I didn't write about this last week because this part of Brandon Garrett's series on why the innocent get convicted deserved its own post. Garret notes that "All but two of the 40 DNA exonerees who falsely confessed were said to have confessed in detail."
The only way to accurately document who says what during an interrogation session is to record the whole thing. Such a record would also increase the reliability of confessions as evidence. More than 750 law enforcement jurisdictions across the United States are voluntarily recording entire interrogations. You might imagine that police investigators would resent such documentation of interrogations, yet studies have shown that once recording becomes standard practice, police officers and prosecutors become strong supporters of the reform. After all, a taped record can mean fewer frivolous motions to suppress and fewer false claims that suspects were unduly deceived or abused. Recording interrogations protects the innocent, aids police and prosecutors, and provides judges and jurors with the clearest evidence of what transpired during the interrogation. Currently, 11 states and the District of Columbia require or encourage electronic recording of at least some interrogations by statute, and seven more state supreme courts require or encourage the recording of interrogations. None of those states require judges to use the recordings—judges should also conduct hearings to carefully evaluate those recordings to assess reliability of interrogations before allowing them in court. After all, if the recording shows that police did contaminate a confession by feeding facts to a suspect, there should be a remedy in court.
Confessions were long thought to be the most powerful evidence of guilt imaginable. To be sure, we knew that if tortured, suspects might falsely confess, but now we know that seemingly more benign psychological techniques can also produce false confessions—even false confessions that seem uncannily accurate. Had it not been for the DNA tests, we would have rested secure that Frank Sterling had not only confessed but confessed to details that only the true killer could have known.
Now, this, I think, is what Marcy Wheeler was getting at with her concerns about the Obama administration shifting the FBI Miranda guidelines and the marathon interrogation session that followed the apprehension of Faisal Shahzad. Those guidelines don't govern admissibility of course, but I think the point is that by encouraging the FBI to interrogate terror suspects at length without Miranda, you encourage the sort of atmosphere where an interrogation can lead to a false confession. The Shahzad case was a unique circumstance in that he waived his right to presentment before a judge. But Wheeler's concern is that an individual can be coerced into waiving their right to presentment much as someone in a high pressure interrogation can be coerced into a false confession.
