Friday, October 19, 2007

Phenomenology of Innocence

Confessions are devastating to the defense lawyer's case. I regularly watch my comrades in the defense bar battle over the admissibility of confessions. Most attacks upon confessions focus on either voluntariness or violations of Miranda and related state statutes.

The valuable work done in DNA exoneration cases utilized another strategy defense lawyers should consider - the false confession. Although a false confession is not necessarily inadmissible evidence, research in this area provides the criminal defense lawyer with ammunition to attack the weight given to such evidence. Dr. Saul Kassin argues that actually innocent people are apt to falsely confess because of their inherent trust in the criminal justice system. The following is an abstract from his recent research:
Recent DNA exonerations highlight the problems found in wrongful convictions, 15 to 25 percent of which contained confessions in evidence. I argue that actual innocence, and the phenomenology that accompanies it, harms people who stand accused of a crime across a sequence of pivotal decisions. The phenomenology of innocence may be rooted in a fundamental belief that the world, and it may also stem from of the "illusion of transparency," a tendency for people to overestimate the extent to which their true inner states are detectable to others. Either way, innocent suspects, naively believing that truth and justice will prevail, and that they have nothing to fear or hide, unwittingly put themselves at risk by failing to realize that they are suspects not witnesses; waving their Miranda rights to silence and to counsel; sacrificing the protection afforded by a full eyewitness lineup; agreeing to searches, examinations, and lie-detector tests that are used against them; protesting their innocence and thus unwittingly triggering highly confrontational interrogations; and by succumb to police pressures to confess in the expectation that ultimate exoneration is forthcoming. As the criminal justice system does not afford adequate safety nets (e.g., police, judges, juries, and others cannot sufficiently distinguish between truth and deception, true and false confessions, or accurate and erroneous eyewitnesses), it appears that innocence is an enemy of the innocent confessor.
Thanks to Dr. Karen Franklin who brought this interesting research to light here where she wrote about the recent Interrogations & Confessions Conference in El Paso, Texas. The conference covered a variety of topics of interest to the Texas criminal defense lawyer.

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