One of the more illuminating pieces I’ve read of late was from the New York Times opinion columnist Farhad Manjoo, who observed the criminal charges against Alec Baldwin relating to the death of a cinematographer on the set of the film Rust and had a simple takeaway:
Don’t talk to the police.
I won’t bother reprising Manjoo’s piece as it relates to Baldwin’s case—it’s worth reading, of course!—but I will dwell a bit on the lecture that Manjoo links to in the article.
If the blunt advice “don’t talk to the police” comes as even a little surprising, it’s worth your time watching this brief lecture from James Duane, a professor at Regent Law School in Virginia.
The lecture comprises example after example of people—many of them innocent!—finding themselves in trouble with the law for the simple failure to invoke their Fifth Amendment right.
For those, like me, who missed taking a constitutional history or law course, the Fifth Amendment reads as follows:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
I’ve bolded the relevant bit there—the text that has led to the practice of “pleading the Fifth” and the constitutional framework that Duane’s advice leans on.
But what about wanting to prove your innocence? It would certainly be my instinct (I think) if involved in some serious crime or accident. But Duane observes a harsh reality of how our legal system functions.
What you say to the police can be used against you in a court of law—a premise familiar from the Miranda warning, as invoked in innumerable TV shows—but what you say to the police cannot be used for you in a court of law.
If your lawyer attempts to question a police officer on the stand during trial about something you said that would help your case, the prosecutor will object to any response as hearsay. I’m not interested in parsing the legal distinctions of when a statement is or is not hearsay (I’m also unable and unqualified to do this)—the point is that you have nothing to gain by talking to the police.
Perhaps the most incredible part of Duane’s lecture, though, comes when he cedes the lectern to an inspector from the local police department. The inspector proceeds to acknowledge the truth of everything that Duane has said. In essence, he tells the audience:
Don’t talk to me.
But…it’s hard not to talk! It’s almost instinctual for people to talk, even to police, even when it’s not in their interest.
The inspector points out that even during a routine traffics stop, you should refrain from answering questions.
You may express your wish to remain to remain silent. (Certain states may require you to provide your name and some form of identification.) The ACLU website has a list of recommendations to reduce risk of escalating the encounter, including by complying with the officer’s request for license, registration, and insurance.
But you still don’t have to talk to them.
The inspector adds a telling anecdote. You’ve been pulled over for speeding 55 mph in a 35-mph limit zone and the officer approaches your vehicle.
“Do you know how fast you were going?”
Any substantive response spells a problem for you.
If your response is anything over 35 mph, then you’ve admitted to breaking the law. Automatic ticket that you will be unable to protest in court.
If your response is a lie—“Maybe 38, officer?”—you have just lied to a police officer. Assuming he’s got radar evidence of your speed, that’s even worse news for you.
Better to not say anything at all or to tell the officer:
“I don’t know.”
Taylor Coe 