We've received a staggering amount of traffic today thanks to this kind mention in Walter Olson's influential blog. I'd like to welcome all the new visitors and urge
you to give me feedback on this site, which remains a work-in-progress. Suggestions most welcome.
A reader writes to inform me that a recent episode of Law and Order: Criminal Intent involved
a false confession and suggests that “maybe public awareness is beginning to awaken.”I think so, though we haven’t reached a tipping point yet.DNA exonerations
sparked the beginning of a re-thinking of the assumption that wrongful convictions in general (not just those based on false
confessions) are incredibly rare.But the moment needs to be seized, the word
needs to be spread.
I’ve heard people dismiss the problem
of false confessions by suggesting that most false confessors are mentally retarded or mentally ill.That’s inaccurate, but it is true that a disproportionate number of false confessions (perhaps a third)
spring from people in these categories.However, to my mind, that makes the problem
worse rather than less severe.Don’t we owe the most vulnerable among us special
protection?All too often, the mentally impaired are subject to the same coercive
interrogations that produce false confessions even among those without infirmities.
False confessor Martin Tankleff, from a correctional facility in New York sends along kind words about this website and
the following message to the public:
“I would like to thank everyone for their
continued support and assistance.I am confident that with the team effort that
everyone has put forward justice will prevail for me and my parents.The truth
needs to be told and the public can help in exposing the truth.Anyone who has
any information that can help me, please come forward.No matter how small, or
large, any amount of information or assistance will be greatly appreciated.Again,
thank you so much for your support.I and my family greatly appreciate it.”
A lawyer writes to say that "some false confessions ultimately reduce
to acts of altruism. I can recall several cases over the years where I was convinced the inmate pled to a violent attack---usually
a knifing---of his mother's abusive boyfriend, when the circumstances suggested that the mother did the stabbing. In
some cases, it was a sibling the inmate had protected."
Given the powerful intuition that people would not confess
to a crime they did not commit, it's important to keep in mind that there are actually numerous reasons one might do so.
Protecting loved ones is certainly among the many motivations for false confessions.
According to the Innocence Project, there are several sources of wrongful conviction more common than false
confessions, such as eyewitness misidentification and prosecutorial misconduct. However, that involves raw numbers.
In percentage terms, there is probably nothing more fatal to a defendant than his false confession. Studies of proven
false confessions suggest that when false confessors go to trial, 70-80% are convicted. And, in most of these cases,
there is virtually no evidence except the confession.
Earlier I posted about the Nick Yarris case, and drew certain lessons from it. Peter Goldberger, who was involved in the case and called my attention to it, suggests additional lessons.If we are to have a death penalty, we ought to take extra precautions to avoid wrongful convictions. Yet various criminal law reformers call for streamlined procedures.In the interests of "comity" to state courts and "finality," they would limit the death row inmate’s ability
to challenge his conviction.Had such calls been heeded, Goldberger notes, Yarris
“would surely have been executed some years before the current sophistication of DNA testing came into effect, permitting
I would only add that DNA testing
will not be available or decisive in every case.Nick Yarris may have been lucky
(if you can say that about someone who spent 21 years in jail for a crime he didn’t commit). We’ll
never know how many innocent people have been executed.
Following my tribute to Judge Becker earlier this week, a fellow former law clerk of his, Peter Goldberger, dropped a line
to tell me about an amazing case he was involved with a few years ago:Nick Yarris,
a death row inmate exonerated by DNA after 21 years in prison for a murder he didn’t commit. The case may have involved a
fabricated confession more than a false confession (a jailhouse snitch claimed Yarris made incriminating statements), but,
in any case, serves as a potent reminder of some paramount truths: the fallibility of police and prosecutors and the grave
risks posed by the death penalty. I can’t vouch for all the details in this riveting account by Yarris himself, but the main story-line has been confirmed.
From the Reid Associates website: “The Reid Technique of Interviewing and Interrogation [is] widely recognized
as the most effective means available to exonerate the innocent and identify the guilty.”
