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Bennett Haselton's Response To That "Don't Talk to Cops" Video 871

In response to both of my previous articles raising questions about the Fifth Amendment, people sent me a link to a famous video titled "Don't Talk To Cops" delivered by Regents University law professor James Duane. Whether his conclusion is correct or not, I think the argument is flawed in several ways. Please continue reading below to see what I think is wrong with his position.

In my first article about the Fifth Amendment, I asked: Why is it a good thing that the Fifth Amendment allows a suspect to refuse to answer "Yes" or "No" as to whether they committed a crime or not? (I was emphatically not saying that a suspect should have to answer questions that are nobody else's business -- if you weren't at the scene of the crime, you should be free to say, "I wasn't at the scene of the crime, but I would prefer not to tell you where I was." However, the Fifth Amendment lets you refuse to answer the question of whether you even committed the crime at all, and I didn't see what was so great about that, because it is everybody's legitimate business whether or not you committed the crime.)

In the second article, I asked a different question: If you do accept the rationale for allowing a suspect to refuse to answer the question of whether they committed the crime or not, why don't we extend the same protection to third-party witnesses? In other words, if Bob commits a crime and Alice is a witness, and the police ask Bob and Alice the same question -- "Did Bob do it?" -- and both refuse to answer, then Bob is allowed to do this but Alice can go to jail for remaining silent, even though Bob might be guilty, and Alice is the one who is known to be innocent! That seems crazy.

The full arguments are given in each of the articles linked above (and dissected further in the comments) and I don't want to rehash either of them here, but in response to both articles, multiple people sent me the link to Professor Duane's "Don't Talk To Cops" video, which has been viewed about 2 million times on Youtube. (Professor Duane also ceded half his presentation time to police officer George Bruch, giving him the chance to offer a 'rebuttal', which has been uploaded as a separate video -- Bruch's video has been viewed about 1 million times.) I've watched Professor Duane's presentation twice, and one problem I have with the video is that I don't know what Professor Duane's actual position is. Yes, he says that he would "never talk to any police officer under any circumstances, ever", but does that really mean that if he witnessed a violent altercation on the street and the cops wanted to ask him about it, that he wouldn't say a word to them? Or, if he got pulled over for speeding, would he really hand over his license and registration and then sit silently in the driver's seat refusing to respond the cop's questions (which pretty much eliminates your chance at being let off with a warning)? What if his house got broken into, would he really refuse to call the cops and tell them? And, uh, there's a police officer who co-presents in the video with him, didn't Professor Duane have to talk to him to get him in the video? In fact, he speaks directly to the cop on camera! Busted!

"Oh, stop being so literal, Bennett, you know that's not what he meant!" OK, but what did he mean? One problem with staking out a fairly extreme position to begin with, is that if you describe it hyperbolically, there's no way for people to know what your actual position is. I emailed Professor Duane to ask if he could clarify, but didn't get a response. (Since his video has been viewed over 2 million times, possibly my email got lost in the pile of mails he gets every week saying, "Oh shit I got arrested and I opened my big mouth, you got any ideas for what I should do now??")

For the purpose of this discussion, let's assume that Professor Duane means that if the police approached him with questions about a crime (and excluding "hot pursuit" situations such as when the police are chasing a mugger and ask "Which way did he go?"), he would refuse to talk to them. In that case, I have a couple of points to make in response to the video, but first, if you haven't seen it, you may want to watch it now, along with the 'rebuttal' offered by police officer George Bruch, and see if you come up with the same objections that I did.

Everybody back? OK, here are my thoughts:

1. The video is answering a different question from the one I asked. The video weighs the costs and benefits to the individual, of remaining silent; I was asking whether the defendant's right to remain silent is good for society as a whole. Of course if you're innocent, then it's in both your interest and society's interest for you to go free. If you're guilty, on the other hand, you may want to walk free, but it's usually in your society's interest for you to be convicted. (You could argue an exception for pot laws or whatever, but generally speaking, we do want criminals to get caught.)

