The substance of false confessions.

AuthorGarrett, Brandon L.

INTRODUCTION I. CHARACTERISTICS OF DNA EXONEREES' FALSE CONFESSIONS A. Study Design B. General Characteristics of Exoneree Confessions II. CONTAMINATED CONFESSIONS A. Law Enforcement Practices Concerning Contamination of Confessions. B. Corroborated and Nonpublic Facts C. Denying Disclosing Facts D. Recorded False Interrogations E. Mistaken Facts F. Guessed or Public Facts G. Crime Scene Visits H. Inconsistencies and Lack of Fit I. Litigating Contamination of Confessions at Trial III. FALSE CONFESSIONS AND CONSTITUTIONAL CRIMINAL PROCEDURE A. Miranda Warnings B. Indicia of Involuntariness C. Use of Deceptive Techniques D. Trial Rulings on Suppression of Confessions E. Use of Experts F. Inculpatory Statement Cases G. Postconviction Review of False Confessions IV. SUBSTANTIVE REGULATION OF CONFESSIONS A. Substantive Judicial Review of Confessions B. Recording Entire Interrogations C. Interrogation Reforms CONCLUSION INTRODUCTION

False confessions present a puzzle: How could innocent people convincingly confess to crimes they knew nothing about? For decades, commentators doubted that a crime suspect would falsely confess. For example, John Henry Wigmore wrote in his 1923 evidence treatise that false confessions were "scarcely conceivable" and "of the rarest occurrence" and that "[n]o trustworthy figures of authenticated instances exist...." (1) That understanding has changed dramatically in recent years, as, at the time of this writing, postconviction DNA testing has exonerated 252 convicts, forty-two of whom falsely confessed to rapes and murders. (2) There is a new awareness among scholars, legislators, courts, prosecutors, police departments, and the public that innocent people falsely confess, often due to psychological pressure placed upon them during police interrogations. (3) Scholars increasingly study the psychological techniques that can cause people to falsely confess and have documented how such techniques were used in instances of known false confessions. (4)

This Article takes a different approach by examining the substance of false confessions, including what was said during interrogations and how confessions were litigated at trial. Doing so sheds light on the phenomenon of confession contamination. (5) Police may, intentionally or not, prompt the suspect on how the crime happened so that the suspect can then parrot back an accurate-sounding narrative. Scholars have noted that "on occasion, police are suspected of feeding details of a crime to a compliant suspect," and have described several well-known examples. (6) However, no one has previously studied the factual statements in a set of false confessions. (7)

The set of forty cases that this Article examines has important limitations. As will be developed further, false confessions uncovered by DNA testing are not representative of other false confessions, much less confessions more generally. These forty cases cannot speak to how often people confess falsely. Nor can these examples themselves tell us whether reforms, such as recording interrogations, prevent more false convictions than they discourage true confessions. But these data provide examples of a very troubling problem that deserves further study.

In the cases studied here, innocent people not only falsely confessed, but they also offered surprisingly rich, detailed, and accurate information. Exonerees told police much more than just "I did it." In all cases but two (ninety-seven percent--or thirty-six of the thirty-eight--of the exonerees for whom trial or pretrial records could be obtained), police reported that suspects confessed to a series of specific details concerning how the crime occurred. (8) Often those details included reportedly "inside information" that only the rapist or murderer could have known. We now know that each of these people was innocent and was not at the crime scene. Where did those details, recounted at length at trial and recorded in confession statements, come from? We often cannot tell what happened from reading the written records. In many cases, however, police likely disclosed those details during interrogations by telling exonerees how the crime happened. Police may not have done so intentionally or recklessly; the study materials do not provide definitive information about the state of mind of the officers. Police may have been convinced the suspect was guilty and may not have realized that the interrogation had been mishandled.

