The Sanctity of Silence

Why the Fifth Amendment is so necessary for justice and limited government.

Review: James Duane, “You Have the Right to Remain Innocent,” 2016.

Some time ago, back when I was more of a comic fanboy, I came up with what I thought would be a great and compelling Batman story.

It would start conventionally: Someone has committed a horrible crime, Batman gets on the case, works out the evidence and scares his suspect to admit he did the crime. The suspect would then end up in prison — his life ruined, his horrible crime described in lurid detail and Gotham City feeling they had gotten justice.

There would just be one twist: The suspect is innocent.

The possibilities were endless: The suspect becomes a supervillain and tries to get revenge. He dies in jail and Batman becomes wracked with guilt. A member of his Rogues Gallery discovers the truth and exposes Batman to be an unjust guardian of Gotham.

All because The World’s Greatest Detective got it badly, irreversibly wrong.

How and Why Innocent People Confess

Deep down, most of us want to believe that in any given case, law enforcement authorities get the right guy. Most of us tend to assume that if a person confesses to a crime, that confession is genuine. After all, the United States is not like Communist Russia or Nazi Germany, where innocent people were made through physical and psychological torture to confess the most absurd atrocities.

Perhaps this is why I’ve noticed that many people, especially law and order conservatives, deeply distrust the Fifth Amendment, which gives any person being questioned by authorities the right to “remain silent” and not say anything which might incriminate them. For far too many people — not just in America but around the world — the right to remain silent is a refuge only for the guilty; the innocent have “nothing to fear.”

Years ago, law professor James Duane put the lie to that claim. In a viral YouTube video on the importance of the Fifth Amendment, Duane explained in detail why the right to remain silent is a core part of the Bill of Rights, a vital safeguard protecting innocent people from being sent to prison. Now that lecture has been expanded into a fairly brief book, and it is one everyone should read.

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The story he tells should shock you. Pretty much every assumption people make about confessions and “telling the truth” takes on a new meaning.

For starters, innocent people can be made to outright confess, even in a democracy. Indeed, they do so all the time.

Why?

Because they’ve been interrogated for hours and just want to get out of that room. Because they trust the police and question their own memory. Because the officers investigating them are highly skilled in psychological and emotional manipulation, allowed to lie about anything and everything and can thus end up using the same tools they use to get guilty people to “get” innocent people. Duane presents study after study showing a shocking number of people later proven to be innocent having given false confessions, often quite detailed ones.

But, surely, if someone is innocent and doesn’t outright confess but merely tells what he thinks is the truth, then he has nothing to worry about, right? Wrong.

For starters, the American criminal code is so stocked with laws, regulations and statutes — many of them vague and broad — that one estimate claims that every American citizen in the country unknowingly commits at least three felonies a day. A determined officer or prosecutor will almost always be able to get you on “something” if they put their mind to it.

Furthermore, it is very easy — far too easy — for officers to misremember crucial details of what you said or catch you in a lie which then serves to convince juries you’re the guilty party. Or perhaps you made logical conclusions about a case which an officer never specifically divulged, therefore “proving” you could only have known if you were guilty. And if it’s your word against the law enforcement official — you’re not winning.

Worse, you know that part about “anything you say can and may be used against you?” Well, there’s a second part to that no-one will tell you: Nothing you tell the police can be used for you, even if the officer wants to help, as things you tell him in your favor are hearsay and are inadmissible as evidence.

This is why the right to remain silent is so crucial. Even without the many biases officers have, even if you’re innocent, even if everyone in law enforcement does everything “by the book” — talking to the police can destroy your life even if you are entirely innocent.

A Conservative Problem

Perhaps you will ask: Why is this a conservative problem? Surely many on the left have no patience for the right to remain silent when it comes to crimes they want severely punished?

That brings us to the most troubling part of the story, the second chapter with its terrifying heading “Don’t Plead the Fifth.” According to Duane, it is the present conservative judicial majority on the Supreme Court, especially conservative star Antonin Scalia, which has helped to seriously undermine the Fifth Amendment and weaken the idea that a person who remains silent can still be presumed legally innocent. This is alongside the undermining if not outright neutralization of the fourth amendment protection of house and home described by Radley Balko in his “Rise of the Warrior Cop.”

The two are related by the conservative cause of the War on Crime, which included the increasing demand by people on the right who would otherwise demand full adherence to the Constitution that everything be done to help authorities to catch criminals, rights be damned. One cannot disentangle the two.

This. Is. Our. Mess.

Time to Make Things Right

Whatever justification there may have been for bending or breaking the rules to end the carnage in the ’60s through the ’90s is gone now. It’s been 20 years since the wave receded; crime is down across the board and is showing no signs of shooting back up. If we really believe in restoring constitutional government, this must be high on the list of priorities.

To set things right, we on the right need to revive the importance of the Fifth Amendment. We all need to understand that the world is not a comic book or a TV show, and the risk that the government can and will get it wrong in enforcing the law is terrifyingly real and common.

We need to stop thinking and talking about the protections provided in the Fourth, Fifth and Sixth Amendments for criminal suspects as just making a hard job harder for law enforcement. Those provisions are there because there is nothing easier than for local, state or federal governments with their vast resources and skills to railroad civilians for anything and everything. This was true when King George III sent in his troops to commit all sorts of abuses without recourse, and it’s doubly true in an age of modern states and bureaucracies with often extremely broad powers. It’s especially true in democracies where public pressure — be it from the right or left — to punish people regardless of the facts can deafen true justice.

Against all this, we need to fight back. Conservatives have shown an impressive ability to fight hard for First and Second Amendment protections even when they were and often are wildly unpopular. This is no different, and is just as important. Anyone fearful of government abuses against citizens, anyone in favor of limited government must diligently work to advocate for the full restoration of the Bill of Rights in as robust a manner as possible.

And whatever you do: Don’t ever talk to the police without a lawyer present at all times and strictly per his advice, and after you have explicitly requested and received the same. Your life and freedom may depend on it.

Even if you are innocent.