The substance of false confessions

Stanford Law Review

Volumn 62, Issue 4, 2010, Pages 1051-1119

  Garrett, Brandon L ^a  

^a UNIVERSITY OF VIRGINIA SCHOOL OF LAW   (United States)

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EID: 77950657709     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (409)

1. JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW §§ 835, 867 (2d ed. 1923).
2. See Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55 (2008)
3. st, that of Ted Bradford in Washington state, involved a false confession reported to have included "details that would only be known to the rapist."
4. nd, that of Anthony Caravella in Florida, involved a confession that initially included details inconsistent with the crime, but which over a series of interrogations was reported to include accurate details, including information "suggested to him by leading questions."
5. Paula McMahon, DNA Result Just One Troubling Aspect in Convicted Man's Case, SOUTH FLA. SUN SENTINEL, Sept. 4, 2009.
6. Saul M. Kassin et al., Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs, 31 LAW & HUM. BEHAV. 381, 382 (2007) [hereinafter Kassin et al., Police Interviewing and Interrogation] ("Largely as a result of recent DNA exonerations, many of which had contained false confessions in evidence, a spotlight of scrutiny has been cast on the processes of police interviewing and interrogation."). The American Psychology and Law Society issued a landmark white paper on the subject, which began by citing to a new awareness of the problem of false confessions "[i]n this new era of DNA exonerations."
7. Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 LAW & HUM. BEHAV. 3, 3 (2010) [hereinafter Kassin et al., PoliceInduced Confessions].
8. See Saul M. Kassin & Lawrence S. Wrightsman, Confession Evidence, in THE PSYCHOLOGY OF EVIDENCE AND TRIAL PROCEDURE 67, 67-94 (Saul M. Kassin & Lawrence S. Wrightsman eds., 1985)
9. Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. CRIM. L. & CRIMINOLOGY 429, 431, 435 (1998). For experimental work concerning false confessions
10. see Saul M. Kassin & Holly Sukel, Coerced Confessions and the Jury: An Experimental Test of the "Harmless Error" Rule, 21 LAW & HUM. BEHAV. 27, 28 (1997)
11. Saul M. Kassin, On the Psychology of Confessions: Does Innocence Put Innocents at Risk?, 60 AM. PSYCHOL. 215, 216, 223 (2005) [hereinafter Kassim, On the Psychology of Confessions]
12. Saul M. Kassin & Katharine L. Kiechel, The Social Psychology of False Confessions: Compliance, Internalization, and Confabulation, 7 PSYCHOL. SCI. 125 (1996)
13. Corey J. Ayling, Comment, Corroborating Confessions: An Empirical Analysis of Legal Safeguards Against False Confessions, 1984 WIS. L. REV. 1121, 1186-87.
14. Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 DENV. U. L. REV. 979, 1119 (1997) (developing the concept of confession "contamination").
15. 7 Fact, 26 SEATTLE U. L. REV. 783, 789 (2003).
16. See RICHARD A. LEO, POLICE INTERROGATION AND AMERICAN JUSTICE 166 (2008) (calling on scholars to examine "the postadmission portion of police interrogation" and noting that "it has received far less attention from scholars, lawyers, and the media" than the voluntariness of the admission of guilt)
17. see also GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS AND CONFESSIONS 523-37 (2003) (highlighting the "dangers of relying on special knowledge of the crime as proof of guilt").
18. The characteristics of all forty cases are summarized in the Appendix, which is available online at a University of Virginia School of Law Library research collection webpage together with relevant portions of exonerees' interrogation records and trial transcripts. See Univ. of Va. Sch. of Law, False Confessions, Transcripts and Testimony, http://www.law.virginia.edu/html/librarysite/garrett_falseconfess.htm (last visited Feb. 23, 2010).
19. See Trial Transcript at 1207-08, People v. Deskovic, No. 192-90 (N.Y. Sup. Ct. Nov. 30, 1990) [hereinafter Deskovic Trial Transcript]; Innocence Project Profile of Jeff Deskovic, http://www.innocenceproject.org/Content/44.php (last visited Nov. 20, 2009).
20. LESLIE CROCKER SNYDER, et al., WESTCHESTER COUNTY DIST. ATTORNEY, REPORT ON THE CONVICTION OF JEFF DESKOVIC 2, 5-6 (2007), available at http://www.westchesterda.net/Jeffrey%20Deskovic%20Comm%20Rpt.pdf [hereinafter Deskovic Report].
21. LESLIE CROCKER SNYDER, et al., WESTCHESTER COUNTY DIST. ATTORNEY, REPORT ON THE CONVICTION OF JEFF DESKOVIC 2 5, 14.
22. LESLIE CROCKER SNYDER, et al., WESTCHESTER COUNTY DIST. ATTORNEY, REPORT ON THE CONVICTION OF JEFF DESKOVIC 2 33
23. Deskovic Trial Transcript, at 1167, 1185.
24. Deskovic Trial Transcript, at 1185.
25. Deskovic Trial Transcript 1429, 1512-13.
26. Deskovic Trial Transcript 1492.
27. Deskovic Trial Transcript 1494.
28. Deskovic Trial Transcript 1512-13, 1537.
29. Deskovic Trial Transcript 1504.
30. Deskovic Trial Transcript 1504-05.
31. Deskovic Trial Transcript 1505.
32. See Profile of Jeff Deskovic, supra note 9
33. see also Fernanda Santos, Inmate Enters Guilty Plea in '89 Killing, N.Y. TIMES, Mar. 15, 2007.
34. See Deskovic Report, supra note 10, at 6.
35. Deskovic Trial Transcript, at 1265-67.
36. Fernanda Santos, DNA Evidence Frees Man Imprisoned for Half His Life, N.Y. TIMES, Sept. 21, 2006, at B1.
37. Jonathan Bandler, Deskovic Sues Police, Medical Examiner, Prosecutors in Wrong Conviction, J. NEWS (Westchester, N.Y.), Sept. 18, 2007, at 1A.
38. Yale Kamisar, What Is an "Involuntary" Confession? Some Comments on Inbau and Reid's Criminal Interrogation and Confessions, 17 RUTGERS L. REV. 728, 732 (1963)
39. Welsh S. White, What Is an Involuntary Confession Now?, 50 RUTGERS L. REV. 2001, 2003-04 (1998).
40. LEO, supra note 7, at 166.
41. See infra Part I.A.
42. See app., supra note 8.
43. See infra notes 180-82 and accompanying text.
44. See infra notes 183 and 184 and accompanying text.
45. See app., supra note 8 (listing examples of reported facts in each exonerees' case); infra Part I.B.
46. See app., supra note 8 (quoting relevant testimony for each case).
47. See infra Part II.C.
48. See infra Part III.D.
49. See infra Part II.B-C.; see also app., supra note 8 (quoting closing arguments in cases where transcipts were obtained).
50. See infra Part III.G.
51. See infra Part III.G.
52. Dickerson v. United States, 530 U.S. 428, 444 (2000).
53. Missouri v. Seibert, 542 U.S. 600, 609 (2004) (plurality opinion) (citing Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984)).
54. Missouri v. Seibert, 542 U.S. 600, 609 (2004) (plurality opinion) (citing Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984)).
55. Dickerson, 530 U.S. at 435.
56. See Richard A. Leo et al., Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 WIS. L. REV. 479, 486.
57. See infra Part III.
58. See infra Part III.A. (discussing how exonerees waived their Miranda rights when given the warnings as required when interrogated in custody).
59. See infra Part III.A. Where, as discussed infra Part I.B., the confession was the central evidence that the State relied upon, prior to the confession police often did not have probable cause for an arrest.
60. See infra Part III.F.
61. See, e.g., LEO, supra note 7, at 243 (reviewing literature, and concluding "[s]ince the late 1980s, six studies alone have documented approximately 250 interrogation-induced false confessions"). Those six studies are: ROB WARDEN, CTR. ON WRONGFUL CONVICTIONS, THE ROLE OF FALSE CONFESSIONS IN ILLINOIS WRONGFUL MURDER CONVICTIONS SINCE 1970 (2003), available at http://www.law.northwestern.edu/wrongfulconvictions/issues/causesandreme dies/falseconfessions/FalseConfessionsStudy.html (identifying twentyfive false confessions in Illinois)
62. Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21, 56-64 (1987) (identifying fortynine false confessions)
63. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. REV. 891, 894-900 (2004) (identifying 125 false confessions)
64. Garrett, supra note 2, at 88 (identifying thirty-one DNA postconviction exonerations involving false confessions)
65. Samuel R. Gross et al., Exonerations in the United States: 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 544 (2005) (identifying fifty-one false confessions).
