Most people know very little about criminal law. But we do know about the Fifth Amendment. "I'm taking the Fifth," we say. The Fifth Amendment says that you have the right not to incriminate yourself. This means the police have to prove their case against you with other evidence, like forensics or eyewitnesses. You can confess if you want to, but you don't have to.

Now, there are confessions, and then there are "confessions." Then you have confessions like this which are more baffling then your average case. Of course, the police know it's a lot easier to prove a case when the guy confesses. There are many problems with confessions, and some people actually walk off death row after "confessing" to a crime they did not commit. Confessions are often retracted, and when it gets easier for the police, they may try aggressively to get confessions in the next case. That's how abuses occur.

A recent case from the west coast has raised eyebrows about confessions and the Fifth Amendment. The police were questioning this guy who decided during the interrogation that he did not want to talk any further. It is settled law that the police have to stop the interrogation if the suspect decides he does not want to participate. This grows out of the "you have the right to remain silent" theory of criminal law that we hear on TV all the time. But that's no television talking point. You really do have the right to remain silent, and the police can't force you to talk.

This guy during questioning said two things to the police: "Uh! I'm through with this!" and "I plead the Fifth." The officer did not stop the questioning and said, "Plead the Fifth. What's that?" On further questioning the suspect confessed to the crime. His lawyer asked the court to dismiss the confession because it was improperly obtained. The court denied the request, claiming that the suspect's statements were too ambiguous to convey to the officer that he did not want to talk any further. The Court of Appeals agreed, concluding it was reasonable for the trial court to find that these comments were too ambiguous. One judge on the Court of Appeals disagreed, writing that "It is rare to see such a pristine invocation of the Fifth Amendment and extraordinary to see such flagrant disregard of the right to remain silent."

The suspect could not have been any clearer had he pulled out a copy of the Constitution and pointed to the Fifth Amendment, which clearly says that you have the right not to incriminate yourself: "No person shall . . . be compelled in any criminal case to be a witness against himself." Legal observers are perplexed by this decision, as am I. But in some ways, it's not that surprising, and it highlights some faults in the legal system.

First, while Federal courts are required to review the constitutionality of a criminal conviction obtained in State court, thanks to a terrible law signed by President Clinton in 1996, state courts are allowed to misintrepret the Constitution so long as they do not misintrepret our founding document unreasonably. They are given the benefit of the doubt in interpreting the Constitution. What this means is that a guy could have been convicted in State court in violation of the Constitution, but that conviction will stand so long as the State court's error was reasonable. This line of thinking grows out of the belief that the States deserve some breathing room in resolving constitutional issues. So there are two constitutional standards in our system of justice: the State version and the Federal version, even though the State and Federal systems are interpreting the same Constitution.

Second, if you over-analyze anything, it loses clarity and you see something different. If you stare at the clouds long enough, it looks like a tuna fish sandwich. If you stare at the stapler long enough, it looks like something from outer space. If you over-analyze a simple legal problem, turns into something far more complicated. The result is that a guy who literally quotes the Constitutional protection against self-incrimination is in jail because somehow that statement was confusing to the police and OK by the courts.