Professor Edward Cheng of Brooklyn Law School is doing research to test
an interesting hypothesis. Professor Cheng suspects that judges who exclude false confessions expert testimony are more likely
to issue a published opinion about their decision than those who allow such testimony. If so, trial judges deciding
whether to admit testimony receive skewed information about what other courts have held. In any event, this much is clear:
many courts do permit such testimony, and those which don't are compromising the defendant's right to a fair trial.
The Supreme Court decision yesterday, holding the death penalty disproportionate
in cases of child rape, will infuriate supporters of capital punishment and buoy opponents. But the entire debate is skewed.
Haven't we learned (thanks to false confessions, among other things) that we are guaranteed to execute innocent people? Is
there anything worse? The biggest problem with capital punishment is not that it's used too often, or done the wrong
way, but that it will necessarily result in unspeakable and unnecessary tragedies.
The debate over the treatment of enemy combatants is being won by those
opposed to the Bush administration's policy, and the next president, either John McCain or Barack Obama, will abandon torture.
But we need to be careful what we learn from this debate. Opponents of torture point out -- correctly -- that it does not
yield reliable information. However, people may get the incorrect impression that anything short of torture is okay. In fact,
widespread interrogation techniques within the U.S., which rely on psychological rather than physical coercion, also yield
false confessions. To protect against false confessions -- not just from designated enemy combatants but from American citizens
suspected of all kinds of crimes -- interrogation practice needs to be reexamined. The problem starts at your local police
station.
The allegations by former NBA referee Tim Donaghy about officials fixing
games need to be investigated. But, until they are, we should not assume the accusations to be true and allow reputations
to be ruined. False accusations are a close cousin to false confessions, and both can result from a feeling
of desperation. Donaghy's belated, self-serving accusations could well be false.
