Journal of Criminal Law and Criminology
Winter 1998
THE CONSEQUENCES OF FALSE CONFESSIONS: DEPRIVATIONS OF LIBERTY AND
MISCARRIAGES OF JUSTICE IN THE AGE OF PSYCHOLOGICAL INTERROGATION
Richard A. Leo
I. Introduction
A. DEFINING THE PROBLEM
Because a confession
is universally treated as damning and compelling evidence of guilt, [FN1] it is likely to
dominate all other case evidence and lead a trier of fact to convict the
defendant. [FN2] A false confession
is therefore an exceptionally dangerous piece of evidence to put before anyone
adjudicating a case. In a criminal
justice system whose formal rules are designed to minimize the frequency of
unwarranted arrest, unjustified prosecution, and wrongful conviction,
police-induced false confessions rank amongst the most fateful of all official
errors.
As many
investigators have recognized, the problems caused by police-induced false
confessions are significant, recurrent, and deeply troubling. [FN3] Police elicit false
confessions so frequently that social science researchers, legal scholars, and
journalists have discovered and documented numerous case examples in this
decade alone. [FN4]
Yet no one knows
precisely how often false confessions occur in the
Until these
methodological obstacles are overcome, no one can authoritatively estimate the
rate of police-induced false confessions or the annual number of wrongful
convictions caused by false confessions. [FN6] The lack of such
information also prevents researchers from estimating the full magnitude of
personal and social harm that police-induced false confessions cause: the days
and months innocent persons spend in pre-trial incarceration; the resources,
time, and dollars wasted prosecuting and defending them; the months and years
defendants languish in prison after wrongful conviction; and the additional
crimes carried out by the true perpetrators.
Although it is
presently not possible to estimate the magnitude of harm caused by false
confessions, this article sheds light on another dark corner of the problem by addressing
the following questions: What is the impact of demonstrably unreliable
confession evidence on criminal justice officials? What are the consequences of
false confessions on defendants as they move through the criminal justice
system? And how much influence does a
false confession alone exert on the decision-making of jurors?
B. FALSE CONFESSIONS
AND THE ADMINISTRATION OF JUSTICE
Following Edwin
Borchard's pioneering study of miscarriages of justice, [FN7] a series of
investigators [FN8] have documented numerous cases
of wrongful arrest and conviction of the innocent in the
We suggest that
confessions are regarded as the most damning and persuasive evidence of guilt
simply because most suspects who confess are guilty, and because most
confessions are corroborated by additional evidence. Under these conditions, however, it is
impossible to isolate the effect of the defendant's "I did it"
admission [FN12] on the
decision-making of criminal justice officials and juries because the confession
co-varies with inculpatory witness or physical evidence. The research reported here isolates the
effect of a defendant's "I did it" statement on the decision-making
of criminal justice officials and juries by studying only cases in which the
defendant's confession is not supported by any physical or reliable inculpatory
evidence. The research design thus
allows measurement of the effect of an untrue admission when a detective,
prosecutor, judge or jury is required to weigh the admission against evidence
that would ordinarily establish the defendant's innocence.
This article
explores whether contemporary American psychological interrogation practices
continue to induce false confessions like the third degree methods that preceded them. This article also analyzes how likely
police-induced false confessions are to lead to the wrongful arrest,
prosecution, conviction, and incarceration of the innocent. And this article examines with field data [FN13] whether
confession evidence substantially biases a trier of fact even when the
defendant's statement was elicited by coercive methods. [FN14] We explore this
issue with cases in which the defendant's statement has not only been coerced
but is also demonstrably unreliable, and in which other evidence proves or
strongly supports the defendant's innocence.
Part II of this
article discusses the selection and classification of the sixty disputed
confession cases under study. [FN15] Part III describes
the findings of our research. Part IV
analyzes the deprivations of liberty and miscarriages of justice associated
with the sixty cases described in this article.
Finally, Part V discusses the import of this research and offers some
concluding remarks.
II.
