False confessions. Two words that capsulize just how tough a criminal defense lawyer's task can be.
No wonder they talk about it so much. In the last few days alone, a public defender and Simple Justice have traded thoughts on whether videotaping interrogations prevents false confessions or merely records them, and Grits for Breakfast points to a defendant who falsely confessed to murder after long questioning in which he was threatened with the death penalty if he didn't confess.
There's a new book that brings evidence and history to these conversations, and to the briefs criminal defense lawyers must file when clients confess under pressure. It's Police Interrogation And American Justice, by University of San Francisco law professor Richard Leo, published by Harvard University Press.
"A systematic feature of American criminal justice"
Here is what lawyers, judges, and the public need to know, grounded in study after study. False confessions not only happen, but they happen commonly:
The problem of false confession is not limited to a small number of cases. These studies reveal that false confessions are therefore not an anomaly but a systematic feature of American criminal justice, despite procedural safeguards such as Miranda rights and a constitutional prohibition against legally coercive interrogation techniques. . . . Unless police change their procedures for selecting suspects and their interrogation practices, false confessions will continue to occur regularly.
How can this be true in 2008? Leo explains that the problem isn't that we haven't progressed from the days of bright lights and the third degree. To the contrary, sadly, the problem is that we have progressed. Leo narrates the development of increasingly sophisticated techniques of police interrogation, techniques that manage to break down a defendant's psychological defenses and build a detailed and compelling story for the jury at the same time.
"A dangerous piece of evidence"
And it matters, of course. You didn't need studies to know that, but Leo gathers the studies all the same. False confessions mean mistaken convictions:
Taken together these studies demonstrate that a false confession is a dangerous piece of evidence to put before a judge or jury because it profoundly biases their evaluations of the case in favor of conviction -- so much so that they will allow it to outweigh even strong evidence of a suspect's innocence. . . . Jurors simply do not appropriately discount false-confession evidence, even when the defendant's confession was elicted by coercive methods and the other case evidence strongly supports his innocence. False-confession evidence is thus highly, if not inherently, prejudicial to the fate of any innocent defendant in the American criminal justice system.
There are briefs to be written out of this book. If enough of them win, the reforms Leo proposes in his final chapter might begin to take hold.
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Note: As often happens, forensic psychologist Karen Franklin's excellent "In The News" blog was well ahead of me in discussing Leo's book.
