False Confessions

Confessing to a crime provides the most damning evidence the prosecutor can present in a trial. As a result, William Weinberg, a criminal defense attorney practicing in Orange County, strongly urges clients not to give statements to the police when questioned. There are many reasons for this policy.

If the police obtain a confession, it will likely be the key to the wrongful conviction and imprisonment of an innocent person if that confession is false. Once police get a confession, even if it is obtained by illegal means, is internally inconsistent, is contradicted by the case facts, and does not lead to corroboration--they will almost always arrest the confessor and refer the matter to the prosecutor with a recommendation to file charges.

Why do so many people confess to crimes they haven't committed? The reasons are many, but the solutions are difficult. Most people assume that a confession is legitimate. But they don't ask how the police obtained that confession. Even if a confession is wrongly obtained, prosecutors often don't believe a defendant's retraction and may look upon it as further evidence of deceitfulness. Other consequences flow from this. Bail is generally tougher to obtain because the court has to consider the facts alleged by the prosecutor as true when setting bail. This can impact a trial where a defendant is in custody, subtly communicating a negative impression upon a jury.

If a person has confessed, prosecutors are may file charges, "overcharge," and make the confession the centerpiece of their case. Cases involving confessions are harder to resolve, since prosecutors are less likely to initiate or accept a plea bargain, and defense attorneys are more likely to pressure their clients to plead guilty because of the high risk of conviction. At trial, the jury is likely to treat the confession as strong evidence of the defendant's guilt. They oftentimes will overlook any inconsistencies and feel that whatever came from the defendant has to be true because there's no evidence that he was "forced" to confess.

But most interrogation techniques have been to convince a reasonable person in his right mind to reconsider his initial decision to deny responsibility and choose instead to confess. Most interrogations begin with the police telling the suspect that they know he's guilty, that they have enough evidence against him but that they just want to hear it from him in his "own words" and to "fill in a few gaps". This seems reasonable to most suspects and may even ignite feelings of remorse or pride.

Interrogators often limit the choices a suspect has, telling him that there is no way out and this is the only way. Or, they may promise to "put in a good word" with the prosecutor or judge. The goal is always the same: obtain a confession.

But when the police interrogate a suspect whose guilt is just a possibility, versus someone the police are convinced by other evidence is the likely culprit, this can lead to a disastrous outcome.

Let's assume that the suspect is actually innocent. If the police officer is "fishing", questioning with no particular goal in mind, the weakness of the interrogator's position and the suspect's knowledge of his innocence will likely affect the style of the suspect's resistance and the strength with which he resists. Dealing with a strongly resistant suspect will tend to frustrate the investigator because it makes his task more difficult. The difficulty of the interrogation may lead him to use a very aggressive or a hostile questioning style that emphasizes the power and authority of his role, and eventually to use coercive tactics.

Now depending upon the intelligence and sophistication of the suspect, these aggressive techniques may have the effect of convincing someone to confess "a little", thinking that will be the end of it and he will be allowed to go. But if the policeman is a rookie and employs threats, thinking this is the best suspect he's got, he may push the suspect too far and cause a false confession.

There is another tried and true approach. This is the "we need your help" or "enlistment" approach. The police will treat the suspect with respect, offer them food or drink, get them a comfortable chair and even adopt a humble tone, suggesting that the suspect can "educate" them on what is going on. This interview format lulls the suspect into a sense of superiority and they let their guard down.

This technique allows the officer, even after the interrogation has turned openly accusatorial, to personalize the interaction by finding commonality with the suspect and telling him that he understands what caused the crime to happen and that he still likes the suspect, despite being guilty of the charge.

In the end, there is no good reason, from the perspective of the defense, to talk to the police. Words are recorded, they are misquoted and taken out of context. Suspects naturally feel inferior to the police and want to appear cooperative. In many cases, clients have confessed to things they haven't done and suffered additional charges. We recommend retaining counsel the moment you or a loved one is contacted by law enforcement and let the lawyer do the talking.