We get comments about more than a few of the things we write about. After a few a pattern emerges. In the last few weeks we published blog posts about Roger Clemens and his trial(s) for perjury and lying to Congress and the movie Richard Jewell. We’ve also posted more than few Facebook posts about some of the issues we discussed in the blogs.

Some of the feedback we received has us fairly convinced that there are more than a few myths about the criminal justice system that just won’t go away – though we’ve made it our mission of sorts to stamp them out.

Here are two of the biggest, directly related to our last blogs:

1. Rich people win trials because they’re rich and have an unfair advantage over the prosecution.

Yes, Roger Clemens is rich. No, money was not an advantage over the prosecution. The reason is as simple as it is overlooked: the prosecution – state or federal – has virtually unlimited resources. It’s not Roger Clemens – or anyone else – against a cash-strapped government entity. The government has money, scientists, labs, experts, investigators, and power – the stamp of authority that virtually requires cooperation.

Over the course of the two Clemens trials, and the investigation leading to the charges, the Justice Department spent $120 million. That is not a misprint. $120 million to prove that a baseball star took steroids, then lied about it.

It doesn’t matter who you are or how much you’re worth, if the government wants you, they have the advantage in the subsequent prosecution. Please note the qualifying ‘if.’

2. If you have nothing to hide you should talk to investigators.

There are a great many variations on this theme. “If you didn’t do anything, you owe it to yourself to talk to us;” “You can really help yourself;” “Only guilty people get lawyers;” “What are you afraid of if you didn’t do anything?” “Help us help you.”

Flip on an episode – any episode – of any Law & Order variation and you’ll see an example, usually around the 20 minute mark.

It is so tempting, and perfectly keeping with human nature, to fall for this. Everyone wants to explain themselves, everyone wants to cooperate if for no other reason than they want to be liked. When dealing with an authority figure (or two or three) remaining silent or asking for a lawyer can seem confrontational. At the very least uncomfortable, especially while the interviewers speculate about your silence.

Two things: first, you have the right to not talk and to wait for a lawyer. Exercising that right does not make anyone guilty of anything, It just makes them smart. Second, everything you say, certainly every pause, misstatement, facial reaction, will be held against you, no matter how innocuous it may seem to you. This is not a dig at the police or FBI or prosecutors, it is also human nature.

It’s all about something we all exhibit every once in a while: ‘Confirmation Bias.’ Here’s the Encyclopedia Britannica definition: “the tendency to process information by looking for, or interpreting, information that is consistent with one’s existing beliefs. This approach to decision making is largely unintentional and often results in ignoring inconsistent information. Existing beliefs can include one’s expectations in a given situation and predictions about a particular outcome. People are especially likely to process information to support their own beliefs when the issue is highly important or self-relevant.”

Investigators are under tremendous pressure to solve cases. Investigators develop a theory. That theory can become entrenched, especially as a case drags on and the pressure mounts. When that happens and they interview someone they are looking for confirmation of that theory. At that point, little else matters.

Combine most people’s natural inclination to explain themselves to authority figures with investigatory confirmation bias and you are facing a potential disaster. One that could take years to unravel.

Author Shannon Smith

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