False confessions are a problem. And they happen far more frequently that one might expect. Firstly, there is a general belief among the public that a person would never confess to a crime that he did not commit. For this reason, jurors place great weight in a confession to a crime. Police know this. Thus, a confession is a short-cut to a conviction for the police. This is why detectives put a monumental effort into police interrogation. In the case of serious criminal charges, it is not unusual for a suspect to be subjected to police interrogation for fifteen to twenty hours over the course of several days. The well-documented unwillingness of judges to suppress confessions on the grounds that the police used unfairly coercive tactics has led to ever-increasing police pressure during interrogation. The Wisconsin Innocence Project has published statistics showing that in fully 25% of the cases where DNA evidence exonerated the defendant, there was a false confession in whole or in part. Bear in mind, in those cases, juries accepted the confession, and found the defendant guilty. The true number of false confessions is probably significantly greater than 25%. Some defendants who falsely confess are acquitted. Many defendants who falsely confess are never exonerated by DNA evidence. Getting it wrong at least 25% of the time is wholly unacceptable. But, nonetheless, the judges we elect are disinclined to create any real disincentives for the police to extract false confessions. It was only a little over five years ago that the Wisconsin legislature first created a law demanded that all in-custody police interrogation in felony cases be audio recorded. This was prompted by an increasing concern that defendants were being convicted based upon false confessions.
So, if you say that the police coerced your confession, I believe you.
The question is: What do we do now?
File a motion suppress the statement on the grounds that it was involuntary. As mentioned above, judges so rarely suppress a confession on the grounds that it was coerced that the numbers are not statistically significant. One would not deviate far from the truth to claim that judges never suppress a confession on the grounds that it was involuntary. This does not mean, though, that filing a motion to suppress the statement is futile. To the contrary, challeninging the admissibility of a confession requires the court to conduct an evidentiary hearing into the circumstances surrounding the police interrogation. This, of course, means that the detectives who interrogated the defendant must appear in court and testify about those circumstances. Naturally, the version told by the police will be that the confession was not only voluntary, the suspected demanded to speak to the police, and he seemed happy to get the matter off of his chest. Nonetheless, at trial, the defendant's theory of defense must be that the confession was false and involuntary. It is far better, then, to know ahead of time what the detectives are going to say about the circumstances of the confession. This will give the defense an opportunity to prepare.
Obtain as much information about the defendant's educational and mental health history as is possible. Although juries are skeptical about a defendant's claim that he was coerced into confessing, they are more receptive to the idea that the defendant was vulnerable, and that he did not understand the process. Perhaps the best example of this is a case I defended in which the defendant confessed to being involved in a drive-by shooting homicide. He confessed in great detail. It turns out, though, that all of the so-called detail was all provided by the police detective. I discovered that the defendant had an IQ of 52, and he could not read. Interestingly, in that case, we were also able to discover that this police detective obtained a confession to the same homicide from another suspect, in almost the same exact same words of my client's so-called confession. It is not at all unusual for persons who confess to serious crimes to have significant learning deficits or mental health issues. The jury needs to know this information.
Hire an expert witness. One indicator of the scope of the false confession problem is the number of pyschologists across the country who are conducting hard research into the reasons for false confessions. Prof. Lawrence White of Beloit College is one of the leading experts in this area, and he regularly testifies in criminal cases thoughout southeastern Wisconsin. The purpose of expert testimony is to overcome the juries natural disinclination to believe that an innocent person confessed to a homicide. An expert witness is able to explain all of the various reasons that innocent person do confess (ignorance of the law, fear, mental impairment, etc.) Once the jury is open to the suggestion that-- despite the confession-- the defendant might be innocent, they are far more inclined to carefully scrutinize the other evidence in the case.
Dissect the confession. Where there is a confession, the jury tends not to carefully scrutinize the remaining evidence. The purpose of the expert witness is to soften the jury up to the possibility of a false confession, but then it is the lawyer's responsibility to prove it (although the defendant has no legal burden of proof, it is an unforgivable mistake for the lawyer to simply argue the beyond a reasonable doubt standard on the confession). You need to go though the statement, word by word, and ask the difficult questions: (1) Could the defendant have known this fact? (2) Did the police know of this fact at the time of the police interrogation? (3) Is this fact consistent with the other evidence in the case? Then be prepared to convey the answers to these questions to the jury in a simple and understandable manner.
It is a bad idea to confess to a crime that you did not commit; especially if it is a serious crime such as homicide. However, it does happen. If this has happened to you, then your only hope is to be represented by an experienced criminal defense lawyer.
Milwaukee criminal defense attorney Jeffrey W. Jensen, of the Law Offices of Jeffrey W. Jensen, a Milwaukee law firm with offices located at 735 W. Wisconsin Avenue, Twelfth Floor, Milwaukee, Wisconsin, has represented persons throughout the State of Wisconsin. If you will face felony charges in either state court or in federal court you should call 414.224.9484. Attorney Jensen regularly appears in Milwaukee County (Milwaukee criminal defense lawyer), Waukesha County (Waukesha criminal defense lawyer, Brookfield criminal defense lawyer), Washington County (West Bend and Germantown criminal defense lawyer), Racine County (Racine criminal defense lawyer), Kenosha County (Kenosha criminal defense lawyer), Brown County (Green Bay criminal defense lawyer), Fond du Lac County (Fond du Lac criminal defense lawyer), and Winnebago County (Oshkosh criminal defense lawyer)
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