“Yes,” Ross confirmed. “The person who makes no statement, the person who makes a true incriminating statement, and the person who makes an incriminating statement that isn’t true—all of them have decided that will be the course of action that has the greatest reward for them personally.”
“Okay. Now, you mentioned incriminating statements that aren’t true,” Talon said. “Are those sometimes called false confessions?”
Dr. Ross nodded to the jury. “That’s it exactly. The media usually calls them that. I’m actually comfortable with that term in this context. They are doubly false. First because they aren’t true, and second because they aren’t actually confessions then.”
“Okay, good,” Talon said. “That will be easier than saying ‘incriminating statements that aren’t true.’”
“Definitely,” Ross agreed with a smile to the jurors. Most of them smiled back.
“Are there any special dangers when it comes to false confessions?” Talon asked the good doctor.
“Oh, yes,” Ross agreed. “Socially, we give a lot of weight to confessions. Parents insist on confessions from their children, spouses from one another, employers and voters and you name it. We expect people to confess, and when they do, we believe them. This is especially true in the criminal justice system.
“In fact,” Ross took on an even more professorial tone, “in some parts of Europe during the Middle Ages, a confession was required for a conviction. Unfortunately, this led to a small industry in confession extraction. Torture, that is. Suspects would be tortured until they confessed, then the confession would be used against them to obtain the conviction. There’s actually a museum in Germany called the ‘Criminal Justice Museum’ but it’s really just a museum of medieval torture instruments. Very interesting.”
“I’m sure,” Talon reluctantly agreed. “But how does that all relate to false confessions?”
“Ah, yes.” Ross nodded and turned again to the jury. “Well, you see, because we give so much weight to confessions, because we have so much faith in them, it’s hard for us to imagine a situation where someone would confess to something if they didn’t actually do it. We think we would never do that ourselves, but that just shows a lack of imagination. There is always a situation where a person will confess to something they didn’t do, so long as they see a benefit to it greater than not giving the false confession. But we don’t see that internal decision-making process. We just see the confession. And in our society, a confession always equals guilt.”
“But we don’t torture confessions out of people anymore,” Talon pointed out.
“Torture? No,” Ross agreed. “Coerce, compel, trick? Absolutely. All that I just explained to you is very common knowledge. It’s not secret. The police know it too. And they receive training to exploit that decision-making process to obtain inculpatory statements from suspects. Many are true. But some are not.”
“Can’t the police tell when someone is making a false confession?” Talon challenged.
“Sometimes.” Ross shrugged. “If they want to see it. But a lot of times, the confession is what they need to close the case. There simply isn’t always the incentive to look critically at a suspect’s statement to determine why the suspect would have made the statement in the first place.”
Talon took a moment to nod thoughtfully, even raising a pensive hand to her chin. She looked like she was starting to understand. She was mirroring what she hoped the jury was feeling too.
“Did you yourself have a chance,” Talon asked Ross, “to look critically at the incriminating statement Luke Zlotnik made in this case?”
Ross nodded. “Yes.”
“And did you formulate an opinion as to whether that incriminating statement contained true or false information?”
Another nod. “Yes, I did.”
“What was your opinion based on?” Talon asked. These were the three requisite questions for admissibility of an expert’s opinion testimony. Did you have an opinion? What was it based on? And what was the opinion?
“My opinion was based on the particular facts of this case and my broad expertise in the area of false confessions,” Ross told the jury. “Specifically, I examined the language Mr. Zlotnik used, the language he avoided, how long he hesitated before answering, his knowledge or lack of knowledge regarding the legal impact of his statements, and whether there existed any perceived benefits of providing a false confession. I also considered the interrogation technique, especially the fact that the detective spoke with him at length about the details of the case before turning on the recording device.”
Time for the payoff question. “And what is your opinion as to whether Mr. Zlotnik’s incriminating statement to the police was true or false?”
