Contaminated Confessions Revisited

A second wave of false confessions is cresting.  In the first twenty-one years of post-conviction DNA testing, 250 innocent people were exonerated, forty of which had falsely confessed. Those false confessions attracted sustained public attention from judges, law enforcement, policymakers, and the media.  Those exonerations not only showed that false confessions can happen, but did more, by shedding light on the problem of confession contamination, in which details of the crime are disclosed to suspects during the interrogation process.  As a result, false confessions can appear deceptively rich, detailed, and accurate.  

In just the last five years, there has been a new surge in revelations of false confessions—a set of twenty-six more false confessions among DNA exonerations. All but two of these most recent confessions included crime scene details corroborated by crime scene information.  Illustrating the power of contaminated false confessions, in nine of the cases, defendants were convicted despite DNA tests that excluded them at the time. As a result, this second wave of false confessions should cause even more alarm than the first.  In the vast majority of criminal cases there is no evidence to test using DNA. Unless a scientific framework is adopted to regulate interrogations, including by requiring recording of entire interrogations, overhauling interrogation methods, providing for judicial review of reliability at trial, and informing jurors with expert testimony, the insidious problems of confession contamination will persist.

A Rule of Lenity for National Security Surveillance Law

This Essay argues that Congress should adopt a rule of narrow construction of the national security surveillance statutes. Under this interpretive rule, which the Essay calls a “rule of lenity,” ambiguity in the powers granted to the executive branch in the sections of the United States Code on national security surveillance should trigger a narrow judicial interpretation in favor of the individual and against the State. A rule of lenity would push Congress to be the primary decision maker to balance privacy and security when technology changes, limiting the rulemaking power of the secret Foreign Intelligence Surveillance Court. A rule of lenity would help restore the power over national security surveillance law to where it belongs: The People.