The enduring lesson of John Lilburne's saga: Self-incrimination in the criminal justice system
Vol. 78, No. 1 / Jan. - Feb. 2022
Isaac Amon is a researcher, lawyer, and counselor at law. He obtained a Juris Doctorate and a Master of Laws in negotiation and dispute resolution and Doctor of Juridical Science in comparative criminal procedure at Washington University School of Law. He interned in the Missouri State Public Defender System and served as the director for Legislative and Constituent Services at the Missouri Department of Corrections. He was awarded the Dagen-Legomsky Public Interest Fellowship in law school for his work at the International Criminal Tribunal for the Former Yugoslavia in The Hague. Prior to the global pandemic, he worked as an NGO legal analyst investigating atrocity crimes. He researches, writes, and speaks on legal history, criminal procedure, and comparative law, with a particular emphasis on adversarial and inquisitorial systems.
In 1637, the pamphleteer John Lilburne was arrested on the orders of the Star Chamber, an inquisitorial tribunal in London answerable to only the king and not subject to common law procedure. Lilburne, 23, imported pamphlets from Holland, which had been condemned as treasonous.
He was denounced by co-conspirators, and his conviction seemed certain. The Star Chamber compelled suspects to take an oath promising to answer the charges prior to being informed of them. This institutional practice accordingly ensnared defendants within the “cruel trilemma of self-accusation, perjury or contempt.”2 Lilburne categorically refused to take this oath until he knew the charges, thus undermining the very system upon which the Star Chamber had been constructed.3 He invoked a right to remain silent and the opportunity to confront his accusers.4 The oath, he said, was “against the law of God, and the law of the land.”5
The Star Chamber, frustrated by his obstinacy, ordered Lilburne to be severely punished for refusing to take the oath. He was sentenced, along with another publisher, “to pay a five-hundred pound fine, punishment in the pillory, and imprisonment until they conformed themselves by taking the oath. Lilburne was to also be whipped through the streets on the way from Fleet prison to the pillory.”6 Yet, while being lashed, he continued to assert the free-born rights of Englishmen, and eventually managed to publish several denunciations of this particular inquisitorial tribunal.
Although Lilburne lived to see the abolition of the Star Chamber in 1641, he died at 43 and languishes in obscurity today, a less-than-fitting end for the man who helped establish the common law right against self-incrimination.7 Only later, in “a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal,” would he be recognized by jurists and scholars as one of the founders of this foundational right, enshrined today around the world.8
Methods of persuasion
The common law has long claimed that its geographic isolation endowed its legal system with uniqueness in that it escaped the fate of the continental European legal system, particularly the phenomenon of coerced confessions. This claim has been adopted by the U.S. Supreme Court throughout its jurisprudential history.9 Yet, even if torture constituted an aberration in Anglo-American history,10 English law utilized the practice of peine forte et dure for nearly five centuries.
Suspects who refused to enter a plea upon indictment were jailed; if they needed additional coercion, diet was limited to stale bread and water was rationed.11 If these restrictions still failed to generate a plea before the court, the suspect would be “pressed with as great a weight of iron as his wretched body can bear.”12 Most times, the suspect relented and pleaded. Accordingly, at this point they would have heavy weights piled on top of their chests, until they either pleaded or suffocated. While this process normally took minutes to hours, there are accounts of peine forte et dure lasting for days.13 The original punishment – as detailed in the 1275 Statute of Westminster during the reign of King Edward I – was “soient mys en la prisone fort et dure.”14 This word, prisone, or imprisonment, was radically different than peine, or pain, and treatment of the suspect thus varied dramatically.15
Most suspects refused to plead to remain not guilty. Under English law, their property would not be attainted and could be inherited by their next of kin.16 F.W. Maitland, a famous legal historian, remarked that while the common law “escaped secrecy and torture … we were not very far from torture in the days when peine forte et dure was invented.”17 It continued to operate well into the 1760s, when the distinguished jurist William Blackstone published his Commentaries on the Laws of England.18
Although common law formally abolished this method in 1772, rules of criminal procedure construed refusal by defendants to plead as an acknowledgment of guilt, resulting in conviction. This legal presumption was only reversed in 1827 (during the same time that the Portuguese and Spanish Inquisitions were formally abolished) when courts finally treated defendants’ refusal to enter a plea as equivalent to a plea of not guilty, as remains the case today.
