There have been several interesting and provocative law review articles published in 2006 which touch upon the subject or wrongful convictions generally and false confessions in particular. I touch upon a few of them in this posting.
1. Two articles use the Central Park Jogger case to point out the failure of the current legal regime to protect suspects against false confessions and argue for changes in the law aimed at preventing false confessions. Sharon L. Davies a professor of law at the Moritz College of Law at the Ohio State University has published The Reality Of False Confessions-- Lessons from the Central Park Jogger Case, at 30 N.Y.U. Rev. L. & Soc. Change 209. Davies rejects calls to change the traditional voluntariness tests (or to micromanage police interrogation tactics) to screen out more confessions and instead urges that judges, relying on the rules of evidence, take a more active role as gatekeepers of potentially false confessions. First, she recommends that judges rely on the "personal knowledge" rules (F.R.E. 602) to make sure that defendants who confessed have personal knowledge of the facts in their confessions (as opposed to being fed those facts by their interrogators). Second, she grounds the gatekeeping role of judges in F.R.E. 702 governing the admissibility of expert testimony, the Supreme Court's decision in Daubert, and common law voluntariness rules of evidence that gave judges the power to exclude unreliable confessions. Had such a test been in place, argues Professor Davies, the Central Park Jogger confessions would have been exposed as unreliable and likely suppressed.
2. Defenders can also rely on a new article by Richard Leo, Steven Drizin, Peter Neufeld, Bradley Hall & Amy Vatner (two of Drizin's former students) in seeking pre-trial reliability hearings. This new article appears in the Wisconsin Law Review's excellent symposium on what changes in the law are needed to prevent wrongful convictions. See Bringing Reliability Back In: False Confessions and Legal Safeguards in the 21st Century, 2006 Wis. L. Rev. 479-539. Like Professor Davies, these authors note the historical changes in the confession doctrine which have shifted the focus from a concern with reliability to a concern with whether police tactics overcame a suspect's free will. They also rely on Daubert and common law rules (including the corpus delecti rule) to give judges the power to exclude unreliable confessions. Leo et al, however, argue that judges will be unable to accurately assess the reliability of confessions without an electronic recording of the interrogation and confession. Without such a recording, judges will be forced to resolve swearing contests between suspects and police officers over who was the source of the "information that only the true perpetrator could have known." (Davies's "personal knowledge"). Leo, et al propose two alternative tests for determining reliability, one which is far more stringent in cases where the police fail to record the interrogation, and suggest that defenders use F.R.E. 403 to seek exclusion of confessions whose probative value (unreliable confessions are of little probative value) are outweighed by the danger of unfair prejudice, confusion of the issues or misleading of the jury...."
3. Reformers have long seen mandatory electronic recording of interrogations of suspects as a critical reform in preventing false confessions. But not so fast, argues Jessica Silbey, Assistant Professor of Law at Suffolk University in Boston, in her enlightening article entitled, Videotaped Interrogations and the Genre of Documentary, 16 Fordham Intell. Prop. Media & Ent. L.J. 789 (Spring 2006). Blind faith in the idea that film will expose truth, no matter how well-intentioned, is based on a "fairly naïve view of film's indexical relationship to the lived world (that film transparently represents reality)." She suggests viewing legal "films" of interrogations "as a species of documentary" to help audiences "understand how all film, not only staged and scripted films, are species of advocacy." She cautions, citing Dan Lassiter's research, that they way in which the film frames the suspect can affect the way in which judges and juries "interpret the film." By choosing to frame only the suspects and not the suspects and officers, police videographers may actually be able to convince jurors to ignore the coercive aspects of the interrogation. Silbey's point is they are just one version of the truth and that defenders and others may still need to challenge filmed interrogations and use them to get judges to interpret them in ways that are favorable to their clients.
4. Miriam Gohara takes a different tack, recommending that the courts should create a ban against all police deception in A Lie for a Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques, 33 Ford. Urb. L. J. 791 (March 2006). She advocates for the per se exclusion of confessions made after police have misrepresented the availability or strength of physical or testimonial evidence; the establishment of innocence commissions to examine the factors, including deceptive interrogation techniques, contributing to false confessions; the enactment of laws proscribing police from misrepresenting during interrogations the nature or availability of evidence against suspects; and the enactment of laws requiring police to disclose to prosecutors, and prosecutors to disclose to defense counsel, instances in which a suspect confessed only after the police employed deceptive interrogation tactics. Gohara's reforms rests on two foundations: 1) that empirical studies and real-life wrongful conviction cases have demonstrated that false evidence ploys are likely to produce false confessions and; 2) that a criminal justice system whose purported goal is divining the truth, it is bad public policy to permit law enforcement officers to try to ascertain the truth by lying to suspects.