In whatever language or country, a criminal defense lawyer’s advice will be the same: Shut Up, Halt die Klappe, Boucle-la, Тише, ¡Cállate!
It’s Christmas, and work is slow before the four or five murder trials I will have in 2021, so I’m reading up on the German criminal process and criminal law. (In law school I took comparative law and we learned a little bit about various European systems. It turns out that the differences are not so great.)
Reading about other countries system at least helps you remember when you are in the sort of awful system that is the American judicial system that it doesn’t have to be this way.
But – throughout the world – defense lawyers – Strafverteidiger in German – have the same basic advice for clients: Do not speak to the police with out a lawyer present.
1. A Confession will Drop the Charges
While it may be appropriate to give a confession – Das Geständnis – a suspect (person, human being, the accused) often wants to give a confession at the beginning of the process in order to – they hope – convince the police to not issue an arrest warrant.
This never happens. Police never drop charges simply because they now have an explanation for why the crime was committed. In fact, police are far more likely to pursue charges because you’ve now made the crime easy to solve and another statistic that they can record in the “Win” column.
Police would only drop a charge in a case so minor and insignificant that it isn’t worth worrying about in the first place.
2. Early Confessions are Believable
Clients sometimes assume they should confess early in order to get credit for the confession they’ve given on the theory that an early confession will be more believable. While it’s true that a late or delayed confession can be harmful, an early confession can harm as well. A confession given before the lawyer has sufficient information about all of the facts can be catastrophic in a case, closing off the opportunity for an even better result.
Early confessions are quite simply not necessarily more believable. A person may only partially confess (which makes the confession unreliable) or the person may confess inadequately – not accept full moral culpability. Or the person may be actually confused or mistaken about what happened because they didn’t see anything, and render an inadvertently false confession.
Finally, in their rush to confess, a client may be incomplete in his or her confession, resulting in confusion by the police that will later be blamed on the client.
3. Early Confessions Get Me More Credit
An early confession, some clients believe, will get them more credit. Compared to what?
Once a person has confessed, in almost all cases – and notwithstanding Miranda – they will not be able to to take the confession back. At the very least, the police have heard the confession and will pursue the case vigorously to secure a guilty result.
As a consequence, if a person has confessed to a crime that the police could not have otherwise proved or investigated, the person may have gotten themselves more credit as compared to having not confessed in the prosecution but a lot more punishment as to the crime itself which may not have been properly investigated absent the confession.
Furthermore, police always want a confession now, “now” being the moment before they get the confession. In other words, police would be nearly as happy – and happy enough – to get your confession after you talk to your lawyer as before your lawyer, understanding that they want to get the confession as quickly as possible.
Because the confession is almost always an unknown piece of information that police are desperate to get, a confession is almost always valuable. At the very least, a confession – in the form of a guilty plea and allocution – avoids the necessity for a trial and will be rewarded in almost all cases. But more generally, a confession done early enough in any case will – depending on the applicable law – create statutory avenues for reductions in sentence.
Early confessions are rarely important, and should rarely be done, and only done with an attorney’s advice.
4. I Need to Confess Now!
Whether and when to confess is always a fact-specific issue, and should be discussed with your lawyer. But there are almost always – as noted above – multiple opportunities to confess. It may – for technical reasons – be necessary to confess before a specific date or event, but even if that date passes, some benefit may be had from a late confession.
But early confessions can’t be retracted. There is no imperative to confess now or now or even now. Rather, there are various times where a confession may be valuable, and by talking to your attorney you can figure out whether and when you should confess.
5. The Best Confession
There is no “best confession.” A good confession, however, is truthful and consistent with all the other believable evidence, and comes at a point in the case where maximum benefit can be gained without losing other advantages. Therefore, a good confession is a confession that results in the least possible punishment (given the other realistic outcomes).
Confessions cannot relieve the defendant of all responsibility, except in extremely minor crimes. Confessions can only minimize the impact. The fact that the person is required to confess is itself an imposition on that person that cannot be undone.
Life is never the same after the police coming knocking. Don’t confess without a lawyer.