The Validity of Confessions: A Public Defender's Take

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Although a judge in Manhattan overturned the convictions of the five men charged in connection with the 1989 attack on the central park jogger, this week the police department released a report standing by their original findings. A central issue in the case was the validity of the confessions.

David Feige a public defender in the Bronx, cracks the door open on how and why false confessions emerge from the interrogation room:

Interrogations are scary it's part of why they work. But just how scary and how effective is something that judges often ignore and juries rarely understand. Of course, the criminal justice system loves confessions, they make even weak criminal cases stronger, and they give us that reassuring sense that we're locking up the right people. The problem is, that in our desire to get confessions, the police are allowed to use tactics that can make people admit to things that just aren't true.

For example, it's perfectly legal for the police to lie to a suspect; or to claim to have evidence that simply doesn't exist. A common tactic is separating suspects and telling each of them that the other says they did it. It's the Frankie sold you out and now you're going to fry kind of stuff. This is followed by the suggestion that if they just admit to a minor role they'll be better off. This is very effective in extracting confessions of partial culpability. What suspects don't know is that under the law partial culpability doesn't really matter. Just admitting to being the getaway driver still gets you a sentence for bank robbery or even murder.

Confronting suspects with fake evidence is also a powerful but legal tactic. It sounds like this: look kid, we've got your fingerprints on the gun, either you tell us you shot him in self defense, or you're doing 25-life Even if there are no fingerprints or even no gun, terrified suspects will often listen to that reassuring detective telling them that self defense is their only way out. Once again, what they don't know is that self-defense doesn't apply to possession of a weapon so by trying to avoid a murder rap, they just falsely confessed to a 15-year offense.

Let's be clear: this isn't just about tricking guilty people. Innocent ones get swept up too. Just last week I was cross-examining a detective in a homicide case. He was testifying at what's called a suppression hearing. It's a part of the criminal case that a jury never sees. Often held just before trial, the suppression hearing is where the prosecution has to show that the confession they want to use was given after a knowing, intelligent and voluntarily waiver of Miranda rights. It was the third day of testimony and the detective was talking about questioning my client

You told my client that this was a serious case right? I asked.
Oh yes the detective replied.
You told him he could spend the rest of his life in prison I asked,
life? Oh sure, I told him that the detective said.
And that was during the same period of time that your partner was raising his voice, standing over him and calling my client a murderer right?
Yup -right around then Said the detective.

Well, right around then was about 6:00 in the morning--several hours into the interrogation of a client I'll call Francisco. Francisco, who is mentally retarded, and speaks only Spanish, was sitting in a small windowless interview room on the second floor of a Bronx police precinct. The door had a deadbolt on the outside. Inside, Francisco was crying. He had been crying off and on for hours. I didn't do that he kept saying over and over while two detectives questioned him. The three of them had been alone in the room for nearly four hours it would be two more before Francisco would sign a statement, written by the detective, admitting to helping commit murder.

At trial, the videotapes the DA will play for the jury will omit the hours of interrogation that created the confession those are never taped. The only things the jury will see are the statements the detective wrote, and the videotape of Francisco confessing after 18 hours in police custody. What happened in that little room for all those other hours has vanished like fog before the sun.

Meanwhile, Francisco faces life without parole his statements are the major evidence against him. The chance that a judge will suppress the confessions, or that a jury will ignore them, is minimal. That means, that if Francisco's confession is false, he'll be doing life without parole for a crime he didn't commit.