Contaminated Confessions Revisited

A second wave of false confessions is cresting. In the first twenty-one years of post-conviction DNA testing, 250 innocent people were exonerated, forty of which had falsely confessed. Those false confessions attracted sustained public attention from judges, law enforcement, policymakers, and the media. Those exonerations not only showed that false confessions can happen, but did more by shedding light on the problem of confession contamination, in which details of the crime are disclosed to suspects during the interrogation process. As a result, false confessions can appear deceptively rich, detailed, and accurate. In just the last five years, there has been a new surge in false confessions — a set of twenty-six more false confessions among DNA exonerations. All but two of these most recent confessions included crime scene details corroborated by crime scene information. Illustrating the power of contaminated false confessions, in nine of the cases, defendants were convicted despite DNA tests that excluded them at the time. As a result, this second wave of false confessions should cause even more alarm than the first. In the vast majority of cases there is no evidence to test using DNA. Unless a scientific framework is adopted to regulate interrogations, including by requiring recording of entire interrogations, overhauling interrogation methods, providing for judicial review of reliability at trial, and informing jurors with expert testimony, the insidious problems of confession contamination will persist

Contaminated Confessions Revisited

A second wave of false confessions is cresting. In the first twenty-one years of post-conviction DNA testing, 250 innocent people were exonerated, forty of which had falsely confessed. Those false confessions attracted sustained public attention from judges, law enforcement, policymakers, and the media. Those exonerations not only showed that false confessions can happen, but did more by shedding light on the problem of confession contamination, in which details of the crime are disclosed to suspects during the interrogation process. As a result, false confessions can appear deceptively rich, detailed, and accurate. In just the last five years, there has been a new surge in false confessions — a set of twenty-six more false confessions among DNA exonerations. All but two of these most recent confessions included crime scene details corroborated by crime scene information. Illustrating the power of contaminated false confessions, in nine of the cases, defendants were convicted despite DNA tests that excluded them at the time. As a result, this second wave of false confessions should cause even more alarm than the first. In the vast majority of cases there is no evidence to test using DNA. Unless a scientific framework is adopted to regulate interrogations, including by requiring recording of entire interrogations, overhauling interrogation methods, providing for judicial review of reliability at trial, and informing jurors with expert testimony, the insidious problems of confession contamination will persist

The Substance of False Confessions

A puzzle is raised by cases of false confessions: How could an innocent on convincingly confess to a crime? Postconviction DNA testing has now exonerated over 250 convicts, more than forty of whom falsely confessed to rapes and murders. As a result, there is a new awareness that innocent people falsely confess, often due to psychological pressure placed upon them during police interrogations. Scholars increasingly examine the psychological techniques that can cause people to falsely confess and document instances of known false confessions. This Article takes a different approach, by examining the substance of false confessions, including what was said during interrogations and how the confession statements were then litigated at trial and postconviction. Doing so sheds light on the phenomenon of confession contamination. Not only can innocent people falsely confess, but all except two of the exonerees studied were induced to deliver false confessions with surprisingly rich, detailed, and accurate information. We now know that those details could not have likely originated with these innocent people, but rather must have been disclosed to them, most likely during the interrogation process. However, our constitutional criminal procedure does not regulate the postadmission interrogation process, nor do courts evaluate the reliability of confessions. This Article outlines a series of reforms that focus on the insidious problem of contamination, particularly videotaping interrogations in their entirety, but also reframing police procedures, trial practice, and judicial review. Unless criminal procedure is reoriented towards the reliability of the substance of confessions, contamination of facts may continue to go undetected, resulting in miscarriages of justice

