Safety from False Confessions
54 CRIMINAL LAW BULLETIN (2018) 25.
49 Pages Posted: 3 May 2019
Date Written: March 30, 2018
In certain fields, the meaning of a “safety-critical system” is well understood, and resources are, therefore, invested in modern safety methods, which significantly reduces the rate of accidents. For example, the aviation field abandoned the obsolete “Fly-Fix-Fly” approach and developed more advanced safety methods that generally follow an “Identify-Analyze-Control” model and are aimed at “First-Time-Safe.” Under the latter approach, there is systematic identification of future hazards, analysis of the probability of their occurrence, and a complete neutralization of the risk or at least its reduction to an acceptable level. As explained in the article, a false conviction is no less a system error and accident than a combat-plane crash. Yet in criminal law, a “Hidden Accidents Principle” governs and the overwhelming majority of false convictions are never detected. Consequently, no thought has ever been given to safety in the system. Empiric studies based on the Innocence Project’s findings point to a very high false-conviction rate: at least 5% for the most serious crimes. About one-quarter of those convictions had been determined to be based on a false confession.
Current confession law — in particular, the Miranda rules — only addresses the possibility of an involuntary confession. It does not seriously deal with the existing possibility of false confessions (which may be voluntary). This article proposes a theory and some initial tools for incorporating modern safety into the criminal justice system. Specifically, I demonstrate how the innovative “System-Theoretic Accident Model and Processes” (STAMP) safety model can be applied in the criminal justice system, by developing constraints, controls, and barriers against the existing hazards in the context of convictions grounded on the defendant’s confession during police interrogation.
Keywords: Confession, false confession, safety, false convictions, STAMP, evidence
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