Miranda’s Failure

A staggering new piece of research shows that in almost 20% of criminal trial convictions that DNA evidence has subsequently overturned, the prosecution was able to rely on ultimately false confessions by the accused.*  Notably, in virtually every single one of these cases, the false confession was remarkably detailed in its description of the crime, creating the illusion that the confession was both voluntary and reliable.  How can this be?  How can an innocent person not only confess to a crime they didn’t commit, but actually do so in a manner that is sufficiently detailed to be virtually unassailable?
Doug Mataconis suggests that false confessions in general are so easy to obtain because the police are able to skirt the spirit of Miranda v. Arizona and its predecessor decisions because:
“The police….have been authorized by [other] Supreme Court precedent to engage in lying and trickery in order to obtain information from a suspect. They can tell a suspect that someone has already implicated them in a crime even if that never happened. They can tell a suspect that there are eyewitnesses who don’t exist. They can say that there is evidence implicating the suspect that doesn’t exist.”
This sounds about right to me, particularly given, as Doug notes, that many of these falsely accused suspects are abnormally vulnerable to this type of pressure because they are either young or mentally ill, and are rarely (if ever) acting in the presence of counsel.  I’d just add that it is easy to see why an innocent would even be more likely to provide a confession than a guilty party, since a guilty party will often have had ample time to prepare himself for being arrested on the charge in question: few people will know their criminal procedure rights less than someone who never thought they’d be arrested, while few people will know their criminal procedure rights more than someone who fully expects to be arrested.
As for why these confessions are so detailed, the study makes clear that police interrogators quite regularly – and impermissibly, if often unintentionally – “contaminate” the interrogation by introducing details of the crime into the questioning.  In some instances, the police were found to even have corrected the accused when he got a particular detail wrong.
All of this suggests that the balance that the Supreme Court tried to strike in Miranda, by requiring that arrestees be aware of their constitutional rights for any confession to be admissible in court but permitting most confessions so obtained to be admissible, has failed.  Indeed, it is now well-established that Miranda warnings have “little to no effect on a suspect’s propensity to talk.”  Reform is clearly needed, even as it is important to keep in mind that the original balance that the Supreme Court tried to strike was an important one: the deceptive interrogation tools that Doug references can in fact serve a valuable investigative function in permitting the police to obtain valuable evidence and they probably do not, in and of themselves, amount to Constitutional violations.
The obvious solution is, frankly, simple: post-arrest interrogations should not be admissible evidence unless conducted in the confirmed presence of an attorney.  This study demonstrates that even detailed confessions are of, at best, limited reliability, while their use as evidence is almost infinitely prejudicial – indeed, in 8 of the convictions included in the study, the DNA evidence that exonerated the accused was actually introduced at trial, but the prosecution was still able to obtain a conviction.  In a society that would presumably prefer “that ten guilty men escape than that one innocent suffer,” but which gives its law enforcement enough tools to have the highest per capita prison population on Earth, a solution that would heavily limit the admissibility of confessions but would likely reduce wrongful convictions by at least 15-20%, if not more, seems like a perfectly worthwhile idea.
But, as I said, Miranda tried to strike an important balance that should not be lost in the shuffle.  There is a legitimate need for the police to be able to interrogate a suspect and use the tools they have Constitutionally available to obtain information from that suspect that will at the very least lead to the discovery of admissible evidence, whether against the particular suspect or against a co-conspirator.  Moreover, I have a hard time arguing that the admissibility of a confession obtained in the absence of counsel (but with a “knowing” waiver of the right to counsel) rises, by itself, to a Constitutional question – instead, it would simply be a rule of evidence resulting from the high degree of unreliability involved in any confession obtained in the absence of counsel.  So, keeping this in mind, there would be no “fruit of the poisonous tree” doctrine involved here, except to the extent it’s already inherent in a failure to issue a Miranda warning. That means that if a confession were obtained after the defendant was Mirandized but outside the presence of an attorney, evidence discovered as a result of the confession would be admissible, even though the confession itself would not be.
Unfortunately, the more likely solution for the foreseeable future, mandatory videotaping of confessions, will only marginally improve things in the short-term, and as criminal defense attorney Scott Greenfield points out, in the long run will probably just morph into a new tool for law enforcement and prosecutors.  The other plausible solution here – an outright prohibition on the use of lies inflating the evidence against the accused – is equally problematic, as it would be difficult to enforce, even in combination with mandatory videotaping, and as interrogators would simply develop new methods of coercing confessions….that is, after all, their job to no small extent, and there’s no real reason to think that forcing them to alter their methods of interrogation in this manner would make confessions significantly more reliable in the long run.
I recognize that we are never going to have a system that ensures that only guilty people ever go to jail.  But in a supposedly “free” country, the fact that we imprison more of our people than any other nation in the world should be an unconscionable embarassment in and of itself.  That some unknown percentage of those people are, in fact, innocent should thus be even more unacceptable in the United States than it would be elsewhere.  In short, there is simply no justification for the continued use of confessions obtained outside the presence of an attorney as evidence in a criminal proceeding.  Frankly, it is difficult for me to conceive of many cases where a defendant’s interrogation-induced confession would be absolutely necessary to a prosecutor’s ability to obtain a conviction where the defendant is, in fact, guilty.  I’m sure some such cases exist, but they will be few and far between if the prosecution and law enforcement have obtained all or most of the other evidence out there.  The opportunity to eliminate at least 15-20% of wrongful convictions is thus an opportunity to save countless lives from being ruined at litle to no cost to public safety.  This will never happen, though: the cost to our collective ego of seriously acknowledging that there is such a thing as too “tough on crime” is too great.
*So far as I can tell, the study focuses only on cases where a falsely-accused defendant’s confession was used at trial.  To the extent false confessions were obtained in cases where the exonerated person entered a guilty plea without trial, and were a substantial factor in the decision to enter the guilty plea, this percentage may be significantly higher.  Moreover, such cases are likely to be far more common, since the presence of a confession makes it “akin to being a kamikaze” for the defense attorney to allow the case proceed all the way to trial.
NOTE: I apologize for my recent extended absence around these parts.  I’ve been dealing with some site access issues that I’m hoping will soon be cleared up.
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31 thoughts on “Miranda’s Failure

