It should come as no surprise to anyone with any experience in criminal law that perfectly innocent people will sometimes confess to crimes they did not commit. Perhaps they were in a suggestible state, and the police led them to believe they’d done it. Maybe they were broken by the interrogation and said whatever the cops wanted to hear, just to end it. Maybe they didn’t really confess, but had their words taken out of context (or invented) by the cops. (For tips on defending cases involving a confession, see our CLE lecture over at West Legal Ed Center.)
In recent years, there has been growing attention to the phenomenon of false confessions, and folks have begun investigating the reasons why an innocent person will not only confess to a crime he didn’t commit, but will often do so with such detail that it seems impossible for them not to have committed it. The New York Times had a decent article yesterday on this very phenomenon. The article reports on a study by UVA (wahoowa!) law professor Brandon Garrett, into reasons why an innocent person may sometimes confess with extraordinary detail.
To defense lawyers, the new research is eye opening. “In the past, if somebody confessed, that was the end,” said Peter J. Neufeld, a founder of the Innocence Project, an organization based in Manhattan. “You couldn’t imagine going forward.”
The notion that such detailed confessions might be deemed voluntary because the defendants were not beaten or coerced suggests that courts should not simply look at whether confessions are voluntary, Mr. Neufeld said. “They should look at whether they are reliable.”
Professor Garrett said he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.
Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”
This is another good bit from the article:
Steven A. Drizin, the director of the Center on Wrongful Convictions at the Northwestern University School of Law, said the significance of contamination could not be understated. While errors might lead to wrongful arrest, “it’s contamination that is the primary factor in wrongful convictions,” he said. “Juries demand details from the suspect that make the confession appear to be reliable — that’s where these cases go south.”
Jim Trainum, a former policeman who now advises police departments on training officers to avoid false confessions, explained that few of them intend to contaminate an interrogation or convict the innocent.
“You become so fixated on ‘This is the right person, this is the guilty person’ that you tend to ignore everything else,” he said.
There’s been growing pressure for police departments to videotape interrogations, and the practice has been adopted here and there. There are no good reasons not to tape interrogations — digital cameras are commodities now, and digital memory is insanely cheap. Detectives can review sessions at will, gleaning more (and more accurate) data from them over time. They can only help the police do their job. Objections stem primarily from a fear that interrogation techniques will make the police look bad and undermine their efforts (much like the objections to public videotaping of police in action). Such objections are only valid if what is being taped shouldn’t have been done in the first place.
The only reason for a police officer to oppose videotaping confessions is because he doesn’t want evidence of his own misconduct.
Professor Garrett’s article is worth a read. You can find it here, 62 Stan. L. Rev. 1051.