CONFESSIONS: Keep Your Mouth Shut Until You Talk to An Attorney!

A statement of a person accused of a crime may be used against him if it appears the statement was freely and voluntarily made without compulsion or persuasion. Often a person accused of a crime will make a statement concerning the facts of the alleged offense. The statement given to the police by a person accused of a crime may be accurate. However, in some situations, a person may be coerced into giving a false statement which may incriminate them. A person may be put in fear of increased punishment or persuaded by the promise of a lesser punishment if he cooperates. Police interrogation tactics are often designed to produce a confession at any cost. The police are very good in interrogation techniques. They are trained professionals. A person who is accused of a crime who thinks they can outsmart the police has already put one foot in the jail cell.

If there is one point I would want a person to take away it is this. KEEP YOUR MOUTH QUIET UNTIL YOU SPEAK TO AN ATTORNEY! Regardless of what a person may have heard or been told, the police do not generally control the making of any “deals” to reduce criminal charges. It is the District Attorney’s Office that has the final word on the charges brought against a defendant.

A written statement may be used against a person from the result of a custodial interrogation (in custody) if, on the face of the statement, the person has been given their Miranda Rights and they have knowingly, intelligently, and voluntarily waived those rights.

An oral statement as the result of a custodial interrogation can be used against the accused if the statement is electronically recorded, which includes motion picture, video tape, or other visual recording. Prior to the statement but during the recording, the person must be given their Miranda warning just as in the written statement situation.

EXAMPLE

Joe Public is arrested and is being held by the police. Joe has been read his Miranda Rights and he waives his right to counsel. Unknown to Joe, his family has hired an attorney who is trying to speak to Joe before he answers any questions. Joe gives a written confession to the crime. This confession will be admissible in court. It does not matter that Joe was unable to speak with his attorney prior to his written confession.

EXAMPLE

Joe Public is arrested and taken into custody. Joe is read his rights, but he is hesitant to give a statement to the police. The officer doing the investigation then tells Joe that his statement could be used “for or against him.” Joe gives a statement which he thinks clears him of the crime. Later when Joe talks to his attorney, his attorney tells him this statement destroyed a legal defense he could have used at trial. The good news for Joe is that the attorney can request a “Jackson v. Deno” hearing. This is a hearing outside the presence of a jury to determine whether the statement that was given by Joe is admissible. In this situation, the chances are that the statement will not be admissible because the statement made by the police investigator does not comply with the statutory warning of Code of Criminal Procedure Article 38.22. It is improper to say a statement can be used for or against the person. The statement can only be used against the person.

EXAMPLE

Joe Public and Rod are accused of a Burglary of a Habitation. They are both brought into custody for questioning. Joe and Rod are placed in separate rooms. Joe is read his rights and he waives his rights and speaks with the investigator. When Joe is being questioned, the investigator tells Joe that Rod has already told him that the burglary was Joe’s idea and that he did not have anything to do with the burglary. The investigator tells Joe that he has Joe’s fingerprints at the scene and that Joe is looking at 20 years in prison. The investigator also tells Joe if he confesses to the crime he will make sure the courts will go easy on him. The truth is that Joe was the one who was just watching and it was Rod that broke into the house. Joe had no part in the burglary and did not benefit in any way. Joe is scared of going to prison so he confesses to the crime. What Joe did not know is that the investigator has never spoken to Rod and there are no fingerprints of Joe’s at the scene. The statements made to Joe were totally false. Joe’s confession will probably be admissible in a trial because the conduct of the police would probably not be considered coercive.

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