The first thing Jens Söring says about his detailed confessions to the murders of Derek and Nancy Haysom is that he “retracted” (widerrief) them. At this point, Söring’s supporters immediately move on to their favorite theories of his innocence. He retracted his confession! What more do you need to know?
So what exactly does it mean when you retract a confession? The result is slightly different under American and German law. But no matter the jurisdiction, the questions are (1) why did the suspect confess; (2) how reliable is the confession, and (3) why did he later retract the confession?
Did police lie to him, beat him, threaten him or his relatives, or deprive him of food and water? Did they make false or impossible promises? Was the suspect young, mentally ill, or developmentally disabled? Was he under pressure from someone to take the blame? Was there a language or cultural barrier? Did the police advise him of his rights and honor any request for legal counsel?
Then you ask: How reliable is the confession? Did the suspect himself volunteer information, or did the police feed it to him? Did he reveal things only the killer or someone at the crime scene could know? Do the motive and circumstances make basic sense? Was the confession recorded? Was it written in the suspect’s hand? Was it summarized by a police officer?
And finally, why did the suspect retract the confession? Because it was obtained by force or trickery? Did someone put him under pressure earlier to confess, and that person is now no longer in the picture? Or did the suspect simply realize that he has gotten himself into a great deal of trouble, and now wants to minimize the damage to his legal chances?
Those are lots of questions, and few of them are dispositive, as we lawyers say. That is, most of these issues are not deal-breakers on their own. All of these factors must be weighed and judged in a broad global analysis of all the relevant circumstances. Maybe the cops made improper promises to the suspect (but no threats or abuse), but the confession is absolutely rock-solid and corroborated. The confession (probably) comes in. Maybe the cops acted like Mother Teresa, but the confession is incoherent and conflicts with the crime scene evidence. The confession (probably) stays out.
The same thing goes for retracting a confession. If you confess and then later retract the confession, the court will examine exactly why. At this point, you, the defendant, bear the burden of proof. You have to explain why you confessed, and why you’re now retracting it. Your story has to be coherent and convincing. If you can’t come up with a good reason why your confession shouldn’t be trusted, the court will use it anyway.
This is the case both in Germany and the USA. Here’s a good plain-language description (g) of the state of the law in Germany, from a German lawyer’s website (my translation):
A confession can be retracted at any time before sentence is pronounced. A reason for a retraction can be, for example, a change of strategy after a change of lawyers, because the new lawyer considers a confession inadvisable. However, the decision to retract should be carefully considered. For one thing, the mitigating effect of the confession expires with the retraction. Further, the confession does not vanish into thin air without a trace after revocation.
If the confession was made before an investigating magistrate, the minutes of the hearing can be read out and in this way introduced during the main trial. This possibility does not exist if the confession was made to the police or the public prosecutor’s office, but in such cases the interrogator may be questioned as a witness. In such cases, the confession becomes part of the evidence, even if only indirectly, and can influence the judge’s decision. In particular, the court may treat a confession as credible even though it has been retracted and the accused has distanced himself from its contents.
It cannot therefore be ruled out that a defendant may be convicted on the basis of the confession, notwithstanding the retraction. Furthermore, the confession can be used to justify further investigative measures even after its retraction. The resulting evidence, which was only obtained as a result of the confession, can be used in court, regardless of how the confession was handled. This also applies to investigative measures against other persons named in the confession.
The situation is broadly similar in the USA. There are some important differences, but they don’t apply to Jens Söring’s case.
So now we can understand why the confession was used against Söring. The judge at Söring’s 1990 trial held an extensive hearing into the circumstances of Jens Söring’s confession. The judge found that Söring gave his confession voluntarily, providing details spontaneously without any prompting. There were no threats or abuse, and Söring was repeatedly advised of his rights. Judge Sweeney therefore decided the confession could be presented to the jury. Sweeney did not decide the confession was reliable himself, that’s not what American judges do. The judge simply ruled that there were no problems with Söring’s confession so severe that the confession should be totally kept out of evidence. He properly decided that the jury could decide how convincing they found Söring’s confession.
And it’s not as if Söring had no opportunity to make his case. Söring was allowed to testify before the jury and explain why he confessed, and then why he “retracted” his confession. The jury heard from the people who took his confessions — Kenneth Beever, Terry Wright, and Ricky Gardner. Then they heard from Söring, who gave his side of the story.
The jury clearly felt that Söring’s confession was important proof of his guilt. Not the only proof, but a very important part of the puzzle. Every one of the appeals judges who reviewed Söring’s trial agreed that Judge Sweeney made the right decision to let the jury hear Söring’s confession, and that it was important and relevant proof of his guilt.
That’s really all there is to it. Stay tuned for more exciting developments soon!
P.S.: As a former criminal-defense lawyer, I feel obliged to say one thing clearly: Never make any statement about your involvement in a possible crime to anyone without first consulting a lawyer. Never.
