A number of readers have suggested that plea bargaining is a major source of false confessions. I agree. It's
a complicated subject, but I'm somewhat less bothered by the false confessions that stem from plea bargaining, for a number
of reasons. First, in these situations, the suspect usually has a lawyer. Second, and related, many people whose
plea bargaining involves a false confession actually were guilty of some crime - though not the one they pled to. That
said, the plea bargaining system is deeply problematic. A few legal scholars have called for its abolition. While
most people in the criminal justice system think that's impractical, I'm not so sure. The concern is that the system
would collapse if every case went to trial, but we could eliminate plea bargaining without eliminating guilty pleas - even
without the prospect of a better deal, some defendants, whose guilt is obvious, will not want to waste time or money going
to trial. Regardless, plea bargaining won't be eliminated any time soon. Everyone in the system - prosecutors, defense
attorneys, judges -- needs to be more concerned about preventing wrongful pleas.
I’m sometimes asked why I devote so much
time and energy to a cause that is, in the scheme of things, rather narrow. Why not work on larger or more systemic problems?One reason is that some problems are intractable, whereas the tragedy of false confessions
is largely preventable. Equally important, the more we learn about false confessions, the more apparent it becomes that they
reflect structural problems in the criminal justice system, including:
* overzealous police and prosecutors who
start with the presumption of guilt.
* ineffective legal representation for
* courts of appeals too willing to find
“harmless error” and thus affirm convictions following unfair trials.
* rules of evidence that impede rather
than advance the search for truth.
False confessions are not an isolated
tragedy, but rather a microcosm of a flawed system.
A reader amusingly quibbles with my post about OJ Simpson, noting that "his legacy also includes paying
Barry Scheck lots of $$, without which I doubt Barry could have started the Innocence Project. So it's not all that
Double murder is only part of O.J. Simpson’s destructive legacy.He left millions
of people with the impression that the biggest problem with our criminal justice system is that people get away with murder.That helps explain the absence of an uproar over the revelation (sparked by DNA exonerations)
that innocent people are convicted far more than anyone imagined.High-profile
cases mold public perceptions, and the Simpson case has undoubtedly skewed the sense of what afflicts the criminal justice
Some pooh-pooh the tragedy of false
confessions by saying that anyone foolish enough to confess to a crime he didn’t commit hardly warrants sympathy.That assessment is problematic on multiple grounds, one of which was suggested by my post earlier today
on the case of Joseph Dick.Dick, like many false confessors, took several other
people down with him.That might make him
less sympathetic, but what about those who did not confess and yet languish in jail on account of his (likely) false confession?False confessions often cause collateral damage, including the fact that the real
culprit tends to remain at large while the police stop investigating.
Virginia Governor Tim Kaine has received a petition for clemency on behalf of four men, quite likely innocent, who have served
eight years in prison for rape and murder based primarily on an unreliable confession/accusation by one of them. Joseph Dick maintains that he pled guilty and fingered other alleged accomplices in order to escape the
death penalty.Last week the Virginian-Pilot
ran a long story on the case, in which one item stands out.At Dick’s sentencing,
the prosecutor offered a mixed assessment of his cooperation: “At times it was as if he was trying to say what he thought
would please us, which created numerous problems for us.He made various inconsistent
statements although he was always willing to talk to us, always willing to testify."
confessor, though overly eager to please, made various inconsistent statements?This
should have been a double red flag.Yet the prosecutors, while annoyed at Dick
for creating “numerous problems,” didn’t consider that the problems may have stemmed from him not knowing what he was talking
about.Even now, with substantial other evidence suggesting innocence, the prosecutors
proclaim certainty of his guilt.
