Some potential clients and clients talk to the police and later claim to their counsel definitively that they did not “confess.” But what is a confession, really? Confession is a colloquial phrase that includes the Defendant's incriminating statements.
A confession is any incriminating statement, whether expressed as a denial or as an admission. The jury is the final arbiter of any such voluntary statement if constitutionally obtained. The Miranda warning is NOT required if:
1. Defendant is not in custody
2. No State actor is questioning the Defendant or otherwise attempting to elicit an incriminating statement.
Interrogators often advise interrogation targets that they are going home after the interview and that they are not in custody. This is a signal to judges on the recording that the defendant is free to leave and thus not in custody for purposes of the Miranda warning.
“I didn’t tell them anything,” is a frequent refrain among potential clients and clients. But if an interrogation target spoke with law enforcement at all, there is cause for concern.
If you are considering speaking to the police merely to make a denial, you should reconsider. Law enforcement interrogators leverage the psychology of your desire to explain yourself to obtain incriminating statements. They may drop phrases into their request for a statement like “get your side of the story” or “get a balanced account of what happened.” They might in a friendly way say that they are neutral and are “just investigating what really happened.” However, these are code for interrogation and an interrogation target should resist and decline the invitation to be interrogated.
A denial can be used against a defendant in a court of a law even if a defendant’s silence cannot.
If you’re familiar with Shakespeare or even Shakespeare quotes that have found their way into everyday sayings, you might recognize the quote from Queen Gertrude in Hamlet:
The lady protests too much, methinks.
In poker, this is a “tell.” In Greek literature, this is apophasis, or, literally, “to say no,” a rhetorical device that signals to the reader or hearer that your denials are too emphatic to be believed.
An example of an interrogation gone horribly wrong is when a police officer pretends to be interested in irrelevant facts that speak to a defendant’s lack of culpability in sex abuse case.
Examples of seemingly exonerating facts that appear to speak to innocence but actually prove guilt are for example:
Presence or lack of consent in child sex abuse cases.
A victim’s false assertion of his or her age of majority in a child sex abuse case.
Active or passive participation in a conspiracy, joint criminal conduct, or aiding and abetting a criminal act—seemingly trying to get to the “real people” who “did the crime” if you were just “along for the ride” or “didn’t go in,” for example, a burglarized residence.
Assertion of consent, feigned age of majority, or diminished role will NOT negate the elements of a child sex abuse case or aided and abetted criminal act, respectively.
Interrogators also look to body language in interrogation. Interrogators who are not trained psychiatrists ignore their own confirmatory bias when examining the junk science of body language. Just going to an interrogation and denying everything while presenting body language can help solidify an officer’s position that you are guilty.
Any criminal lawyer worth his or her salt will advise you to decline the invitation to be interrogated and to immediately invoke the right to remain silent and the right to an attorney if cornered—whether it is on your porch, at your kitchen table, or in a locked interrogation room at the stationhouse.
If you or a loved one has been arrested for a criminal offense in Cedar Rapids, Iowa, or other Iowa community, contact David A. Cmelik Law PLC.
However, remember that a blog is not legal advice and that sending unsolicited information to a lawyer over the Internet does not establish an attorney-client relationship.
The Tell both law enforcement interrogators and the jury may have the opportunity to watch an interrogation target's body language during the jury trial if an investigator successfully video records an interrogation. Even if the interrogation target believes he or she is making an outright denial, this could be considered incriminating. An example is when a defendant engages in misconduct that could be construed as either an innocent mistake or active participation in a crime. The denial appears to be a cover up of that questionable conduct thus ruling out an innocent mistake. In this way, a denial is inculpatory. If you or a loved one has been arrested for a crime in Cedar Rapids, Iowa City, Waterloo, or other Iowa community, contact David A. Cmelik Law PLC at 319-389-1889. But remember that a blog is not legal advice and that sending unsolicited information to an attorney over the Internet does not establish an attorney-client relationship.
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