On Confessions And Recantations

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We heard the story of Troy Davis from Savannah, Georgia who was executed through lethal injection despite the recantation of several witnesses as well as appeals from influential organizations and leaders such as Amnesty International, former President Jimmy Carter, and Pope Benedict XVI. We also often hear in the news about exoneration of convicted criminals brought about by subsequent recantation of witnesses’ statements relied upon by juries in handing guilty verdicts.

Confessions – especially those police-induced false confessions – are one of the leading causes of wrongful convictions. As of April 23, 2017, the National Registry of Exoneration reports that false confessions account for 12 percent of all those already exonerated from wrongful conviction (There are 2,018 exonerated convicts from 1989 to 2016). False confessions tend to appear in homicide cases and other high-profile felonies. Those who are wrongfully convicted are oftentimes subsequently exonerated and vindicated after they already spend years or decades of their lives behind bars. The facts and figures compiled by FalseConfessions.org regarding the correlation of confessions, convictions, and exonerations of convicts are disturbing.http://www.falseconfessions.org/fact-a-figures.

Recantation of confessions of guilt and witness statements is becoming more common in court proceedings. This article deals with the recantation of confessions of guilt by the accused and the statements of witnesses.

How Witness Statements and Accused Confessions are Secured

When accused is picked up by law enforcement officers from the streets or crime scene, he or she is brought to police stations for questioning and further investigation. Witnesses are likewise invited to the station to shed light on the incident. Although not required in all jurisdiction, statements are usually taken through audio and video recording devices. Statements are likewise reduced to writing and signed.

Confessions involve extrajudicial (outside the court proceedings) admissions of certain facts in the presence of law enforcement officers and investigators. Typical admissions involve declarations explaining the presence of the accused or witness in the crime scene. Accused and witnesses are generally asked why they are in a particular place at a particular time. Investigators asked accused and witness what they personally know, what they saw, what they heard, what took place, and what are their particular involvement in the given situation.

Confessions and statements are secured through various interrogation techniques such as the common “good cop, bad cop” approach. Other confessions and self-incriminating admissions are made to undercover agents. Some confessions are sheer products of spiritual enlightenment or sense of justice at the moment – when accused or witness is struck by feelings of remorse and the need to let go of the heavy burden of guilt feeling.

Confessions from accused involve admission of participation in the crime activity as well as admission of guilt. Confessions of these nature are the “gold standard” for law enforcement officers – that’s when investigators get a break or a lead for further investigation. Confessions are very useful for the investigators especially in cases where no other witnesses are available. Confessions and incriminating statements are likewise important in cases such as sex crimes where victims are minors or mentally or physically incapacitated where the ability to understand the nature of the crime and ability to make known what happen through testimony post a great challenge.

Admissibility of Confessions and Incriminating Statements

Admissibility of confession in Georgia is governed by O.C.G.A. 24-8-824 which provides: To make a confession admissible, it shall have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.

The admissibility of a confession is dependent upon the satisfaction of three conditions:

  1. The defendant must confess voluntarily. Voluntary is basically synonymous with spontaneous, of his own free will, and not overmastered by the will of another.
  2. Confession cannot be induced by another by the slightest hope of benefit. Slightest hope of benefit means the hope of a lighter sentence. Promises related to reduction of criminal punishment such as shorter sentence, lesser charges, or no charges at all are examples of benefits.
  3. Confession should not be the product of the remotest fear of injury. This means that there is no physical or mental torture used in securing the confession. State v. Roberts, 543 S.E.2d 725, 273 Ga. 514 (2001).

In assessing the admissibility of confession made by the juvenile defendants, Georgia courts adopted the 9-factor test: 1) age of the accused; 2) education of the accused; 3) knowledge of the accused as to both the substance of the charge and the nature of his right to consult an attorney and remain silent; 4) whether the accused was held incommunicado or allowed to consult relatives, friends or an attorney; 5) whether the accused was interrogated before or after formal charges had been filed; 6) methods used in interrogation; 7) length of interrogation; 8) whether or not the accused refused to voluntarily give statement on prior occasions; and 9) whether the accused has repudiated an extrajudicial statement at a later date.Vergara v. State, 657 S.E.2d 863, 283 Ga. 175, 283 Ga. App. 175 (2008).

