Not All Confessions are Created Equally

“I didn’t do it.”

Minutes after the polygraph exam, the polygrapher—in no uncertain terms—says: “You did not pass the test. There is no doubt you did [the crime you’re suspected of].”

You continue to deny any wrongdoing. But the polygrapher keeps insisting they know the truth and that your version of what happened is a lie. Two hours later, you break—you sign a statement confessing to the crime.

A year later, you’re in court. The government has little evidence other than your confession. Your attorney argues the confession wasn’t made voluntarily, but the judge refuses to suppress it. The jury will see it at trial. And when they do—despite there being little corroborating evidence—they will convict you. And they will do so because they wrongly believe that innocent people do not confess to crimes they did not do.

“A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt . . . but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape . . . that no credit ought to be given to it; and therefore it is rejected.” King v. Warickshall, 1 Leach 262, 263–264, 168 Eng. Rep. 234, 235 (K. B. 1783).

Was the confession described above free and voluntary? I submit to you that it was anything but that. It was the product of a polygraph examination, a tool so unreliable no competent court permits its admissibility into evidence. Yet, we as a society, continue to permit law enforcement to use it as a tool to extract confessions. And I believe we do so because it has not touched enough of the “right” people’s children yet.

I’m a criminal defense lawyer—I’m biased. No surprise there. But I have no problems with confessions made freely and voluntarily. That said, I don’t understand how we keep a straight face when we let confessions beaten out of people with a polygraph machine into our courts. Do you?