This is an important symposium on an important topic, and nobody has made mention yet of the fact that when a wrongful conviction occurs the innocent defendant is not the only victim. There are several others--including the defendant's family and friends as well as victims of later crimes committed by the real perpetrator who was not sought, apprehended, arrested or convicted as a result of the false confession. These shadow stories underlie every one of these cases.
I want to talk about one cause of wrongful convictions. When the DNA exoneration cases started rolling in several years ago, the first very clear signal--you couldn't miss it because it was almost unanimous in the first thirty or forty cases--is that the most common source of error is the eyewitness mistake. And it continues to this day that seventy-five to eighty percent of all DNA exonerations--and likely other wrongful convictions as well--contain one or more mistaken eyewitness identifications.
A collateral and more stunning signal to emerge was that a surprising number of the DNA exonerations contained false confessions in evidence. Confessions have long been regarded the gold standard in evidence, so much so that in the words of one legal scholar, "the introduction of a confession makes the other aspects of a trial in court superfluous." (1)
Yet confession errors occur. They are not a new or uniquely American phenomenon. They can be found in all countries of the world and in all periods of modern history. In North America, false confessions can be traced to the Salem Witch Trials of 1692, where large numbers of mostly women were tried for witchcraft on the basis of confessions extracted by torture and threats. Today, this phenomenon still exists and is better understood. In recent years, psychologists and other researchers have systematically studied false confessions and have produced a substantial empirical literature concerning their causes, characteristics, and consequences. (2) The prevalence rate is unknown and, I would argue, unknowable.
But as the DNA exoneration cases came in, one by one, it was apparent that false confessions--a most counterintuitive phenomenon--were a contributing factor in roughly twenty-five percent of those cases.
How does one know that a confession is false? In general, these cases have been identified in four ways: (1) When it is objectively established that the confessed crime did not occur (as when the presumed murder victim is found alive; (2) when it was physically impossible for the confessor to have committed the crime (as when the suspect was in custody or was too young to have produced semen); (3) when the true perpetrator is apprehended and his guilt clearly established; and (4) when DNA or other scientific evidence dispositively establishes the confessor's innocence.
New York State has had more than its share of false confession cases, and the names that you're familiar with--the five Central Park Jogger boys, Douglas Warney, John Kogut, Frank Sterling, Jeffrey Deskovic, Marty Tankleff represent the tip of an iceberg. Personally, I know of other false confession cases in which police or prosecutors dropped the charges once they recognized that the confessor was innocent.
The most common question I get when I give a lecture, workshop, or expert testimony is, how often do false confessions occur? The simple answer is that I don't know. In fact, I don't think there is a methodology for deriving that estimate. There is just too much missing data--too many false confessions that are detected by police and resolved quietly and without fanfare, too many that result in guilty pleas to lesser charges that are never scrutinized, and too many for which DNA cannot come to the rescue.
Let me also say that false confession is not only a criminal justice phenomenon. There is a loss-prevention industry in corporate America through which employees …