Volume 62, Issue 4

Page 1051

Stanford
Law Review
THE SUBSTANCE OF FALSE CONFESSIONS
Brandon L. Garrett

© 2010 by the Board of Trustees of the Leland Stanford Junior University, from the Stanford
Law Review at 62 STAN. L. REV. 1051 (2010). For more information visit
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THE SUBSTANCE OF FALSE CONFESSIONS
Brandon L. Garrett*
A puzzle is raised by cases of false confessions: How could an innocent
person convincingly confess to a crime? Postconviction DNA testing has now
exonerated over 250 convicts, more than forty of whom falsely confessed to rapes
and murders. As a result, there is a new awareness that innocent people falsely
confess, often due to psychological pressure placed upon them during police
interrogations. Scholars increasingly examine the psychological techniques that
can cause people to falsely confess and document instances of known false
confessions. This Article takes a different approach, by examining the substance
of false confessions, including what was said during interrogations and how the
confession statements were then litigated at trial and postconviction. Doing so
sheds light on the phenomenon of confession contamination. Not only can
innocent people falsely confess, but all except two of the exonerees studied were
induced to deliver false confessions with surprisingly rich, detailed, and accurate
information. We now know that those details could not have likely originated with
these innocent people, but rather must have been disclosed to them, most likely
during the interrogation process. However, our constitutional criminal procedure
does not regulate the postadmission interrogation process, nor do courts evaluate
the reliability of confessions. This Article outlines a series of reforms that focus
on the insidious problem of contamination, particularly videotaping
interrogations in their entirety, but also reframing police procedures, trial
practice, and judicial review. Unless criminal procedure is reoriented towards
the reliability of the substance of confessions, contamination of facts may
continue to go undetected, resulting in miscarriages of justice.

* Associate Professor, University of Virginia School of Law. For their invaluable
comments, I thank Kerry Abrams, Rachel Barkow, Tony Barkow, Sara Sun Beale,
Stephanos Bibas, Darryl Brown, Anne Coughlin, Steven Drizin, Bernard Harcourt, Saul
Kassin, Jennifer Laurin, Richard Leo, Richard McAdams, Thomas Miles, John Monahan,
Richard Ofshe, Laura Rosenbury, Stephen Schulhofer, Dan Simon, Bobbie Spellman, Colin
Starger, Zahr Stauffer, and participants at workshops at the UVA Department of Psychology,
the NYU School of Law Goldstock Criminal Law Luncheon, and the University of Chicago
School of Law Crime and Punishment Workshop. The fine research assistants whose
contributions made this study possible are: Catherine Byrd, Christine Chang, Rebecca Ivey,
Bradley Justus, Justin Torres, and Kerry Shapleigh. For excellent reference library
assistance, I thank Michelle Morris, Kent Olson and Ben Doherty, who helped to locate
many of the trial materials reviewed. I am also grateful to the Center on Wrongful
Convictions, the Innocence Project, and Winston & Strawn, LLP for their crucial assistance
in locating trial materials. Finally, I thank the Olin Program at University of Virginia Law
School for its research support.

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INTRODUCTION.....................................................................................................1052 !
I.! CHARACTERISTICS OF DNA EXONEREES’ FALSE CONFESSIONS .....................1059!
A.! Study Design.............................................................................................1059 !
B.! General Characteristics of Exoneree Confessions...................................1062!
II.! CONTAMINATED CONFESSIONS ......................................................................1066 !
A.! Law Enforcement Practices Concerning Contamination of Confessions.1066!
B.! Corroborated and Nonpublic Facts .........................................................1068!
C.! Denying Disclosing Facts ........................................................................1074 !
D.! Recorded False Interrogations.................................................................1079!
E.! Mistaken Facts .........................................................................................1083 !
F.! Guessed or Public Facts...........................................................................1084 !
G.! Crime Scene Visits....................................................................................1086 !
H.! Inconsistencies and Lack of Fit ................................................................1086!
I.! Litigating Contamination of Confessions at Trial....................................1090!
III.!FALSE CONFESSIONS AND CONSTITUTIONAL CRIMINAL PROCEDURE .............1092!
A.! Miranda Warnings....................................................................................1092 !
B.! Indicia of Involuntariness.........................................................................1094 !
C.! Use of Deceptive Techniques ...................................................................1097 !
D.! Trial Rulings on Suppression of Confessions...........................................1099!
E.! Use of Experts ..........................................................................................1102 !
F.! Inculpatory Statement Cases ....................................................................1106 !
G.! Postconviction Review of False Confessions............................................1107!
IV.!SUBSTANTIVE REGULATION OF CONFESSIONS ................................................1109!
A.! Substantive Judicial Review of Confessions.............................................1109!
B.! Recording Entire Interrogations ..............................................................1113!
C.! Interrogation Reforms ..............................................................................1115 !
CONCLUSION ........................................................................................................1118 !

INTRODUCTION
False confessions present a puzzle: How could innocent people
convincingly confess to crimes they knew nothing about? For decades,
commentators doubted that a crime suspect would falsely confess. For example,
John Henry Wigmore wrote in his 1923 evidence treatise that false confessions
were “scarcely conceivable” and “of the rarest occurrence” and that “[n]o
trustworthy figures of authenticated instances exist . . . .” 1 That understanding
has changed dramatically in recent years, as, at the time of this writing,
postconviction DNA testing has exonerated 252 convicts, forty-two of whom
falsely confessed to rapes and murders. 2 There is a new awareness among
1. 1 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF
EVIDENCE IN TRIALS AT COMMON LAW §§ 835, 867 (2d ed. 1923).
2. See Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55 (2008); The
Innocence Project, http://www.innocenceproject.org (last visited Nov. 19, 2009) (providing
count of U.S. postconviction DNA exonerations). The study set closed with the 250th DNA
exoneration, which occurred in February 2010 as this Article approached publication. As a
result, the 251st and 252nd DNA exonerations were not included in the study set. Both
involved false confessions. The 251st, that of Ted Bradford in Washington state, involved a

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scholars, legislators, courts, prosecutors, police departments, and the public that
innocent people falsely confess, often due to psychological pressure placed
upon them during police interrogations. 3 Scholars increasingly study the
psychological techniques that can cause people to falsely confess and have
documented how such techniques were used in instances of known false
confessions. 4
This Article takes a different approach by examining the substance of false
confessions, including what was said during interrogations and how
confessions were litigated at trial. Doing so sheds light on the phenomenon of
confession contamination.5 Police may, intentionally or not, prompt the suspect
on how the crime happened so that the suspect can then parrot back an
accurate-sounding narrative. Scholars have noted that “on occasion, police are
suspected of feeding details of a crime to a compliant suspect,” and have
described several well-known examples. 6 However, no one has previously
false confession reported to have included “details that would only be known to the rapist.”
Mark Morey, Jurors Find Bradford Innocent of Rape, YAKIMA HERALD-REPUBLIC, Feb. 11,
2010. The 252nd, that of Anthony Caravella in Florida, involved a confession that initially
included details inconsistent with the crime, but which over a series of interrogations was
reported to include accurate details, including information “suggested to him by leading
questions.” Paula McMahon, DNA Result Just One Troubling Aspect in Convicted Man’s
Case, SOUTH FLA. SUN SENTINEL, Sept. 4, 2009.
3. Saul M. Kassin et al., Police Interviewing and Interrogation: A Self-Report Survey
of Police Practices and Beliefs, 31 LAW & HUM. BEHAV. 381, 382 (2007) [hereinafter Kassin
et al., Police Interviewing and Interrogation] (“Largely as a result of recent DNA
exonerations, many of which had contained false confessions in evidence, a spotlight of
scrutiny has been cast on the processes of police interviewing and interrogation.”). The
American Psychology and Law Society issued a landmark white paper on the subject, which
began by citing to a new awareness of the problem of false confessions “[i]n this new era of
DNA exonerations.” Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and
Recommendations, 34 LAW & HUM. BEHAV. 3, 3 (2010) [hereinafter Kassin et al., PoliceInduced Confessions].
4. See Saul M. Kassin & Lawrence S. Wrightsman, Confession Evidence, in THE
PSYCHOLOGY OF EVIDENCE AND TRIAL PROCEDURE 67, 67-94 (Saul M. Kassin & Lawrence S.
Wrightsman eds., 1985); Richard A. Leo & Richard J. Ofshe, The Consequences of False
Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of
Psychological Interrogation, 88 J. CRIM. L. & CRIMINOLOGY 429, 431, 435 (1998). For
experimental work concerning false confessions, see Saul M. Kassin & Holly Sukel,
Coerced Confessions and the Jury: An Experimental Test of the “Harmless Error” Rule, 21
LAW & HUM. BEHAV. 27, 28 (1997); Saul M. Kassin, On the Psychology of Confessions:
Does Innocence Put Innocents at Risk?, 60 AM. PSYCHOL. 215, 216, 223 (2005) [hereinafter
Kassim, On the Psychology of Confessions]; Saul M. Kassin & Katharine L. Kiechel, The
Social Psychology of False Confessions: Compliance, Internalization, and Confabulation, 7
PSYCHOL. SCI. 125 (1996); Corey J. Ayling, Comment, Corroborating Confessions: An
Empirical Analysis of Legal Safeguards Against False Confessions, 1984 WIS. L. REV. 1121,
1186-87.
5. Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational
Choice and Irrational Action, 74 DENV. U. L. REV. 979, 1119 (1997) (developing the
concept of confession “contamination”).
6. See Joshua E. Kastenberg, A Three-Dimensional Model for the Use of Expert
Psychiatric and Psychological Evidence in False Confession Defenses Before the Trier of

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studied the factual statements in a set of false confessions. 7
The set of forty cases that this Article examines has important limitations.
As will be developed further, false confessions uncovered by DNA testing are
not representative of other false confessions, much less confessions more
generally. These forty cases cannot speak to how often people confess falsely.
Nor can these examples themselves tell us whether reforms, such as recording
interrogations, prevent more false convictions than they discourage true
confessions. But these data provide examples of a very troubling problem that
deserves further study.
In the cases studied here, innocent people not only falsely confessed, but
they also offered surprisingly rich, detailed, and accurate information.
Exonerees told police much more than just “I did it.” In all cases but two
(ninety-seven percent—or thirty-six of the thirty-eight—of the exonerees for
whom trial or pretrial records could be obtained), police reported that suspects
confessed to a series of specific details concerning how the crime occurred.8
Often those details included reportedly “inside information” that only the rapist
or murderer could have known. We now know that each of these people was
innocent and was not at the crime scene. Where did those details, recounted at
length at trial and recorded in confession statements, come from? We often
cannot tell what happened from reading the written records. In many cases,
however, police likely disclosed those details during interrogations by telling
exonerees how the crime happened. Police may not have done so intentionally
or recklessly; the study materials do not provide definitive information about
the state of mind of the officers. Police may have been convinced the suspect
was guilty and may not have realized that the interrogation had been
mishandled.
An illustrative case is that of Jeffrey Deskovic, a seventeen-year-old when
he was convicted of rape and murder. Deskovic was a classmate of the fifteenyear-old victim, had attended her wake, and was eager to help solve the crime.9
Deskovic spoke to police many times and was interrogated for hours over
Fact, 26 SEATTLE U. L. REV. 783, 789 (2003).
7. See RICHARD A. LEO, POLICE INTERROGATION AND AMERICAN JUSTICE 166 (2008)
(calling on scholars to examine “the postadmission portion of police interrogation” and
noting that “it has received far less attention from scholars, lawyers, and the media” than the
voluntariness of the admission of guilt); see also GISLI H. GUDJONSSON, THE PSYCHOLOGY OF
INTERROGATIONS AND CONFESSIONS 523-37 (2003) (highlighting the “dangers of relying on
special knowledge of the crime as proof of guilt”).
8. The characteristics of all forty cases are summarized in the Appendix, which is
available online at a University of Virginia School of Law Library research collection
webpage together with relevant portions of exonerees’ interrogation records and trial
transcripts. See Univ. of Va. Sch. of Law, False Confessions, Transcripts and Testimony,
http://www.law.virginia.edu/html/librarysite/garrett_falseconfess.htm (last visited Feb. 23,
2010).
9. See Trial Transcript at 1207-08, People v. Deskovic, No. 192-90 (N.Y. Sup. Ct.
Nov. 30, 1990) [hereinafter Deskovic Trial Transcript]; Innocence Project Profile of Jeff
Deskovic, http://www.innocenceproject.org/Content/44.php (last visited Nov. 20, 2009).

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multiple sessions, including a session in which police had a tape recorder, but
turned it on and off, only recording thirty-five minutes.10 During one
discussion, he “supposedly drew an accurate diagram,” which depicted details
concerning “three discrete crime scenes” which were not ever made public. 11
He never actually confessed to raping or murdering the victim, but he offered
other details, including that the victim suffered a blow to the temple, that he
tore her clothes, struggled with her, held his hand over her mouth, and “may
have left it there a little too long.”12 In his last statement, which ended with
him in a fetal position and crying uncontrollably, he reportedly told police that
he had “hit her in the back of the head with a Gatoraid [sic] bottle that was
lying on the path.” 13 Police testified that, after hearing this, the next day they
conducted a careful search and found a Gatorade bottle cap at the crime
scene. 14
The trial transcripts highlight how central these admissions were to the
State’s case. DNA tests conducted by the FBI laboratory before the trial
excluded Deskovic, providing powerful evidence that he was not the
perpetrator. The district attorney asked the jury to ignore that DNA evidence,
speculating that perhaps the victim was “sexually active” and “romantically
linked to somebody else” who she had sexual relations with shortly before her
rape and murder. 15 After all, “[s]he grew up in the eighties.” 16 There was no
investigation or DNA testing conducted to support this conjecture, either by the
prosecution or the defense.
Instead, the district attorney emphasized in closing arguments the
reliability of Deskovic’s statements, noting that after he told police about the
Gatorade bottle, “it was found there,” and this was a heavy weapon, “not a
small little bottle.” 17 Detectives “did not disclose any of their observations or
any of the evidence they recovered from Jeffrey nor, for that matter, to anyone
else they interviewed.” 18 They kept their investigative work nonpublic
for the simple reason . . . that [if a suspect] revealed certain intimate details
that only the true killer would know, having said those, and be arrested could
not then say, “Hey, they were fed to me by the police, I heard them as rumors,
I used my common sense, and it’s simply theories.” 19
10. LESLIE CROCKER SNYDER ET AL., WESTCHESTER COUNTY DIST. ATTORNEY, REPORT

CONVICTION OF JEFF DESKOVIC 2, 5-6 (2007),
THE
http://www.westchesterda.net/Jeffrey%20Deskovic%20Comm%20Rpt.pdf
Deskovic Report].
11. Id. at 5, 14.
12. Id. at 33; Deskovic Trial Transcript, supra note 9, at 1167, 1185.
13. Deskovic Trial Transcript, supra note 9, at 1185.
14. Id. at 1429, 1512-13.
15. Id. at 1492.
16. Id. at 1494.
17. Id. at 1512-13, 1537.
18. Id. at 1504.
19. Id. at 1504-05.

ON

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The district attorney told the jury to reject the suggestion that Deskovic was fed
facts, stating, “Ladies and gentlemen, it doesn’t wash in this case, it just doesn’t
wash.” 20
Deskovic was convicted of rape and murder and served more than fifteen
years of a sentence of fifteen years to life. In 2006, new DNA testing again
excluded him, but also matched the profile of a murder convict who
subsequently confessed and pleaded guilty. 21 Now that we know Deskovic is
innocent, how could he have known those “intimate details”? The District
Attorney’s postexoneration inquiry noted:
Much of the prosecution’s effort to persuade the jury that Deskovic’s
statements established his guilt hinged on the argument that Deskovic knew
things about the crime that only the killer could know . . . . Given Deskovic’s
innocence, two scenarios are possible: either the police (deliberately or
inadvertently) communicated this information directly to Deskovic or their
questioning at the high school and elsewhere caused this supposedly secret
information to be widely known throughout the community. 22

This confession was contaminated, either by police leaking facts or feeding
them. Given the level of specificity reportedly provided by Deskovic, the
second and more troubling possibility, that the officers disclosed facts to him,
seems far more likely. Yet during the trial, the police and the prosecutor not
only denied having told Deskovic those facts, such as the presence of the
Gatorade bottle cap and the depiction of the crime scene, but were emphatic
they did not leak those facts to the media or to anyone else, such as other high
school students interviewed. 23 Whether the police acted inadvertently or
intentionally, in hindsight we know that they provided an inaccurate account.
Deskovic has commented, “[b]elieving in the criminal justice system and being
fearful for myself, I told them what they wanted to hear.” 24 Deskovic is
currently suing for civil rights violations caused by a “veritable perfect storm of
misconduct by virtually every actor at every stage of his investigation and
prosecution . . . .” 25 The suit alleges that police disclosed facts to him.
The Deskovic case illustrates how false confessions do not happen simply
by happenstance. They are carefully constructed during an interrogation and
then reconstructed during any criminal trial that follows. Constitutional
criminal procedure does not regulate this critical phase of an interrogation. The
Constitution requires the provision of initial Miranda warnings and then

20. Id. at 1505.
21. See Profile of Jeff Deskovic, supra note 9; see also Fernanda Santos, Inmate Enters

Guilty Plea in ’89 Killing, N.Y. TIMES, Mar. 15, 2007.
22. See Deskovic Report, supra note 10, at 6.
23. Deskovic Trial Transcript, supra note 9, at 1265-67.
24. Fernanda Santos, DNA Evidence Frees Man Imprisoned for Half His Life, N.Y.
TIMES, Sept. 21, 2006, at B1.
25. Jonathan Bandler, Deskovic Sues Police, Medical Examiner, Prosecutors in Wrong
Conviction, J. NEWS (Westchester, N.Y.), Sept. 18, 2007, at 1A.

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requires that the bare admission of guilt have been made voluntarily.26 That
admission of guilt, while important, is only a part of the interrogation process.
The “confession-making” phase may be far more involved.27 Much of the
power of a confession derives from the narrative describing how the crime was
committed. For a person to confess in a convincing way, he must be able to say
more than “I did it.” Police are trained to carefully test the suspect’s knowledge
of how the crime occurred by assessing whether the suspect can freely
volunteer specific details that only the true culprit could know.28
That confession-making process was corrupted in the cases studied in this
Article. This Article examines the substance of the confession statements, how
they were litigated at trial, and then on appeal. Just as in Deskovic’s case, in
almost all of the cases that resulted in trials, detectives testified that these
defendants did far more than say “I did it,” but that they also stated they had
“guilty” or “inside” knowledge. 29 Only two of the thirty-eight exonerees,
Travis Hayes and Freddie Peacock, relayed no specific information concerning
the crime. Hayes was still convicted, although DNA testing conducted before
trial excluded him and his co-defendant. 30 Peacock was mentally disabled and
all he could say to the police about the crime was “I did it, I did it.”31 The other
thirty-six exonerees each reportedly volunteered key details about the crime,
including facts that matched the crime scene evidence or scientific evidence or
accounts by the victim. 32 Detectives further emphasized in twenty-seven
cases—or seventy-one percent of the thirty-eight cases with transcripts
obtained—that the details confessed were nonpublic or corroborated facts.33
Detectives sometimes specifically testified that they had assiduously avoided
contaminating the confessions by not asking leading questions, but rather
allowing the suspects to volunteer crucial facts. 34
The nonpublic facts contained in confession statements then became the
centerpiece of the State’s case. Although defense counsel moved to exclude
almost all of these confessions from the trial, courts found each to be voluntary
and admissible, often citing to the apparent reliability of the confessions.35 The

26. Yale Kamisar, What Is an “Involuntary” Confession? Some Comments on Inbau
and Reid’s Criminal Interrogation and Confessions, 17 RUTGERS L. REV. 728, 732 (1963);
Welsh S. White, What Is an Involuntary Confession Now?, 50 RUTGERS L. REV. 2001, 200304 (1998).
27. LEO, supra note 7, at 166.
28. See infra Part I.A.
29. See app., supra note 8.
30. See infra notes 180-82 and accompanying text.
31. See infra notes 183 and 184 and accompanying text.
32. See app., supra note 8 (listing examples of reported facts in each exonerees’ case);
infra Part I.B.
33. See app., supra note 8 (quoting relevant testimony for each case).
34. See infra Part II.C.
35. See infra Part III.D.

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facts were typically the focus of the State’s closing arguments to the jury. 36
Even after DNA testing excluded these people, courts sometimes initially
denied relief, citing the seeming reliability of these confessions. 37 The ironic
result is that the public learned about these false confessions in part because of
the contaminated facts. These false confessions were so persuasive, detailed
and believable that they resulted in convictions which were often repeatedly
upheld during appeals and habeas review. 38 After years passed, these convicts
had no option but to seek the DNA testing finally proving their confessions
false.
Why does constitutional criminal procedure fail to regulate the substance
of confessions? Beginning in the 1960s, the Supreme Court’s Fifth and
Fourteenth Amendment jurisprudence shifted. The Court abandoned its
decades-long focus on reliability of confessions. Instead, the Court adopted a
deferential voluntariness test examining the “totality of the circumstances” of a
confession. 39 The Court has since acknowledged “litigation over voluntariness
tends to end with the finding of a valid waiver.” 40 Almost all of these
exonerees moved to suppress their confessions, and courts ruled each
confession voluntary. The Court supplemented the voluntariness test with the
requirement that police utter the Miranda warnings, which if properly provided,
as the Court puts it, give police “a virtual ticket of admissibility.”41 All of these
exonerees waived their Miranda rights. All lacked counsel before confessing.
Most were vulnerable juveniles or mentally disabled individuals. Most were
subjected to long and sometimes highly coercive interrogations. Nor is it
surprising that they failed to obtain relief under the Court’s deferential
voluntariness inquiry, especially where the confessions were powerfully—
though falsely—corroborated.
The Court has noted that “the coercion inherent in custodial interrogation
blurs the line between voluntary and involuntary statements, and thus heightens
the risk” of constitutional violations.42 These false confessions shed light on
dangers of coercion during interrogations, but they also provide examples of a
different problem in which the line blurred is that between truth and fiction.
When custodial interrogations are not recorded in their entirety, one cannot
easily discern whether facts were volunteered by the suspect or disclosed by
law enforcement. Before they obtained DNA testing and without complete
recordings of their interrogations, these exonerees could not prove that they did
36. See infra Part II.B-C.; see also app., supra note 8 (quoting closing arguments in
cases where transcipts were obtained).
37. See infra Part III.G.
38. See infra Part III.G.
39. Dickerson v. United States, 530 U.S. 428, 444 (2000).
40. Missouri v. Seibert, 542 U.S. 600, 609 (2004) (plurality opinion) (citing Berkemer
v. McCarty, 468 U.S. 420, 433 n.20 (1984)).
41. Id.
42. Dickerson, 530 U.S. at 435.