How, pray-tell, does the Reid technique
exonerate the innocent?These folks “train” interrogators to discern the guilt
or innocence of suspects through an initial interview primarily by observing and evaluating their demeanor and verbal cues.The notion that guilt/innocence can be determined in this manner, debunked by social
science, amounts to superstition.Interrogators’ unjustified confidence in their
ability as lie detectors contributes mightily to false confessions.To hear Reid
Associates boast about this imaginary skill is maddening.
A visitor writes: “I did not make a false confession, but it was only through willpower
and anger at the two detectives who were trying to make me do just that.They
used all of the techniques you talk about [on your website].”
A visitor alerts me to an event he says happened about 6 months ago in Troy,
New York.“a man accused of something
like child endangerment refused to sign a typed up confession--things were getting contentious between the interrogator and
the subject, so to emphasize his refusal the subject tore up the statement. The cops then arrested the man for the destruction
of government property.”
I’ve been unable to locate this.Anyone know anything about it?Or similar scenarios anywhere?
I’m collecting cases in which courts declare that “we do not condone” some improper interrogation tactic, but then nevertheless
admit the resulting confession into evidence or otherwise rule against the subject of such tactics.Earlier this month a panel on the U.S. Court of Appeals for the First Circuit explained that “we do not
condone” an officer lying to a suspect by telling him that a confession to a crime would “stay confidential,” but still affirmed
a grant of summary judgment in favor of the officer in the suspect’s civil suit against him.The court noted that the cop “did not engage in physical or psychological abuse.”Therein lies the problem: the courts set the bar far ridiculously high when it comes to determining what interrogative
behavior is beyond the pale.
alerts me to a book by a retired detective called We Get Confessions, which offers a candid account of interrogation
tactics.I look forward to it.In
the meantime, I find revealing some of the customer reviews on Amazon, such as this excerpt from a gushing review by a police
officer: “I was always frustrated doing interviews. I knew I had the right guy,
but just didn't know how to get them to tell me they did it.”
I had the right guy”?Therein lies a major contributor to false confessions.Police often engage in dubious interrogation practices precisely because they “know”
they have the right guy, and their presumption of guilt becomes a self-fulfilling prophecy.The presumption, usually formed during an initial interview, rests on the notion that police can tell when
someone is lying based on various behavioral cues.In fact, social science research
demonstrates that humans are poor lie detectors – and professional interrogators no better than anyone else.
Click here for an excellent column in today’s New York
Times by Bob Herbert.If you don’t subscribe to the Times, and won’t get a chance to see it, the column is about Douglas Warney -- just exonerated by DNA testing
after years incarcerated for murder despite the absence of any evidence except an extremely dubious confession.Herbert wonders how the authorities could possibly send someone to jail for a crime he clearly did not
commit.Explore this website (the FAQ, my various posts, and the scholarly literature), and answers emerge.
Defense Lawyers Take Note -- Voluntary Confessions
Attorneys whose client came forward voluntarily and confessed to a crime are apt to assume the client’s guilt, even if the
client insists he confessed falsely.That’s understandable.The idea that an innocent person would confess in the course of an interrogation is counterintuitive enough.Would anyone come forward voluntarily and
The answer is yes.I’ve mentioned that 200 people confessed to kidnapping the Lindbergh baby, and that was far from unique.I just came across an article (no link currently available) in a Nebraska
newspaper about the discovery of a woman’s remains that had been undiscovered for years.The police believe it was homicide, but the CountyAttorney declined to release details, noting: “You’d be surprised how many people falsely
confess to these types of crimes.”
In 1985-86, I was a law clerk for Judge Edward R. Becker on the U.S. Court of Appeals for the Third Circuit.On Friday afternoon, Judge Becker passed away.I can’t manage
an adequate eulogy: the grief is too great and the man was too great.As this
is a public space, I’ll limit myself to brief comments about his public side: his judging.He was, quite simply, the ideal judge.In 36 years on the bench, not a
single party should have walked away from a case he presided over (as trial judge or appellate judge) without feeling that
he or she received a fair shake.Others talk about justice as evenhanded, about
judges doing all they can to put aside personal predilections or political views.Judge
Becker embodied that ideal.
