Law & Economics Workshop Series
presents
Talia Fisher
Tel Aviv University Law Faculty
The Confessional Penalty
(Talia Fisher & Issachar Rosen-Zvi)
Wednesday, February 4, 2009
12:30 – 2:00
Solarium (Room FA2) – Falconer Hall
Confessions hold great promise and grave peril. Speaking against one’s interests and assuming responsibility for criminal actions is regarded as the most compelling sign of guilt. Moreover, true confessions contain valuable information about the crime, its circumstances, and perpetrators, which assist law enforcement officials in their investigations. Thus, the confession has justly earned its title “the queen of evidence.” Yet research from the past few decades has shown that a considerable number of confessions are in fact false, ranking them high among the factors leading to wrongful conviction. While it is hard to assess the magnitude of social harm caused by the widespread and continual reliance on confessions in the criminal justice system, most studies clearly indicate that they are currently used way beyond the optimal social level. The reasons for this overuse are varied: confessions are readily available to law enforcement officers; the cost of obtaining them is quite low; and judges and jurors, who lack the means to distinguish between true and false confessions, by and large tend to convict based on a confession, greatly overestimating their reliability. Decision-makers have not been oblivious to the problem of false confessions. Various legal rules have emanated from both legislatures and courts over the years in an attempt to contend with this issue. Some, such as the Miranda rule, are designed to guarantee voluntariness of confessions, while others, such as corpus delicti and the trustworthiness doctrine, are aimed at excluding unreliable confessions at trial. But despite legislative and judicial initiatives, studies have unequivocally shown the persistence of the problem of false confessions, resulting in numerous wrongful convictions. The DNA revolution of the early 1990s substantiated these findings and ignited renewed academic interest in confessions. Attempts have been made, both by legal scholars and social scientists, to solve the problem of confession-based wrongful convictions; these include enhanced voluntariness requirements, such as mandatory videotaping of police interrogations and allowing expert witnesses to testify as to the voluntariness of a confession, as well as stricter corroboration rules and more rigorous reliability tests. The apparent differences among the various proposals notwithstanding, they all share one notable common feature: their attempt to use evidentiary means to repair the evidentiary flaws associated with confessions. In this article, we argue that evidentiary mechanisms, in their different variations, are unlikely to be successful. This is rooted in the fact that the entire criminal justice system is organized around confessions. Thus, further restricting admissibility through stricter voluntariness rules or corroboration requirements would not be sufficient to change the course of the criminal justice system. The lure of the confession is too strong to resist. Like the Sirens’ Song, it casts a spell on all those who hear it. Contending with the problem of false confessions at its core entails crafting a measure that both strikes at the incentives police interrogators bring with them into the interrogation room as well as provides the triers of fact with a reliable method of distinguishing between true and false confessions. This article proposes and outlines such a measure, one that relies on penal rather than evidentiary means. We suggest increasing the cost of confessions relative to other types of evidence by imposing a “penalty” on the state for using confessions to convict, in the form of a reduced sentence. This would be effected by introducing into the sentencing guidelines a mandatory reduction in the criminal sanction if the prosecution submits a confession as evidence. We will demonstrate how placing such a “sentencing price tag” on the use of confessions would alter the entire incentive structure within the criminal justice system: it would correct the current bias in favor of using confessions by making law enforcement officials internalize the social costs of confessions and thus induce them to find extrinsic evidence. Furthermore, we will also show how our model provides a sorting mechanism that would turn judges and jurors into forceful gatekeepers that can prevent false confessions from tainting the verdict.
Talia Fisher teaches evidence law, ADR and negotiation theory at Tel Aviv University Law faculty. She earned her LL.B., LL.M., and PhD in Law (LL.D.) from the Hebrew University, Jerusalem. Her primary research interests include private supply of legal institutions and probabilistic applications in procedural law. Her recent articles include Overcoming Procedural Boundaries, 94 Virginia Law Review (with Issi Rosen-Zvi) and The Boundaries of Plea Bargaining: Negotiating the Standard of Proof, 98 Journal of Criminal Law and Criminology.
A light lunch will be provided.
For more workshop information, please contact Nadia Gulezko at n.gulezko@utoronto.ca.
