Promoting accuracy in the use of confession evidence: An argument for pretrial reliability assessments to prevent wrongful convictions

Temple Law Review

Volumn 85, Issue 4, 2013, Pages 759-838

  Leo, Richard A ^a   Neufeld, Peter J ^b   Drizin, Steven A ^c   Taslitz, Andrew E ^d  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b YESHIVA UNIVERSITY   (United States)

^c NORTHWESTERN UNIVERSITY   (United States)

^d AMERICAN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84890446726     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (389)

1. Know the Cases: Bruce Godschalk, INNOCENCE PROJECT, http://www. innocenceproject.org/Content/Bruce-GodschaIk.php (last visited Oct. 26, 2013).
2. DANIEL S. MEDWED, PROSECUTION COMPLEX: AMERICA'S RACE TO CONVICT AND ITS IMPACT ON THE INNOCENT 119-21 (2012).
3. RICHARD A. LEO, POLICE INTERROGATION AND AMERICAN JUSTICE 181 (2008).
4. BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO WRONG 39-40 (2011).
5. Memorandum from Bruce Saville, Detective, Upper Merion Township, to Bruce Castor (June 14, 2001) (on file with authors).
6. Interrogation of Brace Godschalk by Detective Bruce Saville, King of Prussia, Pa. (Jan. 13, 1987), available at http://www.law.virginia.edu/html/ librarysite/garrett-falseconfess.htm.
7. The detectives made these claims in their police reports, pretrial and trial testimony, memos, and public statements. E.g., Transcript of Notes of Testimony at 64-67, Commonwealth v. Godschalk, No. 00934-87 (Pa. Ct. Com. PI. June 16, 1987).
8. See Commonwealth v. Godschalk, 679 A.2d 1295, 1296-97 (Pa. Super. Ct. 1996) (affirming Godschalk's conviction on appeal, and specifically citingthe nonpublic facts contained in his confession as evidence of its reliability: "He confessed to raping both of the women and also admitted that he had moved the tampon of the second victim, a detail of the rape which had not been released to the public. Appellant also described the position of the victims during the rapes, another detail which had not been released to the public").
9. Memorandum from Bruce Saville, Detective, Upper Merion Twp., to Bruce Castor, District Attorney, Montgomery Cnty. (June 4, 2001) (on file with authors).
10. Brandon L. Garrett, The Substance of False Confessions, 62 STAN. L. REV. 1051, 1078 (2010) (alteration in original)
11. (quoting Trial Transcript at 22, Commonwealth v. Godschalk, No. 934-87 (Pa. Ct. Com. Pt. May 28, 1987).
12. Know the Cases: Bruce Godschalk, supra note 1.
13. Mission Statement, INNOCENCE PROJECT, http://www.innocenceproject.org/ about/Mission-Statement.php (last visited Oct. 26, 2013).
14. An innocent suspect may be "contaminated" by sources other than police, such as by media reports, community gossip, overheard conversation, and being present at a crime scene. See Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 DENV. U, L. REV. 979, 990-97 (1997) (describing effect contamination can have on confessions).
15. Richard A. Leo et al., Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 WLS. L. REV. 479, 520-35;
16. Andrew E. Taslitz, High Expectations and Some Wounded Hopes: The Policy and Politics of a Uniform Statute on Videotaping Custodial Interrogations, 7 NW. J. L. & SOC. POL'Y 400, 427 (2012).
17. E.g., Sharon L. Davies, The Reality of False Confessions-Lessons of the Central Park Jogger Case, 30 N. Y. U. REV. L. & SOC. CHANGE 209, 241-43 (2006);
18. Eugene R. Milhizer, Confessions After Connelly: An Evidentiary Solution for Excluding Unreliable Confessions, 81 TEMP. L. Rev. 1, 47-66 (2008);
19. Boaz Sangero, Miranda Is Not Enough: A New Justification for Demanding "Strong Corroboration" to a Confession, 28 CARDOZO L. REV. 2791, 2815 (2007);
20. Sandra Guerra Thompson, Judicial Gatekeeping of Police-Generated Witness Testimony, 102 J. CRIM. L. & CRIMINOLOGY 329, 395 (2012).
21. Saul M. Kassin, Why Confessions Trump Innocence, AM. PSYCHOLOGIST, Apr. 30, 2012, at 1.
22. TECHNICAL WORKING GRP. ON CRIME SCENE INVESTIGATION, OFFICE OF JUSTICE PROGRAMS, CRIME SCENE INVESTIGATION: A GUIDE FOR LAW ENFORCEMENT 42 (2000).
23. GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS AND CONFESSIONS: A HANDBOOK 180 (2003);
24. See generally Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions, 88 J. CRIM. L. & CRIMINOLOGY 429 (1998);
25. Saul M. Kassin, A Critical Appraisal of Modem Police Interrogations, in INVESTIGATIVE INTERVIEWING: RIGHTS, RESEARCH, REGULATION 207 (Tom Williamson ed., 2006);
26. Laura H. Nirider et al., Combating Contamination in Confession Cases, 79 U. CHI. L. REV. 837, 846 (2012).
27. DNA testing not only excluded Wamey as the source of the DNA found at the crime scene, but it also identified it as belonging to Eldred Johnson, Jr., who confessed that he acted alone when killing the victim. Robert Aronson & Jacqueline McMurtrie, The Use and Misuse of High-Tech Evidence by Prosecutors: Ethical and Evidentiary Issues, 76 FORDHAM L. REV. 1453, 1485 (2007).
28. Know the Cases: Douglas Wamey, INNOCENCE PROJECT, http://www. innocenceproject.org/Content/Douglas-Wamey.php (last visited Oct. 26, 2013).
29. Joseph P. Buckley, The Reid Technique of Interviewing and Interrogation, in INVESTIGATIVE INTERVIEWING: RIGHTS, RESEARCH, REGULATION 190, 204-05 (Tom Williamson ed., 2006).
30. Christian A. Meissner & Saul M. Kassin, "He's Guilty": Investigator Bias in Judgments of Truth and Deception, 26 LAW & HUM. BEHAV. 469, 473 (2002);
31. Christian A. Meissner & Saul M. Kassin, "You're Guilty, So Just Confess!": Cognitive and Behavioral Confirmation Biases in the Interrogation Room, in INTERROGATIONS, CONFESSIONS, AND ENTRAPMENT 85, 89-90 (G. Daniel Lassiter ed., 2004).
32. Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 WIS. L. REV. 291, 292.
33. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N. C. L. REV. 891, 931 (2004);
34. Mark A. Godsey, Reliability Lost, False Confessions Discovered, 10 CHAP. L. REV. 623, 623 (2007) ("DNA testing gives our criminal justice system something like a crystal ball-it allows us to look back in time with absolute clarity to determine how and where things went wrong in ways we never could before.").
35. See Know the Cases: Earl Washington, INNOCENCE PROJECT, http://www.lnnocenceproject.org/Content/Earl-Washington. php (last visited Oct. 26, 2013);
36. Know the Cases: Rolando Cruz, INNOCENCE PROJECT, http://www. innocenceproject.org/Content/Rolando-Craz.php (last visited Oct. 26, 2013);
37. Know the Cases: Ronald Jones, INNOCENCE PROJECT, http://www. innocenceproject.org/Content/Ronald-Jones.php (last visited Oct. 26, 2013). Six of the DNA exonerees in Garrett's study would have received the death penalty. Garrett, supra note 19, at 1065. In addition, some of the DNA exonerees in Garrett's study, such as Christopher Ochoa, Anthony Gray, and David Vasquez, accepted plea bargains to avoid the death penalty. Id. at 1097 n. 271.
38. PETER BROOKS, TROUBLING CONFESSIONS: SPEAKING GUILT IN LAW AND LITERATURE 9 (2000).
39. Saul M. Kassin & Katherine Neumann, On the Power of Confession Evidence: An Experimental Test of the Fundamental Difference Hypothesis, 21 LAW & HUM. BEHAV. 469, 481 (1997).
40. Saul M. Kassin et al., Police Induced Confessions: Risk Factors and Recommendations, 34 LAW & HUM. BEHAV. 3, 4 (2010);
41. 391 U. S. 123 (1968).
42. Bruton, 391 U. S. at 139 (White, J., dissenting).
43. 479 U. S. 157 (1986).
44. Connelly, 479 U. S. at 182 (Brennan, J., dissenting).
45. Id. (quoting EDWARD W. CLEARY, MCCORMICK ON EVIDENCE 316 (2d ed. 1972)).
46. Gerald R. Miller & F. Joseph Boster, Three Images of the Trial: Their Implications for Psychological Research, in PSYCHOLOGY IN THE Legal PROCESS 19, 19 (Bruce Dennis Sales ed., 1977);
47. see also Danielle E. Chojnacki et al.. An Empirical Basis for the Admission of Expert Testimony on False Confessions, 40 ARIZ. St. L. J. 1, 14-20 (2008) (examining high level research on false confessions);
48. Mark Costanzo et al., Juror Beliefs About Police Interrogation, False Confession and Expert Testimony, 7 J. LEGAL EMPIRICAL STUD. 231, 240-45 (2010) (discussing findings regarding juries' interpretations of false confession evidence indicating a misunderstanding of the situational factors present in false confessions);
49. Iris Blandon-Gitlin et al., Jurors Believe Interrogation Tactics Are Not Likely to Elicit False Confessions: Will Expert Witness Testimony Inform Them Otherwise?, 17 PSYCHOL., CRIME & L. 239, 255-57 (2011) (discussing the psychological effect that false confessions had on survey participants);
50. Linda A. Henkel et al., A Survey of People's Attitudes and Beliefs About False Confessions, 26 BEHAV. SCL & L. 555, 555-56 (2008) (providing research demonstrating that though people possess general awareness about false confessions, many showed a bias when it came to being aware of the dispositional factors relating to false confessions);
51. Richard A. Leo & Brittany Liu, What Do Potential Jurors Know About Police Interrogation and False Confessions?, 27 BEHAV. SCI. & L. 381, 382 (2009) (stating that research shows that innocents "who falsely confessed during police interrogation were, nevertheless, convicted by juries, only to later have their factual innocence proven beyond a reasonable doubt").
