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SaswatMisraSecondPaper 7 - 20 May 2010 - Main.SaswatMisra
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< | Mike - thanks for your feedback. I am working on making changes in this revised version. (Your comments are saved in the previous revision). I'll remove this header when I am done my edits. | >
> | Update (5/19) - This essay below is my revised second paper based on the comments of my reviewer. - Saswat | | | | |
<
< | Criminal Confessions as Evidence: A Failure of the Adversarial System
1. Confessions in Criminal Law
Prosecuting attorneys and the accused are forced into direct competition in the American criminal justice system. Neither party seeks the truth per se. Instead, each party stretches the evidence, facts, and law to advance their case, constrained only by a legal duty to act in “good faith” and a practical need to maintain credibility. The arbiter, a judge or jury, decides the accused party’s guilt by comparing the evidence, facts, and law to some variant of the “reasonable doubt” standard.
The adversarial system is imperfect. The prosecutor and the accused often have very different resources available to make their case, while the arbiter is inevitably influenced by his own biases and idiosyncrasies. Still, society generally accepts the adversarial system of criminal justice as legitimate despite its imperfections.
While imperfect systems may nonetheless be viable, the adversarial system breaks down completely when criminal confessions are used in place of substantive evidence in criminal trials. When a confession is given, the accused party “gives up,” while the prosecutor stays focused on "winning" rather than on determining the truth. Worse still, the arbiter, lacking substantive evidence, is left only with the almost irrelevant notion that "an innocent person would almost never confess" in rendering a verdict.
As a result, innocent people are convicted of crimes that they did not commit. While wrongful conviction obviously harms the accused, it also harms society. Wrongful convictions drain resources (incarceration and rehabilitation are expensive), and corrode the legitimacy of the criminal system. | >
> | Criminal Confessions – A Proposal for Reform | | | | |
<
< | 2. Why are Confessions Admissible as Evidence? | | | | |
<
< | The fifth amendment of the Constitution guarantees that "no person ... shall be compelled in any criminal case to be a witness against himself." This clause reflects a historical distrust of confessions, and the methods used to obtain them, in American and English law. Why then, are confessions allowed as evidence in criminal trials? Confessions are allowed because they are practical; they reduce trial costs, thereby allowing more potentially dangerous persons to be convicted using the same resources. | | | | |
<
< | Confessions mitigate the prosecutor’s need to acquire corroborative evidence, and are such a staple that they often serve as the only, or most prevalent, piece of evidence at trial. For example, see ([1, page 14, quoting McCormick? , 1972])("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"). It has been estimated that a conviction would not be possible in 70-percent of cases in which a confession is used, without the confession present. See ([1, page 15]). In short, confessions are low-cost, high-reward tools for prosecutors, who are evaluated based on their conviction rates and the total number of convictions that they achieve. | >
> | 1. Introduction | | | | |
<
< | 3. False Confessions are Common | | | | |
<
< | An adult, who is educated, mentally-healthy, and economically-stable, would not typically confess to crimes that he did not commit. However, among certain marginalized socioeconomic groups false confessions are common. | >
> | 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. | | | | |
<
< | People who have a low-IQ or who are mentally-challenged may confess to crimes they did not commit if agitated and confronted by authority figures. This situation could easily be worsened by police interrogation techniques, which often encourage intimidation and application of psychological pressure to elicit confessions. Disadvantaged immigrants, especially those with language barriers, who are not yet acclimated to the legal culture of the United States, may confess for related reasons. Those with undiagnosed mental-illness may erroneously confess, actually believing that they committed the crime. | | | | |
<
< | Social outcasts and “drifters” may view the legal system as arbitrary, or as against them, and may confess from a utilitarian decision to minimize their expected penalty. Further, those who feel powerless and voiceless in society may enjoy the short-lived attention that confessing brings them (especially if the alleged crime is highly visible). Some individuals may confess because they find stability in the prison system and want to return to it. Finally, those involved even tangentially in organized crime may confess to deter investigation which could uncover the serious crimes of other members of the organization. | >
> | 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, social science shows that 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. | | | | |
<
< | 4. False Confessions and the Prosecutor | | | | |
<
< | Unfortunately, in the adversarial system, an overworked prosecutor has little incentive to dig beneath the surface of a confession and check for authenticity (for example, in the form of corroborative evidence). Doing so could hurt her conviction rate, and would exhaust her limited resources on a case that is “solved”. Further, the victimized groups of people described above are unlikely to mobilize or complain as a cohesive whole over abuses of the confession system, leaving the prosecutor with no reason to pursue further evidence beyond “the pursuit of justice.” | >
> | 3. Protecting the Innocent from Wrongful Conviction | | | | |
<
< | 5. False Confessions and the Arbiter | >
> | 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 confessions should be allowed since doing so 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. | | | | |
