Forty years after Miranda v. Arizona, there is still “a gap in our knowledge as to what in fact goes on in the interrogation room.”3 Most people are unaware that police routinely employ unethical and “pseudoscientific”4 psychological interrogation methods in order to obtain confessions5 from criminal suspects.6 Most people, including many judges and lawyers, are also unaware that these interrogation methods obscure the search for justice in the courtroom.7 This article examines the modern psychological interrogation process that too often produces inaccurate, misleading, and even false admissions and confessions.8
3 See Miranda, 384 U.S. at 486.
4 See Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 DENV. U.L. REV. 979, 986 (1997).
5 This article uses the terms “confession” and “admission” interchangeably. However, these terms have distinct meanings. Black’s Law Dictionary explains: “A confession is a statement admitting . . . all facts necessary for conviction of the crime. An admission, on the other hand, is an acknowledgement of a fact or facts tending to prove guilt which falls short of an acknowledgement of all essential elements of the crime.” BLACK’S LAW DICTIONARY 205 (abr. 6th ed. 1991) [hereinafter BLACK’S]; see also MANUAL FOR COURTS-MARTIAL, UNITED STATES, MIL. R. EVID. 304(c) (2005) [hereinafter MCM].
6 See Jacqueline McMurtrie, The Role of the Social Sciences in Preventing Wrongful Convictions, 42 AM. CRIM. L. REV. 1271, 1282 (2005).
7 See Andrew E. Taslitz, Convicting the Guilty, Acquitting the Innocent: The ABA Takes a Stand, 19 CRIM. JUST. 18 (2005).
Estimates of the extent to which false confessions contribute to wrongful convictions vary, with some estimates attributing close to one-fourth of all convictions of the innocent partly to false confessions. These false confessions take place despite the giving of Miranda warnings and despite the modern decline of extreme tactics like those of the “third degree.”
Id. (citations omitted); see McMurtrie, supra note 6, at 1273–74; see also REPORT OF THE[Illinois] Governor’s Commission on Capital Punishment 40, 96, 111 (2002) [hereinafter GOVERNOR’S COMMISSION] (describing the need for increased training on interrogation methods and the causes of false confession), available at http://www.idoc.state.il.us/ccp/ccp/reports/commission_report/index.html.
8 See generally Saul M. Kassin & Gisli H. Gudjonsson, The Psychology of Confessions: A Review of the Literature & Issues, 5 PSYCHOL. SCI. IN PUB. INTEREST 33 (2004) (scrutinizing the interrogation process from the pre-interrogation interview through Miranda warnings, interrogation tactics, and why people confess); Ofshe & Leo, supra note 4, at 986–1001 (providing detailed description of how police elicit true and false confessions). Even though some of the techniques discussed herein may be used during intelligence interrogations, the focus of this article is limited to police interrogation methods used with an eye toward criminal prosecution.
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Military Law Review Article on False confessions by Peter Kageleiry, Jr.