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Vernellia R. Randall
Professor of Law
The University of Dayton |
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Alan Hirsch
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Excerpted from: Alan Hirsch, Threats, Promises, and False
Confessions: Lessons of Slavery, 49 Howard Law Journal 31-60, 31-36,
54-60 (Fall 2005) (218 Footnotes Omitted)
Americans think of today's criminal justice system as more
enlightened than those of earlier eras, and over time we have
undeniably increased protections afforded those suspected and
accused of crimes. Nevertheless, innocent persons are punished
because we have lost sight of truths keenly recognized in a
relatively unenlightened time and place: slave states in the
antebellum south.
For more than a decade, pioneers in law and psychology have warned
that false confessions occur surprisingly often. With DNA tests
exonerating scores of persons wrongly accused and convicted of
crimes, claims of false confessions have been vindicated. Roughly
one-fourth of those exonerated had confessed. Based on statistics
and other data, there is reason to believe that false confessions
occur with staggering frequency. Such confessions typically set in
motion a chain of events that leads to the conviction of an innocent
person.
Our judiciary clings to an approach that
exacerbates the problem. Though it may seem odd, the judicial system
has taken a huge step backwards from the Nineteenth Century,
particularly in comparison to slave states. In one sense, this is
unsurprising. Because of the extreme nature of slavery, the risk of
false confessions by slaves was apparent.
Analogy to slavery sheds light on assorted evils, such as child
abuse and discrimination against homosexuals. This Article draws a
new analogy to slavery with far-reaching implications: insight into
how to safeguard against false confessions. Part I describes
Nineteenth Century (particularly southern antebellum) judges'
awareness that certain interrogative practices created an
unacceptably high risk of false confessions. Part II traces the
fading of this awareness in the modern judiciary. Part III shows
that the awareness resulted in part from the nature of slavery, and
argues that today's criminal suspect bears substantial similarity to
the Nineteenth Century slave. Part IV calls for the return to an
enlightened judicial approach to confessions, specifically the per
se inadmissibility of confessions induced by threats or promises.
Such a measure would play an important role in safeguarding against
an unspeakable tragedy: punishment of the innocent.
I. MINIMIZATION, MAXIMIZATION, AND NINETEENTH CENTURY COURTS
A. M & M Interrogation
Almost everyone finds it counterintuitive that persons would confess
to crimes they did not commit, especially in the absence of physical
abuse or other extreme conditions. In the last few decades, however,
psychologists have helped us understand how false confessions often
result from certain interrogation tactics: "minimization" and
"maximization." As the name implies, minimization entails
downplaying the suspect's alleged actions or their consequences.
This can take several interlocking forms. It might mean assuring the
suspect that the crime was not serious. More typically, it means
denying or downplaying the suspect's moral responsibility or
suggesting that he will be treated leniently if he confesses. The
leniency can pertain to "potential charges, periods of
incarceration, or collateral consequences pertaining to his
relationship with the criminal justice system." Minimization has
been summarized as a "soft sell technique in which the police
interrogator may try to lull the suspect into a false sense of
security" that induces a confession.
Maximization goes the opposite route, inducing fear in a suspect
that, absent a confession, he faces especially severe consequences.
It may entail exaggerating the severity of the charges or
exaggerating and even fabricating evidence of his guilt.
Maximization has been summarized as "a hard sell technique in which
the interrogator tries to scare and intimidate the suspect into
confessing."
Minimization and maximization are not mutually exclusive. Indeed,
they may be resorted to simultaneously, with the suspect assured
that he will be treated leniently if he confesses, but face severe
punishment such as execution if he does not. Also, suspects may be
"pressured to choose between two incriminating alternatives, one
with obviously very serious consequences and the other with more
ambiguous, and by implication, less serious consequences (for
example, that the act was unintentional, accidental, or
self-defense)."
