Two simple measures could go a long way toward ensuring that findings of criminal guilt are genuine
by Margaret Talbot
Seventy years ago, in a book called Convicting the Innocent, the Yale Law School professor Edwin Borchard produced a classic study of how the wrong person gets sent to prison or to death. The hapless innocents Borchard profiled included a coal miner and a doctor, Central European immigrants and American blacks, an unemployed religious visionary and an Algerian john named Frenchy. In those days exoneration was almost always a matter of luck—occasionally, for example, a supposed murder victim would turn up "hale and hearty" sometime after the alleged murderer landed in the penitentiary. Today, thanks to DNA evidence (when it is available), wrongful convictions can be reversed more confidently than ever before. And that confidence allows us to analyze the reasons for such convictions with greater certainty than Borchard or his contemporaries could.
Yet what is striking about the death-penalty convictions overturned recently (a hundred have been reversed in the past thirty years) and about other cases in which DNA evidence belatedly showed the accused to be innocent is how clearly the convictions rested on the same flawed foundations that Borchard identified. As in Borchard's day, what tends to do in the wrongly convicted is the kind of evidence that seems clinching, that often is clinching—namely, eyewitness identifications and confessions. But the human memory is not a video recorder; eyewitness testimony is notoriously flawed. And although most of those who confess are guilty, people can and do confess to crimes they did not commit—sometimes because they are coerced; sometimes (more often) because they are bewildered, frightened, or exhausted; sometimes because they are children, or adults with the mental capacity of children; sometimes because their interrogators have presented them with plausible scenarios in which they might have committed the crimes unknowingly—while blacked out, for instance, or while in the grip of another personality.
Children in interrogation rooms will sometimes confess to crimes they did not commit on the assumptions that they will then be allowed to go home, that they are doing what an adult wants of them, and that they can tell their parents the truth and fix everything later. Remember the two boys, aged seven and eight, who falsely confessed to killing eleven-year-old Ryan Harris in Chicago four years ago? The detectives who interrogated them, without their parents present, are said to have served one of the boys a Happy Meal and held his hands, saying, "We are all friends." The mentally retarded, too, will sometimes falsely confess, and for the same sorts of reasons: eagerness to please, naiveté about the legal weight of a confession, a yearning to be back home or to see their mothers. Jerry Frank Townsend, a twenty-seven-year-old retarded man, admitted in 1979 to six murders and a rape and served twenty-two years in a Florida prison before DNA evidence helped to clear him, last year. Charlie King, a retarded seventeen-year-old who was working as a school janitor, went to jail in 1992 for a crime he did not commit but did confess to—the murder of a nine-year-old girl in East Saint Louis—while the real killer went on to murder two more girls. "Even without the use of formal third-degree methods," as Borchard put it, "the influence of a stronger mind upon a weaker often produces, by persuasion or suggestion, the desired result."
Even able-minded adults, subjected to the right combination of coercion, sleeplessness, and grief, can falsely confess. In 1999 Keith Longtin, a forty-four-year-old welder from suburban Maryland, whose case was documented in a Washington Post series last year, allegedly made self-incriminating statements to the police about his wife's murder. Longtin had been held for thirty-eight hours of questioning, during which he slept, the police log says, for a total of fifty minutes. (While he served eight months in prison, the real killer, whose identity was later established by DNA evidence, sexually assaulted five women at knifepoint, one in front of her young child.) In 1988 Christopher Ochoa confessed to raping and murdering a young woman in Austin, Texas; he was later definitively cleared. Now that Ochoa is out of prison, he says that it's hard to explain to people who have never been in his position why he confessed. In interviews and speeches he offers some variation on the following themes: he was terrified, he was only twenty-two years old and had never been in trouble with the law, his interrogation lasted twelve hours, and the detectives in charge showed him autopsy photos of the murdered girl and threatened him with the death penalty.
A 1996 Justice Department report titled Convicted by Juries, Exonerated by Science detailed twenty-eight cases of wrongful conviction. Eyewitness identifications, usually by the victims, were the decisive factor in most of them. Like a confession, the testimony of an eyewitness, particularly a victim, is powerful stuff, sometimes seen as the gold standard of evidence. But in fact—as shown by a generation's worth of careful research on memory and suggestibility by psychologists including Elizabeth Loftus and Gary Wells—eyewitness accounts can be fragmented and changeable and subject to the deep desire to see somebody, anybody, punished for a terrible crime.
