False Confession - Case Study
By Don Murray, Esq.
(For purposes of client confidentiality, all identifying information, including names, and locations more specific than Westchester County, New York State are changed.)
When John Smith first contacted me about his case, I must confess that I was extremely skeptical about our chances of success. During our initial conversations, we reviewed the current progress of his case. Mr. Smith was being charged with felony larceny of nearly $60,000 worth of lottery tickets from the grocery store where he was a manager over a number of months in 2003 and 2004 in Westchester County. There appeared to be claims by the Government that they had a substantial amount of documentary evidence supporting their accusations against Mr. Smith, as well as claims of video tape, and claims of surveillance photographs.
In addition, of course, there was the written statement signed by Mr. Smith, confessing to taking lottery tickets.
Mr. Smith stridently claimed to be innocent, the Government claims of evidence and the statement notwithstanding.
Nevertheless, taking the Government claims about the level of documentation at face value (something I would later come to know was unwarranted), and considering a signed, written confession, this did not seem like a particularly promising case for success at the trial.
And I told Mr. Smith exactly what I thought. I did not paint a rosy picture for Mr. Smith. Despite my bluntness, or because in part because of it, Mr. Smith contacted me with the decision that he in fact wanted me to take on his case.
Initial Considerations for False Confession Defense
In the world of criminal defense, the signed confession probably ranks up there as perhaps the ultimate bogeyman, the "monster under the bed" for criminal defense lawyers. The prospect of taking on the "confession bogeyman" involves the same sort of resolve that a child would need to get down on the floor in the middle of the night in the dark and actually check to see whether the rustling noise under the bed was some hideous monster or really just the cat after all.
This fear of the confession comes not because we believe in the truth of all confessions. Far from it. As criminal defense lawyers, we routinely run across confessions that we suspect are false. We are quite familiar with the stunning success of interrogation tactics of the police. We fear the confession bogeyman because we fear that jurors just plain won't believe a defense involving the idea that an innocent person would ever confess falsely.
But as I would come to learn in this case, jurors whose intelligences are not insulted are perhaps more open-minded about this topic than defense lawyers give them credit for.
False Confession Experts
One of the first things I considered to assist me in defeating the confession bogeyman was the possibility of obtaining expert help. As a general rule, I believe that it is good, when possible and relevant, to obtain the help of experts to help the jury understand a defense. In this case, an expert might help us to convince a jury that there really is such a thing as false confessions and that it isn't some sort of lawyer trick.
It so happens that there are two prominent experts on the phenomenon of false confessions who can be engaged to assist in false confession defenses. One of these people, Saul Kassin, by coincidence is a professor at my undergraduate college (Williams College). I remember some of my friends participating as subjects in his psychology experiments.
Engaging an expert of such reputation, however, can be expensive, and there is no guarantee that a judge will ultimately permit such an expert to testify at all. Conferences with Mr. Smith, however, soon revealed that there simply wasn't going to be money in the budget to cover the cost of such an expert.
We were going to have to face the confession bogeyman alone.
Initial Analysis of the so called "Confession"
It would make little sense to attempt a false confession defense unless there were facts to support the notion that the confession were in fact false. In this case, Mr. Smith told a compelling story to me and the sorts of things he claimed were told to him by the police rang true and consistent with the sorts of claims that I had heard before, but that Mr. Smith could not have heard before. His compelling story combined with my own assessment of his background and inexperience led me to believe that his claim of false confession was worth pursuing. Further it seemed downright convincing to me.
Nothing in the statement itself necessarily jumped out as very different from any other statement generated by police interrogation. Later on, the Detective and the loss prevention supervisor would make certain unusual claims about how the statement was prepared that would require a careful second look at this statement. But for the time being, the statement itself did not seem to provide much in the way of help for us.
Mr. Smith told me that he sincerely regretted signing the statement, but that he only did so because the Detective had told him that if he agreed to sign the statement and pay money back that he would be allowed to go free and that he might be allowed to keep his job. Mr. Smith made sure that I understood that he was accused of these thefts starting at about 6:30 AM and that he maintained his innocence all day long. In the face of accusations, in the face of supposed documentary evidence, and even in the face of actually being arrested for the first time in his life, Mr. Smith maintained his innocence. He was tired, he was hungry, he was scared, and he desperately wanted to believe that there was some way for him to "make it stop".
