False confessions and the constitution: Safeguards against untrustworthy confessions

Harvard Civil Rights-Civil Liberties Law Review

Volumn 32, Issue 1, 1997, Pages

  White, Welsh S ^a  

^a UNIVERSITY OF PITTSBURGH   (United States)

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EID: 6944248881     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (362)

1. Paul Frisman, Easy Confessions Make Tough Law, CONN. L. TRIB., Sept. 18, 1995, at 1.
2. For a complete examination of the Lapointe case, see CONVICTING THE INNOCENT: THE STORY OF A MURDER, A FALSE CONFESSION AND THE STRUGGLE TO FREE A "WRONG MAN" (Donald S. Connery ed., 1996) [hereinafter CONVICTING THE INNOCENT].
3. See 60 Minutes: Did he do it? (CBS television broadcast, June 30, 1996), available in WESTLAW 1996 WL 8064916, (observing that the police "hung fake evidence exhibits on the wall" including "DNA tests - positive; pubic hair - positive; fingerprints - positive"); see also State v. Lapointe, 678 A.2d 942, 949 n.16 (Conn. 1996) (discussing deceptive stratagems).
4. 60 Minutes, supra note 3.
5. For example, gloves found on the bed and on the floor of the crime scene were shown to be too large to fit Lapointe's hand. See id.
6. Two eyewitnesses stated they saw a tall man running from the scene of the crime. Lapointe is five feet two inches tall. See id.
7. See id; see also CONVICTING THE INNOCENT, supra note 2, at 22 (quoting the jury foreman as saying that "[t]he confession was at least 75 percent of it," and stating that the foreman "and others didn't believe Lapointe would confess so he could go to the bathroom or go home"). After recounting the story of Lapointe's case, Wallace identified people close to the case who believe in Lapointe's guilt and also those who are convinced of his innocence. The victim's family, including Lapointe's now ex-wife, believe he is guilty. Id. at 21. On the other hand, The Friends of Richard Lapointe, a group of about fifty people, are so convinced of his innocence that they have expended substantial resources to advocate and publicize his case. See 60 Minutes, supra note 3. This group includes authors Arthur Miller, William Styron, and Donald Connery. See Matthew Kauffman, Supreme Court Upholds Lapointe Conviction, HARTFORD COURANT, July 6, 1996, at A1.
8. See id; see also CONVICTING THE INNOCENT, supra note 2, at 22 (quoting the jury foreman as saying that "[t]he confession was at least 75 percent of it," and stating that the foreman "and others didn't believe Lapointe would confess so he could go to the bathroom or go home"). After recounting the story of Lapointe's case, Wallace identified people close to the case who believe in Lapointe's guilt and also those who are convinced of his innocence. The victim's family, including Lapointe's now ex-wife, believe he is guilty. Id. at 21. On the other hand, The Friends of Richard Lapointe, a group of about fifty people, are so convinced of his innocence that they have expended substantial resources to advocate and publicize his case. See 60 Minutes, supra note 3. This group includes authors Arthur Miller, William Styron, and Donald Connery. See Matthew Kauffman, Supreme Court Upholds Lapointe Conviction, HARTFORD COURANT, July 6, 1996, at A1.
9. 60 Minutes, supra note 3.
10. See Lapointe, 678 A.2d 947, 959-62. The court also rejected two other challenges to the confession's admissibility: the claim that the defendant did not knowingly and intelligently waive his Miranda rights before giving his incriminating statement, see id. at 947, 957-59 and the claim that introducing the defendant's statements to the police even though those statements were not electronically recorded violated the state constitution. The latter claim was summarily rejected. Id. at 962.
11. See id. at 961-62.
12. See id. at 960-61.
13. 479 U.S. 157 (1986).
14. Id. at 167.
15. See United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967).
16. See United States v. Bagley, 473 U.S. 667 (1985); Brady v. Maryland, 373 U.S. 83 (1963).
17. See Wardius v. Oregon, 412 U.S. 470 (1973).
18. In Stovall v. Denno, 388 U.S. 293 (1967), the Court held that only unnecessarily suggestive identification procedures are impermissible. In an emergency situation, where no other procedure is feasible, the police are permitted to obtain identification evidence through the use of a suggestive procedure. See Stovall, 388 U.S. at 302.
19. 384 U.S. 436 (1966).
20. See Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084 (1996); Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996) [hereinafter Cassell, Miranda's Social Costs]; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. REV. 500 (1996). For additional articles debating Miranda's impact on the confession rate, see Gerald M. Caplan, Questioning Miranda, 38 VAND. L. REV. 1417 (1985); Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 U.C.L.A. L. REV. 839 (1996); Richard Angelo Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621 (1996) [hereinafter Leo, Miranda Revisited]; George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 U.C.L.A. L. REV. 821 (1996); George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 U.C.L.A. L. REV. 933 (1996) [hereinafter Thomas, Plain Talk]; Welsh S. White, Defending Miranda: A Reply to Professor Caplan, 39 VAND. L. REV. 1 (1986); Paul G. Cassell, True Confessions About Miranda's Legacy, LEGAL TIMES, July 22, 1996, at 22; Stephen J. Schulhofer, Pointing in the Wrong Direction, LEGAL TIMES, Aug. 12, 1996, at 21; George C. Thomas III, Telling Half Truths, LEGAL TIMES, Aug. 12, 1996, at 20.
21. See Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084 (1996); Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996) [hereinafter Cassell, Miranda's Social Costs]; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. REV. 500 (1996). For additional articles debating Miranda's impact on the confession rate, see Gerald M. Caplan, Questioning Miranda, 38 VAND. L. REV. 1417 (1985); Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 U.C.L.A. L. REV. 839 (1996); Richard Angelo Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621 (1996) [hereinafter Leo, Miranda Revisited]; George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 U.C.L.A. L. REV. 821 (1996); George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 U.C.L.A. L. REV. 933 (1996) [hereinafter Thomas, Plain Talk]; Welsh S. White, Defending Miranda: A Reply to Professor Caplan, 39 VAND. L. REV. 1 (1986); Paul G. Cassell, True Confessions About Miranda's Legacy, LEGAL TIMES, July 22, 1996, at 22; Stephen J. Schulhofer, Pointing in the Wrong Direction, LEGAL TIMES, Aug. 12, 1996, at 21; George C. Thomas III, Telling Half Truths, LEGAL TIMES, Aug. 12, 1996, at 20.
22. See Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084 (1996); Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996) [hereinafter Cassell, Miranda's Social Costs]; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. REV. 500 (1996). For additional articles debating Miranda's impact on the confession rate, see Gerald M. Caplan, Questioning Miranda, 38 VAND. L. REV. 1417 (1985); Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 U.C.L.A. L. REV. 839 (1996); Richard Angelo Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621 (1996) [hereinafter Leo, Miranda Revisited]; George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 U.C.L.A. L. REV. 821 (1996); George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 U.C.L.A. L. REV. 933 (1996) [hereinafter Thomas, Plain Talk]; Welsh S. White, Defending Miranda: A Reply to Professor Caplan, 39 VAND. L. REV. 1 (1986); Paul G. Cassell, True Confessions About Miranda's Legacy, LEGAL TIMES, July 22, 1996, at 22; Stephen J. Schulhofer, Pointing in the Wrong Direction, LEGAL TIMES, Aug. 12, 1996, at 21; George C. Thomas III, Telling Half Truths, LEGAL TIMES, Aug. 12, 1996, at 20.
23. See Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084 (1996); Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996) [hereinafter Cassell, Miranda's Social Costs]; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. REV. 500 (1996). For additional articles debating Miranda's impact on the confession rate, see Gerald M. Caplan, Questioning Miranda, 38 VAND. L. REV. 1417 (1985); Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 U.C.L.A. L. REV. 839 (1996); Richard Angelo Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621 (1996) [hereinafter Leo, Miranda Revisited]; George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 U.C.L.A. L. REV. 821 (1996); George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 U.C.L.A. L. REV. 933 (1996) [hereinafter Thomas, Plain Talk]; Welsh S. White, Defending Miranda: A Reply to Professor Caplan, 39 VAND. L. REV. 1 (1986); Paul G. Cassell, True Confessions About Miranda's Legacy, LEGAL TIMES, July 22, 1996, at 22; Stephen J. Schulhofer, Pointing in the Wrong Direction, LEGAL TIMES, Aug. 12, 1996, at 21; George C. Thomas III, Telling Half Truths, LEGAL TIMES, Aug. 12, 1996, at 20.
24. See Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084 (1996); Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996) [hereinafter Cassell, Miranda's Social Costs]; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. REV. 500 (1996). For additional articles debating Miranda's impact on the confession rate, see Gerald M. Caplan, Questioning Miranda, 38 VAND. L. REV. 1417 (1985); Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 U.C.L.A. L. REV. 839 (1996); Richard Angelo Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621 (1996) [hereinafter Leo, Miranda Revisited]; George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 U.C.L.A. L. REV. 821 (1996); George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 U.C.L.A. L. REV. 933 (1996) [hereinafter Thomas, Plain Talk]; Welsh S. White, Defending Miranda: A Reply to Professor Caplan, 39 VAND. L. REV. 1 (1986); Paul G. Cassell, True Confessions About Miranda's Legacy, LEGAL TIMES, July 22, 1996, at 22; Stephen J. Schulhofer, Pointing in the Wrong Direction, LEGAL TIMES, Aug. 12, 1996, at 21; George C. Thomas III, Telling Half Truths, LEGAL TIMES, Aug. 12, 1996, at 20.
25. See Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084 (1996); Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996) [hereinafter Cassell, Miranda's Social Costs]; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. REV. 500 (1996). For additional articles debating Miranda's impact on the confession rate, see Gerald M. Caplan, Questioning Miranda, 38 VAND. L. REV. 1417 (1985); Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 U.C.L.A. L. REV. 839 (1996); Richard Angelo Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621 (1996) [hereinafter Leo, Miranda Revisited]; George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 U.C.L.A. L. REV. 821 (1996); George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 U.C.L.A. L. REV. 933 (1996) [hereinafter Thomas, Plain Talk]; Welsh S. White, Defending Miranda: A Reply to Professor Caplan, 39 VAND. L. REV. 1 (1986); Paul G. Cassell, True Confessions About Miranda's Legacy, LEGAL TIMES, July 22, 1996, at 22; Stephen J. Schulhofer, Pointing in the Wrong Direction, LEGAL TIMES, Aug. 12, 1996, at 21; George C. Thomas III, Telling Half Truths, LEGAL TIMES, Aug. 12, 1996, at 20.
26. See Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084 (1996); Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996) [hereinafter Cassell, Miranda's Social Costs]; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. REV. 500 (1996). For additional articles debating Miranda's impact on the confession rate, see Gerald M. Caplan, Questioning Miranda, 38 VAND. L. REV. 1417 (1985); Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 U.C.L.A. L. REV. 839 (1996); Richard Angelo Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621 (1996) [hereinafter Leo, Miranda Revisited]; George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 U.C.L.A. L. REV. 821 (1996); George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 U.C.L.A. L. REV. 933 (1996) [hereinafter Thomas, Plain Talk]; Welsh S. White, Defending Miranda: A Reply to Professor Caplan, 39 VAND. L. REV. 1 (1986); Paul G. Cassell, True Confessions About Miranda's Legacy, LEGAL TIMES, July 22, 1996, at 22; Stephen J. Schulhofer, Pointing in the Wrong Direction, LEGAL TIMES, Aug. 12, 1996, at 21; George C. Thomas III, Telling Half Truths, LEGAL TIMES, Aug. 12, 1996, at 20.
27. See Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084 (1996); Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996) [hereinafter Cassell, Miranda's Social Costs]; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. REV. 500 (1996). For additional articles debating Miranda's impact on the confession rate, see Gerald M. Caplan, Questioning Miranda, 38 VAND. L. REV. 1417 (1985); Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 U.C.L.A. L. REV. 839 (1996); Richard Angelo Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621 (1996) [hereinafter Leo, Miranda Revisited]; George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 U.C.L.A. L. REV. 821 (1996); George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 U.C.L.A. L. REV. 933 (1996) [hereinafter Thomas, Plain Talk]; Welsh S. White, Defending Miranda: A Reply to Professor Caplan, 39 VAND. L. REV. 1 (1986); Paul G. Cassell, True Confessions About Miranda's Legacy, LEGAL TIMES, July 22, 1996, at 22; Stephen J. Schulhofer, Pointing in the Wrong Direction, LEGAL TIMES, Aug. 12, 1996, at 21; George C. Thomas III, Telling Half Truths, LEGAL TIMES, Aug. 12, 1996, at 20.