A reader informs me of a "civil case in San Diego this month where AutoZone was hit w/ a $7.5 million punitive damage
verdict as a result of the practices they employed to coerce employees accused of theft into confessing. In this case,
a Mexican-American manager was accused of stealing a few thousand dollars. Turns out that he had deposited it at the
bank, exactly as he told the company interrogators during the 3-hour interrogation. Company handled it in their standard
way. They brought in a special interrogator who lied to him about evidence that they had implicating the employee and
told him that if he didn't confess, he would be prosecuted and go to prison. If he confessed, he could pay the money
back and all would be forgiven. On the stand, the interrogator acknowledged that he followed the company protocols for
these interrogations to the letter and that he is instructed to extract confessions."
A visitor writes: “August 24, 1943 is carried on the web site
of the History Channel as an important date in history, and finds Robert E. Lee Folkes responsible for the murder of Mrs.
Martha James. [Folkes was executed.] After extensive and continuous questioning Robert provided his tormentors with the answer
they programmed. . . . There is every reason to believe that Robert E. Lee Folkes, was not [guilty].”
I know nothing of this particular case, but it’s a reminder of something crucial. While
false confessions have begun to make their way on to our societal radar screen, there’s no reason to believe that the phenomenon
is new. Professional and amateur historians would do well to excavate questionable
confessions throughout history.
A trial began this week in the case of Earl Washington, whose false confession led to 18 years in prison (several of
which were after DNA testing exonerated him). Washington has sued the investigaor who coached and coaxed him
to confess. The defense is that the investigator acted in good faith and it's Washington's fault that he wrongly
confessed. But the claim of good faith is a hard sell given the nature of Washington's confession. Among the
"details" he got wrong were the race of the victim! He said he stabbed her a few times, but her body bore 38
stab wounds. He said they were alone, but the crime was in front of her children. Given the error-riddled nature
of the false confession, there is ample reason to believe that the facts Washington got right were fed to him. Earl Washington
was heroically upbeat throughout his long, Kafkaesque nightmare. Now let's hope he receives a measure of justice.
A reader who finds the death penalty inhumane and un-Christian objects to my observation that few tears will be shed
for Moussaoui if he is executed. My point was that Moussaoui is an atypical false confessor, for reasons we needn't rehearse. Far
more typical is Earl Washington -- see my post above.
Apropos Instapundit’s observation
that false confessors are often young or dumb, I mentioned that they come in all sizes and shapes.We’re both right.The latest available data on known false
confessors shows that 63% were under 25 and 22% were mentally retarded, which still leaves 37% (not particularly young) and
78% (not mentally retarded) respectively.
False Accusations, False Confessions, and Duke Lacrosse
False accusations can begat false confessions.In this regard, Thomas Sowell makes an important observation about the Duke Lacrosse
case.The prosecutor, Michael Nifong, has indicated that he may indict a third
person in the alleged rape.Noting that Nifong has already disgraced the two
indicted players and burdened their families financially, Sowell writes: “If
that third person cannot stand the disgrace or his family cannot afford the expense, that is leverage for getting him to say
whatever the prosecutor wants him to say.”
I recently posted about last week’s
decision upholding admissibility of a confession even though the interrogating officer confronted the suspect with fabricated
evidence (including the claim that he had been identified by the victim’s dying declaration and several eyewitnesses).We know that misrepresentation of evidence is a primary cause of false confessions.Courts would go a long way toward reducing the tragedy of false confessions if they
adopted a bright-line rule that such tactics make a confession inadmissible.Instead,
using a “totality of the circumstances” test, courts often uphold confessions procured by outrageous tactics.This not only produces wrongful convictions in particular cases, but gives the police no incentive to avoid
Will this man be put to death . . . over a false confession?
Question: Was Moussaoui telling the truth when, at the sentencing phase of his trial, he described his plan to fly a fifth
hijacked plane into the White House?
Probably not.The government has thoroughly investigated the 9/11 attacks and found no evidence suggesting the existence
of such a plan.
Question: Why in the world
would he confess and likely bring about his own death?
People give false confessions surprisingly
often – even voluntarily.In Confessions in the Courtroom, Saul Kassin and Lawrence Wrightsman identify several reasons why people confess voluntarily, two of which might well apply
*. A morbid desire for notoriety
*. Inability to distinguish facts from
Question: Does this mean he
shouldn’t be sentenced to death?