Method
A. SELECTION AND CLASSIFICATION
Cases of disputed confessions
were identified through multiple sources: electronic media database searches;
directly from case files; [FN16] and from secondary
sources. The sixty cases discussed below
do not constitute a statistically adequate sample of false confession
cases. Rather they were selected because
they share a single characteristic: an individual was arrested primarily
because police obtained an inculpatory statement that later turned out to be a
proven, or highly likely, false confession.
Based on the
information that we obtained and reviewed, all of the cases studied satisfy the
following conditions: no physical or other significant and credible evidence
indicated the suspect's guilt; [FN17] the state's evidence consisted of little or nothing more
than the suspect's statement "I did it;" and the suspect's factual
innocence was supported by a variable amount of evidence--often substantial and
compelling--including exculpatory evidence from the suspect's post-admission
narrative. [FN18] For every case included in this study, there was no
credible evidence corroborating the defendant's "I did it" admission or
supporting the conclusion that he was guilty. [FN19]
Based on the
strength of the evidence indicating a defendant's probable innocence, each case
was classified into one of three categories: proven false confession; highly
probable false confession; or probable false confession.
For the thirty-four
cases classified as proven false confessions, the confessor's innocence was
established by at least one dispositive piece of independent evidence. [FN20] For example, a defendant's confession was classified as proven false if the murder victim
turned up alive, the true perpetrator was caught and proven guilty, or
scientific evidence exonerated the defendant.
Not only was the confessor definitively excluded by dispositive
evidence, but the confession statement itself also lacked internal indicia of
reliability. Any disputed confession
case that fell short of this standard--no matter how questionable the
confession and no matter how much direct or circumstantial evidence indicated
the suspect was innocent--was excluded from this category.
For the eighteen
cases classified as highly probable false confessions, the evidence
overwhelmingly indicated that the defendant's confession statement was false. [FN21] In these cases, no credible independent
evidence supported the conclusion that the confession was true. Rather, the physical or other significant
independent evidence very strongly supported the conclusion that the confession
is false. In each of these cases, the
confession lacked internal reliability.
Thus, the defendant's statement is classified as a highly probable false
confession because the evidence led to the conclusion that his innocence was
established beyond a reasonable doubt.
For the eight cases
classified as probable false confessions, [FN22] no physical or other significant credible evidence
supported the conclusion that the defendant was guilty. There was evidence supporting the conclusion
that the confession was false, and the confession lacked internal indicia of reliability.
Although the evidence of innocence in these cases was neither conclusive
nor overwhelming, there were strong reasons--based on independent evidence--to
believe that the confession was false.
Cases are included in this category if the preponderance of the evidence
indicated that the person who confessed was innocent.
We recognize that
for any case that could not be classified as a proven false confession, there
is a possibility that our classification of the case might be in error. Despite strong evidence supporting the
conclusion that the confession is false, it remains theoretically possible that
one or more of the defendants we classify as false confessors may have
committed the crime. Nevertheless, we believe that the disputed confessions
discussed in this article would be judged false by an overwhelming majority of
neutral observers with access to the evidence we reviewed. [FN23]
B. POST-ADMISSION
NARRATIVE ANALYSIS
When evaluating the
likelihood that a person committed a crime, investigators should first consider
witness statements, biological evidence linking the suspect to the crime
(fingerprint, DNA, hair, etc.), and alibi evidence. The identification by an eyewitness, the
identification of the person as the donor of one or more type of biological
material found at the crime scene, and the lack of an alibi all point to
guilt. By contrast, an opposite pattern
of evidence (e.g., no match with eyewitness
descriptions, exculpating biological evidence, and the existence of an
unimpeachable alibi) all support innocence.