I made sure that Mr. Smith understood what he was saying. He was saying that he actually believed that by confessing a crime to a police officer whose job it is to arrest people for committing crimes, that he would then be rewarded with release from custody. When I put it like that Mr. Smith would simply repeat that it sounds crazy when I put it like that, but when you are sitting there handcuffed in the police station it doesn't sound so crazy.
And then there is the REST of the case...
Of course all this talk about the statement may tend to suggest that the rest of the case was a piece of cake. Far from it. According to the prosecutors on the case, there was considerable documentary evidence to support the theory that Mr. Smith was the person responsible for the thefts. This was a mantra that the Government would repeat to me frequently over the course of the case. Ultimately, however, the proof that the Government actually brought to the table when we finally tried the case, was far less than what we were always led to believe was going to be there.
But I could not have known that in the beginning. In the beginning, I expected that as the case progressed and we approached trial, that I would eventually come into possession of some documents or pictures or video or something that would at least help me understand WHY they believed my client was responsible.
Therefore my initial impression of the case was that the Government was holding some sort of devastating evidence that would appear to link my client directly to the thefts of the lottery tickets AND that I had to contend with the criminal defense lawyer's ultimate bogeyman - the signed "confession".
Now as a criminal defense lawyer, I am used to starting off in a difficult place. As I often tell my clients, they don't call it "criminal offense". But despite my open-mindedness to the false confession issue, having to deal with the Government's claims of overwhelming evidence AND a false confession had me more than a little worried. As I told the jury during jury selection, I had a lot less gray hair at the beginning of this case.
The fact that the case made it to the pretrial hearings phase was something that perplexed and frustrated the Government prosecutors. As the case continued through the process, and as Mr. Smith refused plea bargain offers from the Government that a guilty person would have danced for joy to have received, it became apparent that the case was not going to go away.
We were actually going to have to conduct pretrial hearings.
In some of the smaller local courts in New York State, having to conduct pretrial hearings is something of a big deal. A court reporter must be ordered to take down the transcript. It is a big production. So it was in this small local court.
In our case, we were entitled to a version of a pretrial hearing called a "Huntley" hearing. Essentially, a "Huntley" hearing is an opportunity for the Government to justify to a judge the manner in which a statement was obtained. At this hearing, the judge makes a determination of whether the principles of the famous United States Supreme Court case Miranda v. Arizonawere adhered to, and whether the statement is legally voluntary. Importantly, under New York State law, even if a judge decides against a defendant at a Huntley hearing, the defense is STILL allowed to make the same arguments to a jury.
In most cases, and this was no exception, the defense does not expect to win pretrial hearings. Winning pretrial hearings, especially Huntley hearings, is an extraordinarily rare event. The reason for this is really a combination of things and beyond the scope of this article, but suffice it to say that we weren't expecting to win the hearing.
The primary benefit of pretrial hearings in New York State is that it is at pretrial hearings where you begin to get a glimpse of the Government's case against your client. It is at pretrial hearings where the Government in New York is first required to provide the defense with access to most of the critical police reports and other documents in the case.
With respect to the critical police reports, the locality of this case engages in the practice of "almost" providing the defense lawyer access. All the relevant reports are handed to the defense counsel at the beginning of the hearing, the defense lawyer is allowed to read them, the defense lawyer is allowed to take notes on them, and the defense lawyer is allowed to use them at the hearing. But...the defense lawyer must hand them back to the prosecutor at the conclusion of the hearing. Discovery in criminal cases in New York state is particularly backward.
And while there certainly were quite a few reports, and while they were certainly full of references to all sorts of supposedly damaging evidence against Mr. Smith, I still had yet to see anything concrete that really and truly tied Mr. Smith to whatever losses the store had endured.
At this point not knowing precisely what the witnesses were going to say, I had a few basic goals in mind for the conduct of the hearing.
First, I wanted to be able to establish and emphasize the length of time that it took before Mr. Smith signed the confession. I knew what time the confession was signed and knew what time it was that the loss prevention people first arrived at the store that day. I had about 11 hours to work with there, and hoped to break the day down into as many discrete bits as possible, at the conclusion of which I could ask something like, "...and he didn't confess to you then, did he?"
