Confession and Confrontation

Abstract

The constitutional law of confessions has a critical blind spot. In theory, it serves two interests. It protects the autonomy of suspects by stipulating that they can be questioned while in custody only with their consent. And it restrains official misconduct by forbidding interrogation methods that overbear a suspect’s will. Even if the law adequately safeguards those interests, something is missing: reliability. As false confessions emerge as a major source of wrongful convictions and as social scientists expose how standard interrogation tactics prompt innocent people to confess, the Supreme Court and conventional wisdom insist that the reliability of confessions is not a constitutional concern.

The Supreme Court and conventional wisdom are wrong. Inattention to reliability is a jurisprudential oversight, not a feature of constitutional design. The problem is that the Court and commentators have neglected the part of the Constitution that unabashedly curates prosecutorial evidence: the Confrontation Clause. For much of our constitutional history, that omission could be excused, as the Confrontation Clause was a sleepy corner of the Sixth Amendment. Twenty years ago, in Crawford v. Washington, the Supreme Court enlivened it.

This Article shows that a straightforward reading of Crawford, combined with a smattering of legal history, yields a simple but transformative rule: If police obtain a confession through psychologically manipulative tactics that induce “fear” or “hope,” the confession should be inadmissible unless the defendant testifies. Eighteenth-century jurists and modern social scientists agree that such tactics lead to unreliable confessions, yet they remain a staple of modern American interrogations. That would change if courts recognized the Confrontation Clause’s capacity to regulate confessions.

Keywords: criminal procedure, interrogation, Confrontation Clause

JEL Classification: K14, K41