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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

June 20, 2011

Psychology and Confessions

Neuroscientist David Eagleman, in his book Incognito, describes the human brain as a team of rivals in which various parties in the brain can compete with each other to create a sense of being “conflicted”. He also discusses research that shows that keeping secrets is unhealthy for the brain. Simply stated, he says, a secret is a competition within the brain between telling someone something or not telling them it. This tension is what makes something a secret. He states that secret agents and spies are probably equipped with a strong module for withholding secrets. In contrast, based on the high percentages of confessions in juvenile delinquent cases, it doesn’t appear to me that juveniles have much ability to keep a secret.

Which brings me to the law of confessions. I never believed that the law regarding whether or not a confession was voluntary made much sense. What does it mean to say that “pressures brought to bear on the defendant by representatives of the State exceeded the defendant’s ability to resist”? Except for those defendants who turn themselves into police and actually volunteer a report of their transgressions, almost any confession is the result of pressures brought to bear on the defendant by the police that exceeded the defendant’s ability to resist. That is why they confessed.

Asking some defendants the question, “Did they commit the crime?” is sufficient pressure to exceed their ability to resist, so they confess. That statement would not and should not be considered “involuntary”.

Further, it is stated that the confession must be “a product of a free and unconstrained will.” This formulation requires that there is some entity (apparently called the “will”) that operates as a cause without a cause or as the “ghost in the machine” or the “soul.”

I could never figure out how one would evaluate whether or not another person's confession was the product of a free and unconstrained will. How does one get access to another’s will, except by projecting one’s own conception of their own “will” onto another?

The concept of having a “will” is a cultural and religious construct. For example, some Christian denominations believe in the possibility of “free-will” while others don’t. Buddhists view the concept of having a self as an error in thought.

Instead of looking into some metaphysical conception such as someone’s will, the law would be clearer if the inquiry would be simply reduced to two formulations that encompass the law regarding confessions. The first question is: Were the tactics the State used to obtain the confession incompatible with the values of our society as they relate to a citizen’s relationship with the State? For example, the intentional infliction of physical pain or the threatening of harm to force a confession is clearly incompatible with what we believe is proper behavior a State actor should take toward a citizen. If the tactics were incompatible with societal values, the confession is suppressed.

The second question is: Was the confession obtained unduly unreliable? If it is, the confession is suppressed. In many instances, an unreliable confession will be the result of coercive police conduct with a defendant who is susceptible to providing a false confession. However, Courts have found confessions to be “involuntary” under circumstances where the confession was obtained from an inordinately susceptible individual with very little police encouragement. See for example, State v. Hoppe, 2003 WI 43. The focus should be an evaluation of the unreliability of the confession. The exclusion of unreliable confessions increases the accuracy of the determination of guilt within our criminal justice system.

A focus on proper police conduct and on a statement’s reliability would get the Courts out of pretending to be able to divine what someone’s “will” was (what about that defendant whose will was to confess but other demons in the mind were not allowing him to do so—could any amount of coercion make his statement “involuntary?) and when that “will” was overcome by police pressure resulting in a confession that is not the product of a free and unconstrained will.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

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