66. The twenty-five cases are those of: M. Bradford, R. Cruz, J. Dean, A. Gray, P. Gray, T. Hayes, A. Hernandez, D. A. Jones, W. Kelly, A. McCray, R. Miller, C. Ochoa, C. Ollins, K. Richardson, Y. Salaam, R. Santana, D. Shelden, A. Taylor, J. Townsend, D. Vasquez, D. Warney, E. Washington, R. Williamson, T. Winslow, K. Wise. Cases involving subsequent confessions of the person inculpated by postconviction DNA testing are those of Cruz, Hernandez, Ochoa, McCray, Richardson, Salaam, Santana, and Wise.
67. For example, DNA testing conducted before trial has excluded defendants who had falsely confessed.
68. See, e.g., Posting of Steven Drizin to Bluhm Blog, Another False Confession in New Mexico?, http://blog.law.northwestern.edu/bluhm/2009/03/another-false-confession- in-new-mexico.html (Mar. 8, 2009, 16:02 CST).
69. See Garrett, supra note 2, at 94.
70. Law student research assistants initially coded the materials by following a preestablished protocol. I then reviewed, non-blind, their coding and each set of records.
71. All of the forty exonerees listed in the Appendix were convicted at a trial, except M. Bradford, K. Brown, J. Dean, A. Gray, W. Kelly, C. Ochoa, D. Shelden, J. Taylor, J. Townsend, D. Vasquez, and T. Winslow, who had pleaded guilty. For all of the thirty convicted at a trial, trial materials were obtained. Of those eleven who pleaded guilty, six had trial materials because they testified in codefendant's trials or were tried for additional crimes that they did not commit. Townsend was tried for two of the crimes he confessed to, and Bradford, Dean, Ochoa, Taylor, and Shelden testified against others they had implicated. See http://www.law.virginia.edu/html/librarysite/garrett_falseconfess.htm.
72. See at 6, 14-16. For David Vasquez, I obtained materials from motions and hearings conducted before his plea. For William Kelly, postconviction motions to vacate detailed the confession. Thomas Winslow gave videotaped confession statements before his guilty plea, which were provided by the Nebraska Attorney General's Office.
73. Many thanks to Michelle Morris for obtaining the Gray court file, which did not include trial materials, and to Christine Mumma, Director of the North Carolina Center on Actual Innocence, for searching, unsuccessfully, for the Brown materials.
74. Amended Request to Withdraw Guilty Plea at 5, State v. Gray, No. C-91-409 (Md. Ct. Spec. App. Feb. 20, 1992).
75. Amended Request to Withdraw Guilty Plea at 5, State v. Gray, No. C-91-409 (Md. Ct. Spec. App. Feb. 20, 1992) at 5-6.
76. Letter from Anthony Gray to Judge Rymer, Defendant's Exhibit 6 at 1, Gray, No. C-01-409 (Nov. 25, 1991).
77. Wrongly Imprisoned Man Finally Free, ASSOCIATED PRESS, Feb. 9, 1999. Anthony Gray was sentenced in Calvert County, Maryland, to two concurrent life sentences after pleading guilty in October 1991, to first degree murder and first degree rape. Police officers coaxed a confession out of Gray, who is borderline retarded, by telling him that two other men arrested in connection with the case had told police that Gray was involved. In fact, the co-defendants had neither confessed nor implicated Gray. Later, a defense attorney for one of these other defendants told Gray that all three men would be freed if Gray refused to testify. Gray took the advice and prosecutors abandoned their agreement to recommend a thirty year sentence. The Innocence Project, Profile of Anthony Gray, http://www.innocenceproject.org/Content/159.php (last visited Nov. 23, 2009).
78. See Kassin & Wrightsman, supra note 4, at 77-78.
79. See Kassin & Wrightsman, supra note 4 at 77.
80. Richard J. Ofshe & Richard A. Leo, The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions, in 16 STUDIES IN LAW, POLITICS, AND SOCIETY 189, 211, 238 (Austin Sarat & Susan S. Silbey eds., 1997).
81. FRED E. INBAU, et al., CRIMINAL INTERROGATION AND CONFESSIONS 412 (4th ed. 2001).
82. See Daryl J. Bem, When Saying Is Believing, PSYCHOL. TODAY, June 1967, at 2225
83. Kassin & Kiechel, supra note 4.
84. The 14 mentally retarded or borderline mentally retarded exonerees were: A. Gray, P. Gray, B. Halsey, T. Hayes, D. Jones, F. Peacock, W. Kelly, B. Laughman, E. Lloyd, C. Ollins, L. Rollins, J. Townsend, D. Vasquez, and E. Washington. In addition, A. Taylor, D. Warney, and R. Williamson were diagnosed as mentally ill. Still others may not have been examined by experts or fully diagnosed at the time of trial.
85. See People v. Wise, 752 N.Y.S.2d 837, 843 (N.Y. Sup. Ct. 2002). Those juveniles were: M. Bradford, D. Brown, J. Deskovic, P. Gray, N. Hatchett T. Hayes, A. McCray, C. Ollins, K. Richardson, L. Rollins, Y. Salaam, R. Santana, and K. Wise.
86. See Garrett, supra note 2, at 89. This is consistent with data from studies of nonDNA false confessions. See, e.g., Gross et al., supra note 48, at 545 ("Thirty-three of the exonerated defendants were under eighteen at the time of the crimes for which they were convicted, and fourteen of these innocent juveniles falsely confessed-42%, compared to 13% of older exonerees. Among the youngest of these juvenile exonerees-those aged twelve to fifteen-69% (9/13) confessed to homicides (and one rape) that they did not commit.")
87. see also Paul G. Cassell, The Guilty and the "Innocent": An Examination of Alleged Cases of Wrongful Conviction from False Confessions, 22 HARV. J.L. & PUB. POL'Y 523, 586-87 (1999) (arguing that data concerning false confessions among "certain narrow, mentally limited populations," suggest the need for special precautions during interrogations of such suspects).
88. See, e.g., Richard J. Bonnie & Thomas Grisso, Adjudicative Competence and Youthful Offenders, in YOUTH ON TRIAL 73, 87-88 (Thomas Grisso & Robert G. Schwartz eds., 2000)
89. Morgan Cloud et al., Words Without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects, 69 U. CHI. L. REV. 495, 495, 590 (2002)
90. Gisli H. Gudjonsson, Suggestibility and Compliance Among Alleged False Confessors and Resisters in Criminal Trials, 31 MED. SCI. & L. 147, 148-49 (1991)
91. Allison D. Redlich, Alicia Summers & Steven Hoover, Self-Reported False Confessions and False Guilty Pleas Among Offenders with Mental Illness, 34 LAW & HUM. BEHAV. 79 (2010)
92. Elizabeth S. Scott & Thomas Grisso, The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform, 88 J. CRIM. L. & CRIMINOLOGY 137, 156-76 (1997).
93. Trial Transcript at 1006, State v. Danziger, No. 96,470 (Tex. Dist. Ct. Jan. 23, 1990) [hereinafter Danziger Trial Transcript].
94. LEO, supra note 7, at 245; see Gross et al., supra note 48, at 544.
95. Trial Transcript at 1292, State v. Miller, CRF-87-963 (Okla. Dist. Ct. May 19, 1988) [hereinafter Miller Trial Transcript].
96. INBAU ET AL., supra note 64, at 367.
97. INBAU ET AL., supra note 64. at 381.
98. INBAU ET AL., supra note 64. at 369.
99. INBAU ET AL., supra note 64. at 382.
100. See LEO, supra note 7, at 168. The construction of such narratives raises important questions not just as to accuracy, but also as to other distortions that they may create, including by employing narratives that undermine other goals of criminal law, like legitimacy. Anne Coughlin has written an important article examining the victim-blaming narratives endorsed by leading training manuals and employed to "minimize" the acts of a suspect during interrogations.
101. Anne M. Coughlin, Interrogation Stories, 95 VA. L. REV. 1599 (2009).
102. Coughlin argues that "[v]ictim-blaming is incompatible with the contemporary goals of rape law, and the police should stop feeding those stock stories to accused rapists." at 1660.
103. INBAU ET AL., supra note 64, at 414
104. see also John E. Reid & Assocs. Motives for False Confessions, POLICEONE.COM, July 2, 2009, http://www.policeone.com (describing causes of false confessions and recommending that investigators tailor their techniques for particular suspects, as well as assess "credibility" of a confession, including by examining the "extent of corroboration between the confession and the crime").
105. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS, at 425.
106. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS, at 369.
107. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS, at 369.
108. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS, at 433.
109. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS at 369.
110. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS. at 432-33.
111. See Maurice Possley & Steve Mills, DNA Test Rules Out Roscetti Inmates- Lawyer for Men Plans to Ask Court for Their Freedom, CHI. TRIB., Nov. 14, 2001, at 1.
