The consequences of false confessions: deprivations of liberty and miscarriages of justice in the age of psychological interrogation.

Author:Leo, Richard A.
 
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  1. INTRODUCTION

    1. DEFINING THE PROBLEM

      Because a confession is universally treated as damning and compelling evidence of guilt,(1) it is likely to dominate all other case evidence and lead a trier of fact to convict the defendant.(2) A false confession is therefore an exceptionally dangerous piece of evidence to put before anyone adjudicating a case. In a criminal justice system whose formal rules are designed to minimize the frequency of unwarranted arrest, unjustified prosecution, and wrongful conviction, police-induced false confessions rank amongst the most fateful of all official errors.

      As many investigators have recognized, the problems caused by police-induced false confessions are significant, recurrent, and deeply troubling.(3) Police elicit false confessions so frequently that social science researchers, legal scholars, and journalists have discovered and documented numerous case examples in this decade alone.(4)

      Yet no one knows precisely how often false confessions occur in the United States, how frequently false confessions lead to wrongful convictions, or how much personal and social harm false confessions cause. This is because: (1) no organization collects statistics on the annual number of interrogations and confessions or evaluates the reliability of confession statements; (2) most interrogations leading to disputed confessions are not recorded; and (3) the ground truth (what really happened) may remain in genuine dispute even after a defendant has pled guilty or been convicted.(5) These problems prevent researchers from defining a universe of confession cases, sampling a subset, and confidently determining the truth or falsity of each underlying confession.

      Until these methodological obstacles are overcome, no one can authoritatively estimate the rate of police-induced false confessions or the annual number of wrongful convictions caused by false confessions.(6) The lack of such information also prevents researchers from estimating the full magnitude of personal and social harm that police-induced false confessions cause: the days and months innocent persons spend in pre-trial incarceration; the resources, time, and dollars wasted prosecuting and defending them; the months and years defendants languish in prison after wrongful conviction; and the additional crimes carried out by the true perpetrators.

      Although it is presently not possible to estimate the magnitude of harm caused by false confessions, this article sheds light on another dark corner of the problem by addressing the following questions: What is the impact of demonstrably unreliable confession evidence on criminal justice officials? What are the consequences of false confessions on defendants as they move through the criminal justice system? And how much influence does a false confession alone exert on the decision-making of jurors?

    2. FALSE CONFESSIONS AND THE ADMINISTRATION OF JUSTICE

      Following Edwin Borchard's pioneering study of miscarriages of justice,(7) a series of investigators(8) have documented numerous cases of wrongful arrest and conviction of the innocent in the United States.(9) We continue the tradition of re search into errors in the criminal justice system by reporting a study of sixty cases of police-induced false confessions in the post-Miranda era,(10) and by analyzing the consequences of these errors affecting defendants as they move through the criminal justice system.(11)

      We suggest that confessions are regarded as the most damning and persuasive evidence of guilt simply because most suspects who confess are guilty, and because most confessions are corroborated by additional evidence. Under these conditions, however, it is impossible to isolate the effect of the defendant's "I did it" admission(12) on the decision-making of criminal justice officials and juries because the confession co-varies with inculpatory witness or physical evidence. The research reported here isolates the effect of a defendant's "I did it" statement on the decision-making of criminal justice officials and juries by studying only cases in which the defendant's confession is not supported by any physical or reliable inculpatory evidence. The research design thus allows measurement of the effect of an untrue admission when a detective, prosecutor, judge or jury is required to weigh the admission against evidence that would ordinarily establish the defendant's innocence.

      This article explores whether contemporary American psychological interrogation practices continue to induce false confessions like the third degree methods that preceded them. This article also analyzes how likely police-induced false confessions are to lead to the wrongful arrest, prosecution, conviction, and incarceration of the innocent. And this article examines with field data(13) whether confession evidence substantially biases a trier of fact even when the defendant's statement was elicited by coercive methods.(14) We explore this issue with cases in which the defendant's statement has not only been coerced but is also demonstrably unreliable, and in which other evidence proves or strongly supports the defendant's innocence.

      Part II of this article discusses the selection and classification of the sixty disputed confession cases under study.(15) Part III describes the findings of our research. Part IV analyzes the deprivations of liberty and miscarriages of justice associated with the sixty cases described in this article. Finally, Part V discusses the import of this research and offers some concluding remarks.

  2. METHOD

    1. SELECTION AND CLASSIFICATION

      Cases of disputed confessions were identified through multiple sources: electronic media database searches; directly from case files;(16) and from secondary sources. The sixty cases discussed below do not constitute a statistically adequate sample of false confession cases. Rather they were selected because they share a single characteristic: an individual was arrested primarily because police obtained an inculpatory statement that later turned out to be a proven, or highly likely, false confession.

      Based on the information that we obtained and reviewed, all of the cases studied satisfy the following conditions: no physical or other significant and credible evidence indicated the suspect's guilt;(17) the state's evidence consisted of little or nothing more than the suspect's statement "I did it;" and the suspect's factual innocence was supported by a variable amount of evidence often substantial and compelling--including exculpatory evidence from the suspect's post-admission narrative.(18) For every case included in this study, there was no credible evidence corroborating the defendant's "I did it" admission or supporting the conclusion that he was guilty.(19)

      Based on the strength of the evidence indicating a defendant's probable innocence, each case was classified into one of three categories: proven false confession; highly probable false confession; or probable false confession.

      For the thirty-four cases classified as proven false confessions, the confessor's innocence was established by at least one dispositive piece of independent evidence.(20) For example, a defendant's confession was classified as proven false if the murder victim turned up alive, the true perpetrator was caught and proven guilty, or scientific evidence exonerated the defendant. Not only was the confessor definitively excluded by dispositive evidence, but the confession statement itself also lacked internal indicia of reliability. Any disputed confession case that fell short of this standard--no matter how questionable the confession and no matter how much direct or circumstantial evidence indicated the suspect was innocent--was excluded from this category.

      For the eighteen cases classified as highly probable false confessions, the evidence overwhelmingly indicated that the defendant's confession statement was false.(21) In these cases, no credible independent evidence supported the conclusion that the confession was true. Rather, the physical or other significant independent evidence very strongly supported the conclusion that the confession is false. In each of these cases, the confession lacked internal reliability. Thus, the defendant's statement is classified as a highly probable false confession because the evidence led to the conclusion that his innocence was established beyond a reasonable doubt.

      For the eight cases classified as probable false confessions,(22) no physical or other significant credible evidence supported the conclusion that the defendant: was guilty. There was evidence supporting the conclusion that the confession was false, and the confession lacked internal indicia of reliability. Although the evidence of innocence in these cases was neither conclusive nor overwhelming, there were strong reasons--based on independent evidence--to believe that the confession was false. Cases are included in this category if the preponderance of the evidence indicated that the person who confessed was innocent.

      We recognize that for any case that could not be classified as a proven false confession, there is a possibility that our classification of the case might be in error. Despite strong evidence supporting the conclusion that the confession is false, it remains theoretically possible that one or more of the defendants we classify as false confessors may have committed the crime. Nevertheless, we believe that the disputed confessions discussed in this article would be judged false by an overwhelming majority of neutral observers with access to the evidence we reviewed.(23)

    2. POST-ADMISSION NARRATIVE ANALYSIS

      When evaluating the likelihood that a person committed a crime, investigators should first consider witness statements, biological evidence linking the suspect to the crime (fingerprint, DNA, hair, etc.), and alibi evidence. The identification by an eyewitness, the identification of the person as the donor of...

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