The United States
The ordeals of Lilburne dramatically influenced the founders of our Republic when they drafted the Constitution, particularly the Fifth Amendment in the Bill of Rights, which explicitly states that no individual may be “compelled in any criminal case to be a witness against himself.”19 This guarantee was enshrined to prevent the accused from ever facing the Star Chamber’s “cruel trilemma of self-accusation, perjury or contempt,” like Lilburne had.20 Near the end of the 19th century, the U.S. Supreme Court first dealt with coerced confessions in Hopt v. Utah and Bram v. United States.21 The Court held that confessions must be voluntarily made to be valid because those made due to inducement or coercion were inadmissible, “for the law will not suffer a prisoner to be made the deluded instrument of his own conviction.”22
Yet, well into the 20th century, American law enforcement utilized physical methods to extract confessions. The spirit of Lilburne haunted judicial opinions as they were increasingly written in response to physically coercive techniques eerily reminiscent of the Star Chamber. In Brown v. Mississippi, a local sheriff whipped and beat three African Americans suspected of murder.23 One was lynched before being cut down alive. This process was repeated days later and the boys confessed. The U.S. Supreme Court reversed the lower court’s ruling, observing that “[i]t would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the[se] confessions...”24
The Court continued to grapple with these questions well into the following decades. In Chambers v. Florida,25 40 African American men were arrested for the murder of an elderly white man. Under heavy pressure to locate suspects, local law enforcement subjected these men to repeated questioning over five days in “circumstances calculated to break the strongest nerves and the stoutest resistance.”26 A unanimous Supreme Court condemned this practice and held that the “testimony of centuries … [stands] as proof that physical and mental torture and coercion … [such as t]he rack, the thumbscrew, the wheel … protracted questioning … had left their wake of mutilated bodies and shattered minds … .”27 Four years later, the Court invalidated a lower court ruling which admitted a confession after the suspect was questioned for over 36 hours without interruption.28
Lilburne’s saga, however, was featured most prominently in the seminal case of Miranda v. Arizona. This decision, considered controversial within American society, constituted the zenith of American jurisprudential acknowledgment of the right against self-incrimination. Chief Justice Earl Warren explicitly invoked the trials and tribulations of Lilburne before the Star Chamber to support the Court’s holding that law enforcement must directly inform suspects of their right to remain silent during questioning.29 An extremely important observation that Miranda made was its recognition of interrogative techniques used by police to obtain a confession. While falling short of the Star Chamber’s methods, they would unquestionably be repugnant to the conscience today.30
These interrogative methods, often referred to as “the Reid Technique” (after John Reid, the Chicago police officer who popularized Fred Inbau’s psychological techniques), retain the same objective of the “third degree” – extracting a confession for they “dominate all other case evidence [and will] lead a trier of fact to convict the defendant.”31 This system is well-known to lawyers and fans of procedural cop dramas or TV shows, such as “Law & Order.” The accused, once identified, is escorted to the police precinct or station. They are thrust into an unfamiliar setting – isolating them from family and friends (depriving them of their moral support); skewing their perception of time by enclosing them in a location where there are no clocks or windows; and occurring in early morning or late night, when a person’s guard is normally more relaxed. Although Inbau recommended that “single interrogation sessions should not exceed three to four hours ‘unless the suspect is showing clear potential for telling the truth’… [researchers found that] in cases of false confessions in which interrogation time was recorded, 34% lasted six to twelve hours, 39% lasted twelve to twenty-four hours, and the average length was 16.3 hours.”32
In this milieu, this psychological technique is employed with devastating effectiveness. Law enforcement first ask ordinary questions to establish a behavioral baseline. This permits police – based on certain behavioral cues – to decide whether the suspect is presumed to be guilty. The “Reid Technique” is premised on an implied assumption of guilt, “a theory-driven social interaction led by an authority figure who already believes that he or she is interrogating the perpetrator and for whom a just outcome is measured by confession.”33 Once the interrogator believes the suspect is guilty, the confrontational phase formally commences. If the accused continues to deny culpability, law enforcement is advised to persistently bat away their denials (thus infusing the very atmosphere with assumptions of guilt) until the confession is finally given.34
