False Confessions Are Alive And Well In The U.S.

by Hans Sherrer

Justice:Denied magazine, Issue 27, Winter 2005, page 16

Anyone suffering from the misapprehension that the Supreme Court’s 1966 decision in Miranda v. Arizona, 384 U.S. 436 (1966) had a positive impact on reducing false confessions in this country will get a much needed dose of reality from the following articles, plus Harold Hall’s story of exoneration after falsely confessing to two murders that is elsewhere in this issue of Justice:Denied.

Innocent people falsely confess everyday, and it is not due to inadvertent or negligent conduct by police interrogators, but rather, it is attributable to their training. In the March 2004 law review article exploring false confessions that inspired the article on the facing page, Professors Steven Drizin and Richard Leo explain that police interrogators are trained in coercive techniques that trigger a suspect to use the logic that confessing to a serious crime is in the person’s self-interest. However those techniques don’t distinguish the innocent from the guilty: Thus with the expectation of getting a lesser sentence, innocent people can and do rationally deduce - just like people who are guilty - that under the circumstances of their situation it is better to confess than deny involvement with a crime.

Furthermore, the hallowed Miranda decision did not impair the application of those techniques. That is why there has not been an identifiable reduction in the rate of confessions - including false confessions - since 1966. To the contrary, there is evidence they have increased.

Miranda imposed the obligation on the police to inform a person in a custodial setting of his or her rights to remain silent and to consult with a lawyer prior to their interrogation. After which - in the absence of a finding that the person was subjected to physical or psychological torture - a person’s incriminatory admissions would be considered to have been the result of a “voluntary, knowing and intelligent” waiver of his or her rights.

Miranda’s procedural requirement was interposed in place of the “voluntariness test” that had previously been relied on to determine the admissibility of a challenged confession on a case by case basis. While not perfect, the “voluntariness test” examined the totality of an interrogation’s circumstances, whereas a Miranda hearing is centered on the time a suspect was or was not read his or her rights. Thus Miranda replaced a substantive judicial procedure that publicly exposed the intimate and all too often embarrassing (and possibly criminal) details of an interrogation with a process primarily concerned with determining if a bureaucratic procedure was followed prior to the interrogation itself. In hindsight, it was inevitable that Miranda would do nothing to protect people in this country from interrogation techniques - particularly psychological ones - that are proven in their effectiveness to extract a confession from the innocent as well as the guilty.

There is no fail-safe catch-all method of determining the truthfulness of a confession or if the person giving it is innocent or guilty. However there are easily implemented procedures that will improve the likelihood a confession is more veracious. The Supreme Court recognized in Miranda that the only way a suspect can effectively be protected from involuntarily waiving his or her right to silence is to consult with a lawyer about their situation.

Miranda however, was fatally deficient in its implementation of that idea. The Supreme Court left it up to a suspect’s interrogators to inform the person of their rights to silence and counsel, and that anything the person says can and will be used against him or her. Yet it is not in the professional self-interest of police interrogators - who are trained to assume all suspects are guilty - to faithfully respect the letter and spirit of Miranda, and so they don’t. Looking at the situation from the perspective of an interrogator, conscientiously respecting the due process rights of a suspect presumed guilty undermines the likelihood the person will be induced to begin talking and incriminate him or herself prior to consulting with a lawyer. Once a Miranda waiver is obtained, the legal bar to the admissibility of an innocent suspect’s incriminating statements is effectively removed. So as the article on the facing page explains, a variety of psychological techniques are employed by interrogators determined - by hook or by crook - to induce a Miranda waiver from a vulnerable, and all too often innocent suspect.

However the solution to correct that situation is deceptively simple: prohibit any interrogation of a suspect prior to their consultation with a lawyer. That removes an interrogator or anyone else associated with the prosecution from being involved in something - enforcing a suspect’s right to silence and consultation with an attorney - that they not only have no interest in doing, but that they will sabotage if at all possible.

That is not a new idea, nor is the observation that Miranda was a ceremonially important decision that actually made it easier for the police to obtain legally admissible incriminating statements. In Are Confessions Really Good For the Soul?, a 1987 Harvard Law Review article, Charles Ogletree wrote:

Although Miranda warnings may seem adequate from the detached perspective of a trial or appellate courtroom, in the harsh reality of a police interrogation room they are woefully ineffective. My own experience as a public defender has been that many suspects make statements during the process of police interrogation and are surprised to learn thereafter that they had a constitutional right to remain silent or to have an attorney present during questioning. This pattern suggests that Miranda warnings as currently delivered by the police are not an effective means of informing suspects both of the existence and extent of their privilege against self-incrimination and of their right to consult with counsel before they make any statements.
I would propose the adoption, either judicially or legislatively, of a per se rule prohibiting law enforcement authorities from interrogating a suspect in custody who has not consulted with an attorney. If, after conferring with counsel, a suspect desires to make a statement, it may be used against her. Any statements made without the assistance of counsel, however, would be inadmissible.” 1

Under Miranda the federal constitution theoretically provides the shield of legal counsel to protect an innocent suspect from making false incriminating statements when confronted by police interrogators. However that protection is hollow for a suspect nakedly confronted by psychologically sophisticated interrogation techniques intended to extract information - but which do not discriminate as to the quality of that information. Furthermore, wealth and fame provide no protection from a person’s susceptibility to those techniques. Although at this point it is unknown if she is innocent, Martha Stewart is a high-profile example of a convicted person whose prosecution was dependent on statements investigators induced her to make while she was unassisted by legal counsel.

False confessions are alive and well in this country, and their use to prosecute an innocent person will continue unabated until there is a blanket absolute evidentiary exclusion of all statements made to an interrogator by a person directly and immediately unassisted by counsel.

1 Are Confessions Really Good For the Soul?: A Proposal To Mirandize Miranda, Charles J. Ogletree, 100 Harvard L. Rev. 1826 (1987), at 1827-1828, 1830 (emphasis added).