It’s one thing if he is put to death
for what he did.It shouldn’t be because of a confession unsupported by evidence. Few tears will be shed for Moussaoui, but this would be another example of the
widespread, false intuition that no one would confess to a crime he didn’t commit.As
I point out in this morning’s Los Angeles Times, that notion is a source of much tragic injustice.
A follow-up to my earlier post involving
a suspect told that he was identified in the victim’s dying declaration: the same tactic was used against Marty Tankleff,
whose case is attracting international attention.It’s no wonder that interrogators
resort to this tactic because it has tremendous potential to cause a suspect despair.The suspect is likely to wonder how he’ll ever be able to disprove a dying declaration!What the police apparently haven’t considered is that the resulting despair can cause an innocent person to confess.
“I first noticed the false confession issue in the mid-70's.I was representing prison inmates in prison
conditions cases, so I asked potential inmate plaintiffs in some detail about why they were locked up. Most
told me the truth. A few told me they didn't do anything but had confessed anyway. Maybe I was gullible,
but I believed them.I found this extremely frightening.
Most people I told about it thought I was just inexperienced, naive, a bleeding heart.”
Last week, a court in New York issued a remarkable opinion in an appeal of a
murder conviction based largely on a confession.At a hearing to suppress the
confession, the interrogating officer acknowledged that he falsely told the defendant that the victim had uttered a dying
declaration naming him as the killer.He further admitted telling the suspect
that several eyewitnesses saw him flee the crime scene – also untrue. The suspect, confronted with this overwhelming “proof”
of his guilt, confessed.
Did the Court find the confession
involuntary and inadmissible as a result of the officer’s lies?No. But it did
scold the officer: “The Court does not condone the police officers’ tactic in this case. . . . Such a ruse is deplorable.”Courts may not “condone” such interrogation tactics, but when they allow the resulting
confession into evidence they surely encourage them.
Apropos Moussaoui, I noted the near-univeral (but false) intuition that no one would confess to a heinous
crime. A reader responds: "To Moussaoui, it's not heinous, but something to be proud of - but does he think
he can lie his way into heaven?"
As this comment suggests, there is no shortage of reasons why people confess falsely. In Moussaoui's case, desire for
martyrdom could certainly figure in.
A New York lawyer, David Seth Michaels, writes this morning to say: "Fantastic web site on a topic that's been bothering me for about 30 years. I'm sending it to everyone in the
defense community I know."
For those who agree with Mr. Michaels about the importance of the subject, I urge you to follow
his lead and spread the word. Send a comment
law school classmate, Instapundit, writes that false confessions “happen more often than you might think, especially where
the defendants are young or not very bright.”He’s certainly right that they
happen more often than one might think – indeed, more often than anyone had imagined.He’s also right that young people and people of diminished intelligence are more vulnerable than others to confess
falsely.But it’s critical that we not think of false confessions as a risk only
to certain groups: false confessors come in all sizes, shapes, genders, races, and ages.
What we’ve learned about false confessions has implications far beyond the dangers of certain interrogation practices and
the vulnerability of certain people.Our growing awareness of the fallibility
of the criminal justice system should lead us, among other things, to reject capital punishment.
Some people support capital punishment
but want it limited to cases where the defendant’s guilt is established not just beyond reasonable doubt but beyond all doubt.However, not too long ago
a confession was believed to remove doubt of guilt.Too many people still think
so, including prosecutors, judges, and juries.This is a powerful argument against
Some false confessors have come within
days of execution.We’ll never know how many others weren’t so lucky.
It’s a safe assumption that some of the designated enemy combatants interrogated at Guantanamo and elsewhere confessed to atrocities they didn’t
commit.False confessions often spring from a feeling of hopelessness and submissiveness
to authority.A lengthy interrogation deepens those feelings.Further, when interrogators start with the presumption of a suspect’s guilt, they behave in ways that trigger
from innocent suspects a response (defensive, combative) that in turn triggers
a response (more aggressive insistence of guilt) that exacerbates despair.The
self-perpetuating cycle can result in false confessions even without the physical compulsion apparently used against detainees.