52. Daniel Givelber, Punishing Protestations of Innocence: Denying Responsibility and Its Consequences, 37 AM. CRIM. L. REV. 1363, 1366 (2000).
53. see also D. Brian Wallace & Saul M. Kassin, Harmless Error Analysis: How Do Judges Respond to Confession Errors, 36 LAW & HUM. BEHAV. 151, 152 (2012) (explaining that a confession increases likelihood of conviction despite awareness of the possibility of coerced, false confessions).
54. Linda A. Henkel, Jurors' Reactions to Recanted Confessions: Do the Defendant's Personal and Dispositional Characteristics Play a Role?, 14 PSYCHOL., CRIME & L. 566, 572-73 (2008).
55. Saul M. Kassin & Holly Sukel, Coerced Confessions and the Jury: An Experimental Test of "Harmless Error" Rule, 21 LAW & HUM. BEHAV. 27, 42 (1997);
56. Allison D. Redlich et al., Perceptions of Children During a Police Interview: A Comparison of Suspects and Alleged Victims, 38 J. APPLIED SOC. PSYCHOL. 705, 723 (2008);
57. Saul M. Kassin et al., Confessions that Corrupt: Evidence From the DNA Exoneration Files, 23 PSYCHOL. SCI. 41, 44 (2012).
58. Allison D. Redlich, False Confessions, False Guilty Pleas: Similarities and Differences, in POLICE INTERROGATION AND FALSE CONFESSIONS: CURRENT RESEARCH, PRACTICE, AND POLICY 49, 60 (G. Daniel Lassiter & Christian Meissner eds., 2010);
59. In Bedau and Radelet's study approximately five percent (17/350) of the wrongful conviction cases involved false plea bargains. See Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21, 57 (1987). In the Garrett study, approximately six percent (16/250) of the exonerees pleaded guilty. See Garrett, supra note 12, at 150. In the Gross and Shaffer study, approximately five percent (44/873) of the exonerations involved false plea bargains.
60. See Samuel R. Gross & Michael Shaffer, Exonerations in the United States, 1989-2012, at 13 (Public Law and Legal Theory Working Paper Series, Working Paper No. 277, 2012).
61. WELSH S. WHITE, MIRANDA'S WANING PROTECTIONS: POUCE INTERROGATION PRACTICES AFTER DICKERSON 155 (2001).
62. Michael D. Pepson & John N. Sharifi, Lego v. Twomey: The Improbable Relationship Between an Obscure Supreme Court Decision and Wrongful Convictions, 47 AM. CRIM. L. REV. 1185, 1214 (2010).
63. Richard A. Leo, False Confessions: Causes, Consequences, and Implications, 37 J. AM. ACAD. PSYCHIATRY & LAW 332, 333 (2009);
64. Lee Ross, The Intuitive Psychologist and His Shortcomings: Distortions In the Attribution Process, 10 ADV. EXP. SOC. PSYCHOL. 173, 184 (1977).
65. ALDERT VRU, DETECTING LIES AND DECEIT: PITFALLS AND OPPORTUNITIES 2 (2d ed. 2008).
66. Charles F. Bond, Jr. & Bella M. DePaulo, Accuracy of Deception Judgments, 10 PERSONALITY & SOC. PSYCHOL. REV. 214, 231 (2006);
67. Bella M. DePaulo et al., Cues to Deception, 129 PSYCHOL. BULL. 74, 105 (2003).
68. See Paul Ekman & Maureen O'Sullivan, Who Can Catch a Liar?, 46 AM. PSYCHOL 913, 914 (1991) (finding that professional lie catchers performed only slightly better than chance);
69. Saul M. Kassin & Gisli H. Gudjonsson, The Psychology of Confession Evidence: A Review of the Literature and Issues, 5 PSYCHOL. SCI. IN PUB. INTEREST 33, 37 (2004) ("In general, professional lie catchers exhibit accuracy rates in the range from 45% to 60%, with a mean of 54%.").
70. Saul M. Kassin et al., I'd Know a False Confessions If I Saw One: A Comparative Study of College Students and Police Investigators, 29 LAW & HUM. BEHAV. 211, 221 (2005).
71. Sara C. Appleby et al., Police-Induced Confessions: An Empirical Analysis of Their Content and Impact, 19 PSYCHOL., CRIME & L. 1, 8-9 (2011).
72. In the Leo and Ofshe study, twelve percent of the false confessors (7/60) pled guilty; in the Drizin and Leo study, eleven percent of the false confessors (14/125) pled guilty. Leo & Ofshe, supra note 33, at 478; Drizin & Leo, supra note 60, at 953. The total percentage of convictions by plea were twenty-four percent (7/29) in the Leo and Ofshe study, and thirty-two percent in the Drizin and Leo study. Drizin & Leo, supra note 60, at 953; Leo & Ofshe, supra note 33, at 478. These numbers stand in striking contrast to the percentage of criminal defendants who plead guilty in criminal cases: "Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas." Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012).
73. See generally Dan Simon, The Limited Diagnosticity of Criminal Trials, 64 VAND. L. REV. 143 (2011) (arguing that the trial process, serving to safeguard the rights of criminal defendants, "falls short of delivering the level of diagnosticity that befits its epistemic demands and the certitude that it proclaims").
74. Garrett, supra note 19, at 1092-94. See infra Part III. C and accompanying text for a discussion of Miranda rights and their impact.
75. Berghuis v. Thompkins, 130 S. Ct. 2250, 2264 (2010).
76. E.g., OTIS H. STEPHENS, JR., THE SUPREME COURT AND CONFESSIONS OF GUILT 17 (1973);
77. Mark A. Godsey, Rethinking the Involuntary Confession Rule: Toward a Workable Test for Identifying Compelled Self-Incrimination, 93 CALIF. L. REV. 465, 488 (2005);
78. Lawrence Herman, The Unexplored Relationship Between the Privilege Against Compulsory Self-Incrimination and The Involuntary Confession Rule (Part I), 53 OHIO St. L. J. 101, 170 (1992);
79. Lawrence Herman, The Unexplored Relationship Between the Privilege Against Compulsory Self-Incrimination and the Involuntary Confession Rule (Part II), 53 OHIO St. L. J. 497, 538 (1992);
80. Yale Kamisar, What is an "Involuntary" Confession? Some Comments on Inbau and Reid's Criminal Interrogation and Confessions, 17 RUTGERS L. REV. 728, 741 (1963);
81. Steven Penney, Theories of Confession Admissibility: A Historical View, 25 AM. J. CRIM. L. 309, 310 (1998);
82. Welsh S. White, What Is An Involuntary Confession Now?, 50 RUTGERS L. REV. 2001, 2002 (1998).
83. E.g., LEO, supra note 3, at 272-76; GEORGE C. THOMAS & RICHARD A. LEO, CONFESSIONS OF GUILT: FROM TORTURE TO MIRANDA AND BEYOND 226-31 (2012); Leo et al., supra note 25, at 488-99.
84. King v. Warickshall, 168 Eng. Rep. 234, 235 (K. B. 1783).
85. See YALE KAMISAR, POUCE INTERROGATION AND CONFESSIONS: ESSAYS IN LAW AND POLICY 11 (1980) (observing that "whatever the current meaning of the elusive terms 'voluntary' and 'involuntary' confessions, originally the terminology was a substitute for the 'trustworthiness' or 'reliability' test", and that "[f]or most of the two hundred years within which this formulation had constituted 'the ultimate test, ' it had been no more than an alternative statement of the rule that a confession was admissible so long as it was free of influences which made it 'unreliable' or 'probably untrue'").
86. Welsh White, False Confessions and the Constitution: Safeguards Against Untrustworthy Evidence, 32 HARV. C. R.-C. L. L. REV. 105, 111-12 (1997); see also White, supra note 130, at 2002 (observing that "from its origin until well into the twentieth century the [voluntariness test] was primarily designed to protect against the admission of untrustworthy evidence").
87. 168 U. S. 532 (1897). Bram was anomalous for at least two reasons. First, it recast a rule of evidence as a constitutional right, in effect conflating the common law voluntariness rule with the Fifth Amendment self-incrimination clause. See Godsey, supra note 130, at 474 (noting that Bram "introduced this test by confusing the self-incrimination clause with the inapposite voluntariness doctrine, a common law rule of evidence that has little relation to the text, historical origins, or policies of the self-incrimination clause", which served to "set the stage for the confusion that has pervaded our confession jurisprudence to this day"). Second, while Bram announced a new constitutional test for the admissibility of confession evidence, it was "promptly forgotten" and for the next seven decades, and "the Court consistently held that the Fifth Amendment privilege was inapplicable to police interrogation"
88. Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REV. 435, 437 (1987). In Bram, the Court declared the voluntariness test to be the basis for confession admissibility under the self-incrimination clause, but it was the only case that ever stood for this proposition and thus "fell into disuse as a restriction on police interrogation. " Herman, supra note 130, at 530; see also THOMAS & LEO, supra note 131, at 90-93.
