The trial judge must decide the issue of a confession’s voluntariness before the jury hears the confession. The court will hold a hearing to determine if the confession is admissible. But the defense attorney must first make a motion alleging facts that, if true, would render the confession involuntary. The detail required depends on the nature of claim; for example, if the basis for suppression is a Miranda violation, a motion or affidavit alleging that the defendant had been arrested, that the police asked him questions, and that they omitted the warnings would suffice. In contrast, a true involuntariness claim requires the motion to spell out the circumstances that amount to coercion. Some courts will insist that the allegations come from an affidavit by a person with personal knowledge, usually the defendant. The hearing to determine the admissibility of the confession is best held before the trial begins for several reasons:

• The decision may dictate whether there is a trial, plea or dismissal.
• A criminal attorney needs to know whether the jury will hear the confession to be able to question potential jurors on it during jury selection and discuss it in opening statements.
• By holding the hearing pre-trial rather than mid-trial, the court saves the jury considerable delay and inconvenience.

The hearing should take place outside the jury’s presence. If the jury hears the confession, the judge cannot undo the harm by later telling the jury to disregard it. Winning an involuntary confession claim has an advantage over prevailing on a Miranda violation because a coerced confession cannot be used for any purpose, including cross-examination of the defendant at trial. Even when a defendant loses an involuntariness challenge before the judge, the defendant is entitled to introduce testimony about the environment in which the police secured the confession to the jury to show that it should not be credited. This may include expert testimony on the defendant’s unusual susceptibility to be compliant and adopt suggestions even when untrue and the phenomenon of false confessions.

Preparing an involuntariness claim

A criminal defense attorney should consider a coerced confession claim whenever:

• The defendant suffered some mental or emotional disturbance of which the police had knowledge.
• The police made exaggerated promises or threats to the defendant, in particular, threats of harm to him or his loved ones.
• The interrogation spans an unusually long time.
• The police likely have a special dislike for the defendant, or feel strong pressure to solve the crime (e.g., child homicide cases, serial rapes and murders, assault or homicide of a police officer, and terrorism cases, a category that, depending on local sentiment, may include everything from bombings to immigration violations).

Mounting an involuntariness claim calls for substantial preparation:

• Physical abuse must be documented as soon as possible by photographs and a medical examination.
• Many police stations and jails sign in detainees. The criminal defense attorney must subpoena these records to show how long the defendant was interrogated and whether he was removed from the premises for some reason.
• If the defendant has a disability, medical and psychiatric records must be obtained. The defense attorney may need to retain a psychiatrist to interview the defendant and report on his IQ and other mental conditions.
• All officers who participated in the interrogation should be subpoenaed. The prosecution likely will call only the officer who played “the good guy.”

At the suppression hearing, the defense attorney should explore the following topics:

• The manner in which the interrogation was carried out (e.g.: How many officers? For how long?).
• Any exculpatory statements the defendant made. Have the officer flesh out such statements in his report to make sure he will not hedge on them at trial.
• Any threats or promises made to the defendant.
• Exactly what the defendant said and how he said it (e.g.: What were the questions? How did the defendant answer (at length, in monosyllabic words, mumbling, crying)?).