Procedures in Recantation and Ramifications

In general, recantation involves a two-step process: First, explaining the motive behind making the original false statement, and second, explaining the reasons for making the new truthful statements.

When confronted with prior confessions and statements, accused and witnesses often explain their statements in several ways: they told the truth, they lied, they were forced to lie, they could not remember what they stated or signed (if in writing) because they were not thinking well, intoxicated, drugged, or hypnotized, they exaggerated their stories, they told only half-truth, they fabricated the story in order to get off the hook or hope to get a better deal from subsequent prosecution, they misspoke, they were not given ample time to collect their memory and process and reflect on what actually happened.

Recantation starts when feelings of remorse struck the accused-confessor and witnesses. Accused and witnesses feel the greater need for justice and the need to straighten facts out by telling the truth “and nothing but the truth this time.” When accused and witnesses mustered enough courage to defy the authorities’ undue influence and coercion, they start to think on their own and act in accordance with their own volition.

Recantation or withdrawal of incriminating statements can be in writing through sworn statement or handwritten notes and/or orally through testimony inconsistent with previously given statements.

  1. Prosecution’s Nightmare or Blessing?

Recantation of confessions and witness statements can happen during trial where prosecution can be caught off guard. Although unexpected recantations of confessions and witness statements happen in courts from time to time, prosecutors often are not worried because they have more evidence other than confessions. Accused must be aware that prosecution does not rely on witness statements and confessions alone. As long as corroborative evidence are present, prosecution can secure convictions. Moreover, prosecution can argue that the accused and witnesses have fresher memory at the time of the original statements than at the time of recantation. In some occasions, the prosecution can offer prior inconsistent statements as substantive proof of the matters alleged therein without further testimony of the declarant. In the same manner, the court could instruct the jury that prior inconsistent statements can serve as impeaching those in-court testimony.

Whenever inconsistent statements are involve, the credibility of the declarant is at issue. It is generally known that between the testimony of accused who changes his statement in order to save himself from unfavorable verdict and the testimony of law enforcement officers who swear to clear the society of lawless elements, the jury often believes the latter.

Procedurally, if unexpected recantation of witness statements happen during trial, the court often suspend the proceeding and excuse the jury while advising the witness of his rights and the effects of his recantation including possible charges of perjury.

  1. Defendant’s Best Defense is Offense

Once a witness recants the testimony relied upon by the prosecution, the defense must not celebrate yet because, as mentioned above, prosecution often has other corroborative evidence to prove their case.

If accused has reason to believe that his confession and other witness statements are not admissible, he must take the initiative to file necessary motions before courts of proper jurisdiction and ask the court to throw out or suppress such confessions and statements. In Georgia, the motions are heard in what is called Jackson-Denno hearings. In Jackson-Denno hearing, the court determines if confessions or witness statements are admissible as evidence. In this hearing, the accused or any recanting witness can testify that statements are inadmissible because it is not voluntarily given. The burden of proving the admissibility of confession is on the prosecution because the proceeding is criminal in nature. Prosecution can introduce evidence that declarants are fully aware of what they are doing and declaring at the time of confession. More often, Jackson-Denno motion is combined with Miranda motion (from Miranda v Arizona case) which includes prayer to suppress other evidence including object and documentary evidence (fruits of poisonous tree) because of violation of constitutionally guaranteed rights against self-incrimination and right to remain silent.

One of the key evidence presented during Jackson-Denno-Miranda hearing is the recorded audio or video confession of the accused and witnesses. It is basic principle in criminal investigation and prosecution that defense must be appraised and provided with all the evidence in possession of the prosecution even if it harms the prosecution case. The primary duty of prosecution is not to convict accused but to make sure that justice is done. If the defense believes that audio or video recording can prove or demonstrate involuntariness of a confession, a Brady motion for exculpatory evidence can be also be filed. Videotape often clearly show how the interrogation was conducted, what the demeanors of the investigators and the accused and witnesses are, and how the statements and confession were secured.

Confessions and recantation of confessions involve substantive and procedural laws as well as evolving case laws. Technical rules are laid down in order to make sure that no one is unjustly convicted and put in prison or sentenced with life imprisonment and death. If you or someone you know has been charged with a crime as a result of false confession and you think that injustice will result from it, don’t hesitate to call Bixon Law at 404-551-5684.


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