Combating Contamination in Confession Cases

“Sometimes eyewitnesses make mistakes. Snitches tell lies. Confessions are coerced or fabricated. Racism trumps the truth. Lab tests are rigged. Defense lawyers sleep. Prosecutors lie.” So declared Barry Scheck, Peter Neufeld, and Jim Dwyer in their pathbreaking 2000 treatise on wrongful convictions, Actual Innocence: When Justice Goes Wrong and How to Make It Right. As had never been done before, Actual Innocence presented story after story of wrongful convictions (and near executions) of the indisputably innocent, with each chapter devoted to exposing each of these flaws in the justice system. Actual Innocence was nothing short of a revelation, a wake-up call concerning the reality of wrongful convictions and the truth-telling power of DNA evidence. It was not merely descriptive; it was also prescriptive, setting out a lengthy recipe of reforms needed to prevent future wrongful convictions.

University of Virginia law professor Brandon L. Garrett’s extraordinary new book—Convicting the Innocent: Where Criminal Prosecutions Go Wrong—picks up the honorable mantle that has so long been carried by Actual Innocence (pp 5–13). In the twelve years since Actual Innocence was first published, the aggregate number of DNA exonerations has more than quadrupled from 67 to 289. In Convicting the Innocent, Garrett analyzes the first 250 of these DNA exonerations. This much larger data set, coupled with Garrett’s academically rigorous method of analysis, has enabled him to make the strongest case yet both for the reforms identified in Actual Innocence and for additional reforms to the justice system.

Part I of this Review examines Garrett’s comprehensive new work with an eye to the contributions that it makes to the field of criminal defense and, in particular, to the critical subfield of innocence work. Because one problem that Garrett highlights—the fascinating problem of false confessions—has been the focus of our own casework and study for many years,3 Part II follows by drawing special attention to Garrett’s theories and real-world findings concerning the contamination of confessions. Part III concludes by presenting a practitioners’ guide for defense attorneys who are confronted with contaminated confessions. Using one of our own clients’ confessions as an example, we offer techniques, tactics, and legal theories that can be used to attack the credibility of—or even argue for the wholesale suppression of—confessions that are contaminated and unreliable.