28. See Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084 (1996); Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996) [hereinafter Cassell, Miranda's Social Costs]; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. REV. 500 (1996). For additional articles debating Miranda's impact on the confession rate, see Gerald M. Caplan, Questioning Miranda, 38 VAND. L. REV. 1417 (1985); Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 U.C.L.A. L. REV. 839 (1996); Richard Angelo Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621 (1996) [hereinafter Leo, Miranda Revisited]; George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 U.C.L.A. L. REV. 821 (1996); George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 U.C.L.A. L. REV. 933 (1996) [hereinafter Thomas, Plain Talk]; Welsh S. White, Defending Miranda: A Reply to Professor Caplan, 39 VAND. L. REV. 1 (1986); Paul G. Cassell, True Confessions About Miranda's Legacy, LEGAL TIMES, July 22, 1996, at 22; Stephen J. Schulhofer, Pointing in the Wrong Direction, LEGAL TIMES, Aug. 12, 1996, at 21; George C. Thomas III, Telling Half Truths, LEGAL TIMES, Aug. 12, 1996, at 20.
29. See Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084 (1996); Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996) [hereinafter Cassell, Miranda's Social Costs]; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. REV. 500 (1996). For additional articles debating Miranda's impact on the confession rate, see Gerald M. Caplan, Questioning Miranda, 38 VAND. L. REV. 1417 (1985); Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 U.C.L.A. L. REV. 839 (1996); Richard Angelo Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621 (1996) [hereinafter Leo, Miranda Revisited]; George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 U.C.L.A. L. REV. 821 (1996); George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 U.C.L.A. L. REV. 933 (1996) [hereinafter Thomas, Plain Talk]; Welsh S. White, Defending Miranda: A Reply to Professor Caplan, 39 VAND. L. REV. 1 (1986); Paul G. Cassell, True Confessions About Miranda's Legacy, LEGAL TIMES, July 22, 1996, at 22; Stephen J. Schulhofer, Pointing in the Wrong Direction, LEGAL TIMES, Aug. 12, 1996, at 21; George C. Thomas III, Telling Half Truths, LEGAL TIMES, Aug. 12, 1996, at 20.
30. See Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084 (1996); Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996) [hereinafter Cassell, Miranda's Social Costs]; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. REV. 500 (1996). For additional articles debating Miranda's impact on the confession rate, see Gerald M. Caplan, Questioning Miranda, 38 VAND. L. REV. 1417 (1985); Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 U.C.L.A. L. REV. 839 (1996); Richard Angelo Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621 (1996) [hereinafter Leo, Miranda Revisited]; George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 U.C.L.A. L. REV. 821 (1996); George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 U.C.L.A. L. REV. 933 (1996) [hereinafter Thomas, Plain Talk]; Welsh S. White, Defending Miranda: A Reply to Professor Caplan, 39 VAND. L. REV. 1 (1986); Paul G. Cassell, True Confessions About Miranda's Legacy, LEGAL TIMES, July 22, 1996, at 22; Stephen J. Schulhofer, Pointing in the Wrong Direction, LEGAL TIMES, Aug. 12, 1996, at 21; George C. Thomas III, Telling Half Truths, LEGAL TIMES, Aug. 12, 1996, at 20.
31. See Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084 (1996); Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996) [hereinafter Cassell, Miranda's Social Costs]; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. REV. 500 (1996). For additional articles debating Miranda's impact on the confession rate, see Gerald M. Caplan, Questioning Miranda, 38 VAND. L. REV. 1417 (1985); Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 U.C.L.A. L. REV. 839 (1996); Richard Angelo Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621 (1996) [hereinafter Leo, Miranda Revisited]; George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 U.C.L.A. L. REV. 821 (1996); George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 U.C.L.A. L. REV. 933 (1996) [hereinafter Thomas, Plain Talk]; Welsh S. White, Defending Miranda: A Reply to Professor Caplan, 39 VAND. L. REV. 1 (1986); Paul G. Cassell, True Confessions About Miranda's Legacy, LEGAL TIMES, July 22, 1996, at 22; Stephen J. Schulhofer, Pointing in the Wrong Direction, LEGAL TIMES, Aug. 12, 1996, at 21; George C. Thomas III, Telling Half Truths, LEGAL TIMES, Aug. 12, 1996, at 20.
32. See Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084 (1996); Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996) [hereinafter Cassell, Miranda's Social Costs]; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. REV. 500 (1996). For additional articles debating Miranda's impact on the confession rate, see Gerald M. Caplan, Questioning Miranda, 38 VAND. L. REV. 1417 (1985); Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 U.C.L.A. L. REV. 839 (1996); Richard Angelo Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621 (1996) [hereinafter Leo, Miranda Revisited]; George C. Thomas III, Is Miranda a Real-World Failure? A Plea for More (and Better) Empirical Evidence, 43 U.C.L.A. L. REV. 821 (1996); George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 U.C.L.A. L. REV. 933 (1996) [hereinafter Thomas, Plain Talk]; Welsh S. White, Defending Miranda: A Reply to Professor Caplan, 39 VAND. L. REV. 1 (1986); Paul G. Cassell, True Confessions About Miranda's Legacy, LEGAL TIMES, July 22, 1996, at 22; Stephen J. Schulhofer, Pointing in the Wrong Direction, LEGAL TIMES, Aug. 12, 1996, at 21; George C. Thomas III, Telling Half Truths, LEGAL TIMES, Aug. 12, 1996, at 20.
33. Cassell, Miranda's Social Costs, supra note 19, at 488. Professor Cassell, a staunch advocate of replacing Miranda with less restrictive constitutional safeguards, refers to the "more esoteric problem of false confessions induced by noncoercive police questioning." Id.
34. George E. Dix, Federal Constitutional Confession Law: The 1986 and 1987 Supreme Court Terms, 67 TEX. L. REV. 231, 275 (1988) [hereinafter Dix, Confesuon Law]. Dix continues that "[a]lthough intuition strongly suggests that the reduction in overt brutality by law enforcement officers has led to a decrease in coerced and hence unreliable confessions, intuition is probably not a useful basis tor considering the effects of more subtle interrogation techniques." Id. at 276.
35. George E. Dix, Federal Constitutional Confession Law: The 1986 and 1987 Supreme Court Terms, 67 TEX. L. REV. 231, 275 (1988) [hereinafter Dix, Confesuon Law]. Dix continues that "[a]lthough intuition strongly suggests that the reduction in overt brutality by law enforcement officers has led to a decrease in coerced and hence unreliable confessions, intuition is probably not a useful basis tor considering the effects of more subtle interrogation techniques." Id. at 276.
36. See generally CRAIG BRADLEY, THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION 37 (1993); Richard Angelo Leo, Police Interrogation in America: A Study of Violence, Civility and Social Change 66 (1994) (unpublished Ph.D. dissertation, University of California at Berkeley) (on file with Harvard Civil Rights-Civil Liberties Law Review) [hereinafter Leo, Police Interrogation].
37. See generally CRAIG BRADLEY, THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION 37 (1993); Richard Angelo Leo, Police Interrogation in America: A Study of Violence, Civility and Social Change 66 (1994) (unpublished Ph.D. dissertation, University of California at Berkeley) (on file with Harvard Civil Rights-Civil Liberties Law Review) [hereinafter Leo, Police Interrogation].
38. 3 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 867, at 359 (3d ed. 1940).
39. FRED E. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS (3d ed. 1986) [hereinafter INBAU ET AL.].
40. See Brian C. Jayne & Joseph P. Buckley, Criminal Interrogation Techniques on Trial, PROSECUTOR: J. NAT'L DISTRICT ATT'YS ASS'N, Fall 1991, at 23.
41. See, e.g., CONVICTING THE INNOCENT, supra note 2 (claiming that Richard Lapointe, a brain-damaged defendant who was convicted of the murder of his wife's grandmother, falsely confessed to the murder following several hours of intensive police interrogation); Sharon Cohen, "Ringmasters" Unlock Truth, Free Man who Confessed to Murder, L.A. TIMES, Mar. 31, 1996, at A2 (recounting case of Johnny Lee Wilson, a retarded defendant who was convicted of murder after falsely confessing to a crime that subsequent evidence showed he did not commit). See generally GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 235-40, 260-73 (1992) (analyzing several British cases and one American case in which defendants were charged or convicted on the basis of confessions later shown to be false); Richard Ofshe, Coerced Confessions: The Logic of Seemingly Irrational Action, 6 CULTIC STUD. J. 1 (1989) [hereinafter Ofshe, Coerced Confessions] (analyzing three American cases and one English case in which police interrogation elicited false confessions); Richard Ofshe, Inadvertent Hypnosis During Interrogation, 40 INT'L J. CLINICAL & EXPERIMENTAL HYPNOSIS 125 (1992) [hereinafter Ofshe, Hypnosis] (conducting in-depth analysis of Paul Ingram's confessions to numerous acts of rape and other crimes; although Ingram's conviction stemming from his confessions has not been vacated, the author concludes his confession are false); Ralph Underwager & Hollida Wakefield, False Confessions and Police Deception, 10 AM. J. FORENSIC PSYCHOL. 49 (1992) (recounting case of American army sergeant who, following an interrogation, falsely confessed to sexually abusing a boy); Roger Parloff, False Confessions, AM. LAW., May 1993, at 58 (recounting case in which four men falsely confessed to the murder of nine people at a Buddhist temple); Richard Angelo Leo, False Memory, False Confessions: When Police Interrogators Go Wrong (May 1995) (unpublished manuscript, on file with the Harvard Civil Rights-Civil Liberties Law Review) (discussing nine American cases in which the author concludes that police interrogation led custodial suspects to confess to crimes they did not commit) [hereinafter Leo, False Confessions].
42. See, e.g., CONVICTING THE INNOCENT, supra note 2 (claiming that Richard Lapointe, a brain-damaged defendant who was convicted of the murder of his wife's grandmother, falsely confessed to the murder following several hours of intensive police interrogation); Sharon Cohen, "Ringmasters" Unlock Truth, Free Man who Confessed to Murder, L.A. TIMES, Mar. 31, 1996, at A2 (recounting case of Johnny Lee Wilson, a retarded defendant who was convicted of murder after falsely confessing to a crime that subsequent evidence showed he did not commit). See generally GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 235-40, 260-73 (1992) (analyzing several British cases and one American case in which defendants were charged or convicted on the basis of confessions later shown to be false); Richard Ofshe, Coerced Confessions: The Logic of Seemingly Irrational Action, 6 CULTIC STUD. J. 1 (1989) [hereinafter Ofshe, Coerced Confessions] (analyzing three American cases and one English case in which police interrogation elicited false confessions); Richard Ofshe, Inadvertent Hypnosis During Interrogation, 40 INT'L J. CLINICAL & EXPERIMENTAL HYPNOSIS 125 (1992) [hereinafter Ofshe, Hypnosis] (conducting in-depth analysis of Paul Ingram's confessions to numerous acts of rape and other crimes; although Ingram's conviction stemming from his confessions has not been vacated, the author concludes his confession are false); Ralph Underwager & Hollida Wakefield, False Confessions and Police Deception, 10 AM. J. FORENSIC PSYCHOL. 49 (1992) (recounting case of American army sergeant who, following an interrogation, falsely confessed to sexually abusing a boy); Roger Parloff, False Confessions, AM. LAW., May 1993, at 58 (recounting case in which four men falsely confessed to the murder of nine people at a Buddhist temple); Richard Angelo Leo, False Memory, False Confessions: When Police Interrogators Go Wrong (May 1995) (unpublished manuscript, on file with the Harvard Civil Rights-Civil Liberties Law Review) (discussing nine American cases in which the author concludes that police interrogation led custodial suspects to confess to crimes they did not commit) [hereinafter Leo, False Confessions].