Second, I wanted to be able to establish that they did not find any stolen lottery tickets in his possession when they surprised him at the store. There was some indication in the police reports that they believed that $189 worth of lottery tickets had been run the very morning they surprised Mr. Smith and that he was one of only 3 people in the store at the time. But it did not appear that they had recovered these tickets, which would seem peculiar if he ran them that morning and wasn't expecting to be accused of anything.
Third, I wanted to challenge the police officer to explain what it was that he did or said that convinced Mr. Smith to make the statement. This is a tricky thing in the mind of the police officer on the stand. He thinks he has to be very careful here, when in fact the law actually probably permits him to do and say a heck of a lot more than he wants to admit.
The interrogator will often seek to portray the giving of a statement as something initiated completely and utterly by the accused. He will seek to limit his role in order to portray the defendant as someone so convinced of his own guilt that he essentially couldn't wait to confess. Therefore, the confession came about not as a result of the interrogator employing the tactics learned over a 20 year career, but simply as a result of the guilty conscience of the suspect.
At the hearing, I wanted to find out whether the Detective would be so entrenched in this sort of idea that he would try to apply it to this case. If so, the 11 hours of denials by Mr. Smith would be inconsistent with the Detective doing nothing in particular in order to generate a confession.
One of the interesting things about pretrial hearings is that you never quite know where they are going to take your case. Cases that you think are great going in can turn out to be dead bang losers at the end. Likewise cases that you think are dead bang losers can turn out to be possible winners after the hearing. At the conclusion of the pretrial hearings in this case, a combination of the evidence and the arrogance of the witnesses led me to believe that there might yet be some small measure of hope for Mr. Smith.
The first person who testified at the hearing was the loss prevention supervisor who had personally handled the investigation against Mr. Smith. This witness seemed pleasant enough and professional at first, and came to the court with an impressive background in loss prevention. She came across as extremely thorough and businesslike.
But she had an edge.
Through the professionalism and through the smile she clearly had some sort of ax to grind. She believed herself to be an extremely clever witness. On cross-examination, she loved to answer questions in long run on responses designed to hurt me and my client. I think she must have learned this technique at some sort of class. I can almost hear the instruction, "Don't let the attorney control the questioning. Keep talking until you make whatever point you feel like or until the judge stops you." At a pretrial hearing, I love it when witnesses do this for two reasons. First, the more they talk, the more I find out without real penalty. There is no jury to hear all her irrelevant nonsense. Second, it lets me know that the witness is likely to attempt this at trial as well and if handled properly it will only hurt her credibility.
One of the most intriguing things we learned from her testimony was that they were going to claim that the statement was created in some sort of strange "question and answer" format. She testified that she was present at the statement because Mr. Smith had requested her presence there (something that is patently absurd).
From the beginning this boggled my mind. Having previously read the statement, it never crossed my mind that the statement was anything more than a summary by the police officer of what he wanted Mr. Smith to admit to. This would have been completely ordinary.
Instead the loss prevention manager testified that the statement was created in the following manner. First the Detective asked a question. Next, Mr. Smith answered the question. Finally, the Detective wrote down Mr. Smith's answer and ONLY Mr. Smith's answer. The result, according to this witness was the written statement. And the witness insisted that the words written in the statement were exactly what Mr. Smith said.
Take a moment to have another look at the statement. Does that read to you like the answers that someone might make to a series of questions? It didn't seem like that to me. Just look at how the statement begins: "I (John Smith) admit..." Who answers questions like that?
When pressed at the hearing, the loss prevention manager only begrudgingly conceded that Mr. Smith did NOT in fact speak the words, "I John Smith admit..."
Mr. Smith of course insisted that the statement was simply prepared by the Detective without any input from him whatsoever. In fact, Mr. Smith indicated that the Detective actually asked the loss prevention manager questions as to details of the losses in order to write them into the statement. This process makes far more sense, and frankly, as long as the suspect truly is confessing there is nothing wrong with it. It occurred to me that they are insisting on this because, in the same way that they want to act like they had no input in the decision to make a confession, they want to act like what he signed were all his exact words.
Upon more careful review of the statement, there are other locations where the "question and answer" format is called into question. For example, later in the statement, Mr. Smith supposedly answers a question by beginning, "Today, May 18, 2004 at about 6:15 am...". Who talks like that? And what question in normal conversation would call for such an answer?
