Law Professor James Duane from Regent University and former Defense Attorney believes that you should not to talk to the police at all or less is better. Duane claims that the bare legal minimum is all you should give, your identity and what you are doing. Outside of that, your phrase should be “I want a lawyer.”
The common thought is what is the harm if you haven’t committed a crime? The Police could be looking for someone and ask you questions that pertain to that incident. This does not sound like a big deal but later if you are called on again and your story changes because you forgot or miss a couple details this could be seen as lying to the police. The officer could also misremember or trick you as they are not required to tell the truth.
If that’s not alarming in many cases Prosecutors have used the defendants/suspects use of pleading the fifth against them. Meaning that even when you tell the officer you plead the fifth (right to not be a witness against yourself) and that can potentially be used to make you look guilty.
The game has changed now that your choice to use the Fifth Amendment privilege can be used against you at trial depending exactly how and where you do it. As I explain in the book, now the problem is, if you’re kind of clumsy about the way you assert the Fifth Amendment, you’re running a lot of different risks.
What are some reforms to the interrogation process that could reduce the number of innocent people who wind up in prison?
I don’t think there’s any objective observer who would deny we really ought to be recording, with high-quality audio equipment, every step of every phase of all interaction between the police and the accused. In this day and age, where video and audio surveillance is practically ubiquitous wherever you go, it ought to be a national scandal that police officers and government agents are not generally required to record the entire interview.
“The reality is that over time police officers inevitably come to see themselves as part of the prosecutor’s team.”
Another thing is that I think police officers should be precluded from sharing information that they acquire in their investigations with witnesses. The Supreme Court has handed down this huge body of case law saying if police obtained evidence in violation of the Fourth, Fifth, or Sixth Amendments, it’s inadmissible in a trial. It’s a naïve solution because right now our law poses no restriction of any kind on the ability of the police to take information that they’ve acquired illegally and told their witnesses about it. You’ve got a victim who says she saw the defendant’s picture—”Oh, I think that’s the guy, but I’m not sure.” You tell her one month later that he confessed that he says he did it, but the judge says we can’t use it because of a technicality. As soon as this woman hears that the guy confessed, trust me, she’s gonna show up at trial, and she’s going to say to the judge or the jury, “There’s no doubt about it in my mind, I’m absolutely certain.”