Miranda’s Failure To Protect The Innocent Exposed in False Confession Study

By Hans Sherrer

Justice:Denied magazine, Issue 27, Winter 2005, page 17

Whether in a movie, television or real life, many millions of people have heard the Miranda warning:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to be speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”

However the Miranda warning is a phrase that is as little understood as it is commonly known. So a pertinent question is: Why did the Supreme Court rule in Miranda v. Arizona, 384 U.S. 436 (1966), that a person “questioned while in custody or otherwise deprived of his freedom of action in any significant way,” must first be informed of his or her rights to remain silent and to consult with an attorney? 1 The answer to that question is clarified by briefly explaining several Supreme Court decisions that proceeded Miranda.

In 1936 the Supreme Court ruled in Brown v. Mississippi, 297 U.S. 278 (1936) that a confession obtained by the use of physical torture is a violation of the person’s Sixth Amendment right to due process. In its decision the Court stated:

Further details of the brutal treatment to which these helpless prisoners were subjected need not be pursued. It is sufficient to say that in pertinent respects the transcript reads more like pages torn from some medieval account than a record made within the confines of a modern civilization which aspires to an enlightened constitutional government. 2 ... That complaint is not of the commission of mere error, but of a wrong so fundamental that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void. … Coercing the supposed state’s criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief inequity, the crowning infamy of the Star Chamber, and the Inquisition, and other similar institutions. The constitution recognized the evils that lay behind these practices and prohibited them in this country. 3

Four years later, in Chambers v. Florida, 309 U.S. 227 (1940), the Court extended application of the due process clause to a confession obtained by the use of psychological torture techniques. The Court stated in part:

For five days, petitioners were subjected to interrogations culminating in Saturday’s (May 20th) all-night examination. Over a period of five days, they steadily refused to confess, and disclaimed any guilt. The very circumstances surrounding their confinement and their questioning, without any formal charges having been brought, were such as to fill petitioners with terror and frightful misgivings. Some were practical strangers in the community; three were arrested in a one-room farm tenant house which was their home; the haunting fear of mob violence was around them in an atmosphere charged with excitement and public indignation. From virtually the moment of their arrest until their eventual confessions, they never knew just when any one would be called back to the fourth floor room, and there, surrounded by his accusers and others, interrogated by men who held their very lives -- so far as these ignorant petitioners could know -- in the balance. The rejection of petitioner Woodward’s first “confession,” given in the early hours of Sunday morning because it was found wanting, demonstrates the relentless tenacity which “broke” petitioners’ will and rendered them helpless to resist their accusers further. To permit human lives to be forfeited upon confessions thus obtained would make of the constitutional requirement of due process of law a meaningless symbol.

We are not impressed by the argument that law enforcement methods such as those under review are necessary to uphold our laws. … Today, as in ages past, we are not without tragic proof that the exalted power of some governments to punish manufactured crime dictatorially is the handmaid of tyranny. Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement. Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death. No higher duty, no more solemn responsibility, rests upon this Court than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution -- of whatever race, creed or persuasion. 4

So for decades prior to Miranda, a confession deemed to have been the product of either physical or psychological torture was inadmissible as evidence against a defendant under the Federal constitution’s Sixth Amendment due process clause (and applicable to the State’s under the Fourteenth Amendment – since both Brown and Chambers originated as state cases.). In contrast, Ernesto Miranda’s appeal to the Supreme Court revolved around the issue of when a confession is constitutionally admissible as evidence in a criminal proceeding under the Fifth Amendment’s bar against self-incrimination and the Sixth Amendment’s affirmation of the right to the assistance of counsel. In its majority opinion, the Court recognized in Miranda that many known physical techniques can effectively induce a person to involuntarily confess to a crime. 5 The Court also recognized that while they were less well known than physically coercive methods, psychologically coercive techniques intended to induce a state of mental disorientation were actually more widely used to elicit an incriminating statement or confession. 6 However irrespective of the method(s) used, the Court gave notice that there is an all too real possibility that an innocent person will be induced to falsely confess when subjected to a police interrogation. 7