89. 297 U. S. 278 (1936).
90. Brown, 297 U. S. at 279 ("Aside from the confessions, there was no evidence sufficient to warrant the submission of the case to the jury."). For more information on Brown v. Mississippi, see Thomas & LEO, supra note 131, at 144-46.
91. See Blackburn v. Alabama, 361 U. S. 199, 207 (1960).
92. 314 U. S. 219 (1941).
93. Lisenba, 314 U. S. at 236.
94. Joseph Grano, Voluntariness, Free Will, and the Law of Confessions, 65 VA. L. REV. 859, 865 (1979).
95. 367 U. S. 568 (1961).
96. Culombe, 367 U. S. at 602.
97. 365 U. S. 534 (1961).
98. Rogers, 365 U. S. at 541-42.
99. Stephens, supra note 130, at 117; see also Yale Kamisar, On the "Fruits" of Miranda Violations, Coerced Confessions and Compelled Testimony, 93 MICH. L. REV. 929, 939-41 (2005) (discussing replacement of trustworthiness test); Davies, supra note 26, at 239-40 (same).
100. See Rogers, 365 U. S. at 541 (noting that while "confessions cruelly extorted may be and have been, to an unascertained extend found to be untrustworthy⋯ the constitutional principle of excluding confessions that are not voluntary does not rest on this consideration").
101. 479 U. S. 157 (1986).
102. Connelly, 479 U. S. at 167. In dissent. Justice Brennan wrote: [T]he overwhelming evidence in the record points to the unreliability of Mr. Connelly's delusional mind-Moreover, the record is barren of any corroboration of the mentally ill defendant's confession. No physical evidence links the defendant to the alleged crime. Police did not identify the alleged victim's body as the woman named by the defendant. Mr. Connelly identified the alleged scene of the crime, but it has not been verified that the unidentified body was found there or that a confession actually occurred there. There is not a shred of competent evidence in this record linking the defendant to the charged homicide. There is only Mr. Connelly's confession.
103. But see William T. Pizzi, Colorado v. Connelly: What Really Happened, 7 OHIO St. J. CRIM. L. 377, 379 (2009) (arguing that Justice Brennan unfairly framed the facts in Connelly).
104. Connelly, 479 U. S. at 167 (1986).
105. George E. Dix, Federal Constitutional Confessions Law: The 1986 and 1987 Supreme Court Terms, 67 TEX. L. REV. 231, 273 (1988).
106. Connelly, 479 U. S. at 168.
107. To be sure, as Welsh White and Andrew Taslitz have each argued, the Court has in other contexts held that due process requires that the government employ procedures that will safeguard the innocent from wrongful conviction, and that one of the purposes of the voluntariness test is to reduce the risk of convicting the innocent. Taslitz, supra note 25, at 422; White, supra note 135, at 106-07. Nevertheless, Connelly made clear that the Fourteenth Amendment due process voluntariness test that regulates the admissibility of confession evidence is not violated if a trial court admits into evidence a legally voluntary but factually false or unreliable confession. The Court's due process pronouncements regarding reliability in other contexts may be aspirational, but in the confession context they clearly fail to provide any protection against the admissibility against false confessions because that is no longer one of their purposes. Connelly, 479 U. S. at 164.
108. Connelly, 479 U. S. at 167.
109. See Schneckloth v. Bustamonte, 412 U. S. 218, 226 (1973) ("In determining whether a defendant's will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation. ").
110. Paul Marcus, It's Not Just About Miranda.-Determining the Voluntariness of Confessions in Criminal Prosecutions, 40 VAL. U. L. REV. 601, 620 (2006).
111. Lawrence Herman, The Supreme Court, the Attorney General, and the Good Old Days of Police Interrogation, 48 OHIO ST. L. J. 733, 745 (1987).
112. Albert W. Alschuler, Constraint and Confession, 74 DENV. U. L. REV. 957, 959 (1997);
113. Laurence Benner, Requiem for Miranda: The Rehnquist Court's Voluntariness Doctrine in Historical Perspective, 67 WASH. U. L. Q. 59, 116 (1989);
114. Monrad G. Paulsen, The Fourteenth Amendment and the Third Degree, 6 STAN. L. REV. 411, 430 (1954);
115. see also Kamisar, supra note 130, at 759 (arguing that "[t]he real reasons for excluding confessions have too long been obscured by traditional language"); Stephen J. Schulhofer, Jr., Confessions and the Court, 79 MlCH. L. REV. 865, 869-78 (1981) (identifying six major flaws of the voluntariness standard).
116. See Miller v. Fenton, 474 U. S. 104, 116 n. 4 (1985) (citing scholars who condemn due process voluntariness jurisprudence variously as useless, perplexing, and "legal 'double-talk'").
117. See Peter F. Nardulli, The Societal Costs of the Exclusionary Rule: An Empirical Assessment, 1983 AM. B. FOUD. RES. J. 585, 600 [hereinafter Nardulli, Societal Costs} (noting that only 5 out of 7, 035-0.07%-cases were lost as a result of a confession being suppressed);
118. Peter F. Nardulli, The Societal Costs of the Exclusionary Rule Revisited, 1987 U. ILL. L. REV. 223, 226-27 (finding that 0.6% of all cases were lost due to the three exclusionary rules combined out of the cases studied in Illinois, Michigan, and Pennsylvania).
119. See Colorado v. Connelly, 479 U. S. 157, 167 (1986) ("We think the Constitution rightly leaves this sort of inquiry to be resolved by state laws governing the admission of evidence and erects no standard of its own in this area. A statement rendered by one in the condition of respondent might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary laws of the forum⋯ and not by the Due Process Clause of the Fourteenth Amendment."). The Supreme Court has made similar statements about the evidentiary reliability of eyewitness testimony and jailhouse informant testimony-two of the leading sources, along with false confessions, of wrongful conviction in America-being irrelevant as a due process concern.
120. See Perry v. New Hampshire, 132 S. Ct. 716, 723 (2012) ("The Constitution⋯ protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit.");
121. Kansas v. Ventris, 556 U. S. 586, 594 (2009) (holding that unconstitutionally obtained confession can be used to impeach criminal defendant at trial).
122. See generally Keith A. Findley, Judicial Gatekeeping of Suspect Evidence: Due Process and Evidentiary Rules in the Age of Innocence, 47 GEORGIA L. REV. 723 (2013).
123. See Gross & Shaffer, supra note 90, at 57 (describing a study finding that sixty percent of confessions surveyed were "clearly coerced", while eleven percent "appealed] to have been voluntary"); Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 LAW & HUM. BEHAV. 3, 38 (2010) (describing situational and dispositional factors that put innocent people at risk of making false confessions).
124. Marcus, supra note 167, at 642. Brian Wallace and Saul Kassin report in a recent study that "three out of ten judges believed that an interrogation was not coercive in which the detective brandished his sidearm and threatened the death penalty for more than 15 h[ours] over the suspect's repeated denials-tactics that were said to have been captured on videotape and not in dispute." Wallace & Kassin, supra note 83, at 7. As Steven Duke comments, "suppression of confessions by trial judges on involuntariness grounds is almost as rare today as four-legged chickens." Steven B. Duke, Does Miranda Protect the Innocent or the Guilty?, 10 CHAP. L. REV. 551, 562 (2007).
125. 947 N. E.2d 639 (N. Y. 2011).
126. Wamey, 947 N. E.2d at 642.
127. See N. Y. Court of Claims ACT § 8-b (4). Thus, the Court of Appeals was addressing the legal question of whether, by alleging that his confession was contaminated, he had stated a claim under this statute even though the confession was admitted at trial. Wamey, 947 N. E.2d at 642-43 (majority opinion).
128. Wamey, 947 N. E.2d at 644 n. 4.
129. 384 U. S. 436 (1966); cf Duke, supra note 183, at 551 ("Miranda v. Arizona is probably the most widely recognized court decision ever rendered.").
130. Miranda, 384 U. S. at 444, 461-63
131. (citing Bram v. United States, 168 U. S. 532, 542 (1897)).
132. Withrow v. Williams, 507 U. S. 680, 692 (1993).
133. See Miranda, 384 U. S. at 447 (noting that the use of "third degree" in custodial interrogation involved the dangers of false confessions and that "it tends to make police and prosecutors less zealous in the search for objective evidence").
134. Id. at 469. Even this purpose of Miranda has been thrown into doubt by the recent case, Berghuis v. Thompkins. 130 S. Ct. 2250 (2010).
135. There, the Court held that a waiver of Miranda warnings is not necessary before questioning begins. Id. at 2264. All that is required is that the warnings be recited. However, once a defendant starts to confess, a waiver is required. But a knowing, voluntary, and intelligent waiver can be implied-including from the suspect's apparent understanding of the warnings and his three hours of silence because that gave him time to contemplate the wisdom of his speaking. Id. at 2259-60. In reaching this decision, which seems to fly in the face of much express language in Miranda, the Court in Berghuis declared early in its opinion: "The main purpose of Miranda is to ensure that an accused is advised of and understands the right to remain silent and the right to counsel." Id. at 2261 (emphasis added). Later, in interpreting its earlier holding in North Carolina v. Butler, 441 U. S. 369(1979), and in explaining why post-Miranda warnings interrogations can proceed without first obtaining a waiver, the Court again said: "This holding also makes sense given that 'the primary protection afforded suspects subjected] to custodial interrogation is the Miranda warnings themselves.'"