It’s a cliché,
but no less true or important for that: we take solace from knowing he touched countless lives in ways that live on.The crusade against false confessions is rooted in a passion for justice.In my case, that passion was stoked by this special man, whom I already miss terribly.
Under Texas case law, similar to most states, a confession is inadmissible if the police make
a promise “of some benefit to the accused” deemed likely to be “influential” in producing a false confession.In practice this amounts to little protection, as a case earlier this week illustrates.A court of appeals in Houston ruled a confession
admissible even though the officer told the suspect: “we can talk to the DA, get you an offer, if you can help us.”As this suggests, courts tolerate all kinds of suggestions of leniency – even though these are known to
cause false confessions.
The folks who took my quiz about the 1986 World Series got it wrong, as does almost everyone.People tend to think Bill Buckner’s famous muff was in game 7 (it was game 6) and that the Red Sox were leading (the
game was tied).In other words, they think that if Buckner made the play, the
Red Sox were world champions and since he missed, they lost.False and false.If he made the play, the game would have continued in extra innings; since he missed, the series went to game 7 – Red Sox still could have won it.
In a fascinating essay in a great book, Stephen Jay Gould claims that the mistaken recollection about the 1986 Series
reflects the way our brains work – we have a need to tidy things up, to convert life’s messy realities into neat narratives.I think that helps explain the reluctance to believe that innocent people confess
to crimes.If even a person’s own admission that he did X does not prove that
he did X, life seems rather unstable.
Nicholas Mears, coerced into a confession by police in South Dakota, has reached a settlement in his civil suit.
Read more here.The confession was so obviously
bogus that the trial judge excluded it from evidence, citing the many lies told to Mears and the absurdity of the confession.
Prosecutors then dropped charges.
There’s more good news here.A few days before the scheduled
execution of Jerry Wayne Conner last week, the North Carolina Supreme Court stayed the execution so that he could obtain DNA
This case scares me -- a man sentenced to 45 years for aggravated assault and armed robbery, based primarily on his
recanted confession The victim has never identified him. Nearest one can tell, the only evidence against him is
a grainy video “shot from an angle that makes it difficult, if not impossible, to conclusively identify [the defendant]” and
the confession, which he maintains was given “under intense pressure after hours of interrogation.” Years ago, I’d have read
about this case and assumed the defendant’s guilt. But anyone versed in false confessions has to feel terribly uneasy
about guilty verdicts in cases like this.
A visitor writes: “There is far too much stress [in our justice system] on winning. Our system is not successful when it allows the conviction of the wrong man to be more
acceptable than an unsolved case.”
Interestingly, prosecutors are supposed to be exempt from the extreme adversarial ethic.The Supreme Court has referred to the prosecutor’s twofold aim: “that guilt shall
not escape or innocence suffer.”Alas, too many prosecutors ignore the second
part of their obligation. They are no less adversarial than defense attorneys
– wins and losses are how they define success.
I’ve mentioned that the problem of false confessions is not limited to America.Neither are the solutions.I’m glad to announce that Japan’s “Supreme Public Prosecutors Office” veryrecently introduced, on a trial basis, audio and video recording of some interrogations.Read more here.
police officers have resigned after they were found to have given remand prisoners special favors in exchange for giving false
confessions, their force said yesterday. A 12-month internal investigation by Bedfordshire police found that some prisoners
were allowed to have sex with their girlfriends and take home visits, and were also given cigarettes and extra meals. So keen
were some criminals to get their rewards that they admitted to carrying out crimes committed while they were in custody. As
a result of the inducements, the crime detection rate improved in Luton."
This incredible story in today’s New York Times
(subscription needed) describes the case of Douglas Warney, the latest false confessor to be exonerated by DNA tests. Today
prosecutors in Rochester,New York are expected to request Warney’s immediate
release from prison, where he has spent more than a decade for a murder he did not commit.