The Court further recognized that compounding the possibility of falsely confessing, is that an interrogated person who isn’t counseled by a lawyer is more likely to involuntarily waive his or her right to remain silent than a person who doesn’t have counsel available. 8

Premised on the idea that the Fifth Amendment only protects a person against an involuntary confession, and that in the absence of counsel a person is more likely to involuntarily confess, the Miranda decision approached the enforcement of that amendment’s protection by establishing a ‘procedural waiver test’ that would be administered by a law enforcement officers involved. Hence, if a person is informed of his or her rights to remain silent and consult with an attorney prior to being questioned in a custodial setting about a crime, and that person does not exercise those rights, then he or she is legally presumed to have “voluntarily, knowingly, and intelligently” waived them. 9 Henceforth, anything the person says that may be incriminating is legally admissible as evidence unless it can be proved to be the product of physical and/or psychological torture. Thus under Miranda and its progeny, as long as a law enforcement officer follows the proper procedure of obtaining a Miranda waiver from a person in custody and doesn’t engage in actions determined to be tortuous, a suspect’s confession can be used as evidence against him or her.

However, in spite of the Supreme Court’s recognition of how effective psychological techniques are at coercing a confession, it overlooked the use of such techniques to induce an unintelligent, unknowing and/or involuntary Miranda waiver - after which the interrogated person’s statements would be admissible against him or her. The Court also overlooked the use of psychological techniques to induce a person who invokes his or her right to remain silent and consult with an attorney, to then reverse that decision and waive those rights prior to having an opportunity to talk with a lawyer. Those oversights by the Court were succinctly noted in a 1987 Harvard Law Review article by Charles J. Ogletree, Are Confessions Really Good For the Soul?: A Proposal To Mirandize Miranda:

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. My clients and my colleagues’ clients often report that, notwithstanding the warnings, they believed either that their silence could be used against them as evidence of guilt or, more frequently, that by remaining silent they would forfeit their opportunity to be released on bail.

These reports reflect a serious flaw in the Miranda majority’s hope that suspects would decide to waive their rights only “voluntarily, knowingly, and intelligently.” (Miranda, 384 U.S. at 444) Under Miranda, the police themselves have the responsibility to advise a suspect of her rights. The police, however, have little interest in protecting the suspect’s right to a knowing and intelligent waiver. Their objective is to obtain a confession, and therefore it is unlikely that they will fully inform the suspect of her right to counsel or her right to remain silent, or dispel misconceptions about those rights.

Moreover, when a suspect is confronted by the police, whether on the street, at the police station, or at home, there appears to be an almost irresistible impulse to respond to the accusations, notwithstanding the Miranda warnings. In these settings, police may be accusatory, or appear to empathize with the suspect, or imply that cooperation is in the suspect’s best interest, or simply lie about the strength of the evidence against the suspect. Suspects generally hope that by responding they will in some way improve their position. Suspects, generally unprepared for the trickery or outright deceit the police may use, are often coerced into confessing or incriminating themselves once they have waived their rights and agreed to talk. Even those who initially invoke their right to silence and request the assistance of counsel face pressure to waive those rights. Indigent suspects are likely to be told that counsel will not be available for hours or, in some jurisdictions, days. In these extra-judicial settings, Miranda warnings do not ensure that defendants will waive their rights only “voluntarily, knowingly, and intelligently.” 10

Those observations about the practical ineffectiveness of the Miranda decision to protect a suspect’s right against self-incrimination are consistent with Patrick Malone’s observation in the American Scholar the previous year (1986), that reciting the Miranda warning to suspects “has not appreciably affected the confession rate.” 11

So twenty years after the Miranda warning was mandated, keen observers explained in respected journals that it was only providing a criminal suspect with an illusory shield of protection under the Fifth Amendment’s right against self-incrimination and the Sixth Amendment’s right to counsel.

Thus the Arizona Supreme Court’s holding in Miranda - “We hold that a confession may be admissible when made without an attorney if it is voluntary and does not violate the constitutional rights of the defendant.” 12 - that the Supreme Court rejected upon review, has prevailed in actual practice.

