Many people (jurors) assume confessions are a reliable indication of guilt. That makes confessions a very important aspect of a criminal case. Because so many jurors will simply accept a confession as true, presenting unreliable confessions to juries results in innocent people going to prison. We know this is true, and there is every indication that it continues to happen. In fact, of DNA exonerations studied by the Innocence Project, more than 1 out of 4 of those convicted and later shown to be innocent had confessed to the crime they did not commit. That is why it is important for courts to carefully examine whether a confession is reliable before it is ever presented to a jury. The most obvious place to start is with a careful and critical examination of how the confession was obtained.
One Example Among Too Many
Those familiar with the Brendan Dassey case through the Netflix show Making a Murderer will be aware that a central issue in the conviction of that teen defendant was his confession. The show aired footage of the interrogation that led to the confession, and law enforcement in that interrogation appeared to lead Brendan to provide key information. Police also lied about evidence during that interrogation and repeatedly told Brendan to stop lying when he told them he was innocent. Brendan’s statements from that interrogation ultimately lead to his conviction and likely played a role in the conviction of Steven Avery as well. The show highlights moments of frustration for the police during the interrogation in which a quiet and withdrawn teen suspect appears to be unable to provide the information police wanted. Eventually, police simply suggest key information that the overwhelmed and stressed Brendan then accepts and agrees to. This past week, a federal court of appeals decided the confession was just fine. In doing so, four judges overruled at least six written rulings by federal judges who concluded that the confession was coerced and should not have been used. Those rulings and written opinions include the finding by the federal district court, the original appellate panel, and the three dissenting judges in the full (en banc) panel, all of whom agreed the confession should not be used against Brendan Dassey. The show itself is controversial in part because of a perception by some that it is biased in favor of the defense. However, the facts at issue regarding the confession of Brendan Dassey, independently of the show, were enough to convince enough federal judges along the way that until last week, the confession had been ordered thrown out. We agree with those judges objecting to the use of a confession that is shaky at best, and with the many people following this case who continue to call for Mr. Dassey’s release.
The dissenting judges on the 7th Circuit pointed out that allowing this confession to be used is not in keeping with previous U.S. Supreme Court cases, in which the Court established that interrogation techniques that may be considered coercive when used against adults, are presumed to be coercive when used against children or those with limited mental capacity. With Brendan Dassey, who was interrogated without an attorney present, and without even a parent present, we may have both issues in play. But the 7th Circuit’s 4-judge opinion focused on the fact that there was no apparent physical coercion, and that Brendan was interrogated in a comfortable environment. So suggesting key information when the suspect doesn’t offer it up, then presenting it as if it was his idea all along doesn’t bother us? Is our standard of review going to center on whether a comfortable couch was provided? This kid is serving a life sentence now, and this confession helped the prosecution get him there. Evidence resulting in a life sentence or worse, death, must be reliable and solid. In this case, many federal judges think the techniques used by law enforcement were so bad that the confession itself should not have been presented to jurors. Of course, this case has plenty of attention and may proceed to the U.S. Supreme Court for another argument and decision. But as with all individual rights, this kind of story begs the question, if it happens to you, will your case get that kind of attention?
More Common Than You Might Think
How is it that in any study one in four DNA exonerations involved a false confession? Why is it that most of the false confessions that have been identified have been in the most serious cases, such as those involving murder allegations? Are false confessions a bigger problem than most people believe, and only those high profile cases involving DNA are able to bring the issue to light?
A Wall Street Journal article published in 2013 asserts that approximately 38% of exonerations of teen defendants came after the teen had confessed to a crime they did not actually commits, and that study found that the same was true for over 10% of adult exonerations. Some were only shown to be false after video surfaced of the defendant in a completely different location at the time of the crime.
Why Does This Happen?
Why would someone confess if they didn’t do the crime? Duress. People who are more deferential to authority (like police) are more likely to try to give police what they want. People who are focused on short term goals hope to get out of the interrogation and just go home, or simply to be left alone. Those same people are more likely to waive the right to an attorney, often hoping to ingratiate police by doing so. Waiving that right is the first sign that the accused is motivated to please the police. So who is at higher risk? Those who are willing to speak with police without a lawyer.
Many of us may believe that we would never offer a false confession under any circumstance. However, police interrogators enter the room with the goal of getting the suspect to admit to the crime. Many of them have developed a range of skills in this area over the course of a career. It is hard to know how a person will react to that scenario until they experience it. Police may say the goal is simply to “find out what happened” or “clear things up”. A favorite of theirs is to say they just want to hear your side of the story. Usually, that is a lie. If that surprises you, you may be unfamiliar with police interrogation techniques. Lies are permitted. Police will likely use any means they believe the court will allow to get a suspect to admit to the crime. They will lie if they believe it will help them accomplish that goal. They may say they have DNA evidence they do not really have, or fingerprints, or statements from witnesses, etc. Any lie is acceptable to them if it helps them accomplish their goal. Any combination of lies is also acceptable. Interrogators will attempt to read a suspect and try different approaches from bullying to feigning empathy. Even breaks from the room (usually with cameras and microphones still active) are often intentional and planned. Police record the interview so any inconsistencies in the statements of the accused can be used against them later. But inconsistencies in statements made by police? Those are believed to be a justifiable means to an end: getting that confession. Perhaps surprisingly, the courts mostly agree with them on that.
Remain Silent and Ask for a Lawyer!
Who is best equipped to stick to their guns and get the truth out in a room where police are in control of everything from water to bathroom breaks? Police who are determined to get what they want for a prosecution, even if it means lying all along the way? How likely is a truthful and reliable outcome when an accused is repeatedly told they are already as good as convicted by all the other (potentially made up) evidence anyway? Who is best able to stand up to professional interrogators who believe anything that gets to their “truth” is justified? The best answer is simply to refuse to play along in the first place. A criminal defense lawyer can simply shut down police attempts at coercion and dishonesty. Police are required to advise everyone who is suspected of a crime of their right not to answer questions prior to custodial interrogation. But whether they read the rights or not, those suspected or accused of a crime have a right not to talk to police at all. You have the right to bypass any coercion, any bullying, and any lying. Ask for an attorney.
Those who do not ask for an attorney and invoke their right to remain silent until they have one are far more likely to become desperate, confused, tired, or just give in to what the police are demanding. It is in that moment that false confessions are extracted from innocent people.
Be Critical of Confessions
Potential jurors, consider the fact that false confessions happen more often than most of us would guess. Many states have laws that do not allow prosecution based upon a confession alone. They require corroborating evidence. Those laws exist because lawmakers and courts have recognized that confessions are in fact not as reliable as jurors tend to believe they are. But those laws can certainly be undermined with very shaky “corroboration”, and in some cases they do not even apply anyway. The reality is that the studies cited in this post have shown between 1 and 4 out of ten people who have been lucky enough to be proven innocent had confessed.
The 4-judge majority on the 7th Circuit bench appears to have their priorities reversed when it comes to reviewing a confession. It will never be enough for a court to say something positive about an interrogation and ignore police mistakes such as leading and the unwanted impact of coercive psychological techniques. Coercion by law enforcement is reigned in primarily by the courts’ unwillingness to use tainted and unreliable evidence. Because it is important that our justice system always seek justice rather than easy convictions, it is that system’s responsibility to look for signs that a confession was involuntary, and to act on those by refusing to use unreliable, involuntary statements.
About the Author:
Vernon Ready is a criminal defense attorney serving the Denver metropolitan area. The firm, Ready Law, represents those accused of a full range of criminal charges in all Denver Metro counties.