112. See The Innocence Project, Profile of Calvin Ollins, http://www.innocenceproject.org/Content/231.php (last visited Jan. 11, 2010).
113. Trial Transcript at 20-21, People v. Ollins, No. 87-CR-4752 (Ill. Cir. Ct. June 14, 1988) [hereinafter Ollins Trial Transcript].
114. Trial Transcript at 20-21, People v. Ollins, No. 87-CR-4752 (Ill. Cir. Ct. June 14, 1988) [hereinafter Ollins Trial Transcript] at 21.
115. Trial Transcript at 20-21, People v. Ollins, No. 87-CR-4752 (Ill. Cir. Ct. June 14, 1988) [hereinafter Ollins Trial Transcript].
116. Statement of Calvin Ollins 7 (Jan. 28, 1987) (on file with author).
117. Statement of Marcellius Bradford 10 (Jan. 28, 1987) (on file with author).
118. Trial Transcript at 20-21, People v. Ollins, No. 87-CR-4752 (Ill. Cir. Ct. June 14, 1988) [hereinafter Ollins Trial Transcript].
119. Indeed, a police medical examiner performed microscopic analysis of hairs found on this piece of concrete, and determined that the hairs were dissimilar to those of the victim. Ollins Trial Transcript, supra note 87, at 15, 19 (June 16, 1988).
120. Trial Transcript at 20-21, People v. Ollins, No. 87-CR-4752 (Ill. Cir. Ct. June 14, 1988) [hereinafter Ollins Trial Transcript] 131-32 (June 15, 1988).
121. Trial Transcript at 20-21, People v. Ollins, No. 87-CR-4752 (Ill. Cir. Ct. June 14, 1988) [hereinafter Ollins Trial Transcript]. at 163 (June 16, 1988).
122. Statement of Calvin Ollins, The Innocence Project, Profile of Calvin Ollins, at 8.
123. Ollins Trial Transcript, The Innocence Project, Profile of Calvin Ollins, at 157, 166 (June 16, 1988).
124. Ollins Trial Transcript, The Innocence Project, Profile of Calvin Ollins. at 92 (June 14, 1988).
125. Ollins Trial Transcript, The Innocence Project, Profile of Calvin Ollins. at 116.
126. Ollins Trial Transcript, The Innocence Project, Profile of Calvin Ollins. at 69 (June 20, 1988).
127. Ollins Trial Transcript, The Innocence Project, Profile of Calvin Ollins. at 70.
128. Ollins Trial Transcript, The Innocence Project, Profile of Calvin Ollins. at 72. Other false details may have been disclosed to Bradford, for example, the involvement of a "Daniels," who Bradford mentioned only after Officer Mercurio told Bradford about such a person, after Calvin Ollins had earlier named a "Daniels."
129. Ollins Trial Transcript, The Innocence Project, Profile of Calvin Ollins. at 790 (June 16, 1988).
130. Ofshe & Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 DENV. U. L. REV., at 993.
131. Sharon Cohen, Jailed at 14, Youth Refused to Surrender Hope, L.A. TIMES, June 9, 2002, at 1.
132. Maurice Possley, Eric Ferkenhoff & Steve Mills, Police Arrest 2 in Roscetti Case: Officials Say Tip Led Them to Pair, Who Confessed, CHI. TRIB., Feb. 8, 2002, § 1, at 1. 106.
133. Possley & Mills, DNA Test Rules Out Roscetti Inmates-Lawyer for Men Plans to Ask Court for Their Freedom, CHI. TRIB.
134. Trial Transcript at 78-79, State v. Brown, No. 128,634 (La. Dist. Ct. Sept. 12, 1985) [hereinafter Brown Trial Transcript].
135. 3 Trial Transcript at 563-75, People v. Warney, No. 96-0088 (N.Y. Sup. Ct. Feb. 11, 1997) [hereinafter Warney Trial Transcript].
136. 2 Warney Transcript, supra note 108, at 117 (Feb. 5, 1997).
137. 2 Warney Transcript, supra note 108, at 117 (Feb. 5, 1997).
138. 2 Warney Transcript, supra note 108, at 117 (Feb. 5, 1997).
139. 3 Warney Transcript, supra note 108, at 570-71 (Feb. 11, 1997).
140. Jim Dwyer, Inmate To Be Freed as DNA Tests Upend Murder Confession, N.Y. TIMES, May 16, 2006, at B1.
141. Jim Dwyer, Inmate To Be Freed as DNA Tests Upend Murder Confession, N.Y. TIMES, May 16, 2006, at B1.
142. Trial Transcript at 942, State v. White, No. 9316 (Neb. Dist. Ct. Nov. 7, 1989) [hereinafter White Trial Transcript].
143. Trial Transcript at 942, State v. White, No. 9316 (Neb. Dist. Ct. Nov. 7, 1989) [hereinafter White Trial Transcript].
144. Trial Transcript at 942, State v. White, No. 9316 (Neb. Dist. Ct. Nov. 7, 1989) [hereinafter White Trial Transcript].
145. Trial Transcript at 942, State v. White, No. 9316 (Neb. Dist. Ct. Nov. 7, 1989) [hereinafter White Trial Transcript].
146. Trial Transcript at 942, State v. White, No. 9316 (Neb. Dist. Ct. Nov. 7, 1989) [hereinafter White Trial Transcript].
147. Trial Transcript at 942, State v. White, No. 9316 (Neb. Dist. Ct. Nov. 7, 1989) [hereinafter White Trial Transcript].
148. Trial Transcript at 942, State v. White, No. 9316 (Neb. Dist. Ct. Nov. 7, 1989) [hereinafter White Trial Transcript].
149. Trial Transcript at 942, State v. White, No. 9316 (Neb. Dist. Ct. Nov. 7, 1989) [hereinafter White Trial Transcript].
150. Trial Transcript at 450, State v. Williamson, CRF 87-90 (Okla. Dist. Ct. Apr. 22, 1988) [hereinafter Williamson Trial Transcript].
151. Trial Transcript at 450, State v. Williamson, CRF 87-90 (Okla. Dist. Ct. Apr. 22, 1988) [hereinafter Williamson Trial Transcript]. at 541-42 (Apr. 25, 1988). However, in a possible inconsistency if Williamson meant he stabbed using a knife, the medical examiner also stated that he did not believe the puncture wounds on her body were caused by a knife. Id. at 551-52.
152. Trial Transcript at D-169 to -170, People v. Rollins, No. 93 CR 6342 (Ill. Cir. Ct. Mar. 2, 1994) [hereinafter Rollins Trial Transcript].
153. Nor would state of mind be relevant to the question whether the officers violated exonerees' constitutional rights. In order to violate the constitutional rights of the defendants, these officers need not have perjured themselves at trial, so long as they knew they had falsely represented to prosecutors that the defendants volunteered nonpublic facts.
154. See, e.g., Napue v. Illinois, 360 U.S. 264, 269 (1959); Devereaux v. Abbey, 263 F.3d 1 070, 1074-76 (9th Cir. 2001).
155. Jim Trainum, I Took a False Confession-So Don't Tell Me It Doesn't Happen!, CA. MAJORITY REP., Sept 20, 2007, http://www.camajorityreport.com/index.php?module=articles&func=displ ay&ptid=9&aid=2306 [hereinafter Trainum, I Took a False Confession]
156. see also Jim Trainum, Editorial, Get It on Tape; A False Confession to Murder Convinced a Cop That a Visual Record Can Help Ensure an Innocent Person Isn't Convicted, L.A. TIMES, Oct. 24, 2008, at A23.
157. Trainum, I Took a False Confession, supra note 127.
158. See Motion to Suppress Hearing Transcript at 40, People v. Hatchett, 97-1497-FC (Mich. Cir. Ct. Sept. 22, 1997).
159. MARGARET EDDS, AN EXPENDABLE MAN at xi-xiii (2003).
160. Washington v. Murray, 4 F.3d 1285, 1292 (4th Cir. 1993).
161. Statement of Earl Junior Washington 21 (June 4, 1982) (on file with author) [hereinafter Washington Statement].
162. Trial Transcript at 527-37, 540, 566, Commonwealth v. Washington (Va. Cir. Ct. Jan. 19, 1984) [hereinafter Washington Trial Transcript]. Officer Buraker testified that "[w]here these holes were there were reddish stains there at that time. They appeared to be blood stains....At the laboratory these were cut out, these reddish stains....").
163. Trial Transcript. at 722-23 (Jan. 20, 1984).
164. Trial Transcript. at 724.
165. Trial Transcript. at 724.
166. See Maria Glod, Va. Inmate Indicted in Killing That Altered DNA Testing Law, WASH. POST, Aug. 23, 2006, at A1; Assoc. Press, Tinsley Pleads Guilty to Culpeper Killing, Apr. 12, 2007.
