cedar rapids / iowa city criminal defense

1450 Boyson Road Suite C-2A Hiawatha, Iowa 52233     319-389-1889

"Alessandro Magnasco - Interrogations in Jail - WGA13849" by Alessandro Magnasco - 1. Web Gallery of Art:   Image  Info about artwork2. eguarwr.narod.ru. Licensed under Public domain via Wikimedia Commons - http://commons.wikimedia.org/wiki/File:Alessandro_Magnasco_-_Interrogations_in_Jail_-_WGA13849.jpg#mediaviewer/File:Alessandro_Magnasco_-_Interrogations_in_Jail_-_WGA13849.jpg​

Why confessions should be inadmissible

By David Cmelik


Suspects' confessions fall under an exception to the hearsay rule for admissions by a party’s own statement or a statement in which the defendant has manifested a belief in its truth. Iowa R. Evid. 5.801(2)(A-B). 
​Confessions have long been the object and the expertise of police interrogators. But there are several reasons confessions should no longer be admissible to prove guilt in Iowa and beyond.
More Hurt than Help: False confessions are a real, not imagined, problem. Prosecutors will often roll their eyes when a defense attorney suggests that a confession may be false in a suggestible defendant. It is as if we’re having a conversation about the existence of free will and the efficacy of the criminal justice system. To question such an integral part of a criminal prosecution is anathema to prosecution itself. However, the ugly truth is that a suggestible defendant is someone who can be easily convinced to say or do nearly anything. There is even a psychological scale to determine how much an interrogation target yields to pressure as well as how much they shift in their answers; it’s called the Gudjonsson suggestibility scale.  False confessions accompany findings of guilt in many erroneous verdicts later overturned by heretofore unavailable, exculpatory DNA evidence. Drs. Steven A. Drizin and Richard A. Leo analyzed 165 cases of wrongful conviction and found that false confessions “featured prominently” in wrongful convictions. Drs. Steven A. Drizin and Richard A. Leo. The Problem of False Confessions in the Post-DNA World 82 N.C. Law Rev. 894 (2004) (available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1134094##) (last visited June 22, 2014). As a result, it is reasonable to suggest that even more wrongful convictions deriving from false confessions exist in cases where there is no exonerating DNA evidence. This is a miscarriage of justice that is difficult to accept in a criminal justice system that is touted as the best in the world. Fifth Amendment End Run: The constitutional prohibition on self-incrimination is rendered meaningless by extrajudicial interrogation and extraction of pretrial confessions Enshrined in the Fifth Amendment to the U.S. Constitution is the prohibition on self-incrimination, in which our forbearers prescribed: “No person shall . . . be compelled in any criminal case to be a witness against himself.” Query how this prescription can be dutifully fulfilled if police interrogators are allowed to extract extrajudicial confessions and then offer them to the fact finder at trial. The counter-point, of course, is that a defendant may invoke the Fifth Amendment at any time—with or without an attorney and prior to the imposition of criminal charges. But this is a hollow, blithe claim. The reason defendants are entitled to counsel is because they don’t know such things before they’re prosecuted. And television has rendered the Miranda warning mere background noise. Do as I say, not as I do: Cops can lie in interrogations  In a 2007 Police Magazine article regarding the use of deception in police work, Devallis Rutledge, a former police officer and veteran prosecutor, wrote “[t]here is no reason to be uneasy when testifying as to the legitimate use of tricks or deception.” Unfortunately, it is a perverse irony that, when a witness or a suspect lies to an officer, it may be considered a criminal act while an officer’s lie to a suspect to extract a confession is considered a “stratagem” or a tool to help build rapport or, alternatively, engage in a narrative sufficient to extract a self-incriminating statement. However, the United States Supreme Court has long held that lying to suspects to extract confessions will not render the confession inadmissible. Frazier v. Cupp, 394 U.S. 731 (1969). Query whether lying during an interrogation contributes to suggestibility and false confessions—to the point where a defendant begins to believe the officer’s manufactured narrative. Communication Break Down: Compliant Confessions Breaking down a suspect is a key aspect of a police interrogation. We need only look at the extreme of public debate regarding interrogation— extraordinary rendition and enhanced interrogation techniques to understand that the fundamental objective to any interrogation is to break the will of the interrogation target and obtain compliance. But at what cost?

Broken suspects have been shown to tell interrogators what they want to hear just to end the interrogation—not because it’s true. Interrogators don’t seem to care as long as they extract a confession. At some point, will is overborne and confessions become unreliable. But at what point is that? Police interrogators push their targets up to and often cross that line. How many such confessions are suppressed?
Even Suppressed Confessions Can Be Used if the Defendant “Opens the Door” or to Impeach the Defendant. A suppressed statement, removed from the jury’s view in the State’s case in chief, might be admitted for other reasons. For example, some courts believe it can be used to impeach the Defendant if he or she testifies inconsistently with his suppressed statement. Morgan G. Graham, The Use of Suppression Hearing Testimony to Impeach, 59 Indiana L. J. 294 (1984).  In this way, a defendant and his attorney may “open the door” to the use of an illegally extracted confession. Conclusion
In the final analysis, extracted confessions are deceptive, unreliable evidence that should be rendered completely inadmissible to give full effect to the prohibition on self-incrimination. However, that is not the law. As the now familiar Miranda warning informs us, everything a suspect says can and will be used against him or her. A blog is not legal advice. Not attorney-client relationship is established by reading a blog or by sending unsolicited information to an attorney over the Internet