Balkinization  

Wednesday, May 03, 2006

False confessions without Torture

Ian Ayres

At first, we might think that no rational person would ever confess to a crime she did not comit.

People might confess if they were beaten or inhumanely interrogated. Irrational people might be tricked into confessing. But there seems to be no place in the rational actor model for false confessions.

The granddaddy of all games, however, suggests that rational people might confess to crimes that they did not commit. The prisoner's dilema is at core a story of how prisoner's may be induced to confess -- irrespective of whether or not they are guilty. If you face a high enough prospect of conviction if an alleged codefendant finks, and if you will be given a lower sentence if you confess first, it can be entirely rational to falsely confess.

So here's a testable hypothesis -- a disproportionate number of false confessions will occur when the confessing defendant is alleged to have a codefendant. Indeed a cursory review I did a few years back of cases posted at The Innocence Project suggest that this might in fact be the case.

You can find more information of the tragedy of wrongful convictions at either of these blogs: www.truthaboutfalseconfessions.com (operated by Alan Hirsch) or http://blog.law.northwestern.edu/bluhm/false_confessions (operated by Steve Drizin).

Comments:

Another circumstance where you will occasionally find innocent confessions, is where the penalty for conviction is less than the cost of mounting even a successful defense. Where, for instance, you face a fine which is less than the cost of hiring a defense attorney, and taking time off from work for a trial. Frequently the case with traffic offenses, it used to also occur with allegations of domestic violence during contentious divorces.

An awful lot of people who pled guilty because the lawyer was more expensive than the fine a couple decades ago, lost their 2nd amendment rights to the Lautenberg amendment's retroactive penalties.
 

I don't see how it isn't totally obvious that rational people will sometimes confess to a crime they didn't do.

I mean if I held a gun to most people's head and told them to write out a signed confessions (suppose they thought this would really send them to jail) most people would confess even though it might send them to jail for life. Many people would still write such a confession even if they had seen me place only one bullet in the barrel and spin the barrel (1/6 chance of death).

Thus I don't understand how the supreme court can possibly regard guilty pleas where the prosecution is offering to take the death penalty off the table as valid. I mean it is essentially holding a gun to their head and saying plead guilty or I will have you killed.

Then again it blows my mind that the government can (effectively) threaten to throw someone in jail if they don't say some other guy did the crime. Sure the jury can 'evaluate' the impact of this incentive but we really believed this principle we would let the defense offer witnesses money to tell the story they wanted as long as they informed the jury.
 

I remember the case of a teenager in California who confessed to killing his sister (it later turned out a handyman in the neighborhood had done it). The slick police interrogator convinced the boy they had evidence of his guilt and that he must have forgotten what happened. The interrogation was recorded and is probably available, since I heard it on Ira Glass's This American Live on NPR. Everyone in the criminal justice system should have to listen to it -- the boy crying with grief as he is so "gently" questioned by the officer. Few things I have ever heard made me so angry, as I could imagine my own teen-aged son in that position. May the police office receive the punishment he so justly deserves for this.
 

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