Prof. James Duane (Image source: Regent University website)
1,993 words
James Duane
You Have the Right to Remain Innocent: What Police Officers Tell Their Children about the Fifth Amendment
New York: Little A, 2016.
Most Americans know very little about police interrogations. If a police officer wants to ask you some questions, and you know that you have not committed any crime, then you should have no problem talking to the police, right? Wrong. As law professor and defense attorney James Duane shows in his 2016 book You Have the Right to Remain Innocent, agreeing to answer questions from the police is a losing proposition. Duane’s book is essentially an updated and expanded version of a lecture he gave in 2012, which as of this writing has been watched on YouTube close to 20 million times. Duane’s advice has changed somewhat in light of two alarming federal court decisions handed down in 2013 which make You Have the Right to Remain Innocent especially timely.
Duane’s stated goal in writing this book is to “bring to an end, once and for all, that obscene double standard in the American criminal justice system that allows only the citizens who are in the know to protect themselves from a legal system that is designed to prey upon ignorance and good intentions.” Law enforcement officers and prosecutors, Duane argues, are permitted to use deceptive tactics in order to obtain convictions, which is why they would never advise their own friends or family to consent to be interviewed by the police.
Duane does clarify that there are a handful of situations where one should be willing to talk to the police. For example, if you were to accidentally lock yourself out of your home and climb in through a window, and a policeman were to witness this and ask you about it, you should certainly explain to the officer that it is your own house you are entering. This applies to all “reasonably suspicious activities” for which one has a legitimate explanation. Otherwise, according to Duane, the only two questions one should answer from a police officer are versions of “What is your name?” and “What are you doing?” In the case of the latter type of question, Duane specifies that while it is fine to tell a police officer about what one is doing at the moment, “as he or she is standing right there with you,” one should not be willing to discuss what he had been doing at any point in the past.
Why is this? For one thing, you might admit to doing something that you didn’t know was against the law. As Duane explains, it would not be remotely possible for anyone to familiarize himself with every statute on the books; there are just too many of them. Furthermore, federal and state laws are often extremely vague and poorly written. How does this work in practice? Consider the case of Jacob Dix, who was one of the participants in a non-violent torchlit march opposing mass immigration the night before the Unite the Right rally in Charlottesville, Virginia in August of 2017. Several years later, Dix was charged by Albemarle County prosecutors with violating a state law that prohibited “using fire to intimidate.” Surely, no one could argue that it would have been reasonable to expect Dix, who is not even from Virginia, to be aware of this vague and obscure law, which until 2023 had never once been used to prosecute anyone. But the state still went ahead with the trial, and three jurors voted to convict Dix, resulting in a mistrial rather than an acquittal. Then there is the warning of Ohio Attorney General Dave Yost, who told university presidents that pro-Palestinian student protestors, if they wear masks or other face coverings while demonstrating, could receive felony charges under a seven-decade-old “anti-disguise” law meant to target the Ku Klux Klan. As the saying goes, “Show me the man and I’ll show you the crime.”
Of course, there are countless other examples of overly broad laws that have nothing to do with political speech.” One federal statute that Duane is particularly critical of is 16 U.S. Code § 3372. As he explains:
People have been prosecuted and convicted under this law for possessing a lobster or a fish — even though the possession of that creature did not violate any other American law — just because it was imported from another country that did forbid such possession.
You can buy Charles Krafft’s An Artist of the Right here.
In order to be absolutely certain that you have not run afoul of the law, it is apparently incumbent upon you not only to memorize all federal and state laws, but also the laws of other countries. Duane comes to the depressing but logical conclusion that “it is no longer possible to rely on your conscience or common sense as a reliable guide for whether you have committed a crime.”
That alone is sufficient reason to avoid answering questions from the police, but it gets even worse for potential defendants, because the law gives cops remarkable leeway to lie to the people they interrogate. Officers are trained to persuade suspects or potential suspects that it is in their interest to tell police officers “their side of the story.” This is almost always a lie. The law of hearsay restricts what police officers are allowed to tell a judge and jury during the course of a trial. If you tell a police officer that you could not have committed a certain crime, the law of hearsay prevents you from calling on that officer to testify to that in court. For the prosecution, however, there is an entirely different standard. The law of hearsay does not prevent officers from revealing to the court any possibly incriminating information that a defendant has so generously provided them with. Despite their assurances to the contrary, officers cannot do much to help your case, but they sure can hurt it! As Duane warns:
If you talk to the police for three hours and give them three hundred details that would all tend to support your case, and you only mention three details that might help you get convicted, the prosecutor has every right under law to ask the officers to only tell the jury about the three details that seem to implicate you in the crime. Do you think the police officers who falsely promised you that they were somehow offering to “help you” by collecting information to present to the judge will regret their lie after you have been convicted? No chance. They have done it to countless other criminal suspects, and they will do it again.
