Protecting the innocent from false confessions and lost confessions - and from Miranda.

AuthorCassell, Paul G.
PositionResponse to article by Richard A. Leo and Richard J. Ofshe, in this issue, p. 429

For most of the last several decades, criminal procedure scholarship--mirroring the Warren Court landmarks it was commenting on--spent little time discussing the guiltless and much discussing the guilty. Recent scholarship suggests a different focus is desirable. As one leading scholar recently put it, "the Constitution seeks to protect the innocent."(1)

Professors Leo and Ofshe's preceding article,(2) along with articles like it by (among others) Welsh White(3) and Al Alschuler,(4) commendably adopts this approach. Focusing on the plight of an innocent person who confessed to a crime he(5) did not commit, they recommend certain changes in the rules governing police interrogation or the admissibility of confessions in court. These articles make interesting reading and are sure to be widely discussed. The articles, however, appear to provide an incomplete justification for the policy measures they endorse because, in protecting the innocent, the analysis cannot focus exclusively on false confessions. The innocent are at risk not only when police extract untruthful confessions--the false confession problem--but also when police fail to obtain truthful confessions from criminals--the lost confession problem.

The lost confession problem arises because restrictions on interrogations can reduce the number of confessions police obtain, which will in turn prevent police from solving crimes. The most recent field research on police interrogations, done by Richard Leo, found that "virtually every detective to whom I spoke insisted that more crimes are solved by police interviews and interrogations than by any other investigative method."(6) A crime that is solved ("cleared" in the police vernacular) is, of course, a crime that police will never attempt to pin on an innocent person. Accordingly, truthful confessions protect the innocent by helping the criminal justice system separate a guilty suspect from the possibly innocent ones,(7) while the failure to obtain a truthful confession creates a risk of mistake. Lost confessions can also cause harm to an innocent who has been erroneously charged. The failure to obtain a confession from the real perpetrator can deny evidence needed to prevent a wrongful conviction or to exonerate an innocent person who has already been wrongfully convicted. Judge Friendly made an analogous argument about the costs of the privilege against self-incrimination, explaining that "[a] man in suspicious circumstances but not in fact guilty is deprived of official interrogation of another whom he knows to be the true culprit...."(8) Leo and Ofshe's article here makes much the same point, explaining that "[o]ften police or prosecutors only discover and acknowledge their error in eliciting a false confession or charging an innocent defendant prior to conviction because they have accidentally or unintentionally obtained a reliable confession from the true perpetrator(s) of the crime."(9) Similar conclusions about the importance of confessions in exonerating the innocent have been reported by other researchers on miscarriages of justice.(10) All of these studies suggest that in those rare circumstances in which an innocent person is facing the real possibility of conviction---or, indeed, has been wrongfully convicted--police interrogation is an important means of exoneration.

So far the discussion has focused on innocents within the criminal justice system--innocents wrongly prosecuted for or convicted of committing a crime. But no analysis of the public policy ramifications of interrogation regulation would be complete if it did not also consider another category of innocents: victims of crime. The regulation of interrogation can, by blocking truthful confessions, lead to the release of guilty criminals to commit further crimes--the lost conviction problem. To be sure, the criminal justice system is properly more concerned with the possibility that an innocent person will be convicted than that a guilty person will escape. Blackstone's adage that ten guilty should go free rather than one innocent be convicted(11) remains true today. But Blackstone's adage also reminds us that the acceptable tradeoffs are not unlimited. In evaluating an interrogation regime, the risk to innocents from inadequate crime control must also be assessed.

With these competing risks in mind, we are in a position to evaluate reforms designed to protect the innocent by reducing false confessions. The normative force of these recommendations depends on proof that the benefits from reducing false confessions are not outweighed by the competing risks to the innocent from lost confessions and lost convictions. To be sure, it is possible that a change might produce such a substantial drop in false confessions as to be desirable. But it also is possible that a change might produce such a substantial drop in truthful confessions as to pose a greater risk to the innocent. This is an empirical or "numbers" issue that cannot be resolved by a priori, theoretical reasoning. The only way to make an on-balance determination is through some sort of rough quantification of the relative dimensions of the various phenomena and the tradeoffs among them.

