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The Champion’s False Confession Issue

For far too long, American law enforcement has exploited the common belief that people will not falsely implicate themselves in a criminal act, absent physical coercion. But with alarming frequency, the facts prove otherwise. Analysis of the steady stream of exonerations shows that a recurrent ingredient in erroneous conviction cases is a false confession. These false confessions, whether an outright admission to the act charged, or merely a false admission to a fact that implicates the accused in the crime, are a blight on America’s system of justice. It is time to confront this phenomenon by exposing its causes and adopting palliative reforms. This issue of The Champion is dedicated to that mission.

The array of feature articles and columns included in these pages vividly exposes the source of the problem, illustrates its extent, offers suggestions for how to uncover a false confession, and describes the status of national reform efforts. Practitioners throughout the nation should use these articles as a trigger to take a second look at any case with an alleged incriminating post-arrest statement, pay particular attention to a client’s subsequent disavowal, and thoroughly investigate the circumstances of the interrogation that culminated in the statement.

More broadly, aggressive litigators should be open to attacking the foundational defects upon which the false confession house of cards stands, and criminal justice reformers should champion the move to require the recording of the entirety of all custodial interrogations.

Recent governmental excesses in connection with anti-terrorism efforts have prompted a renewed conversation about the efficacy of torture as a viable information-gathering tool. Interestingly, whether the subject is outright torture, or the more ambiguous “enhanced interrogation techniques,” military professionals and other law enforcement experts denounce these approaches. Apart from the incalculable damage to America’s international reputation, and whether or not it casts our government and its agents as international outlaws, there is a strong consensus that information obtained by coercion is simply not reliable. Well-established legal precedent has eliminated torture and less dramatic physical coercion from our domestic law enforcement arsenal. Paradoxically, however, as the articles in this issue demonstrate, to varying degrees the use of psychological coercion and deception remains legal, and will not necessarily result in suppression of a statement.

Somewhat apart from other Western democracies, the United States courts countenance police lying during the interrogation process. Yet, analysis of recent exonerations – cases in which irrefutable scientific evidence has established innocence of the charges to which people confessed – demonstrates that police deception and psychological strategies are just as likely to induce a false statement as physical coercion. Indeed, the likelihood of such a result is greater among more vulnerable populations, such as children, the mentally impaired, and those suffering from the effects of alcohol or drug abuse. These groups are particularly susceptible to the kinds of pressures and deceptions that either do not violate constitutional jurisprudence or are insufficiently documented to permit courts and juries to adequately assess the reliability of the incriminating statement.

Perhaps persistent and creative litigators will successfully persuade America’s courts to reconsider their willingness to permit the use of these tactics. As the public grows increasingly restive with the reality that this country is routinely condemning innocent people, courts may find it necessary to proscribe procedures that undermine public confidence in the criminal justice system. In the meantime, however, a more immediate palliative is adoption of a custodial recording requirement.

In February 2004, the American Bar Association adopted resolutions urging that all law enforcement agencies record the entirety of custodial interrogations and that legislatures and/or courts adopt laws or rules to require it.¹ The resolutions, which were jointly sponsored by the New York County Lawyers’ Association and the ABA’s Criminal Justice Section, were part of a series of innocence initiatives.² The underlying report noted that about one-fourth of cases involving conviction of an innocent defendant include a false confession.³ Recording offers the best opportunity for a fair in-court assessment of the reliability of the statement and provides an effective solution to the false confession problem.⁴ 

Interestingly, although law enforcement agencies initially tend to be skeptical about recording, increasingly the procedure is viewed as beneficial to law enforcement, enhancing the credibility of the case and providing insulation against claims of coercion. The ABA Report concluded that while both the prosecution and the defense may lose some tactical advantage if the interrogation is recorded, the cause of justice is the overall winner:

The benefits of recording interviews are obvious and widely recognized. . . . If the purpose of a trial is the determination of the truth, there can be no legitimate objection to a jury or the public learning the complete relevant facts. Clearly, the full course of an interrogation is relevant to the truthfulness, accuracy, or voluntariness of a statement.⁵ 

Scott Ehlers’ State Legislative Update [see page 53] summarizes the status of national efforts to advance this critical reform. The early progress is encouraging, but there is a long way to go. The knowledge that false confessions are an ingredient in many exonerations is especially sobering because the possibility of exoneration only exists in relatively few cases – the small percentage of extremely serious cases in which scientific evidence is available. One commentator recently estimated that between 18,000 and 180,000 innocent defendants may be convicted each year if guilty pleas and misdemeanors are included in the analysis.⁶ The criminal justice system, especially the defense bar, must mobilize to rid the system of the scourge of false confessions. NACDL stands ready to assist its members and affiliates interested in pursuing this cause in their jurisdictions. Please contact us if you want to join this effort.

Notes

1. The Resolutions call for videotaping of the entirety of custodial interrogations, wherever the interrogations may occur, or, where impractical, audiotaping. 
2. Achieving Justice: Freeing the Innocent, Convicting the Guilty, Report of the ABA Criminal Justice Section’s Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process, American Bar Association 2006.
3. Id. at 11.
4. Id. at 12.
5. Id. at 22.
6. Regulating Police Deception During Interrogation, George C. Thomas III & Judge Alexander P. Waugh Sr., 39 Tex. Tech L. Rev. 1293 (2007).

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