If, for some foolish reason, you still decide to answer questions from law enforcement, you had better be sure you don’t accidentally mix up any details. Depending on how long the interrogation lasts, which could be many hours, you will be given plenty of chances to make a mistake. Should you slip up, you might end up spending several years in prison for lying to the police. If an officer lies to you, it’s no big deal; if you lie to an officer, it’s a felony. Worse yet, even if you do have all your facts straight, you are taking the risk that the officer might mishear or misremember any part of what you said. Duane cautions readers that “[i]f an officer’s recollection of your conversation is not 100 percent accurate, even an innocuous or innocent remark can become devastating evidence against you.”
What, then, can you do to avoid having to answer questions from an officer? According to Duane, there are two ways, and both require one to invoke protections guaranteed in the Bill of Rights.
The Fifth Amendment to the United States Constitution includes a provision that protects any American from being “compelled in any criminal case to be a witness against himself.” This is where the “right to remain silent” originates. The right to remain silent is among the “Miranda rights” that an officer is required to read to you if you are arrested or placed in police custody. It is important to note that agreeing to voluntarily submit to police questioning is not the same thing as being placed under arrest (though it could lead to that, depending on what you choose to tell the police).
Historically, the Supreme Court has been adamant that prosecutors cannot cite a defendant’s invocation of their Fifth Amendment privilege as evidence of guilt. Its 2013 ruling in Salinas v. Texas complicates matters somewhat, however. In that case, a teenage suspect who had not yet been arrested (and had not been read his Miranda rights) chose to stand silently rather than answer an officer’s questions. The court ruled that Salinas’ silence could indeed be submitted by the prosecution as evidence against him because he did not directly tell the officer he was exercising his right to remain silent. Duane emphasizes that if you do “plead the Fifth,” you must do so explicitly.
This seems easy enough, but Duane then goes on to tell the story of Gillman Long, a man who did invoke his rights explicitly, but did so in the wrong way. While he was being questioned by an FBI agent about an accusation of sexual misconduct, Long, who was not yet under arrest, is then said to have told the agent that “I do not want to incriminate myself, I would like to stop talking.” The term “self-incrimination” is common legal parlance for revealing information that could potentially hurt one’s case, which is one of the things that the Fifth Amendment was designed to guard against. Indeed, the Fifth Amendment is often referred to as a protection against “self-incrimination.” In this context, it is clear that Long was simply trying to invoke his constitutional rights through the use of a term that is synonymous with Fifth Amendment protections. Yet, the prosecutor arguing the case against Long seized on his use of the word “incrimination” to imply that Long had something to hide. Long was found guilty and sentenced to life in prison, and in 2013, his appeal for a new trial was rejected by a federal court. In light of this, Duane concludes that:
The Department of Justice has now shown official notice that it believes courts should allow a prosecutor to argue under any circumstances that your willingness to assert the Fifth Amendment privilege can and should be used against you as evidence of guilt.
In his original 2012 lecture, Duane recommended that those who are being questioned by police should exercise their right to silence. Due to the implications of the two aforementioned cases, he now cautions against taking the Fifth, as “there is too great a danger that the police and the prosecutor might later persuade the judge to use that statement against you as evidence of your guilt.” Instead, he suggests invoking the Sixth Amendment, which guarantees one’s right to “the assistance of Counsel for his defence.” To do this effectively, one must be firm and direct, leaving no room for interpretation on the part of the officers who are trying to get them to talk. Thus, the last and most important piece of advice Duane offers to his readers is this:
You need to say, with no adverbs, in only four words “I want a lawyer.” And then you need to say it again, and again, until the police finally give up and realize they are dealing with someone who knows how our legal system really works.
