Insuring the Confession Against the Allegation of False Confession

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 were resolved using new DNA technology. In some cases however, one of the 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 of 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?

Causation: Did Their Actions Create the Event?

First, the case against a subject can be protected from the fatal flaw of being 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—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, method of egress from the scene, and any attempt at displacement, obliteration, or disposal of evidence such as clothing or the weapon—these are all critical.

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, have not inadvertently given the subject such details by the way you conducted the interview or phrased your questions—thereby contaminating the subject’s statement? This is a common error made in the interview room.

Intent: What Was the Subject Trying to Do?

Second, what was the subject’s initial intent when engaging in their behavior?

Your subject’s statement should not only reflect that they did something criminal, but also that they had “bad intent” when the incident occurred. The outcome may not be what the subject intended or anticipated, but would the results have been the same without some form of intent?

Does the statement reveal that their behavior was malicious? To what degree was that intent present? Was it conscious?

Is it apparent from both the physical evidence and the subject’s statement that there was time for deliberation? Were there moments when the subject reached decision points and chose a specific course of action?

Do their remarks validate that the act was premeditated—through behaviors that facilitated the outcome by arranging, orchestrating, staging, or planning?

Final Consideration: The Interviewer’s Responsibility

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—and that has been obtained without contamination—solidifies its reliability. An individual without such specific knowledge could not provide such critical information.

When done correctly, justice is served for the victim, the correct subject, the professional interviewer, and ultimately the public’s faith in its criminal justice system.