Mimesis Law
22 May 2019

False Confessions: Where There’s A Will, There’s A Way

Aug. 3, 2015 (Mimesis Law) — A recent PBS broadcast of Due Process told the story of David McCallum.  It was a tale all too familiar these days, of a young black kid who had his twenties and thirties stolen from him by a wrongful conviction.  The main, almost only, evidence in the case against the then teenager was his confession.

McCallum admits that he said the words in that confession but that he was innocent.  Why did he do this?  Because he was a sixteen-year-old boy and the NYPD beat it out of him. McCallum’s confession may have shocked the conscience a decade or two ago, but a certain expectation follows from repetition.  We have heard so many stories of the law, the government, using incredibly coercive mental, emotional and physical tactics to get a suspect to say those magic words, “I did it.”  Obviously, the police never admit to a judge or jury that they have done anything other than make sure the suspect was as comfortable as possible.  But these days, defendants might have more credibility than cops.  It’s the repetition effect again.

It is fantastic that the dark underbelly of the arrest and prosecution process is being exposed.  It really is.  But for each bright, shiny issue we think we dig into, we only scratch the surface.  We cannot take our eyes off the stories of police needlessly killing people.  But while our attention is focused on the big story, we often fail to see the pattern of simple police bullying that alters millions of lives per year.  In the same way, our focus on the confession that is physically coerced has us missing other, more mundane, types of false confessions that happen with alarming frequency.

A true understanding of the current American confession process begins and ends with the Reid Technique. A 2013, a New Yorker article noted that “the Reid Technique has influenced nearly every aspect of modern police interrogations, from the setup of the interview room to the behavior of detectives.” The nine steps of the successful confession-getting method are as follows:

  1. Confrontation
  2. Theme Development
  3. Stopping Denials
  4. Overcoming Objections
  5. Getting The Suspect’s Attention
  6. The Suspect Loses Resolve
  7. Alternatives
  8. Bringing The Suspect Into The Conversation
  9. The Confession

These steps, intended to get a guilty person to relent and confess, shockingly effective to get a person to confess, become immensely dangerous when used on the innocent.

Thanks to Reid, “science” has replaced the old rubber hose to a large degree.  And while the mundane kinds of false confessions aren’t as sexy (read: lacking nuance) as the one that comes at the end of a fist, they have the exact same effect.  They send innocent people to jail.

Let’s take a look at the different types of false confessions that don’t get the public recognition of their more violent counterpart, but impact many, many more people.

The Confession That Never Happened

A defendant’s confession is almost always conveyed to the court via a standard legal form.  The bare minimum of accompanying information is provided (name of officer who took the confession, location of confession, time of day, etc.).  There are no notes, no audio, no video, nothing to prove that it ever, in fact, happened.

This initially presents quite a problem for the defense.  Any plea offer made by the prosecutor or the court will be made before one of the most important pieces of evidence, the confession, has the one thing that could actually breathe legitimate meaning into it — context.  While the defense may have notice that a confession was made, it knows nothing more than that at the plea stage.

The natural default of those figuring out an appropriate punishment is not to question the legitimacy of the confession and presume the defendant innocent as the law requires. No. The confession is presumed solid and indisputable, thus becoming a firewall to leniency or arguments for dismissal.  Then, at the pre-trial hearing, where the voluntariness of the statement — and thus its admissibility — is decided, the cop calmly and matter-of-factly tells the court that the defendant said he did it.  For the vast majority of confessions out there, the cop, despite being armed with his own pocket video recorder (they stopped being phones years ago) that has the capacity to records stuff in hi-definition at the press of a button, brings forward zero corroborating evidence to show that this confession actually occurred. Would we believe a cop who testified about the details of his investigation if he prepared no notes of what he did?  In the thousands of cases that I have defended, I can count on one hand the number of times I have been presented so much as notes that a cop took during an interrogation of a suspect.  If one is seeking accuracy in the retelling of a story, that person would take notes, if not press record on his pocket video recorder.

If the officer knows this guy did it, though, then what is the harm in just telling the court that he said those magic words and confessed? Why would I lie?