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not volunteer inside knowledge of the crime.
A series of reforms could orient our criminal system towards the substance
of confessions. First, constitutional criminal procedure could regulate
reliability, though such constitutional change may be unlikely. An
understanding of the vulnerability of confessions to contamination can also
inform courts reviewing trials postconviction, particularly in cases involving
persons vulnerable to suggestion, such as juveniles and mentally disabled
individuals whose false confessions are studied here. Second, unless
interrogations are recorded in their entirety, courts may not detect
contamination of facts, especially when no DNA testing can be performed. In
response to some of these false confessions, state legislatures, police
departments, and courts have increasingly required videotaping of entire
interrogations. 43 Third, additional police procedures can safeguard reliability,
such as procedures intended to assure against contamination, assess
suggestibility, and avoid postadmission coercion.
This Article begins in Part I by describing the study design and
methodology as well as characteristics of the false confessions studied. Part II
examines the phenomenon of contaminated facts in these trials. Part III
explores how criminal procedure challenges were litigated and how
contaminated facts frustrated such efforts. The Article concludes in Part IV by
discussing reform of interrogation and criminal procedure.
I. CHARACTERISTICS OF DNA EXONEREES’ FALSE CONFESSIONS
A. Study Design
A confession to a crime can occur in many different contexts outside a
police interrogation room. A person who committed a crime might admit guilt
to friends, family, police informants, or to law enforcement. Criminal
procedure rules, however, typically only apply when a person is interrogated
while in custody, or after police have determined and conveyed that a person is
no longer free to leave. 44 Each of the forty exonerees studied was interrogated
in a custodial setting. 45 Each also delivered self-incriminating statements and
admissions of guilt to police, though some, like Deskovic, did not confess to all
of the charged acts. Many also admitted guilt before police had probable cause
and thus before they were formally placed under arrest or considered to be in
custody. 46 A separate group of eight exonerees also reportedly made self43. See Richard A. Leo et al., Bringing Reliability Back In: False Confessions and
Legal Safeguards in the Twenty-First Century, 2006 WIS. L. REV. 479, 486.
44. See infra Part III.
45. See infra Part III.A. (discussing how exonerees waived their Miranda rights when
given the warnings as required when interrogated in custody).
46. See infra Part III.A. Where, as discussed infra Part I.B., the confession was the
central evidence that the State relied upon, prior to the confession police often did not have

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incriminating statements volunteered to police.47 Those noncustodial remarks,
though not full admissions to having committed any crime, played important
roles at trial and are discussed separately.
People have long falsely confessed not just in cases involving police
torture or the “third degree” but also in cases involving psychological
techniques commonly used in modern police interrogations. Over the past two
decades, scholars, social scientists, and writers have identified at least 250
cases in which they determined that people likely falsely confessed to crimes.
New cases are regularly identified. 48 DNA exonerations, though only a subset
of false confessions identified by researchers, provide a unique data set with
which to examine how a false confession occurs. These false confessions came
to light not because of a challenge to the confession, but due to the independent
development of DNA technology allowing the convict to convincingly prove
innocence years after the conviction. DNA testing can provide particularly
probative evidence of innocence due to the precision of the technology. Indeed,
in twenty-five of these exonerees’ cases, postconviction DNA testing not only
excluded the exoneree but also inculpated another person. In at least eight of
those cases, that person subsequently confessed to the crime. 49
These forty confessions are atypical in several respects due to their
selection through postconviction DNA testing. These forty examples cannot tell
us why many criminal suspects falsely confess. Further, there is every reason to
think that these cases are unrepresentative even of other false confessions. Few
of these cases involved guilty pleas, and one might expect people who confess,
even falsely, to plead guilty. These cases proceeded to a trial at which each
person was convicted. By definition, since all of these cases involved
probable cause for an arrest.
47. See infra Part III.F.
48. See, e.g., LEO, supra note 7, at 243 (reviewing literature, and concluding “[s]ince
the late 1980s, six studies alone have documented approximately 250 interrogation-induced
false confessions”). Those six studies are: ROB WARDEN, CTR. ON WRONGFUL CONVICTIONS,
THE ROLE OF FALSE CONFESSIONS IN ILLINOIS WRONGFUL MURDER CONVICTIONS SINCE 1970
(2003),
available
at
http://www.law.northwestern.edu/wrongfulconvictions/
issues/causesandremedies/falseconfessions/FalseConfessionsStudy.html (identifying twentyfive false confessions in Illinois); Hugo Adam Bedau & Michael L. Radelet, Miscarriages of
Justice in Potentially Capital Cases, 40 STAN. L. REV. 21, 56-64 (1987) (identifying fortynine false confessions); Steven A. Drizin & Richard A. Leo, The Problem of False
Confessions in the Post-DNA World, 82 N.C. L. REV. 891, 894-900 (2004) (identifying 125
false confessions); Garrett, supra note 2, at 88 (identifying thirty-one DNA postconviction
exonerations involving false confessions); Samuel R. Gross et al., Exonerations in the
United States: 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 544 (2005)
(identifying fifty-one false confessions).
49. The twenty-five cases are those of: M. Bradford, R. Cruz, J. Dean, A. Gray, P.
Gray, T. Hayes, A. Hernandez, D. A. Jones, W. Kelly, A. McCray, R. Miller, C. Ochoa, C.
Ollins, K. Richardson, Y. Salaam, R. Santana, D. Shelden, A. Taylor, J. Townsend, D.
Vasquez, D. Warney, E. Washington, R. Williamson, T. Winslow, K. Wise. Cases involving
subsequent confessions of the person inculpated by postconviction DNA testing are those of
Cruz, Hernandez, Ochoa, McCray, Richardson, Salaam, Santana, and Wise.

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postconviction DNA testing, these false confessions all withstood trial scrutiny.
Each also withstood appellate or postconviction scrutiny until the DNA testing
was conducted. These cases each had biological evidence later suitable for
DNA testing. The study set includes mostly cases involving a rape by a
stranger, since in such cases the culprit is likely to leave behind biological
evidence, identity can be in doubt, and forensic evidence can be highly
probative of the perpetrator’s identity. Others who falsely confessed were not
convicted, because the problems concerning the confession came to light before
trial. 50 Others successfully challenged their conviction postconviction so they
did not need DNA testing. Still others could not benefit from DNA testing,
such as where relevant biological evidence was not preserved.
These forty confessions are also unlike the vast majority of confessions for
the obvious reason that we now know they are false. False confessions that
resulted in convictions upheld on appeal and postconviction might tend not to
have clear indicia of coercion or unreliability. After all, courts found these
confessions admissible at trial and postconviction, such that years later these
innocent people had no option but to seek postconviction DNA testing. These
false confessions may have survived judicial scrutiny because they appeared
voluntary and reliable. This may distinguish them from other false confessions.
The features that make this set of false confessions unrepresentative also
uniquely allow one to critically assess the substance of the confessions. Only in
examples of known false confessions can one be confident in retrospect that
persons could not before their interrogation have known specific details
concerning crimes. That is why exonerees’ cases could not be usefully
compared to any control group of nonexoneree confessions by presumably
guilty individuals. One cannot assess in nonexoneration cases whether the
confession was contaminated. Guilty individuals are obviously quite able to
volunteer specific details concerning crimes.
In a prior study of exonerees’ appeals and habeas proceedings, I described
the set of exonerees who falsely confessed and what claims they raised
postconviction, but did not analyze the substance of their confessions.51 Data
from criminal appeals and habeas proceedings do not shed light on the problem
of contaminated confessions. To assess the substance of these false confessions
and what claims were made regarding their content, pretrial materials, trial
materials and the confessions themselves were sought for all forty who falsely
confessed and obtained for thirty-eight of the forty exonerees. 52 Those records
provided a rich source of material concerning confession statements, how
50. For example, DNA testing conducted before trial has excluded defendants who had
falsely confessed. See, e.g., Posting of Steven Drizin to Bluhm Blog, Another False
Confession
in
New
Mexico?,
http://blog.law.northwestern.edu/bluhm/2009/03/
another-false-confession-in-new-mexico.html (Mar. 8, 2009, 16:02 CST).
51. See Garrett, supra note 2, at 94.
52. Law student research assistants initially coded the materials by following a preestablished protocol. I then reviewed, non-blind, their coding and each set of records.

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police officers described the interrogation process, how statements were
litigated at trial, defense accounts of the interrogations, and any expert review.
Characteristics of all forty cases are summarized in the Appendix, which is
available online together with relevant portions of these case materials. 53
B.

General Characteristics of Exoneree Confessions

In thirty-eight exonerees’ cases, a transcript was obtained, and thus, the
study set refers to just those thirty-eight persons. For twenty-seven exonerees,
the text of a written confession statement was also obtained. In thirty-five
cases, a false confession was introduced at trial. 54 Three additional defendants
pleaded guilty—William Kelly, David Vasquez, and Thomas Winslow—for
whom documentation of the confession, including in preliminary hearings, was
obtained. 55 For two others who pleaded guilty—Anthony Gray and Keith
Brown—no such materials could be located. 56 Such cases may be more typical
of criminal cases in which the vast majority of those charged plead guilty.
Anthony Gray, for example, did make a motion to withdraw his guilty plea,
with his attorney stating “he is of below average intelligence and is functionally
illiterate.” 57 Indeed, just as in his confession, during the hearing he “answered
negatively to questions posed by the Court, only to answer them positively
once the same questions were rephrased.”58 Gray’s letter to the Judge stated:
I has been in jail for five months on a murder that I did not no any thank about
. . . . [W]hy I say I was [i]n the house the police say that they has proof to say
us three was in that Lady house we was not in her house that day or no where
around her house I Lie on them because they Lie on me. 59

Providing a window into why he pleaded guilty, he explained, “They were
53. See supra note 8.
54. All of the forty exonerees listed in the Appendix were convicted at a trial, except

M. Bradford, K. Brown, J. Dean, A. Gray, W. Kelly, C. Ochoa, D. Shelden, J. Taylor, J.
Townsend, D. Vasquez, and T. Winslow, who had pleaded guilty. For all of the thirty
convicted at a trial, trial materials were obtained. Of those eleven who pleaded guilty, six
had trial materials because they testified in codefendant’s trials or were tried for additional
crimes that they did not commit. Townsend was tried for two of the crimes he confessed to,
and Bradford, Dean, Ochoa, Taylor, and Shelden testified against others they had implicated.
See http://www.law.virginia.edu/html/librarysite/garrett_falseconfess.htm.
55. See id. at 6, 14-16. For David Vasquez, I obtained materials from motions and
hearings conducted before his plea. For William Kelly, postconviction motions to vacate
detailed the confession. Thomas Winslow gave videotaped confession statements before his
guilty plea, which were provided by the Nebraska Attorney General’s Office.
56. Many thanks to Michelle Morris for obtaining the Gray court file, which did not
include trial materials, and to Christine Mumma, Director of the North Carolina Center on
Actual Innocence, for searching, unsuccessfully, for the Brown materials.
57. Amended Request to Withdraw Guilty Plea at 5, State v. Gray, No. C-91-409 (Md.
Ct. Spec. App. Feb. 20, 1992).
58. Id. at 5-6.
59. Letter from Anthony Gray to Judge Rymer, Defendant’s Exhibit 6 at 1, Gray, No.
C-01-409 (Nov. 25, 1991).

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trying to get me the death penalty for something I didn’t do . . . . Why should I
die for something I didn’t do?”60
These lengthy interrogations often included a range of strategies employed
by law enforcement to induce a confession. Many of those strategies were
entirely permissible under the U.S. Constitution and recommended by police
training on modern psychological interrogation techniques. Unpacking the
motive of an innocent person to confess requires a closer examination of what
transpired during that interrogation, for which I had incomplete information.
Social scientists have developed several categories for causes of false
confessions, beginning with Saul Kassin and Lawrence Wrightsman’s work.61
These exonerees’ confessions were likely all what Kassin and Wrightsman term
“coerced compliant” confessions, referring to those in which the subject
complies with law enforcement pressure during the interrogation process. 62
Many involved the subtype which Richard Leo and Richard Ofshe term a
“stress compliant” false confession, in which the stress of the interrogation
process, but not necessarily illegal coercion, secure a confession.63 In either
60. Wrongly Imprisoned Man Finally Free, ASSOCIATED PRESS, Feb. 9, 1999.
Anthony Gray was sentenced in Calvert County, Maryland, to two concurrent life sentences
after pleading guilty in October 1991, to first degree murder and first degree rape. Police
officers coaxed a confession out of Gray, who is borderline retarded, by telling him that two
other men arrested in connection with the case had told police that Gray was involved. In
fact, the co-defendants had neither confessed nor implicated Gray. Later, a defense attorney
for one of these other defendants told Gray that all three men would be freed if Gray refused
to testify. Gray took the advice and prosecutors abandoned their agreement to recommend a
thirty year sentence.

The Innocence Project, Profile of Anthony Gray, http://www.innocenceproject.org/
Content/159.php (last visited Nov. 23, 2009).
61. See Kassin & Wrightsman, supra note 4, at 77-78.
62. Id. at 77.
63. Richard J. Ofshe & Richard A. Leo, The Social Psychology of Police
Interrogation: The Theory and Classification of True and False Confessions, in 16 STUDIES
IN LAW, POLITICS, AND SOCIETY 189, 211, 238 (Austin Sarat & Susan S. Silbey eds., 1997).
The other type is the voluntary false confession, in which the suspect approaches law
enforcement and volunteers involvement in the crime. While three of these exonerees,
Jeffrey Deskovic, Eddie Joe Lloyd and Douglas Warney, might appear to be of that type in
that they initially approached law enforcement and hoped to assist with the investigation, due
to mental illness, fascination with police work, or other special interest in the unsolved
crime, none of the three confessed until they were interrogated at length. All were therefore
likely interrogation-induced false confessions.
Third, in coerced internalized or persuaded false confessions, the suspect is convinced
during the interrogation process that he did in fact do something illegal. One of these cases,
that of William Kelly, may have involved such an internalized false confession, and perhaps
others as well. In his case, an expert later concluded that as a result of his psychiatric
conditions and police persuasion, “Kelly may have actually believed that he killed [the
victim] during one of his blackouts, and began to incorporate information provided by the
police into his own memory as to what might have happened.” Commonwealth’s Petition to
Vacate Sentence Based Upon After-Discovered Evidence at 5, Commonwealth v. Kelly, No.
660 C.D. 1990 (Pa. Ct. Com. Pl. Jan. 8, 1993). Finally, none of these cases were of the type
where in fact no crime occurred, yet someone confessed. After all, there had to be crime
scene evidence with relevant DNA from which testing could exonerate these defendants.

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type of compliant false confession, the suspect confesses chiefly to obtain a
gain, such as “being allowed to go home, bringing a lengthy interrogation to an
end, or avoiding physical injury.” 64
Social scientists have long documented how pressure combined with
repetition of a crime narrative may cause the suspect to internalize that
narrative and repeat it, possibly becoming convinced of his own guilt.65 Only
recently, however, have actual instances of such false confessions been
documented. Pressures brought to bear on these exonerees ranged from threats
combined with offers of leniency, to threats of physical force. Many described
harrowing interrogations lasting many hours or days. Several described verbal
or physical abuse. As will be developed below, twenty-two of the
interrogations were recorded, but only partially. Thirteen were audiotaped and
nine were videotaped. In fourteen cases, the exonerees had signed a typed
confession statement. Copies of twenty-seven of those written or recorded
confession statements were obtained.
Seventeen or forty-three percent of the forty DNA exonerees who falsely
confessed were mentally ill, mentally retarded, or borderline mentally
retarded. 66 Thirteen or thirty-three percent of those who confessed were
juveniles (five in the “Central Park Jogger” case). 67 In twenty-six of the forty
cases—or sixty-five percent—the defendant was either mentally disabled,
under eighteen at the time of the offense, or both.68 Mentally disabled
individuals and juveniles are both groups long known to be vulnerable to
coercion and suggestion. 69 For example, Earl Washington, Jr. and Jerry
64. FRED E. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS 412 (4th ed.

2001).
65. See Daryl J. Bem, When Saying Is Believing, PSYCHOL. TODAY, June 1967, at 2225; Kassin & Kiechel, supra note 4.
66. The 14 mentally retarded or borderline mentally retarded exonerees were: A. Gray,
P. Gray, B. Halsey, T. Hayes, D. Jones, F. Peacock, W. Kelly, B. Laughman, E. Lloyd, C.
Ollins, L. Rollins, J. Townsend, D. Vasquez, and E. Washington. In addition, A. Taylor, D.
Warney, and R. Williamson were diagnosed as mentally ill. Still others may not have been
examined by experts or fully diagnosed at the time of trial.
67. See People v. Wise, 752 N.Y.S.2d 837, 843 (N.Y. Sup. Ct. 2002). Those juveniles
were: M. Bradford, D. Brown, J. Deskovic, P. Gray, N. Hatchett T. Hayes, A. McCray, C.
Ollins, K. Richardson, L. Rollins, Y. Salaam, R. Santana, and K. Wise.
68. See Garrett, supra note 2, at 89. This is consistent with data from studies of nonDNA false confessions. See, e.g., Gross et al., supra note 48, at 545 (“Thirty-three of the
exonerated defendants were under eighteen at the time of the crimes for which they were
convicted, and fourteen of these innocent juveniles falsely confessed—42%, compared to
13% of older exonerees. Among the youngest of these juvenile exonerees—those aged
twelve to fifteen—69% (9/13) confessed to homicides (and one rape) that they did not
commit.”); see also Paul G. Cassell, The Guilty and the “Innocent”: An Examination of
Alleged Cases of Wrongful Conviction from False Confessions, 22 HARV. J.L. & PUB. POL’Y
523, 586-87 (1999) (arguing that data concerning false confessions among “certain narrow,
mentally limited populations,” suggest the need for special precautions during interrogations
of such suspects).
69. See, e.g., Richard J. Bonnie & Thomas Grisso, Adjudicative Competence and

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Townsend—both mentally disabled—each readily confessed to every crime
that police asked them about. Several later explained that they confessed in
order to avoid threats of the death penalty. For example, Chris Ochoa reported
that a detective threatened him, “You’re going to get the needle. You’re going
to get the needle for this. We got you.”70
Studies suggest that “police-induced false confessions appear to occur
primarily in the more serious cases, especially homicides and other high-profile
felonies,” and consistent with those studies, seventy percent of these false
confessions involved a murder. Twenty-five of the forty cases were rapemurder cases, three were murder cases, and twelve were rape cases.71 Thus,
while most DNA exonerees were convicted of rape and not murder, the false
confessions are concentrated in the murder cases. Confessions were obtained
more frequently in murder and rape-murder cases than in rape cases,
presumably because in rape cases a victim identification of the attacker
obviates the need to secure a confession. Six of these exonerees were sentenced
to death.
False confessions can have a multiplying effect, in which additional
innocent people are drawn into an investigation. Seventeen of the forty
exonerees not only falsely inculpated themselves but also falsely inculpated
others, eleven of whom were later also exonerated by postconviction DNA
testing. Paula Gray’s testimony in the “Ford Heights Four” case, which
implicated Kenneth Adams, Verneal Jimerson, Willie Rainge, and Dennis
Williams, is an example. In still other cases, additional innocent people
implicated by one suspect’s false confession themselves also falsely confessed.
As a result, some of the false confessions studied here occurred in related cases.
In the five Central Park Jogger case confessions of Antron McCray, Kevin
Richardson, Raymond Santana, Yusef Salaam, and Kharey Wise, each
implicated others as the primary assailant. In the “Beatrice Six” cases, four
defendants—James Dean, Ada JoAnne Taylor, Debra Shelden, and Thomas
Winslow—variously implicated each other as well as two others who did not
confess, Kathy Gonzalez and Joseph White. Alejandro Hernandez and Rolando
Cruz both reportedly confessed to the same crime. Finally, Marcellius Bradford
and Calvin Ollins both confessed and also implicated two others who did not
Youthful Offenders, in YOUTH ON TRIAL 73, 87-88 (Thomas Grisso & Robert G. Schwartz
eds., 2000); Morgan Cloud et al., Words Without Meaning: The Constitution, Confessions,
and Mentally Retarded Suspects, 69 U. CHI. L. REV. 495, 495, 590 (2002); Gisli H.
Gudjonsson, Suggestibility and Compliance Among Alleged False Confessors and Resisters
in Criminal Trials, 31 MED. SCI. & L. 147, 148-49 (1991); Allison D. Redlich, Alicia
Summers & Steven Hoover, Self-Reported False Confessions and False Guilty Pleas Among
Offenders with Mental Illness, 34 LAW & HUM. BEHAV. 79 (2010); Elizabeth S. Scott &
Thomas Grisso, The Evolution of Adolescence: A Developmental Perspective on Juvenile
Justice Reform, 88 J. CRIM. L. & CRIMINOLOGY 137, 156-76 (1997).
70. Trial Transcript at 1006, State v. Danziger, No. 96,470 (Tex. Dist. Ct. Jan. 23,
1990) [hereinafter Danziger Trial Transcript].
71. LEO, supra note 7, at 245; see Gross et al., supra note 48, at 544.

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confess. Thus, forty-three percent—or seventeen—of these forty false
confessions occurred in cases involving multiple false confessions.
The confessions were also often the central evidence at trial. Few of the
forty exonerees’ cases involved eyewitnesses to the crime. Only twelve
involved eyewitnesses, six involved jailhouse informants, and seven involved
co-defendant testimony, though twenty-one involved some type of forensic
evidence. Twenty-four were black, thirteen were white, and three were
Hispanic. These forty cases involved convictions in New York (nine) and
Illinois (eight), with additional cases in Nebraska (four), Pennsylvania (four),
Louisiana (three), Oklahoma (two), Michigan (two), Virginia (two) and one
case each in California, Florida, Kansas, Maryland, New Jersey, and North
Carolina.
II. CONTAMINATED CONFESSIONS
This Part turns to the substance of exonerees’ confession statements and
how each was litigated at trial. The overwhelming majority of these forty false
confession cases were contaminated. Thirty-six of the thirty-eight cases for
which transcripts were obtained had confessions that reportedly included
specific details about how the crime occurred. The trials of these exonerees
then centered on those facts. At trial, law enforcement testified that the suspect
had volunteered specific details about how the crime occurred, typically details
corroborated by expert evidence or crime scene evidence. In most, the innocent
person did not merely guess or repeat one or two facts. Almost all exonerees
were reported to have provided detailed statements that included facts likely to
be known only by the culprit. As the prosecutor in Robert Miller’s case put it,
“He supplied detail after detail after detail after detail. And details that only but
the killer could have known.” 72 This Part describes the contamination of these
confessions, including the police training concerning leaking and feeding facts;
what the crucial facts were like in these cases; how they were described at trial;
whether law enforcement admitted to telling the suspect facts; and how the
prosecution, defense, and courts handled such statements.
A. Law Enforcement Practices Concerning Contamination of Confessions
Police have long been trained not to contaminate a confession by feeding
or leaking crucial facts. The leading manual on police interrogations, originally
written by Fred Inbau and John Reid, and now in its Fourth Edition, is emphatic
on this point. Feeding facts contaminates a confession because if the suspect is
told how the crime happened, then the police cannot ever again properly test
the suspect’s knowledge. The opportunity to obtain volunteered information is
72. Trial Transcript at 1292, State v. Miller, CRF-87-963 (Okla. Dist. Ct. May 19,
1988) [hereinafter Miller Trial Transcript].

