Chapter 4 False Confessions

JurisdictionNorth Carolina

Chapter 4 False Confessions

A. Introduction

"The idea that a rational being should confess that he had committed a most wanton murder, and thereby expose himself to the awful doom which must consequently follow, and the whole be a fictitious story, is, to many, a mystery they are unable to unravel."—Rutland [Vermont] Herald, commenting in 1820 on the exoneration of Jesse and Stephen Boorn following their confessions and convictions for murdering Russell Colvin, who subsequently appeared alive, shortly before Stephen was to be hanged.1
"People just do not confess, particularly to something of this magnitude, this heinous, this vicious, without having participated in it. It's just not natural, it's just not reasonable."—Assistant Commonwealth Attorney D.J. Hansen, closing argument in the 2003 trial of Derek Tice, one of "the Norfolk Four," who had confessed to and was convicted of murder and rape; DNA evidence and another man's confession that he had committed the crimes alone resulted in Virginia Governor Timothy Kaine granting "partial clemency" in 2009 to Tice and two other men convicted of the crimes, who also had confessed. In 2017, Governor Terry McAuliffe granted absolute pardons to Tice, Danial Williams, Joseph Dick, Jr., and Eric Wilson, who were wrongfully convicted of the crimes.2

To many, it is unthinkable that anyone would confess to a crime—especially a capital crime—that he or she did not commit. To do so would, at a minimum, represent "a mystery," if not also be "just not natural [or] ... reasonable." Yet, false confessions happen. The Innocence Project reports that defendants' false confessions or other damning admissions were a factor in 103 of the first 358 wrongful convictions (28.8%) confirmed through DNA testing,3 while the National Registry of Exonerations identifies 282 of the 2253 wrongful convictions (12.5%) uncovered through August 1, 2018 as involving false confessions.4 In this chapter, we explore legal rules and psychological principles that relate to this fascinating, and troubling, topic.

False confessions are made under diverse circumstances and have different causes. Researchers have distinguished "voluntary," "compliant," and "internalized" false confessions.

Voluntary false confessions are those in which people claim responsibility for crimes they did not commit without prompting from police.... There are several reasons why innocent people volunteer confessions, such as a pathological need for attention or self-punishment, feelings of guilt or delusions, the perception of tangible gain, or the desire to protect someone else.
In contrast, people are sometimes induced to confess through the processes of police interrogation. In compliant false confessions, the suspect acquiesces in order to escape from a stressful situation, avoid punishment, or gain a promised or implied reward.... [T]his confession is an act of public compliance by a suspect who perceives that the short-term benefits of confession outweigh the long-term costs....
[I]nternalized false confessions are those in which innocent but vulnerable suspects, exposed to highly suggestive interrogation tactics, not only confess but come to believe they committed the crime....5

False confessions have the potential to cascade rapidly into wrongful convictions. Indeed, researchers have demonstrated how confessions can corrupt several other aspects of the criminal justice process. In one study that analyzed Innocence Project wrongful conviction cases, researchers learned that 67% of the proven false confession cases also had a forensic-science error, and 24% an informant error, both of which were present more often than in eyewitness misidentification cases. Importantly, in the majority of cases, the confession was the first error to occur when multiple errors were present.6 Thus, once the police secure a confession, they may curtail further investigation of a crime, believing that they have the perpetrator in custody. Prosecutors sometimes decline to go forward with a case supported by a confession because corroborating evidence is lacking, but they similarly are apt to accept the suspect's incriminating statements as strong evidence of guilt and follow up by filing charges. Defense attorneys, persuaded that a confession points singularly to guilt, can refrain from investigating further, abandon thoughts of preparing for trial, and concentrate on negotiating a guilty plea.7 Even in the face of evidence strongly suggesting innocence, jurors often give determinative weight to a defendant's confession and vote to convict.8 Appellate courts may rely on the defendant's confession to conclude that errors committed during a trial are harmless and thus affirm convictions.9 In short, false confessions can easily become self-fulfilling prophecies.

We will focus on legal doctrine most directly associated with the risk of "compliant" false confessions, in which innocent suspects incriminate themselves after succumbing to the pressure of being questioned by the police or to specific interrogation tactics. We first examine several issues associated with the voluntariness of confessions, relying on Due Process principles. We next turn to the rules developed by the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and follow-up decisions, safeguards that are designed to protect the Fifth Amendment right against compelled self-incrimination. Then we consider an increasingly utilized reform designed to help ensure compliance with the legal rules governing police interrogation, and that, concomitantly, can be expected to help judges and juries evaluate the reliability of confessions: requirements that the police make an electronic recording of interrogation sessions. We conclude by examining the courts' receptivity to allowing expert testimony in criminal trials to help educate jurors about false confessions and their causes. Throughout, we combine our consideration of the legal and policy issues with relevant insights from social science research.

B. Voluntariness

1. The Due Process Test

In Brown v. Mississippi, 297 U.S. 278, 279, 56 S.Ct. 461, 80 L.Ed. 682 (1936), the Supreme Court ruled that the 14th Amendment Due Process Clause prohibits state criminal courts from admitting into evidence "confessions shown to have been extorted by officers of the state by brutality and violence...." The justices thus invalidated the murder convictions and death sentences of three men notwithstanding their confessions. Chief Justice Hughes, quoting from the dissenting opinion written by a member of the Mississippi Supreme Court, described how the incriminating admissions were obtained.

'The crime with which these defendants, all ignorant negroes, are charged, was discovered about 1 o'clock p.m. on Friday, March 30, 1934. On that night one Dial, a deputy sheriff, accompanied by others, came to the home of Ellington, one of the defendants, and requested him to accompany them to the house of the deceased, and there a number of white men were gathered, who began to accuse the defendant of the crime. Upon his denial they seized him, and with the participation of the deputy they hanged him by a rope to the limb of a tree, and, having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and, still declining to accede to the demands that he confess, he was finally released, and he returned with some difficulty to his home, suffering intense pain and agony. The record of the testimony shows that the signs of the rope on his neck were plainly visible during the ... trial. A day or two thereafter the said deputy, accompanied by another, returned to the home of the said defendant and arrested him, and departed with the prisoner towards the jail in an adjoining county, but went by a route which led into the state of Alabama; and while on the way, in that state, the deputy stopped and again severely whipped the defendant, declaring that he would continue the whipping until he confessed, and the defendant then agreed to confess to such a statement as the deputy would dictate, and he did so, after which he was delivered to jail.

'The other two defendants, Ed Brown and Henry Shields, were also arrested and taken to the same jail. On Sunday night, April 1, 1934, the same deputy, accompanied by a number of white men, one of whom was also an officer, and by the jailer, came to the jail, and the two last named defendants were made to strip and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it, and they were likewise made by the said deputy definitely to understand that the whipping would be continued unless and until they confessed, and not only confessed, but confessed in every matter of detail as demanded by those present; and in this manner the defendants confessed the crime, and, as the whippings progressed and were repeated, they changed or adjusted their confession in all particulars of detail so as to conform to the demands of their torturers. When the confessions had been obtained in the exact form and contents as desired by the mob, they left with the parting admonition and warning that, if the defendants changed their story at any time in any respect from that last stated, the perpetrators of the outrage would administer the same or equally effective treatment....

'All this having been accomplished, on the next day, that is, on Monday, April 2, when the defendants had been given time to recuperate somewhat from the tortures to which they had been subjected, the two sheriffs, one of the county where the crime was committed, and the other of the county of the jail in which the prisoners were confined, came to the jail, accompanied by eight other persons, some of them deputies, there to hear the free and voluntary confession of these miserable and abject defendants.... [T]he solemn...

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