136. Berghuis, 130 S. Ct. at 2263 (alteration in original) (emphasis added)
137. (quoting Davis v. United States, 512 U. S. 452, 460 (1994)). This position is starkly different- and less protective of suspects' rights-than Miranda's focus on the compulsion inherent in custodial interrogation. Whether Berghuis heralds a complete switch in the rest of Miranda doctrine from a Fifth Amendment focus on compulsion to a due-process-like focus on adequate notice remains to be seen.
138. Richard A. Leo, Miranda and the Problem of False Confessions, in THE MIRANDA DEBATE: LAW, JUSTICE AND POLICING 271, 271-82 (Richard A. Leo & George C. Thomas, DL eds., 1998).
139. See Richard A. Leo & K. Alexa Koenig, The Gatehouse and Mansions: Fifty Years Later, 6 ANN. REV. L. & SOC. SCI. 323, 330-35 (2010) (summarizing results of empirical studies).
140. See Charles D. Weisselberg, Mourning Miranda, 96 CALIF. L. REV. 1519, 1521 (2008) (arguing that recent Supreme Court decisions have "gutted" Miranda's core protections).
141. See California v. Beheler, 463 U. S. 1121, 1124-25 (1983) (holding that Miranda warning is not required when suspect is not formally in police custody);
142. Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (holding that Miranda warning is only required when law enforcement restricts person's freedom "as to render him 'in custody'").
143. See Richard A. Leo & Welsh S. White, Adapting to Miranda.-Modem Interrogators ' Strategies For Dealing With The Obstacles Posed By Miranda, 84 MINN. L. REV. 397, 431-50 (1999).
144. See Berghuis v. Thomkins, 130 S. Ct. 2250, 2262 (2010) (holding that "a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police");
145. North Carolina v. Butler, 441 U. S. 369, 375 (1979) (holding that under certain circumstances a suspect can implicitly waive his Miranda rights); Leo & Koenig, supra note 206, at 329 (arguing that certain Supreme Court cases have "so persistently watered down [Miranda] that it has failed to achieve the goals initially set out for it"); Weisselberg, supra note 207, at 1521 (arguing that recent Supreme Court decisions have "gutted" Miranda's core protections);
146. Yale Kamisar, The Rise, Decline, and Fall (?) of Miranda, 87 WASH. L. REV. 965, 1021 (2012) (stating that Miranda "has been downsized and weakened in various ways").
147. See Welsh S. White, Miranda's Failure To Restrain Pernicious Interrogation Practices, 99 MICH. L. REV. 1211, 1232-46 (2001) (describing how Miranda does not protect against harsh interrogation techniques once rights are waived).
148. see also Missouri v. Seibert, 542 U. S. 600, 611-14 (2004) (considering whether or not a suspect had voluntarily waived her rights when an interrogator first elicited a confession from her, then recited the Miranda warnings, then had her repeat her earlier confession).
149. State v. Long, 2 N. C. (1 Hayw.) 455 (1797) (per curiam).
150. E.g., State v. Parker, 337 S. E.2d 487, 490-91 (N. C. 1985).
151. The Dead Alive was a short stoty based on true events of man sentenced to death for murder of man who was still alive. WILKIE COLLINS, WILKIE COLLINS'S THE DEAD ALIVE: THE NOVEL, THE CASE, AND WRONGFUL CONVICTIONS (Rob Warden ed., 2005). Warden's edition provides an appendix that describes eleven other "dead alive" cases. Id. at 152-64.
152. Thomas A. Mullen, Rule Without Reason: Requiring Independent Proof of the Corpus Delicti as a Condition of Admitting an Extrajudicial Confession, 27 U. S. F. L. REV. 385, 399 (1993). Mullen points out that the corpus delicti rule developed in England in response to exactly this kind of case: "The corpus delicti rule developed in England in response to a narrow, practical problem: how to ensure that after a murderer was executed the supposed murder victim did not show up to cast doubt on the propriety of the execution. " Id.
153. Corey J. Ayling, Corroborating Confessions: An Empirical Analysis of Legal Safeguards Against False Confession, 1984 WlS. L. REV. 1121, 1136.
154. See, e.g., David A. Moran, In Defense of the Corpus Delicti Rule, 64 OHIO ST. L. J. 817, 835 (2003) (listing the three common criticisms of the corpus delicti rule, including that it is: "underinclusive because it does not apply to even the most unreliable confession to an actual crime;⋯ overinclusive because it results in the suppression of reliable confessions; and⋯ unnecessary because constitutionally-based doctrines provide adequate safeguards against the use of unreliable confessions"); Mullen, supra note 225, at 418 (arguing that the corpus delicti rule should be abolished).
155. 348 U. S. 147 (1954).
156. 348 U. S. 84 (1954).
157. Opper, 348 U. S. at 93-94;
158. Smith, 348 U. S. at 154.
159. E.g., United States v. Lopez-Alvarez, 970 F.2d 583, 592 (9th Cir. 1992);
160. United States v. Johnson, 589 F.2d 716, 718 (D. C. Cir. 1978);
161. United States v. Wilson, 436 F. 2d 122, 124 (3d Cir. 1971);
162. Landsdown v. United States, 348 F.2d 405, 409 (5th Cir. 1965);
163. Jacinth v. State, 593 P.2d 263, 266 (Ala. 1979);
164. State v. Hafford, 746 A.2d 150, 173 (Conn. 2000);
165. State v. Yoshida, 354 P.2d 986, 990 (Haw. 1960);
166. People v. Brechon, 390 N. E.2d 626, 629 (111. App. Ct. 1979);
167. State v. Parker, 337 S. E.2d 487, 495 (N. C. 1985);
168. State v. George, 257 A.2d 19, 21 (N. H. 1969);
169. State v. Lucas, 152 A.2d 50, 57-60 (N. J. 1959);
170. State v. Paris, 414 P.2d 512, 514-15 (N. M. 1966);
171. State v. Ervin, 731 S. W.2d 70, 72 (Term. Crim. App. 1986);
172. Schultz v. State, 264 N. W.2d 245, 253 (Wis. 1978).
173. State v. Mauchley, 67 P.3d 477, 488 (Utah 2003) (alteration in original)
174. (quoting Opper, 348 U. S. at 93).
175. We proposed this higher standard because we believed that police failure to record an interrogation should carry some penalty because the absence of a recording makes it impossible for judges and juries to determine whether the details of the confession came from the suspect or were suggested by the police, thus impeding the truth-seeking function of the trial process. Cf. United States v. Leon, 468 U. S. 897, 916 (1984) (stating that purpose of exclusionary rule is "to deter police misconduct rather than to punish the errors of judges and magistrates").
176. See FED. R. EVID. 403.
177. See STEVEN I. FRIEDLAND ET AL., EVIDENCE LAW AND PRACTICE 56-57 (2d ed. 2004) (explaining that it is the judge's role to determine both whether evidence is admissible and whether a reasonable jury could find that a fact exists such that it supports the relevance of other evidence).
178. See generally Edward Imwinkelreid, Judge Versus Jury: Who Should Decide Questions of Preliminary Facts Conditioning the Admissibility of Scientific Evidence, 25 WM. & MARY L. REV. 577 (1984) (discussing competency facts).
179. Huddleston v. United States, 485 U. S. 681, 682 (1998).
180. Bourjailay v. United States, 483 U. S. 171, 176 (1987).
181. Friedland et AL., supra note 247, at 56. In California, for instance, trial judges are required to evaluate evidence that "is too unreliable to be evaluated properly." CAL. EVID. CODE R. 405. cmt. (West 2013);
182. see, e.g., People v. Terry, 113 Cal. Rptr. 233, 239-40 (Cal. Ct. App. 1974) (holding that trial court determining voluntariness and admissibility of confession must consider all necessary facts). In California, Evidence Code Section 405 '"deals with evidentiary rules designed to withhold evidence from the jury because it is too unreliable to be evaluated properly'⋯ Under § 405, the judge sits as a jury of one, and like jurors is entitled to consider the evidence pro and con, including the credibility of witnesses"
183. MIGUEL MENDEZ, EVIDENCE; THE CALIFORNIA CODE AND THE FEDERAL RULES, A PROBLEM APPROACH 698 (5th ed. 2012).
184. FED. R. EVID. 403.
185. FED. R. EVID. 403.
186. FED. R. EVID. 401;
187. FED. R. EVID. 402;
188. FED. R. EVID. 403.
189. Andrew Taslitz has provided a more theoretical discussion of the various meanings of "weight." See Andrew E. Taslitz, Cyber-Surveillance Without Restraint? The Meaning and Social Value of the Probable Cause and Reasonable Suspicion Standards in Governmental Access to Third Party Electronic Records, 103 J. CRIM. L. & CRIMINOLOGY 839, 898-905 (2013).