Ross nodded and turned again to the jurors to deliver her own mini-verdict. “It is my expert opinion that the incriminating statement provided by Mr. Zlotnik was untrue. That is, he was lying when he said he knew his friend was going to commit a robbery inside the business.”
And boom, there it was. The expert just told the jury to disregard the prosecution’s biggest piece of evidence. Talon could sit down. But it never hurt to make sure they really, truly understood.
“So, you’re saying Luke didn’t know his friend was going to rob the store,” Talon repeated. It was worth repeating. “But then, why did he say that?”
Ross nodded and turned again to her lecture class of twelve. “Mr. Zlotnik is not a sophisticated person. He is relatively young and has no special training in the law. He was unaware that confessing to knowing about the robbery was tantamount to confessing to the murder. He knew he was a suspect for murder, so to avoid being held responsible for that, he admitted—falsely—to something lesser, namely being an accomplice to a robbery. But, again, he doesn’t know the law. He didn’t know being an accomplice was the same under the law as acting as a principal, and he didn’t know being a principal or accomplice to a robbery where a non-participant dies was defined under the law as murder. Had he known that, then he would not have made the false confession.”
“And you’re sure it’s false?’ Talon wanted it nailed down hard. “Luke didn’t know.”
Ross shifted her weight slightly, but put on a professional smile. “It is my expert opinion, based on my personal examination of the reports in this case and my years of study and training in behavioral and cognitive psychology that Mr. Zlotnik was not telling the truth when he said he knew his friend planned to commit the robbery.”
Good enough. “Thank you, Dr. Ross,” said Talon. “No further questions.”
Talon returned to her seat next to Luke.
“That went really good,” he whispered to her. “Right?”
But Talon just frowned slightly. “Ask me again after the cross examination.”
Cecilia Thompson stood up and circled out from behind the prosecution table. She moved smoothly, like a snake on the water, a predator assessing its prey.
“So,” she started, “you’re an expert on false confessions, is that right, Dr. Ross?”
“I would say so,” Ross agreed.
“But doesn’t that sort of assume the result?” Cecilia challenged. “If you’re an expert on false confessions, does that mean every confession you examine turns out to be false?”
“On the contrary,” Ross assured her. “I’m an expert on incriminating statements generally, not just the false ones.”
“Actually, you’re just a psychologist,” Cecilia challenged. “The American Psychiatric Association doesn’t recognize any sort of specialization in false confessions, does it?”
“The A.P.A. recognizes a specialization in behavioral and cognitive psychology,” Ross explained, “and that is my specialization. Within that specialization, I have concentrated my studies on the psychology of incriminating statements.”
“So, it’s a hobby,” Cecilia translated. “You think it’s interesting.”
“It is interesting,” Ross agreed, “but it’s far more than a hob
by. Woodworking is a hobby. This is my career field.”
Cecilia frowned. The snake was having trouble finding an opening. “Your opinion is based solely on the transcript of the defendant’s confession, isn’t that correct?”
“I also reviewed the police reports,” Ross told the jurors. “I needed to know what other information the investigation turned up, and when it was discovered, in order to evaluate what information Mr. Zlotnik had at the time he decided to provide an incriminating statement.”
“Confession,” Cecilia tried to correct Ross.
“False confession.” Ross wasn’t one to be corrected.
“Agree to disagree,” Cecilia quipped. It wasn’t a good look, though. Prosecutors weren’t supposed to be smarmy. The jury wouldn’t like that. Good, thought Talon. Ross was winning the battle so far.
“But you didn’t interview Detective Wolcott, did you?” Cecilia accused. “You say he tricked the defendant into confessing, made him think he’d be in less trouble if he lied about the robbery, but you didn’t give Detective Wolcott an opportunity to explain his methods, did you?”
“No,” Ross agreed. “I did not. That wouldn’t have been appropriate or helpful.”
“It wouldn’t have been helpful to talk to the detective who took the confession?” Cecilia practically gasped.
