Does Videotaping Interrogations Present a False Hope for Preventing Wrongful Convictions?

An op-ed piece by the Innocence Project reminds us once again that the cost of a wrongful conviction is not merely that an innocent person is incarcerated for a crime not committed – a tremendous atrocity unto itself. But there is also the additional problem of the actual guilty party going free, free to possibly perpetrate a crime again.

The problem is pervasive as well.  They write of a 1993 murder of a woman by her sister’s boyfriend.  As they note, “Unfortunately, this tragedy might have been prevented — but for the wrongful conviction of an innocent man for a previous crime.”

“That man was Jeff Deskovic, who at 16 was wrongfully convicted of raping and killing his 15-year-old classmate in 1990,” the article reports. “Despite the fact that DNA evidence recovered from the rape kit did not match Deskovic, the state convicted him based on a so-called confession. Had this interrogation been video-recorded, which is becoming standard practice nationwide, prosecutors might not have used it or a judge may have deemed it inadmissible.”

“The failure to recognize this false confession put police off the track of the real perpetrator, Cunningham, who was eventually identified through a DNA database search — but only after he had committed the additional murder of Morrison,” they continue.

The Innocence Project puts forward a number of reforms including the need to record entire interrogations in felony cases, eyewitness identification procedures, “performed by officers who don’t know who the suspect is so they can’t taint the identification of the witness.”

They also talk about the need for compensation for people who have been exonerated after falsely confessing or pleading guilty.  This was a big issue in the case we discussed, dealing with Brady material in the false conviction of John Thompson.

While I agree that new safeguards are needed to prevent things like faulty witness identification and false confessions, I do not think these measures go far enough. 

Tainted witness identification and police cluing in witnesses is indeed a preventable problem, but it fails to go far enough or to understand that people actually make very poor witnesses in general. 

Clinical testing shows a great variety in the accounts of events by witnesses.  And identification is notoriously unreliable.

False confessions are even more alarming because it is simply hard to ignore the words of the defendant themselves.  Unfortunately, I do not think that video evidence represents the safeguard that the Innocence Project expects.

What really should give pause is research performed by Professor Brandon Garrett.  His work examines various ways that incriminating facts can get into confessions, which then lead the police and prosecutors to unknowingly conclude that the individual knew facts only the individual at the crime scene could know. 

The striking thing about his research is the confessions, even to him, looked authentic.

I expected, and think people intuitively think, that a “false confession would look flimsy,” like someone saying simply, “I did it,” he said.

Instead, he said, “Almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term used in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”

The idea that the confessions could fool an expert observer should give one pause when evaluating confessions.

Locally, issues arising from the Bennie Moses trial continue to be concerning.

Mr. Moses was convicted of 62 counts of rape of his daughter and sentenced earlier this week to 830 years in prison.

One of the jurors in the case acknowledged that “she had asked her husband whether he could ever be coerced to admitting that he slept with their daughter if he did not do so.”

According to a brief filed by defense attorney Emily Fisher, “This juror further indicated that her husband told her there is no way he would ever admit to sleeping with his daughter if he did not do so, no matter what.”

Judge Mock denied the defense’s motion for a new trial based in part on the notion that the knowledge obtained from the inquiry was not novel, and he instead argued that incest, sex with one’s daughter, is one of the most taboo subjects in our society, thus the conclusion was obvious and common sense.

The problem the judge faces is that people have confessed to worse, and erroneously so.

Indeed, we see that even in a case where there is a video there are several problems:

First, the jury did not see the entire video, the judge viewed it.

Second, the jury has to make a subjective judgment about the confession.  In this case Mr. Moses appears to incriminate himself with the way in which he confessed as he spoke of  his daughter “teasing him all night in her nighties.”

We make the presumption that no person who had not had sex with his daughter would state it that way, but do we really know?  Are we qualified to make such an evaluation?

The Moses case at least presents enough other evidence of guilt that it seems likely that an innocent man was not sent away, but at the same time it illustrates the trickiness in which an average person must evaluate evidence.

Lay persons perhpas cannot imagine a situation in which they would confess to a crime they had not committed, but we know with absolute certainty that people do, and that even experts like Profession Garrett are fooled by the complexity of the confession.

—David M. Greenwald reporting