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False confessions

The Jon Benet Ramsey case took its latest turn with the news a couple of weeks ago that new DNA tests had exclused the Ramsey family members as suspects in the child's death.  This, of course, was a case that was supposed to have been solved a couple years back when John Mark Karr confessed to having killed her, only to have the charges dropped several months later when Karr's DNA didn't match that left at the murder scene. 

Karr's is hardly the only example of a false confession; the Innocence Project found that "in more than 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty."  There are actually three categories of false confessions, and Karr is the classic example of the first:  "voluntary" confessions, made by people who are mentally off-kilter or looking to curry fame, or both.  Karr's case is hardly unprecedented; over 200 people "confessed" to having kidnapped the Lindberg baby back in the 1930's. 

Much more prevalent, though, is the "compliant" false confession, where people wind up confessing simply to get out of their current situation.  Back in 1989, for example, a woman was raped in Central Park in New York City while out jogging.  The police quickly leapt into action, and within a few days had rounded up five juveniles, who, after intensive interrogation, ranging in time from 13 to 30 hours, gave videotaped confessions to the crime.  They repudiated the confessions shortly thereafter, but that didn't stop them from being convicted.  Or from spending 13 years in prison before they were released because another man confessed to the crime, and his DNA actually matched that found at the scene. 

Then there's the "internalized" false confession, in which a psychologically vulnerable defendant can actually be made to believe that he committed the crime the police are interrogating him about.  Perhaps the most notable case here is that of Paul Ingram, a deputy sheriff in Washington State who, after extensive interrogation including hypnosis, "confessed" to ritualistic sexual abuse of his daughters and spent fifteen years in prison for something that virtually everybody now agrees never happened.

One might have thought that the Miranda decision would have ended this, but despite the hysteria in law enforcement circles when the decision came down, it's had virtually no effect on confession rates; a study in 1996 showed that 76% of people interrogated by the police waived their Miranda rights, and 62% gave a full confession.  Much of the reason is that police interrogation has become far more sophisticated, as indicated by the "nine steps" of interrogation in Inbau and Reid's classic text, Criminal Interrogations and Confessions. 

While false confessions certainly aren't the intent of improved interrogation techniques, the fact that they're sometimes the result is causing increasing concern.  One focus has been on recording the interrogation process, and the Supreme Courts of Alaska and Minnesota have both held that such a procedure is required, at least where practicable, under their state constitutions' due process clause.  Other states, like Illinois, require by law that all homicide interrogations be recorded, and police departments in places like Broward County, Florida, and Santa Clara, California, have adopted rules requiring that.

The chances of this happening in Ohio are about the same as the chances of the legislature declaring September Oral Sex Month.  While there are several cases out of the 2nd District which take a dim view of the deception commonly employed by police in interrogations -- like this one, throwing out the conviction of a 17-year-old who'd been told he could get the death penalty -- the attitude of most Ohio courts is typified by this 4th District decision holding that "deception on the part of the police in no way vitiates the voluntary nature of an otherwise valid statement."  Ohio courts have even expressed reluctance to consider expert testimony as to the general coerciveness of police interrogations, as the 9th District did in State v. Wooden a few weeks ago, affirming the trial court's exclusion of the defense expert.

So what's a poor boy -- i.e., defense attorney -- to do?  You can ransack the Alaska and Minnesota decisions above for some good language, either to try to establish a due process right to recorded conversations (so call me a dreamer) or at least to argue that Wooden's wrong and you should be able to call expert testimony on the interrogation process.  At the very least, you can do a little reading about it.  The Innocence Project is one place to start, and there's other stuff floating around on the web, including this in-depth dissertation on the subject.  

Keep in mind that while the voluntariness of a confession is an issue of law for the court, it's also an issue of fact for the jury:  if the jury determines that the confession was obtained in a manner which casts doubt on its credibility, it can disregard it.  Knowing something about how confessions are done -- and how they can go wrong -- may give you a leg up in cross-examination.

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