False confessions are not only real, but they are also common. Many defense attorneys fear the confession. Many defense attorneys see a confession and use it as an excuse to run to the prosecutor, beg for a deal, and accept the first one offered. While confession cases are some of the toughest in the business, they are not insurmountable.
In any trial involving a confession, the methods used to obtain the statement must be dissected and exposed so that a jury can understand how someone could confess to something they did not do.
The attorneys at Bilecki & Tipon have represented countless service members that made “confessions” and have received full acquittals after taking the case to trial. Accusations of criminal activity place even the mentally tough under an inordinate amount of stress and distress.
Government agents in charge of investigating criminal cases are determined to elicit a confession from the suspect they’ve already convicted in their minds, and will often test and sometimes cross the limits of lawfulness to secure one.
In order to combat a signed “confession” at trial, you need an experienced, savvy, and aggressive defense trial lawyer that knows the real story behind false confessions. If you have confessed, you don’t have to plead guilty, you can still fight the charges.
To understand how to attack a false confession, it is important first to understand the interrogation tactics used by CID, NCIS, OSI and just about every law enforcement agency. Only a trial lawyer that understands the tactics used to obtain a so-called “confession,” can effectively tear it apart.
Overview of Interrogation Tactics
Law enforcement officers go far beyond the stereotypical “good cop, bad cop” routine. These agents are literally school trained in the art of interrogation and the psychology of manipulation.
They employ an arsenal of effective weapons to extract confessions from unsuspecting and vulnerable suspects. Law enforcement agents are trained to get suspects to start talking and stay talking.
Agents are typically friendly, polite, and persistent. They give the illusion that they are engaging the suspect in casual conversation, and they rarely resort to making blatant accusations. If necessary, agents empathize with suspects and go so far as to suggest there might be mitigating circumstances that justify criminal acts.
Other times they continuously tell the suspect that their story doesn’t make sense but the victim’s story does, even if the victim’s story is completely nonsensical. Suspects are often told they are liars. After hours upon hours of being kept in a small interrogation room, most people will give in a little and that’s when they’ve got the suspect right where they want him.
Video Recorded Confessions
In most cases, confessions are video recorded. However, it will not always be obvious to the casual viewer (your jury) what the agents are doing in the video and how they are utilizing trained techniques to elicit a confession. From rapport building, theme development, direct positive confrontation, hopelessness, redirection to confessions, it is critical that the defense attorney understands the “anatomy” of a confession, how to break it down, and how to explain to a jury that the confession is not reliable.
After the long, calculated interrogation process leads to a confession, hours of interview conversation between the accused and the agents are merged into an often a two or three-page statement that the service member, exhausted, intimidated, trusting, and bewildered, signs without a second thought. To lock in the confession, law enforcement agents typically add the following questions at the end of statements.
“Were these statements included in your confession?”
“Were you treated well?”
“Is there anything you would like to add to this statement?”
A service member in the hands of experienced agents armed with proven interrogation techniques and an intricate knowledge of the military judicial system, is virtually powerless without the counsel of an effective defense attorney.
In cases involving multiple suspects, CID, NCIS and OSI agents have an even greater advantage, as suspects are more wary of the co-accused than the agents themselves, and believe that talking first is the only way to get out of trouble. With that in mind, an agent needs only separate suspects and wait—eventually, a confession comes. Agents play the words of one suspect off of another, convincing each that the other(s) is busy cooperating and laying blame. Soon enough, agents can elicit multiple confessions, close their case, and practically guarantee a conviction at trial.
Exposing Coercive Law Enforcement Tactics
Coercive Law Enforcement Tactic: False time pressure.
CID, NCIS, and OSI agents know that at some point after becoming a suspect, a service member will likely consult a defense attorney who will inevitably advise the client to invoke his right to remain silent.
The interrogation agents, aware that they have a small window of time to elicit a confession from the accused, quickly go into action. Their strategy is to take advantage of a person who is vulnerable from fear, stress, and anxiety. Time is the agent’s enemy.