43. See, e.g., CONVICTING THE INNOCENT, supra note 2 (claiming that Richard Lapointe, a brain-damaged defendant who was convicted of the murder of his wife's grandmother, falsely confessed to the murder following several hours of intensive police interrogation); Sharon Cohen, "Ringmasters" Unlock Truth, Free Man who Confessed to Murder, L.A. TIMES, Mar. 31, 1996, at A2 (recounting case of Johnny Lee Wilson, a retarded defendant who was convicted of murder after falsely confessing to a crime that subsequent evidence showed he did not commit). See generally GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 235-40, 260-73 (1992) (analyzing several British cases and one American case in which defendants were charged or convicted on the basis of confessions later shown to be false); Richard Ofshe, Coerced Confessions: The Logic of Seemingly Irrational Action, 6 CULTIC STUD. J. 1 (1989) [hereinafter Ofshe, Coerced Confessions] (analyzing three American cases and one English case in which police interrogation elicited false confessions); Richard Ofshe, Inadvertent Hypnosis During Interrogation, 40 INT'L J. CLINICAL & EXPERIMENTAL HYPNOSIS 125 (1992) [hereinafter Ofshe, Hypnosis] (conducting in-depth analysis of Paul Ingram's confessions to numerous acts of rape and other crimes; although Ingram's conviction stemming from his confessions has not been vacated, the author concludes his confession are false); Ralph Underwager & Hollida Wakefield, False Confessions and Police Deception, 10 AM. J. FORENSIC PSYCHOL. 49 (1992) (recounting case of American army sergeant who, following an interrogation, falsely confessed to sexually abusing a boy); Roger Parloff, False Confessions, AM. LAW., May 1993, at 58 (recounting case in which four men falsely confessed to the murder of nine people at a Buddhist temple); Richard Angelo Leo, False Memory, False Confessions: When Police Interrogators Go Wrong (May 1995) (unpublished manuscript, on file with the Harvard Civil Rights-Civil Liberties Law Review) (discussing nine American cases in which the author concludes that police interrogation led custodial suspects to confess to crimes they did not commit) [hereinafter Leo, False Confessions].
44. See, e.g., CONVICTING THE INNOCENT, supra note 2 (claiming that Richard Lapointe, a brain-damaged defendant who was convicted of the murder of his wife's grandmother, falsely confessed to the murder following several hours of intensive police interrogation); Sharon Cohen, "Ringmasters" Unlock Truth, Free Man who Confessed to Murder, L.A. TIMES, Mar. 31, 1996, at A2 (recounting case of Johnny Lee Wilson, a retarded defendant who was convicted of murder after falsely confessing to a crime that subsequent evidence showed he did not commit). See generally GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 235-40, 260-73 (1992) (analyzing several British cases and one American case in which defendants were charged or convicted on the basis of confessions later shown to be false); Richard Ofshe, Coerced Confessions: The Logic of Seemingly Irrational Action, 6 CULTIC STUD. J. 1 (1989) [hereinafter Ofshe, Coerced Confessions] (analyzing three American cases and one English case in which police interrogation elicited false confessions); Richard Ofshe, Inadvertent Hypnosis During Interrogation, 40 INT'L J. CLINICAL & EXPERIMENTAL HYPNOSIS 125 (1992) [hereinafter Ofshe, Hypnosis] (conducting in-depth analysis of Paul Ingram's confessions to numerous acts of rape and other crimes; although Ingram's conviction stemming from his confessions has not been vacated, the author concludes his confession are false); Ralph Underwager & Hollida Wakefield, False Confessions and Police Deception, 10 AM. J. FORENSIC PSYCHOL. 49 (1992) (recounting case of American army sergeant who, following an interrogation, falsely confessed to sexually abusing a boy); Roger Parloff, False Confessions, AM. LAW., May 1993, at 58 (recounting case in which four men falsely confessed to the murder of nine people at a Buddhist temple); Richard Angelo Leo, False Memory, False Confessions: When Police Interrogators Go Wrong (May 1995) (unpublished manuscript, on file with the Harvard Civil Rights-Civil Liberties Law Review) (discussing nine American cases in which the author concludes that police interrogation led custodial suspects to confess to crimes they did not commit) [hereinafter Leo, False Confessions].
45. See, e.g., CONVICTING THE INNOCENT, supra note 2 (claiming that Richard Lapointe, a brain-damaged defendant who was convicted of the murder of his wife's grandmother, falsely confessed to the murder following several hours of intensive police interrogation); Sharon Cohen, "Ringmasters" Unlock Truth, Free Man who Confessed to Murder, L.A. TIMES, Mar. 31, 1996, at A2 (recounting case of Johnny Lee Wilson, a retarded defendant who was convicted of murder after falsely confessing to a crime that subsequent evidence showed he did not commit). See generally GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 235-40, 260-73 (1992) (analyzing several British cases and one American case in which defendants were charged or convicted on the basis of confessions later shown to be false); Richard Ofshe, Coerced Confessions: The Logic of Seemingly Irrational Action, 6 CULTIC STUD. J. 1 (1989) [hereinafter Ofshe, Coerced Confessions] (analyzing three American cases and one English case in which police interrogation elicited false confessions); Richard Ofshe, Inadvertent Hypnosis During Interrogation, 40 INT'L J. CLINICAL & EXPERIMENTAL HYPNOSIS 125 (1992) [hereinafter Ofshe, Hypnosis] (conducting in-depth analysis of Paul Ingram's confessions to numerous acts of rape and other crimes; although Ingram's conviction stemming from his confessions has not been vacated, the author concludes his confession are false); Ralph Underwager & Hollida Wakefield, False Confessions and Police Deception, 10 AM. J. FORENSIC PSYCHOL. 49 (1992) (recounting case of American army sergeant who, following an interrogation, falsely confessed to sexually abusing a boy); Roger Parloff, False Confessions, AM. LAW., May 1993, at 58 (recounting case in which four men falsely confessed to the murder of nine people at a Buddhist temple); Richard Angelo Leo, False Memory, False Confessions: When Police Interrogators Go Wrong (May 1995) (unpublished manuscript, on file with the Harvard Civil Rights-Civil Liberties Law Review) (discussing nine American cases in which the author concludes that police interrogation led custodial suspects to confess to crimes they did not commit) [hereinafter Leo, False Confessions].
46. See, e.g., CONVICTING THE INNOCENT, supra note 2 (claiming that Richard Lapointe, a brain-damaged defendant who was convicted of the murder of his wife's grandmother, falsely confessed to the murder following several hours of intensive police interrogation); Sharon Cohen, "Ringmasters" Unlock Truth, Free Man who Confessed to Murder, L.A. TIMES, Mar. 31, 1996, at A2 (recounting case of Johnny Lee Wilson, a retarded defendant who was convicted of murder after falsely confessing to a crime that subsequent evidence showed he did not commit). See generally GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 235-40, 260-73 (1992) (analyzing several British cases and one American case in which defendants were charged or convicted on the basis of confessions later shown to be false); Richard Ofshe, Coerced Confessions: The Logic of Seemingly Irrational Action, 6 CULTIC STUD. J. 1 (1989) [hereinafter Ofshe, Coerced Confessions] (analyzing three American cases and one English case in which police interrogation elicited false confessions); Richard Ofshe, Inadvertent Hypnosis During Interrogation, 40 INT'L J. CLINICAL & EXPERIMENTAL HYPNOSIS 125 (1992) [hereinafter Ofshe, Hypnosis] (conducting in-depth analysis of Paul Ingram's confessions to numerous acts of rape and other crimes; although Ingram's conviction stemming from his confessions has not been vacated, the author concludes his confession are false); Ralph Underwager & Hollida Wakefield, False Confessions and Police Deception, 10 AM. J. FORENSIC PSYCHOL. 49 (1992) (recounting case of American army sergeant who, following an interrogation, falsely confessed to sexually abusing a boy); Roger Parloff, False Confessions, AM. LAW., May 1993, at 58 (recounting case in which four men falsely confessed to the murder of nine people at a Buddhist temple); Richard Angelo Leo, False Memory, False Confessions: When Police Interrogators Go Wrong (May 1995) (unpublished manuscript, on file with the Harvard Civil Rights-Civil Liberties Law Review) (discussing nine American cases in which the author concludes that police interrogation led custodial suspects to confess to crimes they did not commit) [hereinafter Leo, False Confessions].
47. See, e.g., CONVICTING THE INNOCENT, supra note 2 (claiming that Richard Lapointe, a brain-damaged defendant who was convicted of the murder of his wife's grandmother, falsely confessed to the murder following several hours of intensive police interrogation); Sharon Cohen, "Ringmasters" Unlock Truth, Free Man who Confessed to Murder, L.A. TIMES, Mar. 31, 1996, at A2 (recounting case of Johnny Lee Wilson, a retarded defendant who was convicted of murder after falsely confessing to a crime that subsequent evidence showed he did not commit). See generally GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 235-40, 260-73 (1992) (analyzing several British cases and one American case in which defendants were charged or convicted on the basis of confessions later shown to be false); Richard Ofshe, Coerced Confessions: The Logic of Seemingly Irrational Action, 6 CULTIC STUD. J. 1 (1989) [hereinafter Ofshe, Coerced Confessions] (analyzing three American cases and one English case in which police interrogation elicited false confessions); Richard Ofshe, Inadvertent Hypnosis During Interrogation, 40 INT'L J. CLINICAL & EXPERIMENTAL HYPNOSIS 125 (1992) [hereinafter Ofshe, Hypnosis] (conducting in-depth analysis of Paul Ingram's confessions to numerous acts of rape and other crimes; although Ingram's conviction stemming from his confessions has not been vacated, the author concludes his confession are false); Ralph Underwager & Hollida Wakefield, False Confessions and Police Deception, 10 AM. J. FORENSIC PSYCHOL. 49 (1992) (recounting case of American army sergeant who, following an interrogation, falsely confessed to sexually abusing a boy); Roger Parloff, False Confessions, AM. LAW., May 1993, at 58 (recounting case in which four men falsely confessed to the murder of nine people at a Buddhist temple); Richard Angelo Leo, False Memory, False Confessions: When Police Interrogators Go Wrong (May 1995) (unpublished manuscript, on file with the Harvard Civil Rights-Civil Liberties Law Review) (discussing nine American cases in which the author concludes that police interrogation led custodial suspects to confess to crimes they did not commit) [hereinafter Leo, False Confessions].
48. See, e.g., CONVICTING THE INNOCENT, supra note 2 (claiming that Richard Lapointe, a brain-damaged defendant who was convicted of the murder of his wife's grandmother, falsely confessed to the murder following several hours of intensive police interrogation); Sharon Cohen, "Ringmasters" Unlock Truth, Free Man who Confessed to Murder, L.A. TIMES, Mar. 31, 1996, at A2 (recounting case of Johnny Lee Wilson, a retarded defendant who was convicted of murder after falsely confessing to a crime that subsequent evidence showed he did not commit). See generally GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 235-40, 260-73 (1992) (analyzing several British cases and one American case in which defendants were charged or convicted on the basis of confessions later shown to be false); Richard Ofshe, Coerced Confessions: The Logic of Seemingly Irrational Action, 6 CULTIC STUD. J. 1 (1989) [hereinafter Ofshe, Coerced Confessions] (analyzing three American cases and one English case in which police interrogation elicited false confessions); Richard Ofshe, Inadvertent Hypnosis During Interrogation, 40 INT'L J. CLINICAL & EXPERIMENTAL HYPNOSIS 125 (1992) [hereinafter Ofshe, Hypnosis] (conducting in-depth analysis of Paul Ingram's confessions to numerous acts of rape and other crimes; although Ingram's conviction stemming from his confessions has not been vacated, the author concludes his confession are false); Ralph Underwager & Hollida Wakefield, False Confessions and Police Deception, 10 AM. J. FORENSIC PSYCHOL. 49 (1992) (recounting case of American army sergeant who, following an interrogation, falsely confessed to sexually abusing a boy); Roger Parloff, False Confessions, AM. LAW., May 1993, at 58 (recounting case in which four men falsely confessed to the murder of nine people at a Buddhist temple); Richard Angelo Leo, False Memory, False Confessions: When Police Interrogators Go Wrong (May 1995) (unpublished manuscript, on file with the Harvard Civil Rights-Civil Liberties Law Review) (discussing nine American cases in which the author concludes that police interrogation led custodial suspects to confess to crimes they did not commit) [hereinafter Leo, False Confessions].
49. GUDJONSSON, supra note 27, at 228.
50. GUDJONSSON, supra note 26, at 228. A third type of false confession, voluntary false confessions, occurs when individuals, without any prompting from the police, confess to crimes they did not commit. See GUDJONSSON, supra note 26, at 226-27. Since voluntary false confessions are not induced by police interrogation, they are not considered in this Article.
51. See, e.g., Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21, 57 tbl.6 (1987) (finding "coerced or other false confession[s]" responsible for erroneous convictions in 49 out of 350 miscarriages of justice in potentially capital cases); C assell, Miranda's Social Costs, supra note 20, at 481 (extrapolating from data presented in various sources, including Bedau & Radelet, supra, to estimate "around 35 wrongful convictions from false confessions each year"). Because Bedau & Radelet's data include older cases in which confessions were coerced through force or threat of force, the data do not directly address the question of how often miscarriages of justice occur as a result of confessions stemming from standard interrogation methods. For a comment on some of the problems with Cassell's estimate as to the number of mistaken convictions stemming from false confessions, see infra note 190.
