Skip to main content

Confessions and police interrogations

  • Birdsall Obear

Why are confessions so important to the police? It is simply this: they are a quick way to solve a crime and close a case. Often, it saves the police the hassle of doing extensive police work - searching for genuine physical evidence, interviewing potential witnesses, reviewing documents, applying for search warrants, etc.

What is most stunning is the ease with which they are able to intimidate people to talk to them and incriminate themselves. They do this through fear (of being arrested and charged), threats (subetly made with mention of jail time) and outright lying (about what evidence they have against you already). Of these, lies are the most problematic. They will often state that they have you on video committing a crime, your friends just confessed and said you were involved, that your prints are at the scene or on a weapon, etc.

Why do they lie?

Two reasons: First, the courts have said it is permitted and, second, because it works! Having obtained a defendant's confession, a prosecutor has increased flexibility with which to work in order to secure a conviction. With confession in hand, a prosecutor is afforded the luxury of pressing the opposing attorney to resolve the case, typically through a plea bargain.

Consequently, interrogators routinely lie to individuals suspected of committing criminal acts. Moreover, interrogation manuals both prescribe and teach the effective practice of lying, in order to improve the manner in which interrogators educe confessions from suspects. Courts recognize that interrogators lie to suspects; have voiced a degree of disapproval with the practice; yet continue to accept its use, euphemistically characterizing it as deception, trickery, cajolery, or misrepresentation. 

As of yet, neither the Supreme Court, nor any other court, has drawn any kind of concrete guidelines regarding the permissibility of police lying in interrogations.

In the colonial era, judges did all the questioning of suspects in open court. That is because there were not police forces as we know them - only bounty hunters. Years later, cities in the United States began to commission police officers and a resulting shift in the investigation component of the criminal justice system took place; police replaced their magistrate counterparts and assumed the questioning of individuals suspected of criminal activity.

Accompanying this shift in personnel was a shift in practice. The protections against interrogator lying inherent in the magistrates' questioning of suspects vanished as police undertook to question suspects; "the professional status of police and the privacy of their interrogations combined to insulate police from public scrutiny." As a result, interrogation techniques began to incorporate physical coercion and lying to elicit confessions.

As these practices came under scrutiny the Supreme Court mandated that abuse and coercion were simply not valid and any "confessions" obtained through such methods were not constitutionally "voluntary." In 1966, in Miranda v. Arizona, the Court set forth additional procedural requirements, consistent with the 5th Amendment, that law enforcement officers were required to satisfy when questioning individuals implicated in a criminal investigation. It held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Lying was disapproved but not specifically prohibited.

Since Miranda, the courts have dodged the question of the morality of police lying.

The courts have done this by adopting a "totality of the circumstances" approach that has the lies as only a tiny part of whether a person confesses or not. This, of course, ignores reality. The courts also don't refer to "lies." They talk about deceit, cajoling, trickery, etc., and then only look to see if you "will" was "overborne" by the police conduct. Routinely, they rule that the police acted "reasonably" and that any statements were "voluntary." This is especially true if you have been arrested before - they use that by stating that you are "experienced" with the system and, therefore, understood exactly what you were doing.

Common interrogation techniques include:

  • Exaggerating the strength of their case. They tell you that they have recording, fingerprints, DNA, documents, jailhouse snitches, surveillance, eyewitnesses, etc. All of this may true or all may be false but you simply don't know because you are isolated. They try and get to you as soon as possible to play on your fears and work that confused state of mind to their advantage.
  • Good cop, bad cop. Working in teams, one will come on strong with all the dire consequences that will happen if you don't cooperate. Then he will be pulled off by another who will speak softly and tell you we just want to get to the "truth."
  • Comparison. They will convince you that they think you are the least to blame for what happened and that, therefore, you will not suffer as severe a sentence. It's the other guys they are really after and if you cooperate, they will put a good word in for you.
  • Small talk. What is critical to getting the ultimate admission is to get you talking in the first place - about anything - usually in a "friendly" manner. They will try and find something that you have in common and just have a regular conversation. Then, when you feel comfortable just talking, they will move into the area of the crime. It's the old story about the frog - try and place him in the boiling pot and he will jump out immediately. But put him in a cold pot and then slowly turn up the heat, he will die before he knows what happened to him.
  • Threats. These are usually subtle. They mention the maximum penalties for the crime and imply that unless you roll over, you will get everyday of it. Also, they usually throw in that cooperation is looked at very favorably by a judge and your refusal will result in additional penalties.
  • Promises. They will cut a "deal" with you or "put a good word in" for you. Don't be fooled. They have no power whatsoever to make deals - only prosecutors can do that and, even then, the judge is never bound by any bargain.

So what should you do? What's the bottom line of all of this?

Use your Fifth Amendment right to remain silent! Despite the pressure to speak immediately, you can always make a statement later. Don't be intimidated, or feel that silence is somehow incriminating in itself. Don't worry about whether they will think you "did it" - they already think you did. You will only be digging your hole deeper by making a statement. Negotiating a plea bargain may be appropriate at some point but at least do yourself a favor by waiting to see what they really have against you and if there are any legal challenges to searches, physical evidence or Miranda motions.

Milwaukee Office
1219 North Cass Street, Milwaukee, WI 53202

Directions to Birdsall Obear & Associates Milwaukee office

Sheboygan Office
603 South 8th Street, Sheboygan, WI 53081

Directions to Birdsall Obear & Associates Sheboygan office