The Fifth Amendment has a PR problem. While well liked for its contribution to due process, it also includes protection against self-incrimination. And the idea that “No person… shall be compelled in any criminal case to be a witness against himself” is associated with some of the least popular people in America – like Enron executives and baseball players who took steroids. “Pleading the Fifth” is synonymous with denied guilt.
When Sergey Aleynikov, a Russian programmer working on algorithms for high-frequency trading on Wall Street, was arrested by the FBI in July 2009, he did not plead the fifth or ask to see his lawyer. As related by Michael Lewis in his most recent article for Vanity Fair, Aleynikov knew that he had not committed a crime.
The charge levied by the FBI, that he had stolen valuable computer code belonging to Goldman Sachs (the employer he had left a month earlier), seemed a simple misunderstanding. The agent did not seem to comprehend programming or high-frequency trading. Aleynikov reasoned that once the agent understood that he did not steal from Goldman, but rather copied some open source code (which was available for free and open use on the Internet) off his Goldman computer, everything would be cleared up. He explained his actions, signed a statement affirming his explanation, and directed his wife to let FBI agents into their home to look at his computers.
Lewis’s article goes on to describes how the agent took the signed statement as a confession, which a prosecutor then used to put Aleynikov in prison.
The case illustrates a central tenet of defense law: never speak to police. While this may seem like the advice of shark lawyers who help guilty clients go free, it is actually meant for everyone.
In 1956, the Supreme Court noted that “Too many, even those who should be better advised, view [the 5th Amendment] as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury and claim the privilege.” A more recent case elaborated, “One of the fifth amendment’s basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances. Truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.”
The below video from a law school professor and former criminal defense attorney illustrates why, as he puts it, “I’m proud to say that I will never talk to any police officer under any circumstances. Thank god for the fifth amendment.” (Hat tip to a Hacker News user for pointing to it.) He advises everyone to avoid ever talking to the police, which is remarkable advice in a country where police are meant to protect and serve.
Most innocent people who speak to the police believe – like Sergey Aleynikov – that they can clear up the misunderstanding or that cooperation will help them. As the video explains, that is never the case. Anything you say to the police can only hurt you. A prosecutor can put a police officer on the stand to testify about something incriminating. But if the defense lawyer asks the same officer whether you seemed to respond honestly, that is inadmissible as hearsay. The playing field is not level.
This matters because you have always broken the law, often in ways you could not imagine. Most people break speeding laws on a regular basis. But federal laws are so numerous and scattered that the federal government has literally lost track of the number of laws that exist. The lawyer gives the example of a former student called by the Internal Revenue Service. The IRS said they would like to talk to him about his taxes, but that he is not the suspect of an investigation. Even if you aren’t busy committing tax fraud, he asks, can anyone say with 100% confidence that he or she has never strayed from the tax code?
The biggest reason to avoid talking to police, however, is that it will inevitably give them ammunition to help convict you – even if you’re innocent. Interrogations are long, stressful affairs from which prosecutors will selectively harvest evidence. The lecturer gives the example of someone interviewed by the police about a murder and responding as follows:
“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 have never killed someone in my life, and I would never do so.”
Exactly one part of this statement will make it to trial. The prosecutor will ask the police officer, “Did anything trouble you about the suspect’s statement?” and he will reply, “Why yes. He told me that ‘He never liked the guy.’”
Telling the truth could be especially harmful if it contradicts false evidence. The presenter gives the example of a murder on a beach and an innocent suspect who truthfully says that he could not have committed the murder because he was somewhere else. But what if a well-intentioned but mistaken former classmate testified to seeing him on the beach? If no one can prove the suspect’s alibi, suddenly he looks like a man with something to hide. Combined with the above statement of “I never liked the guy,” a prosecutor can argue opportunity and motive, cast doubt on the suspect, and get a conviction. “This happens all the time,” the lecturer notes alarmingly.
As Aleynikov learned, if you talk to a police officer or agent, the prosecution “can place an agent on a witness stand and he can say anything.” In his case, the FBI agent took Aleynikov’s statement explaining his actions and presented it as the opaque wording of a clever thief. To Aleynikov, it was a tortured attempt to explain high-frequency trading and programming to an agent with no interest in what he had to say. And what Aleynikov called an explanation, the agent described to the jury as a confession.
