The defense attorney begins by going through each fact in the confession and finishes with questioning along the following lines.
Q. So, my client did not tell you a single fact about how the crime was committed that you did not already know?
A. Well, we didn’t know that he was the one that committed the murder.
Q. Before the interview, you did suspect him, right?
A. Yes, that’s what our investigation showed.
Q. You arrested and interrogated him because of your suspicions?
Q. Now, I was asking you about the description of how the murder was committed, not who committed it. So, my client did not tell you a single fact about how the crime was committed that you did not already know?
A. That’s right. Next, the attorney demonstrates that the police rehearsed the story with the defendant.
Q. Officer, you know what a leading question is, don’t you?
Q. That’s a question in which the person asking suggests the answer?
Q. Just like I’m doing now, right?
Q. That’s different from a non-leading question, which is one that lets the witness tell his story the way he wants.
A. I don’t know what you mean.
Q. Well, on direct examination, the prosecutor asked you several times, “What happened next?” Right?
Q. And that kind of question let you tell the story in your own words.
Q. You were in the courtroom when the prosecutor played the videotape of my client’s statement, weren’t you?
Q. All the questions asked my client about the killing were leading questions, weren’t they?
A. I don’t know.
Q. In each one of these questions, you gave my client the answer in your question, didn’t you?
A. He didn’t have to agree with the question.
Q. You didn’t let him tell the story in his own words by asking him, “What happened?”
A. I did before we started the recording.
Q. So you’re telling us that when my client told the story in his own words, you didn’t record him, but when you recorded him, you chose to put words in his mouth?
A. The prosecutor may object that this question is argumentative. The objection may be correct, but it doesn’t matter because no answer to the question is necessary. The defense attorney has made the point for the jury and can return to it in closing argument.
Q. So my client made a statement to you before the recording started, is that what you’re saying?
A. It was basically the same thing.
Q. But you chose not to record that statement?
A. We had not turned on the recorder yet, that’s right.
Q. You had it there in the precinct, didn’t you?
Q. Just didn’t turn it on?
Q. Didn’t write down what my client said before the recording started either, did you?
A. No. I knew we’d be recording him later.
Q. So the answer is no?
A. That’s what I said.
Q. You were interviewing my client for four hours before you started the recording according to your records?
A. Well, we weren’t talking to him the whole time.
Q. Sometimes you just let him sit there?
Q. But most of the time you were talking to him?
A. Yeah, sure.
Q. And the recorded statement lasted only 20 minutes?
A. That’s what it said on the video.
Q. So you didn’t make any record of what my client said to you in the four hours before the recording?
Q. We just have the 20 minutes of you giving my client facts and him saying yes or grunting?
A. We have whatever is on the tape.
Closing argument on recorded confession
After this line of questioning, the defense attorney can bring up the following points in closing argument:
- Before the police began to work on him, the defendant insisted he was innocent.
- The police did not accept that and began to work on him.
- Here are the techniques the police used to break down his will.
- The police already knew how the crime was committed (list each fact they knew).
- The police, as you saw on the tape, fed the defendant the facts they already knew and got him to agree with them.
- The defendant did not agree because those facts were true, but because after so many hours, the defendant realized that it was the only way to stop the interrogation and get the police off his back.
- The police could have chosen to record the entire interrogation to let you judge, but they did not want you to see the defendant’s insistence on his innocence and the techniques they used to break him down.
- Therefore, this so-called confession is just the police story, put into the defendant’s mouth. You cannot trust it or what the police did or told you about what they did.