190. See id.; Andrew E. Taslitz, Daubert's Guide to the Federal Rules of Evidence: A Not-So-Plain Meaning Jurisprudence, 32 HARV. J. LEG. 3, 38-39 (1995)
191. [hereinafter Taslitz, Daubert's Guide];
192. Andrew E. Taslitz, Interpretive Method and the Federal Rules of Evidence: A Call for a Politically Realistic Hermeneutics, 32 HARV. J. LEG. 329, 399-401 (1995)
193. [hereinafter Taslitz, Interpretive Method]
194. Taslitz, Daubert's Guide, supra note 261, at 37-44;
195. Taslitz, Interpretive Method, supra note 261, at 399-401.
196. See FED. R. EVID. 403 advisory committee's note (explaining that one purpose of Rule 403 is to protect against jury error).
197. 509 U. S. 579 (1993).
198. Daubert, 509 U. S. at 589.
199. Taslitz, Daubert's Guide, supra note 261, at 37-44
200. Taslitz, Interpretive Method, supra note 261, at 399-401.
201. Taslitz, Daubert's Guide, supra note 261, at 37-44.
202. Daubert, 509 U. S. at 592-93.
203. FED. R. EVID. 403 (using permissive, rather than mandatory, language).
204. The Oregon Supreme Court has distinguished evidentiary analysis from due process because the latter requires state action, whereas the former does not. State v. Lawson, 291 P.3d 673, 693 (Or. 2012). But the spirit of Lawson's discussion of Rule 403 as a generative rule otherwise has the feel of due process about it.
205. 291 P.3d 673 (Or. 2102).
206. Lawson, 291 P.3d at 691-94.
207. Id. at 695. It is worth noting that the Lawson court also held that reliability matters even if there is no state action causing suggestion. Id. at 688-89. See generally Sandra Guerra Thompson, Daubert Gatekeeping for Eyewitness Identifications, 65 SMU L. REV. 593 (2012) (discussing the role of trial courts as gatekeepers for eyewitness identification evidence).
208. Lawson, 291 P.3d at 694 ("When the opponent of the evidence succeeds in that regard, the trial court can either exclude the evidence or fashion a remedy to restore a permissible balance between the probative value of the evidence and the countervailing concerns set out in OEC 403."); Id. at 697 ("If the state's administration of one or more of the system variables (either alone or combined with estimator variables) results in suggestive police procedures, that fact can, in turn, give rise to an inference of unreliability that is sufficient to undermine the perceived accuracy and truthfulness of an eyewitness identification-only then may a trial court exclude the eyewitness identification under OEC 403." (emphasis added)).
209. FED. R. EVID. 702.
210. Lawson, 291 P.3d at 697.
211. See, e.g., FED. R. EVID. 404 (b) (allowing proponent to use character evidence if they can articulate legitimate reason).
212. E.g., LEO, supra note 3, at 181; Richard A. Leo & Steven A. Drizin, The Three Errors: Pathways to False Confession and Wrongful Conviction, in POLICE INTERROGATIONS AND FALSE CONFESSIONS: CURRENT RESEARCH, PRACTICE, AND POLICY RECOMMENDATIONS 9, 9-30 (Daniel Lassiter & Christian Meissner eds., 2010); Appleby et al., supra note 108, at 2-3.
213. Colorado v. Connelly, 479 U. S. 157, 166 (1986)
214. (quoting Delaware v. Van Arsdall, 475 U. S. 673, 681 (1986)).
215. UNIFORM LAW COMMISSION, http://www.unifonnlaws.org/(last visited Oct. 26, 2013).
216. UNIF. HLEC. REC. CUST. INTERR. ACT (2010); see also Taslitz, supra note 25, at 400-08 (documenting how the Uniform Law Commission sent a proposed statute to the states for consideration).
217. UNIF. ELEC. REC. CUST. INTERR. ACT § 13 (2010).
218. Colorado v. Connelly, 479 U. S. 157, 167 (1986).
219. 725 ILL. COMP. STAT. 5/103-2.1 (0 (West 2013);
220. MONT. CODE ANN. § 46-4-409 (West 2013);
221. N. C. GEN. STAT. § 15A-211 (West 2013).
222. Forty-two states have adopted evidence codes based on the Federal Rules of Evidence. 6 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S FEDERAL EVIDENCE, at T-l (Joseph M. McLaughlin ed., 2d ed. 1997).
223. See FED. R. EVID. 402.
224. See FED. R. EVID. 104 (a).
225. Edward J. Imwinkelreid, The Meaning of Probative Value and Prejudice in Federal Rule of Evidence 403: Can Rule 403 Be Used to Resurrect the Common Law of Evidence?, 41 VAND. L. REV. 879, 895 (1988).
226. Sandra Guerra Thompson, Judicial Gatekeeping of Police-Generated Witness Testimony 54 (unpublished manuscript) (on file with authors);
227. see also Victor J. Gold, Federal Rule of Evidence 403: Observations on the Nature of Unfairly Prejudicial Evidence, 58 WASH. L. REV. 497, 497 (1983) (characterizing Rule 403 as the cornerstone of the Federal Rules of Evidence).
228. Aviva Orenstein, Deviance, Due Process, and the False Promise of Federal Rule of Evidence 403, 90 CORNELL L. REV. 1487, 1517-18 (2005).
229. See infra Part IV. E.2. C for a discussion of child witness testimony.
230. See infra Part IV. E.2.d for a discussion of hearsay evidence.
231. See infra Part IV. E.2.f for a discussion of hypnotically refreshed testimony.
232. See infra Part IV. D for a discussion of the gatekeeping role of judges.
233. Daubert v. Merrill Dow Pharm., 509 U. S. 590, 595 (1993).
234. FED. R. EVID. 609 (a) (1) (AHB).
235. FED. R. EVID. 403.
236. FED. R. EVID. 609 (a) (1) (B).
237. FED. R. EVID. 402.
238. FED. R. EVID. 609 (a) (lXB).
239. 397 U. S. 358 (1970).
240. Winship, 397 U. S. 358, 372 (1970) (Harlan, J., concurring) ("[A] fundamental value determination of our society [is] that it is far worse to convict an innocent man than to let a guilty man go free.").
241. See Gordon v. United States, 383 F.2d 936, 939 (D. C. Cir. 1967) (listing factors);
242. Luck v. United States, 348 F.2d 763, 769 (D. C. Cir. 1965) (same).
243. FRIEDLAND ET al., supra note 247, at 157. For a critical discussion of the origins of this five factor analytical framework, see Jeffrey Beilin, Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U. C. DAVIS L. REV. 289, 307-19 (2009).
244. For example, in the case of DNA exoneree Christopher Ochoa, police saw a photograph of the deceased, highlighting rectal tearing. The police claimed that when Mr. Ochoa confessed, he volunteered to having anally raped the victim. Later, it was learned that the tears were due to life-saving measures taken at the scene as opposed to sexual penetration. Although the act to which Mr. Ochoa confessed never occurred, the police believed it to be true at the time of the interrogation. Thus, it was more likely that the police suggested the act of anal sodomy, rather than it having originated with Mr. Ochoa. See LEO, supra note 3, at 260-63 (detailing Ochoa's confession and the coercion of the police in obtaining it); Christopher Ochoa, My Life Is a Broken Puzzle, In SURVIVING JUSTICE: AMERICA'S WRONGFULLY CONVICTED AND EXONERATED 13, 13-46 (Lola Vollen & Dave Eggers eds., 2005) (detailing Ochoa's version of the events);
245. Know the Cases: Christopher Ochoa, INNOCENCE PROJECT, http://www.innocenceproject.org/Content/Christopher-Ochoa.php (last visited Oct. 26, 2013) (detailing the facts of the rape and murder of Nancy DePriest and the questioning of Mr. Ochoa).
246. See FED. R. CRIM. P. 16 (aXlXB).
247. See Kumho Tire Co., Ltd. V. Carmichael, 526 U. S. 137, 141-42 (1999) (holding that judges must review all expert testimony, not just scientific or novel expert testimony, prior to admissibility);
248. Gen. Electric Co. V. Joiner, 522 U. S. 136, 146-48 (1997) (holding that judges have the discretion to determine whether admit or exclude scientific evidence).
249. JAMES BRADLEY THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 1-2 (1898) ("Here, a great mass of evidential matter, logically important and probative, is shut out⋯ by an imperative rule, while the same matter is not thus excluded anywhere else. English-speaking countries have what we call a 'Law of Evidence.'" (footnote omitted)).
250. FED. R. EVID. 403 advisory committee's note.
251. In addition to the listed areas, the State of Illinois has instituted pretrial reliability hearings for the admissibility of jailhouse informant ("snitch") testimony in capital cases. See 725 III. COMP. STAT. ANN. 5/115-21 (West 2013).
252. The States of Nevada, Oklahoma, and Florida have also considered reliability hearings whenever the government seeks to use the testimony of a jailhouse snitch, as has Canada. See D'Agostino v. State, 823 P.2d 283, 285 (Nev. 1992) (holding that before "jailhouse incrimination" testimony is admissible the "trial judge [must] first determine that the details of the admissions supply a sufficient indicia of reliability");
253. Dodd v. State, 993 P.2d 778, 785 (Okla. Crim. App. 2000);
254. Jan Pudlow, What to Do About Jailhouse Snitches with Reason to Lie?, FLA. B. NEWS (March 15, 2012), https://www.floridabar.org/DIVCOM/JN/JNNewsO 1.nsf/Articles/71F2C335ADD91602852579B800465917. Although it does not require pretrial reliability hearings, the State of Texas does require that informant testimony be corroborated in order to be admissible.