One expected consequence of the failure of Miranda to protect a person targeted for a criminal interrogation against incriminating him or herself, is that it would be ineffective at protecting an innocent person from falsely confessing to a crime. That is more than a logical supposition, but a fact.

False Confessions Have Continued After Miranda

The phenomena of false confessions has been explored in a number of legal and lay articles, and books over the past several decades. That literature was significantly contributed to by a March 2004 North Carolina Law Review article by Professors Steven Drizin and Richard Leo. 13 Their 111-page article, The Problem of False Confessions in the Post-DNA World, is notable for two reasons: it reports on an analysis of 125 cases of false confession, more than twice as many as any previous study; and it only includes proven cases of false confession. The crux of the article is identifying how and why a false confession can have a causal role in a wrongful conviction. The article’s six parts are summarized as follows:

Each of the article’s six parts will be briefly explained.

Part I

The first study in this country that attempted to quantify the causes of wrongful convictions was Miscarriages of Justice in Potentially Capital Cases by Professors Hugo Bedau and Michael Radelet. Their 1987 Stanford Law Review article analyzed 350 cases of wrongful conviction from 1900 to 1987. One of their findings was that a false confession was involved in 14% of those cases. Two other studies of wrongful convictions since 1987 found a false confession was involved in 18% and 24% of the 28 and 62 cases that were respectively examined in those studies. Furthermore, 25% of the people exonerated by DNA evidence through 2003 had falsely confessed. (904) So research during the past two decades has confirmed that between 1/4th and 1/7th of exonerations involved a person who falsely confessed. A confession is considered damning evidence of guilt, and the wrongful conviction of those people was based wholly or in part on his or her false confession.

One of the prime values of an exoneration based on DNA evidence as contrasted with witness recantation, disclosure of prosecution concealed exculpatory evidence, etc., is it incontrovertibly proves the person’s confession was false. Thus those exonerations underscore the realness of the phenomena, while at the same time undercutting the criticism of naysayers.

Part II

Through the first 35 years of the 20th-century, the police relied on “third degree” methods of inflicting physical pain and psychological torment to extract a confession from a stubborn suspect. In the words of Drizin and Leo:

“These techniques ranged from the direct and explicit use of physical violence (such as beating, punching, kicking or mauling a suspect) to more elaborate strategies of torture (such as the “sweat box,” the “water cure,” and the “electric monkey”) to physically and psychologically coercive techniques that did not leave marks (such as the use of a rubber hose, suffocation, extended incommunicado interrogation, or food and sleep deprivation) to lesser forms of psychological duress such as threats of harm and promises of leniency. As Ernest Jerome Hopkins wrote in the heyday of the third degree, “there are a thousand forms of compulsion; our police show great ingenuity in the variety employed.” (907-908)

Since “third-degree” interrogation techniques began to be less commonly used in the mid-1930s after the Brown decision,  the continuation of false confessions as a problem may seem “counter-intuitive” to the vast majority of people who haven’t experienced what predominately replaced them - “the psychologically manipulative methods and strategies of police interrogators.” (909) Consequently, many people mistakenly believe “that an innocent person will not falsely confess to a serious crime unless he is physically tortured or mentally ill.” (909) However it is known the innocent people who falsely confess are not limited to the tortured or mentally unbalanced.

The article identifies that a significant reason false confessions occur is because a person targeted for interrogation is presumed guilty - and that belief provides a justification for the use of techniques that are designed to extract a confession that is likewise presumed to be true. Drizin and Leo observe, “Because it is designed to break the anticipated resistance of an individual who is presumed guilty, police interrogation is stress inducing by design; it is intentionally structured to promote isolation, anxiety, fear, powerlessness, and hopelessness.” (910)

