an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.
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.