False confessions are a blight on Virginia criminal defendants’ rights, says Fairfax criminal lawyer

False confessions (FC) happen too often, because even one false confession is one too many. As a Fairfax criminal lawyer, I share with you that the Virginia Supreme Court recently okayed a trial court’s refusal to let defendant Joseph Eugene Smith (ultimately convicted of statutory rape and object sexual penetration of a child under the age of thirteen) call law professor Alan Hirsch to testify to “(1) the frequency of [FC], (2) characteristics that make an individual more susceptible to making [FC], and (3) the interrogators’ aggressive application of the Reid method” in Smith’s case.  Smith v. Commonwealth of Virginia, ___ Va. ___ (Feb. 29, 2024).  (The Reid police interrogation method “involves confronting suspects with evidence of their guilt. The questioner displays unwavering certainty about the suspect’s guilt and does not allow the suspect to deny the crime. The Reid method also involves ‘theme development,’ whereby the questioner seeks to minimize the suspect’s guilt.” Smith.)

Why did the Virginia Supreme Court bar the testimony of a false confessions expert?

As to expert Hirsch’s assertion of the “surprising frequency of false confessions,” Smith agrees with the Circuit Court judge’s conclusion that “empirical data did not support” that conclusion. As to defense expert testimony about the characteristics that make a person susceptible to making [FC], Smith okays the trial court’s determination that “it would need to see evidence that would ‘connect the dots’ between (1) a diagnosed medical condition that would be beyond the ordinary  understanding of a juror and (2) that particular condition placing a suspect at risk of providing a false confession.” Concerning expert testimony about aggressive interrogation of Smith, Smith okays that the jury was simply enabled to watch the videotaped interrogation, and Smith’s attorney was permitted to cross examine the lead detective on the aggressive interrogation techniques used on Smith.

Silence is the best antidote against FC’s

All people in the United States have a Fifth Amendment Constitutional right to silence with the police / law enforcement officers  (LEO) and anyone else, and, in remaining silent with LEO and other government employees and officials, generally for their silence not to be used against them in court, both as to true and false confessions. This right applies to all people inside the United States, no matter whether they are United States citizens, visa holders, or without lawful documentation to be in the United States. If a suspect or criminal defendant is unsure whether to speak with police (for instance to pursue a favorable settlement negotiation in the process), it is critical for the suspect to consult with a qualified criminal defense lawyer, which is their right under the Sixth Amendment to the United States Constitution.

What if police mis-report what I told them?

Even when without any lying or malicious intent, people mis-hear, misunderstand and misinterpret other’s words and intent all the time. which by itself can turn true confessions to false confessions When different first languages and different accents and cultural and educational backgrounds are involved, such misunderstanding can be enhanced all the more. When we add the pressure, fear and discomfort of being in an interrogation hotseat, that accentuates not only the risk of such miscommunication and misunderstanding, but also risks the making of mis-statements, and police interruption of suspect statements that then get translated into the completion of an answer. When police-suspect interaction are not completely recorded (that includes the very first to the very last words between LEO and a suspect), the risk of police misreporting cannot be offset by video and audio that simply does not exist. Even in the presence of audio and video, the audio and video may not convey the full picture of the situation, for instance if the video does not show whether the interrogating police officer or his partner is patting their firearm while questioning the suspect. Again, the solution to all of this is to assert you Constitutional rights to remain silent and to consult with an attorney. Asserting these rights can spell the difference between being arrested or not, convicted or not, and severely sentenced or not.

Fairfax criminal lawyer Jonathan Katz has successfully defended thousands of criminal defendants and has successfully taken hundreds of criminal cases to trial. Jon Katz pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. You owe it to yourself as a Virginia criminal defendant to speak with Jon to see what he can do for your defense and for you to ask him your burning questions about your case risks and how to enhance your chances of obtaining the best possible outcome in your case. Call 703-383-1100 for your free in-person confidential consultation with Jon Katz about your court pending case.