The risk that individuals may confess to crimes they have not committed should make the evidence from confessions inadmissible in a criminal trial, says a Texas law professor.
Citing notorious cases like the Central Park Five, Guha Krishnamurthi, an assistant law professor at the Southern Texas College of Law, argues that criminal confessions are too easily subject to police coercion or plea bargaining by prosecutors, and should be “abolished” as a form of evidence.
In the Central Park case, five Black teenagers were convicted and imprisoned based in part on their confession of involvement in a brutal 1989 assault on a white woman in Manhattan’s Central Park. They were freed in 2002 after evidence proved that someone else committed the crime.
In a paper, entitled “The Case for the Abolition of Criminal Confessions,” Krishnamurthi wrote that the “disturbing frequency” of cases in which individuals confess to crimes they haven’t committed undermines what trial lawyers and police consider the “gold standard” of proof in criminal cases.
“As a matter of theory, confession evidence has low probative value in showing a defendant’s guilt, because the pressures of the criminal justice system have the potency to force false confessions,” Krishnamurthi wrote. “As a matter of practice, we know that law enforcement and prosecutors exploit the conditions of the criminal justice system to push defendants to confess.
“All the while, the probative value of confession evidence is vastly overestimated by judges and juries.”
Guha acknowledges that removing a confession as evidence may seem a radical step.
“It would be a great departure from practice as usual,” the paper says. “Confessions, and pleas that rely on confessions or their functional equivalents, occur in the vast majority of criminal cases. Thus, (my) proposal would impact most all criminal cases.
“But in the more important sense — what rationally comports with our legal commitments to defendants — abolishing confession evidence is not radical. It is the most sensible solution.”
Confession evidence and the methods used to obtain it by law enforcement impose “significant harms on defendants” in terms of their due process and moral rights — mainly because of the pressures and stress of interrogation and investigations.
But in a justice system where “no confession is admissible, the innocent defendant will not likely face the same kind of choice of confessing for lowering punishment,” the paper asserted.
“Moreover, the stakes of interrogation are reduced, leading to less overt pressure from law enforcement and the prosecution, which in turn leads to less pressures on the defendant.”
Frequency of Confession Injustice
Krishnamurthi grounds his argument 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, on several studies.
He cites a study by Richard A. Leo and Richard J. Ofshe, published in the Journal of Criminal Law and Criminology, where the researchers studied 29 proven false confessions that resulted in conviction. The pair found that seven (24 percent) pleaded guilty in order to avoid a harsher penalty — typically the death penalty.
While the actual number of how many false or coerced confessions come out of the justice system is difficult to know, there are a multitude of “rational” reasons why a person who didn’t commit a crime would admit to anything — and that behavior is typically influenced by immense stress.
Other researchers have noted that threats made against a suspect, promises of leniency, and lies about forensic evidence were all leading reasons as to why someone would falsely confess under a lengthy and stressful interrogation — one that has a median length of 12-16 hours, respectively.
“These numbers are shocking,” Krishnamurthi wrote. “And, given what we know about the nature of law enforcement interrogation methods, it is pellucid that defendants experience an overwhelming atmosphere of pressure to confess.”
The Confession ‘Gold Standard’
Notable researchers, namely Saul M. Kassin, a forensic psychologist at John Jay College of Criminal Justice, have studied the impact that having a confession associated with a criminal case has on that person’s conviction.
A 1997 experimental study by Saul M. Kassin and Katherine Neumann cited by Krishnamurthi showed that confession evidence was “uniquely potent,” for juror’s opinions compared to eyewitness testimony and character evidence.
Their study provided 62 undergraduate psychology students summaries of four criminal trials — murder, rape, aggravated assault, and automobile theft cases — where each summary included weak circumstantial evidence plus a confession, an eyewitness identification, a character witness, or nothing further.
In every case, the confession — albeit a false one — was more likely to garner a conviction than even eyewitness identification, proving that confessions carry unbelievable weight in criminal trials.
Another 2011 study by Sara C. Appleby, Lisa E. Hasel, and Saul M. Kassin, cited by Krishnamurthi, proved that out of 141 cases looked at by students, cases without a confession saw a 30 percent conviction rate; but the same case with a confession in the evidence docket saw a 95 percent conviction rate — proving that “even bare admissions of guilt (are) sufficient to render a guilty verdict,” Krishnamurthi wrote.
Moreover, as the Supreme Court observed in a 1990 case, “a confession is like no other evidence,” noting that a defendant’s admission of guilt “is probably the most probative and damaging evidence that can be admitted against him.”
Because of the importance that confessions have in trials, the author believes abolition is the only long-term and permanent solution.
‘No Other Choice’ for Change
Krishnamurthi argues that none of the other solutions advanced to limit the introduction of false confessions into trials have produced “comprehensive” solutions.
For example, many police departments now recorded interrogations from start to finish, and officers are prohibited from using threats or the promise of leniency in exchange for information — or a confession.
Krishnamurthi contended that such limitations are far from foolproof.
Other reform ideas include taking confession evidence off the table when there’s the potential for the prosecution to go after the death penalty, so that the accused cannot confess to escape death for a lesser sentence where they keep their life.
But, Krishnamurthi asked, how is this any different for someone who is facing up to 50 years in prison? And, moreover, why couldn’t this leniency be extended to any case with a punishment?
Other scholars argue that it should be commonplace to enter expert witness testimony into evidence once a case has moved to trial, to counteract any invalid confession. But Krishnamurthi counters that this will result in a “battle of the experts: that could only further confuse a jury and hardly sway anyone.”
All of these solutions, Krishnamurthi says, simply don’t go as far as the abolition of such evidence would; nor do they deal “with the moral harm of confession evidence.”
Krishnamurthi concludes by writing that the current status quo imposes “significant harms on our criminal justice system” and the only way to make real change is to abolish confession evidence altogether.
Guha Krishnamurthi is an Assistant Professor of Law at the South Texas College of Law in Houston. Guha’s research interests are in criminal law, criminal procedure, and jurisprudence. Prior to joining South Texas, Guha was a Climenko Fellow at Harvard Law School.
The full paper can be accessed here.
Andrea Cipriano is a TCR staff writer.