An illustrative case is that of Jeffrey Deskovic, a seventeen-year-old when he was convicted of rape and murder. Deskovic was a classmate of the fifteen-year-old victim, had attended her wake, and was eager to help solve the crime. (9) Deskovic spoke to police many times and was interrogated for hours over multiple sessions, including a session in which police had a tape recorder, but turned it on and off, only recording thirty-five minutes. (10) During one discussion, he "supposedly drew an accurate diagram," which depicted details concerning "three discrete crime scenes" which were not ever made public. (11) He never actually confessed to raping or murdering the victim, but he offered other details, including that the victim suffered a blow to the temple, that he tore her clothes, struggled with her, held his hand over her mouth, and "may have left it there a little too long." (12) In his last statement, which ended with him in a fetal position and crying uncontrollably, he reportedly told police that he had "hit her in the back of the head with a Gatoraid [sic] bottle that was lying on the path." (13) Police testified that, after hearing this, the next day they conducted a careful search and found a Gatorade bottle cap at the crime scene. (14)

The trial transcripts highlight how central these admissions were to the State's case. DNA tests conducted by the FBI laboratory before the trial excluded Deskovic, providing powerful evidence that he was not the perpetrator. The district attorney asked the jury to ignore that DNA evidence, speculating that perhaps the victim was "sexually active" and "romantically linked to somebody else" who she had sexual relations with shortly before her rape and murder. (15) After all, "[s]he grew up in the eighties." (16) There was no investigation or DNA testing conducted to support this conjecture, either by the prosecution or the defense.

Instead, the district attorney emphasized in closing arguments the reliability of Deskovic's statements, noting that after he told police about the Gatorade bottle, "it was found there," and this was a heavy weapon, "not a small little bottle." (17) Detectives "did not disclose any of their observations or any of the evidence they recovered from Jeffrey nor, for that matter, to anyone else they interviewed." (18) They kept their investigative work nonpublic

for the simple reason ... that [if a suspect] revealed certain intimate details that only the true killer would know, having said those, and be arrested could not then say, "Hey, they were fed to me by the police, I heard them as rumors, I used my common sense, and it's simply theories." (19) The district attorney told the jury to reject the suggestion that Deskovic was fed facts, stating, "Ladies and gentlemen, it doesn't wash in this case, it just doesn't wash." (20)

Deskovic was convicted of rape and murder and served more than fifteen years of a sentence of fifteen years to life. In 2006, new DNA testing again excluded him, but also matched the profile of a murder convict who subsequently confessed and pleaded guilty. (21) Now that we know Deskovic is innocent, how could he have known those "intimate details"? The District Attorney's postexoneration inquiry noted:

Much of the prosecution's effort to persuade the jury that Deskovic's statements established his guilt hinged on the argument that Deskovic knew things about the crime that only the killer could know.... Given Deskovic's innocence, two scenarios are possible: either the police (deliberately or inadvertently) communicated this information directly to Deskovic or their questioning at the high school and elsewhere caused this supposedly secret information to be widely known throughout the community. (22) This confession was contaminated, either by police leaking facts or feeding them. Given the level of specificity reportedly provided by Deskovic, the second and more troubling possibility, that the officers disclosed facts to him, seems far more likely. Yet during the trial, the police and the prosecutor not only denied having told Deskovic those facts, such as the presence of the Gatorade bottle cap and the depiction of the crime scene, but were emphatic they did not leak those facts to the media or to anyone else, such as other high school students interviewed. (23) Whether the police acted inadvertently or intentionally, in hindsight we know that they provided an inaccurate account. Deskovic has commented, "[b]elieving in the criminal justice system and being fearful for myself, I told them what they wanted to hear." (24) Deskovic is currently suing for civil rights violations caused by a "veritable perfect storm of misconduct by virtually every actor at every stage of his investigation and prosecution...." (25) The suit alleges that police disclosed facts to him.

The Deskovic case illustrates how false confessions do not happen simply by happenstance. They are carefully constructed during an interrogation and then reconstructed during any criminal trial that follows. Constitutional criminal procedure does not regulate this critical phase of an interrogation. The Constitution requires the provision of initial Miranda warnings and then requires that the bare admission of guilt have been made voluntarily. (26) That admission of guilt, while important, is only a part of the interrogation process. The "confession-making" phase may be far more involved. (27) Much of the power of a confession derives from the narrative describing...

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