05/23/2011 04:48 pm ET | Updated Jul 23, 2011

The Truth About False Confessions

It's nearly impossible to imagine an innocent person confessing to homicide. Especially in a state that institutes the death penalty. Why on earth would a person -- a wholly innocent person -- not just hold his ground and refuse to confess?

That failure of imagination turns into outright skepticism when a false confessor insists upon his innocence at trial. The line of reasoning varies but the conclusions are the same. A variation on the argument above goes, "Since no innocent person would risk his life by confessing falsely, then he must be guilty. If not of this crime, then another." Alternatively, "Well, if he did lie to interrogators, then he's an admitted liar, so why should I believe his latest story?"

The underlying premise is one of a prosecutor's greatest assets: innocent people don't confess falsely. Juries are so deeply persuaded by confessions that, in some instances, they convict in the face of DNA evidence that excludes the suspect. The powerful and irreversible nature of the false confessions is the single best reason for interrogation reform and elimination of the death penalty.

But innocent people do confess. Illinois alone has wrongfully convicted 25 innocent people of homicide on the basis of false confessions.

Understanding the conditions that give rise to false confessions will help prevent a phenomenon that not only implicates innocent people but also expends tremendous resources that could be devoted to apprehending the responsible actors.

Brandon Garrett, a University of Virginia Law Professor and author of the book Convicting the Innocent: Where Criminal Prosecutions Go Wrong, examined 250 of the first DNA exonerations -- convictions of innocent people overturned as a result of newly introduced DNA evidence. Garrett found that 40 had falsely confessed to the crimes. Of those 40:

14 were mentally disabled or borderline mentally disabled, and three more (at least) were mentally ill. Thirteen of the 40 were juveniles. All but four were interrogated for more than three hours at a sitting. Seven described their involvement in the crime as coming to them in a 'dream' or 'vision.' Seven were told they had failed polygraph tests... [A]ll of them waived their Miranda rights.

False confessions share a number of common traits:

  • The interrogations are only partially recorded or not recorded at all.

  • The confessions contain explicit details that only the killer would know, details which are leaked to the suspects, and which eviscerate the suspect's credibility with a jury.
  • Interrogators threaten the suspects with the death penalty or other harsh penalties.
  • The suspects are young or mentally incapacitated, or both.
  • The suspects waive their Miranda rights.
  • Many of the above issues can be avoided through the adoption of two policies: abolition of the death penalty and recording of custodial interrogations. In response to an appalling history of wrongful convictions, Illinois has adopted both policies. And we must protect them.

    By abolishing the death penalty, Illinois eliminated one of the key motivators of false confessions. As defense attorney Danny Shipley stated in the PBS film The Confessions, "When you approach the case... death changes everything. All your decisions that you make are guided by the fact that if you make the wrong decision, your client's dead." After Quinn signed the bill into law, Peoria prosecutor Kevin Lyons acknowledged, "(The repeal) takes away a very strong tool from the box of prosecutors, and that is leverage." Illinois Republicans have already introduced a bill to reinstate the death penalty.

    In 2002, Illinois adopted the Illinois Criminal Justice Information Act, the first law of its kind requiring electronic recording of interrogations in homicide investigations. These recordings benefit not just the suspect, but also police and prosecutors. A report from Northwestern University Law School's Center on Wrongful Convictions, Police Experiences with Recording Custodial Interrogations (pdf), found that police and prosecutors are uniformly pleased with recording. After all, recordings can catch guilty suspects when they change their story or reveal disregard for their victims' lives. And recordings avoid costly disputes about officer behavior. Considering these reports, and the falling costs of digital recording and storage, we ought to record interrogations for all such "major" crimes -- including sexual assault, armed robbery, domestic violence, and child abuse.

    False confessions may defy belief, but they do occur -- typically in cases with the most vulnerable suspects. These confessions have grave consequences and great costs to society and taxpayers. All states and police departments should follow Illinois' lead in identifying and implementing policies to prevent this unique form of injustice. And Illinois must protect and improve upon its policies already in place.

    This article represents the author's views alone.