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lost. For that reason, when developing the simple admission of guilt into a
confession, police are trained to ask open questions, like “What happened
next?” 73 Leading questions are not to be asked, at least not as to crucial
corroborated details concerning the crime. Inbau and Reid call it “highly
important” to “let the confessor supply the details of the occurrence . . . .”74
They explain that during the interrogation “[w]hat should be sought particularly
are facts that would only be known by the guilty person . . . .”75 Not only does
this practice make the confession more convincing by avoiding any suggestion
or disclosure of facts, but it allows the investigator to later “evaluate the
confession in the light of certain known facts.” 76
Law enforcement has strong practical reasons to test and to safeguard the
reliability of a confession. Police are trained to construct a narrative of how the
crime occurred, including the motives for committing the crime and a detailed
explanation of how it was committed.77 During a criminal investigation, law
enforcement tests the reliability of its work product to try to build as strong a
case as possible. If the suspect truly lacks knowledge of how the crime
occurred, the bare admission of culpability will not be very convincing to a
jury. Indeed, police have long known that suspects may admit to crimes that
they did not commit for a range of reasons, including mental illness, desire for
attention, desire to protect loved ones, or others.78 The Inbau and Reid manual
cautions that “[t]he truthfulness of a confession should be questioned, however,
when the suspect is unable to provide any corroboration beyond the statement,
‘I did it.’” 79
Further, police are trained not to leak facts. Police black out certain key
information so that the public does not learn of it during the investigation.
Thus, Inbau and Reid advise that, “When developing corroborative
information, the investigator must be certain that the details were not somehow
73.
74.
75.
76.
77.

INBAU ET AL., supra note 64, at 367.
Id. at 381.
Id. at 369.
Id. at 382.
See LEO, supra note 7, at 168. The construction of such narratives raises important
questions not just as to accuracy, but also as to other distortions that they may create,
including by employing narratives that undermine other goals of criminal law, like
legitimacy. Anne Coughlin has written an important article examining the victim-blaming
narratives endorsed by leading training manuals and employed to “minimize” the acts of a
suspect during interrogations. Anne M. Coughlin, Interrogation Stories, 95 VA. L. REV. 1599
(2009). Coughlin argues that “[v]ictim-blaming is incompatible with the contemporary goals
of rape law, and the police should stop feeding those stock stories to accused rapists.” Id. at
1660.
78. INBAU ET AL., supra note 64, at 414; see also John E. Reid & Assocs. Motives for
False Confessions, POLICEONE.COM, July 2, 2009, http://www.policeone.com (describing
causes of false confessions and recommending that investigators tailor their techniques for
particular suspects, as well as assess “credibility” of a confession, including by examining
the “extent of corroboration between the confession and the crime”).
79. INBAU ET AL., supra note 64, at 425.

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revealed to the suspect through the questioning process, news media, or the
viewing of crime scene photographs.”80 Police also know how important it is to
document their efforts to keep certain facts confidential, because doing so later
enhances the power of the confession in a subsequent prosecution or trial.
Inbau and Reid recommend documenting in the case file the facts that are to be
kept confidential “so that all investigators are aware of what information will
be withheld.” 81 Even more powerful is corroborative evidence that the
interrogators did not yet know, termed “independent corroboration.” 82 Thus, a
suspect could be asked where the murder weapon was hidden, and if the
weapon is found at that location, the confession is strongly corroborated.83 By
carefully avoiding contamination of the confession, the officer can at trial
“confidently refute” any defense suggestion that facts had been fed to the
suspect. 84
B. Corroborated and Nonpublic Facts
In most of these cases, police did “confidently refute” at trial that they
disclosed none of those detailed facts and instead claimed that the telling facts
were volunteered. This is what made the confessions particularly powerful. The
defendant reportedly freely offered information that only the perpetrator could
have known. As police recognize, if the defendant had merely agreed to a series
of leading questions by the police, then the confession would not appear
particularly believable.
An example of the power of specific corroborated facts is in the cases of
Marcellius Bradford and Calvin Ollins, two fourteen-year-old boys who
confessed to the rape and murder of a medical student in Chicago, and who
inculpated Calvin’s cousin, Larry Ollins, and another boy, Omar Saunders.85
All four youths were wrongly convicted and served six-and-a-half to thirteenand-a-half years before DNA testing exonerated them.86 The case revolved
around two facts: the existence at the crime scene of a piece of concrete and a
bloody footprint on the body of one victim.
Police stopped Larry Ollins on January 24, 1987, near the crime scene.87

80.
81.
82.
83.
84.
85.

Id. at 369.
Id.
Id. at 433.
Id. at 369.
Id. at 432-33.
See Maurice Possley & Steve Mills, DNA Test Rules Out Roscetti Inmates—
Lawyer for Men Plans to Ask Court for Their Freedom, CHI. TRIB., Nov. 14, 2001, at 1.
86. See
The
Innocence
Project,
Profile
of
Calvin
Ollins,
http://www.innocenceproject.org/Content/231.php (last visited Jan. 11, 2010).
87. Trial Transcript at 20-21, People v. Ollins, No. 87-CR-4752 (Ill. Cir. Ct. June 14,
1988) [hereinafter Ollins Trial Transcript].

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He denied any knowledge of the crime. 88 Three days later police detained his
friend Marcellius Bradford. 89 Bradford eventually told the detectives that he
committed the murder along with Calvin and Larry Ollins, Saunders and others.
The next morning, Calvin Ollins delivered his written confession and appeared
to volunteer the crucial detail: when asked what Larry did next, he said, “That’s
when he hit her with a piece of concrete.”90
Police did not take a formal statement from Bradford until two hours after
Ollins signed his own statement. A stenographer typed Bradford’s admission.
Bradford initially described Larry Ollins hitting the victim in the face with a
brick. After making repeated references to a brick, the assistant state’s attorney
posed a leading question to correct Bradford. She asked:
Q. Was this brick a piece of concrete from the ground?
A. Yes. 91

All of the references to a brick in the typed statement were then crossed out,
replaced with the word “concrete,” and initialed by Bradford. 92
Where did that detail regarding the concrete come from? A detective
conducting the interrogations claimed that Bradford had first mentioned the
concrete the night before. But that seems unlikely because the corrections were
made in Bradford’s written statement, which was elicited only after Calvin
Ollins gave a statement.
Regardless where it originated, that detail provided crucial evidence
against the two fourteen-year-olds. Officers later testified at trial that they had
found at the crime scene a piece of concrete, which they took into evidence.93
At trial, the Chicago police crime lab analyst described analyzing stains on the
piece of concrete and detecting human blood consistent with the blood type of
the victim. 94
A second crucial detail emerged at trial. The medical examiner who
conducted the autopsy described the victim’s “multiple blunt injuries that
included the face.” 95 Similarly, Calvin Ollins volunteered that “they started
kicking [the victim].” 96 The medical examiner described bloody footprints
found on the body. The jury saw a photograph of the bloody footprint.97
Bradford pleaded guilty and received a twelve-year sentence in exchange
88.
89.
90.
91.
92.
93.

Id. at 21.
Id.
Statement of Calvin Ollins 7 (Jan. 28, 1987) (on file with author).
Statement of Marcellius Bradford 10 (Jan. 28, 1987) (on file with author).
Id. at 9-10.
Indeed, a police medical examiner performed microscopic analysis of hairs found
on this piece of concrete, and determined that the hairs were dissimilar to those of the victim.
Ollins Trial Transcript, supra note 87, at 15, 19 (June 16, 1988).
94. Id. at 131-32 (June 15, 1988).
95. Id. at 163 (June 16, 1988).
96. Statement of Calvin Ollins, supra note 90, at 8.
97. Ollins Trial Transcript, supra note 87, at 157, 166 (June 16, 1988).

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for his testimony against the others at trial. 98 At Larry Ollins’s trial, Bradford
gave a detailed account of the murder, including the kicking. During this trial
testimony, Bradford slipped yet again and several times described Larry Ollins
picking up a brick. He was again corrected:
Q. Are we talking about a house brick or some other kind of object?
A. Cement out of the ground, like a rock.
Q. Like a chunk of cement?
A. Chunk of cement. 99

The prosecutor focused the closing statements on how the confessions were
fully consistent with the injuries of the victim: “You will see this photograph
and it won’t be pleasant. But it shows you how this pointed end of the rock
where the blood was . . . matches the injury that’s on her face.”100 He added,
“So, when Marcellius Bradford told you Larry Ollins did that, it fits the
evidence. And you know he was telling the truth.” 101 Then he described the
footprints and noted that they are “more evidence to show you that Marcellius
Bradford accurately truly described to you what happened that day.”102
Ofshe and Leo note: “The only time an innocent person will contribute
correct information is when he makes an unlucky guess. The likelihood of an
unlucky guess diminishes as the number of possible answers to an
investigator’s questions grows large.” 103 Cases involving unusual, specific, or
numerous details raise the most troubling questions. The Bradford confession
involving such specific crime scene details suggests a very low likelihood that
the teenager could possibly have guessed each of those unusual facts on his
own. Indeed, Bradford later claimed police beat him and also that he confessed
to avoid a life sentence. 104 DNA testing not only exonerated Bradford, Calvin
and Larry Ollins, and Saunders, but after their release, police arrested two
others whose DNA did match the crime scene evidence. 105 A Chicago Tribune
investigation also later found that “the alleged confessions mirrored a scenario
that an FBI criminal profiler said he provided before the four teenagers were
arrested.” 106
In all but two of these exonerees’ cases, police claimed that the defendant
98. Id. at 92 (June 14, 1988).
99. Id. at 116.
100. Id. at 69 (June 20, 1988).
101. Id. at 70.
102. Id. at 72. Other false details may have been disclosed to Bradford, for example,

the involvement of a “Daniels,” who Bradford mentioned only after Officer Mercurio told
Bradford about such a person, after Calvin Ollins had earlier named a “Daniels.” Id. at 790
(June 16, 1988).
103. Ofshe & Leo, supra note 5, at 993.
104. Sharon Cohen, Jailed at 14, Youth Refused to Surrender Hope, L.A. TIMES, June
9, 2002, at 1.
105. Maurice Possley, Eric Ferkenhoff & Steve Mills, Police Arrest 2 in Roscetti Case:
Officials Say Tip Led Them to Pair, Who Confessed, CHI. TRIB., Feb. 8, 2002, § 1, at 1.
106. Possley & Mills, supra note 85.

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had offered a litany of details that we now know these innocent people could
not plausibly have known independently. For example, in Dennis Brown’s
case, the sergeant who interrogated Brown, testified as follows:
Q. [T]his is a very serious case. You know that.
A. Yes, sir.
Q. You’re stating under oath you did not know what the victim had on that
night, is that correct? You did not know the color of the couch?
A. No, sir.
Q. You did not know which arm she was grabbed by?
A. No, sir, I did not.
Q. And that the defendant confessed to the rape of Diane Talley, is that
correct?
A. Yes.
Q. And he gave you specifics as to that rape?
A. Yes, sir.
....
Q. And he told you about the house?
A. Yes, sir.
Q. And he told you what color the couch was?
A. Yes, sir.
Q. And he told you how he committed the rape?
A. Yes, sir. 107

Thus, the sergeant not only testified that Brown knew details regarding the
crime, down to the color of the victim’s couch, but that the sergeant himself did
not know those crime scene details. The clear implication was not just that the
sergeant did not feed those facts, but that it was impossible for him to have fed
those facts. Perhaps he was not the person who disclosed those facts to Brown.
Given such specific information, it is quite likely, however, that in such cases,
law enforcement did disclose those facts at some point during its interviews and
interrogations. It is not plausible that the suspect accurately reconstructed the
crime out of whole cloth from his own imagination. Nor is it particularly
plausible that police improperly but without detection leaked each of the crucial
details of the crime to the public, the innocent suspect learned each critical fact
through some sort of grapevine, and then the innocent suspect accurately
relayed each of those details back to the police during an interrogation.
Douglas Warney’s case provides another example of a confession that,
according to the police, included a litany of detailed, nonpublic facts
concerning the crime, including: that the victim was wearing a nightshirt; that
the victim was cooking chicken; that the victim was missing money from his
wallet; that the murder weapon was a knife—about twelve inches with a
serrated blade—kept in the kitchen; that the victim was stabbed multiple times;
that the victim owned a pinky ring and a particular necklace; that a tissue used
as a bandage was covered with blood; that there was a pornographic tape in the
107. Trial Transcript at 78-79, State v. Brown, No. 128,634 (La. Dist. Ct. Sept. 12,
1985) [hereinafter Brown Trial Transcript].

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victim’s television. 108
The sergeant who interrogated Warney, when questioned about the matter
at trial, denied having told Warney during the interrogation that the victim was
stabbed over a dozen times. The sergeant stated, however, that after Warney
initially claimed to have stabbed the victim only once, “I says, Doug, how
many times did you stab him and he had already indicated to me he stabbed
him once. He told me then that he had stabbed him more, eight, not more than
fifteen.” 109 He admitted that when questioning Warney, he knew that there
were multiple stab wounds on the victim. 110 The Sergeant was emphatic,
though, when asked “did you suggest any answers to him,” that he did not.111
The prosecutor then argued in the closing statements that the reliability of
Warney’s confession was corroborated by each of these facts:
The Defendant says he’s cooking dinner, and he’s particular about it, cooking
chicken . . . . Now, who could possibly know these things if you hadn’t been
inside that house, inside the kitchen? You heard the Defendant say that he
took money. . . . You know the wallet was found upstairs, empty, near the
closet . . . . You will see photographs of it. . . . You heard the Defendant say
that he stabbed [the victim] with a knife taken from the kitchen. Do you recall
Mr. Lee’s testimony? . . . Regarding the murder weapon, he said that was the
knife that they kept in the house. Where did they keep it? They kept it in a
drawer under the crockpot where the chicken was cooking. Now, who would
know the chicken was cooking? A person who got that knife and used it
against [the victim], the killer. The Defendant described the knife as being
twelve inches, with ridges. I think Technician Edgett said it was thirteen
inches with the serrated blade. 112

Warney had “a history of delusions, an eighth-grade education and
advanced AIDS.” 113 Years later, after being exonerated by DNA test results
that matched another man who subsequently confessed, Warney maintained
that the sergeant told him details including “what was cooking in the hot
pot.” 114
In the “Beatrice Six” case, six defendants were charged in a rape and
murder of an elderly woman in Beatrice, Nebraska. Of the six, all pleaded
guilty except Joseph White, who refused to plead guilty (he had requested an
attorney during his interrogation and did not confess). The other defendants all
pleaded guilty, and four had confessed. Three testified against White: James
Dean, Debra Shelden, and Ada JoAnn Taylor. Each admitted at White’s trial
108. 3 Trial Transcript at 563-75, People v. Warney, No. 96-0088 (N.Y. Sup. Ct. Feb.
11, 1997) [hereinafter Warney Trial Transcript].
109. 2 Warney Transcript, supra note 108, at 117 (Feb. 5, 1997).
110. Id. at 119.
111. Id. at 113.
112. 3 Warney Transcript, supra note 108, at 570-71 (Feb. 11, 1997).
113. Jim Dwyer, Inmate To Be Freed as DNA Tests Upend Murder Confession, N.Y.
TIMES, May 16, 2006, at B1.
114. Id.

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that police had suggested facts to them and that before speaking to police, they
could not remember much of what had occurred the night of the crime. Taylor
testified as follows at a deposition, which was read into the record at trial:
Q. Can you actually separate today what you remember from the night this
happened and what was suggested to you to help you remember what
happened that night?
A. No. It would almost be impossible to separate.
Q. So whatever statements you have made recently, I take it, are not from your
memory but from suggestions that have helped you remember?
A. There has been parts from my memory as well as the suggestions.
Q. Tell me what parts you actually remember that you don’t have that you
didn’t have suggested to you.
A. Oh, God.
Q. Is there anything?
A. Not that I can remember offhand. . . . 115

At trial Taylor stated that police “somewhat” suggested facts to her, and helped
her to remember much, but not “all of the information.”116 She explained:
A. Well, I have a tendancy [sic] to believe all officers.
Q. And so police officers would furnish you information of the crime and you
would believe them, wouldn’t you?
A. Somewhat, yes, sir. 117

Taylor also admitted that police had showed her a video of the crime scene and
gave her the statements of the other defendants to read.118 She also testified
that she was diagnosed with a “personality disorder” and had problems with
memory, though she noted she did have some mental telepathy capabilities. 119
Taylor also admitted that police told her particular facts. She said that
police suggested a particularly idiosyncratic fact: an explanation for the
presence of a ripped half five-dollar bill at the crime scene. On direct
examination, she testified that Joseph White had “a trick that he does with a $5
bill” where he would rip it in half, and recalled asking him after the murder
what he had ripped, and he had said a “five,” meaning a five-dollar bill.120
When asked to explain the trick, she said, “I’ve never really understood it. I
know he pulls a $5 bill out and he does something with it and he ends up with a
ripped $5 bill. And he usually tosses part of it away.”121 However, on crossexamination, she admitted that when the deputy sheriff originally asked about
the money trick, she told him that Joseph White would make pictures with the
money, and finally the deputy had to tell her that he would tear the bill:
115. Trial Transcript at 942, State v. White, No. 9316 (Neb. Dist. Ct. Nov. 7, 1989)
[hereinafter White Trial Transcript].
116. Id. at 943.
117. Id. at 962.
118. Id. at 953-54.
119. Id. at 924, 931, 936.
120. Id. at 917-18.
121. Id. at 918.

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“Q. Now, about after the murder, he’s the one who explained to you about the
$5 bill, was he not?
A. Yes, sir.” 122

In several cases, expert evidence corroborated facts in the confession. The
primary nonpublic fact highlighted in the confession of Ron Williamson was
his reported description of the way the victim had been was killed—by
wrapping a cord around her neck to strangle her and stabbing her. 123
Strangulation as the means of murder was corroborated by the medical
examiner. 124
Perhaps most powerful, in Lafonso Rollins’s case the prosecutor conducted
an unusual “reverse identification.” Rollins was asked to select one of the
victims from a series of photographs. The prosecutor testified that Rollins
selected the victim’s photo and then initialed that photograph, which was
displayed to the jury at trial. 125 Now that we know Rollins was innocent and
was not acquainted with the victim, one wonders if some sort of cue, intended
or not, suggested the correct photograph to Rollins.
C. Denying Disclosing Facts
In twenty-seven of the thirty-eight cases, the police officers testifying
under oath at trial denied that they had disclosed facts to the suspect. Some
were asked directly whether they had told the suspect key facts, others
themselves noted they had not done so, and others carefully described an
interrogation in which the suspect had volunteered each of the relevant facts.
The question then arises whether officers were testifying falsely when they
claimed that crucial facts were volunteered, where in fact they were disclosed
by these police officers. Again, this Article does not reach any conclusions
regarding state of mind of officers. 126 These officers most likely believed they
were interrogating a guilty person. Officers may contaminate a confession
unintentionally. During a complex interrogation, they might not later recall that
as to important subjects they had in fact asked leading questions. A fascinating

122. Id. at 959.
123. Trial Transcript at 450, State v. Williamson, CRF 87-90 (Okla. Dist. Ct. Apr. 22,

1988) [hereinafter Williamson Trial Transcript].
124. Id. at 541-42 (Apr. 25, 1988). However, in a possible inconsistency if Williamson
meant he stabbed using a knife, the medical examiner also stated that he did not believe the
puncture wounds on her body were caused by a knife. Id. at 551-52.
125. Trial Transcript at D-169 to -170, People v. Rollins, No. 93 CR 6342 (Ill. Cir. Ct.
Mar. 2, 1994) [hereinafter Rollins Trial Transcript].
126. Nor would state of mind be relevant to the question whether the officers violated
exonerees’ constitutional rights. In order to violate the constitutional rights of the defendants,
these officers need not have perjured themselves at trial, so long as they knew they had
falsely represented to prosecutors that the defendants volunteered nonpublic facts. See, e.g.,
Napue v. Illinois, 360 U.S. 264, 269 (1959); Devereaux v. Abbey, 263 F.3d 1070, 1074-76
(9th Cir. 2001).

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column by Detective James Trainum describes how he and his colleagues
unintentionally secured a false confession. 127 Trainum explained:
We believed so much in our suspect’s guilt that we ignored all evidence to the
contrary. To demonstrate the strength of our case, we showed the suspect our
evidence, and unintentionally fed her details that she was able to parrot back
to us at a later time. Contrary to our operating procedures at the time, my
colleagues and I chose to videotape the interrogation. This is what saved me
from making a horrible mistake in the long run. It was a classic false
confession case and without the video we would never have known. 128

Similarly, it is possible that officers who did not testify at trial may have
disclosed facts without the knowledge of their colleagues, and failed to tell
their colleagues what transpired.
The trial of Nathaniel Hatchett included a particularly unequivocal denial
that any facts were disclosed to him. The detective testified:
Q. Did you ever supply the Defendant with details, specific details of the
offense so that he would be able to recite them back to you when and if he
decided to give you a statement about his knowledge and involvement with
these crimes?
A. I didn’t.
Q. You say you didn’t, so I will ask the next question: Did you hear anyone
else or see anyone else provide him with the kind of details that he eventually
later gave you demonstrating his knowledge and involvement in this crime?
A. No. As a matter of fact, as lead investigator I was the only one privy to
such details at this point. 129

The case of Earl Washington, Jr. provides another example in which the
law enforcement denials that facts were disclosed formed the crucial evidence
in the State’s case. Washington falsely confessed to a rape and murder in
Culpepper, Virginia. He came within nine days of execution and was in prison
for eighteen years before finally being exonerated by DNA testing.130 A long
string of state and federal courts denied his appeals and postconviction
petitions, citing to the reliability of his confession. Although he was borderline
mentally retarded, the Fourth Circuit emphasized “Washington had supplied
without prompting details of the crime that were corroborated by evidence
taken from the scene and by the observations of those investigating the
[victim’s] apartment.” 131
127. Jim Trainum, I Took a False Confession—So Don’t Tell Me It Doesn’t Happen!,
CA.
MAJORITY
REP.,
Sept
20,
2007,
http://www.camajorityreport.com/
index.php?module=articles&func=display&ptid=9&aid=2306 [hereinafter Trainum, I Took a
False Confession]; see also Jim Trainum, Editorial, Get It on Tape; A False Confession to
Murder Convinced a Cop That a Visual Record Can Help Ensure an Innocent Person Isn’t
Convicted, L.A. TIMES, Oct. 24, 2008, at A23.
128. Trainum, I Took a False Confession, supra note 127.
129. See Motion to Suppress Hearing Transcript at 40, People v. Hatchett, 97-1497-FC
(Mich. Cir. Ct. Sept. 22, 1997).
130. MARGARET EDDS, AN EXPENDABLE MAN at xi-xiii (2003).
131. Washington v. Murray, 4 F.3d 1285, 1292 (4th Cir. 1993).