Whenever I discussed this issue, either with the judge or in argument to the jury, the prosecutor response would be to argue that the statement was simply a "sum and substance" statement. This would have been all well and good, except it doesn't answer the question of why they insisted that it was some sort of a transcript in the first place. Now that their first position has been shown to be false, they just wanted to move on to the next argument without even apologizing for taking the first position.
But the real jewel in the hearing testimony of the loss prevention manager came in something that came out in some of her long winded "clever" answers. And it involved the way she was going to explain why she never found those $189 worth of lottery tickets. At the start of the hearing, I thought I had it pretty solid that I was going to be able to get a concession that my client did not have those tickets on him when he was first confronted in the store. But the loss prevention manager had her own way around this dilemma. She testified that 1) she never searched Mr. Smith and that 2) she permitted Mr. Smith to leave her sight and continue to manage the store while she and her assistant fluttered around the store continuing to look for evidence against Mr. Smith.
At the hearing, I left this testimony utterly alone and passed no comment on it. But at trial it was going to be the centerpiece of cross examination of this witness.
The next, and final witness for the prosecutor at the the hearing was the Detective.
The Detective offered some additional jewels for use at trial. One particularly interesting tidbit came out when I asked the Detective whether or not he recorded his interrogation of Mr. Smith. Rather than simply saying, "No" the Detective added that the police department for which he worked (in a wealthy area in New York State) did not OWN a tape recording device. I found this particularly astonishing, since a tape recorder seems like the sort of thing that an agency charged with the task of investigating things could probably find good use for on a regular basis. Furthermore, tape recorders are cheap, reliable, and readily available.
When I questioned the Detective at trial in front of the jury about the fact that at the time in 2004, the police department did not own a tape recorder, he aggressively added, "...and we STILL don't" to his answer. He just didn't get it. Seven years into the 21st Century, this wealthy, well funded police department doesn't own a $20 tape recorder. The Detective just never seemed to get how preposterous this is. I can only assume that his aggressive pride in not using simple, reliable investigatory tools made him seem foolish to the jury.
Although the Detective did not admit that he told Mr. Smith that he could go free if he agreed to pay money "back" and signed the statement or that he might have his job back if he signed the statement, he did concede a couple of things that in my mind challenged his credibility as a witness altogether.
For example, as I suspected, the Detective clung to the usual way interrogations are portrayed and tried to eliminate himself from really having anything to do with the process. To believe the Detective, he was simply little more than a bureaucrat filling out forms and it was Mr. Smith who came forward to say that he wanted to make a statement.
And if Mr. Smith had signed the statement half an hour after he was first challenged, the Detective's story might have sounded true. But it was 11 hours from the time Mr. Smith was first confronted until the time he signed the statement. So the obvious question is, "What changed?, What was different after 11 hours that didn't happen before?"
The Detective at the hearing was unprepared to deal with this questioning and so fell back on the old theory that he wasn't really part of the process. So his exact answer to the question of "what changed" was "Nothing." He denied saying or doing anything different in order to convince Mr. Smith to change the course he had been following for 11 hours. This was preposterous. The same arguments made by the Detective to convince Mr. Smith to confess that Mr. Smith found unconvincing he suddenly found convincing?
Furthermore, in a run-on response to the prosecutor's direct examination, the Detective testified that he did tell Mr. Smith that it was in his "best interests" to cooperate.
On cross-examination the Detective confirmed that by "cooperate" he meant confess to a crime. The Detective therefore was now committed to having advised Mr. Smith that it was in his best interests to confess to committing a crime.
This presented a rare and wonderful opportunity for cross examination -- the moment when you can ask a question that appears open ended but really and truly has no good answer.
"How was it in Mr. Smith's best interests to confess to committing a crime to you?"
And there was no answer. A bunch of nonsense came out of the Detective's mouth, but there was no answer. There isn't an answer because of course it is exactly the opposite of his best interests to confess to committing a crime to a police officer.
The Detective was stuck because in order to answer that question, he would have to admit that he was offering something to Mr. Smith in exchange. In other words, "It is in your best interests to confess because if you do ......" The Detective did not want to admit that there was an "if you do" section of his conversation. He just wanted to be able to say that he told him it was in his best interests to cooperate because that sounds like something that a Detective should say.