“No,” Ross answered calmly. “Because he either would have admitted it, or he would have lied and said he didn’t coerce the confession. Either way, it wouldn’t have changed my opinion.”
Cecilia actually took a small step backward, as if she’d been punched. “You think the detective would lie?”
Ross nodded. “Yes. He lied to Mr. Zlotnik. I see no reason why he wouldn’t lie to me. In fact, applying the principals I explained earlier, the most likely outcome would have been for the detective to lie to me. He would have seen the risk of helping the defense expert as a possible acquittal, which was a very adverse outcome for him, especially if it came about in part because of his own statements to me. On the other hand, if he lied and insisted he didn’t feed Mr. Zlotnik any details of the crime, that he didn’t suggest to Mr. Zlotnik that he was facing the real possibility of murder charges if he didn’t cooperate, or that he actually explained to Mr. Zlotnik how Washington’s felony murder rule worked, well, then , that would not have added anything to my analysis. I assumed that would be his position, and I came to my opinion anyway.”
“So, you’re saying a twenty-year veteran of the police force would lie?” Cecilia challenged.
“No,” Ross responded calmly. “I’m saying the eighteen-year-old defendant did lie. He did not know his friend was going to rob the check-cashing business. He only said that because he thought he would be arrested for murder if he didn’t say it.”
And the snake lost the battle. Dr. Ross was a mongoose.
Cecilia hesitated. She probably should have just announced, ‘No further questions.’ No further questions meant no further damage to her case. But she couldn’t end on that. So, she fell back on the old standby for expert witnesses. Old and tired.
“You got paid to come here and testify the defendant’s confession was false, didn’t you?” she accused.
“I was paid for my time,” Ross corrected. She turned to the jurors. “I charge the same rate to testify as I do for any other service I provide, including speaking at conferences. But I do not get paid to give a particular opinion. My opinion wouldn’t be worth very much if it could be purchased.”
Cecilia nodded and sneered slightly at the doctor. “Well, that’s one thing we can agree on.”
She spun on her heel and marched back to her counsel table, announcing, “No further questions,” over her shoulder as she went.
Judge Kirshner raised an eyebrow at Talon. “Any re-direct examination, Ms. Winter?”
Of course not, Talon thought. My witness killed it. “No, Your Honor,” she stood up to say. “Thank you.”
“The witness is excused,” Judge Kirshner declared. She looked again at Talon. “Does the defense intend to call any further witnesses?”
Talon was still standing, having anticipated the need to answer that very question. But she couldn’t. Not yet. And not in front of the jury. “Could we take a brief recess, Your Honor?”
CHAPTER 49
All the lawyers knew what Talon meant when she asked for a recess. The only possible remaining defense witness was the defendant himself. But a defendant had the right not to testify, and if he chose not to testify, no part of that could be used against him. That was so important that it was considered reversible error for a judge to ask a defendant if he wanted to testify in front of the jury. It would force a non-testifying defendant to say, ‘No’. Instead, everyone would just pretend like the defendant was never going to testify anyway and everything was fine. Nothing to see here. Move along.
So, Judge Kirshner excused the jury to the jury room and waited for the bailiff to close the door behind them. Once it clicked shut, she looked down at Talon. “Is your client going to testify?”
“I’m not sure,” Talon answered. “I need a few minutes to discuss it with him.” She looked around the courtroom full of prosecutors and jail guards. “In private.”
Kirshner frowned. She was going to give Talon the time she needed—within reason—but there were security issues with an in-custody defendant. She couldn’t just let them talk in the hall.
“Judge Parsons’s courtroom is next door, but they’re on recess this week,” Judge Kirshner said. “You can use that courtroom.”
Talon looked at the corrections officers. “Will we get any privacy?”
Kirshner nodded. “Of course. Officers, you are to wait outside Judge Parsons’s jury room…after you handcuff Mr. Zlotnik to the table.”