Professor Duane, beginning at the 24:50 mark, specifically invokes Martha Stewart, Marion Jones, and Michael Vick, as examples of people who he thinks would have gotten lighter sentences, or gotten off completely, if they had remained silent throughout their legal ordeals. Yes, but all three of those people were guilty (Martha Stewart, very probably; Jones and Vick, beyond any doubt), so while it may have been better for them to remain silent, it would not have been better for the legal system as a whole. (All three of them had supporters who said the laws they were being charged under, were unjust in the first place, but that's a separate problem.)

This is not an explicit error on Professor Duane's part -- since he was arguing that remaining silent is good for the individual, not for society -- but it does mean the video is not precisely a response to the point I was making.

2. The argument about the danger of talking to cops is based on a sampling error. Professor Duane says that criminal defense attorneys "always, always say it was a bad idea for their client to talk to the police". But this sample obviously only includes people who talked to the police and ended up getting arrested, and charged, and needing a criminal defense attorney. The sample wouldn't include anyone that the police talked to and decided not to arrest -- whether they were initially brought in as a suspect but then convinced the police that they were innocent, or whether they were simply third-party witnesses who volunteered information to the police that they thought was useful.

In fact, in the 'rebuttal' video from Officer Bruch, he says at the 6:20 mark:

"You're going to lose [in the police interrogation room], unless you're purely innocent. On the other side of it, I don't want to put anyone who's innocent in jail. I try not to bring anyone in to the interview room who's innocent. And there are a couple that I have let walk away because they were innocent."

This appears to contradict Professor Duane, who said repeatedly that even if you're innocent, "it CANNOT help" to talk to the police, and that "you CANNOT talk to the police out of arresting you". Unless Bruch was lying, then Duane's statement was wrong, although neither of them seemed to notice. But if you did talk the police out of arresting you, then you wouldn't end up in Professor Duane's sample of people whose ended up needing a defense lawyer.

And even this sample is restricted to people who are brought into the interrogation room, where Officer Bruch said he tried not to bring anybody in at all unless the thought they were probably guilty. If you include all the people that the cops try and talk to, who the police don't think are guilty -- people casually stopped on the street, or called on the phone, or visited in their house, because they might have relevant information -- then your sample becomes much larger, and the proportion who talk to the cops and do not subsequently get in trouble, goes way up.

Also, of course, Professor Duane's sample includes people who talked to the police and were convicted, who were in fact guilty. Their defense attorneys may wish that their clients had kept silent and possibly walked free as a result, but that wouldn't be good for the rest of us.

3. His advice ignores the benefits of leniency if you're guilty and you're almost positive you'll be caught anyway. For most of this discussion I've been focusing on the merits of talking to the police if you're innocent. But Officer Bruch also says that if people in the interrogation room answer questions and cooperate, then even if they're ultimately convicted, the police do testify to the judge that you were cooperative, and the judge can take that into account and reduce your prison sentence. That is at least theoretically another legitimate reason to violate Professor Duane's "Don't Talk To Cops" rule, if you're 99% sure that the police will find enough evidence to convict you anyway, you can hope for leniency by cooperating. That's essentially why I do talk to the police if I get pulled over for speeding -- I've gotten off with a warning a few times, whereas I'm pretty sure that if I'd just sat silently and stared straight ahead, I would have gotten the ticket.

4. Professor Duane's argument is about talking to the cops; I'm asking about the merits of the Fifth Amendment as it applies in a courtroom as well. At the 15:22 mark, for example, Professor Duane gives the fictional example of a suspect who says to the police:

"I don't know what you are talking about. I didn't kill Jones and I don't know who did. I wasn't anywhere near that place. I don't have a gun, and I have never owned a gun in my life. I don't even know how to use a gun. Yeah, sure I never liked the guy, but who did? I wouldn't kill him. I've never hurt anybody in my life, and I would never do such a thing."

Professor Duane continues: "Let's suppose every word of that is true, 100% of it is true. What will the jury hear at trial? 'Officer Bruch, was there anything about your interrogation, your interview with the suspect that made you concerned that he might be the right one?' 'Yes sir there was. He confessed to me that He never liked the guy.'"

Even if that scenario is a valid reason not to talk to the police, it wouldn't be possible in a courtroom, where all of your answers are recorded, and it will be obvious if someone is trying to distort the meaning of something that you said earlier.