We also know that false confessions often result from a conscious or unconscious
cost-benefit analysis – the worn down suspect, subject to threats and promises, may rationally conclude that he is better
Conditions at Guantanamo present the perfect storm for false confessions.In domestic crime situations, there is a practical limit to the length of an interrogation, but designated enemy combatants
are held and interrogated for months.In addition, interrogators at Guantanamo are not concerned that a judge will throw out a confession
that follows a prolonged or overbearing interrogation. If interrogators have
little incentive to behave prudently, innocent detainees have little incentive to maintain their proclamations of innocence
-- any prospect of a return to freedom seems to require telling the interrogators what they want to hear.On top of all this, the interrogators begin with an assumption of the detainee’s guilt and there are no
lawyers in sight to comfort or protect the suspect or suggest exonerating evidence.
The main goal of interrogating enemy combatants is to gather intelligence, not
to solve a crime or build a case for prosecution.But if we’re to gather intelligence,
we should do so intelligently.We should not create conditions likely to yield
false information and strip the dignity of the innocent.
Newspaper coverage of the recent
false confession by Charles Hickman in Indiana includes a sadly revealing remark by the police captain who
interrogated him. "I've asked myself ever since this, 'Why would a 20-year-old confess to something
he didn't do?' and I still don't have an answer for it." But it turns out that police files on Hickman include this observation
by another interrogator: “Chucky is very slow and has a mental capacity of a 15-year-old."
low intelligence does not mean a confession is false, but it is one of many red flags that should not be ignored. In this
case, there were others that were bright red: Hickman mostly spit back information fed to him by the police and when he volunteered
new information it was wrong.Yet, even under these circumstances, an experienced
policeman remains deeply perplexed that a false confession is possible. Better education and training ofpolice in this area is indispensable.
I posted earlier
about the Amy Yates case, featuring two confessions by minors. This case calls attention to something crucial: kids
are particularly prone to confess falsely. (This should surprise no parent: young
people have the wonderful ability to reside in fantasy lands.)While we need
to reform interrogation and judicial practices in general, click here, police, prosecutors, judges, and juries should be especially wary when dealing with youths.
I am not about to defend Zacarias Moussaoui, who almost certainly trained to commit acts of terrorism and who is (to put it
mildly) unrepentant about the fact. At the same time, if he is sentenced to death, I hope it's not because of his confession
in the death penalty phase of his trial, when he boasted that he planned to fly a fifth hijacked plane into the White House.
Moussaoui gives the appearance of a rather delusional fellow taunting his captors. Some will insist that no one would
falsely confess to something so heinous, especially when it will only bring about his own execution. Why would even a crazy
man do that? Because he is a doomed man with the world's attention. (More
than 200 people claimed to have kidnapped the Lindbergh baby?) Desire for notoreity is one cause of false confessions. Here,
perhaps mixed in with a yearning for martyrdom.
Of course, it would be a blunder to try and make Moussaoui the
poster child for false confessions. But it's worth pointing out whenever a judge, jury or anyone else mistakenly assumes that
a confession must be true. That's a terrible habit we need to break -- even if doing so works to the benefit of a sadistic
What a mess in
County, Georgia, where the authorities must pick
among two confessions in the case of Amy Yates, an eight year old girl murdered in 2004.Shortly after the murder, a twelve year old boy brought in for a three hour interrogation confessed.He pled guilty and was placed in juvenile detention.Recently,
however, an eighteen year-old boy confessed that he murdered Amy.As a result, a judge ordered the younger boy (now fourteen) released.Subsequently, the older boy recanted his confession.
Now the prosecutor
must figure out which of the boys to pursue.He is apparently considering the
extent to which the confessions are consistent with other evidence, which of them disclose details unknown to the public,
etc.Good for him.But this kind
of inquiry should be undertaken whenever there is a confession (particularly when
recanted), not only in the very rare situation where the authorities must pick between two confessions.