52. See, e.g., Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21, 57 tbl.6 (1987) (finding "coerced or other false confession[s]" responsible for erroneous convictions in 49 out of 350 miscarriages of justice in potentially capital cases); C assell, Miranda's Social Costs, supra note 20, at 481 (extrapolating from data presented in various sources, including Bedau & Radelet, supra, to estimate "around 35 wrongful convictions from false confessions each year"). Because Bedau & Radelet's data include older cases in which confessions were coerced through force or threat of force, the data do not directly address the question of how often miscarriages of justice occur as a result of confessions stemming from standard interrogation methods. For a comment on some of the problems with Cassell's estimate as to the number of mistaken convictions stemming from false confessions, see infra note 190.
53. There are several reasons why it is difficult to determine how often standard (or generally employed) interrogation methods produce a false confession. First, although psychologists have presented detailed analyses of several cases in which standard interrogation methods probably led to false confessions, see, e.g., Leo, False Confessions, supra note 27; Ofshe, Coerced Confessions, supra note 27, no systematic effort has been made to collect all recent American cases in which such confessions occurred. Second, determining whether a confession is false is difficult because there is seldom any consensus as to truth of the facts admitted in the confession. See, e.g., Ofshe, Hypnosis, supra note 27 at 153. Finally, extrapolating from the universe of known or suspected false confession cases produced by standard interrogation methods to estimate the total number of such confessions is extremely problematic, especially because many false confessions may be disregarded by the police and others may be undetected because the conviction of the suspect who confessed is never subjected to adequate scrutiny. Cf. E. CALVERT, CAPITAL PUNISHMENT IN THE TWENTIETH CENTURY 123 (1936), quoted in Bedau & Radelet, supra note 29, at 24.
54. See infra notes 38-78 and accompanying text. The Supreme Court has limited the admissibility of confessions by reference to due process, the Sixth Amendment right to counsel, and the Fifth Amendment right against self-incrimination.
55. For the most part, however, state courts have not addressed this problem. As in the Lapointe case, see supra note 9, state courts ruling on the admissibility of a criminal defendant's confession have focused almost exclusively on whether the confession should be excluded on the basis of either Miranda or the due process voluntariness test. See, e.g., People v. Ray, 914 P.2d 846 (Cal. 1996), cert. denied, 65 U.S.L.W. 3340 (U.S. Nov. 4, 1996) (holding defendant's confession admissible even if no Miranda warning was given because confession was made in non-interrogatory situation); DeJesus v. State, 655 A.2d 1180 (Del. 1995) (holding that whether Miranda rights were waived voluntarily depends solely on state misconduct or overreaching, not on the personal characteristics of the defendant).
56. See generally 3 WIGMORE, supra note 24, § 822, at 246.
57. The King v. Warickshall, 168 Eng. Rep. 234, 234-35 (K.B. 1783).
58. See, e.g., id. (observing that "[a] free and voluntary confession is deserving of the highest credit"); Wilson v. State, 92 S.E. 309, 312 (Ga. Ct. App. 1917) (stating that involuntary confessions are excluded as unreliable).
59. Indeed, The King v. Warickshall, supra note 35, held that physical evidence found as a result of the confession would be admissible because, unlike the confession, the derivative evidence could be viewed as trustworthy.
60. See generally 3 WIGMORE, supra note 23, § 822, at 246-48, § 826, at 255-56.
61. See, e.g., Haynes v. Washington, 373 U.S. 503 (1963); Spano v. New York, 360 U.S. 315 (1959); Brown v. Mississippi, 297 U.S. 278 (1936).
62. See 3 WIGMORE, supra note 23, § 822, at 246-48.
63. Cf. 3 WIGMORE, supra note 23, § 823, at 248-50 (rejecting other bases for excluding confessions). Other commentators, however, took a different view of the Court's due process cases. See, e.g., Francis A. Allen, Due Process and State Criminal Procedures: Another Look, 48 NW. U. L. REV. 16, 19 (1953) (finding it "doubtful that the 'untrustworthiness' rationale provides an adequate explanation for the confession rule"); Charles T. McCormick, Some Problems and Developments in the Admissibility of Confessions, 24 TEX. L. REV. 239, 245 (1946) ("the predominant motive of the courts has been that of protecting the citizen against the violation of his privileges of immunity from bodily manhandling by the police, and from the other undue pressures . . . of the 'third degree'").
64. Cf. 3 WIGMORE, supra note 23, § 823, at 248-50 (rejecting other bases for excluding confessions). Other commentators, however, took a different view of the Court's due process cases. See, e.g., Francis A. Allen, Due Process and State Criminal Procedures: Another Look, 48 NW. U. L. REV. 16, 19 (1953) (finding it "doubtful that the 'untrustworthiness' rationale provides an adequate explanation for the confession rule"); Charles T. McCormick, Some Problems and Developments in the Admissibility of Confessions, 24 TEX. L. REV. 239, 245 (1946) ("the predominant motive of the courts has been that of protecting the citizen against the violation of his privileges of immunity from bodily manhandling by the police, and from the other undue pressures . . . of the 'third degree'").
65. 365 U.S. 534 (1961).
66. In Rogers, the Court held that the state court view - "that the probable reliability of a confession is a circumstance of weight in determining its voluntariness" - was erroneous, because the proper question was "whether the behavior of the State's law enforcement officials was such as to overbear [defendant's] will to resist and bring about confessions not freely self-determined - a question to be answered with complete disregard of whether or not [defendant] in fact spoke the truth." Id. at 542, 544.
67. 378 U.S. 368 (1964).
68. Id. at 386.
69. YALE KAMISAR, POLICE INTERROGATION AND CONFESSIONS: ESSAYS IN LAW AND POLICY 20-21 (1980) [hereinafter KAMISAR, ESSAYS].
70. 377 U.S. 201 (1964).
71. 384 U.S. 436 (1966).
72. Massiah, 377 U.S. at 206.
73. Brewer v. Williams, 430 U.S. 387, 398 (1977) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).
74. See generally KAMISAR, ESSAYS, supra note 45, at 211-24.
75. Miranda, 384 U.S. at 444.
76. Thus, Miranda has no bearing on the admissibility of a confession if the suspect is not in custody. See, e.g., Berkemer v. McCarty, 468 U.S. 420 (1984). Miranda also has no bearing if the suspect is not subjected to interrogation. See, e.g., Rhode Island v. Innis, 446 U.S. 291 (1980).
77. See Miranda, 384 U.S. at 444 (holding that the suspect "must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.")
78. Id.
79. See, e.g., Duckworth v. Eagan, 492 U.S. 195 (1989) (holding that informing the suspect that an attorney would be appointed to represent him if and when he went to court satisfied Miranda's requirement that the suspect be warned of the right to the presence of an attorney).
80. See Edwards v. Arizona, 451 U.S. 477 (1981) (establishing limitations on interrogation when suspect invokes right to counsel); Michigan v. Mosley, 423 U.S. 96 (1975) (establishing limitations on interrogation when suspect invokes right to remain silent).
81. See, e.g., North Carolina v. Butler, 441 U.S. 369 (1979) (holding that the suspect's express waiver of his Miranda rights is not necessary to a finding that he voluntarily and intelligently waived those rights).
82. See, e.g., Colorado v. Connelly, 479 U.S. 157, 170 (1986) ("Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that."). For a humorous comment on several of Miranda's exceptions, see Albert W. Alschuler, Failed Pragmatism: Reflections on the Burger Court, 100 HARV. L. REV. 1436, 1442 (1987).
83. See, e.g., Quarles, 467 U.S. at 655 n.5 (1985) (observing that, in order to show his confession was compelled within the meaning of the Fifth Amendment privilege, the defendant would have to show that "his statement was coerced under traditional due process standards"); see also Withrow v. Williams, 507 U.S. 680, 693 (1993) (discussing the relationship between Miranda and the voluntariness test). The Court has explained in a series of post-Miranda cases that the Miranda warnings are not mandated by the Fifth Amendment privilege but merely provide prophylactic safeguards that are designed to provide additional Fifth Amendment protection to suspects subjected to police interrogation. See, e.g., Oregon v. Elstad, 470 U.S. 298, 305 (1985); New York v. Quarles, 467 U.S. 649, 657 (1984); Michigan v. Tucker, 417 U.S. 433, 439 (1974).
84. See, e.g., Spano, 360 U.S. at 323 (condemning the tactic of inducing the defendant to confess by having an officer who was defendant's friend falsely inform the defendant that the officer's job would be in jeopardy if the defendant did not confess).
85. See Connelly, 479 U.S. at 160.
86. See id. at 161.
87. See id.
88. See People v. Connelly, 702 P.2d 722, 729 (Colo. 1985) (upholding trial court's ruling that defendant's statement was involuntary because "[it] was not the product of a rational intellect and a free will").
89. See Connelly, 479 U.S. at 164.
90. See id. But cf. id. at 164-65 (discussing cases in which interrogating officers "exploited" known weaknesses of defendants, and suggesting that if the officers had been aware of the defendant's condition and manipulated it to obtain a confession, this may have presented a different case).
91. Id. at 167.
92. See supra text accompanying notes 33-37.
93. See Dix, Confession Law, supra note 21, at 232.
94. Although the Court in Arizona v. Fulminante, 499 U.S. 279 (1990), equated "coerced" and "involuntary" in its discussion of the due process involuntariness analysis, 499 U.S. at 287 n.3, I am using the term "coerced" in a more limited sense, encompassing only duress-type situations, as distinguished from trickery. For an illuminating discussion of what constituted an involuntary confession under the pre-Miranda due process test, see Yale Kamisar, What is an "Involuntary" Confession? Some Comments on Inbau and Reid's Criminal Interrogation and Confessions, 17 RUTGERS L. REV. 728, reprinted in KAMISAR, ESSAYS, supra note 45, at 1-25.
95. See Connelly, 479 U.S. at 163-64.
96. See, e.g., Withrow v. Williams, 507 U.S. 680, 693 (1993) (holding that involuntariness is determined by a totality of the circumstances test, of which police coercion is just one of many potential circumstances to be considered); Miller v. Fenton, 474 U.S. 104, 109 (1985) ("Certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment").
97. See Withrow, 507 U.S. at 693.
98. The Court has held a confession to be involuntary under the post-Miranda due process test in only two cases. See Fulminante, 499 U.S. 279 (1991); Mincey v. Arizona, 437 U.S. 385 (1978).
99. See, e.g., Brown v. Mississippi, 297 U.S. 278 (1936).
100. See, e.g., Beecher v. Alabama, 389 U.S. 35 (1967).
101. See Payne v. Arkansas, 356 U.S. 560 (1958).
102. See, e.g., id.; Ashcraft v. Tennessee, 322 U.S. 143 (1944) (holding that 36 hours of continuous interrogation is "inherently coercive").
103. See Withrow, 507 U.S. at 693; Miller, 474 U.S. at 109.
104. See infra text accompanying notes 224-235.
105. See Mincey, 437 U.S. 385, 399-401.
106. Several police manuals recommend interrogation techniques to police officers questioning suspects. See ARTHUR S. AUBRY JR. & RUDOLPH R. CAPUTO, CRIMINAL INTERROGATION 289 (3d ed. 1980); INBAU ET AL., supra note 24; Charles E. O'Hara & Gregory L. O'Hara, Fundamentals of Criminal Investigation (5th ed. 1980); ROBERT ROYAL & STEPHEN R. SCHUTT, THE GENTLE ART OF INTERVIEWING AND INTERROGATION: A PROFESSIONAL MANUAL AND GUIDE (1976). An earlier edition of Inbau's manual, characterized by Kamisar as "the best" of the interrogation manuals, was cited extensively by the Supreme Court in Miranda v. Arizona. See KAMISAR, ESSAYS, supra note 45, at 1; Miranda, 384 U.S. at 448-55. Richard Leo's observation of numerous interrogations indicates that in conducting interrogations, the police use the interrogation methods recommended by these manuals, particularly those recommended by the Inbau manual. See Richard Angelo Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY 266, 292-95 (1996) [hereinafter Leo, Interrogation Room].
