False confessions cannot be entirely eliminated. However, each of the following six reforms would reduce the number of false confessions or mitigate the tragedy resulting from them. If the entire package were adopted, the problem of false confessions would become far less severe.
In recent years, the idea of videotaping all police interrogations has begun to take hold. Such a policy serves two principal purposes. First, if they know that judge and jury will eventually see the interrogation, police are more likely to avoid overly aggressive or controversial tactics. Second, when they see an improper interrogation, judges may exclude the confession from evidence or juries may discount its significance. However, only seven states (and a number of municipalities) currently require videotaping.
In quite a few jurisdictions, police tape only the confession, not the interrogation that preceded it. This is inadequate, as it may leave the judge and jury unaware of what it was that made the defendant confess. Also, the confession may include details about the crime – details that were directly or indirectly fed to the defendant during questioning.
Social psychologists explain how false confessions predictably result from certain standard interrogation tactics: “minimization” and “maximization.” Minimization entails downplaying the suspect’s alleged actions or their consequences. This might mean, for example, assuring the suspect that the crime was not serious or that the victim was asking for trouble. Most commonly, it involves the suggestion that a confession will bring about lenient treatment. Maximization goes the opposite route, with the suspect made to fear that, absent a confession, he faces especially severe consequences. Maximization also may involve exaggerating the severity of the charges and exaggerating or fabricating evidence of the suspect’s guilt.
Minimization and maximization are commonly resorted to simultaneously, with the suspect assured that he will be treated leniently if he confesses but face severe punishment, such as execution, if he does not. Critically, these tactics represent common and accepted interrogative practice.
Although minimization and maximization cover a range of interrogative behavior, they can usefully be simplified into two categories: threats (maximization) and promises (minimization). Long before psychologists explained the nature and nuances of minimization and maximization, judges understood that threats and promises can induce false confessions. Throughout the Nineteenth Century, many state and federal courts expressed wariness of confessions that followed threats or promises. Near the end of the Nineteenth Century, the U.S. Supreme Court adopted a categorical rule prohibiting the introduction of confessions induced by threats or promises. Yet, more than a century after the Supreme Court established the rule, threats and promises remain a staple of interrogation, and the confessions they produce are often upheld, even when procured by the most egregious minimization and maximization.
What happened? Quite simply, almost from the day the Supreme Court penned its categorical rejection of threats and promises, this case was ignored or circumvented. Then, in a 1991 case, the Supreme Court explicitly abandoned the rule, without explanation. Oddly, even as we learn more about the perils of false confessions, we safeguard against them less. If the courts returned to and strictly enforced the holding that excludes confessions obtained through promise or threat, law enforcement would be discouraged from dangerous interrogative practices and injustice would be prevented on occasions when such practices occurred.
Because it is so counterintuitive that people confess falsely, it is crucial for the defense to present an expert witness who can educate the jury about the phenomenon. However, many judges rule such testimony inadmissible. The bizarre rationale is that their testimony involves matters already within the common sense knowledge of jurors, who consequently don’t need expert assistance.
This notion boggles the mind. Far from a matter of common sense, the idea that people confess falsely is deeply counterintuitive. The expert witness on false confessions typically offers three generic pieces of expertise (in addition to discussing the particular confession at hand): the frequency of false confessions; the capacity of different interrogative practices to induce them; and the importance of testing the fit of the confession with other evidence. Of these, only the last can possibly be considered a matter within the knowledge of laypeople, and it is meaningless unless the first two points have been driven home. If people accept a confession as virtually infallible evidence of guilt, they are unlikely to give full consideration to other evidence in the case.
Traditionally, when a court of appeals determined that a confession was wrongly admitted (usually because it wasn’t voluntary or the defendant wasn’t read his Miranda rights), an automatic reversal of the defendant’s conviction resulted. However, in 1991, the Supreme Court held that wrongful admission of a confession is subject to “harmless error” review, which means the conviction stands if the court of appeals decides that the defendant would have been convicted even without the confession. There are major problems with this holding. First, a confession is so prejudicial that it is dubious to conjecture that a jury would have reached the guilty verdict even without it – a confession tends to skew the perception of other evidence. Second, an automatic reversal rule is needed to deter police and prosecutorial misconduct. As things stand, law enforcement can coerce a confession through improper interrogation, and prosecutors fight to get it admitted, knowing that even if the confession is found on appeal to have been wrongly admitted, it will have done its damage and no reversal of the conviction will result.
Another problem with harmless error review of wrongly admitted confessions is that court of appeals judges will predictably err on the side of finding harmless error. In deciding whether an error is harmless, appellate judges are not supposed to consider their own view of the defendant’s guilt or innocence. But judges cannot help but be influenced by awareness that the defendant confessed. The idea that an innocent person would confess is so counterintuitive that no one, judges included, can be relied on to escape the intuition, and it is fanciful to assume that a judge convinced of the defendant’s guilt can undertake the harmless error analysis properly. Empirical data support this assumption. In both state and federal cases, confessions found or assumed to be improperly admitted have been deemed harmless error in a high percentage of cases. In some of these cases, the finding of harmless error is impossible to justify.
One final measure for reducing the tragedy of false confessions concerns what happens even later in the process. In many cases where DNA testing exonerates persons convicted of crimes based on false confessions, prosecutors refuse to acknowledge the innocence of the defendant. Instead, they resist his release. In some of these cases, the resistance is absurd, with prosecutors stubbornly denying reality and, for example, shifting to a new theory of the case entirely unsupported by evidence. Without the prosecution’s cooperation, the defendant remains incarcerated for long periods while the case winds its way through the bureaucracy unless and until a court order, re-trial, or governor’s pardon finally results in vindication and freedom.
This phenomenon reflects the fact that, like everyone else, prosecutors find it counterintuitive that an innocent person would confess. But there’s another key factor at work as well. Prosecutors, like all people, have a powerful need to rationalize: those who put people behind bars cannot easily admit — to themselves or others — such egregious error. A relatively simple solution is available. When a credible case of DNA exoneration is made, responsibility for the defendant should be transferred to a different office from that which prosecuted him. The new prosecutor can evaluate the matter with a clear head and conscience, unburdened by past association with the case and any need to rationalize his involvement in it.