Police are trained to obtain confession by either maximization (“scare tactics designed to intimidate suspects: confronting them with accusations of guilt, refusing to accept their denials and claims of innocence, and exaggerating the seriousness of the situation”) or minimization (“minimizing the seriousness of the offense and the perceived consequences of confession, and gaining the suspect’s trust by offering sympathy, understanding, and face-saving excuses”).35 These techniques make it easier for suspects to confess, often believing that they will receive leniency.36 It must also be acknowledged that the suspect “who is attempting just to make the interrogation stop very well may spew inaccurate details, either because he is factually innocent … [or] calculates his responses to please the interrogator … so that he gets the earliest and fullest relief from the interrogation.”37
Although the Reid Technique has thus been criticized for “confirmation bias,”38 the instructional organization advertises that this method can elicit confessions in 80% of cases.39 This corroborates the empirically proven phenomenon of false confessions. The Innocence Project uncovered that approximately one quarter of wrongful convictions involved the suspect giving a false confession.40 Reasons include alleged intimidation like force, threat of force, mental health issues, limited education, and simple ignorance of the law.41 Since the first DNA exoneration in 1989, 375 individuals in 37 U.S. states have been exculpated due to the Innocence Project’s pioneering work.42 In 2019, according to the National Registry of Exonerations, 143 individuals who cumulatively spent almost 2,000 years behind bars were exonerated,43 while 24 cases – or nearly 17% – involved false confessions.44
Miranda thus turned out to be more of an anomaly in the annals of American jurisprudence than is commonly believed. Despite the theoretical warnings the Miranda rights provide to criminal suspects, their power is more illusory than substantive. Despite their limited applicability (and theoretical ability to cease law enforcement’s interrogation), it is estimated that up to 80% of criminal suspects waive these rights.45 This waiver occurs in many cases because awareness of one’s own innocence “leads people not only to waive their Miranda rights to silence and to counsel, but also to be more open and forthcoming in their interactions with police. If you have nothing to hide, you might wonder why you should remain silent and get an attorney.”46
These developments have arguably circumvented Bram’s late 19th century bright-line rule – that inducements or threats to compel confession would not be countenanced by the U.S. criminal justice system. Miranda and its progeny effectively transformed judicial analysis into a time-intensive and exhaustive factual determination as to whether criminal suspects had genuinely waived their rights (“voluntarily, knowingly and intelligently”). Despite the Court’s eventual reaffirmation of Miranda’s core holding,47 its significance has changed with further decisions. Three years after Miranda, the U.S. Supreme Court in Frazier v. Cupp seemingly permitted law enforcement to intentionally deceive criminal suspects to obtain a confession when they decided that “the fact that the police misrepresented the statement that Rawls had made is, while relevant, insufficient, in our view, to make this otherwise voluntary confession inadmissible.”
In Colorado v. Connelly, an individual suffering from chronic schizophrenia confessed to murder, claiming voices had compelled him to do so. Nonetheless, the Court upheld his self-incrimination holding that official coercion must exist for confessions to be deemed “involuntary.”48
Justice William Brennan vigorously dissented and remarked that our traditional
distrust for reliance on confessions is due, in part, to their decisive impact upon the adversarial process. Triers of fact accord confessions such heavy weight in their determinations that ‘the introduction of a confession makes the other aspects of a trial in court superfluous and the real trial … occurs when the confession is obtained.49
In Arizona v. Fulminante, a five-justice majority held that the defendant had been coerced to confess and that the confession had played a determinative role at trial. Accordingly, the Court overturned his conviction. Yet, the Court arguably muddied the legal waters by subjecting the question of coercion to a “harmless error” analysis. Four dissenting justices contended that “permitting a coerced confession to be part of the evidence on which a jury is free to base its verdict of guilty is inconsistent with the thesis that ours is not an inquisitorial system of criminal justice.”50
This trend has continued over the past decade. In Berghuis v. Thompkins,51 the Court held that a suspect in custody must expressly invoke “the Miranda rights” to benefit from those protections. Otherwise, an unfavorable inference may be drawn from a suspect’s silence.52 This holding, requiring suspects to expressly invoke their Miranda rights to benefit from them, was extended by the Court in Salinas v. Texas.53 The individual in that case voluntarily accompanied law enforcement officers to the police station and answered most questions, but remained silent when asked an incriminating question. In a noncustodial setting, the Court held that a suspect must invoke his privilege against self-incrimination; otherwise, adverse inferences could be drawn at trial. While the core holding of Miranda thus remains, and the warnings are ubiquitous in popular culture, the right against self-incrimination no longer retains the sacrosanct position it once indisputably did.