This is also not an error on Professor Duane's part, since his talk was called "Don't Talk To Cops", not "Don't Ever Answer Questions In Court". (While he's right that most criminal defense attorneys wish that their clients had not talked to the police, some criminal defense attorneys do encourage their clients to take the stand at trial.) So it's not relevant to the question of whether society benefits from giving defendants a Fifth Amendment right to remain silent in a courtroom.

5. Finally, are the police really that corrupt and/or stupid? Go back up to Professor Duane's hypothetical in which a suspect protests his innocence, and Duane imagines that Officer Bruch -- Professor Duane's real-life co-presenter in this talk! -- takes five words out of context and testifies in court, "He confessed to me, 'I never liked the guy'."

When the real Officer Bruch gave his 'rebuttal', he started out by started out by saying, "Everything he just said was true. And it was right, and it was correct." If I had been in the room at the time, I would have asked him, "Seriously? Were you listening when Professor Duane said that if a suspect protested his innocence in the way that he described, you would take that out-of-context quote and only tell the jury that he said 'I never liked the guy?'" Well, we already know that George Bruch didn't really agree with everything that Professor Duane said, since Bruch contradicted him on some points, such as Duane's claim that "talking to the police cannot possibly help you even if you're innocent". But I would have liked for Officer Bruch to say if he thinks the police are anywhere as stupid and corrupt as Professor Duane was implying that they are.

More to the point -- and I went into this in my first article about the Fifth Amendment -- if the police and the courts are even remotely that corrupt and incompetent, then that's a wide-ranging problem that applies to all types of evidence gathered in the case, not just statements from suspect. And if that's the case, then the Fifth Amendment is just a band-aid that only solves the stupid-cops-and-courts problem as it applies to suspect statements specifically. It doesn't solve the problem as it applies to circumstantial evidence, unreliable eyewitness testimony, false memories, evaluating the credibility of other witnesses, and other factors.

In other words, if you're arrested, suppose the cops really are so dumb and/or evil that they would quote your "I never liked the guy" out of context to try and get you convicted. So, taking Professor Duane's advice, you say nothing. Do you still trust those same police officers to handle the other aspects of your case fairly? To make sure any exculpatory evidence is brought to light? To interrogate other witnesses without leading them towards a pre-set conclusion?

As I said in my first article, that doesn't mean that this is not a valid argument for the Fifth Amendment. But it means that if this is the primary argument in favor of the Fifth Amendment, then what the people making this argument are really saying, is that the whole system is broken.

The Weekly Standard published a more devastating rebuttal to Professor Duane's video, in which the author describes the devastating effects that the "Don't Snitch" movement has had on high-crime neighborhoods, as a result of large numbers of people following Professor Duane's philosophy to the letter. The article quoted one rap celebrity saying that he wouldn't even tell the police about a known murderer living next door to him. Professor Duane may not endorse that view directly, but he could hardly disagree that it follows logically from his admonition to "never talk to the police under any circumstances, ever". This is essentially the same logic error that I pointed out in point #2 -- if you focus only on people who talked to the police and ended up getting arrested, you're ignoring the benefits of people talking to the police who not only don't get arrested, but may help stop a crime or catch a criminal. It might still be a bad idea on balance to talk the police, but you couldn't make that argument by limiting your sample to the people who get arrested.

More generally, there may be an argument why either the individual or society benefits from the legal right to remain silent -- but it would have to be based on a sample drawn from all innocent people who talk to the cops, and the proportion who subsequently benefit as a result, and the proportion who are subsequently penalized, and weighing the magnitude of the benefits versus the drawbacks, and the likelihood of each. The "Don't Talk To Cops" video doesn't do that.