<
< | The lack of corroborative evidence in confession cases makes it difficult for the arbiter to fulfill his role as a safeguard in the adversarial system. Without any other evidence to go on, the arbiter must base his "reasonable doubt" decision solely on: | | | | |
<
< | "the probability that the accused party is innocent given than he confessed." | | | | |
<
< | As stated in Section 3, above, this probability may often be large enough to merit serious contemplation. Unfortunately, very few arbiters will find this quantity intuitive. Instead, the arbiter, especially if it is a jury consisting of lay persons, will likely evaluate a more intuitive, but almost irrelevant, quantity | >
> | 4. Protecting the Taxpayer | | | | |
<
< | "the probability that an accused person would confess given that they are innocent." | >
> | 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. | | | | |
<
< | Guided by the principle that "an innocent person would almost never confess," the arbiter will likely convict the accused under this intuitive, but largely irrelevant, pretense. | >
> | 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. Conclusion | | | | |
<
< | The safeguards of the adversarial system break down when an accused party confesses to a crime. Criminal confessions, when presented in place of actual evidence, delegitimize the criminal justice system. Further, false confessions happen with regularity within certain groups, resulting in a significant portion of all confessions proffered as evidence. Requiring corroborative evidence in criminal confession cases would mean fewer easy convictions, and would force prosecutors to decide which crimes are really worth pursuing. | >
> | 6. Maintaining Tradition and Values | | | | |
>
> | Opponents argue that if the proposed approach is adopted, hardened criminals will remain at large in society due to a lack of corroborative evidence. But, 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 distrust of confessions is embodied 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 - 09 Apr 2010 | >
> | -- By SaswatMisra - 19 May 2010 | | | |
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SaswatMisraSecondPaper 6 - 26 Apr 2010 - Main.SaswatMisra
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Mike - thanks for your feedback. I am working on making changes in this revised version. (Your comments are saved in the previous revision). I'll remove this header when I am done my edits.
| | | Criminal Confessions as Evidence: A Failure of the Adversarial System | | | The safeguards of the adversarial system break down when an accused party confesses to a crime. Criminal confessions, when presented in place of actual evidence, delegitimize the criminal justice system. Further, false confessions happen with regularity within certain groups, resulting in a significant portion of all confessions proffered as evidence. Requiring corroborative evidence in criminal confession cases would mean fewer easy convictions, and would force prosecutors to decide which crimes are really worth pursuing.
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<
< | Food for thought from your editor:
The changes I made in this paper were largely aesthetic. Removed some quotes (and I’m confused as to the quotes/italics in the stand alone lines in section 5…is that citing from somewhere? If so, include the citation, at the moment it appears to simply be extra emphasis), got rid of some qualifications and vague quantities that made the author sound less sure than necessary. 1000 words on the dot (including section headings/title).
I think you’ve tapped an extremely interesting and important subject in this paper, the use of confessions/plea bargains in the criminal justice system, but your argument is a little scattered. In the first section you express a concern with wrongful convictions, whereas at the end you conclude confessions should be supplemented by corroborating evidence, and in the in-between you make the argument that confessions ought to be disregarded as evidence on the whole. Structurally, you should frame your dilemma at the outset, and propose a solution. Then, in the first part of the body of your work, explain why or how the problem exists (why is the problem actually a problem). Following this, introduce your solution, explain how it will alleviate the problem, and defend it as the best possible solution against all comers. You’re advocating for an immense change, and there are many angles opponents to this idea could approach you from. I’ll try to provide a few below.
While it may be true that wrongful convictions cost the system resources, it is important to weigh the benefits of confessions as evidence fairly. A wonderfully high percent of criminal cases never reach the trial stage due to being settled by plea bargains; how would the cost of trying all those cases (because they cannot be settled out of court with a plea bargain) stack up against the money saved on incarceration and rehabilitation of those found to be innocent who would have confessed? If every case is fully tried, wouldn’t that overrun our system, rendering it useless? Isn’t a functioning, albeit imperfect, system better than a non-functioning system?
If a full 70% of those who confess could not be convicted without the confessions, why would they admit to the crime unless they were reasonably sure they could in fact be convicted? Doesn’t that seem to suggest the accused actually committed the crimes they’re confessing to? (I’m assuming a basic level of competence on the part of the defense lawyers, that they’re capable of recognizing a case they can win and will not advise their clients to confess in such situations) Does that figure relate to the percent of prosecutions that would be unwinnable without a confession “as is” when they come before the arbiter, or the percent of cases that would be unwinnable even after full discovery? Additionally, if an innocent does want to confess in order to receive a guaranteed reduced sentence (as opposed to facing the uncertainty of a full trial) isn’t it in their interest to be allowed to do so?