107. Several police manuals recommend interrogation techniques to police officers questioning suspects. See ARTHUR S. AUBRY JR. & RUDOLPH R. CAPUTO, CRIMINAL INTERROGATION 289 (3d ed. 1980); INBAU ET AL., supra note 24; Charles E. O'Hara & Gregory L. O'Hara, Fundamentals of Criminal Investigation (5th ed. 1980); ROBERT ROYAL & STEPHEN R. SCHUTT, THE GENTLE ART OF INTERVIEWING AND INTERROGATION: A PROFESSIONAL MANUAL AND GUIDE (1976). An earlier edition of Inbau's manual, characterized by Kamisar as "the best" of the interrogation manuals, was cited extensively by the Supreme Court in Miranda v. Arizona. See KAMISAR, ESSAYS, supra note 45, at 1; Miranda, 384 U.S. at 448-55. Richard Leo's observation of numerous interrogations indicates that in conducting interrogations, the police use the interrogation methods recommended by these manuals, particularly those recommended by the Inbau manual. See Richard Angelo Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY 266, 292-95 (1996) [hereinafter Leo, Interrogation Room].
108. Several police manuals recommend interrogation techniques to police officers questioning suspects. See ARTHUR S. AUBRY JR. & RUDOLPH R. CAPUTO, CRIMINAL INTERROGATION 289 (3d ed. 1980); INBAU ET AL., supra note 24; Charles E. O'Hara & Gregory L. O'Hara, Fundamentals of Criminal Investigation (5th ed. 1980); ROBERT ROYAL & STEPHEN R. SCHUTT, THE GENTLE ART OF INTERVIEWING AND INTERROGATION: A PROFESSIONAL MANUAL AND GUIDE (1976). An earlier edition of Inbau's manual, characterized by Kamisar as "the best" of the interrogation manuals, was cited extensively by the Supreme Court in Miranda v. Arizona. See KAMISAR, ESSAYS, supra note 45, at 1; Miranda, 384 U.S. at 448-55. Richard Leo's observation of numerous interrogations indicates that in conducting interrogations, the police use the interrogation methods recommended by these manuals, particularly those recommended by the Inbau manual. See Richard Angelo Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY 266, 292-95 (1996) [hereinafter Leo, Interrogation Room].
109. Several police manuals recommend interrogation techniques to police officers questioning suspects. See ARTHUR S. AUBRY JR. & RUDOLPH R. CAPUTO, CRIMINAL INTERROGATION 289 (3d ed. 1980); INBAU ET AL., supra note 24; Charles E. O'Hara & Gregory L. O'Hara, Fundamentals of Criminal Investigation (5th ed. 1980); ROBERT ROYAL & STEPHEN R. SCHUTT, THE GENTLE ART OF INTERVIEWING AND INTERROGATION: A PROFESSIONAL MANUAL AND GUIDE (1976). An earlier edition of Inbau's manual, characterized by Kamisar as "the best" of the interrogation manuals, was cited extensively by the Supreme Court in Miranda v. Arizona. See KAMISAR, ESSAYS, supra note 45, at 1; Miranda, 384 U.S. at 448-55. Richard Leo's observation of numerous interrogations indicates that in conducting interrogations, the police use the interrogation methods recommended by these manuals, particularly those recommended by the Inbau manual. See Richard Angelo Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY 266, 292-95 (1996) [hereinafter Leo, Interrogation Room].
110. See JOHN DOUGLAS, THE MINDHUNTERS 192 (1996).
111. See INBAU ET AL., supra note 24, at 332; Jayne & Buckley, supra note 25, at 26.
112. See INBAU ET AL., supra note 24.
113. Id. at 332.
114. Id.
115. See id. at 79-81.
116. See id.
117. Cf. id. app. at 346-47 (noting that the nine steps increase the anxiety associated with deception).
118. See INBAU ET AL., supra note 24, at 93.
119. Cf. id. app. at 332 (noting that the goal of interrogation "is to decrease the suspect's perception of the consequences of confessing, while . . . increasing the suspect's internal anxiety associated with his deception"); Jayne & Buckley, supra note 25, at 28.
120. See INBAU ET AL., supra note 24, at 48, 80; see also Jayne & Buckley, supra note 25, at 23, 25.
121. See generally GUDJONSSON, supra note 26, at 148-49 (discussing anxiety as a consequence of interrogation procedures). Gudjonsson explains that the Inbau Manual's explanation as to why suspects confess is only one of "a number of theoretical models that have attempted to explain the mechanisms and processes that facilitate a confession during custodial interrogation." Id. at 61-62.
122. INBAU ET AL., supra note 24, at 128-29.
123. See id. at 79, 85. "The interrogator should . . . have on hand an evidence case folder, or else a simulation of one." Id. at 83. The interrogator should use the suspect's first name but not use his own. See id. at 84-85. The investigator should have "the conduct . . . of a busy medical specialist [visiting] a hospitalized patient." Id. at 84; see also infra text accompanying notes 145-150 (discussing an interrogator's statement to a suspect that a polygraph test showed the suspect was lying).
124. The Inbau Manual advises that an interrogator should cut off a suspect's explanations and suggest a more moral excuse for committing the crime. See INBAU ET AL., supra note 24, at 80, 94, 102.
125. Cf. GUDJONSSON, supra note 26, at 27 (noting that the authoritative presence of police can generate anxiety).
126. See, e.g., DONALD S. CONNERY, GUILTY UNTIL PROVEN INNOCENT 370-71 (1977) [hereinafter CONNERY, GUILTY UNTIL PROVEN INNOCENT].
127. See generally GUDJONSSON, supra note 26, at 101-03, 110-13, 301 (discussing characteristics that make individuals more prone to give false confessions).
128. See GUDJONSSON, supra note 26, at 229, 231, 301-02; I.C.H. Clare & G.H. Gudjonsson, Interrogative Suggestibility, Confabulation and Acquiescence in People with Mild Learnig Disabilities (Mental Handicap): Implications for Reliability During Police Interrogation, 32 BRIT. J. CLINICAL PSYCHOL. 295-301 (1992); Ofshe, Coerced Confessions, supra note 26, at 4-6; Leo, Poloce Interrogation, supra note 22, at 390.
129. My selection of the three cases to be discussed is based on four factors. First, it is widely agreed that the confessions obtained in the three cases were false. Second, the interrogators who obtained the confessions employed techniques that are generally consistent with the techniques recommended by the Inbau Manual. Third, although the three suspects who confessed are each of different personality types, their personality types are identifiable and relatively common. Fourth, because there is little or no dispute as to the circumstances of the interrogations, identifying the interrogation tactics that precipitated the false confessions is possible. Drawing from these and other similar cases, as well as the empirical data relating to interrogation methods' effects on suspects, I will try to identify some of the factors that generate false confessions and to determine the extent to which these factors may be present when police interrogate a suspect who they believe to be guilty of a criminal offense.
130. See Washington v. Commonwealth, 323 S.E.2d 577, 581 (Va. 1984). See generally Paul T. Hourihan, Note, Earl Washington's Confession: Mental Retardation and the Law of Confessions, 81 VA. L. REV. 1471 (1995).
131. See Washington, 323 S.E.2d at 582.
132. Id.
133. See Hourihan, supra note 103, at 1472 n.3.
134. Washington, 323 S.E.2d at 582. The police read Washington his Miranda rights before they began questioning him again. Id.
135. Id.
136. See Ana Puga, Two Men's Fate Show Discrepancy: DNA Use to Reopen Cases Called Uneven, BOSTON GLOBE, Feb. 6, 1994, at 17.
137. Washington, 323 S.E.2d at 582.
138. See id. at 582-83.
139. See Hourihan, supra note 103, at 1471.
140. See id. at 1472 n.4.
141. Even without considering the DNA evidence, the Fourth Circuit, reviewing the case on habeas, noted "numerous original factual errors," Washington v. Murray, 952 F.2d 1472, 1478 n.5 (4th Cir. 1991), and concluded that the evidence was "not without real . . . problems for any fairminded jury asked on its basis unanimously to find guilt beyond a reasonable doubt," id. at 1479.
142. In Virginia, a convicted criminal has 21 days after entry of a final order to move to set aside the verdict. See VA. SUP. CT. R. 3A:15(b).
143. Id. at 1472. The proposed bill, H.B. 213, 1st Reg. Sess. (Va. 1994), would have allowed prisoners on death row to move to set aside the verdict based on newly discovered evidence after the 21-day deadline. See id. If Washington was no longer on death row, the bill as originally drafted would not apply. See Hourihan, supra note 103, at 1472 n.4.
144. See Hourihan, supra note 103, at 1472.
145. "Wilder said he was not fully convinced that Washington is innocent . . . . In particular, he cited Washington's original confession and noted that Washington 'had original knowledge of evidence relating to the crime which it can be argued only the perpetrator would have known.'" Peter Baker, Death-Row Inmate Gets Clemency, WASH. POST, Jan. 15, 1994, at A1.
146. See, e.g., Marcia Coyle, Innocence v. Executions, NAT'L L.J., Dec. 27, 1993, at 1, 33; Bill Miller & Steve Bates, DNA Test Could Free Retarded Man on Death Row in Virginia Slaying, L.A. TIMES, Nov. 7, 1993, at A10.
147. Washington testified at the time of his arrest that he was exhausted because he had been up all night and "running through the woods." Washington v. Commonwealth, 323 S.E.2d 577, 582 (Va. 1984). The deputy sheriff who interrogated him testified, however, that Washington did not appear to be "tired or disheveled." Id.
148. See James W. Ellis & Ruth A. Luckasson, Symposium on the ABA Criminal Justice Mental Health Standards: Mentally Retarded Criminal Defendants, 53 GEO. WASH. L. REV. 414, 451 (1984).
149. Id. at 446.
150. Id. at 446 n.168 (citing Ford v. State, 21 So. 524, 525-26 (Miss. 1897)).
151. Even in the 19th century, confessions from those "of crude and feeble mind and irresolute will" were found to be inadmissible. Butler v. Commonwealth, 63 Ky. (2 Duv.) 435, 435-36 (1866), quoted in ELLIS & LUCKASSON, supra note 121, at 445. In one case a confession was held inadmissible after the defendant's employer testified that "[the defendant] is going to give you the answer you desire. If you want a 'yes' he will give it to you; and if you want a 'no' he will give you that." Ford, 21 So. at 535, quoted in ELLIS & LUCKASSON, supra note 121, at 445.
152. PRESIDENT'S PANEL ON MENTAL RETARDATION, REPORT OF THE TASK FORCE ON LAW 33 (1963).
153. The interrogation usually starts by telling the suspect that "there is no doubt that you did this." Jayne & Buckley, supra note 25, at 25.
154. Frank Green, Aid Offered in Washington's Case: Group Says It Will Help Inmate If He's Pardoned, Freed, RICHMOND TIMES-DISPATCH, Jan. 7, 1994, at B12.
155. See, e.g., Gisli H. Gudjonsson & Noel K. Clark, Suggestibility in Police Interrogation: A Social Psychological Model, 1 SOC. BEHAV. 83 (1986).
156. See GUDJONSSON, supra note 26, at 2; Guilty Innocents: The Road to False Confessions, LANCET, Nov. 26, 1994, at 3.
157. GUDJONSSON, supra note 26, at 138.
158. See id. Examples of questions include: "I tend to become easily alarmed and frightened when I am in the company of people in authority"; "I try to please others." Id.
159. See, e.g., id. at 156 (finding prison inmates who alleged giving false confessions scored higher on compliance test than those who resisted confessing).
160. See INBAU ET AL., supra note 24, at 85. Cf. CHARLES E. O'HARA & GREGORY L. O'HARA, FUNDAMENTALS OF CRIMINAL INVESTIGATION 112 (5th ed. 1980) (urging interrogators to adopt a professional, yet sympathetic, attitude).
161. See INBAU ET AL., supra note 24, at 85.
162. See id. at 144.
163. See, e.g., CONNERY, GUILTY UNTIL PROVEN INNOCENT, supra note 99, at 370-71.
164. See GUDJONSSON, supra note 26, at 227.
165. See Reilly v. State, 355 A.2d 324, 329 (Conn. Super. Ct. 1976).
166. See CONNERY, GUILTY UNTIL PROVEN INNOCENT, supra note 99, at 361.
167. See Joseph A. O'Brien, Mother's Killing Still Unsolved, but Peter Reilly Puts Past Behind, HARTFORD COURANT, Sept. 23, 1993 at A1.
168. See CONNERY, GUILTY UNTIL PROVEN INNOCENT, supra note 99, at 345.
169. See id. at 370-71; GUDJONSSON, supra note 26, at 252-57.
170. See GUDJONSSON, supra note 26, at 256.
171. See CONNERY, GUILTY UNTIL PROVEN INNOCENT, supra note 99, at 21.
172. See id. at 63; JOAN BARTHEL, A DEATH IN CANAAN 54 (1977).
173. BARTHEL, supra note 145, at 54.
174. Id. at 59.
175. See id. at 69-70, 71.
176. Id. at 74.
177. Id.
178. See id.
179. See, e.g., BARTHEL, supra note 145, at 71, 91.
180. Id. at 91.
181. Reilly who was fatherless, came to view the interrogator as a father figure. At one point, he even asked if it might be possible for him to come and live with the detective and his family. See id. at 98.
