I just finished (re-) reading Jens Söring’s testimony and cross-examination at his trial, which I will be posting about in some detail in the upcoming days/weeks, as my schedule permits. It turns out there’s a pretty fascinating legal question raised by Söring’s testimony at his suppression hearing — just one of the many interesting legal questions raised by his case.
This post is going to get into some detail on the law, but I will try to keep it understandable for lay readers. If you’re confused by something, let me know in comments, and I’ll try to clarify.
A few days ago I posted a summary of the suppression hearing in Jens Söring’s case. In that hearing, he never said anything about confessing to protect Elizabeth from being convicted of murder and being sent to the electric chair. Söring instead testified that he confessed because the English detective Kenneth Beever had threatened to injure Elizabeth. Beever denied the allegation, and the judge ruled that the threat had not taken place, and therefore that Söring’s confessions could be used as evidence, which they were.
So as I read Söring’s testimony — and most importantly, his cross-examination by District Attorney Jim Updike — I wondered whether Söring’s testimony about Beever’s threat would come up. Spoiler alert: it didn’t.
To answer this question, we’re going to have to get into some details about American criminal procedure and trial strategy.
Let’s use an example. You’re in a park, selling drugs. You’ve got a bag next to you with the drugs in them, and people come up and give you money, you take the drugs out of the bag and give them to your customers. A policeman comes along. He hasn’t seen you actually dealing drugs, but he thinks, perhaps based on your reputation or even your race, that you probably are. He flashes his badge at you and says: “Sir, is that your bag?” You say “What, you mean that bag, right there? It’s not really my style.” The policeman then says: “Fine, then I’ll just open it up right now and see what’s in it.” You say: “Don’t do that. You have no right to look in that bag. I’m just here minding my own business.” The cop ignores you. The cop opens up the bag and finds a bunch of drugs in it. The drugs have your fingerprints all over them. You’re arrested for selling drugs.
Now you’re about to be put on trial. Your attorney says to you: “Listen, those drugs were seized from you unconstitutionally — you have a Fourth Amendment right to protection from ‘unreasonable’ searches and seizures. If a cop wants to search someone’s bag, the cop needs ‘probable cause’ (roughly like an Anfangsverdacht). The cop never saw you selling drugs, and he didn’t have any specific information, like a statement from a witness, that you were selling drugs. He just guessed. Also, you told him you did not consent to a search of the bag. Therefore, he had no right to look inside your bag.”
“Great!” you say. “That means the bag full of drugs can’t be used against me at trial.”
“That’s right,” your lawyer says. “So before the trial ever starts, we’re going to have a separate hearing, without the jury present, in which we’ll argue the bag should be suppressed as evidence — i.e., the state cannot use it at trial.”
“Sounds like a plan,” you say. However, your lawyer then says: “But you will have to testify at the hearing that you denied the cop permission to search your bag. The cops says you told him it was OK to search your bag. You have to say that’s wrong, you never gave your consent.”
“OK,” you say. “But wait a second — if I say it wasn’t my bag at the suppression hearing, isn’t that a problem? After all, if it wasn’t my bag, then I don’t have any right to complain that the cop searched it.”
“That’s true,” your lawyer says. “If a cop is wandering through a park and sees a bag just sitting there, with nobody near it, then he’s usually allowed to search it. After all, it could be someone’s valuable lost property. The cop would be justified in looking into the bag to see if it’s a bomb, or if it contains information indicating who the true owner is, so that it can be returned to its owner. So to establish that you had a right to tell the cop not to search the bag, you will have to admit the bag was yours.”
You say to your lawyer: “This is a Catch-22. If I testify at the suppression hearing that it wasn’t my bag, I have no right to complain about the cop searching it. That means the bag will be admitted as evidence against me, and I’ll go to prison.”
Your lawyer says: “You might think so, but that’s not the case. The Supreme Court realized that this Catch-22 is a problem. So, in a case called Simmons v. United States, the Court said that if you admit during the suppression hearing that it was your bag, then that admission cannot be used against you at trial, when the jury’s deciding whether you’re guilty or not. After all, even guilty people have constitutional rights. A fair system must allow suspects to admit certain things at pretrial hearings so that they can argue that evidence — or a confession — was obtained in violation of their constitutional rights. So the Supreme Court says you can admit you confessed, or that the bag belonged to you, during the pre-trial hearing. But the prosecution cannot use those statements against you at trial to prove your guilt.”