Coercive Law Enforcement Tactic: Using the clock against the accused
Even though the suspect can receive the free services of a military attorney at the local TDS, ADC or LSSS office, nearly every suspect who is being interrogated experiences a feeling of desperation. An order to appear at a CID, NCIS or OSI office is intimidating. The worse the accusations, the greater the sense of desperation the suspect feels, and the greater the desire to find someone who will “help me out.”
Worried about the outcome of the case, and their future, the suspect usually feels a need to unload on a seemingly caring ear. They seek someone who will tell them that things are not as ominous as they seem. The sad reality? If they unload to the wrong person—law enforcement or other government agents—things will get even worse.
When a service member does not want to talk about the charges, the agents typically attempt to develop a sense of urgency in his mind. They will lie with impunity. They often tell the service member that they or the command have decided to “charge them” and that the accused’s only hope is telling his side of the story. They usually say something like, “If you just tell us what happened [what they want to hear], we can tell your commander that you cooperated and had integrity, that will greatly help your case.” The reality – it doesn’t, it only hurts it.
Agents will say “it is now or never” for the accused to tell their version of the story. If the service member says that he thinks he should wait until he can see a lawyer, the agents often say “a lawyer is just going to tell you to not to talk – and that’s ok with us – if you never want the command to know your side of the story.” Agents typically tell the crumbling service member, “If you don’t talk, we can’t help you, and we’ll have to tell the command and the prosecutor that you don’t want to play ball.”
Regretfully, only a few service members know that the only thing they should do to help themselves is to shut up and demand to speak with a defense attorney. It does not occur to them that time is actually running out for the agents, not them.
Unfortunately for service members, most free military lawyers lack the trial experience to expose the deceitful tactics of CID, NCIS, and OSI. The court-martial lawyers at Bilecki & Tipon have been through the Reid Advanced Interrogation Techniques class and their investigator, Mr. Oettinger, is a former Las Vegas Metropolitan Police Department Detective.
They know the interrogation techniques forward and backward and can strategically employ shrewd cross-examination to show the jury that CID, NCIS, and OSI are dishonest and that the “confession” is either false or was coerced. The alternative? The defendant’s own words will convict him and send him to jail.
Coercive Law Enforcement Tactic: “We’ll tell your Command that you played ball.”
At trial, deceptive CID, NCIS, and OSI agents sometimes concede that they told the accused “We’ll tell your command that you played ball,” or words to that effect, but that they offered nothing more. To most military suspects, this type of initial “offer” is not enough to get them to confess. An experienced trial attorney can use thorough cross-examination techniques to reveal that the agents actually offered much more to the accused back in the interrogation room. Typically, the CID, NCIS, and OSI agents make many false promises to the accused and then deny their actions on the witness stand when asked. To expose agent dishonesty, an court-martial attorney confronts agents with exactly how they claimed they were going to “help” the accused.
Coercive Law Enforcement Tactic: Special Agents lie about charging authority.
Contrary to what law enforcement often tell suspects, they have zero input regarding whether or not charges are actually preferred against a service member; that decision is made by the Trial Counsel and command. Skilled cross examination uncovers the fact that CID, NCIS, and OSI agents have no real charging authority, despite their claims to the contrary. Securing concessions from Special Agents that they told an interrogated service member he or she would have the opportunity to present their side of the story shows the panel (jury) that the agents were dishonest and manipulative. A good defense attorney reminds the panel of these undesirable qualities throughout the trial, and especially during closing statements before a verdict is determined.
Coercive Law Enforcement Tactic: Disregarding Forensic Evidence
Many panel members may believe “CSI” type technology precludes the need for a confession. CID, NCIS, and OSI agents know otherwise. As important as forensics are in a case, they are often inconclusive or circumstantial. If the suspect didn’t leave a trail of blood or fingerprints at the scene of the crime, there may be nothing from which to collect DNA or other forensic evidence. Furthermore, labs such as USACIL often take months to process DNA and forensic evidence. Yet, during an interrogation, it is not uncommon for law enforcement agents to blatantly lie to an accused and tell them that they (CID, OSI, NCIS) actually have forensic evidence in their possession that points to guilt. This just another interrogation technique that can coerce an unknowing service member into confession to a crime that he didn’t commit. In other cases, where exculpatory forensic evidence actually does exist, law enforcement agents routinely disregard it because it may not point the finger at the suspect. Bottom line, law enforcement agents and prosecutors want confessions, it makes their job substantially easier despite any forensic evidence.