You mention at the end of your paper (a point I believe ought to be brought in sooner) that lacking confessions as permissible evidence, prosecutors will be forced to decide which crimes are really worth punishing. Isn’t that the role of the electorate acting through their legislative bodies? Aren’t these things “criminal” because the people willed them to be so, and are decidedly worthy of punishment? Is it really the role of the prosecutor to decide who merits punishment? Doesn’t this bring in an even greater likelihood of arbitrary unfairness? Racism, sexism, class stereotypes, etc. could all affect who a prosecutor chooses to take to task.
Finally, think of the burden this rule would put on public defenders. If they lost the ability to plea bargain and were forced to try every case fully their already limited resources would be completely exhausted, and then some. Doesn’t the tool of plea bargaining allow defenders strapped for resources concentrate more fully on the cases they believe are winnable? | | |
-- By SaswatMisra - 09 Apr 2010 |
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SaswatMisraSecondPaper 5 - 24 Apr 2010 - Main.MichaelHilton
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Criminal Confessions as Evidence: A Failure of the Adversarial System | | | 1. Confessions in Criminal Law | |
<
< | The prosecuting attorney and the accused are forced into direct competition in the criminal justice system. Neither party seeks the truth per se. Rather, each party stretches the evidence, facts, and law to advance their cause, constrained only by a legal duty to act in “good faith” and a practical need to maintain credibility. The arbiter (i.e., judge and/or jury) decides the accused party’s guilt by comparing the evidence, facts, and law to some variant of the “reasonable doubt” standard. | >
> | Prosecuting attorneys and the accused are forced into direct competition in the American criminal justice system. Neither party seeks the truth per se. Instead, each party stretches the evidence, facts, and law to advance their case, constrained only by a legal duty to act in “good faith” and a practical need to maintain credibility. The arbiter, a judge or jury, decides the accused party’s guilt by comparing the evidence, facts, and law to some variant of the “reasonable doubt” standard. | | | | |
<
< | The adversarial system is, of course, imperfect. The prosecutor and the accused often have very different resources available to make their case. The arbiter is inevitably influenced by his own biases and idiosyncrasies. Still, society generally accepts the adversarial system of criminal justice as legitimate despite these (and many other) imperfections. | >
> | The adversarial system is imperfect. The prosecutor and the accused often have very different resources available to make their case, while the arbiter is inevitably influenced by his own biases and idiosyncrasies. Still, society generally accepts the adversarial system of criminal justice as legitimate despite its imperfections. | | | | |
>
> | While imperfect systems may nonetheless be viable, the adversarial system breaks down completely when criminal confessions are used in place of substantive evidence in criminal trials. When a confession is given, the accused party “gives up,” while the prosecutor stays focused on "winning" rather than on determining the truth. Worse still, the arbiter, lacking substantive evidence, is left only with the almost irrelevant notion that "an innocent person would almost never confess" in rendering a verdict. | | | | |
<
< | However, it is the contention of this essay that the adversarial system breaks down completely when criminal confessions are used in place of substantive evidence in criminal trials. When a confession is given, the accused party “gives up,” while the prosecutor stays focused on "winning" rather than on determining the truth. Worse still, the arbiter, lacking substantive evidence, is left only with his almost irrelevant intuition that "an innocent person would almost never confess" in rendering a verdict.
As a result, innocent people are convicted of crimes that they did not commit. While wrongful conviction obviously harms the accused, it also harms society. Wrongful convictions drain resources (incarceration and rehabilitation are expensive), corrode the legitimacy of the criminal system, and allow actual criminals to remain free and unchecked. | >
> | As a result, innocent people are convicted of crimes that they did not commit. While wrongful conviction obviously harms the accused, it also harms society. Wrongful convictions drain resources (incarceration and rehabilitation are expensive), and corrode the legitimacy of the criminal system. | | |
