Most people know that criminal defense attorneys generally advocate for their clients to remain silent during any criminal investigation. In fact, we see politicians do it regularly when called to testify in front of Congress. Your fifth amendment right protects you from self-incrimination. However, the right provides protection that our forefathers likely never considered.
I recently read Robert Cialdini’s new book Pre-Suasion: A Revolutionary Way to Influence and Persuade. In Pre-Suasion, Cialdini goes beyond why people are predisposed to give false confessions and gets into the less obvious problems caused by providing statements to law enforcement.
False confessions occur when a person who is being interrogated either attempts to appease police by giving information the officer wants, believes that appeasing the officer will result in being allowed to go home, or is simply exhausted from a lengthy interrogation. This article is not about false confessions, but rather the dangers a criminal defendant faces when giving statements to law enforcement.
Criminal defense attorneys spend quite a bit of time reviewing their clients’ statements to law enforcement in order to determine a few things:
1. Whether the defendant actually admitted to committing a crime.
2. Whether the defendant provided factual details that will corroborate the prosecutor’s theory of the crime or establish probable cause for an arrest.
3. Whether the defendant provides seemingly insignificant information that could make him or her appear guilty in the eyes of the jury.
However, there is another aspect that criminal defense attorneys do not often review: The prejudicial effect of giving the statement itself. Cialdini indicates that the cameras in interrogation rooms are often focused on the criminal defendant in a way that causes viewers to look at the defendant in a negative light. Cialdini suggests that in order to provide an objective interrogation recording, the camera should not be on the criminal defendant, but rather positioned so the viewer can see both the criminal defendant and the interrogator.
This is important for a few reasons. First, before a criminal defendant’s statement is admitted into evidence, the court must determine whether the statement was freely, intelligently, voluntarily, and knowingly given or whether it was the product of coercion. Studies have shown that when the camera is focused on the suspect rather than the interrogator, viewers are less likely to believe that the subject’s statement is the product of coercion. However, when the camera is focused on the interrogator, it is more likely that the viewer will believe that the subject’s statement is coerced. Therefore, when a criminal defense attorney tries to convince a judge to throw out a client’s statement prior to trial, the client is in a better position if the camera is not focused on the defendant’s face but rather captures the faces of everyone participating.
If the judge determines that the statement fits the legal criteria to be allowed into evidence at trial, the jury will also be given the opportunity to watch the video. There are advantages and disadvantages to this. The jury can decide whether they believe the statement was freely given. However, based on the focal point of the camera used in the recorded statement, a jury might be much more likely to be Pre-Suaded that the defendant is guilty of the crime.
Put simply, if the defendant doesn’t give a statement, there is no video recording of the statement, and therefore a camera angle can’t be a factor in a final verdict. This is minor in the grand production of a jury trial, but when a person’s liberty is on the line, every inch helps.
Ironically, the purpose of recording interrogations was to make the process more balanced and objective. In the 1970s, there were several cases in which false confessions couldn’t be disproven because no recordings existed, leaving criminal defense attorneys without proof of unethical and unreliable interrogation tactics practiced by law enforcement. The purpose of recording videos is to help law enforcement establish the reliability of the statement and to protect the defendant’s rights. However, Cialdini states that even if a defendant’s statement is recorded, the recording may be prejudicial based solely on camera angles and visual depictions.
In sum, Cialdini’s insight may seem strange, but it provides another reason for criminal defense attorneys to advise their clients invoke their right to remain silent.
If you have been charged with a crime, you have tough decisions to make. When you hire the Berry Law Firm’s team of experienced defense attorneys, you pay us to worry about your legal problem, allowing you to focus on moving forward with your life. To schedule a consultation please call (402) 817-6550 or contact us here.