All citizens ought to be aware of the risks involved in talking to the police, but this is especially true for political dissidents. There is no shortage of police officers, federal agents, and prosecutors who would jump at the chance to go after a White Nationalist. We need our comrades to be free to contribute to our cause, not sitting behind bars because they naïvely assumed that the police would be honest with them.
Be safe, be smart, and don’t talk to the police.
15 comments
An orator with a command of the facts, certainly quicker on his feet than Trump or Biden (but who isn’t); a sterling lecture, liable to arouse an interest in law I haven’t read the book
Ernesto Miranda, by the way, the mestizo of Arizona v. Miranda fame, was retried for the offense in question, the kidnapping of a white woman, sentenced to twenty years, in the event serving six, went on to violate parole, being a felon in possession of a gun, was remanded for a year, and soon after his release killed in a bar fight at the age of 34. The other random mestizo who killed him returned whence he came (as easy then as now) and was never found – a hagiography of hispanicized America
Great advice. Police procedural dramas have a lot to answer for. Only the baddies ever lawyer up or plead the right to silence.
Great article and I have watched some YouTube presentations by the author. I generally agree with the advice.
However, I would caution against being too paranoid and hostile when dealing with law enforcement ─ even if they are hostile towards you. You absolutely do not want to convey that you have a chip on your shoulder.
Of course, I am going to use a personal anecdote. 🙂
Many years ago, when my Uncle was waiting for his penthouse suite to be finished, he was staying with me in the Los Arcos area of Scottsdale, which has now been torn down and replaced with something more urbane and a lot more expensive. Because his driver’s license had recently expired, he replaced it with a new one that had my Los Arcos address on it.
My neighborhood was a bit more affordable than the nearby Fashion Square area with the fancy boutiques that got Crystal Nighted over the Summer of Floyd (and police did act with vigilance and professionalism to put a stop to it almost immediately).
But Arizona was once known for resisting the adoption of the Martin Luther King, Jr. holiday signed into law by Reagan in 1983. Our state eventually caved and we had to give up Columbus Day as a result, U.S. Postal workers notwithstanding.
But in the days when the MLK holiday controversy was long forgotten, the Phoenix civic fathers had washed themselves of our sins and endeavored to hold an annual King Human Rights Day march on or around the holiday ─ celebrating a Baptist preacher’s January 15th birth as a humble sharecropper who grew up to rape and beat White prostitutes in Vegas motels, and to praise the exploits of the Viet Cong while speaking non-violence.
Problem was, those participating in these 21st century Phoenix Kang parades would always throw a good old-fashioned Negro riot. Eventually police would have to get out the tear gas and the fire hoses. Shïtshow on the local news. You know the drill.
This rather indulgent rioting was very embarassing to the city fathers, and to members of the hooman rights communitay organizing these “non-violent” tribal displays of African pride. So nowadays they either cancel these kinds of MLK events or make them so low key that nobody even hears about it on the news.
But in the heyday, they would bring in a ton of extra police to cover the Kang march in downtown Phoenix ─ who and from where the cops came from, I don’t know.
One of these Kang march supplemental police officers was a dead ringer for Idi Amin Dada. He was in town a bit early for the weekend’s march on downtown Phoenix, but this warm January evening Officer Tibbs was out there putting in some extra time by patrolling in nearby mostly-White Scottsdale.
He was there to support Doctah King, and probably wanted to turn the screw a little for them rich Scottsdale Crackers a day or two before the MLK events, but he did not really select the poshest neighborhood either. Lots of raucous White University students living six to a house and stuff like that instead.
So my Uncle walks over to the nearby K store to get a couple of convenience Cokes. He bought two bottles with his debit card, didn’t need a receipt, and having a short walk back to my place, he declined to get a plastic bag to carry them. In fact, hands full, he started drinking from one of the bottles upon leaving the store.
Well, Officer Tibbs in his patrol car thinks that this looks suspicious and nearly causes a traffic accident in pursuit of the pedestrian now walking down a side street. The cop is about as verbally abusive as you can imagine, and this provokes a verbally-combative response (as was intended, I am sure).
The long story short is that it was easily established through his driver’s license and the address on it that my Uncle just lived a block or two away, and the bank records will likely document the purchase of the two Cokes. Presumably the store clerk will also verify that the Cokes were actually purchased and not boosted. Not much to see here, folks.