2. Why are Confessions Admissible as Evidence?
| |
<
< | The fifth amendment of the Constitution guarantees that "no person ... shall be compelled in any criminal case to be a witness against himself." This clause reflects a historical distrust of confessions, and the methods used to obtain them, in American and English law. Why then, are confessions allowed as evidence in criminal trials? | >
> | The fifth amendment of the Constitution guarantees that "no person ... shall be compelled in any criminal case to be a witness against himself." This clause reflects a historical distrust of confessions, and the methods used to obtain them, in American and English law. Why then, are confessions allowed as evidence in criminal trials? Confessions are allowed because they are practical; they reduce trial costs, thereby allowing more potentially dangerous persons to be convicted using the same resources. | | | | |
<
< | Confessions are allowed because they are practical. Confessions reduce trial costs, thereby allowing more potentially dangerous persons to be convicted using the same resources. Importantly, confessions mitigate the prosecutor’s need to acquire corroborative evidence, and so a confession is often the only or most prevalent piece of evidence at trial. For example, see ([1, page 14, quoting McCormick, 1972])("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"). It has been estimated that a conviction would not be possible in 70-percent of cases in which a confession is used, without the confession present. See ([1, page 15]). In short, confessions are low-cost, high-reward cases for prosecutors, who are evaluated based on their conviction rates and the total number of convictions that they achieve. | >
> | Confessions mitigate the prosecutor’s need to acquire corroborative evidence, and are such a staple that they often serve as the only, or most prevalent, piece of evidence at trial. For example, see ([1, page 14, quoting McCormick? , 1972])("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"). It has been estimated that a conviction would not be possible in 70-percent of cases in which a confession is used, without the confession present. See ([1, page 15]). In short, confessions are low-cost, high-reward tools for prosecutors, who are evaluated based on their conviction rates and the total number of convictions that they achieve. | | |
3. False Confessions are Common | |
<
< | Educated, mentally-healthy, and economically-prosperous adults generally do not confess to crimes that they did not commit. However, among certain socioeconomic groups, likely numbering in the millions, false confessions are common.
People who have a low-IQ or who are (non-obviously) mentally-challenged may confess to crimes they did not commit while agitated and confronted by authority figures (a situation worsened by police interrogation techniques, which often encourage intimidation and application of psychological pressure to elicit confessions). Disadvantaged immigrants, who additionally are not yet acclimated to the legal culture of the United States, may confess for related reasons. Those with undiagnosed mental-illness may confess, actually believing that they committed the crime. | >
> | An adult, who is educated, mentally-healthy, and economically-stable, would not typically confess to crimes that he did not commit. However, among certain marginalized socioeconomic groups false confessions are common. | | | | |
>
> | People who have a low-IQ or who are mentally-challenged may confess to crimes they did not commit if agitated and confronted by authority figures. This situation could easily be worsened by police interrogation techniques, which often encourage intimidation and application of psychological pressure to elicit confessions. Disadvantaged immigrants, especially those with language barriers, who are not yet acclimated to the legal culture of the United States, may confess for related reasons. Those with undiagnosed mental-illness may erroneously confess, actually believing that they committed the crime. | | | | |
<
< | Social outcasts and “drifters” are likely to view the legal system as arbitrary, or worse, as against them, and may confess from a utilitarian decision to minimize their expected penalty. Further, those who feel powerless and voiceless in society may enjoy the short-lived attention that confessing brings them (especially if the alleged crime is highly visible). Some individuals may confess because they find stability in the prison system and want to return to it. Finally, those involved even tangentially in organized crime may confess to cover for the serious crimes of other members of the organization. | >
> | Social outcasts and “drifters” may view the legal system as arbitrary, or as against them, and may confess from a utilitarian decision to minimize their expected penalty. Further, those who feel powerless and voiceless in society may enjoy the short-lived attention that confessing brings them (especially if the alleged crime is highly visible). Some individuals may confess because they find stability in the prison system and want to return to it. Finally, those involved even tangentially in organized crime may confess to deter investigation which could uncover the serious crimes of other members of the organization. | | |
4. False Confessions and the Prosecutor | |
<