Coercive Law Enforcement Tactic: Isolation
Once CID, NCIS, or OSI agents decide who they think is guilty of a crime, their sole mission is to secure a confession from the suspect. The process involves isolating the suspect in an interrogation room. With total control over the environment, the agents dictate when a service member eats, uses the bathroom, has a drink, or can experience any contact with the outside world. In this isolated state, agents hope that the suspect loses hope, becomes exhausted, or becomes disoriented and confesses. It is critical for an experienced military defense lawyer to expose this tactic for what it is: a maneuver for eliciting confessions.
Coercive Law Enforcement Tactic: “Blinding” the Panel
Most law enforcement agencies around the country are required to videotape interrogations. Some CID, NCIS, and OSI agents refuse to do so, no matter how serious the case. When asked for an explanation, agents or agency representatives typically respond saying that it is not part of their procedure. We believe that some confessions are not videotaped so that, at trial, the jury will not see the coercive techniques used by the agents.
Military panel members can better judge the credibility of the confession if they can hear the tone of voice used, observe body language, and see the interaction between agents and the accused. To get the panel to question the validity of unlawfully elicited confessions, the defense counsel must question the special agents about how they assess credibility using sensory analysis (e.g. body language, eye contact, facial expressions, tone of voice, etc.).
By establishing that sensory input is necessary to assessing credibility, we show the panel the futility of non-video-taped confessions. Successful employment of this maneuver requires experience, mastery of trial technique, and perfect knowledge of the rights afforded to suspects.
Coercive Law Enforcement Tactic: Falsifying Written Statements
Only strong, experienced, and knowledgeable court-martial attorneys can successfully challenge written statements, particularly a signed confession. Dishonest procedures that agents use to acquire signed confessions must be exposed at trial in order to discredit the confession and the agents who took it. Much ground can be gained with the jury by revealing that the accused did not type the statement and did not choose the wording.
Moreover, a skilled attorney can expose the fact that the accused did not decide what to include or exclude in his statement and either did not appreciate the significance of word choices made on his behalf or was too overcome with mental fatigue to challenge the agents.
Proven Experience in Defending Confessions
Our firm has a proven track record of defending confession cases, and while each case is different and unique to its own facts and circumstances, pleading guilty is not a service member’s only option. The cases presented below are example of confession cases that were, against the odds, won at trial.
- In a case tried by Bilecki, two groups of men engaged in a gang-related brawl outside of a nightclub. During the brawl, a Soldier was stabbed in the chest four times. Several eyewitnesses described the stabber and another witness stated that the same man bragged about the stabbing to fellow gang members. After the brawl, the Soldier was picked up and brought to CID to provide “his side of the story.” Bilecki cross-examined the CID agents who interrogated his client and took his “confession,” honing in on the blatant lack of forensic evidence in the case and how the agents lied to the Soldier and convinced him that there was actually forensic evidence against him. The client was found NOT GUILTY of all charges, including attempted premeditated murder.
- A service member was interrogated for nearly 12 hours after being given a polygraph test. The polygrapher told the Soldier that he failed the polygraph when in reality, he did not. During the 12 hour interrogation the Soldier continually pleaded his case and told the agent that he did not commit the sexual assault that he was accused of, but the agent simply would not listen and refused to accept no for an answer. Through the use of coercive interrogation techniques, the accused “confessed” and was eventually allowed to leave the interrogation room. His entire command thought he was guilty. When Bilecki took the case, he dug into the interrogation, into the background of his client, and into the physical and forensic evidence. He revealed that the it was physically impossible for the alleged crime to have been committed the way our client “confessed.” At trial, Bilecki exposed the CID agent who obtained the confession through merciless cross-examination and proved that the confession was a physical impossibility. The client was exonerated and found NOT GUILTY of all charges and specifications.
Contact us immediately if you have confessed.
If you confessed to a crime and don’t want to just take the first plea agreement the government is giving you, contact a military criminal defense attorney at Bilecki & Tipon, LLLC to discuss all of your options. (808) 745-1041