255. See TEX. CODE CRIM. PROC. ANN. art. 38.141 (West 2013) (stating that conviction cannot be based on testimony working on behalf of law enforcement who is not a licensed officer).
256. See generally ALEXANDRA NATAPOFF, SNATCHING: CRIMINAL INFORMANTS AND THE EROSION OF AMERICAN JUSTICE 192-95 (2009);
257. Alexandra Natapoff, Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37 GOLDEN GATE U. L. REV. 107, 113-15 (2006).
258. See infra Part IV. E.2.b for a discussion of eyewitness identification.
259. See infra Part IV. E.2.f for a discussion of hypnotically induced testimony.
260. See infra Part IV. E.2. C for a discussion of child witness testimony in sex abuse cases.
261. See infra Part IV. E.2.d for a discussion of hearsay evidence.
262. Daubert v. Merrell Dow Pharm, Inc., 509 U. S. 590, 594-95 (1993);
263. Frye v. United States, 293 F. 1013, 1014 (D. C. Cir. 1923).
264. See infra Part IV. E.2.e for a discussion of admissibility of expert testimony.
265. "Most jurisdictions that have adopted this standard recognize that it is the responsibility of the trial judge to determine as a matter of law whether a defendant's confession is sufficiently trustworthy or reliable to be admitted into evidence." State v. Mauchley, 67 P.3d 477, 483 (Utah 2003)
266. (citing United States v. Dickerson, 163 F.3d 639, 642 (D. C. Cir. 1999);
267. State v. George, 257 A.2d 19, 21 (N. H. 1969)).
268. We recognize that some evidentiary rules are designed to encourage or discourage certain types of behavior outside the courtroom for reasons having nothing to do with fact-finding accuracy. E.g., FED. R. EVID. 408, 409, 410. But our focus is on rules having accuracy as their primary goal.
269. Manson v. Brathwaite, 432 U. S. 98, 114 (1977).
270. See Commonwealth v. Johnson, 650 N. E. 2d 1257, 1265-66 (Mass. 1995) (Nolan, J., dissenting) (noting that almost every state has adopted the Manson reliability test under their state constitutions);
271. see also Sandra Guerra Thompson, Judicial Blindness to Eyewitness Misldentifications, 93 MARQ. L. REV. 639, 641 (2009) (reporting the findings of a year-long empirical study of state appellate court decisions on eyewitness identification due process cases).
272. Brathwaite, 432 U. S. at 114.
273. Brathwaite, 432 U. S. at 113.
274. Neil v. Biggers, 409 U. S. 188, 199-200 (1972).
275. Id. These five factors, however, leave much to be desired, as modern social science offers a broader and more helpful array of factors. See the recent unanimous decision by the New Jersey Supreme Court declaring the Manson/Biggers factors unsupported by scientific research over the last 30 years. State v. Henderson, 27 A.3d 872, 878 (N. J. 2011) (revising the reliability test);
276. see also State v. Lawson, 291 P.3d 671, 693-94 (Or. 2012) (finding that current reliability factors do not reflect current scientific research);
277. Gary I. Wells & Deah S. Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme Court's Reliability Test in Light of Eyewitness Science: 30 Years Later, 33 LAW & HUM. BEHAV. 1, 5 (2009) (observing that scientific research that led to the Manson reliability factors has been criticized).
278. Neil, 409 U. S. at 199.
279. People v. Michael M., 618 N. Y. S.2d 171, 178 (N. Y. Sup. Ct. 1994) (holding such a pretrial reliability hearing). In so doing, the court explained that New York trial courts have long had the power to determine evidentiary matters at pretrial hearings, including the admissibility of prehypnotic recollections, prior uncharged crimes and convictions, tape recordings, and breathalyzer test results. Id.;
280. see also Jelinek v. Costello, 247 F. Supp. 2d 212, 279 (E. D. N. Y. 2003) (finding that in spite of an absence of express authority in the New York penal law or criminal procedure, courts may still exercise their discretion to order pretrial taint hearings in appropriate cases).
281. Michael M., 618 N. Y. S.2d at 175.
282. See Stephen J. Ceci & Richard D. Friedman, The Suggestibility of Children: Scientific Research and Legal Implications, 86 CORNELL L. REV. 33, 71 (2000) (summarizing data showing broad consensus that young children are highly suggestible and vulnerable to strongly suggestive questioning);
283. Jean Montoya, Something Not So Funny Happened on the Way to Conviction: The Pretrial Interrogation of Child Witnesses, 35 ARIZ. L. REV. 927, 933-40 (1993) (addressing social science research showing that suggestive pretrial "interrogation" of child witnesses can unwittingly manufacture false accusations);
284. John E. B. Myers, Taint Hearings for Child Witnesses? A Step in the Wrong Direction, 46 BAYLOR L. REV. 873, 880-84 (1994) (noting a prevalence of overzealousness and excessive use of leading questions in interviews of children regarding possible sexual assault).
285. Laurence H. Tribe, Triangulating Hearsay, 87 HARV. L. REV. 957, 958 (1974) ("In the absence of special reasons, the perceived untrustworthiness of such an out-of-court act or utterance has led the Anglo-Saxon legal system to exclude it as hearsay despite its potentially probative value.").
286. People v. Edwards, 392 N. E.2d 1229, 1231 (N. Y. 1979). As the Federal Rules Advisory Committee states: "The present rule proceeds upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available"
287. FED. R. EVID. 803 advisory committee's note (emphasis added).
288. "Out-of-court statements offered for the truth of the matters they assert are hearsay and 'may be received in evidence only if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable.'" Nucci v. Proper, 744 N. E.2d 128, 130 (N. Y. 2001) (emphasis added)
289. (quoting People v. Brensic, 509 N. E.2d 1226, 1228 (N. Y. 1987)).
290. See, e.g., People v. Johnson, 804 N. E.2d 402, 405 (N. Y. 2003) ("Stating the rule is simple. Determining a declarant's mental state-that is, whether at the time the utterance was made a declarant was in fact under the stress of excitement caused by an external event sufficient to still his or her reflective faculties-is considerably more difficult."). In several exceptions to the hearsay rule-such as the present sense impression, spontaneous declarations, and business records exceptions-trustworthiness is specifically listed as a consideration. Id.
291. Nucci, 744 N. E.2d at 130
292. (quoting Brensic, 509 N. E.2d at 1228);
293. see also People v. Ennis, 900 N. E.2d 915, 922 (N. Y. 2008) ("To qualify under [the declarations against penal interest exception], the declarant must be unavailable, must have competent knowledge of the facts and must have known at the time the statement was made that it was against his or her penal interests. Even if these criteria are met, the statement cannot be received in evidence unless it is also supported by independent proof indicating that it is trustworthy and reliable." (emphasis added));
294. People v. Brensic, 509 N. E.2d 1226, 1228 (N. Y. 1987) ("As with all forms of hearsay evidence, a determination of the admissibility of a declaration against penal interest, focusing on the circumstantial probability of its reliability, must be made before it is received; the trial court must determine, by evaluating competent evidence independent of the declaration itself, whether the declaration was spoken under circumstances which renders it highly probable that it is truthful." (emphasis added)).
295. People v. Nieves, 492 N. E.2d 109, 115 (N. Y. 1986) (determining "whether⋯ statements qualified as excited utterances require factual determinations");
296. People v. Edwards, 392 N. E.2d 1229, 1231 (N. Y. 1979) ("[A]dmissibility of an excited utterance is entrusted in the first instance to the trial court.");
297. People v. Marks, 160 N. E.2d 26, 31 (N. Y. 1959) (admissibility of an excited utterance is a "preliminary question of fact").
298. E.g., Brensic, 509 N. E.2d at 1235.
299. In the Federal Rules of Evidence, the exceptions that do require a specific showing of trustworthiness are FED. R. EVID. 803(6), 803(8), and 807.
300. See David A. Sonenshein, The Residual Exceptions to the Federal Hearsay Rule: Two Exceptions in Search of a Rule, 57 N. Y. U. L. REV. 867, 868-75 (1982) (explaining judicial and legislative development of original two residual exceptions).
301. Ostemeck v. E. T. Barwick Indus., Inc., 106 F. R. D. 327, 334 (N. D. Ga. 1984).
302. F. T. C. V. Figgie Int'l, Inc., 994 F.2d 595, 608 (9th Cir. 1993).
303. In Daubert, the United States Supreme Court established the role of federal judges as gatekeepers of expert testimony and evidence. Daubert v. Merrell Dow Pharm, Inc., 509 U. S. 579, 597 (1993). In 1999, the Supreme court further emphasize the gatekeeping role of federal judges in Kumho Tire Co., extending the gatekeeping obligations of federal judges to all expert testimony, not just scientific or novel expert testimony.
304. Kumho Tire Co. V. Carmichael, 526 U. S. 137, 158 (1999).
305. Frye v. United States, 293 F. 1013, 1014 (D. C. Circ. 1923).
306. See, e.g.. People v. Wesley, 633 N. E.2d 451, 453-54 (N. Y. 1994) (discussing the application of Frye test).
307. See People v. Taylor, 552 N. E.2d 131, 139 (N. Y. 1990) (holding that although evidence of rape trauma syndrome passed the Frye test in New York state, its prejudicial impact far outweighs its probative value).
308. Daubert, 509 U. S. at 593-94.
309. Daniel R. Webert, Are the Courts in a Trance? Approaches to the Admissibility of Hypnotically Enhanced Witness Testimony in Light of Empirical Evidence, 40 AM. CRIM. L. REV 1301, 1307 (2003).