< | Unfortunately, in the adversarial system, an overworked prosecutor has little incentive to dig beneath the surface of a confession and check for authenticity (for example, in the form of corroborative evidence). Doing so could hurt her conviction rate, and would exhaust her limited resources on a case that is “solved,” in the bureaucratic sense. Further, the victimized groups of people described above are unlikely to mobilize or complain as a cohesive whole over even egregious and systemic abuses of the confession system. | >
> | Unfortunately, in the adversarial system, an overworked prosecutor has little incentive to dig beneath the surface of a confession and check for authenticity (for example, in the form of corroborative evidence). Doing so could hurt her conviction rate, and would exhaust her limited resources on a case that is “solved”. Further, the victimized groups of people described above are unlikely to mobilize or complain as a cohesive whole over abuses of the confession system, leaving the prosecutor with no reason to pursue further evidence beyond “the pursuit of justice.” | | | 5. False Confessions and the Arbiter | | | "the probability that the accused party is innocent given than he confessed." | |
<
< | As stated in Section 3, above, this probability may often be large enough to merit serious contemplation. Unfortunately, very few arbiters will find this quantity intuitive. Instead, the arbiter, especially if it is a jury consisting of lay persons, will likely evaluate a much more intuitive, but almost irrelevant, quantity | >
> | As stated in Section 3, above, this probability may often be large enough to merit serious contemplation. Unfortunately, very few arbiters will find this quantity intuitive. Instead, the arbiter, especially if it is a jury consisting of lay persons, will likely evaluate a more intuitive, but almost irrelevant, quantity | | | "the probability that an accused person would confess given that they are innocent." | |
<
< | Guided by the principle that "an innocent person would almost never confess," the accused will likely be convicted under an intuitive, but irrelevant, pretense. | >
> | Guided by the principle that "an innocent person would almost never confess," the arbiter will likely convict the accused under this intuitive, but largely irrelevant, pretense. | | |
6. Conclusion | |
<
< | The safeguards of the adversarial system break down when an accused party confesses to a crime. Contrary to common thinking, criminal confessions, when presented in place of actual evidence, delegitimize the criminal justice system. Further, false confessions happen with regularity within certain groups, having populations in the millions. Requiring corroborative evidence in criminal confession cases would mean fewer “easy” convictions, and would force prosecutors to decide which crimes are really worth pursuing. | >
> | The safeguards of the adversarial system break down when an accused party confesses to a crime. Criminal confessions, when presented in place of actual evidence, delegitimize the criminal justice system. Further, false confessions happen with regularity within certain groups, resulting in a significant portion of all confessions proffered as evidence. Requiring corroborative evidence in criminal confession cases would mean fewer easy convictions, and would force prosecutors to decide which crimes are really worth pursuing.
Food for thought from your editor:
The changes I made in this paper were largely aesthetic. Removed some quotes (and I’m confused as to the quotes/italics in the stand alone lines in section 5…is that citing from somewhere? If so, include the citation, at the moment it appears to simply be extra emphasis), got rid of some qualifications and vague quantities that made the author sound less sure than necessary. 1000 words on the dot (including section headings/title).
I think you’ve tapped an extremely interesting and important subject in this paper, the use of confessions/plea bargains in the criminal justice system, but your argument is a little scattered. In the first section you express a concern with wrongful convictions, whereas at the end you conclude confessions should be supplemented by corroborating evidence, and in the in-between you make the argument that confessions ought to be disregarded as evidence on the whole. Structurally, you should frame your dilemma at the outset, and propose a solution. Then, in the first part of the body of your work, explain why or how the problem exists (why is the problem actually a problem). Following this, introduce your solution, explain how it will alleviate the problem, and defend it as the best possible solution against all comers. You’re advocating for an immense change, and there are many angles opponents to this idea could approach you from. I’ll try to provide a few below.
While it may be true that wrongful convictions cost the system resources, it is important to weigh the benefits of confessions as evidence fairly. A wonderfully high percent of criminal cases never reach the trial stage due to being settled by plea bargains; how would the cost of trying all those cases (because they cannot be settled out of court with a plea bargain) stack up against the money saved on incarceration and rehabilitation of those found to be innocent who would have confessed? If every case is fully tried, wouldn’t that overrun our system, rendering it useless? Isn’t a functioning, albeit imperfect, system better than a non-functioning system?
