Criminal Confessions as Evidence: A Failure of the Adversarial System

1. Confessions in Criminal Law

The prosecuting attorney and the accused are forced into direct competition in the criminal justice system. Neither party seeks the truth per se. Rather, each party stretches the evidence, facts, and law to advance their cause, constrained only by a legal duty to act in “good faith” and a practical need to maintain credibility. The arbiter (i.e., judge and/or jury) decides the accused party’s guilt by comparing the evidence, facts, and law to some variant of the “reasonable doubt” standard.

The adversarial system is, of course, imperfect. The prosecutor and the accused often have very different resources available to make their case. The arbiter is inevitably influenced by his own biases and idiosyncrasies. Still, society generally accepts the adversarial system of criminal justice as legitimate despite these (and many other) imperfections.

However, it is the contention of this essay that the adversarial system breaks down completely when criminal confessions are used in place of substantive evidence in criminal trials. When a confession is given, the accused party “gives up,” while the prosecutor stays focused on "winning" rather than on determining the truth. Worse still, the arbiter, lacking substantive evidence, is left only with his almost irrelevant intuition that "an innocent person would almost never confess" in rendering a verdict.

As a result, innocent people are convicted of crimes that they did not commit. While wrongful conviction obviously harms the accused, it also harms society. Wrongful convictions drain resources (incarceration and rehabilitation are expensive), corrode the legitimacy of the criminal system, and allow actual criminals to remain free and unchecked.

2. Why are Confessions Admissible as Evidence?

The fifth amendment of the Constitution guarantees that "no person ... shall be compelled in any criminal case to be a witness against himself." This clause reflects a historical distrust of confessions, and the methods used to obtain them, in American and English law. Why then, are confessions allowed as evidence in criminal trials?

Confessions are allowed because they are practical. Confessions reduce trial costs, thereby allowing more potentially dangerous persons to be convicted using the same resources. Importantly, confessions mitigate the prosecutor’s need to acquire corroborative evidence, and so a confession is often the only or most prevalent piece of evidence at trial. For example, see ([1, page 14, quoting McCormick, 1972])("the introduction of a confession makes the other aspects of a trial in court superfluous, and the real trial, for all practical purposes, occurs when the confession is obtained"). It has been estimated that a conviction would not be possible in 70-percent of cases in which a confession is used, without the confession present. See ([1, page 15]). In short, confessions are low-cost, high-reward cases for prosecutors, who are evaluated based on their conviction rates and the total number of convictions that they achieve.

3. False Confessions are Common

Educated, mentally-healthy, and economically-prosperous adults generally do not confess to crimes that they did not commit. However, among certain socioeconomic groups, likely numbering in the millions, false confessions are common.

People who have a low-IQ or who are (non-obviously) mentally-challenged may confess to crimes they did not commit while agitated and confronted by authority figures (a situation worsened by police interrogation techniques, which often encourage intimidation and application of psychological pressure to elicit confessions). Disadvantaged immigrants, who additionally are not yet acclimated to the legal culture of the United States, may confess for related reasons. Those with undiagnosed mental-illness may confess, actually believing that they committed the crime.

Social outcasts and “drifters” are likely to view the legal system as arbitrary, or worse, as against them, and may confess from a utilitarian decision to minimize their expected penalty. Further, those who feel powerless and voiceless in society may enjoy the short-lived attention that confessing brings them (especially if the alleged crime is highly visible). Some individuals may confess because they find stability in the prison system and want to return to it. Finally, those involved even tangentially in organized crime may confess to cover for the serious crimes of other members of the organization.

4. False Confessions and the Prosecutor

Unfortunately, in the adversarial system, an overworked prosecutor has little incentive to dig beneath the surface of a confession and check for authenticity (for example, in the form of corroborative evidence). Doing so could hurt her conviction rate, and would exhaust her limited resources on a case that is “solved,” in the bureaucratic sense. Further, the victimized groups of people described above are unlikely to mobilize or complain as a cohesive whole over even egregious and systemic abuses of the confession system.

5. False Confessions and the Arbiter

The lack of corroborative evidence in confession cases makes it difficult for the arbiter to fulfill his role as a safeguard in the adversarial system. Without any other evidence to go on, the arbiter must base his "reasonable doubt" decision solely on:

"the probability that the accused party is innocent given than he confessed."

As stated in Section 3, above, this probability may often be large enough to merit serious contemplation. Unfortunately, very few arbiters will find this quantity intuitive. Instead, the arbiter, especially if it is a jury consisting of lay persons, will likely evaluate a much more intuitive, but almost irrelevant, quantity

"the probability that an accused person would confess given that they are innocent."

Guided by the principle that "an innocent person would almost never confess," the accused will likely be convicted under an intuitive, but irrelevant, pretense.

6. Conclusion

The safeguards of the adversarial system break down when an accused party confesses to a crime. Contrary to common thinking, criminal confessions, when presented in place of actual evidence, delegitimize the criminal justice system. Further, false confessions happen with regularity within certain groups, having populations in the millions. Requiring corroborative evidence in criminal confession cases would mean fewer “easy” convictions, and would force prosecutors to decide which crimes are really worth pursuing.

-- By SaswatMisra - 09 Apr 2010

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