A path forward?
Lilburne’s legacy and centuries of subsequent legal history show how those in power could seek to obtain the confession of criminal suspects to legitimate their power. The temptation to abuse power by the state is great – despite the existence of procedural protections such as the Miranda rights – while the unreliability of confessions remains high. The widespread usage of the Reid Technique has led to the conviction of scores of innocent individuals across the country. Some countries have hence dispensed with the Reid Technique and adopted non-confrontational interrogation methods, such as the PEACE technique,54 Cognitive Approach, or Kinesic Method.55 These methods, in contrast to the Reid Technique, seek to uncover facts in the beginning and “interviewers are encouraged to be fair and open-minded and to pursue reliable, true and accurate information.”56 Nonetheless, while these methods appear promising, the annals of history – from Lilburne to the 21st century – bear out the seemingly innate impulse in criminal justice to coerce suspects to confess crimes to themselves, their victims, and the system.
Although our legal ethos continues to insist on the value of a confession, the modern criminal justice system has developed extrinsic evidence – eyewitness testimony, DNA, and circumstantial evidence – arguably supplanting the need for confession. Most importantly, false confessions occur and innocent people are jailed, knowingly or unknowingly, usually upon the basis of confession. “If there is more to criminal justice than truth-seeking alone, then to avoid defeat of the additional goals of dignity and integrity, we have to reject even the accurate confession if involuntarily obtained.”57
In the end, empirical studies have conclusively shown that the Reid Technique has sometimes given law enforcement erroneous confidence in the guilt of suspects, helping lead to false confessions and incarceration of innocent individuals, sometimes for decades. Prohibiting conviction upon self-incrimination provided to law enforcement would not exclude its use in plea bargains, but the confession would be subject to negotiations between prosecutor and defense counsel, thus helping to equalize resources of the two sides. While there may be some social costs if this model came to be adopted, new benefits would likely arise – law enforcement could focus on examining facts first and foremost, suspects would no longer be deceived, and manipulative psychological tactics and subsequent false confessions could be reduced. Judges would no longer have to analyze whether the confession was freely given without undue pressure, and suspects – ignorant of procedural protections – would have constitutional rights upheld. Study of history is imperative, for as Oliver Wendell Holmes Jr., the future U.S. Supreme Court justice, observed:
The rational study of law is still to a large extent the study of history. History must be a part of the study … because it is the first step toward … a deliberate reconsideration of those rules … It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.58
After centuries of torture, grave abuses, and false confessions it is time to perhaps end the age of the confession in criminal law, conceding that “mea culpa belongs to a man and his God. It is a plea that cannot be extracted from free men by human authority.”59
1 Isaac Amon is a researcher, lawyer, and counselor at law. He obtained a Juris Doctorate and a Master of Laws in negotiation and dispute resolution and Doctor of Juridical Science in comparative criminal procedure at Washington University School of Law. He interned in the Missouri State Public Defender System and served as the director for Legislative and Constituent Services at the Missouri Department of Corrections. He was awarded the Dagen-Legomsky Public Interest Fellowship in law school for his work at the International Criminal Tribunal for the Former Yugoslavia in The Hague. Prior to the global pandemic, he worked as an NGO legal analyst investigating atrocity crimes. He researches, writes, and speaks on legal history, criminal procedure, and comparative law, with a particular emphasis on adversarial and inquisitorial systems.