Experts have come up with two very good ideas for making wrongful convictions less likely. One is to improve the standard police lineup by letting witnesses see only one purported suspect at a time, so that they can make an absolute judgment about each one. When witnesses see six people at once, they make relative judgments, comparing the six and picking whoever looks most like the person they remember from the crime scene, rather than evaluating each individually. Conducting lineups sequentially seems like a minor change, but research by Wells and others has shown that it reduces the number of mistaken identifications—by as much as one half—without significantly reducing the number of correct ones. Ensuring that the detective running the lineup does not know who the real suspect is, and so does not make leading comments (Don't you want to look at number three again?), helps too, for the same reason that good clinical research is double-blind: otherwise it's easy to contaminate the results with intentional or unintentional bias.
The second proposal is to videotape all police interrogations, so that a reliable record exists of the questioning that produced a confession—how leading, how coercive, how open-ended—and of the suspect's comportment during it. Many police departments around the country, including those of San Diego and Kansas City, Missouri, already do this voluntarily, and police departments in Minnesota and Alaska are required by law to do it. Videotaping makes some police officers who haven't used it a little nervous. They worry that it will cost too much, that curbside or squad-car confessions will be inadmissible because taping hasn't started yet, or that officers will feel constrained from using aggressive but legitimate interrogation techniques—for example, telling a suspect they have evidence that they don't, a method the Supreme Court has upheld and Andy Sipowicz uses all the time on NYPD Blue.
These objections are largely unfounded. Videotaping is cheap: cameras cost a few hundred dollars, and whatever expense a police department incurs in videotaping is considerably less than the multimillion-dollar awards some states have paid for wrongful convictions. It is also ubiquitous, both in law enforcement (ever gotten one of those traffic tickets with a surveillance photo of your car?) and in everyday life. Indeed, in the era of amateur videos, Court TV, and twenty-four-hour-a-day news coverage, we have come to expect a video record of almost anything that matters to law or to history, and plenty of things that don't. Laws can be written to include good-faith exemptions for confessions obtained off-camera—and besides, some police officers already have video cameras mounted on their dashboards and carry tape recorders into the field, to protect themselves against allegations of abuse. Judges are capable of reaching sound conclusions about what constitutes a tough but legal line of questioning and what goes too far, and by now jurors have seen enough cop shows not to be shocked by scurrilous language or manipulative nice-guy tactics or certain kinds of allowable deception. "For me, the real issue is not whether the police are pushing the envelope a little bit in questioning but whether they are leading someone to produce a story that squares with a preconceived theory," says Steven Drizin, a law professor at Northwestern University and an advocate of taping. "That crosses the line, and it's going to be right there on the tape whether the confession originated in the mind of the police officer or of the defendant."
Whenever prosecutors in Hennepin County, Minnesota, use an interrogation tape that shows officers resorting to what might look like unorthodox methods, they have the officers take the stand and explain that their actions are accepted law-enforcement techniques. "Jurors understand," says Amy Klobuchar, the county attorney. "And you have to balance the risk with the great advantage to the prosecution of having jurors be able to see a person confessing on videotape and see his demeanor right after the crime, which may be a lot different from his cleaned-up appearance in court." Sometimes, she adds, there are advantages she would never have imagined: "My favorite story is of the time when we had a suspect who claimed to be blind. The police left the interrogation room for a few minutes, and the videotape caught him picking up a paper and starting to read it." (A recent editorial in the Chicago Tribune noted a similar case in Kankakee County, Illinois, where the videotaping of interrogations is routine. A suspect who had repeatedly denied that he had killed a young woman was left alone in the room for a few minutes, during which he seemed to forget about the video camera and began singing, "Ding, dong, the wicked witch is dead ...")
Despite some initial reluctance, police officers and prosecutors in the places where videotaping is already standard practice now tend to support it just as much as do advocates for the wrongfully convicted. According to a 1993 Justice Department study of police videotaping, the most thorough research to date on the subject, 97 percent of the departments that taped reported that it was "very useful" or "somewhat useful." The study found that videotaping increased the number of convictions and guilty pleas and decreased allegations of police misconduct. Moreover, when such allegations are made, videotapes can prove or disprove them to almost everybody's satisfaction. One police officer quoted in the study said that he likes videotaping because it builds trust in the police among judges and juries—they can "see into the interrogation room" and "see the professionalism of the interrogators."
Videotaping is one of those rare innovations that can help either side in the criminal-justice system, for the simple reason that it serves the quest to find out what really happened—which is to say (without sounding too grandiose about it) the quest for the truth. That, in the end, is its real virtue. "To me, videotaping is in the same category as DNA evidence," says William Geller, the author of the 1993 Justice Department study and currently a consultant to police departments. "It will send some people away for a long time to places they don't want to go, and it will free other people. It's a powerful truth-finding tool."