167. See Washington v. Wilmore, 407 F.3d 274, 277 (4th Cir. 2005) (quoting the Assistant Attorney General's memorandum).
168. Jerry Markon, Wrongfully Jailed Man Wins Suit, WASH. POST, May 6, 2006, at B1 (describing that jury awarded $2.25 million after finding that "Wilmore deliberately falsified evidence, which resulted in Washington's conviction and death sentence").
169. 13 Trial Transcript at 5291-92, People v. McCray, No. 4762/89 (N.Y. Sup. Ct. Aug. 8, 1990) [hereinafter McCray Trial Transcript].
170. Trial Transcript at 2-114 to -115, Commonwealth v. Yarris, No. 690-82 (Pa. Ct. Com. Pl. June 29, 1982) [hereinafter Yarris Trial Transcript].
171. Trial Transcript at 2-114 to -115, Commonwealth v. Yarris, No. 690-82 (Pa. Ct. Com. Pl. June 29, 1982) [hereinafter Yarris Trial Transcript] 2-115.
172. Trial Transcript at 2-114 to -115, Commonwealth v. Yarris, No. 690-82 (Pa. Ct. Com. Pl. June 29, 1982) [hereinafter Yarris Trial Transcript].
173. Trial Transcript at 494-95, Commonwealth v. Laughman, CC-458-87 (Pa. Ct. Com. Pl. Dec. 14, 1988).
174. Trial Transcript at 22, Commonwealth v. Godschalk, No. 934-87 (Pa. Ct. Com. Pl. May 28, 1987) [hereinafter Godschalk Trial Transcript].
175. Trial Transcript at 22, Commonwealth v. Godschalk, No. 934-87 (Pa. Ct. Com. Pl. May 28, 1987) [hereinafter Godschalk Trial Transcript]. at 22-23.
176. Miller Trial Transcript, supra note 72, at 1292. 148.
177. Trial Transcript at 146, People v. Hernandez, Nos. 84-CF-361-01-12, 84-CF-36201-12, 84-CF-363-01-12 (Ill. Cir. Ct. Feb. 20, 1985).
178. Like Washington, other exonerees filed civil rights lawsuits, and some received substantial settlements or verdicts, though most have received no compensation. See Garrett, supra note 2, at 120-21.
179. The author received copies of videotapes taken of portions of the A. Taylor, D. Shelden and T. Winslow interrogations. The videos are also available on the LINCOLN JOURNAL-STAR webpage, at http://www.journalstar.com/app/vmix/media/?section=browse&id=0000701 1.
180. See also Jason Volentine, Stolen Lives: The Story of the Beatrice 6 (Part Two), LINCOLN J.-STAR Mar. 16, 2009, available at http://www.1011now.com/news/headlines/41304322.html;
181. Joe Duggan, Presumed Guilty, Part Three: The Break, LINCOLN J.-STAR, May 5, 2009, available at http://www.journalstar.com/special_reports/presumed_guilty/article_21cb7 a5e-da01-5f76-8dfd-2fd3b5f32417.html.
182. Transcription of Taped Interview of David Jones at 33, People v. Jones, No. BAO71698 (Cal. Super. Ct. Mar. 3, 2005).
183. Maura Dolan & Evelyn Larrubia, Telling Police What They Want To Hear, Even if It's False, L.A. TIMES, Oct. 30, 2004, at A1.
184. See Godschalk Trial Transcript, supra note 145, at 86 (May 26, 1987).
185. Godschalk Trial Transcript, supra note 145. at 121 (May 27, 1987).
186. See Godschalk Trial Transcript, supra note 145. at 131.
187. See Godschalk Trial Transcript, supra note 145. at 143-44.
188. See Godschalk Trial Transcript, supra note 145. at 70 (May 26, 1987).
189. See Godschalk Trial Transcript, supra note 145. at 71.
190. See Godschalk Trial Transcript, supra note 145.
191. See Godschalk Trial Transcript, supra note 145. at 129.
192. See Godschalk Trial Transcript, supra note 145. at 85, 144 (May 27, 1987).
193. See Godschalk Trial Transcript, supra note 145. at 78-80 (May 26, 1987).
194. Yarris Trial Transcript, supra note 141, at 2-133 to -135.
195. Memorandum in Opposition to Defendant's Motion to Suppress Statements at 1-2, Commonwealth v. Vasquez, C-22,213 to -22,216, C-22,763 (Va. Cir. Ct. Oct. 1984) [hereinafter Vasquez Opposition Memorandum].
196. Am. Civil Liberties Union, Mentally Retarded Death Row Exonerations, http://www.aclu.org/capital/mentalretardation/10435pub20031209.html (last visited Nov. 15, 2009); see also Dana Priest, At Each Step, Justice Faltered for VA Man, WASH. POST, July 16, 1989, at A1.
197. See Volentine, Taylor, D. Shelden and T. Winslow interrogations. The videos are also available on the LINCOLN JOURNAL-STAR
198. See Videotape: Interrogation of Thomas Winslow by Burt Searcey of the Gage County Sheriff's Office (Mar. 14, 1989) (on file with author), available at http://www.journalstar.com/app/vmix/media/?section=video&id=7001609;
199. see also Duggan, supra note 150. As noted supra note 152, the interrogation videos are available for viewing on the LINCOLN JOURNAL-STAR webpage.
200. LEO, supra note 7, at 261; see also Diane Jennings, A Shaken System, DALLAS MORNING NEWS, Feb. 24, 2008, at A1 ("An Austin Police Department review later found 'strong indications that investigators supplied Ochoa with information....'").
201. Danziger Trial Transcript, supra note 70, at 1046.
202. Amy Driscoll, Taped Confessions So Flawed They're 'Worthless,' Expert Says, MIAMI HERALD, June 15, 2001 at 33A.
203. Brown Trial Transcript, supra note 107, at 97.
204. Williamson v. Reynolds, 904 F. Supp. 1529, 1565 (E.D. Okla. 1995).
205. See Godschalk Trial Transcript, supra note 145, at 71-72 (May 26, 1987). 175. See Washington Statement, supra note 132, at 5.
206. See EDDS, supra note 130, at 255.
207. Those facts included: "a. driving up and parking by the side of a house in Ogden; b. the house was white; c. the house was on a corner; d. entering by using his hand to tear open the screen door and reaching inside and lifting the latch to the screen door; e. picking up a silver table knife, a dinner knife; f. walking down a hallway (or in Malugani's testimony a living room area); g. being frightened that the woman would wake up and see him, so jumping on the bed; h. striking the victim with the handle of the knife in the head several times; i. describing that he "screwed" the victim; j. leaving the same door that he entered." Complaint at 16-17, Lowery v. County of Riley, No. 04-3101-GTV (Kan. D. Ct. Mar. 25, 2004).
208. See McCray v. City of New York, Nos. 03 Civ. 9685(DAB), 03 Civ. 9974(DAB), 03 Civ. 10080(DAB), 2007 WL 4352748, at *4 (S.D.N.Y. Dec. 11, 2007) ("Plaintiff Salaam submits only that it is alleged, presumably by Defendants, that he made an inculpatory unsigned statement.").
209. Trial Transcript at 217, 231, State v. Hayes, No. 97-3780, (La. Dist. Ct. Dec. 2, 1998) [hereinafter Hayes Trial Transcript].
210. Id. at 64. Steven Drizin called the confession "the most naked, uncorroborated false confession I've ever seen. Michael Perlstein, A Forgotten Man: Prosecutors Refuse to Reconsider Inmate's Case Despite Evidence Supporting His Claim, TIMES-PICAYUNE, Oct. 10, 2004, at O1.
211. See The Innocence Project, supra note 2.
212. See Trial Transcript at 270, People v. Freddie Peacock, #989-76 (NY Sup. Ct. Dec. 13, 1976) [hereinafter Peacock Trial Transcript].
213. See id. at 276-78.
214. 3 Trial Transcript at 40-41, People v. Lloyd, No. 85-00376 (Mich. Rec. Ct. May 2, 1985) [hereinafter Lloyd Trial Transcript].
215. See Jodi Wilgoren, Confession Had His Signature; DNA Did Not, N.Y. TIMES, Aug. 26, 2002, at A1.
216. See Miller Trial Transcript, supra note 73, at 1267-72. 187. Id. at 1289-92.
217. Trial Transcript at 122, 157, People v. Jones, No. 85-12246 (Ill. Cir. Ct. 1989) [hereinafter Jones Trial Transcript].