2 Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 53, 55 (1964).
3 Jno. C. Knox, Self Incrimination, University of Pennsylvania Law Rview and American Law Register 74, no. 2 (1925): 139-54, 42-43: “But, here again, it must be remembered that Lilburn[e]’s objection was limited to being compelled to answer without being charged with a definite crime. It seems not to have occurred to him to contend that he might properly refuse to answer were he called upon to refute a specific allegation.”
4 John Rushworth, “Historical Collections: 1637 (3 of 5).” In Historical Collections of Private Passages of State: Volume 2, 1629-38, (London: D Browne, 1721), 461-481. British History Online, accessed December 2018, http://www.british-history.ac.uk/rushworth-papers/vol2/pp461-481: As the record, written by the Bishop of Norwich, says for February 13, 1637: “Information was preferred in Star-Chamber by the King’s Attorney General, against John Lilburne and John Warton [another publisher], for the unlawful Printing and Publishing of Libellous and Seditious Works … they were brought up to the Office [of the Star Chamber], and there refused to take an Oath to answer Interrogatories, saying it was the Oath ex Officio, and that no free-born English man ought to take it, not being bound by the Law to accuse himself, (whence ever after he was called Free-born John) … .”
5 Leonard W. Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination 275 (1968); see also John Hostettler, Sir Edward Coke: A Force for Freedom 147 (Chichester, England: Barry Rose, 1997). Hostettler observes that Lilburne’s assertion of common law protection under the “law of God and the law of the land” would be repeatedly invoked by him over the course of the 1640s and 1650s, as he was brought to trial a few more times, while Oliver Cromwell ruled the English Commonwealth during the Interregnum.
6 Id. at 276.
7 Glanville Williams, LL.D., The Proof of Guilt: A Study of the English Criminal Trial 39 (London: Stevens & Sons 1955): “The use of torture to extract confessions is a stain on the legal history of all European countries, not to say the contemporaneous history of some of them; Englishmen can at least say that it was abandoned here sooner than anywhere else. And the revulsion from torture has, perhaps, left a deeper mark upon our legal system than on any other. The strong insistence, after the abolition of the Star Chamber, that the administration of an oath to a defendant was contrary to the law of God and the law of nature, was a race-memory from those evil days.” However, English law countenanced the use of peine forte et dure for centuries, until even the time of Blackstone in the late 18th century.
8 See Lincoln, Abraham, “Gettysburg Address” (1863). Leonard W. Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination 272-273 (New York, 1968): “Had Lilburne been the creation of some novelist’s imagination, one might scoff at so far-fetched a character. He was, or became, a radical in everything – in religion, in politics, in economics, in social reform, in criminal justice – and his ideas were far ahead of his time. … In successive order he defied king, parliament, and protectorate, challenging each with libertarian principles. … Standing trial for his life four times, he spent most of his adult years in prison and died in banishment…[but]…was the catalytic agent in the history of the right against self-incrimination. He appeared at the right moment in history.”
9 David Alan Sklansky, Anti-Inquisitorialism, 122 Harv. L. Rev. 1634, 1665-66 (2009): “When the [Supreme] Court first used inquisitorial methods as a contrast model for the protections the Constitution provided against coerced confessions, the methods it had foremost in mind were torture and prolonged questioning in isolation: ‘[t]he rack, the thumbscrew, the wheel, solitary confinement, protracted questioning and cross questioning, and other ingenious forms of entrapment of the helpless or unpopular’ – tactics that ‘had left their wake of mutilated bodies and shattered minds along the way to the cross, the guillotine, the stake and the hangman’s noose.’” See Chambers v. Florida, 309 U.S. 227, 237-38 (1940); Ashcraft v. Tennessee, 322 U.S. 143, 152 n.8 (1944); Brown v. Mississippi, 297 U.S. at 287 (1936).