Though both minimization and maximization entail a range of
interrogative behavior, they can be reduced, with useful
oversimplification, to two basic types of inducements to confess:
promises (minimization), and threats (maximization). While
minimization can involve a direct promise, and maximization a direct
threat, more typically they involve an implicit, subtle, or indirect
communication of a promise or threat. Put differently, they are
communications perceived (and are intended to be perceived) by the
suspect as a promise or threat.
Minimization and maximization represent common and accepted
interrogative practice. The most influential police manuals
recommend procedures that "communicate implicit threats and promises
to suspects." The most widely used interrogation manual recommends
use of specific minimization themes, including accident, peer
pressure, and provocation.
To understand the power of these inducements, we must get past the
idea that the innocent suspect's mindset involves just one elemental
determination: "I am innocent so I will not confess." In reality,
many suspects consciously or unconsciously undertake a cost-benefit
analysis in deciding whether to confess despite their innocence. The
prospect of excessively harsh or lenient treatment influences the
cost-benefit calculation. Moreover, in some cases maximization
(particularly the claim of irrefutable evidence establishing guilt)
leads a "highly-suggestible" individual to believe in his own guilt.
Empirical data suggests that minimization and maximization
techniques "are likely to precipitate untrustworthy confessions,"
and are the single biggest cause of false confessions.
* * *
IV. A RETURN TO BRAM: OVERCOMING RESISTANCE
The analysis in Parts I-III seems to yield a clear prescription: a
return to the holding of Bram that excludes confessions obtained
through promise or threat. Such a rule, if seriously enforced, would
discourage police from engaging in dangerous practices and prevent
injustice in such occasions. Is there any convincing reason to
resist this reform? A possible objection is that the rule actually
works to the disadvantage of suspects. Because promises of leniency
amount to "station house plea bargaining," their elimination might
"deprive criminal defendants of access to leniency." But
plea-bargaining, for better or worse, would remain available further
along in the process under conditions better calculated to protect
against false confessions.
A more likely complaint will come from the other direction. The
categorical Bram rule will free the guilty on technicalities. Such a
concern is inapposite. Under current Supreme Court doctrine, the
wrongful admission of a confession is subject to harmless error
analysis. Accordingly, the Bram rule would not result in reversal of
every confession obtained by threat or promise. If non-confession
evidence clearly establishes guilt, the conviction will stand. Even
in cases where the error is deemed harmful, the prosecution is free
to re-try the defendant. If it has sufficient evidence of his guilt,
it may procure another conviction. If the case depends upon a
confession obtained by threats or promises, the defendant's release
or acquittal should be celebrated rather than lamented.
A related objection is that threats and promises are valuable tools
of interrogation that often induce truthful confessions. One
commentatordefends police trickery as necessary to procure
confessions in cases where "there is little physical evidence, the
defendant conceals his face, or there are no witnesses." This
argument gets things backwards. It is precisely where no other
evidence implicates a defendant that police must be especially
careful, because a confession in such circumstances is less reliable
and more difficult to verify.
Nevertheless, crafting suitable rules governing police interrogation
requires "striking a balance between the competing concerns of
protecting suspects and securing public safety." But note that a
return to the Bram rule would still leave the police numerous
time-tested techniques of interrogation, including: confronting a
suspect with existing evidence; identifying gaps, contradictions,
and weaknesses in his story; administering polygraphs and
confronting suspects with the results; and appealing to a suspect's
conscience.
The Bram rule did not even prohibit all forms of minimization. For
example, expressions of sympathy remained acceptable. Thus, reviving
Bram would still permit police to utilize effective interrogative
tools. It would merely prohibit a few tactics known to induce false
confessions. Surely, those who would preserve an interrogation
practice that creates a significant risk of false confessions should
bear the burden of establishing that such procedure is indispensable
to effective interrogation. When it comes to threats and promises,
there is no evidence that the burden can be met.