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Lieutenant Harlan Lee Hart and Special Agent Curtis Reese Wilmore told
prosecutors and then testified at trial that Washington identified as his a shirt
with a torn pocket that was found in the rear bureau of the victim’s bedroom
many months after the murder. The typed statement read as follows:
Hart: Did you leave any of your clothing in the apartment?
Washington: My shirt.
Hart: The shirt that has been shown you, it is the one you left in apartment?
Washington: Yes sir.
Wilmore: How do you know it is yours?
Washington: That is the shirt I wore.
Hart: What makes it stand out?
Washington: A patch had been removed from the top of the pocket.
Wilmore: Why did you leave the shirt in the apartment?
Washington: It had blood on it and I didn’t want to wear it back out.
Wilmore: Where did you put it when you left?
Washington: Laid it on top of dresser drawer in bedroom. 132

This statement was powerful for several reasons. Washington offers in this
statement that he left a shirt, yet the police had not made public that a shirt was
found at the crime scene. Further, he knew about an identifying characteristic
making that shirt unusual: the torn-off patch. He knew precisely where the shirt
had been left, in a dresser drawer in the bedroom. Most remarkable, not only
did Earl Washington, Jr. know of the existence of this shirt and appear to
volunteer where the shirt had been found, but he said that he left it there
because it had blood on it. The shirt that the officers showed Washington no
longer had blood on it. The stains had been cut from the shirt for forensic
analysis. 133 Thus, this appeared to be no mere lucky guess. Washington
appeared to have detailed knowledge concerning this shirt and this crime scene.
The prosecutor emphasized in closing arguments that the police were not
“lying” and “didn’t suggest to him” how the crime had been committed, but
that Washington knew exactly how the crime had been committed.134 The
prosecutor ended the closing statements by discussing the shirt and noting that
Washington knew “the patch was missing over the left top pocket.”135 The
prosecutor continued, “Now, how does somebody make all that up, unless they
were actually there and actually did it? I would submit to you that there can’t
be any question in your mind about it, the fact that this happened and the fact
that Earl Washington Junior did it.”136

132. Statement of Earl Junior Washington 21 (June 4, 1982) (on file with author)
[hereinafter Washington Statement].
133. Trial Transcript at 527-37, 540, 566, Commonwealth v. Washington (Va. Cir. Ct.
Jan. 19, 1984) [hereinafter Washington Trial Transcript]. Officer Buraker testified that
“[w]here these holes were there were reddish stains there at that time. They appeared to be
blood stains. . . . At the laboratory these were cut out, these reddish stains . . . .”). Id. at 566.
134. Id. at 722-23 (Jan. 20, 1984).
135. Id. at 724.
136. Id.

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Now that we know Earl Washington, Jr. did not commit the crime, but
rather another man later identified through a DNA database who has now
pleaded guilty, there are limited explanations for how Washington could have
uttered those remarks concerning the shirt, together with other details
concerning how the crime had been committed. 137 Either the police offered
those facts to him, or the police had actually leaked all of that information to
the public and somehow Washington, a mentally retarded farmhand living in
the next county, heard it all and carefully incorporated it into his confession.
Whether or not the officers intended to misrepresent their interrogation of
Washington, they had provided a version of events that is likely false as to
crucial details, in a case where Washington was sentenced to death.
This was precisely the issue raised in a civil rights lawsuit brought by
Washington after his exoneration. It emerged for the first time during discovery
in that civil rights suit that almost ten years after the conviction and near the
time that Virginia’s Governor was considering a clemency petition based on
postconviction DNA testing, Agent Wilmore for the first time expressed doubts
concerning the interrogation. He admitted the facts were likely disclosed,
telling the Virginia Assistant Attorney General “that he felt like either he or
Hart must have mentioned the shirt to Washington . . . and that his testimony in
the record did not accurately reflect that the shirt had been first mentioned by
the police.” 138 In 2006, a federal jury found that Wilmore had fabricated the
confession and violated Washington’s constitutional rights by at minimum
recklessly and falsely claiming that Washington volunteered crucial nonpublic
facts. That jury awarded Earl Washington, Jr. $2.25 million in compensatory
damages. 139
The Central Park Jogger case also involved a striking detail concerning a
shirt. The prosecutor emphasized in closing arguments that Antron McCray
knew information that only the jogger’s assailant could have known:
You heard in that video Antron McCray was asked about what she was
wearing, and he describes she was wearing a white shirt. This is the shirt that
[the victim] was wearing.
You saw the photograph of what that shirt looked like. There is no way that
you knew that that shirt was white unless you saw it before it became soaked
with blood and mud.
I submit to you that Antron McCray describes details and describes them in a
way that make you know beyond any doubt, beyond a reasonable doubt, that

137. See Maria Glod, Va. Inmate Indicted in Killing That Altered DNA Testing Law,
WASH. POST, Aug. 23, 2006, at A1; Assoc. Press, Tinsley Pleads Guilty to Culpeper Killing,
Apr. 12, 2007.
138. See Washington v. Wilmore, 407 F.3d 274, 277 (4th Cir. 2005) (quoting the
Assistant Attorney General’s memorandum).
139. Jerry Markon, Wrongfully Jailed Man Wins Suit, WASH. POST, May 6, 2006, at B1
(describing that jury awarded $2.25 million after finding that “Wilmore deliberately falsified
evidence, which resulted in Washington’s conviction and death sentence”).

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he was present, that he helped other people rape her and that he helped other
people beat her and that he left her there to die. 140

Similarly, at Nicholas Yarris’s trial, law enforcement emphasized that he
had volunteered two crucial facts: (1) that the victim had been raped, and (2)
that the victim’s car had a brown landau roof.141 A suspect eager to assist law
enforcement might have guessed that a female victim had been raped. The
striking detail was the unusual brown landau roof. Police testified at trial that “a
conscious decision was made not to release any such information and to
safeguard any such information about a rape.”142 Police stated: “The same
pertains to the Landau roof. This is one of the things we decided to keep
confidential in the investigation from the press.”143
The Barry Laughman trial provides another example, where law
enforcement insisted that no facts had been disclosed to Laughman, and
explained that disclosing facts would be improper, testifying that “[w]e don’t
use leading questions. I don’t. I don’t use leading questions.”144
In the majority of these trials—twenty-two cases—prosecutors emphasized
in their closing arguments that the relevant facts were nonpublic or
corroborated by crime scene evidence. In those cases, prosecutors emphasized
that facts were nonpublic and could only have been known by the perpetrator;
in ten exonerees’ trials, prosecutors specifically denied that law enforcement
had disclosed any facts.
For example, in Bruce Godschalk’s case, the prosecution took the position
that “[w]ell, if he were guessing, he was guessing pretty darn good.”145 The
prosecutor, in an incredulous tone, then told the jury that it was a
“mathematically [sic] impossibility” that Mr. Godschalk could have guessed
correctly on so many nonpublic facts regarding how the crime was
committed. 146 In Robert Miller’s case, the prosecutor emphasized that Miller
“described the details . . . . details that only but the killer could have
known.” 147 In response to the defense suggestion that he could have guessed
such details, the prosecutor exclaimed, “Are you kidding? Are you
kidding?” 148 In the Rolando Cruz and Alejandro Hernandez trial, the
prosecutor closed by telling the jury that Cruz had told officers that the victim
140. 13 Trial Transcript at 5291-92, People v. McCray, No. 4762/89 (N.Y. Sup. Ct.
Aug. 8, 1990) [hereinafter McCray Trial Transcript].
141. Trial Transcript at 2-114 to -115, Commonwealth v. Yarris, No. 690-82 (Pa. Ct.
Com. Pl. June 29, 1982) [hereinafter Yarris Trial Transcript].
142. Id. at 2-115.
143. Id.
144. Trial Transcript at 494-95, Commonwealth v. Laughman, CC-458-87 (Pa. Ct.
Com. Pl. Dec. 14, 1988).
145. Trial Transcript at 22, Commonwealth v. Godschalk, No. 934-87 (Pa. Ct. Com. Pl.
May 28, 1987) [hereinafter Godschalk Trial Transcript].
146. Id. at 22-23.
147. Miller Trial Transcript, supra note 72, at 1292.
148. Id.

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“was anally assaulted. There’s no way to know that information. He knows it
because he was there.” 149
This Article does not opine on the state of mind of police or prosecutors.
Police may have failed to properly recall what transpired during the
interrogation, and prosecutors may have relied on what police officers told
them had transpired. Inadvertent or not, the contamination of these confessions
had grave consequences, including wrongful convictions and additional crimes
committed by the actual perpetrators.150
D. Recorded False Interrogations
A surprising number of these false confessions were recorded. Twenty-two
of the thirty-eight cases—or fifty-eight percent—had recordings, but only part
of the interrogation was recorded. Thirteen were audio recorded and nine had
video. Five additional confessions or interrogations were at some point
transcribed by a stenographer. These create a record of what transpired during
selected portions of the interrogations.
Yet where only part of the interrogation was recorded, we do not know
what preceded that recording. Thus, four of the five youths in the Central Park
Jogger case had their interrogation videotaped, but this recording followed their
lengthy initial interrogations. Similarly, three of the Beatrice Six had statements
videotaped, but only after multiple interviews and interrogations by police and
others. 151 In David Allen Jones’s recorded interrogation, when he did not recall
the location of a crime, police reminded him that they had earlier shown him
photos of the crime scene, asking “You remember yesterday we showed you
that picture” and that it was “by the water fountain” and “you remember that
gate we showed you right there,” finally eliciting a response from Jones that
was transcribed as “This right here (Untranslatable).” 152
Steven Drizin notes that it is “not uncommon” for police to conduct an
initial interview in which they “use a gamut of techniques” to secure
149. Trial Transcript at 146, People v. Hernandez, Nos. 84-CF-361-01-12, 84-CF-36201-12, 84-CF-363-01-12 (Ill. Cir. Ct. Feb. 20, 1985).
150. Like Washington, other exonerees filed civil rights lawsuits, and some received
substantial settlements or verdicts, though most have received no compensation. See Garrett,
supra note 2, at 120-21.
151. The author received copies of videotapes taken of portions of the A. Taylor, D.
Shelden and T. Winslow interrogations. The videos are also available on the LINCOLN
JOURNAL-STAR
webpage,
at
http://www.journalstar.com/
app/vmix/media/?section=browse&id=00007011. See also Jason Volentine, Stolen Lives:
The Story of the Beatrice 6 (Part Two), LINCOLN J.-STAR Mar. 16, 2009, available at
http://www.1011now.com/news/headlines/41304322.html; Joe Duggan, Presumed Guilty,
Part Three: The Break, LINCOLN J.-STAR, May 5, 2009, available at
http://www.journalstar.com/special_reports/presumed_guilty/article_21cb7a5e-da01-5f768dfd-2fd3b5f32417.html.
152. Transcription of Taped Interview of David Jones at 33, People v. Jones, No.
BAO71698 (Cal. Super. Ct. Mar. 3, 2005).

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admissions, but do not tape that interview, perhaps because jurors might be
disturbed by coercive or misleading techniques employed; rather police tape a
second interview only once the admissions have been secured.153
Where these innocent people did not know the facts of the crime, they
needed to be repeatedly walked through the crime, and as a result, suggestion
by police was sometimes apparent even in the recorded portions of the
interrogation. For example, in the case of Bruce Godschalk, a taped statement
was taken only after he had confessed and was placed under arrest. 154 During
the suppression hearing and again at trial, the detective read the transcript of the
taped statement aloud. In one striking passage, it appeared that Mr. Godschalk
volunteered the information about the screen on a kitchen window that the
attacker entered as to one of the two rapes he was charged with:
Q. Okay. What window was this? Do you remember? If you remember, you
remember. If you don’t, you don’t. Just say what you remember.
A. Kitchen window.
Q. Okay. You’re saying it was the kitchen window?
A. Yeah.
Q. Okay. How do you remember entering the window? Was the window open
or closed?
A. Closed, with a screen on it.
Q. And how did you get through the screen?
A. Pulling it.
Q. You pulled the screen?
A. Yeah. 155

He added, “[A]m I putting words in your mouth,” and Godschalk answered,
“No.” 156 The detective also described that he spoke to Godschalk for quite
some time before turning on the tape, during this time Godschalk volunteered a
series of specific facts, and before turning on the tape Godschalk was
crying. 157
When he described the conversations before the recording was made, the
detective admitted he disclosed the fact concerning the window. He reported
asking Godschalk how he entered the apartment, and Godschalk said, “Through
the window.” 158 He then reported asking Godschalk, “Was there a screen on
the window?” 159 He then asked Godschalk, “What did you do with that?” and
reported that Godschalk answered, “I removed it.”160 This is a very different
sequence than in the recording, in which Godschalk volunteered without
153. Maura Dolan & Evelyn Larrubia, Telling Police What They Want To Hear, Even if
It’s False, L.A. TIMES, Oct. 30, 2004, at A1.
154. See Godschalk Trial Transcript, supra note 145, at 86 (May 26, 1987).
155. Id. at 121 (May 27, 1987).
156. Id. at 131.
157. Id. at 143-44.
158. Id. at 70 (May 26, 1987).
159. Id. at 71.
160. Id.

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prompting to have entered a window, specifically a kitchen window, and
having entered the window by pulling a screen.
Godschalk testified on the stand that detectives had initially told him all of
the telling facts that he reportedly volunteered.161 However, the detective
denied disclosing any such facts. Indeed, he described that Godschalk had
volunteered additional nonpublic facts, such as the fact that the victim had a
tampon, before the recording was made. 162 Similarly, as to the second rape, the
detective stated that Godschalk had admitted before being taped a series of
facts that the detective was clear had not been made public, including very
unusual facts, such as that a pillow from the victim’s son’s bedroom was used
during the assault. 163
In Nicholas Yarris’s case, law enforcement emphasized that the two crucial
facts he volunteered, concerning the rape and that the victim’s car had a brown
landau roof, were offered in additional conversation that was not part of the
normal statement, and therefore were not on the tape or transcribed, and indeed,
were part of a conversation during which no notes were taken.164
In the case of David Vasquez, just as in David Allen Jones’s case, even in
the portion of the interrogation that was recorded, leading questions were asked
about key issues. In that case, the crucial nonpublic information contained in
the confession was the type of cord used to bind the victim and to hang her.
The police determined “that the bindings used to secure [the victim’s] hands
had been cut from the venetian blinds in the sunroom. The noose employed for
her execution had been cut from a length of rope wrapped around a carpet in
her basement.” 165 It was obvious from the recording of the interrogation that
Vasquez had no idea what was used to bind and murder the victim:
Det. 1: Did she tell you to tie her hands behind her back?
Vasquez: Ah, if she did, I did.
Det. 2: Whatcha use?
Vasquez: The ropes?
Det. 2: No, not the ropes. Whatcha use?
Vasquez: Only my belt.
Det. 2: No, not your belt . . . . Remember being out in the sunroom, the room
that sits out to the back of the house? . . . and what did you cut down? To use?
Vasquez: That, uh, clothesline?
Det. 2: No, it wasn’t a clothesline, it was something like a clothesline. What
was it? By the window? Think about the Venetian blinds, David. Remember
cutting the Venetian blind cords?
Vasquez: Ah, it’s the same as rope?

161.
162.
163.
164.
165.

Id. at 129.
Id. at 85, 144 (May 27, 1987).
Id. at 78-80 (May 26, 1987).
Yarris Trial Transcript, supra note 141, at 2-133 to -135.
Memorandum in Opposition to Defendant’s Motion to Suppress Statements at 12, Commonwealth v. Vasquez, C-22,213 to -22,216, C-22,763 (Va. Cir. Ct. Oct. 1984)
[hereinafter Vasquez Opposition Memorandum].

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Det. 2: Yeah.
Det. 1: Okay, now tell us how it went, David—tell us how you did it.
Vasquez: She told me to grab the knife, and, and, stab her, that’s all.
Det. 2: (voice raised) David, no, David.
Vasquez: If it did happen, and I did it, and my fingerprints were on it . . .
Det. 2: (slamming his hand on the table and yelling) You hung her!
Vasquez: What?
Det. 2: You hung her!
Vasquez: Okay, so I hung her. 166

During Thomas Winslow’s videotaped confession, the Deputy Sheriff
repeatedly suggested information to him, such as the way that one would reach
the victim’s apartment, asking “Did you go up some stairs or down the stairs?”
When Winslow responded after a sigh and a long pause that he was not sure,
the Deputy Sheriff stated, “let me help you refresh your memory a little bit.” 167
When Winslow still claimed not to know anything more, the Deputy Sheriff
shut off the video for fifty minutes to give Winslow time to “think about it” and
speak to his attorney; upon resuming the video, Winslow claimed to remember
more, including entering the victim’s apartment along with the other codefendants. 168
Chris Ochoa has since his exoneration described blatant abuse of
recording, in which the Austin Police Department detective asked Ochoa
leading questions concerning how the crime occurred, but none of that
questioning was on the tape. According to Ochoa’s recounting, the detective
would stop the tape each time that Ochoa “‘came to a detail’” and “‘it was
wrong.’” The officers would “‘get mad,’” and show him photographs of the
crime scene and the autopsy or tell him the answers, and then “‘start it, stop it,
till they got the details. It took a long time.’” 169 But at Richard Danziger’s trial,
when asked, “Did anyone in the Police Department tell you the facts of this
crime so that you could make these statements?” he had answered, “No, they
did not.” 170 Similarly, in Jerry Frank Townsend’s case, the detectives’ tape
recorder was turned on and off frequently during days of interrogations.
Richard Ofshe reviewed the taped statements years later and concluded that it
166. Am. Civil Liberties Union, Mentally Retarded Death Row Exonerations,
http://www.aclu.org/capital/mentalretardation/10435pub20031209.html (last visited Nov. 15,
2009); see also Dana Priest, At Each Step, Justice Faltered for VA Man, WASH. POST, July
16, 1989, at A1.
167. See Volentine, supra note 151.
168. See Videotape: Interrogation of Thomas Winslow by Burt Searcey of the Gage
County Sheriff’s Office (Mar. 14, 1989) (on file with author), available at
http://www.journalstar.com/app/vmix/media/?section=video&id=7001609; see also Duggan,
supra note 150. As noted supra note 152, the interrogation videos are available for viewing
on the LINCOLN JOURNAL-STAR webpage.
169. LEO, supra note 7, at 261; see also Diane Jennings, A Shaken System, DALLAS
MORNING NEWS, Feb. 24, 2008, at A1 (“An Austin Police Department review later found
‘strong indications that investigators supplied Ochoa with information . . . .’”).
170. Danziger Trial Transcript, supra note 70, at 1046.

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was “‘painfully and embarrassingly obvious that these police detectives stop
the tape for the purpose of prepping him on what to say.’”171
The other interrogations were not recorded, in some cases despite a police
department practice of doing so. In Dennis Brown’s case, for example, police
testified that they normally recorded interrogations, but they “chose not to turn
it on” in that case because the defendant just started talking.172 In Ron
Williamson’s case, his initial statement following a polygraph examination was
videotaped, and he emphatically protested his innocence. That tape was not
provided to defense counsel, and in granting Williamson’s habeas petition
years later, the federal district court emphasized that it called into question why
the officer “videotaped the denial but did not videotape the alleged
confession.” 173
E. Mistaken Facts
In a few cases, police may have inadvertently suggested mistaken facts due
to their incomplete knowledge about the crime scene evidence, which turned
out to be inaccurate based on later information in the case. These mistakes
provide insight into the limitations of officers’ abilities to construct a
confession narrative, particularly with a suspect who may have no knowledge
of the crime. For example, recall how Bruce Godschalk initially described
entering the kitchen window of one victim’s apartment. However, that
apartment had no kitchen windows. The detective claimed that Godschalk later
changed this statement to say he had entered through a spare bedroom. 174
In Earl Washington, Jr.’s case, the typed confession included this
interchange:
Hart: Did you remove any of her clothing?
Washington: Yes sir.
Hart: What clothing?
Washington: The halter top. 175

That statement was problematic, where the inventory of the clothing from
the crime scene included no halter top, but rather a sundress. Further, it was not
the sort of term that would be expected from Washington’s limited vocabulary.
It emerged in civil discovery years later that an initial police report reported
that the victim was “[n]ude except for a halter top.” The officers may have
inadvertently placed in Washington’s mouth words that they had mistakenly
thought accurately reflected the crime scene evidence. 176
171. Amy Driscoll, Taped Confessions So Flawed They’re ‘Worthless,’ Expert Says,
MIAMI HERALD, June 15, 2001 at 33A.
172. Brown Trial Transcript, supra note 107, at 97.
173. Williamson v. Reynolds, 904 F. Supp. 1529, 1565 (E.D. Okla. 1995).
174. See Godschalk Trial Transcript, supra note 145, at 71-72 (May 26, 1987).
175. See Washington Statement, supra note 132, at 5.
176. See EDDS, supra note 130, at 255.

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In some cases, the exoneree now denies ever having even repeated back
some of the statements that law enforcement attributed during the interrogation.
Lowery, in his civil suit, alleged he repeated certain facts that officers had
disclosed to him, but that the officers in their testimony at trial, fabricated still
additional facts which he did not even utter.177 Similarly, in the Central Park
Jogger case, Yusef Salaam denies having uttered the inculpatory remarks
reflected in the police report prepared after the interrogation. 178
F.

Guessed or Public Facts

A compliant or willing suspect could have guessed some details concerning
these crimes, such as very general features of a rape or a murder. However,
very specific details corroborated by other evidence were provided in all but
two of these cases. In that of Travis Hayes, there was no allegation that he had
provided any nonpublic facts concerning the incident. The crime was a
convenience store robbery that occurred in the open with a number of
witnesses. Hayes was seventeen years old and interrogated from 11 p.m. until
after 5 a.m. the next day.179 His taped interrogation offered few details, and
chiefly inculpated codefendant Ryan Mathews as the shooter. Hayes claimed
not to know anything about what happened in the convenience store, and that as
merely the getaway driver, he “didn’t see a gun or anything else like that.”180
DNA testing at the time of trial on the mask worn by the shooter excluded both
Hayes and Mathews, but they were both convicted.181 In the second case, that
of Freddie Peacock, the defendant was mentally disabled and could tell the
police only, “I did it, I did it. I raped a girl. I did it.”182 The detective
177. Those facts included: “a. driving up and parking by the side of a house in Ogden;
b. the house was white; c. the house was on a corner; d. entering by using his hand to tear
open the screen door and reaching inside and lifting the latch to the screen door; e. picking
up a silver table knife, a dinner knife; f. walking down a hallway (or in Malugani’s testimony
a living room area); g. being frightened that the woman would wake up and see him, so
jumping on the bed; h. striking the victim with the handle of the knife in the head several
times; i. describing that he “screwed” the victim; j. leaving the same door that he entered.”
Complaint at 16-17, Lowery v. County of Riley, No. 04-3101-GTV (Kan. D. Ct. Mar. 25,
2004).
178. See McCray v. City of New York, Nos. 03 Civ. 9685(DAB), 03 Civ. 9974(DAB),
03 Civ. 10080(DAB), 2007 WL 4352748, at *4 (S.D.N.Y. Dec. 11, 2007) (“Plaintiff Salaam
submits only that it is alleged, presumably by Defendants, that he made an inculpatory
unsigned statement.”).
179. Trial Transcript at 217, 231, State v. Hayes, No. 97-3780, (La. Dist. Ct. Dec. 2,
1998) [hereinafter Hayes Trial Transcript].
180. Id. at 64. Steven Drizin called the confession “the most naked, uncorroborated
false confession I’ve ever seen.” Michael Perlstein, A Forgotten Man: Prosecutors Refuse to
Reconsider Inmate’s Case Despite Evidence Supporting His Claim, TIMES-PICAYUNE, Oct.
10, 2004, at O1.
181. See The Innocence Project, supra note 2.
182. See Trial Transcript at 270, People v. Freddie Peacock, #989-76 (NY Sup. Ct.
Dec. 13, 1976) [hereinafter Peacock Trial Transcript].

