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Regent Law Professor: Don't Talk to Police

4:48 PM, Aug 6, 2008 • By JAIME SNEIDER
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Prof. James Duane of the Regent University School of Law recently gave a lecture before a classroom full of students on why people should never talk to the police. To use his words, "it cannot help," and he quotes Justice Jackson that it is never a good idea under any circumstances. Now you may assume Prof. Duane is a liberal law professor type, but in fact he teaches at Regent, a law school founded by Pat Robertson. Though he doesn't say so, I suspect he fancies himself a conservative or libertarian.

The timing of Prof. Duane's lecture is poignant, because in the last few weeks, Al Sharpton and other community activists have begun speaking out against the "Don't Snitch" movement. The fact of the matter is rap stars and other celebrities have devastated their communities by urging the people who look up to them to refuse to talk to the police. "We are no longer going to give refuge to those traitors that would hit our young, innocent people with reckless and mindless violence," said Reverend Al Sharpton.

Although some might fault Sharpton for waiting so long to take a stand, he should be applauded for finally acknowledging the horrible consequences the anti-snitch movement has had on black communities. Last year, one rap star told 60 Minutes he wouldn't report a serial killer to the police even if the guy lived next door to him. "I wouldn't call and tell anybody on him... I'd probably move. But I'm not going to call and be like, 'The serial killer's in 4E.'" Of course, many of this star's adoring fans can't afford to move. In a wonderful article, the Atlantic Monthly details how this movement got started and the grave consequences of it.

Police and prosecutors have been contending with reluctant witnesses for decades. But according to law-enforcement experts, the problem is getting dramatically worse, and is reflected in falling arrest and conviction rates for violent crimes. In cities with populations between half a million (for example, Tucson) and a million (Detroit), the proportion of violent crimes cleared by an arrest dropped from about 45 percent in the late 1990s to less than 35 percent in 2005, according to the FBI. Conviction rates have similarly dropped. At the same time, crime has spiked. Murder rates have risen more or less steadily since 2000. Last December, the FBI voiced concern over a jump in violent crime, which in 2005 showed its biggest increase in more than a decade.

So how does Prof. Duane reach his conclusion? In the first place, he is correct that an innocent person who talks to the police might end up inadvertently making himself a suspect. It's also possible a person might confess to engaging in activity that he simply didn't even know was a crime -- though it's worth noting that few strict liability offenses, other than statutory rape, carry jail sentences. The basic problem with Prof. Duane's argument is that he completely discounts the utility to the community of people talking freely with the police. After all, most communication with the police does not take the form of a custodial interrogation. Rather, people talk to the police when requesting help or to report suspicious activity. Without this information, it's hard to imagine how law enforcement officials could ever apprehend criminals before an offense is actually completed.

Prof. Duane advises students to refuse to talk unless given immunity. But it's rarely possible for the police to assess how valuable the information a person has before hand, and whether it's worth the time and resources to request that prosecutors grant a person immunity. As a result, if everyone demanded immunity, more crimes would probably go unsolved. Prof. Duane's advice also perverts the 5th amendment, which may not be invoked unless a person "reasonably apprehends" a risk of self-incrimination. I would argue his fear of mistaken prosecution can't be characterized as such.

Regardless of the legal underpinnings, the Don't Snitch movement has revealed the terrifying impact of people adopting Prof. Duane's position on a wholesale basis. We now know that the people who live in communities where no one will talk are not made any freer by virtue of their reluctance to collaborate with the police. To the contrary, they are governed instead by violent criminals.