The Lawletter Vol 34 No 11, November 19, 2010
Doug Plank, Senior Attorney, National Legal Research Group
Brandon L. Garrett, a professor at the University of Virginia School of Law, has published an article that contains some surprising conclusions that could be used by defense attorneys in situations in which their client has confessed to a crime but later maintains his or her innocence. See Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051 (2010). Garrett has compiled a list of more than 40 cases since 1976 in which the defendant confessed to the crime but was later completely exonerated by DNA evidence. Relying on trial transcripts, recordings of confessions, and other materials, Garrett writes that it is not uncommon for a defendant's false confession to appear reliable because of the inclusion of incriminating facts and details, but he shows that such facts and details are actually planted in the minds of the defendants by police, who exert psychological pressures during the interrogation.
According to Garrett, such contamination of a confession can occur either intentionally or unintentionally during the interrogation of the defendant, as police respond to what a defendant is saying by affirming factually consistent statements and offering corrections when the defendant says something that does not match what they already know. Garrett suggests as a critical reform the videotaping of all confessions, and notes that even apparently credible confessions should be open to attack, not just on the basis of voluntariness but also on the basis of reliability. Defense attorneys should be aware of the possibility that they might bring in expert testimony to show how a seemingly insurmountable confession may be unreliable because of contamination during interrogation.