182. Id. at 91.
183. Id.
184. CONNERY, supra note 99, at 75.
185. See BARTHEL, supra note 145, at 107.
186. See, e.g., id. at 103.
187. See, e.g., GUDJONSSON, supra note 26, at 252-57.
188. See id.
189. See GUDJONSSON, supra note 26, at 252-56.
190. See CONNERY, GUILTY UNTIL PROVEN INNOCENT, supra note 99, at 63.
191. See id. at 73.
192. See, e.g., Ofshe, Coerced Confessions, supra note 26, at 4.
193. For a detailed examination of To Sawyer's false confession, see Ofshe, Coerced Confessions, supra note 26, at 6-12, and Leo, False Comfessions, supra note 26, at 14-21.
194. See Ofshe, Hypnosis, supra note 26, at 133, 152-53. Ingram also confessed to "participation in a Satan worshiping cult alleged to have murdered 25 babies." Id. at 133. During the investigation of the Ingram case, Professor Ofshe was retained by the prosecutor's office for the purpose of building the case against Ingram. Ofshe became suspicious of Ingram's confessions and conducted a field experiment to test their reliability. He presented Ingram with the false allegation that "one of his sons and one of his daughters had reported that he had made them have sex together while he looked on." Id. at 147. Employing techniques utilized by other interrogators in the case, Ofshe requested that Ingram "think" about the scene and try to see it "happening." Ingram subsequently reported "vivid recollections" as to the events described by Ofshe. Ingram subsequently prepared a written confession that "described forcing his children to perform sexual acts." Id. Although the children named in the confession unequivocally denied the facts stated in the confession, Ingram "expressed confidence that his memory was accurate and that the scenes had hippened." Id. For a detailed account of the Ingram case, see LAWRENCE WRIGHT, REMEMBERING SATAN (1994).
195. In Tom Sawyer's case, the suspect confessed after an interrogating detective falsely stated to him that "hair samples [Sawyer] had given the police matched those taken from [the victim's] body." Leo, False Confessions, supra note 26, at 19. For further discussion of this aspect of Sawyer's case, see infra note 264 and accompanying text. In the Ingram case, the interrogators repeatedly implied that Ingram's daughterss' allegations established his guilt, pressing him into "agreeing that his daughters were honorable and did not lie." Ofshe, Hypnosis, supra note 26, at 140.
196. See Leo, False Confessions, supra note 26, at 22; Parloff, supra note 26, at 58.
197. See Parloff, supra note 26, at 58.
198. Zarate, although questioned for hours, never confessed. See Parloff, supra note 26, at 59.
199. See Leo, False Confessions, supra note 26, at 27.
200. The weapon used was eventually traced to Alessandro Garcia, 16, and Jonathan Doody, 17. Garcia confessed to the crime and Doody was convicted of felony murder. See Parloff, supra note 26, at 61; Leo, False Confessions, supra note 26, at 27.
201. Parloff, supra note 26, at 59.
202. See id.
203. See id.
204. Id.
205. Id. at 60.
206. Id.
207. See Parloff, supra note 26, at 60.
208. Id.
209. Id.
210. Id.
211. See id.
212. During Parker's interrogation, however, one of the interrogators threatened to arrest Parker's brothers if Parker didn't confess. See id.
213. See Parloff, supra note 26, at 60.
214. Id.
215. See supra text accompanying notes 1-11.
216. When interrogation leads to a coerced-internalized confession, detecting a miscarriage of justice may be particularly difficult because the interrogation has actually led a suspect to believe in his own guilt. In Paul Ingram's case, it seems unlikely that the suspect or anyone else would have challenged the reliability of his confessions if Professor Ofshe had not performed an experiment that raised doubts about the trustworthiness of Ingram's recovered memories. See supra note 167. Even in cases of coerced-compliant confessions, in which suspects do not believe in their guilt, detecting miscarriages of justice may be difficult because a convicted defendant is unlikely to have access to the resources necessary to uncover evidence that establishes his innocence.
217. Cassell's estimate of 35 such miscarriages per year seems particularly speculative. Cassell derived this figure by estimating that 350 wrongful convictions occur in this country each year and that 10% of those wrongful convictions stem from false confessions. His figure of 350 wrongful convictions per year, however, was essentially plucked from thin air. Using results from a survey of judges, prosecutors, and others familiar with the Ohio and American criminal justice system, Cassell substituted his own assumptions for those of the authors, reducing the estimate of wrongful convictions per year from 6000 to 350. See C. Ronald Huff et al., Guilty Until Proven Innocent: Wrongful Conviction and Public Policy, 32 CRIME & DELINQ. 518, 523 (1986).
218. See supra text accompanying note 87.
219. In some instances, corroborating evidence may verify a confession's trustworthiness. If the suspect tells the police where they can find the murdered victim's body, and the police locate the victim's body at that location, the suspect's admission is clearly trustworthy. See, e.g., Brewer v. Williams, 430 U.S. 387 (1977) (holding that the interrogation of a suspect, contrary to the explicit instructions of his lawyer, violated the Fifth Amendment). Unless evidence corroborating the confession is derived from the confession, however, it is not likely to provide independent proof of the confession's reliability. Police may claim that a suspect's confession is reliable because it: (1) refers to facts that only the perpetrator of the crime would know; or (2) is corroborated by other evidence obtained through independent sources. In evaluating the first claim, it is often difficult to determine whether the police interrogation may have communicated the relevant facts to the suspect In Tom Sawyer's case, the police asserted that his confession must be truthful because he "knew nine facts that only the killer could have known." Ofshe, Coerced Confessions, supra note 26, at 8. Ofshe's "[a]nalysis of the interrogation transcript . . . shows, however, that Mr. Sawyer knew none of the things the police claimed he knew. In every case, the crucial information was introduced into the interrogation by the police." Id. Thus, at least in the absence of an examination of the complete transcript of the interrogation, courts generally should not accept the government's assertion that a confession is reliable because of the facts about the defendant's knowledge that it reveals. In evaluating the second claim, a distinction should be drawn between evaluating the confession's trustworthiness and assessing the defendant's guilt. As the Court explained in Idaho v. Wright, 497 U.S. 805 (1990), using "corroborating evidence" to establish a statement's trustworthiness "would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial . . . ." Id. at 823. In other words, the corroborating evidence may independently show that the suspect is guilty. It should not be used, however, to prove the trustworthiness of a confession that was obtained through inappropriate procedures.
220. KAMISAR, ESSAYS, supra note 45, at 20; see supra text accompanying note 45.
221. In some cases, however, interrogators may conclude that a suspect is probably guilty on the basis of his behavioral symptoms rather than any objective evaluation of the evidence. The Inbau Manual instructs interrogators reconsidering whether a suspect is guilty to evaluate various nonverbal responses including whether the suspect makes "direct eye contact" with the interrogator, the suspect's "[p]osture changes" such as "movement or chair back from [the] interrogator," and the suspect's "cosmetic adjustments," such as "rearrangement of clothing or jewelry" and "straightening or stroking hair . . . ." INBAU ET AL., supra note 24 at 51, 53. Experts in psychology have concluded, however, that there is no scientific basis for determining a suspect's deception (or guilt) on the basis of these criteria. See generally DAVID LYKKEN, A TREMOR IN THE BLOOD (1981).
222. Leo concludes that, in each of the nine suspected false confession cases he examined, the police assumed that the person interrogated "must be guilty of the crime, despite any physical or other evidence linking that individual to the event." Leo, False Confessions, supra note 26, at 48. In each of those nine cases, the police were dealing with a "high profile murder case" in which, at the time the interrogation commenced, they had no viable suspects other than the person interrogated. Id. at 8-47.
223. See, e.g., Leo, Interrogation Room, supra note 82, at 298; Richard A. Leo, Police Interrogation and Social Control, 3 Soc. & LEGAL STUD. 93 (1994); Gerard R. Miller & F. Joseph Boster, Three Images of the Trial: Their Implications for Psychological Research, in PSYCHOLOGY IN THE LEGAL PROCESS 19 (Bruce Dennis Sales ed., 1977); 60 MINUTES, supra note 3. Moreover, detecting such miscarriages of justice may be particularly difficult because, even if evidence pointing towards the innocence of the person who confessed to a high-profile crime is presented, observers may still be reluctant to believe that a rational person who was not subjected to physical coercion would confess to such a crime if he had not committed it.
224. See, e.g., Leo, Interrogation Room, supra note 82, at 298; Richard A. Leo, Police Interrogation and Social Control, 3 Soc. & LEGAL STUD. 93 (1994); Gerard R. Miller & F. Joseph Boster, Three Images of the Trial: Their Implications for Psychological Research, in PSYCHOLOGY IN THE LEGAL PROCESS 19 (Bruce Dennis Sales ed., 1977); 60 MINUTES, supra note 3. Moreover, detecting such miscarriages of justice may be particularly difficult because, even if evidence pointing towards the innocence of the person who confessed to a high-profile crime is presented, observers may still be reluctant to believe that a rational person who was not subjected to physical coercion would confess to such a crime if he had not committed it.
225. See supra text accompanying notes 33-37.
226. See supra note 192.
227. The King v. Warickshall, 168 Eng. Rep. 234 (K.B. 1783).
228. The special vulnerability of youthful suspects has been recognized. In particular, research has shown that juveniles as a class are not able to understand the nature and significance of their Miranda rights. See Thomas Grisso, Juveniles' Capacity to Waive Miranda Rights: An Empirical Analysis, 68 CAL. L. REV. 1134 (1980). Although the data do not establish that juvenile suspects are as likely as mentally retarded suspects to give false confessions, Inbau acknowledges that as to both groups, "special protection must be afforded . . . to minimize the risk of obtaining untruthful admissions due to their vulnerability to suggestive questioning." Fred E. Inbau, Miranda's Immunization of Low Intelligence Offenders, 24 PROSECUTOR: J. NAT'L DISTRICT ATT'YS ASS'N, Spring 1991, at 9-10 [hereinafter Inbau, Immunization].
229. The special vulnerability of youthful suspects has been recognized. In particular, research has shown that juveniles as a class are not able to understand the nature and significance of their Miranda rights. See Thomas Grisso, Juveniles' Capacity to Waive Miranda Rights: An Empirical Analysis, 68 CAL. L. REV. 1134 (1980). Although the data do not establish that juvenile suspects are as likely as mentally retarded suspects to give false confessions, Inbau acknowledges that as to both groups, "special protection must be afforded . . . to minimize the risk of obtaining untruthful admissions due to their vulnerability to suggestive questioning." Fred E. Inbau, Miranda's Immunization of Low Intelligence Offenders, 24 PROSECUTOR: J. NAT'L DISTRICT ATT'YS ASS'N, Spring 1991, at 9-10 [hereinafter Inbau, Immunization].
230. See, e.g., supra text accompanying note 3.
231. As Kamisar has observed, the Court's opinion in Escobedo v. Illinois, 378 U.S. 478 (1964), provided a basis for these arguments. Escobedo suggested that a suspect in custody not only had a right to the presence of an attorney during interrogation but the right to consult with an attorney prior to interrogation so that he would be "aware of, [and able to] exercise, [his] rights." Id. at 490. See generally Yale Kamisar, The Warren Court and Criminal Justice: A Quarter-Century Retrospective, 31 TULSA L.J. 1 (1995).
232. If a lawyer must be present at a suspect's interrogation, there will probably be no interrogation or at least no answers from the suspect. As Justice Jackson said nearly half a century ago, "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances." Watts v. Indiana, 338 U.S. 49, 59 (1949) (Jackson, J., concurring in part and dissenting in part).
233. See, e.g., Charles J. Ogletree, Are Confessions Really Good for the Soul? A Proposal to Mirandize Miranda, 100 HARV. L. REV. 1826 (1987) (proposing that law enforcement officers be prohibited from interrogating a suspect in custody who has not consulted with an attorney); see generally Stephen J. Schulhofer, Confessions and the Court, 79 MICH. L. REV. 865, 878-84 (1981) (characterizing Miranda as a compromise between proponents of the due process voluntariness test and those who favor imposing stricter restraints on police interrogation).