Apropos my recent post about why I focus on false confessions, a reader writes to discuss her related crusade – mistaken eyewitness
a trial involving a relative of mine, we had two great expert witnesses. The jury listened to and seemed fascinated by these
experts. Everyone thought that the verdict would be not guilty. But the verdict was guilty and it seemed to me that although
the jurors listened intently, they just couldn't shake two myths about eyewitness testimony-- that memory is like a camera
(you either have it or you don't, but it doesn't change), and that the more certain someone is, the more accurate that person
is. My personal feeling is that they struggled with the new information from
the expert witnesses, but then fell back on what was familiar to them. That's why I decided that it would be a big help if
people learn about how memory works BEFORE they are ever on a jury, so that the expert witness testimony would not be the
first time they were hearing this information. So, I came up with the idea for
a play for schools and community groups. . . . What I'm doing is much easier than what you are doing. False confessions are the most difficult of all problems to convey to the general public.It's so counterintuitive. Without someone
like you bringing this to the public’s attention, I'm not sure how people would begin to learn about it. . . . I'm hoping
that through your Web site, public education about this issue will spread so that, again, people will not be hearing about
it for the first time from an expert witness (if the expert witness is even allowed to testify).”
this message on multiple levels.The reader has devoted herself to a great cause
– mistaken eyewitness identifications account for many wrongful convictions.She’s
also right that false confessions present an even bigger challenge in terms of educating the public and jurors.(People are surprised to learn that eyewitnesses are often wrong, but that’s not as counterintuitive as
innocent people confessing.)Finally, I appreciate her kind words about this
site.If you share her sentiments, please spread word about the site to help
educate the public (lawyers and policymakers included).
I've got a crazy question for those visitors who are baseball fans (either serious or casual). Remember Bill Buckner's
famous error in the 1986 World Series? What was the situation at the time, i.e., which game of the series, what inning, which
team ahead? If you're not sure, guess, but the answers must be based on memory.
I promise that later in the week I will explain why I asked and connect this exercise to false confessions. Meantime,
let me hear your best guess!
First, the Red Cross protested that the United States will not allow them to visit our enemy
combatants held in secret locations.As I keep lamenting, we have every reason
to believe that our indefinite detention and prolonged interrogations of designated enemy combatants are procuring false confessions
– all the more so when no outside observers are allowed in.Why isn’t there more
outrage?As a society, we are in “see no evil” mode.
Next, it appears that another round of
DNA tests in the Duke lacrosse case produced the same result as the first: no match with the accused.I harp on this case because it links up to false confessions in a key respect: the tendency of
many prosecutors to presume a suspect’s guilt and act accordingly, even when evidence fails to support the presumption.Mike Nifong now has a choice: he can persist in a prosecution that, at least based
on what we know, is unjustified.Or he can admit that he made a big mistake.Any bets?
"I am pleased that someone is taking action to inform the public about false confessions. Born
in 1950, I was raised with the idea that 'a policeman is your friend.' I've seen changes in the police and our government
since the mid-60s that make me uneasy around cops and leery about the fairness of our justice system – winning is everything; the truth be damned. . . . I was a big fan of Dragnet,
back in the 70s. I liked CSI when the show appeared several years ago,
but I worry about shaping of American minds with the prevalence of law and crime shows that portray infallibility of the good
I posted some time back that, while plea
bargaining is a source of many false confessions, it is less disturbing than false confessions in an interrogative setting.A reader responded: “I am encouraged by the attention on your website devoted to the
dangers of false confessions, but disturbed by the implication that coercive plea bargaining represents a lesser danger to
defendants and public policy than police interrogation itself.We have sacrificed
justice in a devil's bargain to obtain judicial efficiency which is neither just nor efficient.”
Another reader writes that “I've been interested
in the general area of wrongful convictions since reading about the McMartin case in LA many years ago.Then we had the recovered memory scandals.” And other readers complain
that the right to a speedy trial is
These messages serve as useful reminder
that the criminal justice system is riddled with problems large and small.Why,
then, my focus on false confessions?There are a number of reasons, but
for now let’s settle for this: we can’t solve all the problems of the world, certainly not at once, but we can greatly reduce the tragedy of false confessions.