If a full 70% of those who confess could not be convicted without the confessions, why would they admit to the crime unless they were reasonably sure they could in fact be convicted? Doesn’t that seem to suggest the accused actually committed the crimes they’re confessing to? (I’m assuming a basic level of competence on the part of the defense lawyers, that they’re capable of recognizing a case they can win and will not advise their clients to confess in such situations) Does that figure relate to the percent of prosecutions that would be unwinnable without a confession “as is” when they come before the arbiter, or the percent of cases that would be unwinnable even after full discovery? Additionally, if an innocent does want to confess in order to receive a guaranteed reduced sentence (as opposed to facing the uncertainty of a full trial) isn’t it in their interest to be allowed to do so? | | | | |
>
> | You mention at the end of your paper (a point I believe ought to be brought in sooner) that lacking confessions as permissible evidence, prosecutors will be forced to decide which crimes are really worth punishing. Isn’t that the role of the electorate acting through their legislative bodies? Aren’t these things “criminal” because the people willed them to be so, and are decidedly worthy of punishment? Is it really the role of the prosecutor to decide who merits punishment? Doesn’t this bring in an even greater likelihood of arbitrary unfairness? Racism, sexism, class stereotypes, etc. could all affect who a prosecutor chooses to take to task. | | | | |
>
> | Finally, think of the burden this rule would put on public defenders. If they lost the ability to plea bargain and were forced to try every case fully their already limited resources would be completely exhausted, and then some. Doesn’t the tool of plea bargaining allow defenders strapped for resources concentrate more fully on the cases they believe are winnable? | | |
-- By SaswatMisra - 09 Apr 2010 |
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SaswatMisraSecondPaper 4 - 20 Apr 2010 - Main.SaswatMisra
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| META TOPICPARENT | name="SecondPaper" |
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Criminal Confessions as Evidence: A Failure of the Adversarial System | | | 1. Confessions in Criminal Law | |
<
< | The prosecuting attorney and the accused are pitted in direct competition in the criminal justice system. Neither party seeks the truth per se. Rather, each party stretches the evidence, facts, and law to represent their cause, constrained only by a legal duty to act in “good faith” and a practical need to maintain credibility. The arbiter (i.e., judge and/or jury) decides the accused party’s guilt by comparing the evidence, facts, and law to some variant of the “reasonable doubt” standard. | >
> | The prosecuting attorney and the accused are forced into direct competition in the criminal justice system. Neither party seeks the truth per se. Rather, each party stretches the evidence, facts, and law to advance their cause, constrained only by a legal duty to act in “good faith” and a practical need to maintain credibility. The arbiter (i.e., judge and/or jury) decides the accused party’s guilt by comparing the evidence, facts, and law to some variant of the “reasonable doubt” standard. | | | | |
<
< | The adversarial system is, of course, imperfect. The prosecutor and the accused often have very different resources available to present their case. The arbiter is inevitably influenced by his own biases and idiosyncrasies. Still, society generally accepts the adversarial system of criminal justice as legitimate despite these (and many other) imperfections. | >
> | The adversarial system is, of course, imperfect. The prosecutor and the accused often have very different resources available to make their case. The arbiter is inevitably influenced by his own biases and idiosyncrasies. Still, society generally accepts the adversarial system of criminal justice as legitimate despite these (and many other) imperfections. | | | | |
<
< | However, it is the contention of this essay that the adversarial system breaks down completely when criminal confessions are used in place of substantive evidence in criminal trials. When a confession is given, the accused party “gives up,” while the prosecutor stays focused on "winning" rather than on determining the truth. Worse still, the arbiter, lacking more substantive evidence, is left only with his almost irrelevant intuition that "an innocent person would almost never confess" in rendering a verdict. | >
> | However, it is the contention of this essay that the adversarial system breaks down completely when criminal confessions are used in place of substantive evidence in criminal trials. When a confession is given, the accused party “gives up,” while the prosecutor stays focused on "winning" rather than on determining the truth. Worse still, the arbiter, lacking substantive evidence, is left only with his almost irrelevant intuition that "an innocent person would almost never confess" in rendering a verdict. | | | As a result, innocent people are convicted of crimes that they did not commit. While wrongful conviction obviously harms the accused, it also harms society. Wrongful convictions drain resources (incarceration and rehabilitation are expensive), corrode the legitimacy of the criminal system, and allow actual criminals to remain free and unchecked. | | |
The fifth amendment of the Constitution guarantees that "no person ... shall be compelled in any criminal case to be a witness against himself." This clause reflects a historical distrust of confessions, and the methods used to obtain them, in American and English law. Why then, are confessions allowed as evidence in criminal trials? | |
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< | Confessions are allowed because they are practical. Confessions reduce trial costs, thereby allowing more potentially dangerous persons to be convicted using the same resources. Importantly, confessions mitigate the prosecutor’s need to acquire corroborative evidence, and so a confession is often the only or most prevalent piece of evidence at trial. For example, see ([1, page 14, quoting McCormick, 1972])("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"). In cases in which confessions are used, it has been estimated that a conviction would not be possible in 70-precent without the confession. See ([1, page 15]). In short, confessions are low-cost, high-reward cases for prosecutors, who are evaluated based on their conviction rates and the total number of convictions that they achieve. | >
