Getting It Wrong: Convicting the Innocent
When he recently signed legislation abolishing the death penalty in Illinois, Gov. Pat Quinn noted a "grave danger" that the innocent could be executed. This past March, the U.S. Supreme Court decided, in Skinner v. Switzer, to expand the right to access DNA testing that could potentially prove a defendant's innocence. Last week the New York Times published a firsthand account by John Thompson, an innocent man who came within hours of his own execution. Two weeks ago, the U.S. Supreme Court threw out a $14 million jury award compensating him for the years he spent in prison. Public opinion surrounding the death penalty has been shaped, in recent years, by the possibility of innocents being executed. And DNA exonerations continue to regularly occur, although with little rigorous assessment of what went wrong.
In my new book, Convicting the Innocent, I conducted the first empirical study of the first 250 wrongful convictions brought to light by DNA tests in the United States. First, I located the original criminal trial materials from almost all of those innocent people's cases. I then reviewed those remarkable cases. My goal in revisiting those trials was to try to understand how the criminal justice system could make such fundamental errors. These 250 cases shed light on how not just death penalty cases (17 of the 250 were capital cases), but everyday criminal cases rely on unsound evidence and faulty investigative procedures. It's easy to blame innocent convictions on occasional human error. The high court suggested as much in its ruling in Osborne v. District Attorney's Office, denying an inmate's request for post-conviction DNA testing and saying that our criminal justice system, "like any human endeavor, cannot be perfect." But just because a system is a human one doesn't mean that we should casually assume that things must go wrong. My research shows systemic failures that can be prevented by using improved criminal procedures, subject of a multimedia website, a joint project with the Innocence Project, titled "Getting it Right,"to be launched soon, and with a segment on eyewitness misidentifications which has just been launched.
In this series for Slate, I discuss two common types of flawed evidence: eyewitness misidentifications and false confessions.
We like to believe that there is no more reliable evidence of a crime than a confession. Why would anyone admit to a crime they didn't commit? Yet my research into all of the 250 innocent exonerations suggests that innocents actually confess to a lot. In doing so, they may reportedly offer up crime scene details known to nobody but police investigators. The case of Frank Sterling is illustrative.
In 1988, an elderly woman, out for a walk, was killed in Rochester, N.Y. The crime remained unsolved. Frank Sterling became a suspect and was interrogated alone, without a lawyer. He was 25 years old at the time and had no criminal record. He readily waived his Miranda rights. He was already tired from a 36-hour-long trucking job shift, and the interrogation started at 7 a.m. and continued for 12 grueling hours.
To try to get more out of him, an investigating officer used a hypnotic-type "relaxation" technique, in which he laid down beside Sterling, held his hand, and they breathed deeply. Three crucial details about the murder would emerge from these interrogation sessions: The location of the murder; the victim's clothing; and the fact that there was a bb gun found at the scene. For example, during the "relaxation technique," Sterling for the first time supposedly told the officer that the victim was wearing "a purple top, maybe two-toned, and dark pants."
At trial, officers testified they never told Sterling any of those key facts, although one admitted he showed Sterling some crime scene photos during the interrogation. And just the last 20 minutes of the interrogation were recorded by the police. In that video, Sterling indeed mentions key details. For example, he mentions what the victim wore, including the purple jacket. He describes how he pushed her body off the path and into the brush. He describes hitting the victim with a bb gun. Here are some key moments from the video of that last part of Sterling's confession, courtesy of a new website, "Getting It Right," that the Innocence Project and I will be launching shortly.
Finally, Sterling even agreed that no one put those words in his mouth, that he did not "dream this up," and the detectives did not influence him.
At his criminal trial, Sterling's lawyer asked the jury: "And do you feel in your stomach that this is reliable? That this is free of suggestion? That this is voluntary?" Prosecutors responded: "Truthful? How does the defendant know it's a purple jacket or purple top? A guess? ... [The police] never released to the media … the purple jacket." Sterling was convicted and sentenced to 25 years to life.
Sterling tried to appeal, arguing that another man actually committed the crime. The judge rejected his motion. "Only Sterling confessed to authorities," read the decision. "Only Sterling had a motive. … Only Sterling knew facts that had not been publicized." His confession was all the evidence anyone needed.
Sterling spent 18 years and nine months in prison before DNA exonerated him. The DNA tests also inculpated the man Sterling had pointed to on appeal.
Now that we know—with the benefit of the DNA tests—that Sterling is innocent, one wonders how an innocent man could have guessed at incredibly specific crime scene details?
Sterling later explained it this way, according to a New York magazine article: "They just wore me down." "I was just so tired." "It's like, 'Come on, guys, I'm tired—what do you want me to do, just confess to it?"Sterling recalls that he was never asked an open-ended question about what happened. Instead, he was asked leading questions and asked to answer yes. " 'Yes' and grunts—that's basically what the whole confession is about." There were also inconsistencies that should have been a red flag to investigators. For example, Sterling said the victim fell in the brush. Yet she was actually dragged a long distance to the place where her body was found. Sterling also had a strong alibi that nobody seemed to credit; he was at work much of the day in question.
