said one reason young drivers are stopped more frequently is that they spend more time driving.

Listen to the interview with Adam Kinross.