A widely accepted explanation for the effectiveness of those techniques to convince an innocent person to claim responsibility for something he or she didn’t do, is known as The Decision-Making Model of Confession. The authors write, “According to this model, the interrogator’s goal is to persuade the suspect that the act of admission is in his self-interest and therefore the most rational course of action, just as the act of continued denial is against his self-interest and therefore the least rational course of action.” (912) Interrogators are aided in influencing a person to think the pragmatic thing to do is confess - even if it isn’t true - by the absence of legal restraints on police lying to suspects. 14 The authors emphasize this by noting, “American police often confront suspects with fabricated evidence, such as nonexistent eyewitnesses, false fingerprints, make-believe videotapes, fake polygraph results, and so on.” 15 The effect of those techniques is an accomplished interrogator is able to make an innocent person do what intuitively seems irrational - confessing to a crime - appear to be a rational means of minimizing the punishment that person has accepted is likely unavoidable. That is reflected in the fact that most false confessions are by “cognitively and intellectually normal individuals.” (918)

The article also makes the point that, “Interrogation-induced false confession has always been a leading cause of miscarriages of justice in the United States.” (918) However an apparent increase in the phenomena may be attributable to several reasons: In recent decades there has been an increase in the number of people prosecuted; and, in spite of the effectiveness of modern interrogation techniques, police training manuals and seminars ignore that the elicitation of a false confessions is a possible consequence.

Part III

The 125 cases of false confession analyzed in the article are of people proven innocent by one of four methods:

To emphasize that false confessions are a problem under the United States’ current legal framework, the article only includes cases that have occurred since the Supreme Court’s Miranda decision. Many pre-1966 cases could have been included if Drizin and Leo had chosen to do so. They also make the point that although the frequency of false confessions is unknown, what is important “from a scientific perspective” is gaining an understanding of how and why they occur. (929)

Part IV

Statistically analyzing the article’s false confession data reveals some interesting information. Thirty-five percent (35%) of the false confessors were under 18 years old, 58% were 18 to 39, and only 7% were 40 or older. (Table 3) That tends to indicate that the very young are disproportionately susceptible to falsely confessing, and that people approaching and beyond middle age may be less prone to doing so.

Ninety-two percent (92%) of the false confessions were to murder, attempted murder, or rape. That can be due to a combination of two reasons: There is more reporting of errors related to serious crimes; and a person suspected of a serious crime is more likely to be subjected to an intense interrogation. The effectiveness of modern psychological techniques is indicated by 50% of the interrogations lasted 12 hours or less and 89% lasted 24 hours or less. (Table 7) In contrast, the defendants in Brown v. Mississippi (1936) didn’t break until after five days of physical torture.

Forty-four of the false confessions resulted in a conviction, with nine innocent people sentenced to death, ten to life in prison, and eight to more than 20 years in prison. (Table 8) Of those convicted people, 61% were imprisoned for more than six years before their exoneration. (Table 10) The article also relates that, “a false confessor who chooses to take his case to trial stands more than an 80% chance of conviction, despite the fact that he is officially presumed innocent, that he is in fact innocent, and that there is no reliable evidence confirming or supporting his false confession.” (959) That finding indicates how prejudicial a false confession is to judges and jurors, even if it is demonstrably false and the person explains the unsavory details to the judge and/or jury of what the police did to obtain it. (960)

Part V

There are identifiable trends among false confessors. One is children, juveniles, and the mentally ill and impaired are particularly vulnerable to being induced to falsely confess. Two other trends are that more than 30% of the case’s studied involved more than one person falsely confessing to the same crime, and several defendants falsely confessed to multiple crimes. (Table 6, 972, 981)

Jerry Frank Townsend’s experience in Florida is an extreme example of how readily a false confession unsubstantiated by corroborating evidence is believed. Beginning in 1980 he was convicted on four separate occasions over a period of almost three years, of a total of six murders and one rape. (983-986) No physical evidence linked Townsend to any of the crimes, and all the convictions were based on his false confessions. Through a variety of means proof of Townsend’s innocence came to light, and the last of his wrongful convictions was vacated in 2001 after he had been imprisoned for 22 years. (983-986, esp. 986)