Many find the notion that an innocent person would falsely confess unimaginable, even shocking. Law professor John Henry Wigmore wrote in his classic 1923 evidence treatise that false confessions were "scarcely conceivable" and "of the rarest occurrence." Particularly now that the U.S. Supreme Court has ruled that detectives must give the Mirandawarnings and that involuntary confessions will be suppressed, we all assume that criminal confessions take place without torture or overt coercion. However, Frank Sterling was not alone. DNA cases have expanded awareness of how modern psychological interrogation tactics can result in false confessions more often than one might suppose. In 16 percent of the first 250 DNA exonerations, or 40 of the 250 cases I studied for my book, Convicting the Innocent, innocent defendants confessed to crimes they did not commit. (Additional DNA exonerees did not deliver confessions in custody, but they made incriminating statements or pleaded guilty to crimes they did not commit).
The false confessions pose a puzzle. All but two of the 40 DNA exonerees who falsely confessed were said to have confessed in detail. How can an innocent person, who had never been to the crime scene, offer up such details? Maybe an innocent person might succumb to police pressure and finally admit, "I did it." But a suspect who can only say "I did it," is not particularly believable. Police know a confession must be supported by a far more complete and corroborated account of what the person actually did.
Police are trained never to contaminate a confession by telling details to the suspect or leaking them to the media. When crucial crime scene facts are developed during an interrogation, police are trained to ask open-ended questions, like "What happened next?" If they tell the suspect key facts, they can never know for sure whether the suspect was able to volunteer that information.
Like Sterling's, 23 of those 40 false confessions were recorded, but just partially, usually just a confession statement at the end of a long interrogation. However, in 27 of the 40 cases, police testified that confession details were nonpublic, or they denied disclosing such details to the defendant. Absent a recording of the entire interrogation, we can never know how an innocent person like Sterling came to learn of the key details about the crime. It is possible that police investigators inadvertently disclosed details without realizing it. It is also possible they fed the suspect the facts; Sterling's post-exoneration account of his interrogation suggests that happened in his case.
Because detailed confessions represent such powerful evidence, when defense attorneys tried to challenge the confession evidence they all failed. This was true even when there were some clear signs that these were confessions proffered by vulnerable people who may have been subject to highly coercive techniques. Of those 40 exonerees who confessed, for instance, 14 were mentally disabled or borderline mentally disabled, and three more (at least) were mentally ill. Thirteen of the 40 were juveniles. All but four were interrogated for more than three hours at a sitting. Seven described their involvement in the crime as coming to them in a "dream" or "vision." Seven were told they had failed polygraph tests. Like Sterling, all of them waived their Miranda rights. Despite all these hints that their confessions were lengthy and coercive, and despite the fact that they were mostly vulnerable individuals, none had any luck challenging their confessions before trial. The confessions were thought to be such powerful evidence of guilt that eight were convicted despite DNA tests at trial that in fact excluded them as the culprit.
The only way to accurately document who says what during an interrogation session is to record the whole thing. Such a record would also increase the reliability of confessions as evidence. More than 750 law enforcement jurisdictions across the United States are voluntarily recording entire interrogations. You might imagine that police investigators would resent such documentation of interrogations, yet studies have shown that once recording becomes standard practice, police officers and prosecutors become strong supporters of the reform. After all, a taped record can mean fewer frivolous motions to suppress and fewer false claims that suspects were unduly deceived or abused. Recording interrogations protects the innocent, aids police and prosecutors, and provides judges and jurors with the clearest evidence of what transpired during the interrogation. Currently, 11 states and the District of Columbia require or encourage electronic recording of at least some interrogations by statute, and seven more state supreme courts require or encourage the recording of interrogations. None of those states require judges to use the recordings—judges should also conduct hearings to carefully evaluate those recordings to assess reliability of interrogations before allowing them in court. After all, if the recording shows that police did contaminate a confession by feeding facts to a suspect, there should be a remedy in court.
Confessions were long thought to be the most powerful evidence of guilt imaginable. To be sure, we knew that if tortured, suspects might falsely confess, but now we know that seemingly more benign psychological techniques can also produce false confessions—even false confessions that seem uncannily accurate. Had it not been for the DNA tests, we would have rested secure that Frank Sterling had not only confessed but confessed to details that only the true killer could have known.
What is so unsettling about DNA exonerations is that they arise by happenstance in a few cases in which powerful new technology came along and allowed us to conclusively answer the question of guilt or innocence. Those unusual exonerations, though, should cause us to question what other seemingly strong evidence might also be flawed—including in the vast majority of criminal cases where no DNA testing can shed light on the identity of the culprit. Unless we insist that evidence be carefully documented and evaluated during criminal investigations, in other serious criminal cases truth will be irreversibly contaminated by fiction.
Clarification, April 14, 2011: This article originally used direct quotes by Frank Sterling without attributing them to a New York magazine article on Sterling's exoneration.
Brandon L. Garrett is a professor of law at the University of Virginia School of Law who studies criminal procedure, civil rights, and wrongful convictions. His new book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, was published by Harvard University Press. An interactive website about the book, called "Getting It Right," will soon be hosted on the Innocence Project website.