False Confessions and the Death Penalty

1. False Confessions and the Death Penalty Prepared by: Caitlin Chamberlin Margaret Lai Kelly Thomson

2. Admissibility of a Confession: Constitutional Analysis • 4th: Search and seizure limitations • 5th: Right ag. self incrimination • 6th: Right re: assistance of counsel • 14th: Protects ag. involuntary confessions

3. 14th Amendment: Voluntariness • For confessions to be admissible, the Due Process Clause of the 14th Amendment requires that they be voluntary. • Voluntariness: assessed by looking at the totality of the circumstances.

4. Totality of the Circumstances Test for Voluntariness Totality of the Circumstances includes: • Suspect’s: • Age • Education • Mental & Physical Condition • Police: • Setting • Duration • Manner of Police Interrogation • Spano v. New York, 360 U.S. 315 (1959)

5. 14th Amend: Case History • 1936: Supreme Court rules that a confession is involuntary where it was obtained by physically beating the defendant. • Brown v. Mississippi, 297 U.S. 278. • 1986: Supreme Court rules that a confession is not involuntarily merely because it is the product of a mental disease that prevents the confession from being of the defendant’s free will. • Colorado v. Connelly, 479 U.S. 157.

6. Voluntary? • 1991: Supreme Court held that a conviction will not necessarily be overturned if an involuntary confession was erroneously admitted into evidence. The harmless error test applies, and the conviction will not be overturned if the government can show that there was other overwhelming evidence of guilt. • AZ v. Fulminante, 499 U.S. 279.

7. 6th Amend: Right to Counsel • 6th provides that in all criminal prosecutions, the D has the right to the assistance of counsel. • This is violated when the police deliberately elicit an incriminating statement from a D without first obtaining a waiver of the D’s right to have counsel present.

8. Example: • 1980: The 6th Amend right to counsel is violated when an undisclosed, paid government informant is placed in the D’s cell, after D has been indicted, and deliberately elicits statements from the D regarding the crime for which the D was indicted. • US v. Henry, 447 U.S. 264.

9. 5th Amend: Privilege Ag. Self-Incrimination • No person “shall be compelled to be a witness against himself. This has been interpreted to mean that a person should not be compelled to give self-incriminating testimony.

10. 5th: Miranda Warnings • The 5th Amend. Privilege ag. compelled self-incrimination became the basis for ruling on the admissibility of a confession. • The Miranda warnings and a valid waiver are prerequisites for admissibility of any statement made by the accused during custodial interrogation.

11. 5th:Miranda Warnings • Police may not badger the D into talking/confessing if he invokes his “right to remain silent.” • Also protects ag. self-incrimination by the admission of evidence based on a psychiatric interview of D who was not warned of his right to remain silent.

12. 5th: Miranda Warnings • If the police obtain a confession from a D without giving him Miranda warnings and then give the D Miranda warning and obtain a subsequent confession, the subsequent confession will be inadmissible if the “question first, warn later” nature of the questioning was intentional. • However a subsequent valid confession may be admissible if the original unwarned questioning seems unplanned and the failure to give Miranda warnings was inadvertent.

13. But… • Miranda generally only applies to interrogation by the police. It does not apply where interrogation is by an informant who the D does not know is working with the police (like a cellmate covertly working for the police). • Rationale: the warnings are intended to offset the coercive nature of police-dominated interrogation. • Illinois v. Perkins

14. And… • A confession obtained in violation of a D’s Miranda rights, but otherwise voluntary, may be used to impeach the D’s testimony if he takes the stand in trial, even though such a confession is inadmissible in the state’s case in chief.

15. Available Police Interrogation Methods • Feigned sympathy and friendship • Appeals to God and religion • Blaming the victim or an accomplice • Placing the suspect in a soundproof, starkly furnished room • Wearing a person down by a very long interview session • Approaching the suspect too closely for comfort. • Overstating or understating the seriousness of the offense and the magnitude of the charges. • Presenting exaggerated claims about the evidence. • Falsely claiming that another person has already confessed and implicated the suspect.

16. But this can lead to… • D feeling that it is in his best interest to confess…even though this is the most self-defeating course of action. • Deception techniques allow police to “create evidence” so accused thinks there is DNA or other air-tight evidence against them.

17. Garrett case • Edgar Garrett of Goshen, Ind., • suspected in 1995 of his daughter’s murder, despite the absence of direct evidence linking him to the crime. • Garrett’s interrogators lied egregiously, saying that several witnesses saw him with his daughter shortly before she disappeared. They also said that a polygraph test had proved his guilt. • Then one of the detectives put it to the accused, who sometimes drank heavily, that he could have experienced a blackout. He reminded the suspect that he had once struck his daughter while in an alcoholic haze. • Garrett’s confidence in his memory began to falter and, though increasingly upset and confused, he ceased insisting that he had not seen the girl shortly before she disappeared.

18. Garrett case • After 14 hours of such cynical manipulation, Garrett signed a statement that he had killed his daughter and was charged with capital murder. In the months that followed, however, evidence turned up showing that Michelle was slain with a knife, not “thumped” with a stick, and that Garrett could not have been anywhere near the crime scene. He was eventually exonerated.

19. Richard Danziger case • Nancy DePriest was raped and murdered in her work place in Austin, Texas in 1988. Chris Ochoa pled guilty to the murder of DePriest and his friend, Richard Danziger, was convicted of rape. Ochoa had confessed to the crime and had implicated Danziger. It would be discovered, however, that his confession was coerced and that neither man had anything to do with the slaying or raping of DePriest.

21. Richard Ofshe and Richard Leo’s Experiment • Case selection • 60 cases where an individual was arrested primarily because police obtained an inculpatory statement that later turned out to be a proven, or highly likely, false confession

22. Case classification • 1) Proven false confession (34) • 2) Highly probable false confession (18) • 3) Probable false confession (8)

23. Cases involving suspected or established false confessions • Typically resulted in some deprivation of the false confessor’s liberty • 30 of the false confessors whose cases proceeded to trial had a 73% chance of being convicted • 81% of false confessors find themselves having to choose either to plead guilty to a crime they did not commit or go to trial and risk the harshest possible punishment = DEATH

24. Conclusions of Ofshe and Leo Study • Confession evidence substantially biases trier of fact’s evaluation of the case • These 60 false confessions show that the manuals often teach police to use tactics that end up producing false confessions since those tactics are coercive • Not enough safeguards in our criminal system • Criminal justice officials and lay jurors treat confession evidence with such deference that it outweighs strong evidence of the defendant’s innocence

25. General Information • In more than 25% of DNA exoneration felony cases, innocent defendants made incriminating statements, delivered outright confessions, or pled guilty

26. Duress Coercion Intoxication Diminished capacity Mental impairment Ignorance of the law Fear of violence The actual infliction of harm The threat of a harsh sentence Misunderstanding the situation Factors that contribute to confessions by innocent people

27. Electronically record the entire interrogation States: IL, ME, NM, WI, DC Sup Ct decisions: AK, MA, MN, NH, NJ Mandatory jury instructions directing the jury to disregard the confession if believed to be coerced Ways to prevent “false confessions” from leading to wrongful convictions