A bizarre consequence to an exonerated person can be their subsequent prosecution for having falsely confessed. After David Saraceno was convicted of arson based on his false confession to burning 15 school buses in Connecticut, his lawyer learned that the prosecution had concealed the identity of the actual arsonists. Burned by the disclosure of their duplicity, the prosecutors would only agree to dismiss the arson charge without a fight if Saraceno pled guilty to “hindering prosecution by falsely confessing.” (991) In another case, Teresa Sornberger falsely confessed that she served as the lookout while her husband robbed a bank, and that she drove the getaway car. However before the couple’s trial, bank surveillance tapes proved their innocence. Nevertheless, Mrs. Sornberger’s prosecutors would only agree to voluntarily drop the bank robbery charges if she pled “guilty to obstructing justice for giving false information to authorities.” (992)

One of the studies more disheartening findings is that the innocence of nearly a quarter (24%) of known convicted false confessors is not proven until after his or her sentence is served in full. (Table 14)

Part VI

The article concludes with three suggested courses of action to help alleviate false confessions.

Miranda Fails to Protect the Rights to Silence and Counsel

Professors Drizin and Leo’s study is a significant contribution to understanding the phenomena of false confessions, and their suggestions to help minimize them are sound. Although they don’t directly raise the issue, their study provides persuasive evidence that false confessions continue to be a serious problem in the United States because the Miranda warning fails to effectively shield a suspect from the de facto coercive effects of modern police interrogation techniques. Consequently, their study provides empirical support for an idea that would give teeth to the suggestion in Miranda that interposing a lawyer between a suspect and his or her would be interrogators may be the only way a person can meaningfully exercise their right to remain silent. In 1987 Charles Ogletree wrote in Are Confessions Really Good For the Soul?:

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. This solution completes the Miranda Court’s effort to reconcile conflicting doctrine on confessions in a way that maintains this nation’s commitment to an accusatorial rather than an inquisitorial system of criminal justice, and reaffirms the constitutional values that motivated the decision. 16

Although it doesn’t go as far as Ogletree’s proposal to protect a criminal suspect’s rights, the Canadian Supreme Court adopted a brightline rule in the 1990 case of R. v. Brydges (1 S.C.R. 190) that has similarities to his suggestion. In Brydges the Court ruled that under the Canadian Charter of Rights and Freedom, “A detainee is advised of the right to retain and instruct counsel without delay because it is upon arrest or detention that a detainee is faced with an immediate need for legal advice, especially in respect of how to exercise the right to remain silent.” 17 The Brydges rule goes beyond the Miranda rule because it not only mandates that the police have an obligation to inform a detained or arrested suspect of their right to retain legal counsel, but that if they can’t afford private counsel, “the police must furnish the detained or accused person with basic information about how to access those free legal services that are available in any particular jurisdiction for the benefit of persons who have been arrested or detained (for example, by calling a toll-free number or by being provided with a list of the telephone numbers of lawyers who act as duty counsel).” 18 That mandate undercuts a tactic used by interrogators in this country that emasculates the meaning and the spirit of the Miranda rule: After reciting the Miranda warning, and in the instant before the person can respond that they want to talk to a lawyer, the interrogator injects that they can talk and anytime the suspect wants to stop they will do so. Experienced interrogators report that psychological trick is very effective at inducing a suspect to begin talking – even though the person’s actual intent is to exercise their right to consult with a lawyer before waiving their right to remain silent.

In the 1994 case of R. v Bartle (3 S.C.R. 173), the Canadian Supreme Court amplified on the reason for the Brydges rule:

“a person who is ‘detained’ … is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty.  … [B]ecause the purpose of the right to counsel … is about providing detainees with meaningful choices, it follows that a detainee should be fully advised of available services before being expected to assert that right, particularly given that subsequent duties on the state are not triggered unless and until a detainee expresses a desire to contact counsel. … [T]he purpose of the right to counsel would be defeated if police were only required to advise detainees of the existence and availability of legal aid after some triggering of the right by the detainee.” 19

Yet the very process decried by the Canadian Supreme Court in Bartle as ineffective at protecting a person’s rights, is the norm in this country. The consequence is a plethora of false confessions.

