A confession changes the entire complexion of a criminal defense case. At first blush, it may appear that your client’s best or only options are a guilty plea or cooperation against a more culpable individual. To forestall or even avoid the seeming inevitability of these options, consider these 5 tactics, excerpted from Thomas J. Farrell’s Criminal Defense Tools and Techniques:
1. Raise a common law unreliability challenge.
Raise a common law unreliability claim in those instances where you have evidence of your client’s inability to make an intelligent statement due to some impairment or where you have independent evidence that your client’s statements were false. Argue that the common law rule recognizes the misleading potential of admitting such statements and, therefore, entitles you to a pretrial hearing and a judicial determination of admissibility.
2. Challenge the voluntariness of an alleged confession.
Many police stations and jails sign-in detainees. Subpoena those records to show how long your client was interrogated and whether he was removed from the premises for some reason. If your client has a disability, obtain medical and psychiatric records; you also might want to retain a psychiatrist to interview your client and report on his IQ and other mental conditions. If your client claims physical abuse, document this as soon as possible with photographs and a medical examination. Subpoena all officers who participated in the interrogation; the prosecution likely will call only the officer who played “the good guy.”
3. Raise the issue of the officer’s intent as evidence that your client was “in custody” for Miranda purposes.
Evidence of a witness’s intent is admissible to prove that he acted in conformity with that intent. Based on this principle, if the custodial nature of the interrogation is an issue at the suppression hearing, the officer’s intent may be a relevant topic for questions. For example, a dispute might emerge over whether the officer laid hands on your client. The officer’s belief that your client was a prime suspect and his intent to take your client into custody make it more likely that he, in fact, did, especially if your client began to walk away.
4. Launch a preemptive strike based on ethical right-to-counsel rules.
You may be able to use the rules of professional conduct, in particular Model Rule 4.2 (“Communication with Person Represented by Counsel”), to your client’s advantage preemptively, even in those jurisdictions that reject them as grounds for suppression. If you know that your client is under investigation, notifying the police and prosecutor of your representation probably does not trigger the Fifth or Sixth Amendment rights to counsel. However, the prosecutor who ignores Model Rule 4.2 risks disciplinary sanctions. As zealous as many prosecutors are, few will risk their license on an investigation. Therefore, a representation letter to the prosecutor may deter the prosecutor from having the police or informants communicate with your client.
5. Aggressively cross-examine the officer about an alleged, but undocumented, admission.
Sometimes, an officer will testify to a confession or particularly damning admission that does not appear in any report or notes. Attack this testimony aggressively, to suggest that the officer is mistaken or even lying. Make these points:
Q: This statement purportedly was made months (or years) ago, correct?
Q: You have participated in scores of arrests and investigations since then, correct?
Q: Many of those cases have been the same type (e.g., drug arrest, assault, domestic dispute, etc.) as this one?
Q: In the course of those investigations, you have interviewed hundreds of arrestees, suspects and witnesses, right?
Q: You know, don’t you, through your experience and training, that an arrestee’s exact words are important evidence?
Q: Isn’t it true that you are trained to write reports, and routinely does so, to preserve evidence important to a case.
Q: You rely on those reports to recall what happened in an investigation that may have occurred some time ago?
Q: Other officers and prosecutors rely on those reports to investigate and to put together a case?
Q: 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 can prepare their defense, correct?
Thomas J. Farrell is a criminal defense attorney in private practice in Pittsburgh, Pennsylvania. Mr. Farrell started his legal career as law clerk to U.S. District Court Judge Gustave Diamond of the Western District of Pennsylvania. Following his clerkship, Mr. Farrell served an Assistant Federal Public Defender in New York City, where he tried cases ranging from robbery and check theft to organized crime and public corruption. From 1995 to 2000, he was an Assistant United States Attorney in the Western District of Pennsylvania, where he prosecuted financial crimes, including health care fraud, government contracting fraud, tax evasion, bank fraud, and public corruption. Mr. Farrell was selected as one of The Best Lawyers in America in 2006 and 2007 for white collar and non-white collar criminal defense.