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Insuring Against False Confession

by Stan B. Walters, CSP “The Lie Guy®”

 

In the last couple of years there has been a growing public interest and media documentation of cases of wrongful conviction.  Many of the more sensational cases overturned and receiving high profile media coverage have been those that where resolved using new DNA technology. In some cases however, one of key points upon which the wrongful conviction turned was a false confession by the suspect.
Despite overwhelming evidence, there are still some investigators, prosecutors and members of the general public who believe that there is no such thing as a false
confession and it doesn’t really matter because the subject most likely is guilty of some other undiscovered crime or offense anyway.  Unfortunately there will always be people who will never be convinced of the phenomenon but a more important question for us as investigative interviewers is what are the conditions that could possibly exist that create such confessions and what can we do to prevent such
possible miscarriages of justice?

Although this e-zine, “The Interview Room” goes out to subscribers in at least five countries outside the United States, I feel that the United States Supreme Court
definition of a “confession” could still be used as a reliable standard from which to establish the goals and objectives of our interviews.  At the same time, if you are
a reader whose work is in the private sector, intelligence community, military or even adult and juvenile probation and parole, the objectives still remain the same but translated to your specific needs.  In the case James v. State of Georgia, App. 282, 71, S.E. 2d 568 (1952) the court defined a confession as: “An accused person knowingly makes an acknowledgement that he or she committed or participated in
the commission of the criminal act.  This acknowledgement must be broad enough to comprehend every essential element necessary to make a case against the defendant.”  Does the confession you have obtained contain the critical elements
of “causation” and “criminal intent?”

First, the case against a subject can be protected from the fatal flaw of being a labeled a false confession if it contains the subject’s descriptive details of his or her
exact actions, behaviors, or participation that “caused” the event to occur ñ malicious, negligent or otherwise   How the subject specifically entered the house, the point of origin of the fire and materials used, how they accessed the
computer system, physically approached the victim, weapon used and in what manner or form, method of egress from the scene, any attempt at displacement, obliteration, or disposal of evidence such as clothing, the murder weapon,
etc.  Has he or she told you details that the only way they would know those details is if they had been to the scene and committed the offense?  At the same time those details should be confirmed by the presence of physical evidence in some form.  In addition, are you sure that you as the interviewer, by the way you have conducted your interview, asked of phrased your questions in some form that has
inadvertently given the subject such details thereby contaminating the subject’s statement, a common error made in the interview room?

Second what was the subject’s initial “intent” when engaging in their behavior?  Your subject’s statement should not only reflect that the subject did something bad or criminal but also that they had “bad intent” when the incident occurred.
The outcome may not be what the subject intended, anticipated, or every expected but would the results have been the same without some form of intent on the part of
your subject?  Does your subject’s statement disclose that their behaviors where malicious by virtue of information they have supplied that their actions were wanton, to what degree was the intent and was it a conscious act on their
part?  Is it apparent from the physical evidence and your subject’s statement that there was time for deliberation of their part?  Where there moments when it is obvious that the subject was at a one or more crossroads in the decision
making process and at these opportune moments chose a specific course of action?  Does the subject’s remarks validate evidence that this act was premeditated in that the subject engaged in behaviors in advance of the event that “facilitated” a specific outcome by arranging, orchestrating, staging or specific planning?

The burden of the existence of false confessions rests on the shoulders of the interviewer.  A confession that contains the critical elements of “causation” and “intent” that have be obtained without contamination from the interviewer solidifies the reliability of the confession. An individual without such specific knowledge could not provide such critical information.   Justice is ultimately served for the victim, the correct subject, the professional interviewer and ultimately the public’s faith in its
criminal justice system.