The Half Confession

There is a remarkably cogent scene from My Cousin Vinny where Ralph Macchio (the true Karate Kid) thinks he is being interrogated about stealing a can of tuna when, in fact, he is being questioned about the murder of the clerk of the same convenience store.  He is asked, point blank, by Sheriff Bruce McGill (of pretty much every movie ever made), “At what point did you shoot the clerk?”  Ralph responds, dumbfounded, “I shot the clerk?”  At the trial, the good Sheriff employs a very common tactic amongst actual law enforcement.  He changes the question mark into a period and thus changes a statement with a ring of innocence into an unburdening confession by a guilty soul.

Police do this all the time, and I sometimes wonder if they really see it as lying.  If a cop can get some suspect to say, “I hit him, but in self-defense,” is it his job to tell the prosecutor or the court about the “self-defense” part?  Yes, of course it damn well is.  Changing context changes meaning, and meaning in the realm of confessions is all that matters.  But if cops love to do one thing, it is strip away meaning and information from a case.

The cop who testifies that he had a 30 minute conversation with the defendant and then provides the court with only two sentences should be summarily kicked out of that court.  But that is not how it goes.  Judges tend to leave the messy work of calling an obvious liar a liar to the jury.  Especially when that liar is a cop.

The Written Confession

If you are a defense attorney and you get handed a statement notice with a staple, you know you are in trouble.  Not as much trouble as the person standing next to you, but still trouble.  The staple usually signifies that you have received a hand-written confession.  A confession actually written by your client is usually fatal to any reasonable defense you might have.  Usually.

If there are three pages explaining how, “sure, I went with the other guys and broke into that house and stole all those things, but I didn’t want to,” then begging has probably become your only defense.  However, you often get handed something that might have been written by your client’s hand, but not his mind.  These are the confessions where your client is merely transcribing the words the cop is force-feeding him.  They are generally short, deadly and always seem to end with an apology.

But the other kind of written confession, the one written by the cop and then signed by the suspect, should be considered fraudulent until proven otherwise.  Again, out of all the methods of recording the defendant’s story, the cop has chosen the least accurate.  There is a conversation with the suspect (not recorded), then the cop writes down whatever he wants and has the storyteller sign it.  In those interview rooms, the suspect is often promised that the simple act of signing that document will make everything better. It does not.

“All you have to do is sign this and we can let you go,” sounds great to a guy being interrogated. It’s even better when they are illiterate or don’t speak the language in which the statement is written.

Again though, the cops totally have the right guy. They know it. The only investigation needed is getting perp to admit it. Since the cop is hardly concerned with accuracy (or even reality), his only focus is on getting the conclusion right, which is that the suspect did it.  Anyways, what is a little filling in the blanks amongst friends, right?

The Video Confession

Video doesn’t lie.  But as the Central Park Five and so many other cases have proven, even though video doesn’t lie, it often captures suspects who do.  The video often starts at just the right at the point, where the suspect is ready to launch into a well-rehearsed speech about his commission of the crime.  There never seems to be video of the entire lead up.  Oh, those 8 hours in a windowless interrogation room before the video starts?  Just friendly conversation and occasional trips to the vending machine. Why do you ask?

But video confessions are the most dangerous because it is almost impossible for a judge or juror to actually see someone confess and not believe it. But cops know what they are doing, and they know when to record and when not to.

If we get to the point where any stationhouse confession that is not video or audio recorded is presumed to be false, then we will have come a long way. Until then, we must recognize that failure to record is a conscious decision on the part of the police. There is motive, and it has nothing to do with preserving the truth.

Could you imagine walking into a bank and just telling them that one of their other customers agreed to transfer $1,000 from his account into yours?  What if you took them a letter that you had written but the other customer had signed?  The bank would kick you out, as well they should.  So why the hell do we continue to allow the cops to use “trust us” for something as important as someone’s freedom?

Instead of using the Reid Technique’s cumbersome nine steps, how about the Womble Technique’s simplified two steps? Step one, turn on the video camera. Step two, leave it on. Hey, remember, seeing is believing.

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