Suppose it is 1980, and you have been arrested for a murder you did not commit. These are the bad old days—a time without any of the essentials that today seem indispensable to daily life. CrackBerries, Facebook, and most importantly for you, DNA testing, are all technologies a decade or more away. What do you do? Though responses may vary, surely the answer to that question cannot be confess to the crime. Why would anyone ever do something so patently absurd? If data on post-conviction exoneration through DNA testing is to be believed, however, that is exactly what a nontrivial number of criminal defendants seem to have done—confess to a crime they did not commit, and often quite convincingly. This perplexing phenomenon was the subject of last week's Crime and Punishment Workshop, when Professor Brandon Garrett of the University of Virginia Law School presented a draft of his new paper, The Substance of False Confessions.
To many among the (unwashed) masses, the problem of criminal defendants falsely confessing to crimes for which they are not guilty may seem insignificant. What innocent person would ever confess to a violent crime such as murder or rape, and even if they did, how would they do so credibly? Among scholars, however, post-conviction exoneration has increased awareness of this problem, and prompted psychological research that examines circumstances in which suspects may come to internalize facts about a crime, and even believe they did something that, in reality, they did not. This goes to explaining why someone might confess falsely, but not how they do so convincingly.
To answer that salient question, Garrett in this study took a different tack, examining the substance of false confessions. Surprisingly, he found many confessions were much more detailed than one might expect. Confessors did not simply admit to committing the crime; they seemed to know facts that only the perpetrator could have known (for example, what was the color of the couch on which the rape occurred?), and yet, DNA testing conclusively proved that they were not responsible. How did defendants confessing to crimes they did not commit happen upon details of the crime?
The likely explanation: contamination. In the course of interrogation, it seems, police may have revealed details about the crime, which the suspect then was able to regurgitate when (falsely) confessing. How might we remedy this problem? At the workshop, several options were discussed. First, a substantive review of all confessions might allow courts to ferret out instances where incriminating details provided by the defendant in a confession were in fact volunteered by police rather than known by the defendant. As one faculty member noted, however, this approach might also increase false acquittals since it would be difficult to distinguish whether the defendant's command of factual details pertaining to the crime were a result of the police volunteering information, or because the defendant was indeed guilty.
Another approach discussed was to videotape entire interrogations (or in the extreme, starting from the time the suspect was arrested). This record, the argument goes, would allow some means of assessing the reliability of confessions ex post. The limitation, however, was that it would do nothing to deter officials intentionally trying to disseminate details to a suspect, only those doing so inadvertently. This solution, moreover, would not correct the problem of false acquittals—even if police volunteered facts, that alone would not be sufficient to know whether the defendant was guilty.
Finally, the issue of interrogation reform was proposed. Insisting that an interrogator with no knowledge of the crime question the suspect, for example, would likely lower the problem of fact leaks. The consensus among the attendees of the workshop, however, was that such a measure would likely do more harm than good—an interrogator with knowledge of the crime was probably much better equipped to facilitate an interrogation.
Regardless of the efficacy of any particular remedy discussed, the takeaway seems incontestable: false confessions are very much a reality, and contamination is a significant problem. For crimes not lending themselves to DNA testing, moreover, the rate of false confessions is unknown (and perhaps unknowable). Going forward, it seems clear that reforms will be needed to limit wrongful convictions and the curtail the success of false confessions.