For most of the last several decades, criminal procedure scholarship--mirroring the Warren Court landmarks it was commenting on--spent little time discussing the guiltless and much discussing the guilty. Recent scholarship suggests a different focus is desirable. As one leading scholar recently put it, "the Constitution seeks to protect the innocent."(1)
Professors Leo and Ofshe's preceding article,(2) along with articles like it by (among others) Welsh White(3) and Al Alschuler,(4) commendably adopts this approach. Focusing on the plight of an innocent person who confessed to a crime he(5) did not commit, they recommend certain changes in the rules governing police interrogation or the admissibility of confessions in court. These articles make interesting reading and are sure to be widely discussed. The articles, however, appear to provide an incomplete justification for the policy measures they endorse because, in protecting the innocent, the analysis cannot focus exclusively on false confessions. The innocent are at risk not only when police extract untruthful confessions--the false confession problem--but also when police fail to obtain truthful confessions from criminals--the lost confession problem.
The lost confession problem arises because restrictions on interrogations can reduce the number of confessions police obtain, which will in turn prevent police from solving crimes. The most recent field research on police interrogations, done by Richard Leo, found that "virtually every detective to whom I spoke insisted that more crimes are solved by police interviews and interrogations than by any other investigative method."(6) A crime that is solved ("cleared" in the police vernacular) is, of course, a crime that police will never attempt to pin on an innocent person. Accordingly, truthful confessions protect the innocent by helping the criminal justice system separate a guilty suspect from the possibly innocent ones,(7) while the failure to obtain a truthful confession creates a risk of mistake. Lost confessions can also cause harm to an innocent who has been erroneously charged. The failure to obtain a confession from the real perpetrator can deny evidence needed to prevent a wrongful conviction or to exonerate an innocent person who has already been wrongfully convicted. Judge Friendly made an analogous argument about the costs of the privilege against self-incrimination, explaining that "[a] man in suspicious circumstances but not in fact guilty is deprived of official interrogation of another whom he knows to be the true culprit...."(8) Leo and Ofshe's article here makes much the same point, explaining that "[o]ften police or prosecutors only discover and acknowledge their error in eliciting a false confession or charging an innocent defendant prior to conviction because they have accidentally or unintentionally obtained a reliable confession from the true perpetrator(s) of the crime."(9) Similar conclusions about the importance of confessions in exonerating the innocent have been reported by other researchers on miscarriages of justice.(10) All of these studies suggest that in those rare circumstances in which an innocent person is facing the real possibility of conviction---or, indeed, has been wrongfully convicted--police interrogation is an important means of exoneration.
So far the discussion has focused on innocents within the criminal justice system--innocents wrongly prosecuted for or convicted of committing a crime. But no analysis of the public policy ramifications of interrogation regulation would be complete if it did not also consider another category of innocents: victims of crime. The regulation of interrogation can, by blocking truthful confessions, lead to the release of guilty criminals to commit further crimes--the lost conviction problem. To be sure, the criminal justice system is properly more concerned with the possibility that an innocent person will be …