  1. Agree word for word. Only question:

    Frankly, it is difficult for me to conceive of many cases where a defendant’s interrogation-induced confession would be absolutely necessary to a prosecutor’s ability to obtain a conviction where the defendant is, in fact, guilty.

    Do you really mean to say the number of cases where a guilty person can’t be convicted without a confession being admitted at trial is difficult, or do you just mean cases where conviction of an actually guilty erson without admission of a confession induced by interrogation in the absence of counsel are difficult to conceive of? I would think cases depending decisively on legitimately (i.e. with attorney present) obtained confessions can’t be so vanishingly rare, but then I don’t work in the field. And maybe, as might be inferred from your endnote, 99% of cases with confessions given with defense counsel present do not go on to trial.

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    • @Michael Drew, I struggled mightily with the wording for that sentence. What I’m trying to get across is that in all but a handful of cases, sufficient evidence to convict a truly guilty person without using their confession can be found if the prosecution and/or law enforcement look hard enough and appropriately enough. Admittedly, “hard enough and appropriately enough” may often be exceedingly difficult to achieve with a given set of resources, but the point is that the evidence that can convict the defendant exists, somewhere, independent of any confession, and it is quite literally the job and burden of the prosecution to produce it. Thus, in all but rare cases, the notion that the prosecution truly needs a confession to convict one who is actually guilty is ultimately just shorthand for “the prosecution is unwilling to expend the resources necessary to obtain a conviction without a confession.”

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      • @Mark Thompson, That perfectly clears up what you meant, thanks. I have absolutely no insight into the question on the actual fact of the matter, but it does seem to me obvious that confessions will continue to play a role in determining defendants’ guilt at their trials, though also that defense attorneys should make them the subject of withering scrutiny in every case, and judges should be extremely alive to the many possible factors about any confession that could render it unsound, and to the fact that every single confession will be prejudicial, so it better be sound to be admitted — i.e. everything else you said in the post.

        Glad to see a post from you, by the way.

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  2. I’d just add that it is easy to see why an innocent would even be more likely to provide a confession than a guilty party, since a guilty party will often have had ample time to prepare himself for being arrested on the charge in question: few people will know their criminal procedure rights less than someone who never thought they’d be arrested, while few people will know their criminal procedure rights more than someone who fully expects to be arrested.

    I sort of follow your logic, but I doubt the statistics add up here. You’re saying that the number of innocent suspects falsely confessing to a crime (divided by the total number of innocent suspects) is greater than the number of guilty suspects confessing to a crime? I’d guess that more people provide a false alibi than provide false confessions (again normalized by the number of guilty and innocent suspects).

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  3. The police position, as I heard it during my time as a cops and courts reporter, is normally that an innocent person won’t confess to a crime they didn’t commit. Would you? they say.

    But I might, given how Kafkaesque the situation was. It seems like the evidence is a lot of people would. Under certain circumstances.