The police may also simply misremember (or lie about) your conversation. In the video lecture, the lawyer imagines an innocent man denying shooting anyone like in the above example. Then, in court, the police officer tells the jury, “I never told him we were investigating a shooting. I told him we were investigating a murder.” But what if the police officer simply forgot that he said “shooting” to the suspect and not “murder”?
All these points present a compelling case for why no one should speak with the police and why the Fifth Amendment should not be seen as a refuge of the guilty. That is why Miranda Rights exist. Since it is so easy to implicate oneself or appear guilty, even innocent people should insist on waiting for a lawyer. But there is another reason to never talk to the police: people make false confessions surprisingly frequently.
The advent of DNA evidence has provided a glimpse into the failings of law enforcement as DNA evidence exonerates individuals from crimes for which they have served time or even been executed. As The Atlantic reported, in over one quarter of those cases, the wrongly-convicted either confessed to the crime or incriminated themselves during their interrogations or testimony.
Given their prevalence, psychologists and criminologists have begun studying false confessions. Professor Saul Kassin of John Jay College of Criminal Justice categorizes false confessions as one of three types – voluntary, compliance, or internalized:
Voluntary false confessions are the best known, the most easily disproved, and perhaps the simplest to understand. They are prompted not by police behavior but rather by a need for attention or self-punishment. For obvious reasons, these confessions contain only facts known to the public; they surface in high-profile cases. The kidnapping of the Lindbergh baby garnered hundreds of such confessions.
Compliant false confessions are the opposite of voluntary confessions. They are coerced by police conduct, and are generally made in the hope of ending the coercion. What stressors would make someone confess to a horrible crime, knowing that the confession’s long-term implications would far outweigh any short-term relief? Torture, of course: physical violence, or the threat of future violence such as execution or prison rape. But the coercion need not be nearly as severe as that. Promises of food, a phone call, drugs to feed a habit — all of these have led to compliant false confessions. The guarantee of sleep or simply being left alone has been enough to get an innocent person to admit to a horrendous crime. Even the illogic of a promise to go home was sufficient to get five New York City teenagers to confess, completely independently, to a Central Park jogger’s rape.
Internalized false confessions differ from voluntary and compliant ones in a significant way: the confessor comes to believe that he may be guilty of the crime. Richard Leo, a law professor at the University of California at Los Angeles, prefers to call them persuaded rather than internalized, and explains that such confessions result from interrogations that “shatter the confidence you have in the reliability of your own memory.” In essence, some people begin to doubt their own memories, and start to instead believe that they might have done something awful, sometimes confabulating false memories in the process.
Although false confessions have proved common – often coerced only through the promise of sleep – jurors have proved unable to sufficiently take into account their unreliability. The same Atlantic article notes that even when jurors are educated on the prevalence of false confessions, they still view a confession of guilt as nearly ironclad proof – “they can’t accept the possibility that the man in the dock might have admitted to a horrible crime he did not commit, particularly when the risk of doing so might be a death sentence.”
Sergey Aleynikov, the Russian programmer, was not completely blameless. Some of the code he copied included slight modifications he had made for its use in Goldman’s system, and when he had once asked his boss if he could release it as open source, he had been told to consider it as belonging to the company. He knew Goldman would not like him copying the code – he compared it to speeding – but he would be building a new system from scratch in a different computer language in his new job. When the FBI arrested him, he had not opened any of the files.
But whether out of spite toward a departing former employee, confusion over whether something of value had been taken, or a desire to cover up the fact that Goldman’s secret trading algorithms were derived from publicly available open source code, Goldman Sachs decided to prosecute Aleynikov. According to Lewis, they found the FBI compliant. Lewis also finds Aleynikov innocent, as did an appeals court which freed Aleynikov after more than a year in prison.
Aleynikov learned never to talk to the police – had he not, he may never have been convicted on the basis of his supposed confession. It’s a lesson everyone should learn as well. Especially if you used to work at Goldman Sachs.