Saul Kassin and Gisli Gudjonsson,
in their article for Scientific American Mind, “True Crimes, False Confessions,”
argue that “society should discuss the urgent need to reform practices
that contribute to false confessions and to require mandatory videotaping
of all interviews and interrogations” (2005, p. 26). Being
professional research psychologists, Kassin and Gudjonsson are able to
marshal a variety of empirical evidence, based both on their own research
and on that of others, to support their conclusions. It is not, however,
my aim here to judge the scientific validity of the studies they site.
Rather, I shall simply attempt to uncover the underlying structure of their
argument and expose any implicit moral principles upon which that argument
rests. Specifically, I shall argue that, although one might
object that Kassin and Gudjonsson focus too heavily on the importance of
protecting criminal suspects, they provide a compelling argument that social
justice requires such reforms as mandatory video-tapping of police interrogations.
In developing their case for the need to reform
interrogation tactics, Kassin and Gudjonsson survey a number of studies
regarding the role of confessions in criminal investigations and the prosecution
of suspected criminals. For example, they are at pains to provide
evidence that interrogations are often influenced by a bias on the part
of the interrogator, characterized in its extreme by the cynical
quip of one detective who was quoted as saying, “You can tell if a suspect
is lying by whether he is moving his lips” (Kassin and Gudjonsson, 2003,
p. 27). Further concern is found in the fact that Miranda
rights, as found in the American legal system, are insufficient safeguards,
given that suspects, especially innocent ones, often waive those rights.
Finally, Kassin and Gudjonsson note that aggressive interrogation tactics
can often produce false confessions.
What makes these findings most troubling, according to Kassin and Gudjonsson
is the strong correlation between false confession and wrongful conviction.
Trial jurors, we are told, are inclined to give disproportionate weight
to a confessions, even taking it to outweigh so-called “hard evidence.”
As a characteristic example, Kassin and Gudjonsson cite the case of Bruce
Godschalk. Even when DNA evidence proved Godschalk could not have
been the rapist, the District Attorney of the case refused to release him
from prison, stating that “…I trust my detective and his tape-recorded
evidence” (Kassin and Gudjonsson, 2005, p. 28). Because of this tendency
on the part of jurors and prosecutors, together with the facts listed above
regarding the potential for unrestricted interrogations to elicit false
confessions, Kassin and Gudjonsson argue for the need to reform police
interrogation tactics.
Underlying their argument is the implicit moral
premise that social justice requires that we do everything we can to minimize
the potential to wrongly convict innocent persons. This seems intuitive
enough, but one could reasonably question whether this puts too much emphasis
on protecting potentially innocent suspects and not enough on convicting
potentially guilty criminals. In a perfectly just system, criminals
would always be brought to justice and treated appropriately (however that
is defined), and innocent suspects would always be exonerated by
the system. However, any system devised and implemented
by humans must deal with the reality of imperfection.
The difficult moral question we need to ask is how
we are to balance the needs of society to protect itself from criminals
while at the same time protecting the rights of innocent persons.
More specifically, we must determine whether it is always worse
to punish an innocent person than it is to allow a guilty person to escape
prosecution. We need to ask at what cost we are willing
to limit the ability of police and Crown prosecutors to prosecute suspected
criminals. Imagine, for example, the following two systems:
(1) almost no innocent persons are ever convicted, but a very high percentage
of recidivist offenders are able to escape conviction due to very
restrictive policies on police tactics, (2) A very high percentage
of offenders are caught and brought to justice; however, a small but non-negligible
percentage (say 3%) of innocent persons are unjustly caught in the system
and thus wrongly punished for crimes they never committed. Neither
of these is very palatable, but if one had to choose, my intuitions favor
result (2). Of course, there are many variables at work here, and
I do not have the space to delve into a detailed discussion of all the
relevant trade-offs. My basic point is that social justice requires
not only that we protect innocent individuals from prosecution, but that
we hold guilty persons accountable for their actions.
While I think that this is a reasonable worry to
raise given the tenor of Kassin and Gudjonsson’s article, I do not think
it ultimately undermines their argument. That is, I think one might
reasonably object that they are overly focused on the possibility of false
confessions without saying much about the utility of true confessions and
the ability of police to elicit them. However, their specific
proposal that interrogations be video-taped does not seem to diminish the
ability of police to effectively interrogate suspects and, when possible,
to elicit a confession. Indeed, they conclude their essay by citing
a study which found that police largely found the practice of video-taping
to be quite useful and not to inhibit criminal investigations.
So, even if one thinks that Kassin and Gudjonsson
are a bit one-side in focusing on false confessions, and even if
one accepts a moral principle which allows for the need to balance false
positives against false negatives, ultimately I think these authors
provide a compelling argument for the need for such reforms as mandatory
video-taping of police interrogations.