    The police are not only allowed to lie — that’s just the first part of the confession-eliciting technique. First they lie about evidence, and how they have enough to convict you, and then they suggest your explanation (“It was an accident,” “It was self defense,” etc.) is the one and only thing that could possibly change the situation.

    Then you talk.

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  4. Unless someone were a drugged or insane democrat, I can not imagine freely ‘confessing’ to a crime I didn’t commit. The cops can’t beat you..can they? They can’t torture you…can they? You know your lawyer, even the state supplied mouthpiece. is on the way..right? So why confess?
    Now all that changes if I come under duress. But, is that what happens with American police? Are you implying they’re Gestapo?

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    • @Robert Cheeks,

      Mark’s real lament is that some folks are just too stupid and that the gov’t is not taking care of them as it should in the liberal’s fantasy land.

      Sorry, Miranda always was a crappy decision. I’ve never seen anything in the constitution that says that the police need to inform you of your rights. Every citizen should know their rights not expect the gov’t to tell them. It was liberal fantasy from the start.

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      • @Scott,

        So your position is: Providing health insurance is tyranny, Imprisoning innocent people is freedom.

        Your other position is “if I can’t imagine it then the evidence doesn’t matter.”

        You two are deeply weird. This makes for fun reading.

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            • @Jaybird,

              Scott,

              Have you ever read anything Jaybird has written on this site? Seriously.

              I know I mentioned healthcare but honestly I only mentioned it as a contrast, because I thought everyone would agree that it would be better to have even the ‘evil socialized medicine’ that ‘everyone’ fears than to have innocent people coerced or tricked into signing false confessions that lead to their imprisonment.

              Healthcare is a red herring.

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            • @Scott, this is where we get into a discussion of “negative” vs. “positive” rights.

              A negative right is the right to be left alone. Freedom of speech, for example, is a right to be left alone. One can criticize the government without being jailed, for example. One can live one’s life without being arrested for a crime one did not commit might make another decent example.

              A positive right, however, is the right to the time/materials of another. A right to health care is a right to the time of a doctor, his or her care, and (perhaps) medication. A right to eat entails a right to food provided, presumably, by someone else (compare to a right to not have one’s food that one grows taken by the government which would be the negative right).

              In any case, the right to not have one’s negative rights violated is very much part of the Western Tradition… even the rights that you don’t know about. (This is where the 9th and 10th come in.)

              If you don’t give a crap about the government protecting your rights, you shouldn’t be surprised when they start taking your stuff and redistributing it to other folks, dude. You shouldn’t be surprised at all.

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          • @Scott,

            http://en.wikipedia.org/wiki/False_confession

            Just to warm people up so that they might have some idea of what we are talking about with false confessions.

            http://www.psychologytoday.com/articles/200304/the-false-confession


            Self-incriminating statements are often the result of a kind of cost-benefit analysis. “False confession is an escape hatch. It becomes rational under the circumstances,” says Saul Kassin, Ph.D., a professor of psychology at Williams College in Massachusetts. The most common explanation given after the fact is that suspects “just wanted to go home.”

            This often indicates an inability to appreciate the consequences of a confession, a situation that police cultivate by communicating that a confession will be rewarded with lenient sentencing. Police may also offer mitigating factors—the crime was unintentional; the suspect was provoked.

            The circumstances of interrogation are crucial. “Everybody has a breaking point. Nobody confesses falsely in an hour,” says Kassin. The suspects in the Central Park case each spent between 14 and 30 hours under interrogation. ”

            So I have two big problems with your attitude towards false confessions. One you are ok with the government imprisoning innocent people. Two you are ok with the government letting the actual criminals get off scot-free if the police can find someone somewhere to confess.

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            • @ThatPirateGuy,

              I’m not ok with the gov’t imprisoning innocent folks, however, if folks falsely confess there is not much the gov’t can do or should have to do.
              If they confess b/c they want to go home then they are stupid. I agree that the gov’t should try and find the right person but we don’t live in a perfect world.

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            • @ThatPirateGuy,

              How is there nothing the government can do? In cases where we don’t have ‘confessing sams’ then all the government has to do is not coerce the confession.

              Simple small reforms such as video taping all interrogations can easily be done (budget issues aside). We could improve the training that officers receive. We could change the confession rules. We have information and we have options to reduce the problem but you would rather call people stupid and shrug your shoulders. Truly, this is the conservative love of freedom and fighting of oppression in action.

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  5. “In short, there is simply no justification for the continued use of confessions obtained outside the presence of an attorney as evidence in a criminal proceeding.”

