The symposium at  Concurring Opinions on  Convicting the Innocent has been less than energetic in its forward momentum, about as controversial as chick peas and less than enthusiastically received. In fact, I suspect I’ve been one of twelve people total to bother with it, but still I press on. 

In a post by Northwestern lawprof Steve Drizin, director of the NU Center for Wrongful Convictions, he discusses the issue of contaminated police testimony about feeding facts to a defendant giving rise to a false confession.

In the absence of an electronic recording of the entire interrogation, suspects don’t stand much of a chance of convincing a jury that their confessions were coerced or false.  As Dan Simon points out in In Doubt, jurors have great difficulty accepting the idea that anyone would confess to a crime they did not commit, especially a murder or other crime that could result in death or a lengthy prison sentence.  Moreover, in a classic case of the “cover-up being worse than the crime,” the trial process actually encourages prosecutors to prepare police witnesses to testify that the details came from the suspect in an uninterrupted narrative with no prompting, prodding or persuasion from the police.  It’s not a case of suborning perjury.  Without a recording, everyone has plausible deniability about police contamination.  The collective memory of the officers involved —  often months or years after the fact — is washed clean of any contamination.  During trial preparation, prosecutors prepare the officers to testify in ways that are persuasive to juries.    There is nothing more persuasive than a police officer who testifies that the reason he knew the suspect was guilty was because the suspect came up with details that only the true perpetrator could have known.

At first glance, this seems to be the conventional wisdom, that everyone is just doing their job under difficult circumstances, with nothing nefarious going on, and it just works out badly.  Even the “collective memory of the officers involved…is washed clean of any contamination.” Time heals all wounds.

But it’s not so.  There are two fundamental flaws that routinely occur that undermine this overly kind view of contaminated testimony.  First, the police officer takes the stand and testifies that he remembers everything, everything, as if it happened yesterday.  As much as we might want to wish away any suggestion of perjury, there is no rationalization that allows the cop to testify as to facts as if he recalls them perfectly while simultaneously  justifying his absolution from responsibility for contaminated testimony by the fact that “months or years” have elapsed.

Either he remembers the facts or he doesn’t. Which is it?

The second flaw is that the feeding of facts to a defendant in the course of attempting to extract a confession isn’t mere happenstance.  It’s no accident. It is something police officers are trained to do.  Sure, they occasionally get a defendant who spills his guts, committed the crime and tells all, but that’s not the situation under discussion. Rather, Drizin speaks to the false confession, the seemingly inexplicable circumstance where a person who didn’t do the crime manages to come up with a confession replete with intimate details.

In exculpating the cop, he ignores what Larry Barksdale was kind enough to tell us, it’s the police officer’s job to get the confession.  It is the police officer’s job to get a confession that will stick, that will suffice to convict the defendant. It is not his job to make certain that it’s truthful. If the confession is false, it’s our job to prove it.

In the sanitary world of theory, we don’t point fingers and accuse anyone of doing bad things. It’s just not polite.  But trials don’t happen in the sanitary world of theory, and people do bad things.  To testify under oath that nobody planted the details that bolster a confession, but that they came from the defendant alone, is fine, except when it’s a lie.  What it is not is a mistake. It is not forgivable. It is not excusable. Even though we may want to be polite and hurt no one’s feelings, it’s just not real.

This is a tough business, and the stakes in the real world are very high.  If there is to be a solution to the problem of false confessions (whether by the innocent or the guilty, or the somewhat guilty), it has be based on how things actually happen in the courtroom.  Police don’t innocently forget that the seeded the confession with details. Police do so to make the confession stick. They do so because their job is to make the confession stick.  They do so because they believe the defendant is guilty, and the ends justify the means. They don’t lose sleep over it.

This isn’t to say that Larry Barksdale is wrong about his perspective, that it’s a cop’s job to get a confession that nails a defendant to the wall, even though it’s the prime reason for false confessions.  But it is to say that no worthwhile discussion of false confessions can be premised on the notion that it’s all a big mistake and cops would never deliberately testify falsely about a confession because they can’t remember how they contaminated it, They remember. They contaminated the confession on purpose.

With that in mind, let the discussion continue.