234. See, e.g., Charles J. Ogletree, Are Confessions Really Good for the Soul? A Proposal to Mirandize Miranda, 100 HARV. L. REV. 1826 (1987) (proposing that law enforcement officers be prohibited from interrogating a suspect in custody who has not consulted with an attorney); see generally Stephen J. Schulhofer, Confessions and the Court, 79 MICH. L. REV. 865, 878-84 (1981) (characterizing Miranda as a compromise between proponents of the due process voluntariness test and those who favor imposing stricter restraints on police interrogation).
235. Donald A. Dripps, Foreword: Against Police Interrogation - And the Privilege Against Self-Incrimination, 78 J. CRIM. L. & CRIMINOLOGY 699, 726 (1988).
236. The legal scholars who have previously proposed a similar approach include Wigmore, Pound, Kauper, Friendly, Schaefer, and Frankel. See Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The Right to Remain Silent, 94 MICH. L. REV. 2625, 2669 (1996) [hereinafter Alschuler, A Peculiar Privilege].
237. Id. at 2670.
238. See supra note 59 and accompanying text.
239. See Miranda, 384 U.S. at 466 (custodial interrogation is "inherently coercive").
240. Culombe v. Connecticut, 367 U.S. 568, 578-79 (1961) (citations omitted) (holding that the intermittent questioning over five days of a suspect with a mental age of nine produced an involuntary confession). In a footnote, the Court explained its holding, stating: "The need to permit police interrogation of suspects in custody has been persistently asserted in this country." Id. at 579 n.17.
241. See id. at 578.
242. Jayne & Buckley, supra note 25, at 23.
243. See id. at 26.
244. See sources cited supra note 196.
245. Cf. Jayne & Buckley, supra note 25, at 28.
246. Unlike the questioning recommended by the Inbau Manual, a magistrate questioning a suspect about the offense would simply record the suspect's answers rather than repeating questions and employing tactics that are designed to make the guilty suspect recognize the futility of insisting on his innocence. See supra text accompanying note 207.
247. See sources cited supra note 19.
248. See, e.g., Cassell, Miranda's Social Costs, supra note 19, at 452-53 (concluding from review of empirical studies conducted during the 1960s that "56.9% of custodial aspects confess"); Leo, Interrogation Room, supra note 82, at 280 (finding, based on observation of interrogations conducted in a large city during the 1990s, that interrogation produced useful incriminating statements in 64% of cases); Thomas, Plain Talk, supra note 19, at 955 (estimating an average confession rate of 55%).
249. See Miller v. Fenton, 474 U.S. 104, 109-11 (1985).
250. See, e.g., New York v. Quarles, 467 U.S. 649, 655 n.5 (1984) (observing that, in order to show his confession was compelled within the meaning of the Fifth Amendment privilege, the defendant would have to show that "his statement was coerced under traditional due process standards").
251. See supra text accompanying notes 66-67.
252. See Alschuler, A Peculiar Privilege, supra note 206, at 2645 n.76; Yale Kamisar, Response: On the "Fruits" of Miranda Violations, Coerced Confessions, and Compelled Testimony, 93 MICH. L. REV. 929, 936-49 (1995); but see Akhil Reed Amar & Renee B. Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 MICH. L. REV. 857, 895-98 (1995).
253. See Alschuler, A Peculiar Privilege, supra note 206, at 2645 n.76; Yale Kamisar, Response: On the "Fruits" of Miranda Violations, Coerced Confessions, and Compelled Testimony, 93 MICH. L. REV. 929, 936-49 (1995); but see Akhil Reed Amar & Renee B. Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 MICH. L. REV. 857, 895-98 (1995).
254. See, e.g., In re Oliver, 333 U.S. 257 (1948) (holding that a one-man grand jury violated the due process rights of a defendant by ruling him in contempt and sentencing him to prison in a session not open to the public).
255. See supra text accompanying notes 14-17.
256. See cases cited supra note 15.
257. See case cited supra note 16.
258. See Manson v. Brathwaite, 432 U.S. 98 (1977); Stovall v. Denno, 388 U.S. 293 (1967).
259. See Brathwaite, 432 U.S. at 114 (holding that admissibility of identification testimony stemming from suggestive procedure should be determined by weighing several factors against "the corrupting effect of the suggestive identification").
260. The police may properly seek to obtain incriminating statements from suspects pursuant to interrogation methods that are not likely to produce untrustworthy confessions. Empirical data indicate, moreover, that such interrogation methods will enable the police to obtain incriminating statements in a high percentage of cases. See, e.g., Leo, Miranda Revisited, supra note 19, at 279-80.
261. In United States v. Wade, 388 U.S. 218 (1967), Justice Brennan accepted the view that "once a witness has picked out the accused at the line-up . . . in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial." See id. at 229 (citing Glanville Williams & H. A. Hammelmann, Identification Parades, Part I, 1963 CRIM. L. REV. 479, 482).
262. See supra text accompanying note 7.
263. 432 U.S. 98 (1977). Brathwaite indicated that an identification resulting from a suggestive identification procedure will be excluded only when it appears that there is a "very substantial likelihood" that the identification is inaccurate. Id. at 116.
264. See Miller, 474 U.S. at 110.
265. Indeed, Connelly's statement that a confession's lack of reliability is not a ground for exclusion was consistent with the Court's earlier language in Rogers v. Richmond, 365 U.S. 534 (1961) (holding that the test of the admissibility of a confession is if the will of a defendant was overborne, not if the confession was probably true or false). See supra text accompanying note 13; KAMISAR, ESSAYS, supra note 45.
266. See supra text accompanying notes 36-40.
267. Miranda v. Arizona, 384 U.S. 436, 507 n.4 (1966) (citing Paul M. Bator & James Vorenberg, Arrest, Detention, Interrogation and the Right to Counsel, 66 COLUM. L. REV. 62, 73 (1996)).
268. If it is found that lengthy interrogations are likely to produce untrustworthy confessions, it seems more appropriate to place an absolute limit on the duration of such interrogations than to adopt an approach under which the length of an interrogation is merely a factor to be weighed in determining whether it was likely to induce an untrustworthy confession. As the due process totality of circumstances voluntariness test indicated, the latter approach is not likely to provide effective guidance for the police or courts. See generally Geoffrey R. Stone, The Miranda Doctrine in the Burger Court, 1977 SUP. CT. REV. 99, 102-03.
269. See KAMISAR, ESSAYS, supra note 45, at 131-32; Welsh S. White, Police Trickery in Inducing Confessions, 127 U. PA. L. REV. 581 (1979).
270. The objection may be made that these safeguards are illegitimate because they establish prophylactic rules that apply even when the interests to be protected by the constitutional provision at stake are not necessarily compromised. See. e.g., Joseph D. Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 NW. U. L. REV. 100 (1985). As several commentators have pointed out, however, in dealing with police interrogation cases, the Court has often adopted safeguards designed to alleviate its fact-finding limitations. See, e.g., Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REV. 435, 450-51 (1987); David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI. L. REV. 190, 192-93 (1988).
271. The objection may be made that these safeguards are illegitimate because they establish prophylactic rules that apply even when the interests to be protected by the constitutional provision at stake are not necessarily compromised. See. e.g., Joseph D. Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 NW. U. L. REV. 100 (1985). As several commentators have pointed out, however, in dealing with police interrogation cases, the Court has often adopted safeguards designed to alleviate its fact-finding limitations. See, e.g., Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REV. 435, 450-51 (1987); David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI. L. REV. 190, 192-93 (1988).
272. The objection may be made that these safeguards are illegitimate because they establish prophylactic rules that apply even when the interests to be protected by the constitutional provision at stake are not necessarily compromised. See. e.g., Joseph D. Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 NW. U. L. REV. 100 (1985). As several commentators have pointed out, however, in dealing with police interrogation cases, the Court has often adopted safeguards designed to alleviate its fact-finding limitations. See, e.g., Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REV. 435, 450-51 (1987); David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI. L. REV. 190, 192-93 (1988).
273. Although this approach may seem unduly cautious, it is consistent with the Court's implicit recognition that police interrogation is not only constitutional but indispensable to law enforcement. See supra text accompanying note 211. Within this constitutional framework, the Due Process Clause should prohibit interrogation methods likely to produce untrustworthy confessions. Nevertheless, safeguards designed to prevent such interrogation methods should not be adopted unless either of two conditions are met: (1) it is clear the safeguard is necessary to prohibit an interrogation method likely to produce untrustworthy confessions; or, (2) the safeguard will play an important role in reducing the use of an interrogation method likely to produce untrustworthy confessions without significantly compromising law enforcement's legitimate interest in obtaining reliable confessions.
274. Inbau, Immunization, supra note 200, at 9.
275. See supra note 200.
276. See supra text accompanying notes 121-127.
277. For example, standard interrogation methods might be much less likely to induce an untrustworthy confession from a street-wise youth of 17 than a brain-damaged individual such as Richard Lapointe. Imposing restrictions solely on the basis of the suspect's age or mental status will necessarily involve some arbitrary line drawing. Nevertheless, in order to provide meaningful safeguards, some such lines should be drawn.
278. See supra text accompanying notes 61-69.
279. In many jurisdictions, the family code encourages police taking a young person into custody to determine the arrestee's age as soon as possible. See, e.g., Robert O. Dawson Responding to Misrepresentations, Nondisclosure and Incorrect Assumptions About the Age of the Accused: The Jurisdictional Boundary Between Juvenile and Criminal Courts in Texas, 18 ST. MARY'S L.J. 1117, 1149 (1987).
280. GUDJONSSON, supra note 26, at 221. Although it is not certain that Richard Lapointe's confession was false, Lapointe's stated reason for confessing - "I just wanted to leave the police station" - is strikingly similar to Bruce's explanation for why he falsely confessed. See supra text accompanying note 183.
281. Parloff, supra note 26, at 60.
282. Id. Parloff quotes Bruce as saying, "Every time I answered, 'No,' they were getting close to my face." Bruce added that "one of the Detectives had bad breath." Id.
283. See supra text accompanying notes 174-183; cf. KAMISAR, ESSAYS, supra note 45, at 98-99 (observing that the interrogators of John Biron "neither engaged in nor threatened any violence, but their urging, beseeching, wheedling, nagging Biron to confess is so repetitious and so unrelenting that two hours of listening is about all most students [listening to the tape] can stand").
284. Parloff, supra note 26, at 60.
285. FRED E. INBAU & JOHN E. REID, CRIMINAL INTERROGATION AND CONFESSIONS 111 (1962), quoted in KAMISAR, ESSAYS, supra note 45, at 3. The most recent Inbau Manual provides the same advice. See INBAU ET AL., supra note 24, at 196. Elaborating, the Inbau Manual encourages the interrogator to remain seated throughout interrogation because "the actions of jumping up and down and walking around give evidence ot the interrogator's impatience, with its consequent encouragement to a lying suspect that it he continues to lie a little while longer, the interrogator will give up. An entirely different impression is created by the interrogator who remains seated throughout the interrogation." Id. at 38.
286. In order to make this safeguard effective, it might be appropriate to adopt a modified version of the McNabb-Mallory rule, under which police are required to bring an arrested suspect before a magistrate without unnecessary delay. See Mallory v. United States, 354 U.S. 449 (1957). By adopting this requirement and specifying that, in the absence of unusual circumstances, more than a five-hour delay between arrest and presentation to the magistrate is unnecessary, a court could avoid litigation relating to the duration of the suspect's interrogation. Cf. Commonwealth v. Davenport, 370 A.2d 301 (Pa. 1977) (holding that a six-hour delay between arrest and first admission is presumtively impermissble). On the other hand, mandating the videotaping of interrogations when feasible, see infra text accompanying notes 311-328, would obviate the necessity for adopting this type of safeguard.
287. Indeed, in many of the documented false confession cases, the length of the interrogation was apparently not the sole or even the primary factor that prescipitated the false confession. In Peter Reilly's case, for example, the precipitating factors were the suspect's especially vulnerable character and the interrogator's use of the polygraph stratagem. See supra text accompanying notes 145-163. Similarly, in Dante Parker's case, the interrogators employed a tactic that was arguably impermissible under the current due process test. See generally Parloff, supra note 26 (recounting case in which four men falsely confessed to the murder of nine people at a Buddhist Temple).
288. The length of the interrogation appeared to be the critical factor in producing an untrustworthy confession in other cases as well. See, e.g., Leo, False Confessions, supra note 26, at 29-39 (noting that Bradley Page confessed after 16 hours of interrogation); Ofshe, Coerced Confessions, supra note 26, at 6-12 (finding that Tom Sawyer confessed after 16 hours of interrogation).