“So,” you say, “if I understand correctly, I can admit it was my bag at the suppression hearing — where the only issue is whether my rights were violated — but the prosecution can’t use that statement to prove my guilt at trial.”
“Correct,” your lawyer says.
You say: “Wow, thanks, Supreme Court!” So far, so good. You testify at the suppression hearing, and you admit the bag was yours, and that you told the cop not to search it.
At this point, one of two things can happen. Maybe the judge believes you. In that case, the judge “suppresses” the bag as evidence — it can’t be used against you at trial. The prosecution and the cop gnash their teeth and curse you as an infamous liar. But without the bag, there’s no evidence against you. They have to drop the charges. You leave the court a free man, kissing your pocket copy of the Constitution, and go on to lead a clean and honest life, scared straight by how close you came to going to the slammer.
But let’s say the judge doesn’t believe you. He believes the cop. He rules the bag of drugs will not be suppressed — you will go on trial, and the bag will come in as evidence.
Your lawyer says to you: “Alright, we gave it the old college try, but failed. You’re going on trial.” Actually, what he’ll really say is: “Alright, we gave it the old college try, but failed. It’s time to plead this out. When the jury sees that bag with your fingerprints all over the drugs, you’re glued, screwed, and tattooed. You’re looking at 5 years in prison. But I know the prosecutor, I can get you a deal for 2.”
However, let’s say you don’t want to accept the deal. You insist on a trial. You say to your lawyer: “Well, even if I go to trial, nobody can tell the jury I admitted it was my bag, right?” Your lawyer says: “Well, not at first. But going to trial would be a big mistake, buddy. Take the deal. But if you insist, sure, whatever, we’ll go to trial, and yes, the prosecution can’t use your admission at the suppression hearing to prove you owned the bag. But it hardly matters, since your fingerprints are all over the drugs. Take the freaking deal, compadre. It’s your last, best hope.”
You refuse that eminently sound advice, and insist on a trial. At trial, the prosecution does not mention your admission that you owned the bag, because they can’t. But a forensics examiner shows your fingerprints were all over the drugs. He even adds a DNA test, just to put the final nail in your coffin. You turn to your lawyer and say: “Uhh, that kind of sucked.” Your lawyer says: “Tell me about it. I told you to take the deal.” You say: “What do we do now?” Your lawyer says: “I told you to take the deal, didn’t I?”
And then you say: “Well, I’m not giving up without a fight. I want to testify. I will say that the bag was the property of a friend of mine called Goober. Goober asked me to keep an eye on the bag while he went to buy some burritos. Just out of curiosity, I poked around in the bag. That’s how my fingerprints got on the drugs.”
Your lawyer says: “Sure, whatever. If you want to testify, I can’t stop you. But I need to warn you about something.” “What?” you ask. “Well, the Supreme Court says that the prosecution can’t use your statement from the suppression hearing that the bag was yours to prove your guilt. And they didn’t. They didn’t mention the bag when they made your case against you.”
You say: “So? That part of the trial is over. Now I get to testify in my own defense about my friend Goober, and how the bag full of drugs was his.”
Your lawyer says: “Sure, you could do that. But if you testify, then you put your own credibility at issue. That means the prosecution can use evidence to convince the jury you’re lying. In legal terms, this is called “impeachment”, like impeaching the president. That means if you testify now, before the jury, and say something different from what you said before at the suppression hearing, the prosecution can put that evidence before the jury to convince them you’re lying.”
“But wait,” you protest, “doesn’t that violate my Constitutional rights?”
“Nope,” your lawyer says. “Nobody has a Constitutional right to lie to a jury. So even if the prosecution cannot use your statements at the suppression hearing as direct evidence to prove you’re guilty, they can use those statement to prove that your testimony is untruthful. That’s an important distinction.”
“That sounds like bullshit to me, but I guess I have to live with it,” you say. “How do we get around this problem?”
“Well,” your lawyer says, “it’s simple. You can tell the jury whatever you want, but don’t claim the bag wasn’t yours. If you claim the bag wasn’t yours before the jury, then the prosecution can introduce your statement from the suppression hearing that the bag was yours.”
“Well, crap,” you say. Your lawyer says: “Once again, let me remind you that I advised you to take the freaking deal.”
