The unrecorded but noted confession

Most law enforcement agencies do not record statements. The agent, officer or his partner takes notes, then types or dictates a report purporting to describe the statement. These reports are often fraught with inaccuracies, wishful thinking about what the defendant said, and unjustified conclusions about what the defendant meant. An experienced criminal defense attorney will look for examples of sentences and word choices in the report that clearly are not the defendant’s. To attack the officer’s report, a knowledgeable criminal attorney can:

• Move for production of the officer’s handwritten notes and compare differences and note omissions. This technique works best with details that may not have seemed crucial at the time the notes were taken, but that become decisive at trial. If the officer cannot get the story right between the time of his note-taking and the time of his report-writing, how can the jury trust his recollection on the witness stand to the extent it differs from the notes?
• Elicit the preconceptions the officer brought to the interview. This is a risky tactic, because the officer’s preconceptions are that the defendant was guilty, and given a chance he will recite the bases for his beliefs, which may include statements by other witnesses and informants and the defendant’s prior criminal record.

The confession nowhere noted

Sometimes, an officer will testify to a confession or particularly damning admission that does not appear in any report or notes. A criminal defense attorney should attack such testimony aggressively to suggest that the officer is mistaken or even lying. The attorney should make the following points:

• The statement purportedly was made months or years ago.
• The officer has participated in scores of arrests and investigations since then. The attorney can have the officer agree, if true, that many of them have involved a similar type of case, (e.g., drug arrest, assault, domestic dispute, etc.).
• In the course of those investigations, the officer has interviewed hundreds of arrestees, suspects and witnesses.
• He knows through experience and training that an arrestee’s exact words are important evidence.
• He is trained to write reports, and routinely does so, to preserve evidence important to a case.
• He relies on those reports to recall what happened in an investigation that may have occurred some time ago; other officers and prosecutors rely on those reports to investigate and to put together a case; and the law requires that the prosecutor turn over the reports to the defense so that the defendant and his lawyer will know what evidence they are facing and so they can prepare their defense.

If the cross-examination is productive, the criminal defense attorney’s argument may range from if the officer cared so little about the case that he could not commit the defendant’s own words (or so he claims) to writing, the jury should not place any weight on his testimony, to an argument that the whole prosecution case is tainted because if the prosecutor had a strong case there would have been no reason for him to rely on a purported confession that never surfaced until halfway through trial.

The recorded confession

Although it is still the minority approach, there is a trend toward requiring, either by statute or case law, that all confessions be recorded. For example:

• The Supreme Courts of Alaska and Minnesota require recording of custodial questioning.
• Wisconsin requires all custodial interrogations of juveniles to be recorded, when feasible.
• In Massachusetts, the court must instruct the jury that it may find that the prosecution has not carried its burden of proving a confession’s voluntariness and hence admissibility because of the prosecution’s failure to record the confession.

If the police have an audio- or video-taped a confession, the criminal attorney may try two attacks:

The confession is demonstrably false.

If an independent investigation proves that the confession contradicts the forensic evidence, unimpeachable records or the testimony of credible witnesses, there is a strong argument that the police broke the defendant to the point of agreeing to fantasy. In this situation, a skilled defense attorney will argue that not only should the confession be disbelieved, but the police have shown such a disregard for the truth that the jury should reject the whole of the prosecution’s case.

The interviewer put words into the defendant’s mouth.

The defense attorney should demonstrate that the police did not record the events leading to the confession, in which the defendant first denied guilt and then was cajoled and coerced into confessing. This works best if the defense attorney can show a substantial passage of time from the start of the interrogation until the recording began. Often, the police or a prosecutor will elicit the confession through a series of leading questions, each one suggesting facts already known to the police before the defendant confessed. A criminal defense attorney can employ two techniques to suggest that the defendant merely parroted the story the police wanted him to tell, guilty or not:

• First, the attorney can go through each fact in the confession and show that the police knew it before the interview.
• Second, the attorney can demonstrate that the police rehearsed the story with the defendant and put words in his mouth. This works best when the confession was recorded, and the questions are leading ones (as they usually are), to which the defendant replies with a “yes” or a grunt.

Corpus delicti

The corpus delicti rule forbids conviction solely on the defendant’s confession and requires that there be independent evidence proving each element of the offense, albeit not identifying the defendant as the perpetrator. In some jurisdictions, the rule also regulates admissibility of statements, and the prosecution must establish a prima facie case with independent evidence before a confession can be admitted.

The “humane” or Massachusetts rule

While not required by the federal constitution, some jurisdictions re-submit the issue of voluntariness to the jury and instruct the jury that it must find the confession to have been voluntary before the jury may consider it as evidence.