Friday, February 11, 2011

Pleading the Fifth

Here's former defense attorney James Duane on why you should never talk to the police -- pretty worthwhile.

The basic claim is that no good can ever come of acquiescing to being questioned by the police, whether you're innocent or guilty. At best, what you say is neutral, and at worst it can be used to build a case against you; in fact it legally cannot be used to help you in court. The average of zero and a negative is a negative, so don't do it! Even the innocent are sometimes caught by the net; what you say can be misconstrued or misremembered, unless you don't say anything at all.

That, at least, is the claim. But we really need to take a step back. Perhaps silence means nothing in the eyes of the judge, but it means a whole lot in the eyes of the police.

Duane wants everyone to realize that pleading the fifth is not the same as admitting you have something to hide. But of course, in this world -- taking as given that innocent people generally do cooperate with the police -- pleading the fifth sends a clear signal that you are probably not innocent, that you probably do have something to hide. Maybe that's not such a big deal if you actually are innocent, but certainly if you are guilty, you might not want to give the police that information. Police have finite resources and reasoning abilities; they cannot fully examine every possibility. But I bet they scrutinize you more closely if you plead the fifth. Sometimes silence speaks louder than words.

Ironically, in the current equilibrium, people who haven't seen this video and aren't cooperative should be suspected guilty, while people who have seen the video should only be suspected guilty if they are cooperative.


A meta-comment: Zooming in is easy, but zooming out is much less natural. It is always tempting to imagine that your current vantage point is fully zoomed out, that you aren't missing anything relevant. In the courtroom -- and so in the defense attorney's mind -- silence is not admitted as evidence against anyone. Moreover, those cooperative guilty people who, in so doing, manage to avoid the attention of the police...they never even make it into the courtroom. They are simply not in the defense attorney's data set. From our zoomed out perspective, it's easy to see how Duane formed his opinion that silence is *always* optimal.


  1. I haven't seen the link but I think the point of not talking to the police is that the police are skilled at opening opportunities to find reasons to arrest you while not talking to the police severely limits their ability to arrest you. For instance if you get pulled over the police can't search your car without probably cause unless they have your consent, but if you watch Cops you see that the a large fraction of people who get caught with illegal substances get talked into letting the police search their car. But not cooperating with police, while it may make police more suspicious it prevents police from acquiring information or giving them consent and there is very little a policeman can do because he is more suspicious. Therefore, even if you are guilty there are almost no circumstances where the benefit of looking innocent outweighs the cost of the police having more information and the ability to pursue more ways of trying to incriminate you.

  2. sure, you're correct, and that's one of Duane's big reasons.

    As a point of theory, I would be happy with "almost no" circumstances. But really, I don't think it takes a crazy concocted situation to make it worthwhile to talk to the police. If you committed a crime and the police have locked down the area and are questioning everyone in the crowd, you don't want to plead the fifth! It arouses suspicions, and while suspicion doesn't necessarily grant the police additional legal power, it allows them to focus their investigation, with its finite resources, on you. No, when they ask you if you saw anything strange, you say no like everyone else, and move on unsuspected.