    So the police would be able to question a suspect, but if he confessed to them even spontaneously the confession would be inadmissible? So the police bring in a lawyer who, after a perfunctory conference with the client, announces that the client is exercising his Fifth Amendment rights, end of interrogation? Even when a defendant is innocent, the circumstances under which a lawyer might want them to talk to the police are exceptional; if the suspect is guilty they would likely involve some level of negotiation – a plea bargain or offer to provide the state with evidence against codefendants or other crimes.

    This also raises the question, “What is a confession”? The defendant makes a statement that isn’t directly self-incriminating but in light of other evidence suggests that the defendant is lying. In an interrogation, contradictions, mistakes and inconsistencies are in effect collected by the interrogator and used to break down the defendant’s story. At what point in the process would the lawyer have to be brought in?

    I accept your point about the problem of false confessions leading to wrongful convictions. I’m skeptical of a solution that would all-but-eliminate confessions from the courtroom. (Granted, given the reality of our nation’s courts and legislatures, this is a thought exercise.) Confessions to the police are far from rare. They’re an important part of how the police close cases and how prosecutors obtain plea deals in cases that might otherwise require trials, even in minor criminal matters.

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  6. Let’s say that there is a crime committed. Crime X.

    Crime X was committed by Person P.

    The police arrest Person ~P… and, after a while, grind Person ~P down and get him to confess.

    I don’t see how in the flying hell the Police could possibly see this as a win. Person P is still out there. Crime X is languishing unsolved and, on top of that, the cops either think that they got the right guy *OR* they don’t care that they didn’t get the right guy and just had to arrest *SOMEBODY*.

    And, on top of that, the failure rate isn’t even an “acceptable” one out of ten, but TWICE that.

    This makes no sense to me.

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  7. “in all but a handful of cases, sufficient evidence to convict a truly guilty person without using their confession can be found if the prosecution and/or law enforcement look hard enough and appropriately enough.”

    Possibly true, but this is way too gross a generalization. I think you need a police detective or two to chip in here. What kind of crime are you trying to solve with non-confession evidence?

    According to my (public defender) wife, at the Compton courthouse, LA county, about 80% of all cases get pled out at arraignment. These are the cases where the evidence is so overwhelming (and the defendant has been through the system before) that the defendant essentially goes straight from arrest to guilty plea to prison. The legal system is barely involved. But of the remaining 20%, almost all of those must plead out, because taxpayers simply refuse to pay for enough courthouses, prosecutors and defense counsel to take them all to trial. And here, confession plays a huge role. Because if there aren’t the resources to take more people to trial, there also aren’t the resources to prepare all these cases for trial without confessions.

    Moreover, from the stories I’ve heard over the years, in a huge percentage of cases confession is critical because that’s all the admissible evidence that exists. “Bones” and “CSI” are TV, dude, not reality. Cases get cleared because defendent A in Case X says that defendant B is guilty of unsolved crime Y. That’s hearsay, and inadmissible. Crime Y is a commercial burglary or a drive-by shooting or drug sales or any of a number of crimes that are committed in public spaces where collecting DNA is impossible. So the only way to close Crime Y is to bring in defendant B and get him to confess.

    One final thought: if clearing a case were a matter of working it harder and smarter, a change in police chiefs should be able to make a difference. While I don’t have the stats at my fingertips, my understanding is that for certain types of crime (gang-on-gang murder, eg.) clearance rates did not change substantially even after LA brought on Bratton.

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  8. I spent 25 years investigating and supervising investigations of Federal crimes.
    It is a well known fact that there are people who will confess to crimes they did not commit. There are too many reasons why to go into in this short space. A simple instance: a bank robber looking for a deal began implicating others in jobs he claimed to have done with accomplices. We threw in a couple of banks that had never been robbed. He said that he and the others had robbed them and passed a polygraph on the subject, which by the way is another voodoo device. Every major publicized crime brings people out of the woodwork eager for limelight. For some, as Madonna would put it, there is no such thing as bad publicity. Some people just want to end the interrogation process.
    The real problem is not with Miranda. The real problems are incompetent and hyper militarized police, bureaucratic pressures to clear cases, promote one’s career and move on, and most troubling, too frequently, a morally obtuse disregard for how demanding it can be to plumb the truth. The bottom line is that every confession should be regarded as suspect, the same as eye witness identifications.
    Just as an aside, there is no doubt in my mind that Guantanamo Bay Prison is packed with people who don’t belong there because of proper criminal investigative procedures being shortcutted and militarized by incompetents, zealots, and amoral thugs.

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