So Officer Tibbs cruises away, no arrest, but no doubt satisfied that Whitey was getting the treatment from the poh-lice that Whitey deserved.
When I got home and he told me the story, I was furious because it was clearly designed to put a mouthy Crackuh in jail for the weekend in honor of the Doctah.
I told my Uncle that had he gotten himself arrested by smarting off to the very obnoxious Negro cop, I would not have been very happy to bail him out upon the next working weekday. Maricopa County jails suck.
I have also had some choice encounters with the finest pork myself ─ anyone would have found the coal-complected gendarme, Mr. Tibbs to be extremely triggering ─ but one has to learn not to take it personally, and definintely not to give them a reason to give you the full business.
That’s not a battle that you can win. And this goes in spades for White political activists without personal trust funds.
🙂
It’s really precious how overbearing they become as soon as they get a crumb of authority.
The “police did act with vigilance and professionalism to put a stop to it almost immediately.”
So the cops scrambled to do their duty when the Wealthy White enclave was threatened but took the knee when the areas where Middle and Working Class Whites shopped, worked, commuted and lived.
Sounds about right. Tom Metzger, phone home.
Downtown Phoenix PD was prepared for Negro rioting since they expected BLM protests, and Democrap officials like the mayor were encouraging such protests. However, Scottsdale was initially caught with their pants down, and that is where the looters went ─ after the shoppers and Guy Fieri fistbumped out of there.
All classes of Whites live and work near downtown Scottsdale. We are not talking about the 5 million dollar or more homes in nearby Paradise Valley. And the Blacks in Scottsdale mostly come in from nearby Phoenix or live in the few apartment complexes that allow Section 8 tenants ─ that stand out easily if you check to see what demographic (and all their ghetto friends) loiter at the swimming pool.
Scottsdale deliberately did NOT connect to the metropolitan light rail system because, as it stands, a certain problem demographic has to either drive or take a complicated bus route to get to Downtown Scottsdale.
Anyway, after the attacks, looting, and attempted thefts against the swanky Scottsdale jewelry stores with the high-end stuff already in the safes ─ there were riot cops in tactical vehicles hiding along the streets in all of the surrounding neighborhoods in the following days. That was most unusual, although once in awhile the PD will do DUI checkpoints near the Old Town bar scene around holidays like Cinco.
I don’t think there were any cops taking a knee in Arizona, but after the night-of-broken-glass rioting and St. George looting, the TV news was all agog at the local whytepipo coming together in Kumbaya with a token PoC preacher or two to wash off the “For Floyd” downtown graffiti in the following days before sundown and curfew.
To their credit, most Arizona police did not severely enforce the Covid lockdowns as much as they could have, which otherwise had tanked so many small businesses.
These were strange days because nearby University students and staff, who were supposed to be in lockdown to mitigate the spread of the Covid infection, were also encouraged to go “peacefully protest” and mingle with the viral Social Justice crowds until the shops actually started getting busted up and looted.
Leftists wanted severe bourgeois lockdowns plus lots of anarchist mingling. But PoC looting at Scottsdale Fashion Square was a Leftist optics backfire and wasn’t long tolerated.
Also, the normal high temperatures here are well into the triple digits, and there were 145 days of over 100 degrees Fahrenheit in Phoenix over the 2020 Summer of Floyd.
Blacks riot when the weather gets hot, but the severe Arizona heat tends to limit their “mostly-peaceful looting” to after dark ─ so the Governor’s 8 PM curfew helped.
🙂
An example of someone running his mouth to the detectives:
https://youtu.be/vMutB1LV5_o
It gets a bit dramaculous around the hour mark.
It is truly beyond stupid how many people think they’re going to outstmart the cops by agreeing to talk to them. You are of course under no obligation to assist them in their investigation or to give them any information other than (if you are not driving) your name. However, it’s important to recognize the distinction between being in the right legally (in which case your vindication could be months or even years away) and having a brief and easy encounter with the police. For instance, when you get pulled over, and the officer invariably asks you “Where are you headed this morning?” you are under absolutely no obligation to answer. All he’s doing is fishing for info. But when you defiantly say you’re not going to answer any of his dumb ass questions, guess what? What could have been a five minute stop ending with you going quickly on your way is now going to be a 20 minute encounter that may or may not end up with your arrest. And yes, while the charge might eventually get thrown out, how valuable is your time to you?