I’ve published several posts noting that false confessors come in all sizes and shapes -- and ages.That said, young people are particularly vulnerable.In a recent
study of proven false confessions, roughly a third were minors (under 18) and roughly 60% were under 25.Another third were between 25 and 39, which some of us think of as young!
False confessions have moven into a new venue: the “loss prevention” industry.Major
companies have literally taken a page out of the police interrogation handbook -- for dealing with suspected employee theft,
they train their loss prevention personnel with manuals modeled after the leading police manuals (and thus employ the very
methods that have produced numerous false confessions in the criminal arena).
Last month a jury socked the auto parts chain AutoZone with a $7.5 million
punitive damages award for extracting a false confession from an employee accused of stealing. Read about it here.Punitive damages are designed in part
to deter future wrongdoing.Let’s hope that corporate America
takes notice of this verdict.
I've been urged to ask people to contact ABC about renewing the show In Justice
(the fate of the show will apparently be decided this week) in order to keep the issue of wrongful convictions in the public
eye.You can go to http://abc.go.com/ and at the bottom, look for "Contact ABC"-- that will take you to a screen to send your
Dan Young, who spent 12 years in prison in Chicago for a rape and murder he did not commit, was finally
released last year following his exoneration by DNA tests.Last month, Young
was killed by a hit-and-run driver.Newspaper accounts of his tragic life describe
events surrounding his false confession.As is often the case with false confessions,
Young’s saga reads like a bad novel.Young and one Harold Hill both confessed
to the crime, and both ended up exonerated.This account of the case notes that “a third man charged with the crimes was set free not long after his arrest after police discovered he was in
jail when the murder occurred.Like Young and Hill, that man also confessed to
Three false confessions in one case – one
of them by a man who was in jail when the crime occurred!The phenomenon of multiple
false confessions in a single case is far from unique.(The Central
Park jogger case featured five false confessions) Nor is it accidental.Police use one false confession to leverage another.
When told that a Jew had been elected Mayor of Dublin, Yogi Berra said, “Only in America.”I wish false confessions were “only in America.”This blog receives visitors from around the world – a reminder of the international
nature of the problem.Many countries, including England,
Ireland, Norway, and
Canada have featured prominent false confession
virtually all criminal defendants plead guilty, and it’s hard to imagine that all are
guilty.The interrogation techniques used by Israel against Palestinian prisoners practically guarantees some false confessions.And, of course, I haven’t even mentioned those police states whose practices are far
less enlightened still.
Needless to say, I am far more versed
about criminal justice in America.I urge international visitors to this site to share knowledge about false confessions
in their countries.
A recent New York Times article quotes a man serving 25 years in prison for the
same offense that landed Rush Limbaugh probation: “The wealthy and influential go to rehab, while the poor and powerless go
to prison.”It reminded me of something my old law professor, Charles Black,
used to say:“Most issues are about poverty.Abortion is about poverty.If you’re wealthy, you’ll find a way to have
an abortion whether it’s legal or not.The death penalty is about poverty.No one wealthy is ever put to death.”
False confessions are partly an issue
of poverty.I’m not aware of data on point, but I’d bet that most false confessors
are poor.This is true for a number of reasons, not least of which is that people
of means are less likely to be rounded up in the first place and more likely to request legal assistance when they are.
Several readers have asked whether I believe that convicted terrorist Hamid Hayat may have confessed falsely. The short answer
is yes, the case looks suspicious. I’ll be looking into it more and posting about it. For present purposes, I reiterate what
I said a few weeks ago: in many respects the war on terror creates the perfect storm for false confessions.
Zacaris Moussaoui is asking for a new trial, stating what some of us
have said all along: his testimony about his plan to fly a fifth plane into the White House on 9/11 was sheer fabrication.
The response to his testimony was most revealing: many commentators declared (wrongly as it turned out) that Moussaoui had
sealed his death sentence – they either assumed he was telling the truth or that the jury would think so. In either
case, it’s a reminder of the power of confessions: even an outlandish one coming from someone like Moussaoui (seemingly deranged
and/or taunting his captors), and supported by no evidence, is widely believed.