Given this need for quantification, it is curious that the false confessions literature never provides even a ballpark estimate of the frequency of false confessions.(12) Instead, the articles in the area, including most prominently Leo and Ofshe's foregoing work, reason solely from anecdotal example. They present notorious illustrations of false confessions to establish that the problem exists. They then remind the reader that "no one can authoritatively estimate the rate of police induced false confessions"(13) or that an assessment of the frequency of false confessions "is difficult to make accurately."(14) Nonetheless, the articles swiftly assert, false confessions "threaten the quality of criminal justice in America"(15) and are "likely ... in a small but significant number of cases."(16) The articles then conclude by proposing restrictions on police interrogation or the courtroom use of confessions designed to reduce the incidence of the harms from false confessions.(17)

The aim of this empirical essay is to think more carefully about "the numbers"--that is, to try and place the risk to the innocent from false confessions, lost confessions, and lost convictions into some perspective. Some might despair of the effort, since it is obviously impossible to quantify precisely (among other things) the "dark figure" of false confessions.(18) But as Professor Schulhofer has explained in a related context, "the size of a legal problem does matter, and we cannot avoid thinking about it, or rely only on our intuitions, just because a perfect study has yet to be done."(19) Moreover, given the difficulty of quantification, one could simply argue for acceptance of the null hypothesis: the number of false confessions is too small to worry about. Defenders of Miranda quickly invoke the null hypothesis to resist arguments for loosening the restraints on police interrogation because many criminals are avoiding conviction.(20) Rather than employ the same maneuver here, I will attempt to shoulder the burden of quantification--a burden that is properly assigned elsewhere.

Part I attempts to quantify the dimensions of the false confession problem. It narrows our focus from all persons who have been wrongfully charged with a crime to the subset of those who have been wrongfully convicted. If a false confession does not produce a wrongful conviction, then the screens in the criminal justice system have at least operated to prevent this ultimate miscarriage of justice. This Part also narrows our focus to factually innocent persons--that is, "wrong person" convictions. Previous research has frequently adopted this approach. With these definitions in mind, the Part considers different approaches to quantification. One method is simply to tabulate the number of reported cases of wrongful convictions from false confessions, as Leo and Ofshe have attempted to do. However, the handful of reported cases that they have collected does not tell us much about the overall performance of the criminal justice system. Indeed, rather than collecting individual cases, the overall frequency could be better determined by sampling a known universe of cases. A few samples are available, which suggest that false confessions are relatively rare. Alternatively, one could make reasonable estimates of the proportion of wrongful convictions in the system which are attributable to false confessions. Based on the available (and quite limited) information, the estimated frequency is somewhere between 1 in 2,400 convictions and 1 in 90,000 convictions, depending on what assumptions one makes.

Part II then turns to an assessment of the relative risk to the innocent from false confessions versus lost confessions. False confessions are a relatively infrequent cause of wrongful convictions. On the other hand, truthful confessions from the true perpetrators of crimes are perhaps the most frequent way in which miscarriages of justice are uncovered. Given these facts, it is likely that the policy proposals aimed at the exotic problem of false confessions may create, by restricting routine police interrogation, more serious risks for the innocent in these other, more quantitatively significant areas. Similarly, restrictions on police interrogation create risks to the innocent by releasing dangerous criminals to commit other crimes. For these reasons, restrictions on police interrogation may well present more risks to the innocent than they would prevent.

Part III provides an escape from these tradeoffs. The existing interrogation regime, largely dictated by the Supreme Court's decision in Miranda v. Arizona,(21) is "upside down"(22) or perverse. On the one hand, it does virtually nothing for the innocent. Those who are innocent of crimes...

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