218. White Trial Transcript, supra note 115, at 787 (Nov. 3, 1989).
219. Washington Trial Transcript, supra note 133, at 622-24.
220. Washington Trial Transcript, supra note 133. at 625.
221. Inbau et al., supra note 64, at 390.
222. See Deskovic Report, supra note 10, at 5. 194. See id. at 2.
223. The eight are: J. Deskovic, N. Hatchett, T. Hayes, A. McCray, K. Richardson, R. Santana, Y. Salaam, and K. Wise. All of them were exonerated after postconviction testing inculpated another person except in the case of N. Hatchett. See Brandon L. Garrett, Claiming Innocence, 92 MINN. L. REV. 1629, 1660 (2008).
224. Maurice Possley, Lab Didn't Bother with DNA, CHI. TRIB., Aug. 25, 2006, § 1, at 1.
225. See Jason Volentine, Stolen Lives: The Story of the Beatrice Six (Part Three), 1011NOW.COM, Mar. 17, 2009, http://www.1011now.com/home/headlines/41402917.html.
226. See Ofshe & Leo, supra note 5, at 1119.
227. In other cases, the law enforcement account of the interrogation does not describe any statements made inconsistent with the crime, but absent a complete recording of the interrogation, one cannot be confident what transpired.
228. Washington Trial Transcript, supra note 133, at 596. 201. Id. at 618.
229. See, e.g., Eric M. Freedman, Earl Washington's Ordeal, 29 HOFSTRA L. REV. 1089, 1091-92 (2001).
230. Ardy Friedberg & Jason T. Smith, Townsend Released, SUN-SENTINEL (Ft. Lauderdale, Fla.), June 16, 2001, at 1A; Paula McMahon & Ardy Friedberg, Evidence Could Free Inmate, SUN-SENTINEL (Ft. Lauderdale, Fla.), May 8, 2001, at 1B.
231. Trial Transcript at 114-15, State v. Halsey, Nos. 63-01-86, 210-02-87 (N.J. Super. Ct. Mar. 7, 1988) [hereinafter Halsey Trial Transcript].
232. Trial Transcript at 114-15, State v. Halsey, Nos. 63-01-86, 210-02-87 (N.J. Super. Ct. Mar. 7, 1988) [hereinafter Halsey Trial Transcript]. at 115.
233. State v. Halsey, 748 A.2d 634, 637 (N.J. Super. Ct. App. Div. 2000).
234. Halsey Trial Transcript, supra note 204, at 112-13. 208. Id. at 119.
235. The Innocence Project, supra note 2.
236. Miller Trial Transcript, supra note 72, at 1289.
237. Danziger Trial Transcript, supra note 70, at 1006-09.
238. McCray v. City of New York, Nos. 03 Civ. 9685(DAB), 03 Civ. 9974(DAB), 03 Civ. 10080(DAB), 2007 WL 4352748, at *5 (S.D.N.Y. Dec. 11, 2007) (quoting district attorney's affirmation regarding 2002 motion to vacate convictions).
239. McCray v. City of New York, Nos. 03 Civ. 9685(DAB), 03 Civ. 9974(DAB), 03 Civ. 10080(DAB), 2007 WL 4352748, at *5 (S.D.N.Y. Dec. 11, 2007) (quoting district attorney's affirmation regarding 2002 motion to vacate convictions). (citing plaintiffs' complaints).
240. McCray v. City of New York, Nos. 03 Civ. 9685(DAB), 03 Civ. 9974(DAB), 03 Civ. 10080(DAB), 2007 WL 4352748, at *5 (S.D.N.Y. Dec. 11, 2007) (quoting district attorney's affirmation regarding 2002 motion to vacate convictions). (citing plaintiffs' complaints).
241. Culombe v. Connecticut, 367 U.S. 568 (1961); Stephen J. Schulhofer, Confessions and the Court, 79 MICH. L. REV. 865, 867 (1981); White, supra note 26, at 2012-13. 216. Rogers v. Richmond, 365 U.S. 534, 543-44 (1961).
242. Culombe v. Connecticut, 367 U.S. 568 (1961); Stephen J. Schulhofer, Confessions and the Court, 79 MICH. L. REV. 865, 867 (1981); White, supra note 26, at 2012-13. 216. Rogers v. Richmond, 365 U.S. 534, 543-44 (1961). at 544.
243. 479 U.S. 157, 161 (1986); id. at 175 (Brennan, J., dissenting).
244. 479 U.S. 157, 161 (1986). at 165.
245. 479 U.S. 157, 161 (1986). at 167.
246. People v. Robson, 80 P.3d 912, 913 (Colo. App. 2003) (quoting Dougherty v. People, 1 Colo. 514, 524 (1872)).
247. People v. Rooks, 243 N.Y.S.2d 301, 311 (N.Y. Sup. Ct. 1963).
248. See Leo et al., supra note 43, at 510-11.
249. Godschalk Trial Transcript, supra note 145, at 236-37 (May 27, 1982).
250. People v. McCray, 604 N.Y.S.2d 93, 95 (N.Y. App. Div. 1993).
251. See Leo et al., supra note 43, at 508 (citing case law); see also, e.g., State v. Mauchley, 67 P.3d 477, 488 (Utah 2003).
252. Trial Transcript at 824, People v. Kogut, No. 61029 (N.Y. Sup. Ct. May 13, 1986) [hereinafter Kogut Trial Transcript].
253. John H. Blume, The Dilemma of the Criminal Defendant with a Prior Record- Lessons from the Wrongfully Convicted, 5 J. EMPIRICAL LEGAL STUD. 477 (2008).
254. 3 Lloyd Trial Transcript, supra note 184, at 37.
255. 384 U.S. 436 (1966).
256. Richard A. Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY 266, 276 (1996) (presenting results of study of 122 interrogations and finding that seventy-eight percent involved Miranda waivers);
257. see also Steven D. Clymer, Are Police Free To Disregard Miranda?, 112 YALE L.J. 447, 502-12 (2002);
258. Richard A. Leo, Questioning the Relevance of Miranda in the Twenty-First Century, 99 MICH. L. REV. 1000, 1009-10 (2001);
259. Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REV. 673, 745 (1992) (noting the Cou rt excluded confessions more often pre-Miranda).
260. Several defendants in the Beatrice Six case, while interrogated initially absent their attorneys, later made videotaped confession statements with their attorneys present.
261. The Yarris and Godschalk cases discussed supra in notes 141 and 145 are examples
262. Missouri v. Seibert, 542 U.S. 600, 615-16 (2004); see also id. at 610-11 n.2 ("Most police manuals do not advocate the question-first tactic, because they understand that Oregon v. Elstad, 470 U.S. 298 (1985), involved an officer's good-faith failure to warn."); Oregon v. Elstad, 470 U.S. 298, 318 (1985) (holding that even if an initial confession was obtained improperly, such as without Miranda warnings, a subsequent second confession after properly administered warnings is admissible); Oregon v. Mathiason, 429 U.S. 492, 495 (1977) ("Miranda warnings are required only w here there has been such a restriction on a per son's freedom as to render him 'in custody.'").
263. Memorandum from Judge William L. Winston on Commonwealth v. Vasquez, Nos. C-22213-22 216, C22763 (Va. Cir. Ct. Jan. 25, 1985) [hereinafter Vasquez Winston Memorandum].
264. 3 Lloyd Trial Transcript, supra note 184, at 20.
265. 3 Lloyd Trial Transcript, supra note 184,. at 78-79 (May 1, 1985).
266. See, e.g., Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387, 498 (1996) (arguing that "the undeniable tragedy of the Miranda decision is that it has blocked the search for superior approaches to custodial interrogation"); Kassin et al. Police-Induced Confessions: Risk Factors and Recommendations, supra note 3, at 59-60 ("Whatever the mechanism, it is clear that Miranda warnings may not adequately protect the citizens who need it most-those accused of crimes they did not commit.").
267. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); see also Arizona v. Fulminante, 499 U.S. 279 (1991);
268. Steven Penney, Theories of Confession Admissibility: A Historical View, 25 AM. J. CRIM. L. 309, 314-20, 353 (1998) ("The task of the Court is to identify the circumstances in which the defendant's will is in fact overborne. Unfortunately, there is no litmus test for determining this question. In each case the relevant factors must be weighed anew.").
269. Brown v. Illinois, 422 U.S. 590, 604 (1975) ("[T]he burden of showing admissibility rests, of course, on the prosecution.").
