So-called false confessions have been a hot topic in academic and criminal defense circles, but Pennsylvania law enforcement is getting more engaged on the issue because the integrity of confessions affects the integrity of convictions, law enforcement leaders said.
“Police and prosecutors need to be on the front lines of making sure we are doing things the right way. … It’s up to us to do our jobs with integrity and maintain integrity in our investigations,” Montgomery County District Attorney Risa Vetri Ferman said.
Earlier this year, Ferman’s office started a pilot project in which interrogations by county detectives of murder suspects are now being recorded. Ferman said none of those recordings have been used in court yet, so it is too soon to say what the identifiable effects of the recordings are.
The ultimate success will be when the recordings are used in court and on appeal the appellate courts say, “‘You guys did things the right way,’” Ferman said.
But the point of the pilot program, Ferman said, is to develop the best practices for the recording of interrogations.
Another example of law enforcement’s increased engagement on the issue, Ferman said, is what may be the first-ever training on “conviction integrity” for an upcoming meeting of the Pennsylvania District Attorneys Association.
“My colleagues across Pennsylvania share my view this is important,” Ferman said.
Such discussions tend to be held in the realm of academics and more on the defense side, Ferman said.
Law enforcement and criminal defense attorneys share the common ground that false confessions are reflective of bad police work, said Steven A. Drizin, director of the Center on Wrongful Convictions at Northwestern University School of Law, at the recent Temple Law Review and Pennsylvania Innocence Project symposium, “False Confessions: Intersecting Science, Ethics and the Law.”
Of the 300 people who have been exonerated across the United States because of DNA evidence, 25 percent involved false confessions and incriminating statements, according to the Pennsylvania Innocence Project.
While Ferman does not like the term “false confession” and prefers to talk about the issue in terms of the integrity of convictions, she said she was drawn to the issue after serving as a member of the Joint State Government Commission’s advisory committee on wrongful convictions. The committee issued a report in the fall of 2011.
One of the top issues in preventing confessions by suspects who did not actually commit those crimes is whether such confessions should be recorded.
Marissa Boyers Bluestine of the Pennsylvania Innocence Project said many law enforcement agencies in Pennsylvania are looking into recording interrogations, but she said police chiefs have told her the main impediment is not having the resources to wire their interview rooms.
That’s “not a willingness issue,” Bluestine said. “I think the will is there when you realize there are almost 700 law enforcement agencies across the nation taping.”
While there was a legislative proposal for a mandatory taping law, Bluestine said she is more in favor of a grassroots approach in which law enforcement adopts a policy of recordings on its own.
“I’m not a big fan of legislation, because when you impose things top-down” people are not behind such changes as much when it took a “hammer to get them there,” Bluestine said.
Ferman also said legislation channeling law enforcement to conduct investigations into only one methodology is a bad idea.
“When you’re working in law enforcement — and you’re working on the street … you learn there are any number of ways to do” things, Ferman said. “Why would you try to hamstring police? The goal should be: do it right, do it properly, do it with integrity and do it fairly.”
Ferman said she is skeptical that recordings will prevent false confessions considering that Bruce Godschalk was convicted in her county of two counts of forcible rape and two counts of burglary; in part, because of a taped confession that he gave including information not available to the public.
But Bluestine said recording confessions is not about preventing false confessions but having recordings available to be able to argue that the confessions were unreliable.
Right now, the only grounds for confessions to be suppressed pretrial are if the confessions were given involuntarily or if the conditions under which confessions were taken when suspects were in custody were illegal, Bluestine said. But having recordings of interrogations widely available could set the stage for having confessions reviewed pretrial on the basis of their reliability, she said.
Further, having such recordings available would allow defense lawyers to argue during trials to judges and juries that the confessions were unreliable, Bluestine said.
Richard A. Leo, a professor at the University of San Francisco School of Law, said at the false confessions symposium that false confessions often are made voluntarily and are populated with nonpublic facts about the crime because those details have been supplied to a suspect through police questions.
“It’s not just someone said I did it,” Leo said. “It’s that this narrative contains everything you would expect in a plausible story, really the beginning, the middle, the end — a plot.”
Having such recordings also “helps protect the police as much as the suspect” because it protects the police from false allegations of physical abuse, Bluestine said.
“There’s no magic fairy dust that comes out of a video player, but it gives us the tool to address false confessions,” Bluestine said.
Having such recordings also is a tool for training, Bluestine said.
Police and prosecutors must be provided training on the best investigatory practices in order to ensure the integrity of investigations and thus the integrity of convictions, Ferman said.
But training budgets are being eviscerated, Ferman said.
One area of training that is important is ensuring that procedures for eyewitness identification, such as line-ups, photo arrays or having the witness shown someone right there at the scene, do not involve any suggestiveness by a law enforcement officer as to who a potential witness should pick, Ferman said.
Another issue is training on how to take statements, Ferman said.
Yet another issue is ensuring that all possible types of evidence are collected so that prosecutors do not have to rely on only one source of evidence, Ferman said.
Another issue on the horizon is a pending decision from the state Supreme Court about allowing expert testimony about the reliability of confessions.
The average person walking down the street inherently believes that if someone admitted to a crime, he or she must have done it, Bluestine said, and expert testimony can help them understand the circumstances under which a suspect might have falsely confessed.
Bluestine also said she thinks that they have an agreement with the district attorney association to favor legislation that would expand the period of time from 60 days to one year during which convicted defendants would have to seek post-conviction relief on the basis of new evidence.