In addition to
these traditional sources of evidence, the defendant's post-admission narrative
of the crime may provide helpful evidence of guilt or innocence, assuming
contamination [FN24] has
been eliminated. If a suspect has made
an "I did it" admission and given a post-admission narrative of a
crime, the fit--or lack thereof--between the contents of the narrative and the
crime scene facts provides evidence of guilt or innocence. Evaluation of the fit can reveal that a
suspect possesses the sort of accurate, personal knowledge of the specifics of
the crime that the perpetrator would be expected to have, or it can demonstrate
the suspect's ignorance of the crime because his answers about the crime scene
evidence are grossly incorrect. [FN25]
The fit between the
specifics of a confession and the crime facts determines whether the "I
did it" admission should be judged as reliable or unreliable
evidence. There are at least three
indicia of reliability that can be evaluated to reach a conclusion about the
trustworthiness of a confession. Does the statement: (1) lead to the discovery
of evidence unknown to the police? (e.g., location of a missing weapon that can
be proven to have been used in the crime, location of missing loot that can be
proven to have been taken from the crime scene, etc.); (2) include
identification of highly unusual elements of the crime that have not been made
public? (e.g., an unlikely method of
killing, mutilation of a certain type, use of a particular device to silence
the victim, etc.); or (3) include an accurate description of the mundane
details of the crime scene which are not easily guessed and have not been
reported publicly? (e.g., how the victim was clothed, disarray of certain furniture
pieces, presence or absence of particular objects at the crime scene, etc.).
If, for example, a
suspect's post-admission narrative either leads the police to missing evidence,
or reveals that the suspect knew precisely how the victim was bound and
mutilated, or which window was jimmied open with what sort of unlikely tool,
then the suspect possesses actual knowledge of the crime that would reasonably
be expected of the perpetrator.
Therefore, the suspect's confession should be deemed reliable. If, on the other hand, the suspect is unable
to provide police with accurate information revealing evidence not already
known to them (e.g., where to locate the murder weapon or the loot), is
demonstrably wrong about the method of killing, or is demonstrably inaccurate
about the specifics of the crime scene, then the statement should be judged
unreliable and, if anything, treated as evidence of innocence. Therefore, the statement should be seen as
lacking evidence of actual knowledge--something to be expected of a false
confessor who has not been contaminated by the police or due to leakage of
information into the community.
When the police
elicit a post-admission narrative from a suspect, they typically seek only information about major crime
elements (e.g., location of the missing weapon, type of mutilation, etc.). However, a suspect's report about the mundane
(but unique or improbable) details of the crime and the crime scene is of great
value in establishing a suspect's guilt or innocence. [FN26] This is true, in
part, because the suspect's knowledge of mundane details is less likely to be
the result of contamination by the police.
Mundane details are less likely to have been mentioned during off-tape
conversations or during the pre-admission phase of an unrecorded interrogation.
A suspect's
post-admission narrative need not demonstrate indicia of reliability in each
category for it to reveal personal knowledge of the crime. It is generally accepted
that one or more aspects of a crime may be so heinous that a guilty party may
refuse to state them even while admitting to other major components of the
crime. For example, Richard Allen Davis,
who admitted to kidnapping and killing a child, was not willing to admit that he also raped her. [FN27] Nevertheless, if a
defendant has been properly and thoroughly debriefed, his personal knowledge of
the crime should allow him to supply sufficiently detailed information to prove
a confession's reliability by demonstrating his specific knowledge of what
happened (e.g., the circumstances of the kidnapping, the child's clothing, the
location of the killing ground, the description of the killing scene, etc.),
even if he resists confessing to certain particularly heinous acts.
C. POLICE-INDUCED FALSE CONFESSION
Police-induced
false confessions arise when a suspect's resistance to confession is broken
down as a result of poor police practice, overzealousness, criminal misconduct
and/or misdirected training. [FN28] Interrogators
sometimes become so committed to closing a case that they improperly use
psychological interrogation techniques to coerce or persuade a suspect into giving
a statement that allows the interrogator to make an arrest. Sometimes police become so certain of the
suspect's guilt that they refuse to even-handedly evaluate new evidence or to
consider the possibility that a suspect may be innocent, even when all the case
evidence has been gathered and overwhelmingly demonstrates that the confession
is false. Once a confession is obtained,
investigation often ceases, and convicting the defendant becomes the only goal
of both investigators and prosecutors.
