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3 presence of exonerating evidence. Many sources report other apparently false confessions. See, e.g., Scheck, Neufeld & Dwyer, ACTUALINNOCENCE(2000); the case of Corethian Bell, “Cops Urged to Tape Their Interrogations,” Chicago Tribune, January 6, 2002;4and four questionable confessions in Prince George’s County, Maryland, see, Washington Post, Feb. 1 and 12, 2002. Certain interrogation techniques, designed to elicit a true confession from a suspect who denies culpability, can have the effect of inducing a false confession. These techniques are described in detail in Ofshe and Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Denver University Law Review 979 (1997). In essence, “interrogators manipulate the individual's analysis of his immediate situation and his perceptions of both the choices available to him, and of the consequences of each possible course of action. An interrogator's goal is to lead the suspect to conclude that confessing is rational and appropriate.” Id., at 985. An innocent individual who is convinced that he will be arrested, tried, and convicted, may rationally decide to confess if convinced that confessing may moderate punishment, terminate the interrogation or otherwise be ofbenefit. Innocent suspects can be convinced that they will be convicted by interrogators’ false assertions that there is strong evidence against them. Such false assertions are legal and constitutional.5During police interrogations, investigators try to determine what information is available to the suspect, manipulate his perception of his situation, and usually offer some form of incentive to 4After a lengthy unrecorded interrogation, Bell’s confession was videotaped. 5Police interrogation tactics can and do include intentional trickery; lying to the suspect about nonexistent evidence or incriminating statements by other suspects and witnesses; strongly suggesting known elements of the crime to the suspect; and implied promises of leniency or harshness stemming from the suspect’s decision whether or not to confess. See, generally INBAU, FRED (ed.), CRIMINAL INTERROGATION AND CONFESSIONS (Aspen)(4th ed., 2001). While not necessarily clear violations of the suspect’s legal rights, such interrogation tactics can result in false confessions. See Richard Ofshe & Richard Leo, The Decision to Confess Falsely: Rational Choice andIrrational Action, 74 DENVER UNIVERSITY LAW REVIEW 979, 1114 (1997).
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4 get a confession.6On the other end of the spectrum from positive incentives, police interrogators also may imply a wide variety of threats: “The modern equivalent to the rubber hose is the indirect threat communicated through pragmatic implication.”7Not surprisingly, one of the conclusions from the American Judicature Society’s January 2003 Conference on Wrongful Convictions of the Innocent was that prosecutorial misconduct, including suggestive, coercive, or misleading theories as well as subconscious biases, is a primary systemic cause of wrongful convictions. There are a number of categories ofindividuals who are particularly susceptible to aggressive interrogation techniques. Suspects who falsely confess to crimes and criminal activity that they didnot commit are apt to be particularly vulnerable people, such as those who are intoxicated by alcohol or other drugs or those who are overly eager to appear cooperative. The largest category of falsely confessing suspects consists of those with mental deficiencies or unusual cultural backgrounds. Additionally, juveniles are a well-recognized group who tend to be unsophisticated in dealing with police interrogation tactics, more trusting of adultauthorityfigures, and less informed about criminal law and the criminal justice process. Recent research also indicates that the race of the person beinginterrogated is correlated with eagerness to cooperate and the ability to avoid confusion and misinformation.8This broad category of vulnerable and mentally impaired suspects may provide particularly unreliable statements in response to the isolation, fear, and intimidation of police interrogation settings, particularly if prompted by explicit or implied promises or threats such as being freed to go home or getting a better or worse result at trial. Some scholars have attempted to compile a checklist to assess the trustworthiness of a 6Ofshe & Leo, supra note 3, at 1114-1115. 7Id. at 1115. 8CYNTHIA K. LEE, MURDER AND THE REASONABLE MAN: PASSION AND FEAR IN THE CRIMINAL
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5 confession. One, apparently prepared by Professor Saul Kassin,9is as follows:Consider the defendant’s background: IQ, mental disability, personality, compliant personality, exhausted or terrified, etc. Assess the circumstances of police questioning: length of interrogation, tactics employed, claims about existing evidence, express or implied threats or promises, offers to let them go home if they would confess, etc. Was the confession the defendant’s own statement or simply an acceptance of police suggestions? Did the defendant’s statement lead to new evidence that the police did not know of prior to the defendant’s statement?Was it the defendant or the police who first stated key facts?Any of these factors should cause heightened concern about the trustworthiness of a confession, but undoubtedly interrogations with none of the factors could nonetheless result in false confessions. The Practice of Recording ConfessionsIn some jurisdictions, New York among them, substantial numbers of confessions are preserved on videotape. Interrogations are not. Under common current practice, subjects are interviewed by detectives and, if a major crime is admitted, a prosecutor will capture the confessionon videotape. That videotape is available as evidence at trial, and is, of course, very convincing. Weunderstand that every New York City precinct’s detective bureau has at least a single set of videotaping equipment available. Audio-tape recording equipment is readily available at all precincts.An ever-increasing number of jurisdictions record interrogations. A comprehensive study was published in March 1993, under the auspices of the U.S. Department of Justice, Office of Justice COURTROOM (New York: New York University Press)(2003).
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