When a defendant has confessed to committing a crime, the vast majority of police, prosecutors, and jurors see it as rock-solid evidence of guilt. Most people are baffled by the notion that someone would confess to a crime he or she did not commit. In 25 percent of all DNA exonerations, however, defendants have done just that – confessed to crimes that they did not commit. Many of these involved children or suspects with mental illnesses or mental retardation. Even more cases involve adults with no history of mental illness or retardation who are subject to interrogation for up to 37 hours or are falsely told that there is credible evidence against them. Although it may seem illogical, they are led to believe that confessing to the crime – even if they are innocent – is the most reasonable choice.
In many cases, the false confessions do not match the actual details of the crime. Earl Washington – a mentally retarded Virginia man who confessed and was sentenced to death for a rape and murder he did not commit – did not know the race of his alleged victim and did not know that she had been raped. In the Norfolk Four case, one defendant confessed to hitting the victim over the head, when she actually had been stabbed. Because of problems like tunnel vision, these details are often overlooked because the defendant has confessed.
To reduce the occurrence of false confessions, all states and localities should join the 500 jurisdictions (including the District of Columbia) and adopt laws requiring police departments to videotape custodial interrogations of suspects in all homicide and serious felony cases. Law enforcement personnel should be required to record the entire custodial interrogation process, including the initial advice of rights given to suspects, from the beginning of custodial interrogation in the stationhouse until the point when all police questioning has ended. Failure to record an entire, complete custodial interrogation should make any confession obtained by that interrogation potentially subject to a general exclusionary rule. Law enforcement officers who record interrogations love the practice, and it has prevented a number of wrongful convictions based on false confessions.
Law enforcement officers also should avoid using high-pressure interrogation practices, particularly when questioning children and suspects who have developmental disabilities. Courts should permit, in appropriate cases, the introduction of expert testimony concerning the factors that can contribute to false confessions.
For more information about false confessions and videotaping interrogations, you can visit the following resources:
Steven A. Drizin, Richard A. Leo, Peter J. Neufeld, Bradley R. Hall, and Amy Vatner, Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century in 2006 Wisc. L. Rev. 479.
Steven A. Drizin and Richard A. Leo, The Problem of False Confessions in the Post DNA World in 82 N.C. L. Rev. 891 (2004).
Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. Crim. L. & Criminology 429 (1998).
Thomas P. Sullivan, Electronic Recording of Interrogations: Everybody Wins, 95 J. Crim. Law & Criminology 1127 (2005).