The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation
Leo, Richard A., Ofshe, Richard J., Journal of Criminal Law and Criminology
A. DEFINING THE PROBLEM
Because a confession is universally treated as damning and compelling evidence of guilt,(1) it is likely to dominate all other case evidence and lead a trier of fact to convict the defendant.(2) 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.(3) 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.(4)
Yet no one knows precisely how often false confessions occur in the United States, how frequently false confessions lead to wrongful convictions, or how much personal and social harm false confessions cause. This is because: (1) no organization collects statistics on the annual number of interrogations and confessions or evaluates the reliability of confession statements; (2) most interrogations leading to disputed confessions are not recorded; and (3) the ground truth (what really happened) may remain in genuine dispute even after a defendant has pled guilty or been convicted.(5) These problems prevent researchers from defining a universe of confession cases, sampling a subset, and confidently determining the truth or falsity of each underlying confession.
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.(6) 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,(7) a series of investigators(8) have documented numerous cases of wrongful arrest and conviction of the innocent in the United States.(9) We continue the tradition of re search into errors in the criminal justice system by reporting a study of sixty cases of police-induced false confessions in the post-Miranda era,(10) and by analyzing the consequences of these errors affecting defendants as they move through the criminal justice system.(11)
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(12) on the decision-making of criminal justice officials and juries because the confession co-varies with inculpatory witness or physical evidence. …