Judges sometimes lose touch with reality when confronted with a claim of a false confession. An opinion earlier this
month from the U.S. Court of Appeals for the 6th Circuit offers a bizarre illustration. The defendant claimed that she confessed
because detectives threatened that she would otherwise be convicted of the most serious charge and would lose contact
with her children. In a Supreme Court case, a similar threat was deemed to render a confession inadmissible. But that case
was different, said the Sixth Circuit, because there the mother was told not only that she would lose contact with her children,
but also that "aid to the children would be cut off."
Threatening a woman that she will never see her kids unless she confesses is not enough to render her confession involuntary? Not
a great message to send the police.
A reader writes that the discussion on this site of interrogation tactics, click here, caused him to reevaluate an incident from years ago. The police told a suspect (a friend of my correspondent) about an eyewitness
to his alleged sexual assault. Since the suspect was innocent, my correspondent has long wondered who fabricated that
he had seen the assault, without it occurring to him that perhaps it was the police who fabricated. I am not
a police basher. To the contrary, I feel extraordinary gratitude toward those who put their lives on the line to protect
us. But people behave in accordance with their training and, regrettably, police are trained to misrepresent evidence
in order to induce confessions.
While it doesn't involve a confession (yet!), in one respect the Duke lacrosse case may ominously echo false confessions cases.
The prosecution has indicted two players despite absence of their DNA on the alleged victim. One wonders if the
prosecution intends to claim that they were accomplices to some unknown assailant. One sees this after post-DNA
exonerations of false confessors -- the prosecution comes up with a new theory of the case, often that the confessor had an
accomplice who physically committed the crime. Why? Because the prosecutor can't or won't accept that someone who confessed
may actually be innocent. In the Duke lacrosse case, it may be that the prosecution assumes the accusation (as opposed
to a confession) must be true. We can't be sure -- maybe there's all kinds of evidence we don't know about. But we ought to
be suspicious. Prosecutors are valued public servants but, alas, they sometimes start with an assumption of guilt and work
Can you imagine anything worse than the rape and murder of one’s young child? Try this – after suffering that unspeakable tragedy, finding oneself wrongfully convicted of the crimes. Only in a
bad novel? Alas, no. Billy Wayne Cope is serving a life sentence in South Carolina for raping and murdering his
twelve-year old daughter – after he was exonerated by DNA. Defense lawyers have just filed an appeal.
During a long overnight interrogation, which involved him being told that he failed a lie detector test, Cope confessed
to these god-awful crimes.Later, testing identified the DNA of James Sanders,
a serial sexual predator, on Amanda Cope’s body, whereas Billy Wayne Cope’s DNA was not present.Nevertheless, a jury convicted Cope as well as Sanders (of rape, murder and conspiracy), even though there
was zero evidence establishing any connection between the two.
What lessons are to be learned?Old lessons that haven’t been learned
well enough.First, unless certain interrogation tactics are changed, they will
continue to produce false confessions.Second, these confessions will in turn
produce wrongful convictions, because of the powerful intuition that no innocent person would confess.(In this case, the prosecution explicitly argued as much to the jury.) Third,
to overcome this intuition, expert witnesses must be allowed to educate the jury.Here,
the court sharply limited the testimony of Cope's false confessions expert.
As is often the case, this gross miscarriage of justice occurred because assorted players (police, prosecutors, judge,
and jury) don’t understand or take seriously the phenomenon of false confessions.There
are a number of potential reforms for reducing the tragedy of false confessions, click here, but nothing is as important as simply spreading the word: innocent people can and do confess.
My old law school classmate Glenn Reynolds runs a little blog you might check out: Instapundit.com. I'm joking -- if you breathe, you probably know about his site. Glenn's kind reference this morning sent lots
of visitors my way, and I'm grateful to hear from so many of you. So to Instapundit -- kudos on your incredible site
and thanks for the plug. To his followers: visit again! I'll be posting daily, keeping you up to date on amazing cases,
analyzing the issues, and posting your comments.
