The Unmitigated Stupidity Of Confessing

If you really need to get things off your chest about something you've done, here's who to tell -- your lawyer.

handcuffs justice gavelI often wonder why people confess.

I guess because I’ve been a criminal defense attorney for so long, it’s obvious to me that should a detective call and say he “needs to talk to you” — no matter how nice he seems, or how nice you are — it is never to your benefit to speak.

If the police are calling in the first place, it’s because they’re looking to make an arrest. It’s likely a complaint has already been filed against you — maybe from an angry girlfriend, landlord, or boss — and nothing you say will be able to stop your arrest. So why speak?

They’ve got all the cards. You’ve got none. You don’t know, at all, when you start talking to them, how they’ll be able to use what you say against you.

Here’s an example.  A detective phones and says he’s investigating “something” (they’re usually vague) and just wants to have a “chat with you” down at the station so you can explain “your side of things.” Wrong.  He’s lying.  It’s not a chat, it’s an interrogation (which police call an “interview”).  He’s trying to catch you off guard and save himself a trip to make the arrest.  Your smart answer would be:  “Do I have a choice?” If the answer is “no,” your next answer should be: “Thanks for calling, Detective. Give me your name and number and I’ll have my lawyer contact you.”

Even if you’re truly not guilty of whatever they’re investigating, once it gets this far, there’s no way to persuade a cop not to arrest you.  Certain types of crimes require certain types of procedures.  Domestic violence and sex abuse are two. If someone calls and complains against you — no matter how strong their motive to lie might be — the procedure on these types of crimes is make the arrest first, ask questions later.  Better to be safe than sorry; let the prosecutor decide what to do with the case once the dust settles.

Next problem — even though we live in the modern age, very few cops tape record what you say during your “interview” with them.  They’ll have you come in and then do their best to get you to confess.  They’ll start by minimizing the investigation by saying something like, “Oh, we’re just checking out a few leads, sure you had nothing to do with it.”  Once they’ve got you softened up, they’ll tell you how much better it will feel “to get everything off your chest.”  They’ll say they know “you’re a good person” and that “the judge will probably throw out the case if you just admit to what you did.”  None of this — the manipulation to get you in the comfort zone part — is recorded.  Why?  Because they know, even though it’s perfectly legal, that it won’t play well to a jury.  Seems sleazy.  That’s because it is. But as long as the cop isn’t physically harming you, threatening to arrest your 90-year old mom if you don’t confess, or telling you someone’s life depends on your talking to them, cops have the right to imply, insinuate, and suggest almost anything to get you to talk.

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The next part of your confession will be taped.  That’s when they walk you into the prosecutor’s office to repeat what you’ve already told the cop, but this time on camera.  You’ve been batted around so much in the preliminary interview and promised things that won’t happen (like the judge throwing out the case), that by the time you’re talking on tape, you’ll speak without prompting, calmly, and with precision because you’ve been well rehearsed. Try to get a confession like that suppressed as involuntary. Forget it.

I repeat: Cops can (and will) lie to you.  It’s a very high hurdle for judges to rule that the police during their interrogation did something so wrong that it “shocks the conscience.”

Back to my original question: So why do people talk?  Everybody is read Miranda when arrested.  Everyone is specifically warned that everything they say can and will be used against them in a court of law.  Maybe they just don’t believe it, or maybe the rights are read so fast and in such a monotone drone that they seem unimportant. Then there’s the huge numbers of arrestees who come in drunk, stoned, or so worried about being there they might not even remember their own address.  And they really understood they didn’t have to speak to the cops?  Right.

Here’s my take on why people talk.  Some people are stupid enough to think they’re smarter than the cops and can talk their way out of anything. (This is so rare, it’s laughable.)  But most people, in my humble opinion, just want to tell the truth; get things off their chest; do the right thing. It’s our puritan heritage.

But here’s the dilemma — cops are not priests.  They will share the information you give them, not to do you any good like clear your conscience or save your soul, but to get you convicted and placed behind bars.

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If you really need to get things off your chest about something you’ve done, here’s who to tell — your lawyer.  He’ll cover all the bases, give you good advice, keep your confidence, and still try to get you out of jail.

Anything else is just plain stupid. And this advice goes for even all you smart people who are totally innocent.


Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at tonimessinalw@gmail.com or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.