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SEARCH INVESTIGATOR TIPS Ten “Do’s and “Don’ts” for Obtaining a Reliable Confession
January / February 2017 (click here for normal version)
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by Louis C. Senese
Physical coercion, torture, duress, denial of rights, threats, and promises of leniency are the poison pills of legally admissible, reliable, and voluntary confessions. Obviously we should not engage in such behaviors or any tactics that could render a confession involuntary. This article is intended to assist the professional investigator by outlining statements and techniques that should be avoided so as to insure the integrity of the subject’s confession.
In August 2016 in the case Dassey v. Dittmann (which was highlighted by the popular Netflix television show, “Making a Murderer”) U.S. Magistrate, Judge William Duffin, ruled that the guilty verdict returned by a trial jury in 2007 against Brendan Dassey for the murder of freelance photographer Teresa Halbach was based on an involuntary confession that was obtained as a result of “constitutionally impermissible promises.”
In his order to the State of Wisconsin to either release or retry Dassy, Magistrate Duffin stated, “These repeated false promises (of leniency, sic), when considered in conjunction with all relevant factors, most especially Dassey’s age, intellectual deficits, and the absence of a supportive adult, rendered Dassey’s confession involuntary under the Fifth and Fourteenth Amendments.”
Also factoring into the finding of involuntariness was the Magistrate’s concern that Dassey’s confession may not have been reliable because some of the corroborative details described by Dassey could have been the product of contamination from other sources, including the investigators’ own statements and questioning, or simply logical guesses, rather than actual knowledge of the crime.
We recommend that following the “Do’s and “Don’ts” listed below will substantially aid in facilitating legally admissible confessions that are voluntary and reliable. There is a longstanding legal principle known as corpus delicti that translates to ‘body of a crime’ and is defined by Black’s Law Dictionary as “the substantial fact that a crime has been committed”. This principle suggests that a mere admission of culpability, standing alone, may not be sufficient to establish the substance or foundation of a crime. Instead, the corpus delicti is established through a more comprehensive confession within which the confessor, without prompting by the interrogator, affirmatively provides details of the crime that only the actual offender would know.
Two evidentiary elements that address the corpus delicti within legally acceptable confessions are:
Once the suspect admits to committing the crime the following suggestions will aid in obtaining a legally corroborated confession containing independent and dependent evidence that will firmly establish the authenticity of the statement. Throughout this process, bear in mind that an “admission” is the offender’s initial acknowledgement of participation in a crime, while a “confession” is a comprehensive statement made by the suspect that accepts personal responsibility for committing the offense and discloses the circumstances and details of the act.
Guidelines for asking the initial questions after the subject’s first acknowledgement of guilt are:
With these guidelines in mind when the investigator is obtaining corroborating information from the suspect after their initial admission, these 10 “Do’s and “Don’ts” should be followed. (To illustrate these points consider the case in which a suspect admits to a home break-in.)
It is critical that we do not, even inadvertently, reveal all of the details of the crime to a suspect during an interrogation, including after the initial admission. Instead, we should ask questions that allow the suspect, of his or her own volition, to voluntarily reveal critical independent and dependent evidence that will effectively establish the accuracy and voluntariness of their incriminating statement. Our goal during an interrogation is to obtain the truth by following legally acceptable practices. Credit and Permission Statement:
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