To be sure, courts could apply a case-by-case approach rather than a
categorical rule. Even if the risks inherent in threats and promises
are acknowledged, in certain cases surrounding circumstances will
suggest the truthfulness of the confession. Why not allow expert
testimony on whether the defendant is the type of person likely to
confess falsely, rather than establishing a per se rule? Why not
educate juries about the risks of false confessions (both in general
and as to the particular defendant in the particular interrogative
circumstances) while still allowing the jury to decide whether to
credit a confession?
There are several reasons to prefer a per se ban on threats and
promises to a case-by-case approach. The first, which was alluded to
above, is deterrence. If confessions elicited by promises and
threats survive challenge, the police have little incentive to
refrain from these tactics. Only a per se prohibition of
interrogation practices known to run a high risk of eliciting false
confessions can adequately deter such practices.
Second, while the province of juries to evaluate evidence should
generally be protected, in the case of confessions (and most
particularly with respect to minimization techniques used to induce
them) there is reason to believe that juries cannot be trusted. To
say this is not to insult juries. Rather, because of the nearly
universal intuition that an innocent person would not confess, no
one can be trusted to evaluate a confession dispassionately. That,
in part, explains the wisdom of the Bram rule: rather than requiring
judges or juries to evaluate whether a particular threat or promise
falsely induced a confession, it bans such confessions across the
board because of the risks associated with those interrogation
tactics.
In terms of the wisdom of a categorical approach, guidance is found
from the same surprising place--a southern court in a case involving
a slave. In the course of overturning a confession obtained by
minimization, an Alabama court observed that courts
cannot undertake to measure the nature, character, and
constitutional firmness or weakness of each individual who may
invoke the benefit of the rule; and therefore, [the law] is wisely
and properly settled, so as to meet the cases of those who are weak,
or ignorant, and who might be tempted, or seduced, or overawed, by
influences which could not affect the minds of the more intelligent,
or more intrepid.
The court showed a shrewd awareness of the scope and limitations of
human knowledge. It is easy to grasp that interrogation conditions
create a risk of false confession, a risk unacceptably multiplied
when interrogators resort to threats and promises. However, one
cannot get inside the head of each suspect. While there are tests
designed to reveal the extent of a person's "suggestibility," at
most it is possible to learn that a person is or is not particularly
susceptible to confess falsely. No test can tell us whether he did
so. The safer course, which conserves judicial resources and serves
to deter dangerous police practices, is to prohibit confessions
preceded by promises and threats.
In Bram, the Supreme Court made much the same point. To justify its
categorical rule, the Court noted that "the law cannot measure the
force of the influence used or decide upon its effect upon the mind
of the prisoner, and, therefore, excludes the declaration if any
degree of [improper] influence has been used." In short, it is
illogical to attempt the impossible (to gauge the voluntariness of a
particular confession) at the expense of the invaluable (banning
practices that we know produce false confessions).
Reviving Bram will not end false confessions. Nor is it the only
measure that would reduce false confessions. Other interrogative
reforms warrant consideration, starting with the videotaping of all
interrogations. Sweeping change brings risk and encounters under-standable
resistance, but a Bram revival is limited to specific interrogative
tactics known to pose a substantial risk to the innocent and
involves nothing more than restoring a doctrine that the Supreme
Court abandoned without explanation. Ironically, returning to
Nineteenth Century law on threats and promises would be an important
step forward.
CONCLUSION
In the conclusion to their recent study, Steven Drizin and Richard
Leo emphasize an undeniable fact: interrogation-induced false
confessions are "a more serious problem than previously imagined."
They claim that this realization "ought to compel all who care about
the credibility of the criminal justice system to devise better ways
to reduce or eliminate the number of false confessions and the risk
they pose for the innocent." It is hard to argue with that
assessment, or the notion that in looking for suitable reforms,
society can benefit from history.
The harsh realities of slavery sensitized Nineteenth Century courts
to the risk of false confessions. While the days of chattel slavery
have long passed, interrogated suspects, like slaves, are trapped in
a relationship of subservience that seriously distorts judgment.
Reclaiming Nineteenth Century wisdom would spark major progress in
preventing the involuntary servitude of the innocent.
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