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acknowledged that Peacock “couldn’t recall the details” regarding how the
crime took place, although he tried during the interrogation to supply him with
details, including the identity of the victim.183
In only one of these cases is there any suggestion after the fact that the
suspect learned of a crucial nonpublic fact in the community because police had
leaked information. In the Eddie Joe Lloyd case, a series of facts were likely
disclosed to him. However, Lloyd later claimed he had known of one particular
striking fact—that the killer left a green bottle at the crime scene. The
prosecutor emphasized that the crime scene
area was secured, no one else was allowed in and it wasn’t until sometime
later when Officer Degalan and the evidence technician, Officer Babcock,
went inside that garage and ended up moving the body that the bottle fell out.
That was the first time they knew about it, and as Officer Degalan indicated
that was not a publicized matter. . . . Aside from [those officers,] the only
other person who would have known about that was the killer, Mr. Lloyd. 184

After being exonerated by postconviction DNA testing, Lloyd said he had
“overheard someone at a party store mention a bottle, a detail that had not been
released to the public but may have been known to those in the search party.”
Whether that occurred or not, Lloyd described that detectives told him a series
of other facts during three interviews conducted while he was involuntarily
committed at a mental hospital. The detective “‘provided me with quite a bit of
information about the case,’ Mr. Lloyd recalled. ‘He said, “What kind of jeans
was she wearing?” I said, “I don’t know.” He said, “What kind do you think?” I
said, “Jordache.” He said, ‘No, Gloria Vanderbilt.’” Lloyd stated that the
detective “guided him through a sketch of the garage, among other details. ‘The
emphasis was on, “You want to help us, right?”’ he said. ‘I said, “Sure, I want
to help any way I can.”’” 185
During Robert Miller’s trial, the defense did not claim that facts were
disclosed, but that the defendant, when recounting his “dreams” or “visions”
for the most part relayed incorrect facts totally inconsistent with the crime
scene, and happened to be correct with regard to some because of his
familiarity with the neighborhood and neighborhood rumors, and his
knowledge of public facts. 186 Yet as the prosecutor emphasized in closing,
Miller had in other respects confessed with great specificity, providing a series
of corroborated and “intricate” details that would not have been made public by
law enforcement. 187 The inconsistent information may have been truly
volunteered, but the corroborated details in contrast may have been disclosed
183. See id. at 276-78.
184. 3 Trial Transcript at 40-41, People v. Lloyd, No. 85-00376 (Mich. Rec. Ct. May 2,

1985) [hereinafter Lloyd Trial Transcript].
185. See Jodi Wilgoren, Confession Had His Signature; DNA Did Not, N.Y. TIMES,
Aug. 26, 2002, at A1.
186. See Miller Trial Transcript, supra note 73, at 1267-72.
187. Id. at 1289-92.

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and the interrogation contaminated.
G. Crime Scene Visits
In fourteen of the thirty-eight cases—or thirty-eight percent—police
brought the exonerees to the crime scene. The visits allowed police to test the
knowledge of how the crime occurred and to gather facts. The visits could also
provide a chance to review with the exoneree how the crime occurred. They
could also be used to disclose facts. For example, Ronald Jones testified that
police used a crime scene visit as an occasion to tell him how the crime
occured, stating that a detective “was telling me blood stains on the floor and
different clothing that was found inside of the abandoned building,” and that
the victim “was killed with a knife, and she was stabbed, three or four
times.” 188 Debra Shelden noted at Joseph White’s trial that she changed her
mind about certain facts in her account after being shown the crime scene, or,
as she put it, “[w]hen I had the tour of the apartment building. When I went on
the ride with the cops.” 189 Such visits were not recorded. Crime scene visits
occurred in the Central Park Jogger case, in which all five youths were brought
to the scene, as well as in the Paula Gray, David Allen Jones, Ronald Jones,
William Kelly, John Kogut, Robert Miller, Debra Shelden, Jerry Townsend,
and Earl Washington, Jr. cases. Each reportedly identified features of the crime
scenes that were nonpublic and corroborated by the investigation.
Earl Washington, Jr. led police to locations all around Culpepper, Virginia,
having had no idea where the victim was murdered. 190 Even after being driven
right in front of the victim’s building several times, he did not identify it. When
the police then asked him to point to her building once in the apartment
complex he pointed to “the exact opposite end” of the complex, and it was only
when the officer pointed to her apartment and asked if that was it, he finally
“said that it was.” 191 In other exonerees’ cases, police did not describe such
uncertainty, so it remains quite questionable how absent police prompting,
innocent suspects could have described on their own what transpired at these
crime scenes.
H. Inconsistencies and Lack of Fit
The Inbau and Reid treatise cautions that “[m]any investigators have the
impression that once a confession has been obtained, the investigation is ended,
but seldom, if ever, is this true” where a confession must be substantiated by

188. Trial Transcript at 122, 157, People v. Jones, No. 85-12246 (Ill. Cir. Ct. 1989)
[hereinafter Jones Trial Transcript].
189. White Trial Transcript, supra note 115, at 787 (Nov. 3, 1989).
190. Washington Trial Transcript, supra note 133, at 622-24.
191. Id. at 625.

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other evidence to be convincing at trial. 192 In these cases, police often ceased
their investigation once they obtained a confession, and, in doing so, they not
only failed to substantiate the confession but failed to investigate glaring
inconsistencies between the confession and crime scene evidence.
The vast majority of these exonerees made statements in their
interrogations that were contradicted by crime scene evidence, victim accounts,
or other evidence known to police during their investigation. In Deskovic’s
case, for example, an inquiry later conducted by the District Attorney’s office
concluded:
[A]ll investigation ceased after police obtained Deskovic’s purported
confession. The prosecution apparently did little or nothing to corroborate the
theories it employed to square the scientific evidence with Deskovic’s guilt.
There is no evidence, for example, that much was done to locate the
“boyfriend” who was the supposed source of semen or even to document [the
victim’s] movements in the 24 hours before her death. 193

In Deskovic’s case the problem of the source of the semen was particularly
glaring because, although the state’s theory was that he raped and murdered the
victim alone, the DNA results at the time of trial excluded him. 194 Indeed,
eight of these exonerees were excluded by DNA testing conducted at the time
of their trial and seven of them were exonerated after postconviction testing not
only excluded them but inculpated another person. 195
In LaFonso Rollins’s case, exculpatory forensic evidence was concealed—
apparently because he had confessed. The crime lab technician had found that
serology from the rape kit excluded Rollins and had asked his supervisors to
send the kit to the FBI for DNA testing, but as he later testified in a deposition,
“his request was refused because police said Rollins confessed.” 196 In the
Beatrice Six case, all of the suspects who confessed had been excluded by
conventional serology testing. Moreover, a botched serological test also
excluded a suspect who was not pursued, but who years later was identified by
DNA testing as the actual perpetrator. 197
Crucial to assessing the reliability of the postadmission narrative provided
during an interrogation is analysis of what suspects say when they are not
prompted by law enforcement. An innocent person, without prompting, should
not be able to volunteer specific crime information. While these innocent
192.
193.
194.
195.

Inbau et al., supra note 64, at 390.
See Deskovic Report, supra note 10, at 5.
See id. at 2.
The eight are: J. Deskovic, N. Hatchett, T. Hayes, A. McCray, K. Richardson, R.
Santana, Y. Salaam, and K. Wise. All of them were exonerated after postconviction testing
inculpated another person except in the case of N. Hatchett. See Brandon L. Garrett,
Claiming Innocence, 92 MINN. L. REV. 1629, 1660 (2008).
196. Maurice Possley, Lab Didn’t Bother with DNA, CHI. TRIB., Aug. 25, 2006, § 1, at
1.
197. See Jason Volentine, Stolen Lives: The Story of the Beatrice Six (Part Three),
1011NOW.COM, Mar. 17, 2009, http://www.1011now.com/home/headlines/41402917.html.

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suspects had specific facts disclosed to them, most were at times asked to
volunteer information, and because they were innocent, they got those facts
wrong. As Richard Ofshe and Richard Leo have developed, “the reliability of a
confession statement can usually be objectively determined by evaluating the
fit between a post-admission narrative and the crime facts.”198
In at least twenty-eight of these thirty-eight cases—or seventy-four
percent—the exoneree supplied facts during the interrogation that were
inconsistent with the known facts in the case.199 In those cases, there were
indicia of unreliability at the time of the investigation. Prosecutors then had to
explain these inconsistencies to the jury by downplaying them and emphasizing
instead the powerful nonpublic facts that each had supposedly volunteered.
Earl Washington, Jr.’s case provides a classic example of a lack of fit.
Police later described two stages of the interrogation. In the initial stage,
whenever he was not asked a leading question, he got the answers wrong. He
told police that the victim was black when she was white.200 He described
stabbing the victim a few times when she was stabbed dozens of times. He
described the victim as short when she was tall. He said he “didn’t see” anyone
else in the apartment, when the victim’s two children were there. 201 It was
clear he knew nothing about the crime but, ever compliant, would agree with
whatever was posed to him. The prosecution, as described, instead emphasized
how in the second stage of the interrogation, Washington reportedly
volunteered that he left his shirt at the crime scene, which we now know he
never volunteered.
Earl Washington, Jr. had, in fact, confessed to four additional crimes; he
confessed to every crime he was asked about, but in the other cases the victims
were not deceased and told police he was not the assailant, or the confessions
were deemed totally inconsistent with how the crimes occurred.202 Similarly,
Jerry Frank Townsend confessed to “numerous” unsolved murders, most in
Florida, and six of which he was charged with. 203
Byron Halsey was also highly compliant with police interrogators. Halsey
made multiple incorrect guesses as to the manner in which a gruesome rape and
murder of two children occurred. When asked how he put nails into one
victim’s head, the officer recounted, “His initial response was crowbar. He

198. See Ofshe & Leo, supra note 5, at 1119.
199. In other cases, the law enforcement account of the interrogation does not describe

any statements made inconsistent with the crime, but absent a complete recording of the
interrogation, one cannot be confident what transpired.
200. Washington Trial Transcript, supra note 133, at 596.
201. Id. at 618.
202. See, e.g., Eric M. Freedman, Earl Washington’s Ordeal, 29 HOFSTRA L. REV.
1089, 1091-92 (2001).
203. Ardy Friedberg & Jason T. Smith, Townsend Released, SUN-SENTINEL (Ft.
Lauderdale, Fla.), June 16, 2001, at 1A; Paula McMahon & Ardy Friedberg, Evidence Could
Free Inmate, SUN-SENTINEL (Ft. Lauderdale, Fla.), May 8, 2001, at 1B.

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grinned at us.” A lieutenant then “said to him, ‘Now, Byron, you want to give
us a truthful statement? You know, a crowbar, is that the truth?’ Then he came
up and he said, ‘Hammer.’ He grinned again. . . . Then he mentioned chair. He
grinned again.” 204 The perpetrator actually used a brick to put nails into the
victim’s forehead. Following that interchange, the officer recalled that “he
finally did tell us what he used to drive the nails into [the victim’s] head.” The
prosecutor asked, “Any time was it suggested to the defendant what the answer
should be?” and the officer answered, “No.” 205 The final admission that he
“used the brick” was important at trial: “The significance of the device used
was that the state ran a laboratory analysis on the brick. A substance found on
the head of the nails removed from [the victim] was consistent with the
components of the brick.” 206
The prosecution in closings not only denied that any facts were disclosed,
but, noting inconsistencies, argued that misstatements regarding the crimewere
all part of a strategy by Halsey: “You know why, ladies and gentlemen,
because he thinks he’s just given a sworn statement that’s going to let him
off.” 207 The prosecutor added, “he’s trying to mislead . . . he’s trying to lie his
way out of this in that confession in which he is so contrite, and he’s so
penitent.” 208
Robert Miller’s case also involved striking inconsistencies in a long,
partially taped interrogation, including where he claimed “one of the victim’s
[sic] was only a little older than himself. She was eighty-three at the time of her
death and Miller was twenty-eight.”209 The prosecutor explained in closings
that the defense attorney:
[T]alked about all of the inconsistencies that Robert Miller injected into those
13 hours. And he did. He threw in a lot of garbage. Let me ask you a question.
The fact that he threw in a lot of garbage, does that explain how he knew all
those other little details? He knew those details. He knew the intricate details.
How did he know them? . . . [I]f you listened carefully, these detectives never
once suggested an answer to him. 210

In cases in which the exoneree inculpated others, inconsistencies often
arose concerning which person committed which acts. For example, Chris
Ochoa admitted in Richard Danziger’s trial that he lied about facts inconsistent
with his later accounts of the crime, particularly whether he or Danziger was
the shooter. 211

204. Trial Transcript at 114-15, State v. Halsey, Nos. 63-01-86, 210-02-87 (N.J. Super.
Ct. Mar. 7, 1988) [hereinafter Halsey Trial Transcript].
205. Id. at 115.
206. State v. Halsey, 748 A.2d 634, 637 (N.J. Super. Ct. App. Div. 2000).
207. Halsey Trial Transcript, supra note 204, at 112-13.
208. Id. at 119.
209. The Innocence Project, supra note 2.
210. Miller Trial Transcript, supra note 72, at 1289.
211. Danziger Trial Transcript, supra note 70, at 1006-09.

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The Central Park Jogger case was replete with inconsistent statements by
the five youths convicted; the District Attorney later agreed that their accounts
differed on the details of “virtually every major aspect of the crime.”212 Those
major details included information regarding who initiated the attack, who
knocked [the victim] down, who held her, who undressed her, who struck her,
who penetrated her, what weapons were used during the attack, the location of
the attack, the time of the attack, and when in the sequence of events the attack
took place. 213

Their “statements were also inconsistent with facts of the crime,” and
“contradicted the physical evidence.”214 As in the other exonerees’ cases,
however, those inconsistencies did not prevent a conviction at trial.
I.

Litigating Contamination of Confessions at Trial

Although many of these false confessions betrayed indicia of unreliability
at the time of trial, the issue was rarely litigated because courts conduct very
limited reliability review. The Supreme Court’s early voluntariness
jurisprudence focused on the question of reliability, including whether police
demanded that a suspect conform to their account of how a crime occurred.215
By the 1960s, the Court’s voluntariness jurisprudence focused instead on the
formal question whether police pressure overwhelmed the suspect’s will, even
in cases where the confession appeared grossly unreliable. The Court has stated
that “the circumstance of probable truth or falsity . . . is not a permissible
standard” under the Due Process Clause, and the proper question instead is
whether the confession was “freely self-determined.” 216
Due to the Court’s rejection of the consideration of “probable reliability”
of a confession, 217 even grossly unreliable confessions may be admitted if
found not to have been the product of affirmative police coercion. In Colorado
v. Connelly, a case in which the schizophrenic defendant thought he was
hearing the “voice of God” during his interrogation (he was later medicated for
six months before found competent to stand trial for murder), 218 the Court
found that where no overt police pressure was applied to him, there was no
“essential link between coercive activity of the State, on the one hand, and a
resulting confession by a defendant, on the other.”219 The Court summarized
212. McCray v. City of New York, Nos. 03 Civ. 9685(DAB), 03 Civ. 9974(DAB), 03
Civ. 10080(DAB), 2007 WL 4352748, at *5 (S.D.N.Y. Dec. 11, 2007) (quoting district
attorney’s affirmation regarding 2002 motion to vacate convictions).
213. Id. (citing plaintiffs’ complaints).
214. Id.
215. Culombe v. Connecticut, 367 U.S. 568 (1961); Stephen J. Schulhofer, Confessions
and the Court, 79 MICH. L. REV. 865, 867 (1981); White, supra note 26, at 2012-13.
216. Rogers v. Richmond, 365 U.S. 534, 543-44 (1961).
217. Id. at 544.
218. 479 U.S. 157, 161 (1986); id. at 175 (Brennan, J., dissenting).
219. Id. at 165.

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the turn in its jurisprudence, stating that though a confession statement “might
be proved to be quite unreliable . . . this is a matter to be governed by the
evidentiary laws of the forum, . . . not by the Due Process Clause of the
Fourteenth Amendment.” 220
Looking beyond federal constitutional law, state corpus delicti and
corroboration rules require some evidence that the confession is reliable. As
one court explains, “There should always be something more than a mere
naked confession of one accused, to justify a verdict of guilty.”221 Similarly,
the common law corpus delicti requirement seeks to avoid the danger “that an
accused may confess to an imaginary crime rather than a real crime.” 222
However, courts often require only very thin corroboration, such as some
evidence of an injury caused by a crime. 223 For example, the court’s jury
instruction in Bruce Godschalk’s case merely informed the jury that in order to
consider the confession they must “find that a crime was in fact committed”
based on any evidence “apart from the statement itself,” and that “[t]he other
evidence need not tend to show that the crime was committed by the defendant,
only that a crime was committed.”224 Similarly, in the Central Park Jogger
case, the appellate court found Antron McCray’s confession sufficiently
corroborated based simply on “evidence that a rape was committed, even if it
did not establish defendant’s identity.”225 A handful of states and federal courts
exclude confessions if there is no indicia of any reliability, based on a
“trustworthiness” standard. That standard requires some independent
corroborating evidence supporting the confession, but scant evidence satisfies
the test. Though courts look at whether the defendant offered facts corroborated
by the investigation, they also look generally to the circumstances of the
confession and whether it appeared voluntary. 226 Thus, no courts currently
conduct a full examination of a confession’s reliability.
Seventeen of the thirty exonerees who falsely confessed and were
convicted at trial testified at trial recanting their confession and asserting their
innocence. Many asserted that police had fed them details concerning the
crime. For example, John Kogut testified, “Nothing was asked of me.
Everything was told to me.” 227 The others may have failed to testify fearing the
prejudicial introduction of prior criminal convictions, or because their lawyers

220. Id. at 167.
221. People v. Robson, 80 P.3d 912, 913 (Colo. App. 2003) (quoting Dougherty v.

People, 1 Colo. 514, 524 (1872)).
222. People v. Rooks, 243 N.Y.S.2d 301, 311 (N.Y. Sup. Ct. 1963).
223. See Leo et al., supra note 43, at 510-11.
224. Godschalk Trial Transcript, supra note 145, at 236-37 (May 27, 1982).
225. People v. McCray, 604 N.Y.S.2d 93, 95 (N.Y. App. Div. 1993).
226. See Leo et al., supra note 43, at 508 (citing case law); see also, e.g., State v.
Mauchley, 67 P.3d 477, 488 (Utah 2003).
227. Trial Transcript at 824, People v. Kogut, No. 61029 (N.Y. Sup. Ct. May 13, 1986)
[hereinafter Kogut Trial Transcript].

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did not think their recantation would be compelling.228
One third of these defendants—ten—had their attorneys argue at trial that
the confession was contaminated, at least in the materials obtained which
sometimes omitted pretrial motions. They typically had little evidence to
support an allegation that facts had been disclosed. For example, Eddie Joe
Lloyd’s lawyer did not maintain his client’s innocence in his closing arguments
and conceded that the confession left him “bewildered.” 229 Attorneys typically
did not focus on reliability, as no legal theory typically supported relief for an
unreliable confession, but rather on criminal procedure claims concerning the
voluntariness of the statements and whether the defendant had the capacity to
understand Miranda warnings or to be tried. As will be developed below, while
gross unreliability typically lacks any legal remedy, courts often emphasized
apparent reliability in denying motions to suppress the seeming reliability of
these confessions. The next Part turns to those criminal procedure rules.
III. FALSE CONFESSIONS AND CONSTITUTIONAL CRIMINAL PROCEDURE
This Part turns from the substance of false confessions to criminal
procedure. At trial, almost all exonerees’ defense attorneys tried to suppress the
confessions as coerced or involuntary. Perhaps in part because these
confessions were bolstered by contaminated facts, despite indicia of
involuntariness in many of these cases, courts ruled each of these confessions
voluntary and admissible. This Part explores the reasons courts provided when
finding these confessions voluntary under the Fifth Amendment and examining
the evidence of coercion presented by exonerees and disputed by the State. The
last Subparts describe how these exonerees fared during appeals and then
discusses eight exonerees’ cases in which inculpatory statements were
volunteered outside the custodial setting.
A. Miranda Warnings
The Court’s Miranda protections are intended to avoid difficult
voluntariness questions by providing notice in the interrogation room of certain
rights. All of these exonerees waived their rights under Miranda v. Arizona. 230
Scholars have concluded that the vast majority of all suspects similarly waive
their rights; these innocent suspects acted no differently than the typical
suspect. 231 Not one of these thirty-eight exonerees obtained an attorney before
228. John H. Blume, The Dilemma of the Criminal Defendant with a Prior Record—
Lessons from the Wrongfully Convicted, 5 J. EMPIRICAL LEGAL STUD. 477 (2008).
229. 3 Lloyd Trial Transcript, supra note 184, at 37.
230. 384 U.S. 436 (1966).
231. Richard A. Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY
266, 276 (1996) (presenting results of study of 122 interrogations and finding that seventyeight percent involved Miranda waivers); see also Steven D. Clymer, Are Police Free To

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or during their interrogation. 232 Twenty-two exonerees had signed waiver
forms and ten waived their rights on video. Many had been interrogated or
provided admissions of wrongdoing before law enforcement considered them
to be in custody and before any Miranda warnings were provided. In many of
those cases, law enforcement used a “question-first” gambit, by eliciting
admissions and then subsequently providing the warnings.233 The Supreme
Court has approved such an approach, though only if the circumstances present
“a genuine choice whether to follow up on the earlier admission.”234
Although the Miranda warnings did not benefit any of these innocent
suspects, the waiver of those rights impeded later efforts to challenge their false
confessions. Illustrating the dispositive role that provision of Miranda warnings
can play, in David Vasquez’s case, there was a partially recorded interrogation
in which outright feeding of facts was apparent from the recording. The Court
excluded initial statements elicited through use of “good guy/bad guy methods
of interrogation and the careful use of factual misstatements of the evidence.”
However, despite the audio recording of quite egregious feeding of facts quoted
earlier, the Court found the follow-up interrogation admissible, chiefly relying
on the delivery of Miranda warnings with no “application of any duress or
force” and also based “on the conflicting evidence given by the
psychiatrists.” 235
Perhaps most remarkable of the rulings concerning Miranda warnings was
at the trial of Eddie Joe Lloyd. Just the location of the interrogation should have
been glaring evidence of his mental illness and suggestibility. Lloyd had been
interviewed while he was involuntarily committed in a mental hospital, with a
preliminary diagnosis of bipolar affective disorder. 236 The trial court still ruled
his statements voluntary, noting “[a]fter he is advised of his rights, it doesn’t

Disregard Miranda?, 112 YALE L.J. 447, 502-12 (2002); Richard A. Leo, Questioning the
Relevance of Miranda in the Twenty-First Century, 99 MICH. L. REV. 1000, 1009-10 (2001);
Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REV. 673, 745 (1992) (noting the
Court excluded confessions more often pre-Miranda).
232. Several defendants in the Beatrice Six case, while interrogated initially absent
their attorneys, later made videotaped confession statements with their attorneys present.
233. The Yarris and Godschalk cases discussed supra in notes 141 and 145 are
examples.
234. Missouri v. Seibert, 542 U.S. 600, 615-16 (2004); see also id. at 610-11 n.2
(“Most police manuals do not advocate the question-first tactic, because they understand that
Oregon v. Elstad, 470 U.S. 298 (1985), involved an officer’s good-faith failure to warn.”);
Oregon v. Elstad, 470 U.S. 298, 318 (1985) (holding that even if an initial confession was
obtained improperly, such as without Miranda warnings, a subsequent second confession
after properly administered warnings is admissible); Oregon v. Mathiason, 429 U.S. 492,
495 (1977) (“Miranda warnings are required only where there has been such a restriction on
a person’s freedom as to render him ‘in custody.’”).
235. Memorandum from Judge William L. Winston on Commonwealth v. Vasquez,
Nos. C-22213-22216, C22763 (Va. Cir. Ct. Jan. 25, 1985) [hereinafter Vasquez Winston
Memorandum].
236. 3 Lloyd Trial Transcript, supra note 184, at 20.

