Why We Confess

I'm a terrible liar.  My lips quiver.  My eyes twitch like I'm watching a tennis match and I cannot hold eye contact of the person I'm lying to.  Not to mention the incredible guilt I feel leading up to and forever following the lie.  It's been this way since I was a child.

Don't believe me?  Ask my wife who will verify that any minor joke I try to pull over on her fails due to my tells.  Anyone want to play poker with me?

Lance Armstrong provided some news that we all already knew or suspected.  I did not watch the interview.  Lance's vehement denials and aggressive defense of his "integrity" when someone had the audacity to speak the truth were enough for this interview to barely register in the must watch category.

But it did get me thinking about why people confess.  It happens every day, in every police station, in jail cells, in bedrooms, and in bars.  People routinely unburden their darkest moments to loved ones and even absolute strangers.  Maybe it's my inability to lie that gives people the notion they can trust me.  It seems that any party I go to and meet someone new, I have their life story complete with faults within minutes.

Why do people confess?  Why tell anyone?  Why not keep the secret that most haunts you in the depths of the night to yourself?  Telling on yourself will only lead to trouble.  An arrest, a divorce, lose a friendship, or destroy a family.  Despite the negative consequences, confessions are as real and likely as the fact the sun will rise tomorrow.

One of the largest reasons people confess is guilt.  Guilt is caused by mental stress.  Does the cheating husband worry that his dalliance will be discovered every waking minute?  What about the man who murdered his neighbor?  Or the drunk driver who hits a pedestrian and takes off?  The fear of being discovered and stress that causes creates guilt.  It manifests itself physically and mentally for as long as the stress lasts, causing agitation and physical problems.  There are common clues in everyone that detectives can use to obtain a confession.  Many times the only way to relieve the stress and guilt is to unburden yourself to another person, even for just a moment.  The relief of confessing, of letting someone else share the weight of guilt, can cloud the vision of probable consequences.

What are some of the other reasons?  Some people feel an urge to explain themselves and their behavior.  Others think that confessing will absolve them of all liability (she won't divorce me, or they won't arrest me when they see how small my role was).  The braggart exists too.  Someone trying to impress his friends or look tough in the jail will also tell of his prior exploits and usually those friends are only too happy to retell those exploits to a jury if it will help them out.

Confessions in the criminal world need to be corroborated.  Anyone can confess to anything.  It is necessary to obtain details during the confession that only the actual culprit would know.  Good detectives will use the physical and mental cues and motivations for confessing to get a confession.  In my experience, most confessions come from relaxed environments where the detective is treating the suspect respectfully.  It is more like a parishioner speaking to a priest then.

Lance provides a different reason.  His motivation to confess is purely selfish.  There is a documented history of forgiveness with our athletes and celebrities.  We all love a redemption story.  The first part of the redemption process is admitting wrong-doing.  Once we see our beloved figures are human and capable of mistakes, we find ways to forgive them.  The evidence was too strong against Lance for him to continue to deny it any longer.  My guess is that a publicist or someone close to him finally got through to him and explained that the only way to build himself back up is to be honest and humbled.  He tried and confessed to the confession queen, Oprah.

I'm apathetic about the entire situation.  I loved the story when he was winning the races, and I never believed his accusers until recently.  On the other hand, he has done so much for cancer research, something that affects me deeply, that I am extremely appreciative for his foundation and the half a billion dollars it raised.  It's the old moral question - does the end justify the means?

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The False Confession Expert

Confession is a misnomer.  True confessions occur in only about 10% of my cases.  Everything else a defendant says that is not a confession is simply called a statement.

The defendant can make many statements to the police.  He can admit being at the crime scene but claim he wasn't involved.  He can provide an alibi.  He can claim he attacked someone in self-defense.  He can claim that men with gills emerged from the sea and told him to kill someone.

These are not confessions.  These are statements that provide a defense to the charges.  A false confession occurs when a suspect admits to a crime and he is actually not responsible for that crime.

It can happen in different ways.  A person can admit to a crime when he hopes to gain approval from the police officers, if he expects to go home, or in hopes to end a stressful interrogation.  A person with a mental disease may also confess to a crime.  A person seeking publicity can as well.  It is also claimed that a person can begin to believe they committed the crime under aggressive questioning. 

Defense attorneys are increasing their attempts to have false confession experts testify at a trial.  The expert is supposedly trained in the area and will say that a given statement was false or coerced.  New York courts routinely reject such testimony because the scientific theory has yet to gain general acceptance in the scientific community and that the proposed testimony is not outside a juror's ability to judge for themselves.

In New York, any novel scientific testimony must be subjected to a pre-trial hearing called a Frye hearing.  To meet the Frye standard, scientific testimony from a false confession expert must be generally accepted by the scientific community.  False confession expert testimony is simply not accepted in the scientific community as reliable and, thus, not admissible evidence in New York yet.  The problem is there is no scientific data to support the testimony.  It is all based on anecdotal evidence.  

The courts have found that much of the proposed testimony is based on the expert's own subjective view of selected cases and the expert's analysis has not been subjected to peer review.  Basically, the expert testifies that interrogation techniques could result in a false confession, but doesn't provide the evidence to support the claim.

The expert speaks in general terms, indicating that the police method of interrogation could have resulted in a false confession.  The courts are seeking something more specific.  Anything could have resulted in a false confession.  Testimony that only serves to create speculation is inadmissible.  

As a prosecutor, what do I look for in a confession to see if it's accurate?