Interesting exchange last night between these two media celebrities.Citing leaks
casting more doubt on the credibility of the accuser in the Duke lacrosse case, Carlson goaded Sharpton to join his call for
her head.Perhaps haunted by the ghost of Tawana Brawley, Sharpton was uncharacteristically
noncommittal.Carlson is likely right -- this case has serious signs of a false
accusation.If that turns out to be the case, let’s hope the media focuses less
on the troubled accuser than on the prosecutor who rushed to judgment.The case
has already publicized the largely dysfunctional college sports culture.If it
ends up shining the spotlight on prosecutorial abuse, a great deal of good may come of it.
Muhammad Salah is on trial in federal court in Illinois for funneling money to Hamas.Salah confessed (he says falsely) to Israeli interrogators whom, he claims, abused him for three months.
This account of the case in the Chicago Tribune says that at a hearing to determine whether the confession may be admitted into evidence, a member
of the Israeli Security Agency testified that “Salah provided information about the location of the body of a dead Israeli
soldier that, while not fully accurate, suggested that Salah knew secret Hamas information.”To the experienced student of false confessions, that “not fully accurate” is a beaut.In other words, Salah did not know where the soldier was buried,
his claim to know turned out to be false, but the interrogators decided that his
inaccurate claim suggests his guilt.
A disproportionate number of false
confessions, perhaps a third or more, are from minors.The reason they most often
give for having confessed falsely? “I just wanted to go home.”That may sound
ridiculous until we focus on a few facts.First, that sentiment is often expressed
after hours of grueling interrogation in which the interrogators seem impervious to the child’s insistence of innocence and
show no signs of ending the interrogation.Second, kids are kids – that’s why
the law treats them differently from adults in countless respects.Yet, when
it comes to criminal interrogation, they are often afforded little or no special protection.
Something about false confessions triggers prosecutorial chutzpah.Cases
like Teresa Sornberger’s are beyond belief.She confessed to a bank robbery when
police threatened to call child welfare and have her children taken away, but she quickly recanted.She had served four months in jail when the real culprit was apprehended.Was the DA conscience-stricken?At least mildly remorseful?Actually he declared that the case “shows the system works” -- and charged Sornberger with obstruction
of justice for her false confession.This case is not unique.In a number of cases deceitful or coercive interrogations led to false confessions, prosecutors have charged
the confessor with obstruction.
“I think every lawyer and cop ought to re-read Miranda once a year... It's especially noteworthy that it cites thirty years of American concerns and long-standing
concerns over the third degree in Great Britain. Clearly, the false-confession
deniers belong to the faith-based community, not the reality based community. . . . Haven't these guys been discredited?
And why can't they just agree to tape everything and stop using techniques that are plainly unreliable?”
Welcome to first-time visitors who learned of the site thanks to Ralph Nader.Please revisit, as you’ll find new
posts daily.False confessions link up with many issues involving criminal justice,
and as you’ll see when you scroll down, I’ve posted on Moussaoui, Duke lacrosse,
and various provocative issues.Please share your thoughts. I frequently post reader responses.
And a special thanks to Ralph Nader.Some people, angry that his candidacy helped elect George Bush in 2000 (one of many contributing factors), unfairly downplay his lifetime crusade in the
public interest. Though perhaps best known for his relentless fight against corporate
abuse, Nader has devoted himself to countless causes linked only by his aversion to injustice of any sort.
In that spirit, please spread word
of this blog!The battle against the tragic injustice of false confessions is
On Friday Earl Washington received a $2.25 million verdict against the estate of the man who coached and coaxed him to confess
falsely to murder and rape – leading to 18 years imprisonment (much of it on death row) before the mildly retarded Washington
was exonerated by DNA tests.Washington’s amazing story is the subject of thisexcellent book.
A reader writes: “It was very clear that Moussaoui is delusional and not part of any conspiracy except with
his own ego. In reality, we have sentenced a man to life in prison
for lying.The American public seems to be pleased, when in fact they should
I don’t know the details of the evidence against Moussaoui, but to the extent the case against him was based on his
own words, more than a little skepticism was in order.And to the extent we frequently
convict people based mostly on their own words, we ought be very concerned indeed.