In his haste to respond to this, the Detective made quick reference to the possibility that the store that Mr. Smith worked for "might look at things differently" if he confessed. Although the Detective refused to admit that he actually gave voice to this belief to Mr. Smith, the fact that he said it at all suggested that he might well have said it after all.
And so we had the kernels for a couple of what I imagined to be productive lines of questioning for the Detective at trial.
Jury Selection - The Key to Success in this Case
I sincerely believe that the key to be able to be successful in this case was in jury selection. Taking a case to trial in which your client has signed a fairly detailed written confession seemed to me to be an extremely dire do or die situation. It was my belief that the jurors in this affluent community in Westchester would come to court extremely skeptical of claims of a "false confession". Therefore, my approach to jury selection in this case was going to be to confront the false confession head on as bluntly as possible almost to the exclusion of all other issues. My thinking was that if I didn't have a group of jurors who were prepared to believe at least in the possibility that an innocent person would sign a confession, that I couldn't win anyway.
I was determined to be as honest and up front with the jurors about this as possible, and to avoid the sort of juror-cross-examination that most lawyers do during jury selection. I needed to know what these jurors were going to think about false confessions.
And so the first thing I said to the first juror was that I was really worried about something in this case, and I even joked about how I had a lot less gray hair when the case began. And then I told them straight out that Mr. Smith signed a written confession. And I asked the first juror how that made him feel about the case.
Not being used to actually being asked an open ended question, he was a bit stunned at first, so I helped him out a little. I essentially challenged him to give me one good reason why an innocent person might sign a written confession.
And then it happened. His answer, which I will never forget, set the tone for one of the most incredible jury selections I ever experienced as a trial lawyer.
He said, "I can think of lots." And so began a conversation with the jurors in which they all became engaged in a conversation about various reasons an innocent person might sign a confession. It was beautiful. It was wonderful. And it was all the jurors' thoughts. Not mine. I wasn't lecturing them.
Toward the end I asked them each to rate their feelings about a statement I had prepared from 0 to 7 with 7 meaning "I strongly agree" and 0 meaning "absolute disagreement". The statement I read was essentially my break point issue in the case.
It was, "I think an innocent person can be convinced to confess to a crime by an experienced interrogator." Before jury selection, I was expecting to be hit with a number of 0's and maybe the highest of 3.
After our "rap session" however, I got one 2 and all the rest 4 or above, including one 7. It was glorious. My approach was to be as frank and up front about the problems with my case as I could be, and I believe the jurors appreciated this.
In the end, the juror who initially told me that he could imagine lots of reasons an innocent person might sign a written confession wound up as the foreperson of the jury. I loved my jury. These were not people who were committed to anything in particular, but I felt like I at least had a chance to be successful.
I used the opening to essentially flesh out the break point issue I used in jury selection. I provided the background story about the innocent person (my client), and the 11 hour struggle between him and experienced interrogators that led him to sign a written statement confessing to a crime he did not commit.
The Loss Prevention Witness
As I anticipated from her style as a witness at the pretrial hearing, the loss prevention witness did everything in her power to use her place as a witness to try to say whatever she wanted. In my view this ended up hurting her. My approach to her was not to engage her in any sort of bickering. I would let her respond to a simple question by going on and on and on. She seemed to be implementing some sort of training in this sort of run on response, but my approach was simply to let her go.
As she rambled I would wander around the courtroom, look up at the ceiling, and toward the end, I would simply sit down and review my notes while she continued droning on. Typically I would then be in a position to stand up and say something to the effect of, "And so your answer to my question is, "No." to which she would respond, "Yes."
As far as the meat of her testimony, this was the witness who would have been in a position to provide all of the supposedly devastating documentary evidence against my client, and yet it never came. Despite all of the claims over the life of the case, it just never came.
In the end, she was only able to establish that the store suffered shortages in the lottery proceeds on numerous days and that on the handful of days worth of evidence (out of about a year's worth of supposed losses), it was shown that my client was on duty. She also introduced surveillance pictures, that showed my client standing next to the lottery machine, during business hours, on a few days in question in which there were shortages.
In fact, the evidence as to the losses and the supposed connection between the losses and my client was so thin that I chose not to cross examine her about any of it.
Instead my focus continued to be on attacking the statement and on calling into question her claim that she did not search Mr. Smith and that she permitted him to leave her sight even though she believed he had run some lottery tickets just before she confronted him.