It was proposed in a 1996 article by Grace Ashikawa, R. v. Brydges: The Inadequacy of Miranda and a Proposal To Adopt Canada’s Rule Calling For The Right To Immediate Free Counsel, that the U. S. follow in the footsteps of Canada by adopting a rule that people who are detained or arrested shall automatically be provided by the police with contact information (including toll free numbers when applicable), so they can immediately consult with a lawyer prior to making any decision about whether or not to waive their right to remain silent. 20 Although such a rule would fall short of Ogletree’s proposal, it would go far beyond the Miranda rule by contributing to short-circuiting the subtle and not so subtle physical and/or psychological pressures that are exerted on a detained or arrested person in this country to waive his or her right against self-incrimination without having a meaningful opportunity to consult with a lawyer. As Ogletree pointed out in Are Confessions Really Good For the Soul?, police interrogators are trained to use techniques that can cause a person to ‘involuntarily, unknowingly and unintelligently’ waive their right to remain silent and consult with a lawyer. 21

The importance of requiring pre-interrogation attorney consultation is underscored by Drizin and Leo’s finding that even “cognitively and intellectually normal individuals” are susceptible to falsely confessing when subjected to standard interrogation techniques. 22 That a large majority of suspects succumb to police psychological tactics is supported by Professor Leo’s report in a previous article, Miranda’s Revenge (1996), that 81% of the 182 suspects he observed being interrogated waived their right to remain silent and consult with a lawyer. 23 Leo’s real-world finding that a large percentage of people waive their rights was corroborated by an academic study involving 72 “subjects” (32 men and 40 women). Those participants were randomly assigned the role of either “stealing” or not “steal” $100 from a drawer. When subjected to standard interrogation techniques, 81% of the innocent people waived their rights, while only 36% of those who “stole” the $100 waived their rights. Psychology Professors Saul Kassin and Rebecca Norwick conducted the study. They wrote about its results in Why People Waive Their Miranda Right, published in April 2004 in the journal Law and Human Behavior. 24 Thus both Leo’s real-world findings and Kassin and Norwick’s academic findings suggest that an interrogated suspect who is actually innocent naively believes their innocence will protect him or her from saying something incriminatory. An innocent person is consequently very likely to submit to what they don’t understand is a full-scale criminal interrogation by experts trained in techniques proven to elicit a confession. Unfortunately those techniques are indiscriminate in their ability to extract a false confession from an innocent person as easy as, or perhaps easier than a valid one from a guilty person.

Although Drizin and Leo don’t indicate in their article that they intended to do so, its documentation of the prevalence of false confessions by people who were induced to waive their right to remain silent provides empirical evidence that Miranda only created the appearance of protecting important rights, while actually leaving them open to being routinely emasculated by the police. Thus, their article provides scholarly confirmation that Miranda has been a failure at protecting the right against self-incrimination of a suspect presumed under the law to be innocent - and who all too often is in fact innocent – while exposing as unfounded, the claim of Miranda’s critics that it impairs law enforcement efforts to secure a confession.

Drizin and Leo have consequently provided solid evidence that reliance on physically and/or psychologically coercive interrogation techniques is not only inhumane – which the Supreme Court acknowledged over 60 years ago – but that they produce information of questionable or even zero practical value – which the Court recognized almost 40 years ago.

The known susceptibility of a lone person to an authority figure’s suggested course of action is a compelling reason to bar exposure of a person - who is legally presumed to be innocent - to an interrogator without prior and ongoing access to counsel. (See on page 18, the accompanying article, 69% of Innocent People in Experiment Signed False Confession.)
However The Problem of False Confessions in the Post-DNA World clearly demonstrates that in spite of that knowledge being known for many decades - neither the Supreme Court nor Congress has done anything to ensure the effective protection of an interrogated person’s right to remain silent and consult with a lawyer - that would not only reduce the incidence of false confessions, but convey the importance of respecting those rights by law enforcement officers, prosecutors and judges.


The research underlying The Problem of False Confessions in the Post-DNA World has importance beyond what it reveals about the unreliable results that can be expected from the interrogation techniques used on criminal suspects in this country. There has been worldwide reporting about the coercive interrogation methods used at U.S. detention facilities in Guantanamo Bay and other places. The information in the article also supports the supposition that those techniques can be expected to result in any number of false admissions of guilt, or the elicitation of other forms of inaccurate information.