Earlier today, I made reference to a recent study of 125 proven false confessions, and noted that this probably represents
the tip of the iceberg.There are a number of factors behind this conclusion,
starting with the study itself.Its authors, Steven Drizin and Richard Leo, made
a point of including only those cases where the confession was demonstrably false.They
excluded dozens of others where substantial evidence suggests it was false.Second,
in the apt words of the authors, “Most false confessions are not easily discovered and are rarely publicized; they are likely
to go unnoticed by researchers, unacknowledged by police and interrogators, and unreported by the media.”
John Reid is coauthor of the most influential manuals on police interrogation techniques – the techniques that produce
false confessions. An outrageous article on the website
of Reid Associates flatly declares that “false confessions are rare phenomena,” and supports the point by citing to an outdated
study that pre-dates DNA testing. A
recent empirical study reported 125 proven false confessions and everyone (excluding Reid?) who has studied
the issue is convinced that this is just the tip of the iceberg.
Some people believe that, as long as police read and suspects understand the Miranda warnings, there is little or no risk
of a false confession.What this overlooks is that the innocent suspect is most likely to waive his rights.Think how often
we assume someone is guilty because he clams up and hires a lawyer: “If he were innocent, he’d have nothing to hide.” Indeed,
many innocent suspects think exactly that and waive their rights to silence and counsel – not realizing that innocence is
no guarantee that you won’t be broken down.
A Public Defender in California writes to tell me about a recent case: “I represented a minor in our county
charged with a murder that occurred while he was in custody in juvenile hall.
They don't give passes to go out and whack people, so that was enough to get the case dismissed-- five days after I was
able to verify his custody status.”
This situation is actually far from unique – there are a number of false confessions in which the suspect was in jail
at the time of the crime or otherwise had an air-tight alibi.
One of the proposed mitigating factors for the Moussaoui jury to consider was that his testimony about his alleged plan to
fly a fifth plane into the White House was "unreliable." Zero jurors found that to be a mitigating factor. It
will be interesting to hear whether that's because they believed Moussaoui or because they didn't regard the alleged
plan as relevant to his sentence. The latter seems hard to believe. The former would be a potent illustration of
the tendency of jurors (and everyone else) to believe confessions -- no matter how outlandish and unsupported by evidence.
In a recent study of 125 proven false confessions, roughly 80% involved murder and another 10% sexual
assault.What accounts for this?I
suspect that police are most intent on procuring confessions in murder cases.In
the case of sexual assault, it may be that because of the absence of other witnesses (meaning a likelihood that it will be
a he said/she said), suspects feel particularly vulnerable when an interrogator insists that they are guilty and that it will
be impossible for them to prove their innocence.
Earlier today Yale Law School Professor Ian Ayres posted about false confessions at this site, noting that the famous "prisoner's dilemma" helps explain
why innocent people would confess in certain situations. Ayres notes: "If you face a high enough prospect of conviction
if an alleged codefendant finks, and if you will be given a lower sentence if you confess first, it can be entirely rational
to falsely confess." Indeed, quite a few false confessions have occurred in the codefendant context.
A brief AP story this morning is pregnant with meaning.It reports that District Attorney Michael Nifong, who is prosecuting the Duke lacrosse players, won a narrow
victory in the Democratic primary in his quest for re-election.The article goes
on to say that Nifong had confidently predicted that DNA results would confirm the guilt of the players he indicted, and still
insists on their guilt even though DNA tests suggest the opposite.Nifong’s situation
illustrates a major potential problem with prosecutors: their decisions can be affected by politics.
We don’t know for sure whether Nifong’s
handling of this case has been affected by concerns about reelection.We do know
that, following DNA exonerations in the case of false confessors, prosecutors often refuse to acknowledge the person’s innocence.I’ve long suspected that politics influence this reaction: it doesn’t go over well
to admit that you’ve put an innocent man behind bars.At least that’s the assumption.I wonder.The public may be more forgiving
than some think, and may appreciate a willingness to admit mistakes.I hope we
find out in Nifong’s case. Unless he has substantial evidence against the lacrosse players that we don’t know about, let’s
hope he dismisses the charges. That would set a terrific example.