310. See State v. Hurd, 432 A.2d 86, 92 (N. J. 1981) ("[H]ypnotically- induced testimony may be admissible [under Frye] if the proponent of the testimony can demonstrate that the use of hypnosis in the particular case was a reasonably reliable means of restoring memory comparable to normal recall in its accuracy.").
311. Hurd, 432 A.2d at 91.
312. 68 F.3d 597 (2d Cir. 1995).
313. Borawick, 68 F.3d at 607-08.
314. 484 U. S. 44 (1987).
315. Rock, 484 U. S. at 46-47.
316. FED. R. EVID. 801 (dX2).
317. EDMUND M. MORGAN, BASIC PROBLEMS OF EVIDENCE 266 (4th ed. 1963).
318. Roger Park, The Rationale of Personal Admissions, 21 IND. L. REV. 509, 511 (1988).
319. JON R. WALTZ, INTRODUCTION TO CRIMINAL EVIDENCE 80 (2d ed. 1983).
320. FED. R. EVID. 801 (d) (2XA).
321. FED. R. EVID. 801 (dX2XB).
322. FED. R. EVID. 804 (bX3XB).
323. The Commentary to this amendment could read: The drafters of this exception to the party admissions rule have been concerned with the numbers of false confessions that have surfaced since the advent of DNA evidence and with the problem of police contamination in false confession cases. In addition, the drafters recognize that the traditional "totality of the circumstances" test used to determine whether a confession should be admitted into evidence concerns only whether the confession is voluntary and not whether it is reliable. See Colorado v. Connelly, 479 U. S. 157, 176 (1986) (Brennan, J. dissenting) (stating that the "requirement that a confession be voluntary reflects a recognition of the importance of free will and of reliability in determining the admissibility of a confession, and thus demands an inquiry into the totality of the circumstances surrounding the confession"). Moreover, the drafters take note that in virtually every DNA exoneration involving a false confession, trial courts found the defendant's confessions to be voluntary and appellate courts affirmed these decisions on appeal. In short, the voluntariness test is ineffective at excluding false confessions before trial. The drafters are also concerned that the party admissions rule, at least in the case of confessions, may actually encourage police contamination or coercion during the interrogation process. As long as such confessions are admissible without concern for their reliability, police officers have a powerful incentive to coerce and to contaminate confessions.
324. See, e.g., Margaret A. Berger, False Confessions-Three Tales from New York, 37 SW. U. L. REV. 1065, 1069 (2008) (citing the Leo et al.'s reliability test as an example of the type of reform that is needed to avoid more instances of convictions based on false confessions); Duke, supra note 183, at 567 n. 81 ("1 support pretrial reliability hearings⋯.");
325. George C. Thomas III, Regulating Police Deception During Interrogation, 39 TEX. TECH. L. REV. 1293, 1298 (2007) (stating he "would adopt Richard Leo's very good idea that courts should examine confessions for indicia of unreliability"); GARRETT, supra note 12, at 40 (agreeing that pretrial reliability bearings are a good vehicle for courts to question a confession's reliability); Simon, supra note 117, at 215 (endorsing bringing reliability back into the courts for confessions); Taslitz, supra note 25, at 423 (arguing that it is "wise to craft⋯ mechanisms for making suppression on the grounds of reliability alone a basis for suppression"); Thompson, supra note 26, at 363 (extensively discussing and building on Leo et al.'s "new reliability test" for confession evidence).
326. In 1997 Richard Ofshe and Richard Leo argued the reliability of a suspect's confession can be evaluated by analyzing the lit (or lack thereof) between the descriptions in his postadmission narrative and the crime facts in order to determine whether the suspect's postadmission narrative reveals the presence (or absence) of guilty knowledge and whether it is corroborated (or disconfirmed) by objective evidence. Ofshe & Leo, supra note 24, at 990-92. Ofshe and Leo also argued that based on this fit test, trial courts should insist on a minimum standard of reliability, and thus independent corroboration, before admitting a confession into evidence. Richard J. Ofshe & Richard A. Leo, The Social Psychology of Police Interrogation: the Theory and Classification of True and False Confessions, 16 STUD. L. POL. & SOC'Y 189, 219 (1997). In 1998 the late Welsh White criticized the Ofshe-Leo fit test as administratively infeasible means of evaluating a confession's reliability for the purpose of admissibility. White, supra note 130, at 2024-28. Because we have previously rebutted in detail each of White's five separate criticisms of the Ofshe-Leo fit test as a means of evaluating a confession's reliability for the purpose of admissibility, we do not repeat White's criticisms or our point-bypoint responses here. See Leo et al., supra note 25, at 520-25.
327. Samuel R. Gross et al., Exonerations in the United States, 1989 through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 551 (2005) ("Any plausible guess at the total number of miscarriages of justice in America in the last fifteen years must be in the thousands, perhaps tens of thousands.").
328. In re Winship, 397 U. S. 358, 372 (1970) (Harlan, J., concuning).
329. 404 U. S. 477 (1972).
330. Lego, 404 U. S. at 486 ("[T]he purpose that a voluntariness hearing is designed to serve has nothing whatever to do with improving the reliability of jury verdicts.").
331. Colorado v. Connelly, 479 U. S. 157, 167 (1986).
332. See, e.g., Thomas P. Sullivan & Andrew W. Vail, The Consequences of Law Enforcement Official's Failure to Electronically Record Custodial Interviews as Required By Law, 99 J. CRIM. L. & CRIMINOLOGY 215, 220-23 (2009) (discussing changes the authors would make to a model bill encouraging use of electronic testimony);
333. see also Richard A. Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY, 266, 291-305 (1996) (examining effectiveness of interrogation techniques used by law enforcement).
334. E.g., Solomon Fulero, Tales from the Front: Expert Testimony on the Psychology of Interrogations and Confessions Revisited, in POLICE INTERROGATIONS AND FALSE CONFESSIONS: CURRENT RESEARCH, PRACTICE, AND POUCY RECOMMENDATIONS 211, 211-24 (G. Daniel Lassiter & Christian Meissner eds., 2010); see also Leo, supra note 3, at 314-16.
335. Empirical evidence have often shown that jury instructions are either ineffective or operate in ways other than intended. Moreover, jurors frequently misunderstand instructions, even though they often believe the contrary. See James R. P. Ogloff & V. Gordon Rose, The Comprehension of Judicial Instructions, in PSYCHOLOGY AND LAW: AN EMPIRICAL PERSPECTIVE 407, 425 (Neil Brewer & Kipling D. Williams eds., 2005) (reviewing studies on the efficacy of judicial instructions);
336. RANDOLPH JONAKAIT, THE AMERICAN JURY SYSTEM 203-04 (2003) ("[N]o matter how it is measured, jurors appear largely incapable of understanding judicial instructions as they are traditionally delivered by the judge⋯. [T]he overwhelming weight of the evidence is that the instructions are not understood and therefore cannot be helpful.");
337. Michael J. Saks, What Do Jury Experiments Tell Us About How Juries (Should) Make Decisions?, 6 S. CAL. INTERDISC. L. J. 1, 32 (1997) (explaining how the timing of jury instructions can affect jurors' understanding in cases).
338. See, e.g., CHARLES TILFORD MCCORMICK, MCCORMICK'S HANDBOOK OF THE LAW OF EVIDENCE 316 (2d ed. 1972) ("[T]he introduction of a confession makes the other aspects of a trial in court superfluous.").
339. Paul Cassell argued in the 1990s that Miranda requirements had cost American law enforcement hundreds of thousands of lost confessions every year and tens of thousands of lost convictions. Paul G. Cassell & Richard Fowles, Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055, 1107-09 (1998);
340. see also Paul G. Cassell, AH Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084, 1087-91 (1996) (responding to criticism of Cassell's evaluation of Miranda's impact). Numerous social scientists and legal scholars refuted Cassell's speculative and partisan claims at the time, criticizing him for, among other things: partisan bias; reliance on flawed methods, studies, and data; arbitrary, speculative, and exaggerated statistical estimates; and indefensibly selective reporting of the data.
341. See, e.g., John J. Donohue III, Did Miranda Diminish Police Effectiveness?, 50 STAN. L. REV. 1147, 1157-59 (1998) (discussing problems with Cassell's and Fowler's methodology and inferences);
342. Floyd Feeney, Police Clearances: A Poor Way to Measure the Impact of Miranda on the Police, 32 RUTGERS L. J. 1, 107-10 (2000) (listing his concerns with the Cassell-Fowles analysis);
343. Richard A. Leo & Richard J. Ofshe, Using the Innocent to Scapegoat Miranda.-Another Reply to Paul Cassell, 88 J. CRIM. L. & CRIMINOLOGY 557, 558 (1998) (noting that Cassell's method for examining the frequency of wrongful convictions from false confessions "amounts to no more than grand speculation masquerading as a reasoned estimate of fact");
344. Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. REV. 500, 502 (1996) (criticizing the accuracy and use of Cassell's statistics). As Professor Stephen Schulhofer noted in 1996: Just a few months ago, in his Northwestern University Law Review article, Professor Cassell claimed that each year, because of Miranda, an additional 28, 000 violent criminals are walking the streets. By the time he wrote for the Legal Times, the number had grown to 100, 000. Readers should understand that these are simply advocacy numbers, derived from indefensibly selective accounts of the available data.
