Promoting Accuracy in the Use of Confession Evidence: An Argument for Pretrial Reliability Assessments to Prevent Wrongful Convictions

81 Pages Posted: 12 Feb 2013 Last revised: 2 Nov 2013

Richard A. Leo

University of San Francisco - School of Law

Peter J. Neufeld

Benjamin N. Cardozo School of Law - Innocence Project

Steven A. Drizin

Northwestern University - School of Law, Bluhm Legal Clinic; Northwestern University - Center on Wrongful Convictions

Andrew E. Taslitz

American University - Washington College of Law

Date Written: February 1, 2013

Abstract

This article argues that constitutional criminal procedure rules provide insufficient safeguards against the admissibility of false confession evidence that is the product of police contamination. We propose a specific framework, as well as several possible mechanisms, for courts to review and screen the reliability of confession evidence prior to trial. We also offer specific suggestions for how pre-trial reliability assessments for confession evidence could effectively and efficiently work in practice. Finally, we respond to several possible objections to the idea of pre-trial reliability assessments, underscoring that in a variety of contexts trial judges – consistent with their traditional gate keeping role – already routinely prevent evidence with sufficient indicia of unreliability from going to the jury.

Keywords: wrongful conviction, false confession, police contamination, criminal procedure, criminal law, constitutional law, evidence, federal rules of evidence, reliability

Suggested Citation

Leo, Richard A. and Neufeld, Peter J. and Drizin, Steven A. and Taslitz, Andrew E., Promoting Accuracy in the Use of Confession Evidence: An Argument for Pretrial Reliability Assessments to Prevent Wrongful Convictions (February 1, 2013). 85 Temple Law Review 759 (2013); Univ. of San Francisco Law Research Paper No. 2013-12; Northwestern Public Law Research Paper No. 13-03. Available at SSRN: https://ssrn.com/abstract=2215885

Richard A. Leo (Contact Author)

University of San Francisco - School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

Peter J. Neufeld

Benjamin N. Cardozo School of Law - Innocence Project ( email )

100 Fifth Avenue
New York, NY 10011
United States

Steven A. Drizin

Northwestern University - School of Law, Bluhm Legal Clinic ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8576 (Phone)

Northwestern University - Center on Wrongful Convictions

375 East Chicago Avenue
Chicago, CA 60611
United States

Andrew E. Taslitz

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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