Professor speaks to Federalist Society on Genius of the Fifth Amendment

March 25, 2009 | 1 Comment

BUIES CREEK, N.C. - James Duane, Professor of Law at Regent University School of Law in Virginia Beach, Va., spoke to a large group of Campbell Law Federalist Society members and faculty on March 12 in Buies Creek.

Possibly the first guest speaker at Campbell Law to entertain the audience with a guitar rendition of 'My Country 'Tis of Thee,' Professor Duane captivated attendees with his presence and talk. Perhaps unconventional, the musical prelude foreshadowed Duane's even more unorthodox message-even innocent people should refrain from answering questions by police officers. Voicing agreement with Proverbs 17:15 ("[a]cquitting the guilty and condemning the innocent-the Lord detests them both"), Duane stressed that remaining silent would not obstruct the criminal justice process, but would instead minimize false convictions.

Duane explained that the Fifth Amendment, which declares that "no person…shall be compelled in any criminal case to be a witness against himself", protects even innocent persons. He then pointed out that according to the U.S. Supreme Court, even innocent witnesses answering truthfully may provide the prosecution with incriminating evidence. Ohio v. Reiner, 532 U.S. 17, 20 (2001).

To illustrate why truthful, innocent witnesses may be falsely convicted, Duane spoke about three surprising things about police and investigations. First, police sometimes lie to criminal suspects. Second, police may have substantial evidence against even innocent witnesses. Finally, individuals convinced of their own innocence may have unknowingly committed some crime.

Supporting his first assertion that police can lie to criminal suspects, Duane provided several recent state and federal cases in which police made false promises, misrepresentations or outright untruths to encourage confessions. See Weaver v. State, 2008 WL 2548807 (Tex. App. June 26, 2008); United States v. Montgomery, 555 F.3d 623 (7th Cir. 2009). Duane asserted that some police use such deception in order to create incentives for suspects to incriminate themselves. Unfortunately, these incentives also encourage innocent people to confess to crimes they have not committed. As an example, Duane referred to The Innocence Project's statistic that in 25 percent of DNA exoneration cases, innocent defendants either made incriminating statements, gave confessions, or pled guilty to crimes they did not commit. Available at Regrettably, routine police deception may convince even innocent suspects to provide false confessions of guilt.

Another reason why even innocent witnesses may be convicted is that the police may actually have substantial evidence against such witnesses. According to Duane, this is so because eyewitnesses are notoriously unreliable. As an example, Duane referred to a civil case in which more than a dozen eye witnesses gave completely irreconcilable versions of the same event. See Johnson v. Wash. Metro. Area Transit Authority, 883 F.2d 125, 127 (C.A.D.C., 1989). Victims of crimes are equally as unreliable. Duane gave numerous examples of individuals, including the stories of Brenton Butler, and Ronald Cotton, who were convicted based on misidentification and then later exonerated.

Finally, Duane illustrated how even "innocent" individuals may unwittingly commit a crime. For example, persons who had unknowingly violated a foreign law that prohibited the sale of certain fish were convicted in federal court for violating 16 U.S.C. § 3370. This federal regulation makes it a federal crime for any person to "import, export, transport, sell, acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law or regulation of any State or foreign law." Unfortunately, even guileless citizens may trespass against the over 27,000 pages of federal regulations.

Professor Duane rounded out his lecture with the "Top Ten Reasons Why You Should Never Talk to the Police". These ten points reemphasized how even innocent people may be falsely convicted by their innocent responses which are used out of context. Duane's comments aptly shocked naïve rising lawyers to reconsider the practical principles of the Fifth Amendment.

By: Deborah G. Eberle, Vice President

Campbell Law Federalist Society

About the Campbell Law Federalist Society: The Federalist Society is a non-partisan organization dedicated to the core beliefs of the Founding Fathers - the state exists to preserve freedom, the separation of governmental powers is central to our Constitution, and it is the providence and duty of the judiciary to say what the law is, not what it should be - that seeks to both promote awareness of these beliefs and to further their application through its activities. Events include debates, guest speakers and a trip to the Supreme Court.


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