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make a difference what form [the interrogation] takes.”237 This use of Miranda
to short-circuit a meaningful inquiry into the voluntariness of a confession
supports scholarship questioning whether Miranda remains relevant and,
indeed, whether its influence can be harmful. 238
B. Indicia of Involuntariness
The Supreme Court’s voluntariness standard examines the “totality of all
the . . . circumstances” surrounding the confession to assess whether the
confession was coerced, focusing on “the characteristics of the accused and the
details of the interrogation.” 239 The prosecution has the burden to show that no
undue coercion was applied to the suspect.240 The Court has explained that the
“ultimate test” focuses on the question of whether the confession is “the
product of an essentially free and unconstrained choice by its maker . . . If it is
not, if his will has been overborne and his capacity for self-determination
critically impaired, the use of his confession offends due process.” 241 Trial
courts conduct pretrial hearings to examine the question of whether the
confession was voluntary and should be admitted. All of these false confessions
were admitted, and the trial court rulings themselves will be discussed next. It
should not be surprising that they were admitted, as the voluntariness standard
is forgiving and vague. 242
Although courts admitted these exonerees’ confessions, perhaps properly,
many of these confessions raised significant indicia of involuntariness at the
time. The Court has identified several indicia of involuntariness.243 One set of
factors related to whether the suspect was vulnerable to coercion. Thus, one
factor the Court has long taken into account is “the youth of the accused.”244
237. Id. at 78-79 (May 1, 1985).
238. See, e.g., Paul G. Cassell, Miranda’s Social Costs: An Empirical Reassessment, 90

NW. U. L. REV. 387, 498 (1996) (arguing that “the undeniable tragedy of the Miranda
decision is that it has blocked the search for superior approaches to custodial interrogation”);
Kassin et al. Police-Induced Confessions: Risk Factors and Recommendations, supra note 3,
at 59-60 (“Whatever the mechanism, it is clear that Miranda warnings may not adequately
protect the citizens who need it most—those accused of crimes they did not commit.”).
239. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); see also Arizona v.
Fulminante, 499 U.S. 279 (1991); Steven Penney, Theories of Confession Admissibility: A
Historical View, 25 AM. J. CRIM. L. 309, 314-20, 353 (1998) (“The task of the Court is to
identify the circumstances in which the defendant’s will is in fact overborne. Unfortunately,
there is no litmus test for determining this question. In each case the relevant factors must be
weighed anew.”).
240. Brown v. Illinois, 422 U.S. 590, 604 (1975) (“[T]he burden of showing
admissibility rests, of course, on the prosecution.”).
241. Culombe v. Connecticut, 367 U.S. 568, 602 (1961).
242. See, e.g., Schulhofer, supra note 215, at 869.
243. Gallegos v. Colorado, 370 U.S. 49, 52-53 (1962); see also Schulhofer, supra note
215, at 875.
244. Schneckloth, 412 U.S. at 226.

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Almost one-third—or thirteen—of these forty exonerees who confessed were
juveniles.
A second factor the Court developed was “low intelligence” of the
accused. 245 Forty-three percent or seventeen of the forty who falsely confessed
were mentally disabled, many obviously so, but as discussed below, few had
experts to develop the issue. Others had clear emotional problems.
A third factor is “the lack of any advice to the accused of his constitutional
rights.” 246 As noted, none obtained counsel prior to initially confessing. A
fourth factor is the “length of detention” together with “the repeated and
prolonged nature of the questioning.”247 Inbau et al. note that “[t]he most
common circumstance supporting a claim of duress is the length of an
interrogation.” 248 Most of these exonerees endured quite lengthy
interrogations. Typically, John Kogut was told “you’re not going anywhere
until we get the truth.”249 Only four were interrogated for less than three hours:
Freddie Peacock, Lafonso Rollins and David Vasquez, all of whom were
mentally disabled, and Yusef Salaam, a juvenile whose interrogation was halted
by the arrival of a family friend and Assistant U.S. Attorney (unlike those of
the other four youths in the Central Park Jogger case, who were interrogated for
many hours). 250 The other exonerees were interrogated for far longer, typically
involving multiple interrogations over a period of days, or interrogations lasting
for more than a day with interruptions only for meals and sleep. Jerry
Townsend was interrogated for thirty to forty hours over the course of a
week. 251 Just the recorded portions of Robert Miller’s interrogation lasted
thirteen to fifteen hours. 252
An additional factor includes “use of physical punishment such as the
deprivation of food or sleep.” 253 In several cases, exonerees alleged that police
used physical force, although we often do not know whether these allegations
were accurate. Bradford later claimed that police beat him. Dennis Brown
claimed that the officer first unbuckled his gun belt then “put a knife on
me.” 254 Ronald Jones testified at trial that the detective handcuffed him to the
wall and hit him in the head several times with a long black object because
245.
246.
247.
248.
249.
250.

Id.
Id.
Id.
INBAU ET AL., supra note 64, at 422.
Kogut Trial Transcript, supra note 227, at 824.
Peacock Trial Transcript, supra note 183, at 268-71; Rollins Trial Transcript,
supra note 125, at D-164, -179; Tracy Connor, Barbara Ross & Alice McQuillan, 48 Hours:
Twisting Trail to Teens’ Confessions, N.Y. DAILY NEWS, Oct. 20, 2002, at 8; Dana Priest,
supra note 166, at A1.
251. Trial Transcript at 2160, State v. Townsend, No. 79-7217 (Fla. Cir. Ct. July 16,
1980) [hereinafter Townsend Trial Transcript].
252. Miller Trial Transcript, supra note 72, at 1016, 1039 (May 17, 1998).
253. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).
254. See Brown Trial Transcript, supra note 107, at 175.

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Jones refused to confess to the murder. 255 According to Jones, a second officer
then entered the room, “was surprised” at “the treatment” “and told him, he
said no, don’t hit him, because he might bruise.” 256 That officer proceeded to
hit him in the “midsection with his fist” when he would not admit his
involvement in a homicide. 257 Both officers denied at trial that they had struck
Jones. 258
Paula Gray was kept at hotels and interrogated by police officers for three
days as a “protected custody witness” regarding a double murder
investigation. 259 During her custody she made a statement inculpating herself
and three other innocent people, in a case that became known as the “Ford
Heights Four” case. During Gray’s testimony at trial, she was asked, “Did they
emphasize what would happen if you did not tell this story?” and answered,
“That they would kill me.” 260 Law enforcement denied engaging in any such
conduct in each of these cases. Absent any complete recording, we do not know
for sure what transpired.
The demeanor of the defendant during the interrogation may shed light on
whether the confession was voluntary. The State admitted that David Vasquez
gave a statement that “[a]t times” was “virtually incomprehensible.” 261 Byron
Halsey, who had a “sixth-grade education and severe learning disabilities,”262
gave a statement that the detective admitted was at times full of “jibberish
[sic]” in which Halsey was “saying one syllable words, free flowing like a
water fall [sic]” and at other times appeared to be in a “trance” state in which
he “just stopped and looked out into blankness.”263
Seven exonerees described their involvement as something that came to
them in a dream. Rolando Cruz, James Dean, Steven Linscott, Robert Miller,
Debra Shelden, David Vasquez and Ron Williamson all gave so-called “dream”
statements. 264 At Joseph White’s trial, James Dean expressed confidence that
255.
256.
257.
258.
259.

Jones Trial Transcript, supra note 188, at 1092-93.
Id. at 1094.
Id.
Id. at 1142, 1151, 1160 (July 14, 1989).
Trial Transcript at 2089, 2234-37, People v. Gray, No. 78 C4865 (Ill. Cir. Ct. Oct.
16, 1978) [hereinafter Paula Gray Trial Transcript].
260. Id. at 2237.
261. Vasquez Opposition Memorandum, supra note 165, at 3.
262. Press Release, The Innocence Project, After 19 Years in Prison for One of the
Most Heinous Crimes in NJ History, Byron Halsey Is Proven Innocent Through DNA (May
15, 2007), available at http://www.innocenceproject.org/Content/583.php.
263. Halsey Trial Transcript, supra note 204, at 92, 95-96.
264. See sources cited supra note 187 and infra notes 283 and 345; see also
Memorandum in Support of Motion to Suppress at 22, Commonwealth v. Vasquez, C22213-22216 (Va. Cir. Ct. Nov. 1984) [hereinafter Vasquez Support Memorandum] (the
defendant was in “an almost hypnotic state” and “began to relate things that had happened to
him in a dream”); JOHN GRISHAM, THE INNOCENT MAN 127 (2006) (quoting police report in
the Williamson case, in which Williamson reportedly states “Okay, I had a dream about
killing [the victim], was on her, had a cord around her neck, stabbed her, frequently, pulled

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at least he could “pretty much” tell the difference between his dreams and
reality, while Debra Shelden agreed that “everything” she had testified about
had come to her in a dream. 265
Most of these exonerees signed written statements containing boilerplate
language stating they had been treated well and mirroring the considerations in
the Supreme Court’s voluntariness standard. Thus, Lafonso Rollins signed a
statement stating “he has been treated well” by the prosecutor and the police:
“Lafonso Rollins states he has eaten pizza and a sandwich and has had coffee
and cola to drink while he has been at the police station. Lafonso Rollins states
that he has has [sic] not been threatened in any way, nor has he been made any
promises for this statement.” 266 Similarly, Bruce Godschalk was asked on tape
by the detectives, “How have we treated you?” and he answered, “Very
well.” 267
C. Use of Deceptive Techniques
Where the voluntariness standard does not prohibit any particular
psychological techniques, police regularly employ a series of strategies to place
pressure to confess on unwilling suspects.268 These interrogations feature the
use of techniques to both threaten negative consequences for not confessing
and to reward the confession. Some officers use “Mutt and Jeff” or “Good Cop
Bad Cop” techniques. For example, in David Vasquez’s case, the recordings
showed he was variously treated strictly and then told by others “we are the
ones that can help you.” 269 Several cases involved allegations of threats of
conviction or the death penalty combined with offers of leniency should the
suspect confess. Ochoa testified that the officer’s interrogation “scared the
heck, scared the living daylights out of me.”270 He also testified that the officer
threatened him with the death penalty and said, “You’re going to get the
needle. You’re going to get the needle for this. We got you.”271
The Supreme Court has also held that police misrepresentations, such as
that another suspect confessed, do not necessarily render a confession
involuntary. 272 Techniques such as the “false evidence ploy,” which have been
the rope tight around her neck”).
265. White Trial Transcript, supra note 115, at 795, 851.
266. Rollins Trial Transcript, supra note 125, at D-182.
267. Godschalk Trial Transcript, supra note 145, at 126-27 (May 26, 1987). At his
trial, Godschalk was asked about that statement and replied “I don’t know about very well,
but I said okay.” Id. at 127.
268. See INBAU ET AL., supra note 64, at 209-397 (presenting the “Reid nine steps of
interrogation”).
269. Vasquez Support Memorandum, supra note 264, at 16.
270. Danziger Trial Transcript, supra note 70, at 1005.
271. Id. at 1006. Ochoa pleaded guilty in part to avoid the death penalty, receiving life
in prison. Id. at 967.
272. See Frazier v. Cupp, 394 U.S. 731, 739 (1969); INBAU ET AL., supra note 64, at

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shown to increase the risk of a false confession, were used in several of these
exonerees’ interrogations. 273 For example, in the Robert Miller case, the
detective described the interrogation as follows:
Q. You told him you had an eye witness that saw him leaving Mrs. Cutler’s
house and had in fact shown pictures—a picture lineup, one of which a picture
was Robert, to this witness, and this witness identified Robert’s picture; is that
right?
A. Yes.
Q. And that was in fact not true.
A. That’s correct.
Q. You were stretching the truth, shall we say, to try to once again elicit
information from him; is that right? That was one of your techniques.
A. Well, I don’t know if I could say elicit information. All I could gather—
was trying to gather the truth at that point.
...
Q. Once again, you were telling him information hoping that he would throw
his hands up and say, okay, you’ve got me, I did it. That was pretty much your
plan; is that right?
A. Yes. 274

Other exonerees were told—falsely—that forensic evidence connected
them to the crime. David Vasquez confessed after he was told that his
fingerprints were found at the scene. 275 Similarly, in the Central Park Jogger
case, Yusef Salaam reportedly confessed after he was told, “We have
fingerprints on the jogger’s pants. They’re satin, they’re a very smooth
surface . . . . I’m just going to compare your prints to the prints we have on the
pants, and if they match up, you don’t have to tell me anything. Because you’re
going down for rape.” 276
Polygraph machines were used as part of efforts to secure confessions in at
least seven of these cases. Eddie Lowery was told that he failed a polygraph, as
were James Dean, Jeffrey Deskovic, Byron Halsey, Travis Hayes, John Kogut,
and Debra Shelden. 277 Indeed, the court permitted the polygraph results
486-87 (noting the Court has approved deceptive techniques, but counseling against their use
when they could be “apt to make an innocent person confess”); Laurie Magid, Deceptive
Police Interrogation Practices: How Far Is Too Far?, 99 MICH. L. REV. 1168, 1169 (2001).
273. See Kassin et al., Police-Induced Confessions, supra note 3, manuscript at 15
(surveying studies and concluding, “Over the years, across a range of subdisciplines, basic
research has revealed that misinformation renders people vulnerable to manipulation”).
274. Miller Trial Transcript, supra note 72, at 1020-22.
275. Vasquez Opposition Memorandum, supra note 165, at 3.
276. Sydney H. Schanberg, A Journey Through the Tangled Case of the Central Park
Jogger, VILLAGE VOICE, Nov. 20, 2002, at 36, 38.
277. See Lowery v. County of Riley, 522 F.3d 1086, 1089-90 (10th Cir. 2008)
(describing polygraph examination of Lowery); People v. Kogut, 805 N.Y.S.2d 789, 790-92
(Sup. Ct. 2005) (describing polygraph examination of Kogut); Joe Duggan, Pressure On to
Cut a Deal, LINCOLN J. STAR, May 7, 2009, at A1, A8 (declaring that, “Initially [James
Dean] said he had no involvement in the crime. But he got scared after he failed his
polygraph test” and Debra Shelden passed a polygraph test during which she implicated

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concerning Halsey to be introduced at his trial.278 Deskovic was interrogated
during his polygraph exam, which was conducted, as an officer explained, to
“Get the confession,” and he was then interrogated further after being told he
had failed the polygraph test. 279 Scholars have contended that while polygraphs
may not be a reliable means to test the truthfulness of a suspect, they can be
used to exert pressure on a suspect and secure admissions.280 In these cases,
telling innocent suspects that they failed a polygraph may have played a role in
their false confessions.
D. Trial Rulings on Suppression of Confessions
Almost all of these exonerees’ defense attorneys moved to have the
inculpatory statements suppressed, and in each case the confession was ruled
admissible. At least twenty-eight of these exonerees challenged their
confessions pretrial. For thirteen exonerees a copy of the suppression hearing
was obtained. 281 The only exonerees who we know did not challenge their
confession at trial were nine who pleaded guilty and had no trial, and one,
Rolando Cruz, who was convicted at trial. Cruz’s defense attorneys apparently
did not challenge his alleged statements regarding a “vision” of the crime
because they were noncustodial and also because the defense theory was that
police had made those statements up. 282 (The defense may have been right; at
Cruz’s third trial, an officer testified that his prior testimony corroborating his
colleague’s recounting of the “vision statement” was false. 283 ) Pretrial
suppression hearings are not always transcribed. For two cases the available
records were not clear whether the exonerees moved to have statements
suppressed. 284 In sum, of those twenty-nine exonerees who went to trial and

herself and others in a murder); Email from David Park, The Innocence Project New
Orleans, to author (Jan. 18, 2010, 11:27:00 EST) (on file with author) (confirming that
Travis Hayes received a polygraph examination between interrogation sessions).
278. State v. Halsey, 748 A.2d 634, 635 (N.J. Super. Ct. App. Div. 2000).
279. Deskovic Trial Transcript, supra note 9, at 1034, 1181-86 (Nov. 29-30, 1990); see
also Deskovic Report, supra note 10, at 14-15. Ron Williamson was given polygraph tests
twice with inconclusive results, but they preceded his alleged admissions. See GRISHAM,
supra note 264, at 74.
280. See, e.g., LEO, supra note 7, at 85-89 (describing the evolution in the use of
polygraphs).
281. Four exonerees who pleaded guilty did not move to suppress their confessions. A
fifth, David Vasquez, moved to suppress his confession before pleading guilty and I obtained
motion papers, but the hearing transcript was not in the court file.
282. According to Steven Drizin of the Center on Wrongful Convictions, there was no
motion to suppress Cruz’s confession because the defense theory was not that the
noncustodial confession never happened, but rather that it was a dream statement made up
by the police.
283. See SCOTT TUROW, ULTIMATE PUNISHMENT: A LAWYER’S REFLECTIONS ON
DEALING WITH THE DEATH PENALTY 45 (2003).
284. Those cases are those of L. Rollins and R. Miller.

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whose available records indicate whether a pretrial challenge to the admission
of the confession was made, twenty-eight of them—or ninety-seven percent—
made such a challenge, and all were unsuccessful.
The rulings provide insight into the role of judicial review. In some cases, a
court’s ruling can be explained by the lack of any indicia of coercion in the
record. Research suggests that innocent individuals may falsely confess
voluntarily during police interrogations because they believe that “truth and
justice will prevail” later even if they falsely admit their guilt.285 For example,
Eddie Lowery described a long interrogation with verbal pressure and threats,
but no physical threats, no congenital susceptibility to suggestion, nor other
extreme psychological pressure placed upon him. He testified at trial that “after
I was crying and everything and really just couldn’t—couldn’t handle myself or
anything, you know, and finally they wanted to hear a confession and
everything so I just made up a confession and told them.” 286 The court
concluded:
He was not coerced into staying under the circumstances and looking at the
totality of the case and all of the facts and circumstances this Court would find
that the admissions given by this defendant were voluntarily made and were
not a result of coercion, duress or unfairness on the part of the officers
conducting the interrogation. 287

In Douglas Warney’s case, though he alleged coercion, the court relied
heavily on how he initially approached police volunteering knowledge about
the crime, noting: “This was information that he volunteered to submit himself
to present, and he followed through on that . . . .”288
Though the Supreme Court has ruled out reliance on reliability as an
independent reason to exclude a confession, judges noted the perceived
reliability when admitting these confessions and finding them to be voluntary.
In the Godschalk case, the court emphasized when ruling that the confession
would be admissible that Mr. Godschalk “had given information to the
detectives which was not released to the general public.” 289
Similarly, in the trial of Paula Gray, the court ruled that where Miranda

285. Kassin, On the Psychology of Confessions, supra note 4, at 215, 224 (surveying
research).
286. Trial Transcript at 257, State v. Lowery, No. 81CR 575 (Kan. Dist. Ct. Jan. 6,
1982).
287. Transcript of Defendant’s Motion to Suppress Confession at 117, Lowery, No.
81CR 575 (Nov. 12, 1981).
288. Transcript of Suppression Hearing at 6, People v. Warney, No. 96-0088 (N.Y.
Sup. Ct. Feb. 11, 1997).
289. Transcript of Suppression Hearing at 154, Commonwealth v. Godschalk, No. 93487 (Pa. Ct. Com. Pl. May 27, 1987). The judge also believed that Godschalk was not in
custody for Miranda purposes (stating he voluntarily accompanied the police, was free to
leave when he wanted, and the door was not locked) and found that Godschalk knowingly,
intelligently, and voluntarily waived his rights when they were given and denied the motion
to suppress his confession statement. Id. at 156.

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warnings had been properly given once she was in custody, and where “[n]o
force, threats or prohibited conduct in police procedures in [the court’s]
judgment occurred in the Homewood Police Department,” the confession was
voluntary. 290 The court noted, “[I]ncidentally, the defendant testified with skill,
with knowledge, explicitly, extremely clear, made her points well and all it
means to me is whether she’s in twelfth grade or whatever her educational level
is she’s a very intelligent person. That’s my judgment and those are my
findings and my decision.”291
Ron Williamson’s trial counsel raised the issue of voluntariness midtrial,
but the court reviewed law enforcement testimony and ruled the statement
voluntary, stating, “Based on the evidence presented, I find that the burden of
the State has been met, and that the statement was voluntarily given for the
purpose of being received into evidence and considered by the jury.”292
In only a few of these trials was the jury charge transcribed and obtained.
A typical instruction provided in Bruce Godschalk’s case explained that the
voluntariness inquiry involves an assessment of “all facts and circumstances
surrounding” the confession.293 In Jeffrey Deskovic’s case, the jury was
instructed to consider whether the confession statements “are true or false in
whole or in part.” 294 The judge explained that the jury should examine not just
voluntariness, but reliability, asking: “Are the facts of the statement or
statements consistent with or inconsistent with the facts as presented by
witnesses? Is the Defendant’s statement or statements probable or improbable?
Did the Defendant have any motive or did he lack any motive for giving a false
statement or statements?” 295
One of these exonerees, Nathaniel Hatchett, had a bench trial, at the
conclusion of which the judge as fact finder explained the reasons supporting
the conviction. Though the victim in that case had been raped by a single
stranger-assailant, and DNA testing of rape kit evidence at the time of the trial
excluded Hatchett, the judge explained that “in light of the overwhelming
evidence that the Court has . . . the Court does not find that the laboratory
analysis is a fact which would lead to a verdict of acquittal.” 296 The judge
290. Paula Gray Trial Transcript, supra note 259, at 1313-14 (Oct. 4, 1978).
291. Id. at 1314. In contrast, when the issue on appeal was whether codefendant Dennis

Williams’s attorney adequately impeached Paula Gray’s competency, the Supreme Court of
Illinois instead concluded that her mental limitations were obvious to the jury: “[T]he cold
record on appeal amply demonstrates Gray’s limitations as a witness. Gray’s testimony is
replete with instances of forgetfulness, feigned or honest, her mental dullness and
impeachment, all of which the jury evaluated firsthand.” People v. Williams, 588 N.E.2d
983, 1009 (Ill. 1991).
292. Williamson Trial Transcript, supra note 123, at 465, 475.
293. Godschalk Trial Transcript, supra note 145, at 238-39 (May 29, 1987).
294. Deskovic Trial Transcript, supra note 9, at 1599 (Dec. 5, 1990).
295. Id.
296. Trial Transcript at 280, People v. Hatchett, 97-1497-FC (Mich. Cir. Ct. Mar. 6,
1998).

