Fernando Anzaldua
A recent New York Times article commented on the phenomenon of false confessions in our criminal justice system. “False confessions have figured in 24 percent of the approximately 289 convictions reversed by DNA evidence . . . Considering that DNA is available in just a fraction of all crimes, a much larger universe of erroneous convictions — and false confessions — surely exists.”
Why would an innocent person confess to a crime they did not commit? A number of factors may be contributing to this paradoxical problem. Police officers in many jurisdictions are permitted to use misleading information and deceptive tactics during custodial interrogations of suspects. Officers often promise leniency or threaten punishment during interrogations. Interrogations are often “contaminated” when officers introduce into the interrogation process facts/details that could not otherwise be known by the suspect, but are later accepted by that suspect in their confession. Officers may also use convincing fictions to get suspects to concede to things that never happened and the suspect then ultimately accepts his or her own fabrications of guilt. Such tactics may slowly coerce or manipulate suspects into confessing to crimes they did not commit.
Officers often exaggerate the evidence against a suspect being interrogated. False claims that another person has already confessed and implicated the suspect are also common. Suspects are often subjected to custodial interrogations that last several hours. In 80% of the false confession cases documented, suspects were interrogated for more than six hours, and 50% were interrogated for more than twelve hours.[1] Suspects may even be taken to the crime scene to help them “remember” details of the crime. These practices push suspects to concede to incriminating facts they did not know about and to actions they did not commit.
Additionally, officers often only record the confession that occurs during the last few minutes of an interrogation that may have lasted several hours. By not recording the entire interrogation, officers leave doubt as to the adequacy of the confession and leave open the possibility that officers coerced the interrogated suspect to confess.
Furthermore, the risk of the innocent confessing to a crime they did not commit increases when the suspect is mentally retarded or is a juvenile.[2] As a result, they are disproportionately represented in the false confession cases that are reported.[3]
Where are the lawyers? In Miranda v. Arizona,[4] the Supreme Court held that the government is required to notify arrested individuals of their Fifth Amendment rights, including their right to remain silent and their right to counsel. Surely, having a lawyer present during custodial interrogations would minimize false confessions. However, the problem is that the vast majority of suspects waive their Miranda rights, thus allowing officers to proceed with the interrogations without the presence of a defense attorney. Therefore, Miranda itself is not an adequate protector of the innocent in false confessions cases. Instead, Miranda has made it more difficult to suppress statements made by suspects that have been issued their Miranda rights. The case cleared up what the courts considered admissible “voluntary” statements.[5] Additionally, many suspects are not aware that they can stop a custodial interrogation that has already started.[6] Additional remedies, beyond established case law, are needed to protect the innocent from being falsely convicted or coerced into confessions.
A correlative problem arises in plea-bargaining or settlement conferences between criminal defendants and prosecutors. The vast majority of criminal cases are settled before trial, usually through plea deals (around 90%). Defendants are usually offered a substantially lower sentence term in a plea deal than they would otherwise receive if they were convicted after trial. It is not hard to imagine an innocent person making a rational determination that it is better to accept a plea deal (and a shorter sentence) than risk losing at trial and spending a substantially longer amount of time in prison. This so-called “trial penalty” is the elephant in the room that undermines our jury trial system of criminal justice. Plea deal incentives could therefore be another factor encouraging false confessions.
There are several proposed solutions that may lower the number of false confessions and reduce the risks of coercive police tactics. First, courts should permit or expand the use of expert testimony regarding false confessions. Jurisdictions differ on the admissibility and extent of such expert testimony.[7] However, given the general disbelief that an innocent person would confess to a crime they did not commit and the almost blind adherence jurors give to confession evidence,[8]expert testimony on false confessions may be informative and instructive to a judge or jury
Second, there should be mandatory video recordings of the entire custodial interrogation from the reading of Miranda rights onward. This practice will improve the credibility of authentic confessions by providing an objective record of the interrogation and subsequent confession, while protecting the rights of innocent suspects by minimizing police misconduct. Some states have legislatively adopted such electronic recording requirements, and many jurisdictions have voluntarily implemented the practice.
Third, states could prohibit the interrogation of minors without the presence of their parents or their attorney. Given juveniles’ susceptibility to coercion, requiring parents and/or a lawyer to be present during interrogations would likely reduce the risk of false confessions.
Finally, states should prohibit the exchange of leniency for admissions. This plays into the argument against the pervasive use of plea-bargaining in our criminal justice system- a practice that has deep roots. Look forward to a future post concerning plea bargains in particular.
These are just a few proposed solutions to one of many social justice issues within the criminal justice system. Undoubtedly, the convictions of innocent people for crimes they did not commit, by false confessions or otherwise, goes against the fabric of our concept of justice.
[1] The problem of False Confessions in the Post-DNA World, 82 N.C.L.Rev. 891, 1005 (2004)
[2] See Words Without Meaning, 69 U.Chi.L.Rev. 495 (2002) and The problem of False Confessions in the Post-DNA World, 82 N.C.L.Rev. 891, 948 (2004)
[3]Id.
[4] Miranda v. Arizona, 384 U.S. 436 (1966)
[5] See Missouri v. Seibert, 542 U.S. 600 (2004)
[6] Michigan v. Mosley, 423 U.S. 96, 103-4 (1975)
[7] When the Innocent Speak: False Confessions, Constitutional Safeguards, and the Role of Expert Testimony, 32 Am. J. Crim. L. 191 (2005)
[8] The problem of False Confessions in the Post-DNA World, 82 N.C.L.Rev. 891, 996 (2004)
Law Journal for Social Justice 
An excellent piece. Thank you for writing it. Another reform that should be considered is prohibiting interrogators from using lies or manufactured (i.e., false) evidence during an interrogation. I have read several transcripts of interrogations where the subject is told falsely that his fingerprints or DNA were left at the scene. At that point, the suspect may come to believe he did commit the crime (this can happen with susceptible subjects) or simply confesses to end the interrogation so he can prove his innocence later.
You also accurately note that many subjects waive their Miranda rights. Interestingly, Dr. Kassin and others in a 2009 article appearing in Law and Human Behavior note that being innocent is a risk factor for waiving one’s Miranda rights, thereby subjecting oneself to a potentially lengthy interrogation without the benefit of counsel.