270. Culombe v. Connecticut, 367 U.S. 568, 602 (1961).
271. See, e.g., Schulhofer, supra note 215, at 869.
272. Gallegos v. Colorado, 370 U.S. 49, 52-53 (1962); see also Schulhofer, supra note 215, at 875.
273. Schneckloth, 412 U.S. at 226.
274. Schneckloth, 412 U.S.
275. Schneckloth, 412 U.S.. 247. Id.
276. INBAU ET AL., supra note 64, at 422.
277. Kogut Trial Transcript, supra note 227, at 824.
278. Peacock Trial Transcript, supra note 183, at 268-71; Rollins Trial Transcript, supra note 125, at D-164, -179; Tracy Connor, Barbara Ross & Alice McQuillan, 48 Hours: Twisting Trail to Teens' Confessions, N.Y. DAILY NEWS, Oct. 20, 2002, at 8; Dana Priest, supr a note 166, at A1.
279. Trial Transcript at 2160, State v. Townsend, No. 79-7217 (Fla. Cir. Ct. July 16, 1980) [hereinafter Townsend Trial Transcript].
280. Miller Trial Transcript, supra note 72, at 1016, 1039 (M ay 17, 1998).
281. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).
282. See Brown Trial Transcript, supra note 107, at 175.
283. Jones Trial Transcript, supra note 188, at 1092-93.
284. Jones Trial Transcript, supra note 188. a t 1094.
285. Jones Trial Transcript, supra note 188.
286. Jones Trial Transcript, supra note 188. at 1142, 1151, 1160 (July 14, 1989).
287. Trial Transcript at 2089, 2234-37, People v. Gray, No. 78 C4865 (Ill. Cir. Ct. Oct. 16, 1978) [hereinafter Paula Gray Trial Transcript].
288. Trial Transcript. at 2237.
289. Vasquez Opposition Memorandum, supra note 165, at 3.
290. Press Release, The Innocence Project, After 19 Years in Prison for One of the Most Heinous Crimes in NJ History, Byron Halsey Is Proven Innocent Through DNA (May 15, 2007), available at http://www.innocenceproject.org/Content/583.php.
291. Halsey Trial Transcript, supra note 204, at 92, 95-96.
292. See sources cited supra note 187 and infra notes 283 and 345; see also Memorandum in Support of Motion to Suppress at 22, Commonwealth v. Vasquez, C-22213-22216 (Va. Cir. Ct. Nov. 1984) [hereinafter Vasquez Support Memorandum] (the defendant was in "an almost hypnotic state" and "began to relate things that had happened to him in a dream"); JOHN GRISHAM, THE INNOCENT MAN 127 (2006) (quoting police report in the Williamson case, in which Williamson reportedly states "Okay, I had a dream about killing [the victim], was on her, had a cord around her neck, stabbed her, frequently, pulled the r ope tight around her neck").
293. White Trial Transcript, supra note 115, at 795, 851. 266. Rollins Trial Tran script, supra note 125, at D-182.
294. Godschalk Trial Transcript, supra note 145, at 126-27 (May 26, 1987). At his trial, Godschalk was asked about that statement and replied "I don't know about very well, but I said okay." Id. at 127.
295. See INBAU ET AL., supra note 64, at 209-397 (presenting the "Reid nine steps of interrogation").
296. Vasquez Support Memorandum, supra note 264, at 16. 270. Danziger Trial Transcript, supra note 70, at 1005.
297. Vasquez Support Memorandum, supra note 264. at 1006. Ochoa pleaded guilty in part to avoid the death penalty, receiving life in prison. Id. at 967.
298. See Frazier v. Cupp, 394 U.S. 731, 739 (1969); INBAU ET AL., supra note 64, at 486-87 (noting the Court has approved deceptive techniques, but counseling against their use when they could be "apt to make an innocent person confess");
299. Laurie Magid, Deceptive Police Interrogation Practices: How Far Is Too Far?, 99 MICH. L. REV. 1168, 1169 (2001).
300. See Kassin et al., Police-Induced Confessions, supra note 3, manuscript at 15 (surveying studies and concluding, "Over the years, across a range of subdisciplines, basic research has revealed that misinformation renders people vulnerable to manipulation").
301. Miller Trial Transcript, supra note 72, at 1020-22.
302. Vasquez Opposition Memorandum, supra note 165, at 3.
303. Sydney H. Schanberg, A Journey Through the Tangled Case of the Central Park Jogger, VILLAGE VOICE, Nov. 20, 2002, at 36, 38.
304. See Lowery v. County of Riley, 522 F.3d 1086, 1089-90 (10th Cir. 2008) (describing polygraph examination of Lowery); People v. Kogut, 805 N.Y.S.2d 789, 790-92 (Sup. Ct. 2005) (describing polygraph examination of Kogut); Joe Duggan, Pressure On to Cut a Deal, LINCOLN J. STAR, May 7, 2009, at A1, A8 (declaring that, "Initially [James Dean] said he had no involvement in the crime. But he got scared after he failed his polygraph test" and Debra Shelden passed a polygraph test during which she implicated herself and others in a murder); Email from David Park, The Innocence Project New Orleans, to author (Jan. 18, 2010, 11:27:00 EST) (on file with author) (confirming that Travis Hayes received a polygraph examination between interrogation sessions).
305. State v. Halsey, 748 A.2d 634, 635 (N.J. Super. Ct. App. Div. 2000).
306. Deskovic Trial Transcript, supra note 9, at 1034, 1181-86 (Nov. 29-30, 1990); see also Deskovic Report, supra note 10, at 14-15. Ron Williamson was given polygraph tests twice with inconclusive results, but they preceded his alleged admissions. See GRISHAM, supra note 264, at 74.
307. See, e.g., LEO, supra note 7, at 85-89 (describing the evolution in the use of polygraphs).
308. Four exonerees who pleaded guilty did not move to suppress their confessions. A fifth, David Vasquez, moved to suppress his confession before pleading guilty and I obtained motion papers, but the hearing transcript was not in the court file.
309. According to Steven Drizin of the Center on Wrongful Convictions, there was no motion to suppress Cruz's confession because the defense theory was not that the noncustodial confession never happened, but rather that it was a dream statement made up by the police.
310. See SCOTT TUROW, ULTIMATE PUNISHMENT: A LAWYER'S REFLECTIONS ON DEALING WITH THE DEATH PENALTY 45 (2003).
311. Those cases are those of L. Rollins and R. Miller.
312. Kassin, On the Psychology of Confessions, supra note 4, at 215, 224 (surveying research).
313. Trial Transcript at 257, State v. Lowery, No. 81CR 575 (Kan. Dist. Ct. Jan. 6, 1982).
314. Transcript of Defendant's Motion to Suppress Confession at 117, Lowery, No. 81CR 575 (Nov. 12, 1981).
315. Transcript of Suppression Hearing at 6, People v. Warney, No. 96-0088 (N.Y. Sup. Ct. Feb. 11, 1997).
316. Transcript of Suppression Hearing at 154, Commonwealth v. Godschalk, No. 934-87 (Pa. Ct. Com. Pl. May 27, 1987). The judge also believed that Godschalk was not in custody for Miranda purposes (stating he voluntarily accompanied the police, was free to leave when he wanted, and the door was not locked) and found that Godschalk knowingly, intelligently, and voluntarily waived his rights when they were given and denied the motion to suppress his confession statement. Id. at 156.
317. Paula Gray Trial Transcript, supra note 259, at 1313-14 (Oct. 4, 1978).
318. Paula Gray Trial Transcript, supra note 259. at 1314. In contrast, when the issue on appeal was whether codefendant Dennis Williams's attorney adequately impeached Paula Gray's competency, the Supreme Court of Illinois instead concluded that her mental limitations were obvious to the jury: "[T]he cold record on appeal amply demonstrates Gray's limitations as a witness. Gray's testimony is replete with instances of forgetfulness, feigned or honest, her mental dullness and impeachment, all of which the jury evaluated firsthand." People v. Williams, 588 N.E.2d 983, 1009 (Ill. 1991).
319. Williamson Trial Transcript, supra note 123, at 465, 475.
320. Godschalk Trial Transcript, supra note 145, at 238-39 (May 29, 1987).
321. Deskovic Trial Transcript, at 1207-08, People v. Deskovic, No. 192-90 (N.Y. Sup. Ct. Nov. 30, 1990) [hereinafter Deskovic Trial Transcript]; Innocence Project Profile of Jeff Deskovic, http://www.innocenceproject.org/Content/44.php (last visited Nov. 20, 2009), at 1599 (Dec. 5, 1990).
322. Deskovic Trial Transcript, at 1207-08, People v. Deskovic, No. 192-90 (N.Y. Sup. Ct. Nov. 30, 1990) [hereinafter Deskovic Trial Transcript]; Innocence Project Profile of Jeff Deskovic, http://www.innocenceproject.org/Content/44.php (last visited Nov. 20, 2009).
