Update (5/23) - My revisions are now complete (for this round of review)

Relevant Version History:

Version 4 - My second paper

Version 5 - My second paper with comments from my reviewer

Version 10 - My revised second paper

Criminal Confessions – A Proposal for Reform

1. Introduction

Confessions are a staple of the American criminal justice system. A confession is often the only, or at least the most determinative, piece of evidence in a case. For example, one source states that "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" [1]. In practice, a confession removes the need for any substantive evidence, and is therefore a favorite tool of prosecutors, who are evaluated based on their conviction rates and the total number of convictions that they achieve.

2. The Problem and Proposed Solution

The practice of using confessions in place of substantive evidence represents the worst of the criminal justice system and this practice should be stopped. First, many innocent individuals are wrongly convicted of crimes on the basis of false confessions. Second, the current confession system dramatically increases administrative costs, which are eventually borne by taxpayers. Next, the system creates perverse incentives for prosecutors to abuse confessions for personal gain. Finally, the system violates our long-held traditions and Constitutional values. It is the contention of this essay that, to remedy these problems, the criminal justice system should be modified to require corroborative evidence in all confession cases. This modification would alleviate the issues described above, while still preserving the structure of the current system.

3. Protecting the Innocent from Wrongful Conviction

Requiring corroborative evidence would dramatically reduce the number of innocent persons erroneously convicted of crimes. Opponents, however, believe that "an innocent person would never confess" at least because their lawyer would advise them not to if no solid evidence existed. But, not all people retain and follow the advice of their lawyers, and further, many confessions are obtained before counsel is even present. False confessions are particularly common among certain marginalized socioeconomic groups. For example, low-IQ persons, and immigrants who are not yet acclimated to the legal culture of the United States, may falsely confess when confronted by authority figures. Those with undiagnosed mental-illnesses may erroneously confess. “Drifters” may falsely confess from a utilitarian decision to minimize their expected penalty. Those who feel powerless may confess for the attention. Some individuals may confess to return to "stability" of the prison system. Finally, persons tangentially involved in organized crime may confess to cover for other members. Opponents argue that allowing confessions respects the autonomy of the accused person, i.e., their right to state their guilt, and provides the benefit of a reduced-length sentence (through plea-bargaining). However, the accused's rights must be balanced with the rights of broader society. Society has a right to protect the legitimacy of the criminal justice system by guarding against the conviction of innocent persons, and society's right outweighs the rights of the accused, at least in the absence of corroborative evidence.

4. Protecting the Taxpayer

javascript:submitEditForm('save', 'save') Requiring corroborative evidence in confession cases would dramatically reduce the cost of the criminal justice system. Fewer confessions would lead to fewer convictions, and thus, fewer persons who need to be incarcerated, rehabilitated, and monitored at tax payer expense. Opponent's argue that, these savings would be offset by the increased costs of bringing more cases to trial, but this argument rests on faulty logic. The only additional cases that would be brought to trial are those in which a confession is the primary evidence (since, under the proposed system, confessions would be allowed when there is corroborative evidence). However, these are the very cases that a prosecutor would not to bring to trial, since they are "losers." Therefore, a prosecutor would actually bring fewer cases to trial under the proposed system. Further, the added expense for the extra investigative work needed to dig up corroborative evidence would be dwarfed by the savings of having fewer total trials and fewer incarcerated persons.

5. The Prosecutor's Role

Opponents argue that, under the proposed system, a prosecutor would be forced to choose only a small fraction of cases on which to dedicate the resources necessary to find sufficient corroborative evidence for trial, and that this would therefore lead to discrimination based on race, gender, and other suspect classifications. However, this argument ignores that the current system, which relies on confessions without corroborative evidence, is itself discriminatory towards many of these same marginalized socioeconomic groups (see Section 3, above). Opponents further argue that by selecting only a small percentage of cases for trial, the prosecutor is acting improperly as the legislature. But our legislature has always made more activities criminal than could be possibly be prosecuted, and deciding which of those activities to actually prosecute has always been the responsibility of the prosecutor. Finally, requiring corroborative evidence would remove many of the "perverse incentives" that prosecutors currently have to abuse confessions as a way to quickly increase their conviction numbers.

6. Letting Criminals Go Free

If the proposed approach is adopted, some very dangerous criminals will undoubtedly remain free due to a lack of sufficient corroborative evidence, but, many innocent individuals will avoid wrongful conviction. As embodied by the "reasonable doubt" standard, our justice system is founded on the idea that it is better to let many guilty persons go free, than to let one innocent person be convicted. Further, our founder's believed that confessions are a particularly inaccurate way to separate the guilty from the innocent, as codified in the Constitution's fifth amendment, which guarantees that "no person ... shall be compelled in any criminal case to be a witness against himself."

7. Conclusion

The criminal justice system should be modified to require corroborative evidence in all confession cases. Under the present system, many innocent persons are wrongly convicted. Further, the current system passes on excessive costs to taxpayers, creates perverse incentives for the prosecutors to charge crimes in order to boost their personal statistics, and violates our long-held traditions and Constitutional values. The proposed system would remedy these problems, and still retain the familiarity of the current system.

-- By SaswatMisra - 23 May 2010

Saswat,

I don't know if you saw this article in Time magazine, but it relates to your topic and you might find it interesting.

Have a wonderful summer and let me know if you have any thoughts on the article.

Best, -David Goldin

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