Thus the condemnation of coercive techniques tantamount to torture in any circumstance by the United Nations’ Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 25 and the Geneva Convention’s barring of torture of combatants or civilians during an armed conflict 26 are more than an application of humane treatment to a vulnerable person, but they are consistent with the practical recognition that torture is impractical as a reliable information gathering technique.

1 Miranda v. Arizona, 384 U.S. 436, 445 (1966)
2 Brown v. Mississippi, 297 U.S. 278 (1936); 1936.SCT.40147, ¶ 20 (versuslaw.com) (emphasis added).
3 Brown, 297 U.S. 278; 1936.SCT.40147, ¶ 26 (versuslaw.com).
4 Chambers v. Florida, 309 U.S. 227, 239-241 (1940)
5 Miranda, 384 U.S. 436 at 446.
6 Miranda, 384 U.S. at 447-448 (“Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented.” Id. at 448]
7 Miranda, 384 U.S. at 447.
8 Miranda, 384 U.S. at 465-466.
9 Miranda, 384 U.S. at 444.
10 Are Confessions Really Good For the Soul?: A Proposal To Mirandize Miranda, Charles J. Ogletree, 100 Harvard L. Rev 1826 (1987), at 1827-1829.
11 You have the Right to Remain Silent, Patrick A. Malone, American Scholar, Summer, 1986, pp. 367-380.
12 The Problem of False Confessions in the Post-DNA World, Drizin, Steven A. and Richard A. Leo. , 82 N.C. L. Rev. 891-1007 (2004).
13 State v. Miranda, 401 P.2d 721, 98 Ariz. 18, 1965.AZ.40322, ¶121 <http://www.versuslaw.com>
14 The acceptability of police lying during an interrogation has been analyzed in several articles. See e.g., Trust, Lies, and Interrogations, Margaret L. Paris, 3 Va. J. Soc. Policy & Law 3 (1995); and, Confessions Induced by Broken Government Promises, Professor Welsh S. White, 43 Duke L.J. 947 (1994).
15 The Problem of False Confessions in the Post-DNA World, supra, at 913.
16 Are Confessions Really Good For the Soul?, supra at 1830-1831.
17 R. v. Brydges, 1 S.C.R. 190 (1990).
18 Subsequent Decisions Of The Supreme Court Of Canada - A Review of Brydges Duty Counsel Services in Canada, 2.2, Department of Justice Canada website, http://canada.justice.gc.ca/en/ps/rs/rep/rr03_lars/rr03_lars_003A.html (last visited January 18, 2005)
19 R. v Bartle, 3 S.C.R. 173, at 300, 302 (emphasis added).
20 R. v. Brydges: The Inadequacy of Miranda and a Proposal To Adopt Canada’s Rule Calling For The Right To Immediate Free Counsel, Grace F. Ashikawa, Southwestern Journal of Law and Trade in the Americas, Vol. III, No. 1, 1996, pp. 245-268.
21 Are Confessions Really Good For the Soul?, supra, at 1827-1829.
22 The Problem of False Confessions in the Post-DNA World, supra, at 918.
23 Miranda’s revenge: Police interrogation as a confidence game, Richard A. Leo, Law and Society Review, 30, 259–288 (1996).
24 Why People Waive Their Miranda Rights: The Power of Innocence, Saul M. Kassin and Rebecca J. Norwick, Law and Human Behavior, Vol. 28, No. 2, April 2004, 211-221.
25 Adopted by General Assembly resolution 3452 (XXX) of 9 December 1975.
26 Torture is forbidden by the Geneva Conventions, both in cases of internal conflicts (Convention I, Art. 3, Sec. 1A), wounded combatants (Convention I, Art. 12), civilians in occupied territories (Convention IV, Art. 32), civilians in international conflicts (Protocol I, Art. 75, Sec. 2Ai) and civilians in internal conflicts (Protocol II, Art. 4, Sec. 2A).