Contaminated Confessions Revisited
Virginia Law Review, Vol. 101, 2015 Forthcoming
Virginia Public Law and Legal Theory Research Paper No. 2014-52
64 Pages Posted: 24 Aug 2014 Last revised: 20 Mar 2015
Date Written: September 24, 2014
A second wave of false confessions is cresting. In the first twenty-one years of post-conviction DNA testing, 250 innocent people were exonerated, forty of which had falsely confessed. Those false confessions attracted sustained public attention from judges, law enforcement, policymakers, and the media. Those exonerations not only showed that false confessions can happen, but did more by shedding light on the problem of confession contamination, in which details of the crime are disclosed to suspects during the interrogation process. As a result, false confessions can appear deceptively rich, detailed, and accurate. In just the last five years, there has been a new surge in false confessions — a set of twenty-six more false confessions among DNA exonerations. All but two of these most recent confessions included crime scene details corroborated by crime scene information. Illustrating the power of contaminated false confessions, in nine of the cases, defendants were convicted despite DNA tests that excluded them at the time. As a result, this second wave of false confessions should cause even more alarm than the first. In the vast majority of cases there is no evidence to test using DNA. Unless a scientific framework is adopted to regulate interrogations, including by requiring recording of entire interrogations, overhauling interrogation methods, providing for judicial review of reliability at trial, and informing jurors with expert testimony, the insidious problems of confession contamination will persist.
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