The Substance of False Confessions

A puzzle is raised by cases of false confessions: How could an innocent on convincingly confess to a crime? Postconviction DNA testing has now exonerated over 250 convicts, more than forty of whom falsely confessed to rapes and murders. As a result, there is a new awareness that innocent people falsely confess, often due to psychological pressure placed upon them during police interrogations. Scholars increasingly examine the psychological techniques that can cause people to falsely confess and document instances of known false confessions. This Article takes a different approach, by examining the substance of false confessions, including what was said during interrogations and how the confession statements were then litigated at trial and postconviction. Doing so sheds light on the phenomenon of confession contamination. Not only can innocent people falsely confess, but all except two of the exonerees studied were induced to deliver false confessions with surprisingly rich, detailed, and accurate information. We now know that those details could not have likely originated with these innocent people, but rather must have been disclosed to them, most likely during the interrogation process. However, our constitutional criminal procedure does not regulate the postadmission interrogation process, nor do courts evaluate the reliability of confessions. This Article outlines a series of reforms that focus on the insidious problem of contamination, particularly videotaping interrogations in their entirety, but also reframing police procedures, trial practice, and judicial review. Unless criminal procedure is reoriented towards the reliability of the substance of confessions, contamination of facts may continue to go undetected, resulting in miscarriages of justice

Confessions and Denials When Guilty and Innocent: Forensic Patients' Self-Reported Behavior During Police Interviews

Several self-report studies together with analyses of exoneration cases suggest that suspects with mental disorder are especially prone to making false confessions. The present study asked 153 forensic patients in Germany about their behavior during suspect interviewing by the police. Self-reported ground truth of guilt and innocence was asked for, thereby taking into account that the risk of false confession is present only if a person has ever been interviewed when innocent. Indeed, surveying samples that include suspects who have never been interviewed when innocent may lead to underestimating the risk of false confessions. In the present study, all patients reported having been interviewed previously when guilty; and almost two-thirds (62%, n = 95), that they had also been interviewed at least once when innocent. These participants stated that they remained silent while being interviewed significantly more often when guilty (44%) compared to when innocent (15%). This corroborates laboratory research findings indicating that the right to remain silent is waived more often by innocent than by guilty suspects. Out of all 95 participants who were ever interviewed when innocent, 25% reported having made a false confession on at least one occasion. This result is in line with previous international research showing a high percentage of false confessions among suspects with mental disorder

Justifying Justice: Six Factors of Wrongful Convictions and Their Solutions

There have been over 300 post-conviction DNA exonerations in the history of the United States. While this number may initially seem significant, there is still an unfathomable population of wrongfully convicted prisoners who have yet to be considered for retrials. Unaddressed wrongful conviction cases highlight the unacceptable weaknesses in the U.S. justice system, weaknesses that include poor investigative tactics and the acceptance or allowance of inaccurate and unreliable evidence. This paper will dutifully analyze the causes that lead to wrongful convictions and amply discuss potential solutions, all of which includes eyewitness misidentification, improper forensics, false confessions, informants, government misconduct, and insufficient lawyering

Remaining Silent after Salinas

In its ruling last Term in Salinas v Texas, the Supreme Court further eroded what little remains of the Fifth Amendment jurisprudence protecting against coercive police questioning of suspects. In this short piece for the University of Chicago Law Review\u27s online Dialogue, I explore the Salinas decision and its implications. I argue that the result encourages precisely the types of informal, undocumented questioning that can cause false confessions and wrongful convictions

What science can teach us about “Enhanced Interrogation”

No abstract available

But I Didn\u27t Do It: Protecting the Rights of Juveniles During Interrogation

Juveniles\u27 susceptibility to suggestion, coupled with their inherent naiveties and immature thought processes, raise considerable doubt as to their ability to understand and exercise their Fifth Amendment right against self-incrimination. Furthermore, they are extremely vulnerable to overimplicating themselves in crimes or, even more unfortunate for all involved, confessing to crimes they did not even commit. To protect the rights and interests of juveniles, states must enact several safeguards. This Note suggests, for example, that courts which currently use a totality of the circumstances test to determine whether a juvenile confession is voluntary, and thus not a violation of the Fifth Amendment, should abandon it in favor of a less-flexible per se rule. Additionally, states need to simplify the Miranda warning into language more conducive to juveniles\u27 comprehension. To increase the reliability of confessions and prevent false confessions altogether, interrogators need to cease using the same interrogation tactics, such as leading questions and the presentation of false evidence, on juveniles as they do on adults