The Case for the Abolition of Criminal Confessions

Abstract

Confessions are often considered the “gold standard” of evidence in criminal proceedings. But in truth, confession evidence imposes significant harms on our criminal justice system, through false convictions and other violations of defendant’s due process and moral rights. Moreover, our current doctrine is unable to eliminate or even curb these harms.

This Article makes the case for the abolition of confession evidence in criminal proceedings. Though it may seem radical, abolition is both sensible and best furthers our penological goals. As a theoretical matter, confession evidence has low probative value, but it is prejudicially overvalued by juries and judges. Consequently, this overvaluation means both that innocent defendants are systemically pressured into proclaiming their guilt and that juries are so swayed by it — even in light of countervailing evidence — that they render wrongful convictions. Indeed, as practice and empirical evidence demonstrate, this is not merely a theoretical possibility: false confessions and resulting miscarriages of injustice occur with disturbing frequency. Moreover, confession evidence, and the methods to obtain it, impose significant harms on defendants in terms of their due process and moral rights, due to the pressures of interrogation, investigation, and jeopardy. And our current constitutional and evidentiary doctrine is incapable of addressing these harms, for it fails to recognize that false confessions are often caused by overwhelming pressures endemic to our criminal justice system. Consequently, solving these problems requires a comprehensive, properly focused solution that goes far beyond our current doctrinal hodgepodge.

The abolition of confession evidence meets that demand. Compared to other solutions that have been proposed, such as further limiting law enforcement and prosecutorial conduct or introducing expert testimony and evidence, the abolition of such evidence best apprehends and mitigates the epistemic and moral concerns arising from confession evidence and interrogation. In addition, it coheres with and flows from the Constitution’s due process requirement of voluntariness in confessions and the evidentiary requirements of reliability. Finally, it preserves and improves key features of our criminal justice system, namely interrogation, plea bargaining, and the assessment of evidence.

Keywords: criminal law, confession, evidence, criminal procedure

JEL Classification: K10, K14