Good news from Montana, where I recently served as a false confessions
expert witness at a suppression heaing. The judge has granted the defense's motion to suppress the confession. As more
judges act accordingly, interrogators will be slower to resort to the kinds of tactics that produce false confessions.
The Innocence Project has helped a man in Pennsylvania file a brief challenging
a terrible ruling. A judge denied the man his statutory right to post-conviction DNA testing. Sophisticated DNA tests,
which were are not available at the time of the man's trial more than a decade ago, could conclusively establish his
innocence or guilt. But the judge reasoned that, because his confession was ruled voluntary at his trial, he cannot establish
actual innocence. This is bizarre at best. The voluntariness of a confession is a subjective legal determination. The truth
or falsity of a confession, by contrast, is a matter of historical fact. DNA can get at that fact, and to deny someone the
opportunity to utilize it, simply because a judge decided that his confession was voluntary, makes no sense. There are many
proven false confessions that were deemed voluntary by a trial judge.
I've received several messages recently from families or friends of people
eventually exonerated after giving a false confession. The common theme is that the false confessor himself, and sometimes
his family as well, suffered from the fallout long after charges were dropped. It's a useful reminder of the heavy toll
exacted by false confessions -- even when they don't result in convictions.
Earlier this week the U.S. Supreme Court declined to review a case in
which the lower court found lack of probable cause to search individuals where the police witnessed an allegedly suspicious
transaction but without actually seeing drugs. This is a good thing. We don't need the Court widening the power of police
in this area. One tragedy of the war on drugs is its tendency to spur more aggressive police action and produce
false confessions.
A public defender writes to tell me about a case where a policeman tricked
an unsuspecting man into signing a false confession which the officer then used as leverage to make the confessor an informant.
Farfetched? Not in an age where law enforcement trickery is encouraged.