As the investigative process progresses, some interrogators, who
overstepped procedural boundaries to obtain a false confession, engage in
criminal conduct to cover up their procedural violations (e.g., coerce false
witness statements, suborn perjured testimony from snitches, or perjure
themselves at suppression hearings or at trial). Furthermore, some prosecutors who are
determined to convict obstruct justice by withholding exculpatory evidence from
the defense. [FN29]
American police are poorly trained about the
dangers of interrogation and false confession.
Rarely are police officers instructed in how to avoid eliciting
confessions, how to understand what causes false confessions, or how to
recognize the forms false confessions take or their distinguishing
characteristics. [FN30] Instead, some interrogation manual writers
and trainers persist in the unfounded belief that contemporary psychological
methods will not cause the innocent to confess [FN31]--a fiction so thoroughly contradicted by all of the
research on police interrogation [FN32] that it can be
labeled a potentially deadly myth. This
fiction perpetuates the commonly held belief that only torture can cause an
innocent suspect to confess, and it allows some police to rationalize accepting
coerced and demonstrably unreliable confession statements as true. [FN33]
D. FALSE CONFESSION
CASES
* * * *
III. Findings
A. PROVEN FALSE CONFESSIONS
There are four
sub-types of proven false confessions: the suspect confessed to a crime that
did not happen; the evidence objectively demonstrates that the defendant could
not possibly have committed the crime; the true perpetrator was identified and
his guilt established; or the defendant was exonerated by scientific evidence.
1.
The Suspect Confessed to a Crime That Did Not Happen
Police interrogators
may extract a confession to a crime that did not, in fact, occur. In
2.
The Defendant Could Not Have Committed The Crime
Police may extract
a confession from an individual who could not have committed the crime. In 1987,
The cases in this
study reveal many reasons why someone could not have committed the crime to
which he confessed. In 1973, Connecticut
State Police elicited a confession from Peter Reilly to killing and mutilating
his mother. [FN143] After a jury trial, conviction, and then
reversal by an appellate court, the prosecutor handling the second trial
discovered that the former prosecutor's files contained documents showing that
Reilly arrived at the scene of the murder only minutes before the police and
thus could not have committed the crime. [FN144]
In 1982, James
Harry Reyos confessed in
In 1995, in
3.
The True Perpetrator Was Identified and His Guilt Established
Police may elicit a
confession that is proven false when the true perpetrator is identified. Sometimes this occurs fortuitously when
police encounter the perpetrator in connection with another crime and obtain a
demonstrably reliable confession. In
1979, after twenty-one hours of interrogation by West Virginia State Police,
Paul Reggetz confessed to murdering his wife and two children. [FN154] Reggetz spent
eleven months in pre-trial incarceration before one of his neighbors confessed.
[FN155] In 1990,
In one of the century's most dramatic and disturbing false confession
cases, prosecutors dismissed charges against three false confessors after
routine detective work identified the true killers. [FN164] In 1991, during interrogations that lasted up
to twenty-one hours, Maricopa County Sheriffs in
Garcia not only
confessed to the nine
To make matters
even worse, Maricopa County Sheriffs had also extracted a confession to
Cameron's murder from George Peterson, a mentally ill adult, during a sixteen
hour interrogation. [FN170] When Garcia
admitted to the Cameron murder fourteen months later, Peterson was awaiting
trial for capital murder for the same crime. [FN171]
4.
The Defendant Was Exonerated By Scientific Evidence
Police may elicit a
confession that is conclusively proven false by scientific
evidence. In 1996, police in
Notwithstanding the
numerous examples of proven false confessions reported in this article, it is
difficult to establish conclusively that a defendant's confession is false even
when the evidence of innocence is compelling.
Once a suspect has confessed, it is
rare for the crime to evaporate, for the true perpetrator to be apprehended,
for police or prosecutors to discover that the defendant could not have
committed the crime, or for scientific evidence to exonerate him. The standard for inclusion into the proven
false category--established innocence--is a formidable barrier.
B. HIGHLY PROBABLE
FALSE CONFESSIONS
While our research
has unearthed numerous examples of highly probable false confessions, only a
small number of these cases are reported here.
1.
Bradley Page
In 1984,