345. Stephen J. Schuhofer, Pointing in the Wrong Direction, LEGAL TIMES, Aug. 12, 1996, at 21.
346. Richard A. Leo, The Third Degree and the Origins of Psychological Interrogation in America, in INTERROGATIONS, CONFESSIONS AND ENTRAPMENT 37, 37-84 (Daniel Lassiter ed., 2004);
347. Richard A. Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621, 664-67 (1996); Sullivan & Weil, supra note 422, at 220-23.
348. FRED INBAU ET AL., ESSENTIALS OF THE REID TECHNIQUE: CRIMINAL INTERROGATION AND CONFESSIONS, at vii-viii, 217 (4th ed. 2004).
349. Joseph P. Buckley, The Reid Technique of Interviewing and Interrogation, in INVESTIGATIVE INTERVIEWING: RIGHTS, RESEARCH AND REGULATION 204 (Tom Williamson ed., 2006).
350. George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 UCLA L. REV. 933, 935-36 (1996) ("In the Salt Lake County study, Cassell and Hayman conclude that '42.2% of the suspects who were questioned gave incriminating statements, ' a figure that is substantially lower than the 55%-60% range they use for the pre-Miranda studiesI think a range of 45%-53% is a better estimate of the pre-Miranda confession rate." (footnote omitted)
351. (quoting Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects q/"Miranda, 43 UCLA L. REV. 839, 872-83, 917 (1996))).
352. Marcus, supra note 167, at 606-07; Nardulli, Societal Costs, supra note 176, at 599-600.
353. For example, in capital cases, judges are less likely to follow reliable procedures, broadly defined, out of fear of being publicly blamed by prosecutors (and victims and their families) for losses based on perceived technicalities. Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B. U. L. Rev. 759, 834-35 (1995).
354. Leo, supra note 434, at 302-03; see also BARRY C. FELD, KIDS, COPS, AND CONFESSIONS: INSIDE THE INTERROGATION ROOM 251-52 (2012) (finding that most juveniles cannot comprehend the effect of waiver of Miranda rights).
355. It is possible that a trial judge assessing the reliability of disputed confession evidence would rule the confession admissible on the grounds that the reliability of the confession statement is an issue for the jury that goes to weight rather than admissibility. See Crane v. Kentucky, 476 U. S. 683, 688 (1986) (noting that circumstances surrounding confession bear on both voluntariness and credibility, and that weight of confession can be argued at trial). While trial judges may be loathe to enforce exclusionary rules which punish police conduct at the risk of keeping from the jury powerful and reliable evidence of guilt, we believe this is less likely here since we are not advocating for an exclusionary rule but rather for the traditional gatekeeping function of excluding unreliable (confession) evidence. Moreover, even if trial judges are reluctant to exclude on disputed confession evidence that appears facially unreliable, there are other reasons to endorse the kind of reliability assessment proposed in this Article, including that it may influence police and prosecutors to improve case screening, continue investigating cases even after they have obtained incriminating statements, and be mindful and proactive about the dangers of confession contamination.
356. 348 U. S. 84 (1954).
357. Opper, 348 U. S. at 93.
358. 92 F. Supp. 2d 554 (W. D. Va. 2000).
359. Doe, 92 F. Supp. 2d at 558.
360. 232 F. Supp. 2d 618 (E. D. Va. 2002).
361. Jones, 232 F. Supp. 2d at 622.
362. 367 F.3d 294 (5th Cir. 2004).
363. Reynolds, 367 F.3d at 297.
364. See State v. Aten, 900 P.2d 579, 585 (Wash. Ct. App. 1995) (holding that numerous statements by a defendant "cannot corroborate one another").
365. See Duncan v. State, 494 A.2d 235, 239 (Md. Ct. Spec. App. 1985) ("It is not necessary that the corroborative evidence be full and complete or that it establish the truth of the corpus delecti beyond a reasonable doubt or even by a preponderance of proof⋯. Even a slight amount of evidence may be sufficient⋯ the necessary quantum being dependent upon the facts of the particular case.").
366. See State v. Nieves, 87 P.3d 851, 857 (Ariz. Ct. App. 2004) (holding that a defendant's confession was inadmissible where there was neither direct nor circumstantial evidence to corroborate the defendant's confession or to show that a crime had even occurred).
367. See Geiger v. State, 907 So. 2d 668, 674 (Fla. Dist. Ct. App. 2005) (holding that a confession is admissible "if sufficient corroborating evidence is presented that tends to establish the trustworthiness of the confession").
368. See State v. Reddish, 859 A.2d 1173, 1211-13 (N. J. 2004) (affirming that the State must introduce corroborating evidence demonstrating the trustworthiness of a confession to sustain introduction of the confession).
369. See State v. Kalani, 649 P.2d 1188, 1195-96 (Haw. Ct. App. 1982) (holding that the trial judge has the discretion to determine whether a confession should be admissible).
370. See State v. Parker, 337 S. E.2d 487, 495 (N. C. 1985) (holding that proof of corpus delicti is not necessary in noncapital cases if the confession is supported by "substantial independent evidence tending to establish trustworthiness").
371. See State v. Hafford, 746 A.2d 150, 174 (Conn. 2000) (adopting the trustworthiness doctrine for admission of confessions).
372. Brian C. Reeve, Note, State v. Parker: North Carolina Adopts the Trustworthiness Doctrine, 64 N. C. L. REV. 1285, 1286 (1986).
373. Parker, 337 S. E.2d at 494.
374. People v. LaRosa, 293 P.3d 567, 578 (Colo. 2013) (en banc) (noting that unreliable confessions will still get before the jury but defendants can use the doctrine to argue for directed verdicts at the close of the State's case).
375. 907 So. 2d 668 (Fla. Dist. Ct. App. 2005).
376. Geiger v. State, 907 So. 2d 668, 669 (Fla. Dist. Ct. App. 2005).
377. 393 S. E.2d 819 (N. C. 1990).
378. Shook, 393 S. E.2d at 822.
379. 337 S. E.2d 487 (N. C. 1985).
380. Parker, 337 S. E.2d at 495.
381. 193 S. W.3d 476 (Tenn. 2006).
382. Housler, 193 S. W.3d at490.
383. Marc Galanter, Why the "Haves " Come Out Ahead: Speculation on the Limits of Legal Change, 9 LAW & SOC'Y REV. 95, 97 (1974).
384. Lawrence Rosenthal, Against Orthodoxy: Miranda is Not Prophylactic and the Constitution is Not Perfect, 10 CHAP. L. REV. 579, 610-14 (2007).
385. As the Supreme Court has noted: "The basic purpose of a trial is the determination of truth." Tehan v. United States, 382 U. S. 406, 416 (1966).
386. But see Michael L. Radelet & Hugo Adam Bedau, Erroneous Convictions and the Death Penalty, in WRONGLY CONVICTED: PERSPECTIVES ON FAILED JUSTICE 269, 274 (Saundra Westervelt & John Humphrey eds., 2001) (describing Paul Cassell as "the nation's leading apologist for judicial errors").
387. See DNA Exonerations Nationwide, INNOCENCE PROJECT, http://www. innocenceproject.org/Content/DNA-Exonerations-Nationwide.php (last visited Oct. 26, 2013).
388. As of this date, the seventy-eight names were: Kenneth Adams, Jonathan Bair, Larry Bostic, Marcellius Bradford, Ted Bradford, Dennis Brown, Keith Brown, Rolando Cruz, Richard Danziger, James Dean, Jeff Deskovic, John Dixon, Bobby Ray Dixon, James Edwards, Dennis Fritz, Bruce Godschalk, Kathy Gonzalez, Anthony Gray, Paula Gray, Byron Halsey, Dennis Halstead, James Harden, Nathaniel Hatchett, Travis Hayes, Eugene Henton, Alejandro Hernandez, Vemeal Jimerson, Anthony Johnson, Ronald Jones, David Allen Jones, Kenneth Kagonyera, William Kelly, John Kogut, Barry Laughman, Steven Linscott, Eddie Joe Lloyd, Eddie James Lowery, Ryan Matthews, Antron McCray, Robert Miller, Curtis Jasper Moore, Bruce Nelson, James Ochoa, Christopher Ochoa, Lany Ollins, Calvin Ollins, Freddie Peacock, Willie Rainge, John Restivo, Kevin Richardson, Harold Richardson, Juan Rivera, Lafonso Rollins, Larry Ruffin, Yusef Salaam, Raymond Santana, Michael Saunders, Omar Saunders, Shainne Sharp, Debra Shelden, Walter Snyder, Frank Sterling, Terrill Swift, Ada JoAnn Taylor, Vincent Thames, Damon Thibodeaux, Jerry Frank Townsend, David Vasquez, Robert Lee Veal, Douglas Wamey, Earl Washington, Joseph White, Arthur Lee Whitfield, Robert Wilcoxson, Dennis Williams, Ron Williamson, Thomas Winslow, and Korey Wise. Browse the Profiles, INNOCENCE PROJECT, http://www.innocenceproject.org/know/Browse-Profiles.php (last visited Oct. 26, 2013).
389. Courts and legislatures could also fashion remedies short of exclusion, such as jury instructions on contamination, and exclusion of the contaminated portions of a recorded interrogation. Cf. Opper v. United States, 348 U. S. 84, 95 (holding that jury instruction to ignore codefendant's confession is sufficient to prevent prejudice because the American "theory of trial relies upon the ability of a jury to follow instructions").