323. Trial Transcript at 280, People v. Hatchett, 97-1497-FC (Mich. Cir. Ct. Mar. 6, 1998).
324. Trial Transcript. at 276-77.
325. Vasquez Winston Memorandum, Judge William L. Winston on Commonwealth v. Vasquez, Nos. C-22213-22 216, C22763 (Va. Cir. Ct. Jan. 25, 1985, at 3.
326. Return to People's Petition for Writ of Habeas Corpus at 25, In re David Allen Jone s, No. BA071698 (Cal. Super. Ct. June 17, 2004).
327. The Deskovic case discussed next is an example, as is the case of Calvin Ollins. See People v. Ollins, 606 N.E.2d 192, 197 (Ill. App. Ct. 1992).
328. Townsend Trial Transcript, supra note 251, at 13, 45, 74, 98, 109, 140, 179 (Apr. 25, 1980). Those doctors were: Anastasio M. Castiello, M.D., id. at 8; Jethro W. Toomer, Ph.D., id. at 38; Frank Loeffler, Ph.D., id. at 68; Mario E. Martinez, M.D., id. at 97; Richard N. Carrera, Ph.D., id. at 107; David Nathanson, Ph.D., id. at 133; and Norman Reichenberg, Ph.D., id. at 170.
329. Townsend Trial Transcript. at 42-43, 50.
330. Townsend Trial Transcript. at 14, 46, 5 7.
331. Townsend Trial Transcript. at 79-80.
332. Townsend Trial Transcript. at 104.
333. The State apparently also introduced into the evalu ations they had conducted. Townsend Trial Transcript. at 10 0.
334. Townsend Trial Transcript. at 395-96 (M ay 8, 1980).
335. Townsend Trial Transcript. at 398-99.
336. Townsend Trial Transcript. at 491, 493, 502 (May 9, 1980).
337. Townsend Trial Transcript. at 495-98.
338. Townsend Trial Transcript. at 23 (Apr. 25, 1980).
339. Townsend Trial Transcript. at 515 (May 9, 1980).
340. Townsend Trial Transcript. at 515-16
341. Townsend Trial Transcript. at 516.
342. Townsend Trial Transcript. a t 517.
343. Townsend Trial Transcript. a t 517.
344. Townsend Trial Transcript. at 3539-42 (July 24, 1980).
345. Townsend Trial Transcript. at 3399-3401, 3484, 3544-45.
346. Townsend Trial Transcript. at 3958-59 (July 29, 1980).
347. See The Innocence Project, Profile of Jerry Townsend, http://www.innocenceproject.org/Content/274.php (last visited Nov. 20, 2009).
348. Washington Trial Transcript, supra note 133, at 124-25.
349. Washington Trial Transcript, supra note 133. at 12-13. Washington's attorney later stated that he believed that the court would have denied any request for funding for an expert. Brooke Masters, Missteps on Road to Injustice, WASH. POST, Dec. 1, 2000, at A1, available at http://www.deathpenaltyinfo.org/node/649.
350. Masters, supra note 322.
351. See Trial Transcript at 3-6, 39, People v. McCray, No. 4762/89 (N.Y. Sup. Ct.
352. See DESKOVIC REPORT, supra note 10, at 7.
353. Williamson v. Reynolds, 904 F. Supp. 1529, 1536 (E.D. Okla. 1995).
354. Williamson v. Reynolds, 904 F. Supp. 1529, 1536 (E.D. Okla. 1995). at 1545.
355. Halsey Trial Transcript, supra note 263, at 57-58.
356. Hayes Trial Transcript, supra note 179, at 99-102.
357. See Paul Hammel, Psychologist Had Dual Role in Confessions of Beatrice 6, OMAHA WORLD-HERALD, Nov. 29, 2008, at A1.
358. White Trial Transcript, supra note 115, at 791-92.
359. Oregon v. Elstad, 470 U.S. 298, 311-14 (1985).
360. Danziger Trial Transcript, supra note 70, at 423.
361. Innocence Project Profile of Marvin Mitchell, http://www.innocenceproject.org/Content/221.php (last visited Nov. 20, 2009).
362. Joint Appendix at 80, Commonwealth v. Snyder, No. 0300-87-4 (Va. Ct. App. June 24, 1986).
363. Joint Appendix at 80, Commonwealth v. Snyder, No. 0300-87-4 (Va. Ct. App. June 24, 1986).
364. Joint Appendix at 80, Commonwealth v. Snyder, No. 0300-87-4 (Va. Ct. App. June 24, 1986). at 90.
365. Joint Appendix at 80, Commonwealth v. Snyder, No. 0300-87-4 (Va. Ct. App. June 24, 1986). at 104.
366. See Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55 (2008), at 90.
367. T. Hayes raised a Sixth Amendment claim that he should have been permitted to challenge his competence and his confession using expert testimony at trial; R. Williamson raised an ineffective assistance of counsel claim relating to failure to challenge his competency and confession; and Y. Salaam raised a state evidence law claim relating to maintaining interrogation of a juvenile after objecting parents were present.
368. The exonerees are: James Dean, Jeff Deskovic, Bruce Godschalk, Byron Halsey, Alejandro Hernandez, Nathaniel Hatchett, Steven Linscott, Freddie Peacock, Yusef Salaam, Jerry Townsend, Douglas Warney, Earl Washington, Jr., and Ron Williamson. See Washington v. Murray, 4 F.3d 1285, 1292 (4th Cir. 1993) (stating that Washington "had confessed to the crime not in a general manner, but as one who was familiar with the minutiae of its execution"); Godschalk v. Montgomery County Dist. Attorney's Office, 177 F. Supp. 2d 366, 367 (E.D. Pa. 2001) (quoting unpublished state court decision finding "plaintiff's conviction 'rests largely on his own confession which contains details of the rapes which were not available to the public'" (citation omitted)); Townsend v. State, 420 So. 2d 615, 617 (Fla. Dist. Ct. App. 1982) ("Townsend confessed to all of the collateral crimes as well as those for which he was charged, and he took the police to the scene and corroborated facts known to the police which only the killer would know."); People v. Hatchett, No. 211131, 2000 WL 33419396, at *1 (Mich. Ct. App. May 19, 2000) (stating that "the prosecution presented overwhelming evidence" and "Officer Williams and Detective Van Sice testified that defendant's statement included information that only the perpetrator of the crimes would know," facts "fully corroborative" of the victim's account); State v. Dean, 464 N.W.2d 782, 789 (Neb. 1991) ("[T]he presentence investigation contained numerous statements made by the defendant to law enforcement officers. Those statements were corroborated not only by the physical evidence found at the crime scene and the scientific examination of that evidence, but also by interviews with other people involved or intimately familiar with some details of the crimes against the deceased as heretofore related."); State v. Halsey, 748 A.2d 634, 636-38 (N.J. Super. Ct. App. Div. 2000) (citing to "overwhelming" evidence of his guilt and describing each of the facts he supposedly volunteered in his confession); People v. Peacock, 417 N.Y.S.2d 339 (App. Div. 1979) (denying relief citing to "strong evidence of guilt, including defendant's confession"); People v. Warney, 750 N.Y.S.2d 731, 732-33 (App. Div. 2002) ("Defendant confessed to the crime and gave accurate descriptions of many details of the crime scene."); People v. Salaam, 590 N.Y.S.2d 195, 196 (App. Div. 1992) ("Details of this statement were corroborated overwhelmingly by substantial physical evidence."); Williamson v. State, 812 P.2d 384, 396 (Okla. Crim. App. 1991) ("[T]he Appellant made certain admissions, in addition to a confession, which were corroborated by the extrinsic evidence.").
369. People v. Deskovic, 607 N.Y.S.2d 957, 958 (N.Y. App. Div. 1994).
370. People v. Cruz, 521 N.E.2d 18, 25 (Ill. 1988) (citation omitted).
371. This was not due to the Illinois Supreme Court's recognition of any flaw in Linscott's confession. The Hernandez decision cited the Illinois Appellate Court that had found Linscott's "dream" confession so patently unreliable that they found insufficient evidence to support his confession. However, the Illinois Supreme Court had then reversed, stating that Linscott "voluntarily came forward with an account of a 'dream' that contained many unusual details which correlated with the actual murder." People v. Linscott, 500 N.E.2d 420, 424 (Ill. 1986).
372. See Virginia Governor L. Douglas Wilder's Executive Clemency Offer to Earl Washington, Jr. (Jan. 14, 19 94), excerpts reprinted in Gov. Wilder's Executive Clemency Offer (1/14/94), FRONTLINE, http://www.pbs.org/wgbh/pages/frontline/shows/case/cases/washingtonclem. html.
