You or a loved one has confessed to committing a crime. Is all hope of avoiding conviction lost? Not
necessarily. A confession can be very difficult evidence to overcome. However, in some cases, the confession can be kept out of evidence if your Phoenix criminal attorney can show it was not made voluntarily.
Under the Fifth Amendment to the U.S. Constitution, anyone who is arrested has the right to avoid self- incrimination and the right to remain silent.
Under the due process clause in the Fourteenth Amendment to the U.S. Constitution, the state of Arizona must respect all legal rights that are owed to a person under the U.S. Constitution. Therefore, a person cannot be forced to give up the right to remain silent.
The legal standard for a coerced confession is whether law enforcement used tactics that undermined the defendant’s ability to voluntarily confess of his or her free will. For example, a confession obtained by questioning a defendant in a jail cell after he or she has been injured in a car chase and denied medical care and after he or she has requested an attorney would be considered involuntary.
Moreover, a confession that is coerced cannot be used to convict a defendant, even if it may be true.
The best way to establish that a confession was coercive is to prove that inappropriate law enforcement tactics subverted or undermined the defendant’s free will. To prove that the defendant’s free will was subverted by inappropriate law enforcement tactics a defense attorney can use a three-prong strategy. Under this strategy the defense attorney will examine:
Prong one – susceptibility of the defendant to coercion.
Prong two – the location of the interrogation.
Prong three – the methods used by law enforcement during the interrogation.
Prong One: Defendant’s Susceptibility
Susceptibility is determined by examining the defendant’s age, education, maturity, IQ (research shows that juveniles and people with low IQs are at a greater risk for false confessions), mental and physical health, intoxication, and prior experience with the legal system. A thirteen-year-old with no previous experience with law enforcement who was held incommunicado in a holding cell for several hours before confessing has a better claim of coercion than a twenty year veteran of the penal system who confesses to police while at home.
Despite a defendant’s poor mental and or physical health or intoxication, the confession will not be considered coercive or involuntary unless there is evidence that defendant’s thinking was impaired by these conditions. The established condition must affect the defendant’s ability to think clearly.
The defense attorney will consult with expert witnesses and study their reported conclusions to prove the effect defendant’s susceptibility had on his or her ability to think clearly at the time of the confession. Also, the defense attorney must anticipate expert evidence that might be introduced by the state and be prepared to counter it.
Prong Two: Location
The location of defendant’s questioning should never be overlooked when considering whether a confession was given of a defendant’s free will, because some locations can be considered more intimidating than others. Police stations and the back of a police cruiser are environments that can be considered more intimidating than a defendant’s home or a park or coffee shop.
Prong Three: Interrogation Tactics
Because the methods used by law enforcement to illicit a confession are extremely important when proving whether a confession is coerced, the defense attorney must closely examine them. He or she will request the alleged confession itself, statements made during the interrogation that led to the confession, and any audio or video recordings of the interrogation and confession.
The defense attorney must learn:
- Whether the defendant was given his or her Miranda warnings;
- Whether law enforcement granted the defendant’s requests for a lawyer and respected his or her right to remain silent;
- Who initiated the questioning (when a defendant interacts freely with law enforcement it is more difficult to claim coercion); and
- The length of the interrogation (the more protracted and uninterrupted the more coercive).
No matter what state of mind defendant was in during interrogation, the defendant’s free will won’t be considered undermined unless it can be proven that law enforcement terrorized or strong-armed him or her.
Coercive Law Enforcement Tactics
The following are examples of tactics committed by Law enforcement that may be considered coercive.
- Interrogating the defendant at gunpoint.
- Intimidating the defendant by surrounding him or her with an overwhelming number of law enforcement officials during questioning.
- Physically abusing the defendant.
- Threats and promises directed at the defendant in exchange for the confession.
- Threats and promises involving the defendant’s family or loved ones.
- Depriving the defendant of food, water, sleep, life sustaining medicine, and/or use of the restroom.
- Holding the defendant incommunicado.
In Arizona, as in most jurisdictions, the prosecution has the burden to prove a confession was voluntary once the defendant raises the issue. However, the prosecution must prove voluntariness by a preponderance of the evidence, which is easier than proof beyond a reasonable doubt. Therefore, the defense attorney must meticulously exhaust all aspects of the three prong strategy to successfully challenge a coerced confession.
To speak with a knowledgeable Phoenix criminal attorney, call Howard Howard A. Snader at 602-899-0590