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You Have the Right to Remain Innocent

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A 2016 book by James J. Duane, a law professor at Regent University School of Law, published by Little A (Amazon Publishing), ISBN 9781503933392. The local epub is the complete text. It expands Duane’s famous 2008 lecture into a three-part argument — “Don’t Talk to Police,” “Don’t Plead the Fifth,” and “Plead the Sixth” — and drops several lecture examples (Ullmann v. United States, the celebrity cases, and the Norfolk Four) in favor of a larger and partly different case catalog.

Part I extends the lecture’s thesis with an overcriminalization argument

Duane restates that talking cannot help an innocent person and can only be used against them, then adds a sustained argument that nobody can know in advance whether an honest answer is safe, because the volume of US federal criminal law has become uncountable. He cites Justice Breyer’s 1998 dissent in Rubin v. United States, the “three felonies a day” estimate from Harvey Silverglate’s book of the same name, and a catalog of prosecutable trivia (unauthorized use of the Woodsy Owl name, possession of shed deer antlers under Virginia law, inaccurate crop-price telegrams). He discusses Bond v. United States (2014) and Yates v. United States (2015), in which Justice Kagan’s dissent called an undersized-grouper prosecution under a document-destruction statute “an emblem of a deeper pathology” of overcriminalization.

He expands the catalog of legal police deception with several new documented cases: Fox v. Hayes, in which Illinois police deceived grieving parents into a station interview before revealing their daughter’s body had already been found; Nga Truong, a 16-year-old whose false confession to her infant son’s death was later suppressed; and several false promise-of-leniency cases that produced convictions anyway, including a Mississippi defendant promised he would be home for his daughter’s first day of school who instead received a sentence exceeding 80 years. New wrongful-conviction case studies beyond Eddie Joe Lloyd and Earl Washington include Ronald Cotton, Eddie Lowery, Michael Morton, and Glenn Ford, alongside a wider set of false-confession statistics: a 340-exoneration study finding 13 percent of adults but 42 percent of juveniles falsely confessed, and a finding that flawed FBI hair-analysis testimony affected testimony in “almost all trials” over two decades, implicating more than 2,500 convictions.

Part II argues that silence itself is no longer safe

This part’s title looks paradoxical beside Part I’s, and the paradox is the point. Duane argues that Salinas v. Texas (2013), a 5-4 decision, now lets a prosecutor use a suspect’s plain silence in a non-custodial encounter as evidence of guilt, because the suspect never affirmatively invoked the privilege. He rebuts the premise that only guilty people fear talking to police with a statistic that 39 percent of DNA-exonerated innocent defendants had chosen not to testify at their own trials. But he then argues that explicitly invoking the Fifth Amendment by name is not safe either, citing United States v. Long (8th Circuit, 2013), in which a defendant’s statement “I do not want to incriminate myself. I would like to stop talking” was used by the prosecution at trial as evidence suggesting guilt, and the conviction was upheld on appeal. He separately warns against lying to a federal official, a distinct crime under 18 U.S.C. § 1001 carrying up to five years, illustrated with Susan Thompson’s prosecution for falsely denying an unrelated workplace incident.

Part III resolves the paradox: invoke the Sixth Amendment instead

Duane’s practical advice is to ask for a lawyer rather than name the Fifth Amendment at all, because courts have not, as of the book’s writing, allowed prosecutors to treat an unambiguous request for counsel as evidence of guilt, citing United States v. Okatan and Maine v. Lovejoy. The request must be unambiguous: he lists roughly a dozen real requests that courts held too hedged to count as an invocation, such as “maybe I should talk to a lawyer” or “do you think I need a lawyer,” drawn from named cases including Davis v. United States and Burket v. Angelone. His centerpiece example is Tio Sessoms, sentenced to life without parole in California in part because a transcription ambiguity obscured whether he had personally, clearly asked for a lawyer; a federal appeals court reversed the conviction after more than 13 years, in Sessoms v. Grounds (9th Circuit, 2015). Duane’s concrete recommendation is to say exactly “I want a lawyer” — four words, with no qualifying language — and to repeat it until questioning stops.

Reliability and scope

This is a popular legal-advocacy book by a named, credentialed author, not a peer-reviewed academic source, and its case selection is chosen to support one practical recommendation rather than to survey the field neutrally. Its named cases and statistics are independently checkable and specific enough to verify, which distinguishes it from Should innocent people talk to the police, a more casual video source covering similar ground. Why you shouldn’t talk to the police checked the book’s central case citations against primary legal sources and found the facts substantially accurate but several holdings — particularly Salinas v. Texas and United States v. Long — characterized as more settled and favorable to the book’s argument than the actual opinions support. Its false-confession statistics also proved accurate but poorly sourced, attributing two distinct studies to one undifferentiated citation. Coercive interrogation and false confessions cites them separately. Its scope is US constitutional and evidentiary law as of 2016; Vega v. Tekoh (2022) has since narrowed the practical remedy for Miranda violations, and subsequent case law on Salinas-style silence and Sixth Amendment invocation should be checked before relying on this book for a present-day legal question.

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