At the 2012 TLR Symposium held on November 9, 2012, a panel of experts discussed ways that confessions can be contaminated during the interrogation process and considered ways that courts could examine the reliability of confessions before trial. The panel included: Richard Leo, Professor of Law at the University of San Francisco School of Law; Steven A. Drizen, Clinical Professor of Law at Northwestern and the Legal Director of the Bluhm Legal Clinic’s Center on Wrongful Convictions; and Peter Neufeld, co-founder of the Innocence Project at the Benjamin N. Cardozo School of Law. The Honorable Franklin S. Van Antwerpen of the U.S. Court of Appeals for the Third Circuit moderated the panel.
Preventing Confession Contamination and False Confessions
The first speaker was Professor Leo, who discussed the case of Bruce Godschalk as an example of a false confession. Godschalk was convicted of two rapes in the 1980s, due in large part to a very detailed confession he provided to police. He was exonerated and released in early 2000, clearly showing his confession was false. Professor Leo described the many ways the police, media, witnesses, and gossip can contaminate a confession like Godschalk’s. The police, out of frustration, can sometimes feed facts to suspects through leading questions, which Godschalk’s attorney argued was the case.
In dealing with the issue of contamination, Professor Leo remarked that contamination is widespread in confessions and often difficult to detect because recording interrogations is not yet a widespread practice. Adding to the difficulty of detecting contaminated confessions, the false confessions themselves are often “complete confessions”—meaning, they contain both the “I did it” statement along with a narrative, motives, explanations, some remorse, and non-public crime facts. Leo explained that complete confessions were commonplace in twenty Innocence Project statements he examined.
Leo offered suggestions on how to prevent contaminated confessions in the first place and then how to prevent them from making their way into trial. First, he suggested that police hold back most, if not all, non-public details about a crime so during an interrogation police can compare the veracity of a suspect’s confession to the details of a crime. Second, he recommended that police record all interrogations and confessions. Finally, judges during pre-trial hearings should examine confessions and suppress ones that are contaminated.
Identifying False Confessions Pre-trial
Professor Drizen then went into detail about how confessions are contaminated and how this contamination can be identified pre-trial. He covered the same sources of contamination as Professor Leo but also included the technique of showing the suspect the crime scene. Drizen also explained how innocent knowledge on the part of the suspect can find its way into a confession. He provided another example of a false confession in the case of Steven Avery. Avery was convicted of raping and killing a young woman after his nephew Brendan Dassey provided a confession that incriminated himself and his uncle. Before Dassey’s questioning, the interrogators knew three key pieces of non-public details that Dassey would need to corroborate. The police videotaped his confession, and Drizen pointed out that the interrogators provided Dassey with the non-public details of the crime through leading questions. Drizen explained that the confession that Dassey eventually gave contained nineteen key crime facts that could all be linked to the media, gossip, and the leading questions.
Professor Drizen provided ways to challenge unreliable confessions. First, attorneys should locate the source of the contamination through police reports and the media coverage of the crime. Second, attorneys should apply the “fit” test to the confession, which is roughly defined as the degree to which the suspect’s narrative matches the provably true facts of the crime. Drizen suggested applying this test by examining what details the suspect knew that were non-public and what new information the suspect was able to provide. Finally, Drizen suggested charting the contamination by examining each fact and the possible sources of contamination. He briefly discussed the ways in which these issues can be raised pre-trial. Drizen suggested filing motions to suppress the confessions on voluntariness grounds, arguing that contamination is a form of coercion.
Legal Tools for Challenging the Reliability of Confessions
The final speaker of the panel, Peter Neufeld, discussed the ways in which an attorney can raise the question of a confession’s reliability before trial. Neufeld explained that as gatekeepers of reliability, judges could suppress contaminated confessions because the prejudicial value outweighs the probative value under Federal Rule of Evidence (FRE) 403. Neufeld found that the reliability of in or out of court identification has come under scientific scrutiny after the New Jersey Supreme Court in State v. Larry Henderson, 208 N.J. 208 (2011), changed the rules for admitting eyewitness identifications in criminal trials. The court in Henderson found that the reliability of these identifications under the test set out in Manson v. Brathwaite, 432 U.S. 98 (1977), did not stand up to scientific evidence, showing that the reliability of these identifications was based on the circumstances of the identification. The new rule in Henderson requires the judge to caution a jury that the identification may be less reliable depending on the circumstances of the identification, including the witness’s state of mind and police practice. Neufeld explained that scientific scrutiny should also come into play regarding the reliability of confessions. He also argued that judges should act as gatekeepers with regards to forensic science.
Neufeld rebutted the primary objection by prosecutors that, if judges can assess reliability of a confession pre-trial, guilty people will run free. He identified similar arguments in response to prohibiting the third degree in the 1920s and 1930s and in the 1990s when videotaping confessions was first suggested. He found that the number of confessions has not increased or decreased as a result of videotaping confessions and predicted that the same will be true if judges assess the reliability of confessions pre-trial.
Practical Considerations for Reform
Judge Van Antwerpen, the panel moderator, agreed with the panelists that police should record interrogations and confessions. He disagreed, however, with requiring that all police interviews and interrogations be videotaped due to administrative concerns. He also disagreed that the use of FRE 403 was the proper rule to determine the reliability of confessions but suggested creating a new rule more in line with FRE 609 might be appropriate.
Temple University School of Law, J.D. Candidate 2014