1) Is it recorded on video or audio?  Most of mine are not so I must look at other factors.

2) Corroborating evidence.  Is the confession my only proof against the defendant?  Or do I have other proof to connect him to the crime?

3) Details in the confession.  Does the defendant provide details only the culprit would know?

4) Skill of the interrogator.

5) Types of questions asked.  Are they open-ended questions or leading?

Another aspect of false confessions is when it may affect a witness testifying for the prosecution.  Take the case of Ryan Ferguson in Missouri.  He was convicted of murder following a trial where his co-defendant testified against him.  The uproar over the case has centered around whether the police coerced a confession out of his co-defendant.

In New York, our law requires us to corroborate the testimony of a co-conspirator.  If one of our witnesses was in on the crime and is testifying against an accomplice, we must have additional proof to connect the accomplice to the crime.  This is a procedural safeguard against a defendant saying whatever he can just to get a better deal.  There must be other evidence to tie the person to the crime.

If you want to read a little more about the Ryan Ferguson discussion check out the comment section on this post.  It's a controversial case with many issues.

Next week is an exciting week.  Check back for an interview with a pioneer in homicide journalism. Here's a hint - Homicide Watch

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Anatomy of a Confession (continued)

A court makes the ultimate determination at a pre-trial hearing if a defendant made a voluntary confession.  In New York, this is called a Huntley hearing.  Remember, these issue all deal with New York law, which is generally more restrictive than federal law.  Also, this is not an exhaustive list of any of these topics. 

When Miranda Warnings Are Not Required

1) When taking the suspect's pedigree information - name, date of birth, address, and other info. 
2) When the suspect is not in custody. 
3) Spontaneous statements - the police do not have to read Miranda to quiet a person who speaks without prompting.
4) Investigative questioning - the police are not required to give Miranda warnings to every person when they first arrive on the scene and begin an investigation.

What the Police Can Do During Questioning
1) Use a trick or ruse, as long as the deceit is not so unfair as to deny the suspect due process.  This usually takes the shape of informing the defendant he has been identified  by a witness or that his DNA was recovered.
2) Tell the defendant they will inform the court and DA that the defendant was cooperative.
3) Record the interview if they choose.

What the Police Cannot Do
1) Promise immunity
2) Promise a lesser charge or a specific sentence
3) Threaten the suspect to make a statement
4) Harm the suspect

Again, every case is unique and the specific facts of each will determine the court's ruling on admissibility of the confession.  This is merely an informative guide.

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Anatomy of a Confession

One of the first things I realized when I started as an ADA was that I didn't know anything.  Criminal law classes, the bar exam, and television did not prepare me for what hid behind door number one.

That is especially true when dealing with confessions.

Detective Stabler from Law and Order SVU doesn't grab a suspect and read him his Miranda warnings on the street as we see on television.  Suspect statements usually aren't videotaped.  Many times there's not even a clear line between who is a suspect and who is a victim.  This week we will discuss confessions, some techniques that are legally permissible to obtain confessions, and false confessions.

As always, we must start with the basics to explain the more advanced topics.

What are the Miranda Warnings?


The police must inform the suspect of the following warnings:

1) You have the right to remain silent
2) Anything you say can be used against you in a court of law
3) You have the right to speak to an attorney and to have one present during questioning
4) If you can't afford one, the government will provide one for you at no cost

These are the minimum requirements.  There is no requirement as to how an officer must deliver these.  The officer can tell the suspect, read them from a card, put a sheet of paper in front of them containing them and read them at the same time, go through each one in detail on video, or use any combination they can think of.

When are Miranda Warnings Required?

Miranda warnings are only necessary when a person is in custody and the police are interrogating him.  Each of these components has a legal definition that over forty years of legal opinions has wrestled with.  For our purposes, custody means when an average person in the defendant's position would feel they are not free to leave.  Interrogation is when the police are asking pointed questions concerning a crime.

In practical terms, this means that there are only limited times when Miranda warnings are required when speaking to a suspect.  An officer who approaches a suspect on the street and starts asking him about the murder he just committed does not need to provide them if the defendant is free to go.  An officer who arrested the same defendant, put him in handcuffs, and brought him to the precinct, but only asks the defendant for basic pedigree information does not need to provide them.  If the suspect just starts blurting out a confession without police questioning?  No Miranda warnings necessary.

They are required only when a suspect is in custody and an officer is interrogating him.  Every case presents a unique situation concerning when a suspect is in custody and what kind of questions constitute an interrogation.  These issues are litigated prior to trial and the court makes a determination whether the police followed the law and the confession is admissible or whether they didn't and it is inadmissible at trial.

Miranda warnings are not required in every arrest.  They are only necessary if the police question the defendant.  If there's no questioning, then there's no warnings.  This cuts against what we've learned from actor portrayals, but these warnings are not required when a person is merely arrested.  They are only required if both the defendant and the police want to speak to each other.

There are thousands of cases that deal with specific issues about Miranda and the right to counsel during questioning.  It is too voluminous to discuss in this general overview.  As always though, if you have a specific question drop me a note and I'll do my best to answer it.

On Wednesday, we'll discuss interview techniques and how they affect the court's view of a confession.

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False Confessions

Sixteen year old Nga Truong was charged with smothering her thirteen month old son, Khyle.  A judge threw out the confession as the product of unlawful police questioning.


Check out the video and the other excerpts of it from YouTube.  Next week we'll discuss the anatomy of a confession and some techniques detectives can use during an interrogation to obtain a confession.

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