Jack Nicholson told us. Mike Cernovich reminds us. I should have remembered when I wrote this post on the New York Times’ story about false confessions, but I didn’t. Fortunately, Mike remembered, and I would be remiss not to correct my mistake.
Back when the legal blogsophere was a magical place (the early days of the blogosphere really were something special), the excellent Appellate Law & Practice pointed out why FBI agents do not record confessions. This is straight from the United State Department of Justice’s mouth : “Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants.”
The genesis of this discussion was a decision by the Second Circuit in the Higazy case, which Howard Bashman realized had been issued, then amended, to redact a portion that the court decided was too unsavory for public consumption. Patterico provides the details, including the deleted portion describing our government’s means of persuading Egyptians arrested in the United States, but with family in the old country, to talk. [Aside: For many, the names in these paragraphs will be unfamiliar. This is a terrible shame.]
As Mike notes, the government’s position on videotaping makes two things perfectly clear: The techniques used to extract confessions would not be deemed acceptable to “lay persons,” and are acceptable to judges. Our government, and in this context including our judiciary, has adopted an official policy to conceal from the public interrogations that the public would reject as unacceptable, perhaps unAmerican. Our judges, in the meantime, have decided that it’s best to make sure that its decisions on the subject be kept from public view, lest Americans get an inkling what their government is doing. The first Higazy decision was a screw up that was quickly corrected, but for Bashman’s refusal to be party to concealment.
In the Times’ article, Professor Brandon Garrett suggested recording of interrogations as part of the solution to false confessions. Forget the fact that the FBI isn’t interested in Garrett’s idea. Forget the fact that there are, and will no doubt be more, ways developed to turn videotaping into a weapon against defendants rather than as a means of greater transparency into abuse. At the bottom of this problem are techniques used by government, by law enforcement, that are specifically geared toward eliciting statements. Some techniques are sophisticated. Some are merely brutal. The techniques are extremely effective.
The upshot is that people subject to interrogation talk. Sometimes they provide true confessions. Sometimes they give false confessions. Either way, they talk.
Ironically, it’s more likely that people will talk without any effort on the part of law enforcement at all, under normal circumstances. Talking to the cops is the bane of criminal defense lawyers. It can’t be said enough that suspects are best served to exercise their right to remain silent. But the problems illuminated by Higazy are quite different. For the suspect who won’t gab because of the uncontrollable need to have sound come out of his yap, there are always interrogation techniques available.
You, however, and I, and lay persons of all ilk, cannot be told of these techniques. Should we sit on a jury, it must be kept from our view. We couldn’t handle the truth. We wouldn’t find it acceptable. But our government, including our judges, has decided that it is both lawful and acceptable to them, even though we might be repulsed, offended, outraged and, to Garrett’s point, unpersuaded that it produced a true confession.
This shouldn’t be forgotten.
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I started out as a prosecutor. I lost my first jury trial — a confession case — because the defense lawyer skillfully made the secret service agent indignant and unconvincing in defending why they don’t record confessions. She effectively turned chicken shit into chicken salad. At the time I saw it as a good lesson as a trial lawyer; now I also see it as a good lesson that the right jury can be made to see through a bogus confession.
Your anecdote is useful on two fronts, first that trials, even with confessions, can be won. Second that the development of skills is critical to providing defendants with effective defense, even in the face of the marketer scams that all one needs is to claim expertise and experience, manage to get it on google, and that makes someone a lawyer.
On the other hand, most agents keep their cool and can handle a skillful cross, making this the exception.
Two points:
(1) This attitude by judge’s that jurors and by extension the rest of the public would find interrogation techniques and tactics commonly used by law enforcement unpalatable so as to raise questions of reasonable doubt concerning an alleged crime is another aspect of the paternalistic, elitist attitude of government officials toward the public; which attitude is so widespread throughout government as to have removed government from being at all affected by the public; this is a condition of rulership, not democratic government or processes.
(2) Greenberg puts his finger on the reason for many problems in the legal system–namely, judges which are materially collusive or virtually collusive in its crimes. I do not understand, for instance, why judges who come to know crimes committed by law-enforcement officials in the course of a case or at a trial do not pursue criminal charges against these individuals. I thought the principle responsibility of judges was to uphold the law.
This makes me mad. I am so tired of being told I am not smart enough to hear the truth and make up my own opinion about things. AND if my opinion is not politically correct enough for my friends on the left or RIGHT enough for those on the right, then it is because I am not smart enough to “get it.” SIGH! The point is reasonable and informed minds can differ, and I CAN AND WANT THE TRUTH. Anyone out there with me??
I suspect you have a lot of company. And it’s not just politics or law, but an epidemic of people in any position of authority at all that they believe they are endowed with ability to think while the rest of us are just too darned stupid and need them to think for us.
“Outraged” is an understatement. I may not be a lawyer but I have gone through great lengths of research on this very topic. What makes me the most upset is that its not so much that they are “corrupt”, but rather they just simply don’t give-two-shits about anything (not literally, but you get my drift). They are being incredibly lazy when the each decision they make has an enormous impact not just on the lives of many individuals but also on our country as a whole. It boils my blood thinking that this has been going on for so long- that THIS is what our ‘elected’ government big-wigs are allowing to go on- that the general population in America are also too lazy to try to do anything about it! But this boiling blood is just fuel to the fire that continues to motivate me- motivate me to continue on my path to motivate others. The only way to change the system is to be a member in it that can actually make the changes. If you want something done right, do it yourself, right?
Not only do they redact opinions, they issue them declaring that they are not precedent and should not be cited. In fact, the great majority of their opinions are like that at this point.
What’s up with that? I mean, I think it’s just bizarre, but I haven’t really talked to anyone else about it.
Unpublished opinions are the biggest crock of shit in world full of crocks of shit. Even worst when prosecutorial lobbies cry and get previously published decisions “depublished.”