289. See INBAU ET AL., supra note 24, at 310.
290. As I have indicated, setting a maximum interrogation length will necessarily be arbitrary. See supra text accompanying note 237. Setting the time limit at any point between two and six hours would be supportable. I have set the time limit at five hours so as to provide minimal interference with law enforcement's legitimate interest in obtaining a reliable confession. Cf. Yale Kamisar, On the Tactics of Police-Prosecution Oriented Critics of the Courts, 49 CORNELL L.Q. 436, 452 (1964) (discussing length of time interrogators "want" and "need").
291. See, e.g., Commonwealth v. Dupree, 275 A.2d 326 (Pa. 1971) (holding that confession would be involuntary and therefore inadmissible if induced by interrogator's false statement that the suspect's wife would be arrested and prosecuted unless he confessed).
292. See, e.g., People v. Leyra, 98 N.E.2d 553, 559 (N.Y. 1951) (excluding defendant's confession in part where police psychiatrist played upon defendant's fears and suggested details to his unwilling mind by ceaseless questioning).
293. See, e.g., Spano v. New York, 360 U.S. 315, 323 (1960) (condemning the tactic of inducing the defendant to confess by having an officer who was defendant's friend falsely inform the defendant that the officer's job would be in jeopardy if the defendant did not confess).
294. See, e.g., Dupree, 275 A.2d 326.
295. See, e.g., Commonwealth v. Baity, 237 A.2d 172, 177 (Pa. 1968) (holding that confession induced by falsely telling defendant that his codefendant named him as the "triggerman" was not likely to produce a false confession); Commonwealth v. Graham, 182 A.2d 727, 731 (Pa. 1962) (holding that phony identification during which state police employee pointed finger at defendant and said, "that's the man," had no tendency to induce a false confession). See generally 3 WIGMORE, supra note 24, § 841, at 281-82; Developments in the Law - Confessions, 79 HARV. L. REV. 935, 958 (1966).
296. See supra text accompanying notes 145-146.
297. See Ofshe, Coerced Confessions, supra note 26, at 128. Based on a study of several coerced-internalized confession cases, Ofshe argues that such confessions will occur when police interrogators convince the suspect that, despite the suspect's lack of any memory of having committed the crime, there exists incontrovertible evidence of his guilt and a reasonable explanation for the suspect's lack of memory of the crime. See id.
298. Cf. Albert W. Alschuler, The Defense Attorney's Role m Plea Bargaining, 84 YALE L.J. 1179, 1296 (1975) (recounting cases in which experienced defense attorney recommended guilty pleas even though the defendants were framed by the police because the police department would always be believed over the accused).
299. See supra text accompanying note 187.
300. See, e.g., Frazier v. Cupp, 394 U.S. 731 (1969). In Frazier, the defendant made incriminating statements after the interrogating officer falsely told him his accomplice had confessed and sympathetically suggested that the victim had provoked the defendant to attack him by making homosexual advances. In holding that the defendant's confession was voluntary, the Court stated that the officer's misrepresentation relating to the defendant's accomplice's statement was "insufficient . . . to make [an] otherwise voluntary confession inadmissible." Id. at 739.
301. Based on the same rationale, trickery that leads the suspect to believe that his confession will assist a friend or loved one should also be impermissible. See supra text accompanying notes 260-261.
302. Although the Court has not articulated a basis for evaluating trickery employed by interrogators, some of its due process decisions - particularly Spano v. New York, 360 U.S. 315 (1960) - could be interpreted as condemning trickery that is likely to induce a false confession. See supra text accompanying notes 220-238.
303. INBAU ET AL., supra note 24, at 131.
304. A phrase similar to this was used by interrogators questioning Leo Bruce.
305. See INBAU ET AL., supra note 24, at 131.
306. See, e.g., Beasley v. United States, 512 A.2d 1007, 1010 (D.C. 1986) (admitting confession).
307. See, e.g., State v. Jackson, 304 S.E.2d 134, 144 (N.C. 1983) (admitting confession); Florida v. Cayward, 552 So. 2d 971 (Fla. Dist. Ct. App. 1989) (excluding confession). See generally Laura Hoffman Roppé, True Blue? Whether Police Should be Allowed to Use Trickery and Deception to Extract Confessions, 31 SAN DIEGO L. REV. 729, 734-36, 761 (1994).
308. See Cayward, 552 So. 2d at 971 (excluding confession).
309. But see Jackson, 304 S.E.2d at 144 (admitting confession).
310. But see Beasley, 512 A.2d at 1010 (admitting confession).
311. Cf. Cayward, 552 So. 2d at 975 (arguing that interrogator's use of manufactured evidence to obtain a confession could erode citizens' respect for the law).
312. See, e.g., Commonwealth v. Graham, 182 A.2d 727 (Pa. 1962).
313. See, e.g., Commonwealth v. Baity, 237 A.2d 172 (Pa. 1968).
314. See, e.g., Miller v. Fenton, 474 U.S. 104, 106 (1985) (remanding for a determination of whether the circumstances of the interrogation rendered the confession involuntary).
315. Cf. Roppé, supra note 274, at 768 (advocating legislation that would bar police from purposefully misrepresenting facts in order to induce a confession).
316. See supra text accompanying notes 239-240.
317. See 3 WIGMORE, supra note 24, § 820, at 238.
318. See 3 RUSSELL ON CRIMES 478 (Horace Smith & A.P.P. Keep eds., 6th ed. 1896).
319. 168 U.S. 532 (1897).
320. Id. at 564-65. In Bram, the investigating detective said to the defendant, "Now, look here, Bram, I am satisfied that you killed the captain . . . . If you had an accomplice, you should say so, and not have the blame of this horrible crime on your own shoulders." The defendant responded with an incriminating statement. The Court held that the detective's comment rendered the defendant's statement involuntary (and compelled within the meaning of the Fifth Amendment) because the Detective's comment "naturally imported a suggestion of some benefit as to the crime and its punishment as arising from making a statement." Id. at 564-65.
321. See 3 WIGMORE, supra note 24, § 836, at 275.
322. See eg State v. Fuqua, 152 S.E.2d 68, 72 (N.C. 1967) (excluding confession because officer told suspect he would testify that the suspect cooperated with the investigation).
323. 499 U.S. 279 (1991).
324. Id. at 285.
325. In Fulminante, the defendant, who was in prison on a weapons charge, was experiencing "rough treatment" from other inmates because he was suspected of killing his 11-year-old stepdaughter. A confidential informer of the FBI, who was another inmate pretending to be an organized crime figure, offered the defendant protection from other inmates on the condition that he "tell the truth" about the killing of his stepdaughter. By a 5-4 vote, the Court held that a confession obtained under these circumstances was involuntary because it was induced by "a credible threat of physical violence." Id. at 286. See generally Welsh S. White, Regulating Prison Informers Under the Due Process Clause, 1991 SUP. CT. REV. 103, 111-18 (examining Fulminante in detail).
326. See Fulminante, 499 U.S. at 287.
327. See supra text accompanying notes 258-278.
328. See 3 WIGMORE, supra note 24, § 835, at 273.
329. See supra text accompanying notes 273-277.
330. See Albert W. Alschuler, The Prosecutor's Role in Plea Bargaining, 36 U. CHI. L. REV. 50, 61-62 (1968).
331. In contrast, an informed suspect might be aware of the interrogator's limited authority to enter into an agreement that would be binding on the prosecutor, or that an attorney would be in a better position to negotiate on his behalf.
332. Even Wigmore conceded that a promise of pardon or non-prosecution was likely to induce a false confession. See 3 WIGMORE, supra note 24, § 834, at 271.
333. Parloff, supra note 26, at 60.
334. 397 U.S. 742 (1970).
335. Id. at 754.
336. There have been cases in which interrogators made statements that would lead the suspect to believe that his confession to the crime would lead to a more favorable disposition of his case, see, for example, Miller v. Fenton, 796 F.2d 598 (3d Cir. 1986), which held that a confession was voluntary despite the interrogator's suggestions that the suspect would be given psychiatric help rather than being treated as a criminal if he confessed and State v. Biron, 123 N.W.2d 392 (Minn. 1963), which held that a confession was involuntary where, among other things, interrogating officers made statements suggesting that the 18-year-old suspect being questioned for murder would be treated as a juvenile rather than an adult if he confessed.
337. See INBAU ET AL., supra note 24, at 114.
338. See, e.g., INBAU ET AL., supra note 24, at 114 ("In applying [the] technique of condemning the accomplice, the interrogator must proceed cautiously and must refrain from making any comments to the effect that the blame cast on an accomplice thereby relieves the suspect of legal responsibility for his part in the commission of the offense.").
339. See, e.g., State v. Fuqua, 152 S.E.2d 68, 72 (N.C. 1967) (excluding confession because officer told the suspect he would testify that the suspect cooperated with the investigation).
340. See, e.g., Layne v. State, 542 So. 2d 237, 239 (Miss. 1989) (holding that promise to inform prosecuting attorney that the suspect was cooperating did not render the confession involuntary). See generally George E. Dix, Promises, Confessions, and Wayne LaFave's Bright Line Rule Analysis, 1993 U. ILL. L. REV. 207 [hereinafter Dix, Promises].
341. Promises that a confession would be good for the suspect's soul could be carried to such an extreme as to be coercive under the traditional due process test. See, e.g., People v. Adams, 192 Cal. Rptr. 290, 303 (Ca. Ct. App. 1983) (concluding that sheriff's statements that suspect's failure to confess would cause God to "turn his back" on her constituted such an overwhelming appeal to the suspect's emotions and fears that they rendered her confession involuntary).
342. See supra text accompanying note 178.
343. Other commentators have supported a similar prohibition. See Dix, Promises, supra note 307, at 259 (advocating "prophylactic promise rule requiring exclusion of a confession given after officers or prosecutors made a promise of leniency to the suspect"); Philip E. Johnson, A Statutory Replacement for the Miranda Doctrine, 24 AM. CRIM. L. REV. 303, 310 (1986) ("Statements that promise leniency or imply that the suspect may not be prosecuted are . . . impermissible.").
344. See KAMISAR, ESSAYS, supra note 45, at 129.
345. MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE § 130.4, at 39 (1975).
346. UNIFORM RULES OF CRIMINAL PROCEDURE Rule 243 (1974).
347. See, e.g., Roscoe Pound, Legal Interrogation of Persons Accused or Suspected of Crime, 24 J. AM. INST. CRIM. L. & CRIMINOLOGY 1014, 1017 (1934); Glanville Williams, The Authentication of Statements to the Police, 1979 CRIM. L. REV. 6.
348. See, e.g., Roscoe Pound, Legal Interrogation of Persons Accused or Suspected of Crime, 24 J. AM. INST. CRIM. L. & CRIMINOLOGY 1014, 1017 (1934); Glanville Williams, The Authentication of Statements to the Police, 1979 CRIM. L. REV. 6.
349. See Anthony G. Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U. L. REV. 785, 806 (1970) (discussing how interrogation cases involving factual disputes between police and suspect were invariably resolved against the suspect).
350. See generally KAMISAR, ESSAYS, supra note 45.
351. See KAMISAR, ESSAYS, supra note 45, at 132 (quoting Brief for United States at 20-21, Massiah v. United States, 377 U.S. 201 (1964) (No. 199)).
352. See supra text accompanying note 309.
353. See supra text accompanying note 257.
354. In some cases, psychologists have been permitted to testify as expert witnesses for the purpose of explaining the circumstances that are likely to produce a false or untrustworthy confession. See, e.g., State v. Sawyer, 561 So. 2d 278, 289 (Fla. Dist. Ct. App. 1990) (permitting expert testimony of Richard Ofshe). Expert testimony of this type will obviously be particularly helpful when it is based on a videotape of the interrogation.
355. Cf. supra text accompanying notes 128-136.
356. Cassell, Miranda's Social Costs, supra note 19, at 488.
357. See Parloff, supra note 26, at 62 (observing that the tapes of the three false confessions in the Thai Buddhist Temple murders provided some indication that the confessions were false); Philip Weiss, Untrue Confessions, MOTHER JONES, Sept. 1989, at 20 (observing that if Tom Sawyer's 16-hour interrogation had not been tape-recorded, people might still believe that his confession was true).
358. Cassell, Miranda's Social Costs, supra note 19, at 489.
359. Id.
360. Id.
361. Id.
362. As Kamisar observes, recording interrogations of suspects will generally be feasible. See KAMISAR, ESSAYS, supra note 45, at 133. In most cases, the police interrogate inspects at the police station where videotaping equipment would be readily available. However, when the interrogation occurs at an unexpected time in a remote location, such as in a police car as in Brewer v. Williams, 430 U.S. 387 (1977), videotaping the interrogation may not be feasible.