"Another case I had (published decision) is State v. Jami Swanigan where the police told Swanigan
they had his fingerprints at the crime scene - which was a lie. . . . Swanigan was convicted of robbery at
trial but the Kansas Supreme Court reversed his conviction and ordered the confession suppressed. . . . It
is important for trial attorneys to be aware that the Reid method of interrogation taught to law enforcement officers seems
to encourage false confessions in stressing the importance of cutting off denials by the suspect in custody.
The appellate courts seem to be backing away somewhat from the decision in Cobb."
A few important points here. First, false claims about evidence are indeed a staple of interrogation,
and play a role in producing false confessions. Second, defense attorneys need to be vigilant in challenging such tactics.
Third, this is best done with the assistance of experts witnesses. The admissibility of their testimony is a fluid
matter, with different courts adopting different standards and sometimes revisiting their prior decisions. Lawyers
need to press for more flexibility in this area.
"I defended a false confession case several years ago where the young defendant, Artis Cobb,
was prosecuted for two counts of first degree murder and one count of rape. The State even threatened the possibility
of seeking the death penalty. We called Dr. Leo as a witness in that case and the jury found Cobb guilty of voluntary
and involuntary manslaughter. He was recently released from prison and is on parole.
You can look at the Court of Appeals opinion on the Kansas courts website. It is a published decision. The Court
of Appeals said that no attorney in Kansas would be allowed to call a false confession expert - which I think is laughable
in light of their decisions to allow rape trauma syndrome testimony."
This makes an excellent and important point about the admissibility of expert testimony. Some judges forbid false confessions experts from testifying on the ground that this is
a matter within the common sense knowledge of jurors. Amazing. The notion that innocent people confess is deeply counterintuitive,
and it is crucial that expert witnesses be permitted to educate juries about the phenomenon.
"I would like to compliment you on your work in the field of false confessions. . . . I think another
area that cries out for someone to investigate and expose it's basic unfairness is our whole prison system and the treatment
of prisoners. . . . For example, I kept watching and listening for the news media to link the recent Abu Ghraib Prison scandal
with practices in American prisons since the main perpetrator was a former American prison guard. But the American news
media ignored this obvious link."
The reader is right about prison conditions. I wish I could devote a blog to
that subject too, but there are only so many hours in the day. However, since he brings up Abu Ghraib, a word is in order.
It’s a safe assumption that some of the designated enemy combatants interrogated at Guantanamo and elsewhere confessed to
atrocities they didn’t commit. Conditions at these detention centers present the perfect storm for false confessions. I plan
to post on this in the near future.
Marty Tankleff has languished in prison since 1990.Here are the basic facts
about his case:
* In 1988, Tankleff’s parents were brutally murdered.Shortly thereafter, the 17-year old Tankleff confessed.He immediately disavowed the confession and never signed it.Nevertheless,
he was convicted almost exclusively on the basis of the confession.
* Tankleff has consistently maintained that his interrogators
bullied him and lied about evidence – fabricating, for example, that his dying father had identified him as the murderer.The police did not tape the interrogation.
* No other evidence linked Tankleff to the crime, and a good
deal of physical evidence was inconsistent with his confession.
* Tankleff’s father's business partner owed him $500,000, and a week after the murders
faked his own death and later surfaced thousands of miles away sporting a new appearance and identity.
* In 2004, Tankleff's lawyers
introduced extensive new exculpatory evidence – several witnesses have come forward claiming knowledge of the actual murder
(a contract killing arranged by Tankleff’s business partner).
* For two years the prosecutors
adamantly opposed a new trial, and last month the judge denied Tankleff’s motion for a new trial.
Incredibly, this story isn’t all
that unusual. To be sure, it may be a bit extreme."I never saw a similar case where a defendant was so obviously
innocent," says Herbert A. Posner, a former New York Supreme Court justice.But
the basic outline of the Tankleff tragedy is familiar to anyone who has studied false confessions.