Under current law, the police may use polygraphs for internal investigatory purposes, but the results are inadmissible in
court.This situation is somewhat perverse.In many cases, police do not use polygraphs to ferret out truth but rather to induce confessions – whether or not it’s
true, they tell the suspect that he failed the test.This interrogative technique,
though known to cause false confessions, is generally condoned by the courts.These
same courts will not allow into evidence the results of polygraph tests.I’d
much prefer that polygraph results be allowed into evidence where experts (from both sides) could interpret the results and
explain their significance to the jury.Polygraphs are far from infallible, but
that’s true of all evidence.In any case, the admissibility of polygraph results
out in the open would be far preferable to their use as a deceitful tactic to produce confessions.
It's operated by Steve Drizin, a professor at Northwestern University Law School and director of the Center on Wrongful
Convictions. Steve is a real hero in the fight against false confessions and other injustices, and a most welcome addition
to the blogosphere.
I reluctantly use the overused “Kafkaesque”
quite a bit when discussing false confessions. I’m afraid there’s no better characterization
of what many false confessors go through.The case of Walter Ogrod sounds like
a bad movie.The jury at his murder trial was about to announce the verdict when
one juror blurted out that he disagreed with it.The judge immediately declared
a mistrial.It turns out that the other 11 jurors wanted to acquit.At a retrial Ogrod was convicted based primarily on the testimony of a notoriously unreliable jailhouse
snitch – that and Ogrod’s dubious confession.How dubious?The fact that it failed to convince eleven jurors at his first trial (this was before the snitch came along)
says it all.It takes an awfully shaky
confession not to win over a jury.
DNA testing, among other things, has revealed the staggering frequency of wrongful
convictions.At the same time, in the last few decades numerous high-profile
criminal defendants have been acquitted (at least of the major charges) despite overwhelming evidence of guilt, including:
O.J. Simpson, Bernhard Goetz, Imelda Marcos, the police officers who battered Rodney King, Michael Jackson, Robert Blake,
Marion Barry, Oliver North, Don Ling, Robert Durst, and Jayson Williams.Why
do we get the worst of all worlds – punishing many innocent and acquitting many guilty?That’s a complicated question with a number of answers, but one link between the two phenomena is the role of defense
attorneys.The elite criminal defense attorney can get a guilty client off, whereas
false confessors often lack even adequate representation – and need more than that, since they are up against the overwhelming
intuition that an innocent person would not confess.
I recently posted about the Norfolk 4, a case quite likely involving wrongful convictions of four U.S. Navy men.A reader well-versed in the case points out that the lead interrogator in the case
had been demoted earlier in his career for inducing false confessions from teenagers. The reader notes the tactics that
produced the dubious confessions in the case of the Norfolk
4 and says that “Americans should be outraged that our young sailors could be subjected to these tactics.”Amen.Indeed, Americans should be outraged that anyone would be subject to tactics that predictably produce false confessions.
A few weeks ago a Colorado court of appeals issued the latest decision in
the “we don’t condone” line of cases.In these cases, the court casually describes
an interrogation of the sort that leads to false confessions, claims it does not “condone” such tactics, and then upholds
the confession anyway.In this case involving a woman charged with making false
bomb threats to a school, the police told her that she could be charged with either a state or federal offense and noted that
the latter carried a 15 year prison term whereas the former might mean nothing more than a ticket and a $50 fine.They implied that a confession would assure her of the minor punishment.The court said: “While we do not condone the detectives’ implication that they were responsible for the charging decision,
we see no indication that this point caused defendant to confess.Instead she
continued to deny responsibility.”
This is mind-boggling.It implies that for an interrogative tactic to be coercive it must instantly produce a confession.If the court understood false confessions, it would know that it is doesn’t work the
way.Education remains the closest thing to a panacea.