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Bennett Haselton's Response To That "Don't Talk to Cops" Video

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  • by Austrian Anarchy ( 3010653 ) on Monday October 07, 2013 @11:19AM (#45059209) Homepage Journal
    All that is true and Haselton is responding to something he was never asked to begin with. The video was up for quite some time before he wrote his articles. If he formulated an actual response to the video, rather than a response to himself using a video that never anticipated him as some sort of 'evidence,' he might form a better argument. But I doubt that.
  • by JaredOfEuropa ( 526365 ) on Monday October 07, 2013 @11:37AM (#45059479) Journal
    Is it really a felony to lie to the police in the US? That stinks, and even worse if they truly prosecute otherwise innocent people for it. Over here (NL), lying to the police is not punishable, whether you are lying about a case that involves you, or one that you merely witnessed. The only times you are obliged by law to tell the truth is when the police ask for your identity, or when you're put under oath.
  • Corruption (Score:4, Interesting)

    by twmcneil ( 942300 ) on Monday October 07, 2013 @11:41AM (#45059539)

    Do you still trust those same police officers to handle the other aspects of your case fairly?


    To make sure any exculpatory evidence is brought to light?


    To interrogate other witnesses without leading them towards a pre-set conclusion?

    And... No.

    I have been a juror on criminal trials and I am always surprised at how hard it is to tell the difference between the cops and the criminals.

  • Answers (Score:4, Interesting)

    by Hatta ( 162192 ) on Monday October 07, 2013 @11:45AM (#45059597) Journal

    1) You ignore the costs to society of coerced confessions.

    2) Some fraction of those who speak to cops suffer. The amount they suffer is quite high, so even if that is a small fraction, speaking to cops is still a high risk activity. There is little to be gained from speaking with cops, so the cost benefit analysis does not work out in favor of speaking with cops.

    You have a point here, that the numbers we have don't let us do the actual math. But by estimation, I think it's a firm no.

    3) Leniancy is a lie cops tell you to get you to confess.

    4) That situation is indeed possible in a coutroom.

    5) Yes. And so are the judges, attorneys, and members of the jury.

  • by Anonymous Coward on Monday October 07, 2013 @11:49AM (#45059649)

    "Did Bob do it?" -- and both refuse to answer, then Bob is allowed to do this but Alice can go to jail for remaining silent, even though Bob might be guilty, and Alice is the one who is known to be innocent! That seems crazy. "

    You are mixing police and justice.
    Both Bob and Alice should not be talking to the police.

    Not only that, the statement is flawed and there are other similar flaws through the entire text.

    Until the actual criminal have been found there is no reason to believe that Alice is more innocent than Bob is.
    Bob may be accused, but there can be many persons accused of a crime that only one person committed and if Bob is found not guilty then there may be a reason to look more closely at Alice.
    This is one of the reasons to why it is so important to hold to the old "Rather let a criminal go free than an innocent to jail." saying.
    For every innocent you send to jail the real perpetrator goes free so you can get the former without the latter but the latter is an extra consequence of the former.

    But the thing with allowing the accused to lie has more to do with the concept of "innocent before guilty".
    If the accused actually are guilty then lying about it will be less of a crime. We can assume that a guilty person will lie regardless of if it is legal or not.
    This creates an information inbalance in favor of the guilty over the innocent. The innocent is more likely to be a law-abiding citizen.
    By making it legal for the accused to lie we force a situation where the judge and jury will have to take the possible lies into consideration and by this reducing the information advantage that the criminal had over the innocent.

    This ties back to the previous idea. It is better to let a crime go unsolved than to risk putting the wrong person in jail. It is better to know that the rapist is still running around than to falsely think that you are safe just because someone has gone to jail.

  • by anagama ( 611277 ) <> on Monday October 07, 2013 @11:50AM (#45059655) Homepage

    What's really scary about this rebuttal is the proposition that people should not have 5th amendment protections. Just how much more obvious does it have to be that we are falling into a police state/authoritarian mindset at an amazingly fast pace -- the very idea that this is up for debate is shocking. And worse, the author does so without even a remote sense of shame or embarrassment.

  • Re:Martha Stewart (Score:5, Interesting)

    by bennomatic ( 691188 ) on Monday October 07, 2013 @11:51AM (#45059685) Homepage
    I'd put a different spin on it. I'd say she went to jail for being criminally assholish. When she said she didn't make any money, it was because she looks at $30,000 (IIRC, the amount she profited) like most of us look at pennies on the floor of our cars. For the cop in question, that was half his annual income, so he took her in.