10 It is interesting to note that though torture in Elizabethan times may have been a “brief departure from a legal tradition that abhorred and ridiculed [it],” as Hanson has argued, contemporaries denied that torture even occurred during the reign of Elizabeth I. Indeed, on p. 57 of her article “Torture and Truth,” she quotes from Sir Thomas Smith’s De Republica Anglorum (1565, published about 20years later), in which he wrote, “torment or question which is used by the order of the civill lawe and custome of other countries to put a malefactor to excessive paine, to make him confesse him selfe, or of his fellowes or complices, is not used in England…” This is, of course, manifestly false.
11 Andrea McKenzie, “‘This Death Some Strong and Stout Hearted Man Doth Choose:”’ The Practice of Peine Forte et Dure in Seventeenth and Eighteenth-Century England,” 23 Law & Hist. Rev. 284 (2005).
13 Id. at 287.
14 As quoted in William Blackstone’s Commentaries on the Laws of England, Work IV, 212 (1765).
15 J.H. Baker, An Introduction to English Legal History (Oxford: Oxford University Press, 4th ed. 2007), 508-509. See also Sir Frederick Pollock and Frederic William Maitland, The History of English Law: Before the Time of Edward I651-652 (London: Cambridge University Press, 2d ed. 1898. Reprint, London: Cambridge University Press, 1968), where they similarly observe, “In 1275 Edward I found it necessary to declare that notorious felons who were openly of ill fame and would not permit themselves upon inquests should be kept in strong and hard prison as refusing to stand to the common law of the land. Soon afterwards we learn that their imprisonment is to be of the most rigorous kind; they are ironed, they lie on the ground in the prison’s worst place, they have a little bread one day, a little water the next. A few years later we hear that the prisoner is to be laden with as much iron as he can bear, and thus in course of time the hideous peine forte et dure was developed.”
16 McKenzie, supra note 11, at 289.
17 Pollock and Maitland, supra note 15, at 659.
18 See Blackstone, supra note 14, at 213, where even he remarked “the doubts that may be conceived of its legality and the repugnance of its theory (for it rarely is carried into practice) to the humanity of the laws of England, all seem to require a legislative abolition of this cruel process, and a restitution of the antient [sic] common law.”
19 U.S. Const. amend. V.
20 Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 53, 55 (1964).
21 Hopt v. Utah, 110 U.S. 574 (1884); Bram v. United States, 168 U.S. 532 (1897).
22 Bram, 168 U.S. at 547 (quoting Hawkins’ Pleas of the Crown section 3, chapter 46, note 2 (Leach, 6th ed., 1787)).
23 Brown v. Mississippi, 297 U.S. 278 (1936).
24 Brown, 297 U.S. at 286.
25 Chambers v. Florida, 309 U.S. 227 (1940).
26 Chambers, 309 U.S. at 238.
27 Chambers, 309 U.S. at 237.
28 Ashcraft v. Tennessee, 322 U.S. 143 (1944).
29 Miranda v. Arizona, 384 U.S. 436, 458-459 (1966): “We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came and the fervor with which it was defended. Its roots go back into ancient times. Perhaps the critical historical event shedding light on its origins and evolution was the trial of one John Lilburn [sic], a vocal anti-Stuart Leveller, who was made to take the Star Chamber oath in 1637. … He resisted the oath and declaimed the proceedings … . On account of the Lilburn trial, Parliament abolished the inquisitorial Court of Star Chamber … . Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty. … The privilege was elevated to constitutional status … . We cannot depart from this noble heritage.”
30 Saul M. Kassin and Gisli H. Gudjonsson, The Psychology of Confessions: A Review of the Literature and Issues, 5 Psychol. Sci. in Pub. Int. 33, 41 (2004): “In the past, American police routinely practiced ‘third degree’ methods of custodial interrogation – inflicting physical or mental pain and suffering to extract confessions and other types of information from crime suspects. Among the commonly used coercive methods were prolonged confinement and isolation; explicit threats of harm or punishment; deprivation of sleep, food, and other needs; extreme sensory discomfort (e.g., shining a bright, blinding strobe light on the suspect’s face); and assorted forms of physical violence and torture (e.g., suspects were tied to a chair and smacked repeatedly to the side of the head or beaten with a rubber hose, which seldom left visible marks). Third-degree tactics may have faded into the annals of criminal justice history, but modern police interrogations are still powerful enough to elicit confessions, sometimes from innocent people.”