Talon stopped herself from shaking her head. She understood the judge’s concern—Luke was charged with murder and Canada was only three hours away—but she also understood why Luke would want to run away from a system where poor people were held in jail before they were convicted. “Thank you, Your Honor,” she said.
The guards actually handcuffed Luke first, then marched him next door, then uncuffed him long enough to recuff him to the leg of the large conference table in the jury room. The table legs were recessed, so Luke was forced to slump over the table, one arm pulled underneath. When the door to the jury room closed, Talon started the discussion.
“We need to decide whether you’re going to take the stand and testify on your own behalf,” she said. “I can give you my opinion and advice, but it’s your decision to make. I can’t force you to take the stand and I can’t keep you off it either.”
“Okay.” Luke nodded, an awkward motion given his one arm extending under the table. “What do you think I should do?”
Talon hesitated. She knew he would do whatever she said. So, she knew she’d better be right. It was always a tough call. But when faced with a difficult decision, her gut usually told her what to do. And her gut was unequivocal. “Don’t testify.”
Luke frowned. “Shouldn’t I tell them I didn’t do it? Shouldn’t I tell them I didn’t know what Miguel was going to do?”
Talon shrugged. “Dr. Ross just told them that. I told them that in opening statement too. If you get on the stand and say it again, so what? You’re the defendant. You’ll say anything to get out of trouble. Hell, Dr. Ross just said as much.”
“If I testify,” Luke asked, “does the prosecutor get to ask me questions, too, or just you?”
“The prosecutor gets to ask you questions, too,” Talon confirmed. “That’s the danger. If I could have you just tell your side of the story and sit down again, it would be a no-brainer. We’d do that in a heartbeat. But that’s not how it works. If you answer my questions, you have to answer hers.”
Luke frowned. “She seems like a pretty good lawyer.”
Talon nodded. “She’s a very good lawyer. Dr. Ross was able to handle her, but she’s a professional witness. She testifies all the time, all over the co
untry. But you? You’re not ready for her. She’s good, and she’s prepared, and she will take you apart brick by brick. It could undo everything we just gained with Dr. Ross.”
“Can I just plead the Fifth or something if she goes too far?” Luke hoped.
But Talon shook her head. “Nope. The Fifth Amendment is all or nothing. Either you take the stand and answer everybody’s questions, or you remain silent and the jury doesn’t hear from you at all. If you tried to invoke the Fifth halfway through cross, the judge would strike all of your testimony, even the stuff you told me. And you’ll look guilty as hell.”
“Shit,” Luke opined.
“Yeah,” Talon agreed. “You have to answer every single one of her questions. Like, if the plan wasn’t to rob the check-mart, then what was your plan? If you say you were gonna buy drugs, or Miguel was gonna cash a check he stole from his mom, the prosecutor will be allowed to argue that those are also felonies and since Officer McCarthy died in the process of those felonies, you’re still guilty of murder, even if you didn’t know about any robbery.”
“Really? They can just change the charges?” Luke asked.
“Yep,” Talon confirmed. “They can amend the charges right up until the jury begins deliberating.”
“That’s messed up,” Luke observed.
“It sure is,” Talon agreed, “but it’s the law.”
She saw the thoughts swirling behind Luke’s eyes. “I also can’t put you on the stand if I know you’re going to lie,” she said. “That’s suborning perjury, which is also a felony. And I’d lose my bar license. So, that’s not an option either.”
“Sure, sure,” Luke nodded, obviously disappointed.
“So, the bottom line is this,” Talon said. “There are huge risks in you testifying, and only limited benefits.”
“Okay,” Luke non-committed.
“More importantly,” Talon went on, “I think the trial has gone pretty well for us. The teller couldn’t remember what Miguel actually said. Dickerson wouldn’t admit he was the only one with a gun, so he’s obviously a liar. And Dr. Ross just told the jury your confession was a lie and you’re innocent. Honestly, I don’t think we need you to testify.”
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