Defending Against the Confession at Trial
| Publication year | 1986 |
| Pages | 409 |
| Citation | Vol. 15 No. 3 Pg. 409 |
1986, March, Pg. 409. Defending Against the Confession at Trial
In a criminal trial, the most devastating evidence introduced is often the defendant's own confession. Inevitably, the police officer's testimony portrays the confession as a spontaneous admission that was in no way coerced by the interrogator. However, the interrogating officer sometimes utilizes psychological tools designed to elicit a confession from the suspect. The nature of these tools was described by the U.S. Supreme Court in the Miranda decision.(fn2) After a review of such documents, the court concluded:
From these representative samples of interrogation techniques, the setting prescribed by the manuals and observed in practice becomes clear. In essence, it is this: To be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the preconceived story the police seek to have him describe.(fn3)
The Miranda court summarized:
It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner.(fn4)
Interrogation books instruct an interrogator in how to apply psychological tools that maximize the suspect's fear and induce confessions.(fn5) The authors of one such book concede that these same tools can result in a fabricated confession:
The cases of persons giving false confessions to please the interrogator are so numerous that examples are unnecessary. The human mechanism is fragile: and, as we have seen from the forming of a conditioned reflex, it is possible to go too far, creating a byproduct of false information or a false confession.(fn6)
This article suggests strategies that can be used to educate the jury on these interrogation techniques that are seldom mentioned in a courtroom. The jury can then decide if the interrogator has "gone too far" and elicited a false confession.
In People v. Deeds,(fn7) the Colorado Court of Appeals held that it was permissible for a defendant to raise the voluntariness of a confession at trial, even though the issue had been litigated in pre-trial motions. The Deeds court cited the following instruction as persuasive authority for its holding.
The burden is upon the prosecution to prove, beyond a reasonable doubt, that any out-of-court statements made by the defendant were voluntary. If you believe from all the evidence in this case that the statements alleged to have been made by the defendant were not voluntary, or if you entertain a reasonable doubt on this point, you shall disregard the statements entirely.(fn8)
The court observed that there was a split in authority in Colorado as to whether the jury could consider the issue of voluntariness once the trial court ruled on the issue pre-trial:
Although Colorado ostensibly follows the "orthodox" rule whereby the judge makes the voluntariness determination and the jury considers the admission only as to weight and credibility, it appears permissible for a defendant to again raise the voluntariness issue before the jury [citations omitted].(fn9)
The Colorado Supreme Court has also recognized that there is an apparent split in authority as to whether a jury can be instructed to determine voluntariness. In Kwiatkoski v. People.(fn10) the issue before the court was whether a jury that had been instructed to decide whether a confession was voluntary should have received an additional instruction defining the term "voluntary." The court found no error in the trial court's failure to define that term. Additionally, the Kwiatkoski court, in a footnote, recognized that prior case law in Colorado appeared in conflict as to whether the jury could determine voluntariness in the first place.
After reviewing numerous cases, the court declined to decide the question, noting that the issue had not been raised during trial. The status of the law presently is that voluntariness of the confession is relevant at trial, and the defense is entitled to the jury instruction on voluntariness.
Pre-trial motions hearings are crucial in setting the stage for a voluntariness challenge at trial. Normally, the first encounter is the preliminary hearing. Several points need to be established at the hearings: (1) how many facts about the crime were known to the interrogator prior to the questioning of the defendant; (2) how badly did the police need the confession to obtain a conviction; (3) do the police possess tape recordings or handwritten notes of the confession; and (4) at what location was the confession taken and could the interview have been held at the defendant's residence or some other location.
During the preliminary hearing, counsel should have the officer give a full account of the status of the police investigation prior to the interrogation. The more facts known about the crime prior to interrogation, the more likely it is that the defendant merely capitulated to a pre-conceived statement proffered by the officer. Also, if the confession was crucial to conviction, the officer had additional incentive to force an admission to key elements missing from the investigation.
Counsel should use the preliminary hearing to nail down discovery issues regarding tape recordings and contemporaneous notes. Tapes are often transcribed and the tapes themselves destroyed. Those tapes may convey emotions that are absent from a written document. Fear, anxiety and a sense of intimidation can often be gleaned from the original tape recording. Notes by an officer are also destroyed at times. Therefore, counsel should consider filing a motion to preserve evidence as soon as the case is opened...
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