Protecting the Innocent from False Confessions and Lost Confessions - and from Miranda

By Cassell, Paul G. | Journal of Criminal Law and Criminology, Winter 1998 | Go to article overview

Protecting the Innocent from False Confessions and Lost Confessions - and from Miranda


Cassell, Paul G., Journal of Criminal Law and Criminology


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 convicted than that a guilty person will escape. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Protecting the Innocent from False Confessions and Lost Confessions - and from Miranda
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.