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Coerced & False Confessions

To confess to a crime means to make a voluntary statement, with full knowledge of the facts, that tends to incriminate the person who makes the statment.

Some statements made by defendants might tend to incriminate the defendant only when other evidence is considered alongside the confession; these types of statements are known as admissions. For purposes of criminal law and procedure both confessions and admissions are essentially treated equally in court.

This article is dedicated to the topic of coerced and false confessions and how those types of statements might be attacked in court (or may even be inadmissible in court). Sometimes a confession is not coerced but is otherwise inadmissible in court because of a technical violation by the police or the public, such as confessions that are taken after an illegal detention or search, confessions that are illegally recorded by the public, confessions that are made after a delay in arraignment, written confessions that are unsigned, confessions taken without Miranda warnings given (or without waiver), and confessions taken in violation of the defendant's right to have an attorney present during any questioning after the defendant requested an attorney (6th Amendment violations). In other words, there are many reasons why a confession may not be admissible as evidence in court against the defendant; this article is dedicated to attacking the confession as being inadmissible on non-technical grounds, or at least making the alleged confession subject to impeachment (discrediting).

First of all, many statements that are described as confessions may be made inadmissible (unusable at court) or impeached (discredited in court) so as to completely negate or minimize the negative impact of the statement on a suspect's criminal liability.

Confessions may be inadmissible or discredited because the confession is the product of involuntariness, coercion by police or witnesses, false information, illegal conduct of the police or other witness, and more.

The word confession is usually used by police and district attorneys during the prosecution of a defendant. Some criminal defense attorneys adopt this language as well. The problem is that by using the word confession in a criminal proceeding the defendant is already being judged as having voluntarily given a statement and of knowing all of the facts to which he or she is incriminating himself or herself. 

The reality is that a statement might be a confession but before we label a statement as being a confession the other elements must be present: voluntariness and full knowledge of the facts surrounding the statement.

The days of police using physical force or direct threats of physical harm against a suspect until the suspect makes an incriminating statement are thankfully long gone. The classic image of a "phone book beating" confession is clearly involuntary. When proved, involuntary confession are invalid and any evidence of the confessed statement, or evidence that derived from the involuntary statement is inadmissible.

Today, police officers tend to coerce suspects into making statements (without the use of physical force or threat of physical harm). The coercion is not always intentional by the police officers. In any event, if the coersion overcomes the suspects will or impacts the voluntariness of a statement, the statement is either inadmissible or, in many instances, severely impeached (discredited) in front a jury or judge, so as to minimize the negative impact of the incriminating statement.

A false confession occurs when a person makes an incriminating statement against himself or herself even though he or she did not commit a crime. The reasons that people falsely confess are varied but can include:

  1. suspects bragging about criminal activity to promote their gang status (usually to an undercover police officer or jail informant), even though the statement is in fact false,
  2. suspects with mental disabilities that confess to crimes that they either did not commit but believe they did or can not understand the interrogation process and simply agree with interrogating officers,
  3. suspects that are agreeing to a set of facts to a non-officer in an effort to avoid possible reporting to the police by that same non-officer (an alleged victim informing the suspect that he or she needs to admit wrongdoing or the alleged victim will call the police),
  4. a suspect who makes a statement to comfort an alleged victim (usually a family member),
  5. and suspects that make untrue incriminating statements to protect other third persons who might have actually committed a crime (either by threat to confess or out of concern for the third person. i.e. family or close friends.

An unwitting confession occurs where the defendant makes incriminating statements without knowing all of the facts to which he or she is incriminating.  

Examples of common coerced, false, illegal, or unwitting statements that are described as confessions by law enforcement and might be inadmissible, or at least impeached (discredited), include:

  1. statements made by suspects after police officers make promises of leniency with a judge only if the suspect confesses.
  2. Language barriers (where defendant doesn't understand what he or she is confessing to due to a lack of familiarity with the English language or where there is as bad translation from English to the defendant's language).
  3. Pretext phone calls, texts, or emails, to a suspect (usually in sex cases) where the defendant is called, text, or emailed from the alleged victim, or person close to the alleged victim, and the suspect is thereafter coerced by that person to confess to a crime. The coercion is usually by threatening to file a police report if the defendant does not make an incriminating statement (usually made to apologize to the alleged victim). The apology does not mean that the defendant necessarily committed a crime; the defendant could simply be trying to avoid a huge embarrassment and harrassment by the alleged victim or police.
  4. incriminating statements made by suspects by way of confusing questions, leading questions, compound questions, or suggestive questions to suspects. This is one of the most common problems with untrained officers who are goal oriented in producing incriminating statments...they simply ask poor questions that are the product of leading or improper questions.
  5. threats by police officers during interrogation that if the suspect does not make incriminating statement than the suspect will lose his or her immigration status (or be turned in to the Department of Homeland Security).
  6. physical violence towards the suspect until the suspect makes incriminating statements (very rare modernly).
  7. incriminating statements made by people who are under the influence of drugs or alcohol at the time of making the incriminating statement.
  8. incriminating statements made by people with mental disabilities and can not understand the interrogation or who are more easily coerced.
  9. incriminating statements that are recorded without a warrant or court order (usually in domestic violence cases where the alleged victim is secretly recording, without permission, the statements of the defendant).
  10. incriminating statements that are the product of "puffing" by a gang member who is falsely confessing to build street credibility (usually made to an undercover informant or officer posing as a gang member in jail).
  11. incriminating and false statements made to officers for notoriety or fame (usually made by defendant with some level of mental defect or diminished capacity).
  12. incriminating statements made to an alleged victim of a crime to show sympathy to the alleged victim and for psychological recovery of the victim (usually in sex crimes).
  13. incriminating statements made to law enforcement so as to deflect suspicion from another suspect (usually a a parent or friend confessing to false facts to protect a child or friend). For example, a DUI driver might switch seats with his passenger (with permission of the passenger) because the actual DUI driver is on probation for an earlier crime and will suffer harsher consequences for a subsequent criminal conviction.
  14. incriminating statements made to police officers about some of the known facts but not all of the facts. For example, a suspect who confesses to a lewd act on a child only to learn later that the child is alleging more lewd acts than previously alleged. This is a fill-in-the-blank confession and typically happens in sex crimes.
  15. Lost evidence of confession: in some cases, especially in DUI, bribery, and prostitution cases, the recorded evidence of a confession is lost or destroyed by the investigating officers and therefore inadmissible (even the officers memory of the confession is inadmissible if the actual recording is lost or destroyed). This is an uncommon occurence and usually happens in sting operations where multiple defendants are arrested in short order. The author of this article has experienced this unusual event in more than a dozen criminal cases for DUI, bribery, and prostitution.

In sum, criminal defense attorneys will rarely use the word confession in a criminal case because a true confession is more rare than commonly believed. Typically, psychologist are used to show juries and judges how any statement made by a defendant or suspect is the product of at least some level of coercion, false memory, bragging, unwittingness, and more.

If you or a loved one is charged with a crime in California and the prosecutor is alleging that the defendant confessed and therefore the case is "open and closed," contact criminal defense attorney Christopher Dorado today.

Criminal defense attorney has successfully defended cases where confessions were alleged to have been made by the defendant. Even where the "confession" is played in court in front a jury attorney Dorado has been successful in obtaining favorable outcomes for his clients (by discrediting the alleged confession).

Our criminal defense attorneys dedicate 100% of their law practice to criminal defense and our consultations are provided at no cost to the accused. Our criminal defense attorney are available 24/7 to answer all of your criminal defense and criminal procedure questions.

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