“Yeah, yeah, whatever. I’m going to testify.” Your lawyer responds: “Alright, if you insist. But you can’t testify that it was your friend Goober’s bag. Because if you do that, then the prosecution can tell the jury that 3 months ago, you testified under oath that it was your bag.”
You say: “Well, shit, then what’s the point of me testifying at all?” Your lawyer says, in a tired and world-weary voice: “There is no freaking point. If you testify it was Goober’s bag, the prosecution will crucify you. This, let me remind you, is why I told you to take the deal. You can say whatever else you want, but you cannot say it wasn’t your bag. If you do, then the prosecution can impeach you with your prior sworn testimony that it was, in fact, your bag.”
“Screw that,” you say. “It’s my trial, I’ll take my chances.” Your lawyer says: “Whatever. It’s your funeral.”
You testify at trial in your own defense, and say that the bag belonged to your friend Goober. The prosecution cross-examines you, and introduces your sworn testimony at the suppression hearing, in which you admitted the bag was yours. The jury concludes you’re a liar, and you get 5 years.
So, what does this all have to do with Jens Söring? Everything. As we’ve seen, Jens Söring testified under oath before the judge, not the jury, on March 2, 1990, that the only reason he confessed to murdering Derek and Nancy Haysom was that Kenneth Beever threatened to harm Elizabeth.
That didn’t work.
So now, before his testimony before the jury, Söring consults with his lawyers, Rick Neaton and William Cleaveland. They tell him something like this: “Jens, as you no doubt noticed, the prosecution never mentioned your testimony about Beever’s threat when it made its case against you. They couldn’t do that, because of the Simmons case. However, they may be able to bring up that earlier theory (I confessed only because Beever threatened Elizabeth) if you say anything during your testimony which directly refers to that theory from March 2, 1990. The rule in criminal trials is that the prosecution cannot cross-examine you on a topic which you didn’t mention in your direct testimony.”
Söring, hypothetically, responds: “OK, what does that mean, exactly?”
Neaton and Cleaveland tell him: “This is what it means. In Virginia, the courts have decided that you can impeach a defendant with prior testimony in a suppression hearing, as most American courts have decided. The Supreme Court hasn’t yet directly said this is OK, but Virginia has. Which means if you say anything in front of the jury about the threat from Kenneth Beever, that ‘opens up’ the issue of whether Beever threatened you. And if you open up that topic, the prosecution can cross-examine you on that topic.”
Söring: “Which means what, precisely?”
Neaton and Cleaveland: “That means you must not mention Beever’s threat against Elizabeth before the jury. If you do, the prosecution can introduce your previous testimony during the suppression hearing. If the jury hears that you testified under oath on March 2, 1990, to a completely different version of why you confessed, the prosecution can show the jury that you totally changed your story between March 2, 1990 and now. Trust me, you don’t want that to happen.”
Söring: “I see. So I can’t mention Beever’s threat.”
Neaton and Cleaveland: “Definitely not. We’ll show you how to avoid doing that.”
This is how Söring and his lawyers massaged the issue:
“Q: And were there any other reasons that you made these statements?
A: Well, I mean there was concern of mine that she [Elizabeth Haysom] might come to some immediate physical harm, and you know, I didn’t know any better.”
Then Neaton immediately switches over to another line of questioning. The jury must have been puzzled: “Why would Elizabeth come to ‘immediate physical harm’ if Söring didn’t confess?” This was a risky gambit — if I were the prosecutor, I would have given some serious thought to arguing that I should be allowed to cross-examine Söring about why, exactly, he thought Elizabeth would come to “immediate physical harm” unless he confessed. Then I would introduce his testimony from the suppression hearing.
But Updike obviously decided not to risk it. The Supreme Court has still never definitively ruled on the question of whether you can impeach a defendant with previous testimony at a suppression hearing. Virginia courts have said this is OK, but the U.S. Supreme Court still hasn’t made a definitive decision. So Updike decided (a) I have plenty of stuff to destroy Jens Sörings credibility, even without his suppression hearing testimony; and (b) If I introduce his testimony from March 2, 1990, there’s a small chance Söring’s conviction could be overturned on appeal.
So he ultimately decided not to introduce it. This was undoubtedly the right choice, since Söring’s conviction has been upheld unanimously by all appeals courts.
I hope you’ve enjoyed this rather long exploration of American criminal procedure law. I’ve tried to keep it understandable for laypersons, but if you’ve got any questions, please feel free to post them in comments, and I’ll answer as my schedule permits.