Her part in the statement was supposedly that Mr. Smith requested her presence before he would make the statement. This was patently absurd, unless it were also true that the Detective was trying to convince Mr. Smith that confession might lead to his job back. The story was easy to say -- "Mr. Smith requested her presence." Fortunately for Mr. Smith, however, this story just doesn't stand up to close scrutiny. It just makes no sense for Mr. Smith to request the presence of the loss prevention manager. This was someone he had no relationship with except that the first time he met her she accused him of stealing more than $50,000 and then called the police and had him arrested and fired. Not exactly the basis for a loving relationship. Not exactly the first person you would expect Mr. Smith to call for -- unless he was told that she might give him his job back.
On cross examination, the loss prevention manager could offer no explanation for the reason for her presence there.
The loss prevention manager looked the most foolish, however, when it came to answering questions about her supposed failure to search Mr. Smith when she and her companion first confronted him after they supposedly saw him run lottery tickets without paying for them.
On cross examination, she conceded that of course she suspected that he had just run the tickets. She also conceded that the most obvious place for him to have had them would have been in his pocket or wallet since her appearance there and confrontation was a surprise.
This boxed her into the position of having to concede that she affirmatively chose not to look in the most obvious place in the world for what would have amounted to the smoking gun. Not only did she have to concede this, but in her hearing testimony she had rambled on about how extensively they had searched the store for the lottery tickets without success, even mentioning that she had her companion searching garbage cans. Therefore, I was able to ask her about how she had her companion looking through garbage cans for two hours but never bothered even to ask for permission to look in the most obvious place in the world. She had no choice but to concede this, and in my mind anyway, looked pretty silly.
To top this off, in order to explain why Mr. Smith didn't have the tickets in his possession when he was arrested, she testified that she permitted Mr. Smith to continue to manage the store while she continued her investigation. Once again, if you don't think very carefully about this, it sounds like it almost makes sense.
But if you think about it, she is permitting a person she believed to be a thief and liar continue to run the store for two hours. If you think someone has cheated your store out of $50,000 and lied to you about it you wouldn't let that person so much as mop the floor, let alone continue to manage the store. I concluded this section of my cross examination with a question something to the effect of, "It was your business philosophy that a manager who is a thief and a liar is better than no manager at all" -- to which she responded, "Yes."
The Detective was never going to admit that he promised Mr. Smith that he would let him go if he would simply sign the confession and agree to pay money for the tickets.
But the Detective did admit to saying some things that didn't make a lot of sense.
Prime among those was his advice to Mr. Smith that it was in his best interest to confess. This was something that was objectively untrue. Therefore, my very first question to the Detective was whether or not he ever lied to Mr. Smith, even once about anything at all, during all the time he spent with him that day.
The Detective predictably said, "No" but took a nice long time considering his answer. But this led to the topic of telling Mr. Smith that it was in his best interest to confess.
And when we got to that topic, we explored it more deeply than at the pretrial hearing, because here it mattered.
One of the things we did was to examine Mr. Smith's other choices besides confessing to the Detective who was investigating his case. This was great fun because it was an opportunity to take the good old Miranda warnings that he bragged about reading to Mr. Smith (they even put his Miranda card into evidence) and feed them to him one by one.
Mr. Smith's choices were right there in the Miranda warnings and the Detective and I reviewed each one and he was forced to agree that the essence of his advice to Mr. Smith was that confessing a crime to a Detective was a better idea.
The questioning went something like this, "You told Mr. Smith that he had the right to remain silent." "Yes" "That was one of his choices." "Yes." "But you told him that the best thing he could do, his BEST move, was to give up that right and confess a crime to you." "Yes."
And so on.
I was also able to confront the Detective with his reference to the possibility that the store might "look at it differently" if he confessed.
Mr. Smith's Testimony
An important part of this case, I think was Mr. Smith himself. I think it was going to be next to impossible to be successful in a false confession case unless the defendant himself took the stand to explain it. Mr. Smith, luckily, was able to explain himself in a simple, straightforward, believable way. He was certainly not a polished witness, and I intentionally made sure not to over prepare him. I wanted the jury to experience him as he may have appeared when he was being interrogated.
The jury acquitted Mr. Smith. He has returned to college and has a bright future ahead of him.