The Substance of False Confessions…

[Jackpine Radical]

The Substance of False Confessions

Brandon L. Garrett, University of Virginia School of Law

forthcoming: 62 Stan.L.Rev. _ (2010)

Abstract

A puzzle is raised by cases of false confessions: How could an innocent person convincingly confess to a crime? Post-conviction DNA testing has now exonerated 240 convicts, 39 of whom falsely confessed to rapes and murders. As a result, there is a new awareness that innocent people falsely confess, often due to psychological pressure placed upon them during police interrogations. Scholars increasingly examine the psychological techniques that can cause people to falsely confess and document instances of known false confessions. This Article takes a different approach, by examining the substance of false confessions, including what was said during interrogations and how the confession statements were then litigated at trial and post-conviction. Doing so sheds light on the phenomenon of confession contamination. Not only can innocent people falsely confess, but all except one of these exonerees were induced to deliver false confessions with surprisingly rich, detailed, and accurate information. We now know that those details could not have originated with these innocent people, but rather must have been disclosed to them, most likely during the interrogation process. However, our constitutional criminal procedure does not regulate the post-admission interrogation process, nor do courts evaluate the reliability of confessions. This Article outlines a series of reforms that focus on the insidious problem of contamination, particularly through videotaping interrogations in their entirety, but also by reframing police procedures, trial practice, and judicial review. Unless criminal procedure is reoriented towards the reliability of the substance of confessions, contamination of facts may continue to go undetected, resulting in miscarriages of justice.

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Entire working paper version available for download at

http://law.bepress.com/