The Substance of False Confessions
Garrett, Brandon L., Stanford Law Review
INTRODUCTION I. CHARACTERISTICS OF DNA EXONEREES' FALSE CONFESSIONS A. Study Design B. General Characteristics of Exoneree Confessions II. CONTAMINATED CONFESSIONS A. Law Enforcement Practices Concerning Contamination of Confessions. B. Corroborated and Nonpublic Facts C. Denying Disclosing Facts D. Recorded False Interrogations E. Mistaken Facts F. Guessed or Public Facts G. Crime Scene Visits H. Inconsistencies and Lack of Fit I. Litigating Contamination of Confessions at Trial III. FALSE CONFESSIONS AND CONSTITUTIONAL CRIMINAL PROCEDURE A. Miranda Warnings B. Indicia of Involuntariness C. Use of Deceptive Techniques D. Trial Rulings on Suppression of Confessions E. Use of Experts F. Inculpatory Statement Cases G. Postconviction Review of False Confessions IV. SUBSTANTIVE REGULATION OF CONFESSIONS A. Substantive Judicial Review of Confessions B. Recording Entire Interrogations C. Interrogation Reforms CONCLUSION
False confessions present a puzzle: How could innocent people convincingly confess to crimes they knew nothing about? For decades, commentators doubted that a crime suspect would falsely confess. For example, John Henry Wigmore wrote in his 1923 evidence treatise that false confessions were "scarcely conceivable" and "of the rarest occurrence" and that "[n]o trustworthy figures of authenticated instances exist...." (1) That understanding has changed dramatically in recent years, as, at the time of this writing, postconviction DNA testing has exonerated 252 convicts, forty-two of whom falsely confessed to rapes and murders. (2) There is a new awareness among scholars, legislators, courts, prosecutors, police departments, and the public that innocent people falsely confess, often due to psychological pressure placed upon them during police interrogations. (3) Scholars increasingly study the psychological techniques that can cause people to falsely confess and have documented how such techniques were used in instances of known false confessions. (4)
This Article takes a different approach by examining the substance of false confessions, including what was said during interrogations and how confessions were litigated at trial. Doing so sheds light on the phenomenon of confession contamination. (5) Police may, intentionally or not, prompt the suspect on how the crime happened so that the suspect can then parrot back an accurate-sounding narrative. Scholars have noted that "on occasion, police are suspected of feeding details of a crime to a compliant suspect," and have described several well-known examples. (6) However, no one has previously studied the factual statements in a set of false confessions. (7)
The set of forty cases that this Article examines has important limitations. As will be developed further, false confessions uncovered by DNA testing are not representative of other false confessions, much less confessions more generally. These forty cases cannot speak to how often people confess falsely. Nor can these examples themselves tell us whether reforms, such as recording interrogations, prevent more false convictions than they discourage true confessions. But these data provide examples of a very troubling problem that deserves further study.
In the cases studied here, innocent people not only falsely confessed, but they also offered surprisingly rich, detailed, and accurate information. Exonerees told police much more than just "I did it." In all cases but two (ninety-seven percent--or thirty-six of the thirty-eight--of the exonerees for whom trial or pretrial records could be obtained), police reported that suspects confessed to a series of specific details concerning how the crime occurred. (8) Often those details included reportedly "inside information" that only the rapist or murderer could have known. …