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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Gangland

In the two years I have been the juvenile justice prosecutor, it has morphed into something totally different than I first expected.  It doesn't matter whether the juvenile is fourteen or nineteen.  Juvenile crime is becoming gang crime.

According to the FBI, there are over one million gang members in the U.S. committing 80% of the crimes.  I'd agree with this statement.  Over 80% of my cases are gang related.

Most of you reading this will think of gangs as they are portrayed in the movies and television.  The mafia, motorcycle clubs, bloods, and crips spring to mind.  In books and movies, gang members prey on other gang members and band together for protection.

The reality of street gangs that cause 80% of violent crime is far from the glorified life of those movies.  There are national gangs like the bloods or the crips.  Like any national organization this is usually broken down into different subsets depending on the community they live in.  Even unions and bar associations have local chapters.

Most gangs in America are bands of kids who grew up in the same neighborhood and decide to join forces to make money and live the gangster life.  They commit random acts of violence, which is why they are so terrifying.  The crimes are to further the gangs ability to deal drugs, buy drugs, or buy guns and the targets are usually an innocent citizen.  There is no main organization or agenda.  Most of the crimes spring from opportunity.

Need money?  So burglarize a house, rob the woman's purse (this is called "hitting a lick"), or hold up a store.

In my conversations with these kids, it is clear they don't know another life.  Their brothers or fathers ran on the streets and hustled for money.  All their friends do it.  The kids have no way of knowing that once they join the gang they become targets simply for their associations.

There is at least one case a week in my city where a person fires a gun in a house party because he saw a rival gang member there.  The victim is never the intended target, however.

Gangs have a dire effect on the community.  Parents must closely watch their children and instruct them to avoid certain areas or times of night.  Neighbors move out because a well-known gangster moved next door and his house gets shot at every day.  Why go to school if you can make more money running the streets than you can with a bachelor's degree?  Why get a part-time job serving coffee if you can make a week's check in a day?

Parents and schools must also compete with the glorification of gangs in movies, television, and social media.  Just check out these two videos.  (Viewer discretion advised).  Recruiting videos?  Just some innocent bragging?  What about the twitter handles flashing across the rap video?  This is what we are up against.  An army that is constantly recruiting and arming.

So what are the solutions?  How do you control this issue?  It's what we battle against every day.  Schools, parents, law enforcement, and communities must work together to provide opportunities and education about gangs.

We'll talk about some of the ways to prosecute gangs and give you some real-life, but highly edited, case examples in the coming posts.  Stay tuned.

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Happy New Year!

I'm off for a few days to celebrate 2012 with family and friends.  We've declared a three day truce with crime to ring in the new year so I figured this was a good time.

I'll be back next year with plenty of interesting topics - gangs, witness tampering, more on the life of an ADA, criminal vs. civil law, federal vs. state, humorous stories from court, and some interviews with other writers and bloggers and crime fighters.

Feeling nostalgic?  Stick around and check out some of the old posts.  Happy New Year and stay safe.

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