Excellent review. Everyone needs to know this info. It’s sad that it’s come to this, but here we are.
Most people have likely heard of “good cop, bad cop,” but that is actually one of the crudest and least employed methods — used only on the most naïve of suspects. By contrast, the very most utilised methods are far more subtle and cunning, and also deeply rooted in modern psychology. “I want a lawyer,” indeed!
On a related note, there is a fascinating YouTube channel that analyses police interrogation tactics in painstaking detail. Here is the playlist, if anyone’s interested:
https://www.youtube.com/@JCS/videos
From a WN perspective, two of the most tragic cases in the above list are those of Michael Dunn and Michael Drejka — but most especially the latter.
Drejka, in particular, was a generally well-meaning white man who made the mistake of confronting two arrogant, anti-social negroes who were illegally parked in a handicapped zone. The situation abruptly escalated into violence against Drejka — surprise, surprise — and in a panic he pulled out his handgun and fired a fatal shot. Later on during questioning, Drejka talked his way into a corner, trying to “explain what happened,” which helped seal his fate.
Not only did he make the mistake of talking to the police, he made an even bigger mistake to begin with by going out of his way to get into an argument with ghetto trash while carrying. If you have a CCW on your person, you should be far, far less inclined to instigate an argument, not more. Most particularly when a certain other racial group is involved.
Excellent example.
Blacks think that parking in handicapped places is they’s “reparations,” so that is what they do. Mr. Drejka was very unwise trying to citizen police that.
The Negress waiting in the car got out and picked the fight with Mr. Drejka ─ and when her Buck was coming out of the convenience store, he ran to engage with Drejka to save his baby mama from no threat, and after slamming Drejka down, was surprised to get a well-deserved and fatal cap in the @ss.
Mr. Drejka did nothing wrong other than make a bad call in the moment with respect to the use of lethal force in self-defense, although he was violently assaulted by the Negro ─ as is clear from the convenience store video. Obviously the jury did not agree. Drejka got ten years in prison, if I remember correctly.
Yes, Mr. Drejka should have shut up and lawyered up immediately.
If it were up to me, the Negress would be doing some jail time herself for initiating the assault on Mr. Drejka.
🙂
Too many Whites still can’t get that they aren’t like us. They have no conception of courtesy, citizenship, and reciprocity. You can’t argue with them, shame them or convince them they are ever wrong. They are motivated entirely by the Law of the Jungle and they respect and feat nothing but power and force. Add the seething resentment over slabbery and raycism that they innately hold and that has been encouraged in them by jews and lefties and you have a creature unfit to live in any society, let alone one as complex as ours.
The unfortunate Mr. Drejka should have minded his own business and left the negroes to their petty law breaking. I would not be surprised if Drejka were a Molon Labe/Back the Blue/MAGA/Democrats Are the Real Racists type, which would be the penultimate irony. But I would also like to know the racial composition of that jury.
I’ve only had direct contact with cops as a victim of a crime: when my house was broken into by addicts and when, over the years, three of my cars were damaged by stoned drivers or stolen by feral youfs. (I live in San Francisco.) And they were quite polite and I just stuck to the facts.
But I know someone who had them “visit” at 11pm, sequestered him in his bathroom and peppered him with questions and accusations and then falsified their notes. Years of trouble followed.
So if they ever approach me uninvited, it’ll be, “I’m sorry, officers, I know you are just doing your job, but I want a lawyer.” And that’s that.
I was once very pro-cop (and pro-military, pro the usual conservative things.)
No more.
What’s SFPD like? Hell, what’s San Francisco like for a WN? Are you retired?
I’ve been to SF many times, hanging with friends. I don’t think I’d want to live there unless I had to for professional reasons. The housing situation is just horrible. And then all the bums …
What’s the best thing to do if you’re a law-abiding US citizen entering the US at an airport? If they start asking questions should you assert your Fifth or Sixth Amendment rights immediately? I think that’s probably not a good idea unless you have a lot of time on your hands, but the airport feds can be arrogant and intrusive.
Start wearing a Star of David pendant on a chain around your neck. Whenever you are in the company of cops or feds, make sure that they see it.
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