373. See, e.g., Commonwealth v. Young, 873 A.2d 720 (Pa. Super. Ct. 2005). Further, a confession may be access to testing in certain states that specify that testing be limited to those for whom "identity" was an issue at trial. See Garrett, supra note 195, at 1680-81 (listi ng states with such statutes).
374. State v. Halsey, 748 A.2d 634, 636 (N.J. Super. Ct. App. Div. 2000).
375. JOHN H. LANGBEIN, TORTURE AND THE LAW OF PROOF 15 (1977).
376. JOHN H. LANGBEIN, TORTURE AND THE LAW OF PROOF 15 (1977). at 5.
377. See, e.g., Culombe v. Connecticut, 367 U.S. 568, 625 (1961).
378. 479 U.S. 157, 161, 167 (1986).
379. See supra note 66.
380. See Leo et al., supra note 43, at 487.
381. Manson v. Brathwaite, 432 U.S. 98, 119 (1977). The Manson inquiry has other deficiencies, however, including that eyewitness certainty provides evidence of reliability; for a discussion of those issues, see Garrett, supra note 2, at 80-81.
382. See, e.g., Richard A. Leo & Kimberly D. Richman, Mandate the Electronic Recording of Police Interrogations, 6 CRIMINOLOGY & PUB. POL'Y 791 (2007).
383. Leo et al., supra note 43, at 520.
384. See id. at 531-35 (detailing "tripartite" test for assessment of recorded interrogations).
385. JOHN MONAHAN & LAURENS WALKER, SOCIAL SCIENCE IN LAW 567-605 (6th ed. 2006).
386. See LEO, supra note 7, at 314-15. For a study suggesting that such expert testimony can affect mock-juror decisionmaking, see Iris Blandon-Gitlin Kathryn Sperry & Richard A. Leo, Jurors Believe Interrogation Tactics Are Not Likely to Elicit False Confessions: Will Expert Witness Testimony Inform Them Otherwise?, 16 PSYCHOL., CRIME & L. (forthcoming 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1420206.
387. See Leo et al., supra note 43, at 523; see also Steven A. Drizin & Beth A. Colgan, Let the Cameras Roll: Mandatory Videotaping of Interrogations Is the Solution to Illinois' Problem of False Confessions, 32 LOY. U. CHI. L.J. 337, 339-41 (2001).
388. Leo et al., supra note 43, at 523.
389. See Dolan & Larrubia, supra note 153.
390. See D.C. CODE § 5-116.01 (2009) (requiring police to record all custodial investigations); 725 ILL. COMP. STAT. ANN. 5/103-2.1 (West 2009) (requiring police to record interrogations in all homicide cases); ME. R EV TAT NN 25, § 2803-B (2009).S .A . tit. (mandating recording "interviews of suspects in serious crimes"); MD. CODE ANN., CRIM. PROC. § 2-402 (2009) (requiring that law enforcement make "reasonable efforts" to record certain felony interrogations "whenever possible"); N.C. GEN. STAT. § 15A-211 (2009) (requiring complete electronic recording of custodial interrogations in homicide cases); TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3 (Vernon 2007) (rendering unrecorded oral statements inadmissible, but only if the statement does not contain "assertions of facts or circumstances that are found to be true...."); WIS. STAT. ANN. §§ 968.073, 972.115 (West 2009) (requiring recording of felony interrogations and permitting jury instruction if interrogation not recorded); 2009 Mont. Laws (West), H.B. 534 (to be codified at MONT. CODE ANN. § 46- 4); 2009 Or. Laws ch. 488 (West) (to be codified at OR. REV. STAT. § 165.540); IND. R. EVID. 617 (requiring that in order to be admissible entire interrogations in felony criminal prosecutions must be recorded); Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985) ("[A]n unexcused failure to electronically record a custodial interrogation conducted in a place of detention violates a suspect's right to due process...."); State v. Hajtic, 724 N.W.2d 449, 456 (Iowa 2006) ("[E]lectronic recording, particularly videotaping, of custodial interrogations should be encouraged, and we take this opportunity to do so."); Commonwealth v. DiGiambattista, 813 N.E.2d 516, 535 (Mass. 2004) (allowing defense to point out failure to record interrogation and calling unrecorded admissions "less reliable"); State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994) ("[A]ll questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention."); State v. Barnett, 789 A.2d 629 (N.H. 2001); State v. Cook, 847 A.2d 530, 547 (N.J. 2004) ("[W]e will establish a committee to study and make recommendations on the use of electronic recordation of custodial interrogations."); In re Jerrell C.J., 699 N.W .2d 110, 123 (Wis. 2005) ("[W]e exercise our supervisory power to require that all custodial interrogation of juveniles in future cases be electronically recorded where feasible, and without exception when questioning o ccurs at a place of detention.").
391. A recent survey of 631 police investigators found that eighty-one percent believed that interrogations should be recorded. See Kassin et al., Police Interviewing and Interrogation, supra note 3, at 38 5, 393.
392. See INBAU ET AL., supra note 64, at 393-97 (noting "some clear benefits of videotaping"). However, the treatise does object to mandatory electronic recording requirements. Id. at 395-97.
393. See, e.g., Saul M. Kassin & Gisli H. Gudjonsson, The Psychology of Confessions: A Review of the Literature and Issues, 5 PSYCHOL. SCI. IN PUB. INT. 33, 61 (2004) (discussing remedies such as an "equal focus" camera angle);
394. Celeste J. Snyder et al., Videotaped Interrogations and Confessions: Does a Dual-Camera Approach Yield Unbiased and Accu rate Evaluations?, 27 BEHAV. SCI. & L. 451 (2009);
395. G. Daniel Lassiter et al., Criminal Confessions on Videotape: Does Camera Perspective Bias Their Perceived Veracity?, 7 CURRENT RES. IN SOC. PSYCHOL. 1, 7 (2001).
396. Lawrence Rosenthal, Against Orthodoxy: Miranda Is Not Prophylactic and the Constitution Is Not Perfect, 10 CHAP. L. REV. 579, 606-07 (2007) (questioning whether videotaping can curb abuses, particularly tactics courts condone).
397. See THOMAS P. SULLIVAN & NW. UNIV. SCH. OF LAW CTR. ON WRONGFUL CONVICTIONS, POLICE EXPERIENCES WITH RECORDING CUSTODIAL INTERROGATIONS 22 (2004) (presenting results of a survey of over two hundred police departments); see also LEO, supra note 7, at 296 ("Electronic recording is the most important and compelling policy reform available for the problems of American police interrogation." (citation omitted));
398. CAROLE F. WILLIS ET AL., THE TAPE-RECORDING OF POLICE INTERVIEWS WITH SUSPECTS: A SECOND INTERIM REPORT 34-35, 73-74 (1988) (reviewing the recording requirement in Great Britain);
399. Thomas P. Sullivan & Andrew W. Vail, The Consequences of Law Enforcement Officials' Failure to Record Custodial Interviews as Required by Law, 99 J. CRIM. L. & CRIMINOLOGY 215, 220-21, 228-34 (2009) (listing police departments that record custodial interrogations and citing to the enthusiasm of "hundreds of law enforcement officers" interviewed);
400. Nadia Soree, Comment, When the Innocent Speak: False Confessions, Constitutional Safeguards, and the Role of Expert Testimony, 32 AM. J. CRIM. L. 191, 258-61 (2005) (reviewing literature recommending mandatory videotaping).
401. See Cassell, supra note 238, at 489.
402. Fred E. Inbau, Miranda's Immunization of Low Intelligence Offenders, 24 PROSECUTOR: J. NAT'L DISTRICT ATT'YS ASS'N, Spring 1991, at 9, 9-10.
403. See LEO, supra note 7, at 312-14.
404. Commentators have called for barring deception in all interrogations. See Miriam S. Gohara, A Lie for a Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques, 33 FORDHAM URB. L.J. 791 (2006).
405. Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions 32 H ARV, EV. C.R.-C.L. L. R 105, 145 (1997) ("[T]he police should be allowed to interrogate a suspect for no more than five hours.").
406. Some scholars have recommended that all suspects be provided with an attorney prior to interrogation. See, e.g., Charles J. Ogletree, Are Confessions Really Good for the Soul?: A Proposal to Mirandize Miranda, 100 HARV. L. REV. 1826, 1842 (1987).
407. See Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The Right to Remain Silent, 94 MICH. L. REV. 2625, 2669 (1996).
408. LEO, supra note 7, at 305; see also GUDJONSSON, supra note 7, at 537 (noting cases where even though the suspect had no knowledge about the offenses and the confession was therefore "unconvincing," defendants were "still convicted on the basis of their confession").
409. See, e.g., Lisa Lewis, Rethinking Miranda: Truth, Lies, and Videotape, 43 GONZ. L. REV. 199, 200, 237-38 (2007).