> | Confessions are allowed because they are practical. Confessions reduce trial costs, thereby allowing more potentially dangerous persons to be convicted using the same resources. Importantly, confessions mitigate the prosecutor’s need to acquire corroborative evidence, and so a confession is often the only or most prevalent piece of evidence at trial. For example, see ([1, page 14, quoting McCormick, 1972])("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"). It has been estimated that a conviction would not be possible in 70-percent of cases in which a confession is used, without the confession present. See ([1, page 15]). In short, confessions are low-cost, high-reward cases for prosecutors, who are evaluated based on their conviction rates and the total number of convictions that they achieve. | | | | |
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< | 3. False Confessions are Common within Certain Groups | >
> | 3. False Confessions are Common | | | Educated, mentally-healthy, and economically-prosperous adults generally do not confess to crimes that they did not commit. However, among certain socioeconomic groups, likely numbering in the millions, false confessions are common. | |
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< | People who are have low-IQ or who are non-obviously mentally-challenged may confess to crimes they did not commit while agitated and confronted by authority figures (a situation worsened by police interrogation techniques, which often encourage intimidation and application of psychological pressure to elicit confessions). Disadvantaged immigrants, who additionally are not yet acclimated to the legal culture of the United States, may confess for related reasons. Those with undiagnosed mental-illness may confess, actually believing that they committed the crime. | >
> | People who have a low-IQ or who are (non-obviously) mentally-challenged may confess to crimes they did not commit while agitated and confronted by authority figures (a situation worsened by police interrogation techniques, which often encourage intimidation and application of psychological pressure to elicit confessions). Disadvantaged immigrants, who additionally are not yet acclimated to the legal culture of the United States, may confess for related reasons. Those with undiagnosed mental-illness may confess, actually believing that they committed the crime. | | |
Social outcasts and “drifters” are likely to view the legal system as arbitrary, or worse, as against them, and may confess from a utilitarian decision to minimize their expected penalty. Further, those who feel powerless and voiceless in society may enjoy the short-lived attention that confessing brings them (especially if the alleged crime is highly visible). Some individuals may confess because they find stability in the prison system and want to return to it. Finally, those involved even tangentially in organized crime may confess to cover for the serious crimes of other members of the organization. | | | 6. Conclusion | |
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< | The safeguards of the adversarial system break down when an accused party confesses to a crime. Contrary to common thinking, criminal confessions, when presented in place of actual evidence, delegitimize the criminal justice system. Further, false confessions happen with regularity within certain groups of people, numbering in the millions. Requiring corroborative evidence in criminal confession cases would mean fewer “easy” convictions, and would force prosecutors to decide which crimes are really worth pursuing. | >
> | The safeguards of the adversarial system break down when an accused party confesses to a crime. Contrary to common thinking, criminal confessions, when presented in place of actual evidence, delegitimize the criminal justice system. Further, false confessions happen with regularity within certain groups, having populations in the millions. Requiring corroborative evidence in criminal confession cases would mean fewer “easy” convictions, and would force prosecutors to decide which crimes are really worth pursuing. | | |
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SaswatMisraSecondPaper 3 - 19 Apr 2010 - Main.SaswatMisra
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Criminal Confessions as Evidence: A Failure of the Adversarial System | | | 1. Confessions in Criminal Law | |
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< | The prosecuting attorney and the accused are pitted in direct competition in the (adversarial) criminal justice system. Neither party seeks the truth per se. Rather, each party stretches the evidence, facts, and law to represent their cause, constrained only by a legal duty to act in “good faith” and a practical need to maintain credibility. The arbiter (i.e., judge and/or jury) decides the accused party’s guilt by comparing the evidence, facts, and law to some variant of the “reasonable doubt” standard. | >
> | The prosecuting attorney and the accused are pitted in direct competition in the criminal justice system. Neither party seeks the truth per se. Rather, each party stretches the evidence, facts, and law to represent their cause, constrained only by a legal duty to act in “good faith” and a practical need to maintain credibility. The arbiter (i.e., judge and/or jury) decides the accused party’s guilt by comparing the evidence, facts, and law to some variant of the “reasonable doubt” standard. | | | The adversarial system is, of course, imperfect. The prosecutor and the accused often have very different resources available to present their case. The arbiter is inevitably influenced by his own biases and idiosyncrasies. Still, society generally accepts the adversarial system of criminal justice as legitimate despite these (and many other) imperfections.