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emphasized that despite that powerful DNA evidence,
[I]n this case there is an abundance of corroboration for the statements made
by Mr. Hatchett to the police after his arrest, about what happened during the
assault on [the victim] as well as what happened afterwards with the property,
the keys, his punching of the ignition and the Court finds the statements,
therefore, to be of overwhelming importance in determining the outcome of
the trial. 297

E. Use of Experts
Based on materials obtained, only four exonerees had trial or pretrial
testimony from experts, such as psychologists or psychiatrists, concerning their
confessions. These exonerees were David Allen Jones, Jerry Townsend, David
Vasquez and Earl Washington, Jr. In Vasquez’s case, the hearing transcripts are
not in the court file; the court merely held that there was “conflicting evidence
given by the psychiatrists at the evidentiary hearing.” 298 David Allen Jones
retained a clinic psychologist who testified that he found Jones “mentally
retarded.” 299 In other cases, only the prosecutor retained an expert. 300
At Jerry Townsend’s suppression hearing, there was a lopsided battle of the
experts. What was surprising, given a typical lack of defense resources, was
that this contest was weighted in the defense’s favor. The defense called seven
different clinical psychologists and psychiatrists as experts. These doctors
agreed that Townsend could not readily understand the Miranda warnings or
knowingly waive his rights, lacked capacity to be tried, and did not confess
voluntarily. 301
Dr. Jethro W. Toomer described that Townsend was retarded with an I.Q.
of fifty-nine to sixty-one and the mental development of a six- to nine-yearold. 302 The expert further testified that he is “easily led” and “highly
suggestible.” 303 Dr. Frank Loeffler explained that Townsend not only lacked
capacity and had a mental age of a seven- to nine-year-old, but that he
“confabulates almost all the time,” engaging in “unconscious making up of

297. Id. at 276-77.
298. Vasquez Winston Memorandum, supra note 235, at 3.
299. Return to People’s Petition for Writ of Habeas Corpus at 25, In re David Allen

Jones, No. BA071698 (Cal. Super. Ct. June 17, 2004).
300. The Deskovic case discussed next is an example, as is the case of Calvin Ollins.
See People v. Ollins, 606 N.E.2d 192, 197 (Ill. App. Ct. 1992).
301. Townsend Trial Transcript, supra note 251, at 13, 45, 74, 98, 109, 140, 179 (Apr.
25, 1980). Those doctors were: Anastasio M. Castiello, M.D., id. at 8; Jethro W. Toomer,
Ph.D., id. at 38; Frank Loeffler, Ph.D., id. at 68; Mario E. Martinez, M.D., id. at 97; Richard
N. Carrera, Ph.D., id. at 107; David Nathanson, Ph.D., id. at 133; and Norman Reichenberg,
Ph.D., id. at 170.
302. Id. at 42-43, 50.
303. Id. at 14, 46, 57.

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material to fill in for what one doesn’t know,” like a person who is “senile.” 304
Dr. Mario Martinez added that Townsend speaks like a “madman” and, in
medical terms, “is intellectually limited and functioning at a psychotic
level.” 305
The outgunned prosecution called only one expert witness, who only had a
masters degree in psychology (not a doctorate). 306 That witness measured
Townsend’s “social adaptive” ability to be that of a nineteen-year-old, despite
his IQ being “significantly below” average.307 He testified that Townsend
would understand his Miranda rights. 308 The State also called one of the
detectives that interrogated Townsend, who gave his lay opinion that Townsend
had a “very severe speech impediment,” but had “street smarts” and “made it
clear that he understood his rights.” 309 The prosecutor then elicited lengthy
testimony concerning the “specific facts” that Townsend reportedly knew about
how the crimes were committed: “he can remember specific details of each
particular crime which we have been able to, of course, corroborate.” 310
Indeed, in examining defense experts the prosecutor made the point that
Townsend could not have been led if he volunteered facts that only the culprit
could have known. 311
In the end, the judge found this battery of defense expert testimony to be
“testimony of convenience” and found that “the credibility of it is rather low
and the believability of it just as low, so that I had to really look elsewhere for
my decision.” 312 The judge never cited what that other source of authority was,
but simply ruled: “I find that Mr. Townsend was sufficiently societally, if I may
use that word, and functionally intelligent to know—to know his Miranda
rights and to significantly and sufficiently waive them . . . .”313 The judge
added that, after all, Townsend “had so much knowledge of street parlance.” 314
He found it a closer question whether Townsend was deluded and confessed
involuntarily, but denied relief, noting, “You know, it would be good if all
confessions were perfect.” 315 The judge explained, “I have yet to see a perfect
confession, but I’ve not been in the criminal area that long. . . . I find that the
confession even with [the promises and inducements] was voluntarily made and

304. Id. at 79-80.
305. Id. at 104.
306. The State apparently also introduced into the record “transcriptions” of expert

evaluations they had conducted. Id. at 100.
307. Id. at 395-96 (May 8, 1980).
308. Id. at 398-99.
309. Id. at 491, 493, 502 (May 9, 1980).
310. Id. at 495-98.
311. Id. at 23 (Apr. 25, 1980).
312. Id. at 515 (May 9, 1980).
313. Id. at 515-16.
314. Id. at 516.
315. Id. at 517.

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that if you took those to the point where you said to yourself, well, would he or
would he have not gone forward had those statements not been made, I come to
the conclusion that he would have.” 316
Townsend called the same experts at trial. The jury heard that he was
“borderline retarded,” and exhibited patterns “consistent with the presence of
brain damage” and “psychosis,” such that his memory would be totally
“confused.” 317 Experts described again that Townsend was easily led and could
falsely confess and that he could not distinguish right from wrong.318 The State
argued that Townsend’s actions indicated the work of a methodical serial killer.
Townsend was convicted. 319 He served twenty-two years in prison before a
Fort Lauderdale police reinvestigation ultimately led to DNA testing that
cleared him and inculpated serial killer Eddie Lee Mosley (the DNA testing
also linked Mosley to a murder for which Frank Lee Smith was falsely
convicted). 320
Earl Washington, Jr.’s counsel never requested funding for an expert and
thus had no independent evidence to counter the evaluation of the state’s
psychiatrist who readily concluded that Washington understood his Miranda
rights. 321 However, the court had only asked that he be evaluated for his
“present status” and capacity to stand trial. The psychiatrist did not examine his
mental capacity at the time of the murder or interrogation, or whether his
mental retardation could have impacted the voluntariness of his confession.322
Thus, “A judge ruled that the statement was admissible after hearing from a
state mental health expert that a man with an IQ of sixty-nine was competent to
waive his rights to a lawyer during initial questioning—even though
Washington still doesn’t know what the words ‘waive’ and ‘provided’
mean.” 323
Other exonerees, had they obtained experts, might have presented evidence
that they lacked capacity or otherwise were susceptible to coercion or
suggestion. In the Central Park Jogger case, lawyers for defendants McCray
and Salaam sought to introduce experts to testify regarding the suggestibility
and vulnerability of their juvenile clients, but the court denied their requests
and no experts were permitted to testify. 324 In the Deskovic case, the district
316.
317.
318.
319.
320.

Id.
Id. at 3539-42 (July 24, 1980).
Id. at 3399-3401, 3484, 3544-45.
Id. at 3958-59 (July 29, 1980).
See
The
Innocence
Project,
Profile
of
Jerry
Townsend,
http://www.innocenceproject.org/Content/274.php (last visited Nov. 20, 2009).
321. Washington Trial Transcript, supra note 133, at 124-25.
322. Id. at 12-13. Washington’s attorney later stated that he believed that the court
would have denied any request for funding for an expert. Brooke Masters, Missteps on Road
POST,
Dec.
1,
2000,
at
A1,
available
at
to
Injustice,
WASH.
http://www.deathpenaltyinfo.org/node/649.
323. Masters, supra note 322.
324. See Trial Transcript at 3-6, 39, People v. McCray, No. 4762/89 (N.Y. Sup. Ct.

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attorney’s inquiry found that “the defense did not attempt to introduce
psychiatric evidence that might have persuaded jurors that Deskovic was
particularly vulnerable to the police tactics employed against him and that those
tactics induced a false confession. In the absence of such evidence, the defense
attack on the statements seemed scattershot and unfocused.” 325 Ron
Williamson’s lawyer decided not to raise the issue of his competency, despite
“an actual judicial determination of his incompetency in the same district court
in an unrelated case two and one-half years earlier,” and despite Williamson
having received treatment for many years due to “behavior indicative of
schizophrenia, Bipolar Disorder, Borderline Personality Disorder, and Paranoid
Personality Disorder . . . .” 326 Williamson’s habeas petition was granted in part
because the federal court found his trial lawyer ineffective for failing to
investigate his mental illness and its relevance to both his competency to stand
trial and the voluntariness of his confession. 327
Byron Halsey’s defense lawyer, while moving to suppress the confession,
did not raise an insanity defense after initially giving notice that they would,
due to Halsey’s objection that he was not guilty. The Judge made a record of
this, stating, “And it is your decision based on—based on consultation with us
that you’ve told us you didn’t kill the children, therefore, you didn’t want us to
produce any evidence of any mental condition or anything like that in this
case?” Halsey said, “Yes.” Halsey’s lawyer then asked him again if it was his
choice, and Halsey said, “Yes. I ain’t crazy. . . . I didn’t do it.” 328
Travis Hayes’s attorney did seek to introduce an expert, Dr. Salcedo, to
present evidence that Hayes was mentally retarded, that he “had the diminished
capacity, and he had the mental condition that would make him more
susceptible to extensive interrogation, to being able to say things that were
suggested to him, instead of things that were true,” but the court rejected the
motion, apparently finding that such expert testimony would be irrelevant.329
Also remarkable was the role of a psychologist in the Beatrice Six case
who repeatedly spoke to the suspects following their arrest at the jail. He was
also a deputy employed by the police department.330 Debra Shelden agreed at
Joseph White’s trial that this psychologist had not just been treating her, but
June 25, 1990) (denying request to permit psychiatric testimony, finding their reports unduly
“speculative” as to the factors that could have caused defendants to have made involuntary
and false confessions). Other exonerees may have introduced expert reports but not expert
testimony, perhaps just for purposes of sentencing. As noted, it is also possible that others
introduced expert reports or evidence at preliminary hearings that were not transcribed or
obtained from available records.
325. See DESKOVIC REPORT, supra note 10, at 7.
326. Williamson v. Reynolds, 904 F. Supp. 1529, 1536 (E.D. Okla. 1995).
327. Id. at 1545.
328. Halsey Trial Transcript, supra note 263, at 57-58.
329. Hayes Trial Transcript, supra note 179, at 99-102.
330. See Paul Hammel, Psychologist Had Dual Role in Confessions of Beatrice 6,
OMAHA WORLD-HERALD, Nov. 29, 2008, at A1.

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had been working with her on her memory, because she could not remember
anything about the crime. When asked, in regards to the dreams from which she
derived much of her account, the psychologist “helped you with your memory
regarding those dreams, did he not?,” she answered, “Yes.”331
F. Inculpatory Statement Cases
Eight additional exonerees reportedly volunteered inculpatory information
to police before any custodial interrogation began. Such volunteered statements
typically lack any criminal procedure protection if not made while the suspect
was deemed to be in custody. 332 Yet many were quite damaging at trial,
precisely for the same reason that the false confessions were. That is, law
enforcement claimed that the exoneree had freely volunteered nonpublic
information concerning the crime; indeed, they could compellingly point out
that the suspect was not in custody and was not being formally interrogated,
and yet had disclosed involvement in the crime. Now that we know that these
people were innocent, there is reason to doubt those assertions by law
enforcement.
Five of those eight exonerees reportedly offered police details in their
incriminating statements that were corroborated by crime scene evidence
and/or were nonpublic facts in the investigation. For example, in Richard
Danziger’s trial, the officer testified that he had stated that the victim “had been
shot in the back of the head with a .22 caliber weapon.” 333 Very powerful
because of the unusual wardrobe choice was Marvin Mitchell’s reported
admission that he wore pink pants, where the victim said her attacker was
wearing “pinkish pants.” 334
In Walter Snyder’s case, the detective testified that he
went to Mr. Snyder’s place of employment, asked [if] he would come down
and talk to me for a few minutes in reference to a burglary. At no time did I
mention this was burglary—rape. A pretext, as I wanted to get him to talk to
me about a burglary. I brought him into headquarters and said I had
information he committed a break in, not mentioning a specific address. 335

The detective testified that Snyder had indicated knowledge both that a
rape had occurred and of the address, stating “I didn’t rape that girl across the
street.” 336 He suggested to Snyder that the victim made advances on him.

331.
332.
333.
334.

White Trial Transcript, supra note 115, at 791-92.
Oregon v. Elstad, 470 U.S. 298, 311-14 (1985).
Danziger Trial Transcript, supra note 70, at 423.
Innocence Project Profile of Marvin Mitchell, http://www.innocenceproject.org/
Content/221.php (last visited Nov. 20, 2009).
335. Joint Appendix at 80, Commonwealth v. Snyder, No. 0300-87-4 (Va. Ct. App.
June 24, 1986).
336. Id.

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According to the detective, Snyder had replied, “no, she raped me.”337
However, Snyder testified that his remark was expressed as a denial and not an
admission. After the detective asked him to “[s]ay she came on to you,” Snyder
testified that he had responded incredulously, “What, she raped me?”338 In
contrast, the detective testified at trial that Snyder’s statement was not an
expression of surprise, but should instead be understood as an admission.
These inculpatory statement cases show how the problem of contamination
can extend beyond the interrogation room, highlighting the importance not only
of recording complete interrogations, but of adopting other reforms to ensure
that law enforcement assiduously avoid contamination.
G. Postconviction Review of False Confessions
The contamination of these confessions foreclosed appellate and
postconviction relief. As developed in the “Judging Innocence” study, DNA
exonerees “who falsely confessed did not always raise constitutional claims
challenging the[] confession[], at least as reported in written decisions.” 339
Seven of the twenty-two exonerees who falsely confessed and had written
decisions during appeals or postconviction raised Fifth Amendment claims that
their confession was involuntary, and three more alleged that their confession
was obtained in violation of Miranda. Ten raised constitutional claims directly
challenging their confession. None who brought claims regarding Miranda or
coercion received any relief. Three others raised state law or indirect
constitutional claims, and one of them received a reversal on a Strickland claim
related to failure to challenge the confession at trial.340 The others, after having
failed to exclude the confessions at trial, may have failed to challenge
voluntariness on appeal and postconviction.
When denying relief, courts emphasized in thirteen exonerees’ cases the
apparent reliability of these confessions. The courts often also cited to the
“overwhelming” nature of the evidence against them and describing in detail
the nonpublic and “fully corroborative” facts they each reportedly
volunteered. 341 For example, a court denied Jeff Deskovic’s appeal stating,
337.
338.
339.
340.

Id. at 90.
Id. at 104.
See Garrett, supra note 2, at 90.
T. Hayes raised a Sixth Amendment claim that he should have been permitted to
challenge his competence and his confession using expert testimony at trial; R. Williamson
raised an ineffective assistance of counsel claim relating to failure to challenge his
competency and confession; and Y. Salaam raised a state evidence law claim relating to
maintaining interrogation of a juvenile after objecting parents were present.
341. The exonerees are: James Dean, Jeff Deskovic, Bruce Godschalk, Byron Halsey,
Alejandro Hernandez, Nathaniel Hatchett, Steven Linscott, Freddie Peacock, Yusef Salaam,
Jerry Townsend, Douglas Warney, Earl Washington, Jr., and Ron Williamson. See
Washington v. Murray, 4 F.3d 1285, 1292 (4th Cir. 1993) (stating that Washington “had
confessed to the crime not in a general manner, but as one who was familiar with the

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“There was overwhelming evidence of the defendant’s guilt in the form of the
defendant’s own multiple inculpatory statements, as corroborated by such
physical evidence as the victim’s autopsy findings.” 342 The Illinois Supreme
Court stated that Alejandro Hernandez “did not present an argument which
convinces us that he learned the details of the crime contained in his ‘vision’
from law enforcement officers, unlike the defendant in People v. Linscott,
(1985).” 343 The citation to the prior Illinois Appellate Court decision in Steven
Linscott’s case is doubly ironic in retrospect. Linscott was also years later
exonerated by postconviction DNA testing. 344
Even after obtaining DNA testing, exonerees faced obstacles where courts
or other actors relied on the seeming reliability of their confessions. For
example, Earl Washington, Jr. was granted clemency but denied a pardon in
1994 even after DNA testing excluded him. 345 In some states, postconviction
minutiae of its execution”); Godschalk v. Montgomery County Dist. Attorney’s Office, 177
F. Supp. 2d 366, 367 (E.D. Pa. 2001) (quoting unpublished state court decision finding
“plaintiff’s conviction ‘rests largely on his own confession which contains details of the
rapes which were not available to the public’” (citation omitted)); Townsend v. State, 420
So. 2d 615, 617 (Fla. Dist. Ct. App. 1982) (“Townsend confessed to all of the collateral
crimes as well as those for which he was charged, and he took the police to the scene and
corroborated facts known to the police which only the killer would know.”); People v.
Hatchett, No. 211131, 2000 WL 33419396, at *1 (Mich. Ct. App. May 19, 2000) (stating
that “the prosecution presented overwhelming evidence” and “Officer Williams and
Detective Van Sice testified that defendant’s statement included information that only the
perpetrator of the crimes would know,” facts “fully corroborative” of the victim’s account);
State v. Dean, 464 N.W.2d 782, 789 (Neb. 1991) (“[T]he presentence investigation
contained numerous statements made by the defendant to law enforcement officers. Those
statements were corroborated not only by the physical evidence found at the crime scene and
the scientific examination of that evidence, but also by interviews with other people involved
or intimately familiar with some details of the crimes against the deceased as heretofore
related.”); State v. Halsey, 748 A.2d 634, 636-38 (N.J. Super. Ct. App. Div. 2000) (citing to
“overwhelming” evidence of his guilt and describing each of the facts he supposedly
volunteered in his confession); People v. Peacock, 417 N.Y.S.2d 339 (App. Div. 1979)
(denying relief citing to “strong evidence of guilt, including defendant’s confession”);
People v. Warney, 750 N.Y.S.2d 731, 732-33 (App. Div. 2002) (“Defendant confessed to the
crime and gave accurate descriptions of many details of the crime scene.”); People v.
Salaam, 590 N.Y.S.2d 195, 196 (App. Div. 1992) (“Details of this statement were
corroborated overwhelmingly by substantial physical evidence.”); Williamson v. State, 812
P.2d 384, 396 (Okla. Crim. App. 1991) (“[T]he Appellant made certain admissions, in
addition to a confession, which were corroborated by the extrinsic evidence.”).
342. People v. Deskovic, 607 N.Y.S.2d 957, 958 (N.Y. App. Div. 1994).
343. People v. Cruz, 521 N.E.2d 18, 25 (Ill. 1988) (citation omitted).
344. This was not due to the Illinois Supreme Court’s recognition of any flaw in
Linscott’s confession. The Hernandez decision cited the Illinois Appellate Court that had
found Linscott’s “dream” confession so patently unreliable that they found insufficient
evidence to support his confession. However, the Illinois Supreme Court had then reversed,
stating that Linscott “voluntarily came forward with an account of a ‘dream’ that contained
many unusual details which correlated with the actual murder.” People v. Linscott, 500
N.E.2d 420, 424 (Ill. 1986).
345. See Virginia Governor L. Douglas Wilder’s Executive Clemency Offer to Earl
Washington, Jr. (Jan. 14, 1994), excerpts reprinted in Gov. Wilder’s Executive Clemency

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rules bar access to DNA testing or to a vacatur because courts rule that a
confession is such strong evidence of guilt that a showing of innocence would
be futile. 346 For example, Byron Halsey was denied access to DNA testing in
2000, with the New Jersey court extensively recounting the confession
statements and citing to the “overwhelming” evidence of his guilt.347
The experience of these exonerees who falsely confessed suggests that our
postconviction system should not refuse to examine convictions simply because
there was a confession. Courts should not uncritically rely on undocumented
assertions that a suspect volunteered “inside information” about a crime.
IV. SUBSTANTIVE REGULATION OF CONFESSIONS
This Article concludes by discussing ways to reorient our criminal system
towards regulating the substance of confessions. The Subparts that follow
discuss possible reforms centered in trial courts, police departments, and
postconviction courts. Whether the evidence from this small group of
exonerated individuals supports the adoption of such wholesale reforms is
beyond the scope of this Article. However, the false confessions studied
suggest a worrisome problem, and it is worth considering solutions. Indeed,
even before DNA testing brought false confessions to light, scholars had
recommended adopting reforms such as recording entire interrogations. Now
that DNA testing has provided powerful examples of false confessions, police
departments, courts, and legislatures have begun to enact legislation in
response. This Article suggests that, to the extent that such efforts are intended
to prevent false confessions of the sort examined here, reforms enacted to date
may be incomplete, due to the insidious nature of confession contamination.
A. Substantive Judicial Review of Confessions
First, constitutional criminal procedure could regulate reliability. As
discussed, current constitutional criminal procedure fails to consider reliability,
despite early Supreme Court cases that had focused on reliability. One way to
understand the evolution of the Court’s jurisprudence is in the context of its
move away from a concern with torture and physical abuse towards regulating
modern psychological interrogation. The concern with the possible unreliability
of coerced confessions has ancient roots. Dating back to Roman and then
medieval law approving torture in certain capital cases, jurists adhered to strict
Offer
(1/14/94),
FRONTLINE,
http://www.pbs.org/wgbh/pages/frontline/shows/case/
cases/washingtonclem.html.
346. See, e.g., Commonwealth v. Young, 873 A.2d 720 (Pa. Super. Ct. 2005). Further,
a confession may be access to testing in certain states that specify that testing be limited to
those for whom “identity” was an issue at trial. See Garrett, supra note 195, at 1680-81
(listing states with such statutes).
347. State v. Halsey, 748 A.2d 634, 636 (N.J. Super. Ct. App. Div. 2000).

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rules prohibiting suggestive questioning where the “examining magistrate was
supposed to elicit evidence, not supply it.”348 Torture was to be used to assess
whether the suspect knew crime details that “no innocent person can know,”
and authorities would seek to verify accuracy of those facts.349
The Supreme Court, in its early decisions applying the Due Process Clause
to police interrogations, was concerned with physical torture, lynch mobs, and
the “third degree.” By the 1950s and 1960s, during a time of transition as police
adopted modern psychological interrogation techniques, the Court highlighted
concerns of reliability, noting in its decisions the suggestibility of certain
defendants. 350 However, the concern with reliability gradually dissipated. The
apogee of the Court’s promotion of voluntariness at the expense of reliability
was its decision in Colorado v. Connelly. There the Court acknowledged that
the confession of a chronic schizophrenic who believed he was hearing the
“voice of God” during his interrogation “might be proved to be quite
unreliable.” 351 Because police applied no undue pressure during the
confession, the patent unreliability of the confession statements was not of
constitutional concern. Criminal procedure regulates solely the provision of
Miranda warnings at the outset of a custodial interrogation and the
voluntariness of admissions of guilt. Having found the admission of guilt
voluntary, a court does not assess the formation of a confession narrative, no
matter how tainted or unreliable.
This constitutional jurisprudence does not recognize that abuse of
psychological interrogation methods can generate false confessions through the
use of suggestive questioning or disclosure of facts. As discussed, unlike the
Court, police training recognizes the dangers of confession contamination and
bars the use of leading questions as to crime scene facts. Further, social science
research dating back decades has shown that not only can psychological
pressure induce confessions, but that innocent suspects may internalize and
repeat a crime narrative.352 The examples discussed here provide new evidence
that defendants may be wrongly convicted based on contaminated confessions.
This perverse gap in our constitutional criminal procedure is potentially
quite harmful, as the contamination of the substance of these exonerees’
confessions suggests. In these false confession cases, contamination went
undetected for years until DNA testing independently proved innocence. It is
unknown how often such contamination occurs in cases in which no DNA
testing exonerates because interrogations are not routinely recorded so as to
document any disclosure of key facts.
This Article contends that our existing criminal procedure not only ignores

348.
349.
350.
351.
352.

