An attorney writes to tell me about a recent case in California where his
client “was interrogated until, after two statements during which he gave the police names of actual shooters, he finally
confessed during the third round of interviewing. The entire statement was suppressed when the judge ruled that the defendant
had been unlawfully arrested in the first place and said that the arresting officer perjured himself during his testimony.”
Happy ending? Except he adds: “The police just stopped investigating the case.The real outrage of course, now that our client has been exonerated, is that the actual
murderer will probably never be charged and, if he is, can put the whole investigation into doubt.”
Apropos my recent post about an Ohio
court excluding the testimony of a false confession expert, a judge sent me this message: “Judicial discretion is really a
crutch that allows appellate courts to avoid reversing convictions by simply declaring that what should have been characterized
as error instead falls within the (almost boundless) zone of judicial discretion.”
Judicial discretion is a complex topic onto itself, but I wholeheartedly agree
that courts of appeals all too often rubber-stamp rulings by trial courts that seal the fate of defendants. This is a common
occurrence when it comes to false confession expert testimony. Rather than undertake a serious analysis of whether the exclusion
of such testimony deprived the defendant of a fair trial, the court of appeals will simply declare that the matter lies within
the discretion of the trial court.
A visitor writes that many false confessions trigger wrongful convictions not through trial but through guilty pleas:
“Since the confession, false or otherwise, appears to take precedence
over any evidence, defendants are led to plead guilty and accept a plea.”
This is exactly right, and ultimately the only solution is the education of everyone (prosecutors, judges, defense
lawyers, and laypeople – jurors) to understand the reality of false confessions.
Mike Nifong crossed the line by a mile and deserved to be disbarred.
But it would be a terrible mistake to think that his biggest sin -- rushing to judgment about guilt and refusing to allow
the evidence to shake his premature conviction -- is uncommon among prosecutors. Certainly in cases of false confessions,
such behavior is characteristic.
Death penalty proponents are touting recent studies allegedly establishing that capital punishment has a clear deterrent
effect. That may be true. There may be other reasons to favor capital punishment as well. But given the proliferation of DNA
exonerations (including quite a few cases of people who were in death row), state-sanctioned killing is unacceptable.
This article reports a new study confirming what social scientists have
long known: police who believe they can tell whether someone is lying based on body language and verbal cues are fooling themselves.
This is critical because police are trained to believe in their “human lie detection” ability, and they often resort to aggressive
interrogation, of the sort known to produce false confessions, only after they have decided someone is lying and therefore
guilty. The study does suggest some promise in human lie detection, but a great deal of work needs to be done.
The Innocence Project reports that DNA exonerations have climbed over
the 200 mark. (Roughly 25% of these wrongly convicted persons had confessed.) We have every reason to believe that this is
just the top of an iceberg. Who would have thought that many people incarcerated around the country are innocent? Does
anyone find this state of affairs tolerable?