However, it is the contention of this essay that the adversarial system breaks down completely when criminal confessions are used in place of substantive evidence in criminal trials. When a confession is given, the accused party “gives up,” while the prosecutor stays focused on "winning" rather than on determining the truth. Worse still, the arbiter, lacking more substantive evidence, is left only with his almost irrelevant intuition that "an innocent person would almost never confess" in rendering a verdict. | |
<
< | As a result, innocent people are convicted of crimes that they did not commit. While wrongful conviction obviously harms the accused, it also harms society. Wrongful convictions drain societal resources (incarceration and rehabilitation are expensive), corrode the legitimacy of the criminal system, and allow actual criminals to remain free and unchecked. | >
> | As a result, innocent people are convicted of crimes that they did not commit. While wrongful conviction obviously harms the accused, it also harms society. Wrongful convictions drain resources (incarceration and rehabilitation are expensive), corrode the legitimacy of the criminal system, and allow actual criminals to remain free and unchecked. | | |
2. Why are Confessions Admissible as Evidence? | | | Educated, mentally-healthy, and economically-prosperous adults generally do not confess to crimes that they did not commit. However, among certain socioeconomic groups, likely numbering in the millions, false confessions are common. | |
<
< | People who are have low-IQ or who are non-obviously mentally-challenged may confess to crimes they did not commit while agitated from having been hauled into an unfamiliar environment and confronted by authority figures (a situation worsened by police interrogation techniques, which often encourage intimidation and application of psychological pressure to elicit confessions). Disadvantaged immigrants, who additionally are not yet acclimated to the legal culture of the United States, may confess for related reasons. Those with undiagnosed mental-illness may confess, actually believing that they committed the crime. | >
> | People who are have low-IQ or who are non-obviously mentally-challenged may confess to crimes they did not commit while agitated and confronted by authority figures (a situation worsened by police interrogation techniques, which often encourage intimidation and application of psychological pressure to elicit confessions). Disadvantaged immigrants, who additionally are not yet acclimated to the legal culture of the United States, may confess for related reasons. Those with undiagnosed mental-illness may confess, actually believing that they committed the crime. | | | | |
<
< | Social outcasts and “drifters” are likely to view the legal system as arbitrary, or worse, as against them, and may confess from a utilitarian decision to minimize their expected penalty. Further, those who feel powerless and voiceless in society may enjoy the short-lived attention that confessing brings them (especially if the alleged crime is particularly visible). Some individuals may confess because they find familiarity and stability in the prison system and want to return to it. Finally, those involved even tangentially in organized crime may confess to cover for the serious crimes of other members of the organization. | >
> | Social outcasts and “drifters” are likely to view the legal system as arbitrary, or worse, as against them, and may confess from a utilitarian decision to minimize their expected penalty. Further, those who feel powerless and voiceless in society may enjoy the short-lived attention that confessing brings them (especially if the alleged crime is highly visible). Some individuals may confess because they find stability in the prison system and want to return to it. Finally, those involved even tangentially in organized crime may confess to cover for the serious crimes of other members of the organization. | | |
4. False Confessions and the Prosecutor | |
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< | Unfortunately, in the adversarial system, an overworked prosecutor’s office has little incentive to dig beneath the surface of a confession and check for authenticity (for example, in the form of corroborative evidence). Doing so, would only hurt the office’s conviction rate, and, at a minimum, the prosecutor would have to spend her limited resources on a case that is “solved,” in the legal sense. Further, the victimized groups of people described above are unlikely to mobilize or complain as a cohesive whole over even egregious and systemic abuses of the confession system. | >
> | Unfortunately, in the adversarial system, an overworked prosecutor has little incentive to dig beneath the surface of a confession and check for authenticity (for example, in the form of corroborative evidence). Doing so could hurt her conviction rate, and would exhaust her limited resources on a case that is “solved,” in the bureaucratic sense. Further, the victimized groups of people described above are unlikely to mobilize or complain as a cohesive whole over even egregious and systemic abuses of the confession system. | | | 5. False Confessions and the Arbiter | |
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< | The lack of corroborative evidence in confession cases makes it difficult for the arbiter to fulfill his role as a safeguard in the adversarial system. In determining “reasonable doubt,” the arbiter must calculate, at least on some intuitive level: | >
> | The lack of corroborative evidence in confession cases makes it difficult for the arbiter to fulfill his role as a safeguard in the adversarial system. Without any other evidence to go on, the arbiter must base his "reasonable doubt" decision solely on: | | | "the probability that the accused party is innocent given than he confessed." | |
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< | For the reasons stated above, in Section 3, this probability may often be large enough to merit serious contemplation. Unfortunately, very few arbiters will find this quantity intuitive. Instead, the arbiter, especially if it is a jury consisting of lay persons, will likely evaluate a much more intuitive, but almost irrelevant, quantity | >
> | As stated in Section 3, above, this probability may often be large enough to merit serious contemplation. Unfortunately, very few arbiters will find this quantity intuitive. Instead, the arbiter, especially if it is a jury consisting of lay persons, will likely evaluate a much more intuitive, but almost irrelevant, quantity | | |
"the probability that an accused person would confess given that they are innocent." |
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