JOHN H. LANGBEIN, TORTURE AND THE LAW OF PROOF 15 (1977).
Id. at 5.
See, e.g., Culombe v. Connecticut, 367 U.S. 568, 625 (1961).
479 U.S. 157, 161, 167 (1986).
See supra note 66.

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glaring evidence of unreliability, but it also reinforces dangers of contamination
by crediting assertions of “inside knowledge” without assessing whether those
facts were truly volunteered and ignoring the risk that those facts could have
been disclosed. Courts routinely, as discussed in the last Subpart, emphasize
that there was not coercion by focusing on the apparent reliability of confession
statements. Such reasoning may ignore that the apparent reliability could be the
product of the very coercion that the defendant challenges. Courts credit
evidence of reliability without asking whether that evidence is sound. In so
doing, courts in effect excuse procedurally unconstitutional coercion by
crediting the false substantive product of that coercion.
Courts could instead question indicia of reliability absent assurances that
law enforcement did not disclose those key facts. They could assess whether
crucial facts were actually volunteered by the suspect. Such a hearing could be
readily conducted if police produce a complete record of the interrogation, as
discussed in the next Subpart. Such an approach is consonant with the Court’s
focus on reliability outside the interrogation context, particularly in decisions
such as Daubert that focus on judges as “gatekeepers charged with the
responsibility of excluding unreliable evidence.”353 Such an approach also
reflects the Court’s approach towards eyewitness identifications, recognizing
dangers of suggestion and contamination of memory and requiring courts to
evaluate reliability prior to admitting the identification in court.354
A turn from the criminal procedure focus on voluntariness to evaluation of
the reliability of the substance of the confession narrative has already begun, in
part in response to these false confession cases. Social scientists and legal
scholars have recommended that courts evaluate the reliability of entire
interrogations rather than simply focus on the voluntariness of the custodial
admission of guilt. 355 Richard Leo and Richard Ofshe have proposed that
courts conduct such hearings and that “the reliability of a suspect’s confession
can be evaluated by analyzing the fit (or lack thereof) between the descriptions
in his postadmission narrative and the crime facts.”356 As discussed, in most of
these exonerees’ cases there was a lack of fit and non-volunteered details were
inconsistent with crime scene evidence. Richard Leo, Steven A. Drizin, Peter J.
Neufeld, Bradley R. Hall, and Amy Vatner proposed mechanisms for
conducting such hearings, including allocation of burdens of proof in order to
efficiently marshal the evidence and to assess reliability.357 Judicial hearings
353. See Leo et al., supra note 43, at 487.
354. Manson v. Brathwaite, 432 U.S. 98, 119 (1977). The Manson inquiry has other

deficiencies, however, including that eyewitness certainty provides evidence of reliability;
for a discussion of those issues, see Garrett, supra note 2, at 80-81.
355. See, e.g., Richard A. Leo & Kimberly D. Richman, Mandate the Electronic
Recording of Police Interrogations, 6 CRIMINOLOGY & PUB. POL’Y 791 (2007).
356. Leo et al., supra note 43, at 520.
357. See id. at 531-35 (detailing “tripartite” test for assessment of recorded
interrogations).

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examining reliability might have brought to light inconsistencies in many of
these false confessions.
Further, courts could ensure that experts evaluate individuals that possess
indicia of suggestibility, such as juveniles and mentally disabled individuals.
Few courts, as described, appointed experts in these exonerees’ cases. When
courts evaluate eyewitness identifications and assess whether the eyewitnesses’
account was corrupted by police suggestion, they have elicited testimony by
experts who have long conducted social science research on eyewitness
memory. Some courts permit such experts to testify to the jury on the problem
of eyewitness misidentifications or have instructed the jury on such dangers.358
Similar approaches can be used in cases raising indicia of suspect suggestibility
and dangers of confession contamination. Jury instructions can more clearly
identify the danger that facts may be disclosed to a suggestible suspect. Experts
can educate the jury on the risks of confession contamination, particularly in
cases involving vulnerable individuals like juveniles and the mentally disabled.
A recorded interrogation can provide a clear record that such experts can
interpret. Such social science expert testimony regarding confessions is
increasingly common. 359
Finally, an understanding of the vulnerability of confessions to
contamination can inform courts reviewing trials postconviction, particularly in
cases involving persons vulnerable to suggestion, such as the juveniles and
mentally disabled exonerees studied here. Courts may be particularly
suspicious of confessions raising such indicia of suggestion, particularly where
the interrogation involved deception, threats, or lengthy questioning. The
experience of these exonerees who falsely confessed suggests that our
postconviction system should not refuse to examine convictions simply because
there was a confession. Courts should credit “inside knowledge” offered during
interrogations only if police have a record of the entire interrogation.
Some cases will not be suited for reliability review. Some cases involve
thin confession statements that are not reliable but are also not unreliable either.
Examples include cases in which the suspect confesses to no facts, but merely
says he did it, like exoneree Travis Hayes. Confessions involving suspects who
are acquainted with the victim or the crime-scene cannot be as easily evaluated
for reliability. Take the example of a defendant claiming to have falsely
confessed but who was the first to discover the body of the victim. Even if
innocent, the suspect would have certain knowledge of the crime scene.
358. JOHN MONAHAN & LAURENS WALKER, SOCIAL SCIENCE IN LAW 567-605 (6th ed.

2006).
359. See LEO, supra note 7, at 314-15. For a study suggesting that such expert
testimony can affect mock-juror decisionmaking, see Iris Blandon-Gitlin, Kathryn Sperry &
Richard A. Leo, Jurors Believe Interrogation Tactics Are Not Likely to Elicit False
Confessions: Will Expert Witness Testimony Inform Them Otherwise?, 16 PSYCHOL., CRIME
&
L.
(forthcoming
2010),
available
at
http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=1420206.

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However, police investigators are trained to examine the scene and uncover
additional information not obvious to an untrained observer but which the
culprit would have known. Nevertheless, reliability review will likely prove
most valuable in cases involving stranger-perpetrators.
The Supreme Court is unlikely to reverse a many-decades-long turn in its
jurisprudence away from reliability towards voluntariness. Courts have not
been conducting such pretrial reliability hearings, and states have not yet
adopted such criminal procedure reforms. On the other hand, courts do
increasingly permit expert testimony, and perhaps the experiences of these
exonerees will influence approaches to postconviction review.
B. Recording Entire Interrogations
One reason courts may not have previously focused on reliability is that
assessing reliability poses great difficulties. Absent a recording of the
interrogation, courts were faced with a swearing contest between the defendant
alleging coercion and law enforcement denying coercion. A robust reliability
review faces a second order problem illuminated by these false confessions. As
these exonerees’ cases show, to the extent that facts are disclosed to the
suspect, the confessions appear uncannily reliable. The courts that ruled in
these exonerees’ cases thought that the exonerees had uttered information that
only the culprit could have known. Had the courts conducted a reliability
review, they likely would have found these false confessions reliable.
A complete interrogation record enables meaningful reliability review and
could help to prevent the problem of confession contamination. Commentators
have advocated that the problem has a “clear solution.”360 Police should be
required to “record the entire interrogation so that the trial judge can determine
whether police contamination has occurred” and the judge can then “analyze
whether the suspect could have gained knowledge of key details from facts
released to the public by the media.” 361 If police disclose facts during a
recorded interrogation, then any contamination of the confession is
documented. As Richard Ofshe explains, “Tape recording will prevent police
from doing the extraordinary things that need to be done to cause an innocent
person to falsely confess.” 362 Recording can also help to prevent unintentional
contamination, as in the case Detective James Trainum described.
Ten jurisdictions now require videotaping of at least some interrogations
by statute, and in seven additional states, supreme courts have either required or
encouraged electronic recording of interrogations.363 An increasing number of
360. See Leo et al., supra note 43, at 523; see also Steven A. Drizin & Beth A. Colgan,
Let the Cameras Roll: Mandatory Videotaping of Interrogations Is the Solution to Illinois’
Problem of False Confessions, 32 LOY. U. CHI. L.J. 337, 339-41 (2001).
361. Leo et al., supra note 43, at 523.
362. See Dolan & Larrubia, supra note 153.
363. See D.C. CODE § 5-116.01 (2009) (requiring police to record all custodial

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police departments voluntarily record interrogations and have reported positive
experiences doing so. 364
Additional resources invested in improving the interrogation process may
benefit all sides. False negatives, or accurate confessions excluded by courts,
may be more common than false confessions. Indeed, recording entire
interrogations has been touted by policing professionals because it helps police
to show that a confession was voluntary. The Inbau and Reid treatise advocates
recording interrogations because it also helps police to counter false
recantations by suspects. 365 Scholars have suggested that recording may raise
new questions, such as issues of observer bias based on the angle of the
camera. 366 Some speculate that the presence of cameras may discourage true
investigations); 725 ILL. COMP. STAT. ANN. 5/103-2.1 (West 2009) (requiring police to
record interrogations in all homicide cases); ME. REV. STAT. ANN. tit. 25, § 2803-B (2009)
(mandating recording “interviews of suspects in serious crimes”); MD. CODE ANN., CRIM.
PROC. § 2-402 (2009) (requiring that law enforcement make “reasonable efforts” to record
certain felony interrogations “whenever possible”); N.C. GEN. STAT. § 15A-211 (2009)
(requiring complete electronic recording of custodial interrogations in homicide cases); TEX.
CODE CRIM. PROC. ANN. art. 38.22, § 3 (Vernon 2007) (rendering unrecorded oral statements
inadmissible, but only if the statement does not contain “assertions of facts or circumstances
that are found to be true . . . .”); WIS. STAT. ANN. §§ 968.073, 972.115 (West 2009)
(requiring recording of felony interrogations and permitting jury instruction if interrogation
not recorded); 2009 Mont. Laws (West), H.B. 534 (to be codified at MONT. CODE ANN. § 464); 2009 Or. Laws ch. 488 (West) (to be codified at OR. REV. STAT. § 165.540); IND. R. EVID.
617 (requiring that in order to be admissible entire interrogations in felony criminal
prosecutions must be recorded); Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985) (“[A]n
unexcused failure to electronically record a custodial interrogation conducted in a place of
detention violates a suspect’s right to due process . . . .”); State v. Hajtic, 724 N.W.2d 449,
456 (Iowa 2006) (“[E]lectronic recording, particularly videotaping, of custodial
interrogations should be encouraged, and we take this opportunity to do so.”);
Commonwealth v. DiGiambattista, 813 N.E.2d 516, 535 (Mass. 2004) (allowing defense to
point out failure to record interrogation and calling unrecorded admissions “less reliable”);
State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994) (“[A]ll questioning shall be
electronically recorded where feasible and must be recorded when questioning occurs at a
place of detention.”); State v. Barnett, 789 A.2d 629 (N.H. 2001); State v. Cook, 847 A.2d
530, 547 (N.J. 2004) (“[W]e will establish a committee to study and make recommendations
on the use of electronic recordation of custodial interrogations.”); In re Jerrell C.J., 699
N.W.2d 110, 123 (Wis. 2005) (“[W]e exercise our supervisory power to require that all
custodial interrogation of juveniles in future cases be electronically recorded where feasible,
and without exception when questioning occurs at a place of detention.”).
364. A recent survey of 631 police investigators found that eighty-one percent believed
that interrogations should be recorded. See Kassin et al., Police Interviewing and
Interrogation, supra note 3, at 385, 393.
365. See INBAU ET AL., supra note 64, at 393-97 (noting “some clear benefits of
videotaping”). However, the treatise does object to mandatory electronic recording
requirements. Id. at 395-97.
366. See, e.g., Saul M. Kassin & Gisli H. Gudjonsson, The Psychology of Confessions:
A Review of the Literature and Issues, 5 PSYCHOL. SCI. IN PUB. INT. 33, 61 (2004) (discussing
remedies such as an “equal focus” camera angle); Celeste J. Snyder et al., Videotaped
Interrogations and Confessions: Does a Dual-Camera Approach Yield Unbiased and
Accurate Evaluations?, 27 BEHAV. SCI. & L. 451 (2009); G. Daniel Lassiter et al., Criminal
Confessions on Videotape: Does Camera Perspective Bias Their Perceived Veracity?, 7

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confessions and introduce costly false negatives.367 Studies and surveys of
police departments that record interrogations suggest otherwise, where police
can record surreptitiously, and where police have found that “they were able to
get more incriminating information from suspects on tape than they were in
traditional interrogations.” 368 Thus, most commentators view videotaping as
advantageous to law enforcement, capable of “rendering confessions more
convincing, . . . assisting prosecutors in negotiating more acceptable plea
bargains . . . and helping in securing convictions.”369
Further study may shed light on the efficacy of recording requirements,
particularly as police departments increasingly record interrogations
voluntarily. One way that scholars and police departments could further study
the effect of recording on the problem of contamination of confessions would
be to study sets of recorded interrogations to examine whether disclosure of
facts is apparent from the recordings.
C. Interrogation Reforms
Additional police procedures can safeguard reliability, such as procedures
intended to assure against contamination, assess suggestibility, and avoid
coercion postadmission. Police practices are a crucial piece of any reform
effort. Inbau and Reid have long recommended that police assiduously avoid
disclosing key facts to suspects. However, even if a confession is videotaped in
its entirety, if crucial facts are disclosed, courts may not suppress the
confession statement. The state legislation just described does not require
courts, in conducting a reliability review, to exclude recorded interrogations
that display extensive feeding of facts. It is most critical that the police in the
first instance safeguard the reliability of the entire interrogation.

CURRENT RES. IN SOC. PSYCHOL. 1, 7 (2001).
367. Lawrence Rosenthal, Against Orthodoxy: Miranda Is Not Prophylactic and the
Constitution Is Not Perfect, 10 CHAP. L. REV. 579, 606-07 (2007) (questioning whether
videotaping can curb abuses, particularly tactics courts condone).
368. See THOMAS P. SULLIVAN & NW. UNIV. SCH. OF LAW CTR. ON WRONGFUL
CONVICTIONS, POLICE EXPERIENCES WITH RECORDING CUSTODIAL INTERROGATIONS 22
(2004) (presenting results of a survey of over two hundred police departments); see also
LEO, supra note 7, at 296 (“Electronic recording is the most important and compelling policy
reform available for the problems of American police interrogation.” (citation omitted));
CAROLE F. WILLIS ET AL., THE TAPE-RECORDING OF POLICE INTERVIEWS WITH SUSPECTS: A
SECOND INTERIM REPORT 34-35, 73-74 (1988) (reviewing the recording requirement in Great
Britain); Thomas P. Sullivan & Andrew W. Vail, The Consequences of Law Enforcement
Officials’ Failure to Record Custodial Interviews as Required by Law, 99 J. CRIM. L. &
CRIMINOLOGY 215, 220-21, 228-34 (2009) (listing police departments that record custodial
interrogations and citing to the enthusiasm of “hundreds of law enforcement officers”
interviewed); Nadia Soree, Comment, When the Innocent Speak: False Confessions,
Constitutional Safeguards, and the Role of Expert Testimony, 32 AM. J. CRIM. L. 191, 258-61
(2005) (reviewing literature recommending mandatory videotaping).
369. See Cassell, supra note 238, at 489.

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First, police could ensure that all interrogations are recorded in their
entirety, as departments increasingly do. Such recordings should include both
the suspect and detectives so that any nonverbal cues can be observed.
Videotaping policies could be bolstered by clear policies and training regarding
the nondisclosure of key investigative facts. Such facts should be documented
in the investigative file, and as Inbau and Reid recommend, a record should be
made that they were not disclosed to the public, including the press, suspects,
and witnesses.
Second, additional procedures can structure the interrogation itself to
assure that key facts are not disclosed. For example, police can initially use as
an interrogator a detective who was not involved in the investigation, in effect
adopting a “double blind” technique. Following that “double blind” portion of
the interrogation, the lead detective who is familiar with the case could then test
the suspect’s knowledge of key crime scene facts. Other “double blind” tests
could be employed, such as reverse identifications like the one conducted in
Lafonso Rollins’ case, but conducted in a double blind fashion to avoid the risk
of suggestion.
Third, police can analyze and test the fit between the suspect’s narrative
and crime scene facts. They can do this not only be examining whether the
suspect volunteers key crime scene facts, but also by asking leading questions
regarding facts inconsistent with how the crime occurred. Police should be sure
to investigate each of the facts offered in the confession to test whether they are
corroborated by crime scene evidence. If courts conduct reliability review,
police would have a strong incentive to assess reliability in the first instance.
Fourth, police could modify current psychological interrogation techniques
to focus not on disclosure of facts but on treatment of populations vulnerable to
suggestion and coercion. Police can regulate the interrogations of suggestible
and vulnerable individuals, such as juveniles or mentally disabled individuals.
Fred Inbau has recommended adoption of “special protection” during such
interrogations. 370 Police can be trained to identify such individuals or they may
retain experts. Police departments have adopted model policies for
interrogating mentally handicapped or mentally ill individuals and for children
and juveniles. 371 All departments should do so.
Techniques such as the use of fabrications and deception, while permitted
under some circumstances by the Supreme Court, may be particularly
problematic when dealing with such vulnerable individuals. 372 Lengthy
interrogations may similarly be barred when dealing with such vulnerable
suspects; some have suggested formally limiting the time permitted for such
370. Fred E. Inbau, Miranda’s Immunization of Low Intelligence Offenders, 24
PROSECUTOR: J. NAT’L DISTRICT ATT’YS ASS’N, Spring 1991, at 9, 9-10.
371. See LEO, supra note 7, at 312-14.
372. Commentators have called for barring deception in all interrogations. See Miriam
S. Gohara, A Lie for a Lie: False Confessions and the Case for Reconsidering the Legality of
Deceptive Interrogation Techniques, 33 FORDHAM URB. L.J. 791 (2006).

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interrogations. 373 Indeed, police may simply require as a matter of sound
policy that such vulnerable individuals retain an attorney before being
interrogated to ensure that inadvertent pressure does not secure a grossly
unreliable or false account. 374 More radical, some scholars have recommended
that police could abandon the use of certain psychological techniques and
conduct a hearing in which a judicial officer questions the suspect, at least in
cases involving vulnerable individuals.375
As Richard Leo points out, “There is no single law, policy reform, or
panacea that will solve all the problems associated with police interrogation
and confession evidence in America.” 376 The fundamentally adversarial nature
of the investigative process may create incentives for law enforcement to
bolster confession evidence through disclosure of facts to compliant suspects.
Even a mandatory recording regime can be circumvented, perhaps with ease. If
contamination typically occurs unintentionally, then an electronic record will
provide a very useful protection. On the other hand, if police do occasionally
depart from training and procedure, and try to disclose key facts to a suspect,
then they may also try to circumvent a requirement that custodial interrogations
be recorded. After all, police may have contact with a suspect outside of the
interrogation room, in police vehicles, hallways, and detention cells. There was
some suggestion in several exonerees’ cases that disclosures took place during
crime scene visits. One scholar proposes extending recording requirements to
apply to noncustodial questioning. 377 Further, as in the case of David Vasquez,
even if a recording shows that key facts were fed, that record might not prevent
a conviction, even a wrongful conviction. Vasquez pleaded guilty after the
court denied the motion to suppress the confession, perhaps assuming that the
jury would not understand the significance of the confession contamination.
Not only do we not know how often confession contamination occurs, but
due to its insidious nature, reforms may not completely eradicate the problem.
However, reforms can effectively discourage contamination, particularly by
documenting interrogations so that a record exists if facts are disclosed.
Electronic recordings will make the task of reviewing interrogations easier than
373. Welsh S. White, False Confessions and the Constitution: Safeguards Against
Untrustworthy Confessions, 32 HARV. C.R.-C.L. L. REV. 105, 145 (1997) (“[T]he police
should be allowed to interrogate a suspect for no more than five hours.”).
374. Some scholars have recommended that all suspects be provided with an attorney
prior to interrogation. See, e.g., Charles J. Ogletree, Are Confessions Really Good for the
Soul?: A Proposal to Mirandize Miranda, 100 HARV. L. REV. 1826, 1842 (1987).
375. See Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The
Right to Remain Silent, 94 MICH. L. REV. 2625, 2669 (1996).
376. LEO, supra note 7, at 305; see also GUDJONSSON, supra note 7, at 537 (noting
cases where even though the suspect had no knowledge about the offenses and the
confession was therefore “unconvincing,” defendants were “still convicted on the basis of
their confession”).
377. See, e.g., Lisa Lewis, Rethinking Miranda: Truth, Lies, and Videotape, 43 GONZ.
L. REV. 199, 200, 237-38 (2007).

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ever before, but courts would also need to assess reliability, both at trial and
postconviction, while police adhere to policies designed to prevent
contamination of confessions. So long as criminal cases rely on confession
evidence as proof of guilt, the criminal justice system will need to adopt
precautions against contamination.
CONCLUSION
Decades ago, commentators and courts doubted whether false confessions
existed. Postconviction DNA testing has definitively proved that suspects do
falsely confess, with tragic wrongful convictions as a result. The set of DNA
exonerations provide a unique opportunity to study how false confessions can
be constructed. This Article found that all but two of these exoneree confession
narratives appeared reliable and corroborated by crime scene evidence. Police
and prosecutors then reported at trial that defendants had volunteered crime
details and therefore possessed “inside knowledge” of the crime. The
contamination of these confessions remained undetected, perhaps explaining
why for so long it was believed that a false confession could not occur.
Due to the contamination of exonerees’ confessions, the criminal justice
system could not later untangle what transpired. Though many of these
confessions displayed indicia of gross unreliability, the confessions all passed
muster at trial and postconviction. Indeed, DNA testing excluded eight of these
exonerees at the time of trial, but the confession of guilt was powerful enough
to overcome the DNA evidence of innocence. Courts denied relief to some
even after they obtained postconviction DNA testing. These false confessions
withstood scrutiny precisely because they were bolstered by detailed facts that
we now know must have been disclosed. Courts uniformly emphasized that
these confessions contained admissions that only the true murderer or rapist
could have known. Selective recording of many of these interrogations
typically only cemented the contamination, where recording occurred after
facts had already been disclosed to the innocent suspect.
Criminal procedure rules regulating confessions can be reoriented towards
reliability. Our existing constitutional criminal procedure rules not only fail to
examine confession reliability, but they can reward contamination by
discounting evidence of coercion based on apparent evidence of reliability.
Increasing numbers of local police departments and states have adopted one
crucial reform: videotaping entire interrogations. Contaminated false
confessions can be inexpensively discouraged by requiring recording of entire
interrogations. At a minimum, revelation of the contamination of these false
confessions supports further study and experimentation with reforms designed
to regulate the substance of confessions. Additional reforms could focus on
judicial review of confession reliability, use of experts at trial, and restructuring
police practices. Confession contamination is a highly insidious problem about
which little has previously been known. However, a renewed focus on the

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reliability and transparency of the interrogation process may improve the
accuracy of confessions and safeguard the integrity of the criminal process.