    At least that's how I like to look at it :)
  • Re:Remember kids... (Score:2, Interesting)

    by Anonymous Coward on Monday October 07, 2013 @12:06PM (#45059845)

    Including the civilians who work in the police stations?

    Yes. Ask Adrian Schoolcraft. []

  • by Anonymous Coward on Monday October 07, 2013 @01:08PM (#45060699)

    It's trying to get you to admit guilt to other crimes. I was a cop for 5 years. It's amazing what people will tell you

    Broken tail light.

    Do you know why I pulled you over?

    Yeah.. It's because of the crack I have in my trunk.

  • by pla ( 258480 ) on Monday October 07, 2013 @01:14PM (#45060771) Journal
    Though I guess even admitting you were at the scene of a crime will have caused people problems in the past.

    In virtually all crimes, the criminal witnessed the crime. Therefore, one of the witnesses usually did it. Therefore, admitting you saw the crime takes your chances ending up in a cage for that particular crime from one-in-seven-billion to one of a handful of "parties of interest".

    Never speak to the police unless subpoenaed. And even then, never speak to the police without a lawyer present. And even then, speak through your lawyer, not directly to the police.
  • by JWSmythe ( 446288 ) <> on Monday October 07, 2013 @01:33PM (#45061077) Homepage Journal

    I've had a few officers *very* upset with me, because I simply answer "no sir." I don't know if his radar gun incorrectly showed me doing 1,000 mph, or I had a burned out taillight, or whatever.

    Was I doing 57 in a 55 zone? If I said that, he'd ticket me on the spontaneous confession.

    If I said, "because you know I have 10 kilos of cocaine in the trunk", you can be sure it would become a felony stop, and I'll become rather familiar with the asphalt while officers search the car.

    If it becomes something, my defense attorney will want to know that I said nothing.. Nothing is easier to defend than a spontaneous confession.

    They've become very upset. One actually got me out of the car, searched me, and told me I was going to jail. He then said, "Just say why I pulled you over, and this will be easier on you. Do you know why I pulled you over?" I responded "no sir." Because he couldn't coerce a spontaneous confession for a crime that didn't exist, he couldn't charge me. He finally said that he thought I was speeding, but he wasn't sure. He said it looked like I was flying past other cars like they were stopped. In fact, the other cars were almost stopped in the lane exiting, and I was on the lane continuing through. So his recollection was correct, I was going faster than some other cars. His assertion, and what he wanted to charge me with, was incorrect.

    He gave up, and we went into small talk. He asked what I did for work. There's no harm in that one, unless I answered "drug dealer" or "freelance assassin". He asked where I lived, so I referred him to my drivers license address. That was a trick question. If I said anything but what it said on my license, that's a civil infraction here. He told me a bit about himself, which I thought was odd, but I let him talk. Then he finally let me go, as I wasn't answering anything.

    Now, if you didn't know the address thing, and you gave an address different than your license, you'd be cited for the infraction. That's one of those harms in talking to them.

  • Re:Shoot first (Score:5, Interesting)

    by nomadic ( 141991 ) <.moc.liamg. .ta. .dlrowcidamon.> on Monday October 07, 2013 @01:38PM (#45061159) Homepage
    As a Slashdot reader since 1999, I can assure you that the Slashdot editors have a long and stories history of making the strangest decisions as to who is an "expert" in the field they want written about (Jon Katz anyone?).

    As a licensed attorney since 2006, I can also assure you that Bennett Haselton always gets the law wrong at a deep, fundamental level. I used to post explanations of where he went wrong on his stories but then I just gave up.
  • You're an idiot (Score:5, Interesting)

    by Lithdren ( 605362 ) on Monday October 07, 2013 @01:41PM (#45061185)

    This guy is known for running a website that supports the First Amendment but he argues that the Fifth is a a detriment to society?

    So you have the right to openly and freely speak your mind, but you dont have the right to NOT openly and freely speak your mind? Could you please cite some arguments on how these two views dont completly contradict one another?

    Or are you just speaking out your back end? I'll simply asume you're wrong until you speak to me directly about it, because clearly by choosing not to speak you are admiting I am correct. See how that works?

The best defense against logic is ignorance.