The Withdrawn Confession and the Silent Client
Your client, Daan, is charged with a street robbery. During police interrogation he was questioned for six hours without a lawyer present. At hour five he said, 'Fine, I took the phone, just let me go home.' He later retracted, claiming he was exhausted and had not slept for 30 hours. The case file shows the interrogation was recorded but the recording has a 40-minute gap. The prosecutor relies on the confession plus the victim's description of a tall man in a green jacket; Daan is 1.75 m and owns no green jacket. Daan now tells you he wants to stay silent at trial and let you 'handle it'. The hearing is in eight days. You have not yet viewed the full recording.
1. Identify the procedural and evidentiary issues you must investigate, and explain how each could affect admissibility or weight.
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Three clusters need investigation. First, the confession's reliability: a six-hour interrogation without counsel, sleep deprivation and a recording gap raise questions under the right to a fair trial and the privilege against self-incrimination. The gap is not automatically fatal, but the burden shifts to the prosecution to show the statement was voluntary; you must view the full recording and note timestamps, breaks, food and water, and whether Daan was cautioned. Second, the retraction: a retracted confession is not worthless, but the court must test it against other evidence. Third, the identification: the victim's description conflicts with Daan's height and wardrobe, which supports a mistaken-identity defence and undermines corroboration. Practically, file a request to view the recording immediately, ask for the interrogation log and the officers' notes, and consider a preliminary objection to admissibility. Assess whether the gap was a technical failure or something more serious, because that determines whether you challenge admissibility or merely attack weight.
2. Daan wants to remain silent and let you conduct the defence. Advise him on the consequences of silence and on your own professional obligations.
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Explain that silence is a right and the court may not infer guilt from it, but it is not costless: the court will still assess the prosecution evidence, and an unexplained incriminating statement may carry more weight if the defence offers no alternative account. Silence also limits your ability to argue self-defence or alibi, because those defences usually require the defendant's testimony. On your role: you may not invent a defence he has not authorised, and you cannot disclose his confidences. But you must tell him clearly that you cannot guarantee an acquittal and that the decision whether to testify is ultimately his, after your advice. Warn him that if he stays silent you will focus on the prosecution's burden, the recording gap and the identification weakness. Record his instructions in the file, confirm them in writing, and revisit the decision after he has seen the recording excerpts.
3. Draft the core of a written request to the court for access to the full recording and interrogation records, in three to five sentences.
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'The defence requests that the court order disclosure of the complete audio-visual recording of the interrogation of 14 March, including the 40-minute segment currently missing from the copy provided, together with the interrogation log, the officers' contemporaneous notes and the custody record. The statement obtained during that interrogation is central to the prosecution case, and the defence cannot test its voluntariness or advise the client on his plea without the full record. The request is made in the interests of a fair trial and is proportionate, as it concerns material already in the prosecution's possession. The defence asks that disclosure be ordered before the hearing on 22 March so that any objection can be prepared in time.'