31 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, 429 (1998).
32 Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C.L. Rev., 891, 946 (2004).
33 Saul M. Kassin, S.C. Appleby, and J.T. Perillo, Interviewing suspects: Practice, science, and future directions. Legal and Criminological Psychology” 15 The British Psychological Society 39, 41 (2010).
34 Jessica R. Klaver et al., Effects of Personality, Interrogation Techniques and Plausibility in an Experimental False Confession Paradigm, 13 Legal & Crim. Psychol. 71, 81 (2008); Richard J. Ofshe & Richard A. Leo, The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions, 16 Stud. L. Pol. & Soc’y 189, 192-93, 227 (1997).
35 Melissa B. Russano et al., Investigating True and False Confessions within a Novel Experimental Paradigm, 16 Psychol. Sci. 481, 482 (2005).
36 Saul M. Kassin, False Confessions: Causes, Consequences, and Implications for Reform, 17 Current Directions in Psychol. Sci. 249, 250 (2008).
37 Dean A. Strang, Inaccuracy and the Involuntary Confession Understanding Rogers v. Richmond Rightly, 110 J. Crim. L. & Criminology 69, 74 (2020).
38 Saul M. Kassin, On the Psychology of Confessions: Does Innocence Put Innocents at Risk? 60 Am. Psychol. 215, 216, (2005): In response to the question whether “[law enforcement’s] methods of influence might cause innocent people to confess[?]” a common answer was “No, because I do not interrogate innocent people.”
39 Douglas Starr, The Interview, New Yorker, Dec. 9, 2013, at 42.
40 DNA Exonerations in the United States: Fast Facts, The Innocence Project, (https://www.innocenceproject.org/dna-exonerations-in-the-united-states/); Jennifer Lackey, False Confessions and Testimonial Injustice, 110 J. Crim. L. & Criminology 43, 45 (2020).
41 Innocence Project, supra note 40.
45 Kassin et. al., supra note 33, at 42. Probably the best piece of legal advice in this regard would be that offered by Justice Robert Jackson in Watts v. Indiana, 338 U.S. 49, 59 (1949) (Jackson, J., dissenting): “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.” See also Saul M. Kassin & Rebecca J. Norwick, Why People Waive Their Miranda Rights: The Power of Innocence, 28 Behav. L. & Hum. Behav. 211, 218 (2004). To put it simply, if criminal confessions are inadmissible, false confessions will stop.
46 Lackey, supra note 40, at 48.
47 Dickerson v. United States, 530 U.S. 428, 432 (2000) (“We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves. We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts.”)
48 Colorado v. Connelly, 479 U.S. 157 (1986).
49 Id. at 182 (Brennan, J., dissenting) (quoting E. Cleary, McCormick on Evidence 316 (2d ed. 1972).
50 Arizona v. Fulminante, 499 U.S. 279, 293-294 (1991).
51 Berghuis v. Thompkins, 560 U.S. 370 (2010).
52 Id. at 378 (“There is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously. A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that ‘avoid[s] difficulties of proof and … provide[s] guidance to officers’ on how to proceed in the face of ambiguity. … If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression ‘if they guess wrong.’ Suppression … in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity.”)
53 Salinas v. Texas, 570 U.S. 178 (2013).
54 The acronym stands for 1) Preparation and Planning; 2) Engage and Explain; 3) Account; 4) Closure; 5) Evaluate.
55 See Current State of Interview and Interrogation, FBI Law Enforcement Bulletin (Nov. 6, 2019) (available at https://leb.fbi.gov/articles/featured-articles/current-state-of-interview-and-interrogation).
57 Dean A. Strang, supra note 37, at 74.
58 Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 478 (1897).
59 Abe Fortas, The Fifth Amendment: Nemo Tenetur Prodere Seipsum, 25 J. Clev. B. Ass’n 91, 98 (1954).