Criminal Confessions as Evidence: A Failure of the Adversarial System

1. Confessions in Criminal Law

Prosecuting attorneys and the accused are forced into direct competition in the American criminal justice system. Neither party seeks the truth per se. Instead, each party stretches the evidence, facts, and law to advance their case, constrained only by a legal duty to act in “good faith” and a practical need to maintain credibility. The arbiter, a judge 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 imperfect. The prosecutor and the accused often have very different resources available to make their case, while the arbiter is inevitably influenced by his own biases and idiosyncrasies. Still, society generally accepts the adversarial system of criminal justice as legitimate despite its imperfections.

While imperfect systems may nonetheless be viable, 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 the almost irrelevant notion 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), and corrode the legitimacy of the criminal system.

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; they reduce trial costs, thereby allowing more potentially dangerous persons to be convicted using the same resources.

Confessions mitigate the prosecutor’s need to acquire corroborative evidence, and are such a staple that they often serve as 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 tools for prosecutors, who are evaluated based on their conviction rates and the total number of convictions that they achieve.

3. False Confessions are Common

An adult, who is educated, mentally-healthy, and economically-stable, would not typically confess to crimes that he did not commit. However, among certain marginalized socioeconomic groups false confessions are common.

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

Social outcasts and “drifters” may view the legal system as arbitrary, or 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 deter investigation which could uncover 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”. Further, the victimized groups of people described above are unlikely to mobilize or complain as a cohesive whole over abuses of the confession system, leaving the prosecutor with no reason to pursue further evidence beyond “the pursuit of justice.”

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 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 arbiter will likely convict the accused under this intuitive, but largely irrelevant, pretense.

6. Conclusion

The safeguards of the adversarial system break down when an accused party confesses to a crime. Criminal confessions, when presented in place of actual evidence, delegitimize the criminal justice system. Further, false confessions happen with regularity within certain groups, resulting in a significant portion of all confessions proffered as evidence. Requiring corroborative evidence in criminal confession cases would mean fewer easy convictions, and would force prosecutors to decide which crimes are really worth pursuing.

Food for thought from your editor:

The changes I made in this paper were largely aesthetic. Removed some quotes (and I’m confused as to the quotes/italics in the stand alone lines in section 5…is that citing from somewhere? If so, include the citation, at the moment it appears to simply be extra emphasis), got rid of some qualifications and vague quantities that made the author sound less sure than necessary. 1000 words on the dot (including section headings/title).

I think you’ve tapped an extremely interesting and important subject in this paper, the use of confessions/plea bargains in the criminal justice system, but your argument is a little scattered. In the first section you express a concern with wrongful convictions, whereas at the end you conclude confessions should be supplemented by corroborating evidence, and in the in-between you make the argument that confessions ought to be disregarded as evidence on the whole. Structurally, you should frame your dilemma at the outset, and propose a solution. Then, in the first part of the body of your work, explain why or how the problem exists (why is the problem actually a problem). Following this, introduce your solution, explain how it will alleviate the problem, and defend it as the best possible solution against all comers. You’re advocating for an immense change, and there are many angles opponents to this idea could approach you from. I’ll try to provide a few below.

While it may be true that wrongful convictions cost the system resources, it is important to weigh the benefits of confessions as evidence fairly. A wonderfully high percent of criminal cases never reach the trial stage due to being settled by plea bargains; how would the cost of trying all those cases (because they cannot be settled out of court with a plea bargain) stack up against the money saved on incarceration and rehabilitation of those found to be innocent who would have confessed? If every case is fully tried, wouldn’t that overrun our system, rendering it useless? Isn’t a functioning, albeit imperfect, system better than a non-functioning system?

If a full 70% of those who confess could not be convicted without the confessions, why would they admit to the crime unless they were reasonably sure they could in fact be convicted? Doesn’t that seem to suggest the accused actually committed the crimes they’re confessing to? (I’m assuming a basic level of competence on the part of the defense lawyers, that they’re capable of recognizing a case they can win and will not advise their clients to confess in such situations) Does that figure relate to the percent of prosecutions that would be unwinnable without a confession “as is” when they come before the arbiter, or the percent of cases that would be unwinnable even after full discovery? Additionally, if an innocent does want to confess in order to receive a guaranteed reduced sentence (as opposed to facing the uncertainty of a full trial) isn’t it in their interest to be allowed to do so?

You mention at the end of your paper (a point I believe ought to be brought in sooner) that lacking confessions as permissible evidence, prosecutors will be forced to decide which crimes are really worth punishing. Isn’t that the role of the electorate acting through their legislative bodies? Aren’t these things “criminal” because the people willed them to be so, and are decidedly worthy of punishment? Is it really the role of the prosecutor to decide who merits punishment? Doesn’t this bring in an even greater likelihood of arbitrary unfairness? Racism, sexism, class stereotypes, etc. could all affect who a prosecutor chooses to take to task.

Finally, think of the burden this rule would put on public defenders. If they lost the ability to plea bargain and were forced to try every case fully their already limited resources would be completely exhausted, and then some. Doesn’t the tool of plea bargaining allow defenders strapped for resources concentrate more fully on the cases they believe are winnable?

-- By SaswatMisra - 09 Apr 2010

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