False confessions, wrong sentences
The Magazine “The Champion” in its May 2016 issue, on the occasion of the 50th Anniversary of the “Miranda Warning”, that is, the famous warning that we see reflected in all American movies when the policeman arrests the alleged criminal, comes to mind in an article signed by American criminal lawyers Richard A. Leo and Brian L. Cutler, the intimate relationship between false confessions and erroneous sentences.
As we know, our current Constitution of December 6, 1978 democratically established the substance of the “Miranda Warning” in its article 17 paragraph 3:
“Any person detained must be informed immediately and in a manner that is understandable to him, of his rights and of the reasons for his detention, not may be forced to testify. The assistance of a lawyer to the detainee is guaranteed in police and judicial proceedings in the terms established by law.”
Already the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on November 4, 1950, in its article 5, paragraph 2 provided:
“Any person detained in custody must be informed, as soon as possible and in a language they understand, of the reasons for their detention and of any accusations made against them »
Before we are remembered by well-versed jurists, we know that the so-called “confession” or “regina probatio” must have the judicial consideration of a limited value, never decisive by itself, and which, by itself, does not release the judge from the duty to investigate the facts in depth and in a contradictory way, despite that old and well-known adage proper to inquisitive law that It read “a confession from the party, a release of evidence”…proclaiming the much-desired habemus reum confidentem…
Notwithstanding the foregoing, no one with a practical procedural sense will deny that the confession, in any of its possible instances, including the police headquarters with the necessary guarantees, constitutes, at least, a powerful “indication” of guilt since, reasonably, no one accepts to claim criminal responsibility that they do not have: jactare suum nemo praesumitur.
The so-called “Miranda Warning” is so well known to the US population that a majority of its citizens can recite it literally by heart without making a mistake . In democratic Spain, the right to call a lawyer, not to testify, and the presumption of innocence has gradually permeated the population in the case of police arrest. The custom of carrying a “habeas corpus” petition form (ex article 17.4 Spanish Constitution) has even spread among young people who go out drinking with friends. >in case they were arrested…
It is really curious to statistically verify how in the United States itself, depending on the State, nearly 80% of the detainees are recited the “ Miranda Warning” prefer to waive or ignore it (waive the right) and testify to the police, at least initially, without the presence of a Criminal Lawyer; an issue that in today’s Spain, much more guaranteeing surely a product of the long dictatorship suffered, is impossible under penalty of radical nullity.
It is clear that not all waivers of Miranda and, consequently, statements made without the assistance of a lawyer are considered valid by the US courts. It is enough that it rationally demonstrates that there was some type of coercion or relevant deception, which affects the voluntary nature of the resignation, for the corresponding statement to be challenged and excluded >of the accusatory material that is submitted to the Judge or the Jury for the verdict.
As can easily be understood, most of the police forces, especially in large cities that suffer from high crime, have expert interrogators, knowledgeable of all deterrent techniques , to convince or persuade the detainee of the convenience of making a statement voluntarily, without waiting for the Lawyer, since far from benefiting him, it would cause the Judge greater doubts and warnings about his alleged innocence. Consequently, the existence of “Miranda”, by itself, has had a very limited impact on the results of criminal proceedings because in said voluntary police interrogations, great care has been taken in not fall into the irrational abyss of the detainee flatly and smoothly confessing his guilt; Rather, following the interrogation indirect paths that ultimately lead to the same conclusion of guilt, but in a more subtle, devious way, with less obvious forcing that would result in the nullity of the proceedings.
The truth is, from a criminal criminology point of view, with the advent of DNA testing and Due to the great development of the other expert scientific techniques, the confession test has been relegated to a much lower level of value than it once was, without, far from it, reaching its contempt.
In fact there are seriously contrasted statistical studies that demonstrate the influence, at least partial, of the results of the interrogations in the erroneous verdicts of the Jury and also of the professional Courts . In our own country, let us remember the much-cited, historical and filmic “Crime of Cuenca< /a>” where a Popular Jury presided over by three professional judges, sentenced two alleged murderers based mainly on their own incriminating statements made under torture before the worthy Civil Guard of yesteryear, and resulting years later that the murdered man enjoyed excellent health, and even lived quietly for years in a nearby town…
The statistical studies reflected in the aforementioned article in The Champion are those of Hugo Bedau < /strong>and Michael Radelet, who identified between 1900 and 1987, 350 cases of wrongful verdicts involving the death penalty in which at least 49 > of them had false confessions as determining causes of the convictions. For their part, Richard Leo, Richard Ofshe, identified another 60 cases in which false confessions included in the process led to erroneous convictions. They also Rob Warden, Steven Drizin and Richard Leo, in publications from 2003 and 2004 cited 166 wrongful convictions based primarily on false statements.
Separate note due to its special relevance and importance in the development of expert-judicial investigation of DNA, it deserves the so-called “ Innocence Project”, founded in 1992 by Barry Scheck, Lawyer and Professor at the “Benjamin N. Cardozo” School of Law from Yeshiba University in New York City, having achieved as of December 2015 acquittal, in appeals review of 336 important convictions of which at least 88 of them were based on false or forced admissions of guilt.
For its part, the “National Registry of Exonerations” at the end of 2015 had registered 1,721 cases of erroneous sentences of which at least 219 of them referred to defendants who, although innocent, had falsely confessed or admitted their guilt in order to reach a settlement with the Prosecutor’s Office that would definitely close your case.
Unfortunately Defense Lawyers are by no means oblivious to ethical-legal responsibility > which means the enormous injustice of condemning an innocent person. Very often it is the Lawyers themselves who, either distrustful of the Justice system to which they belong or convinced of the guilt of their client, or, more generally, due to the sum of both factors, are the who “pressure” their clients to reach an agreement of “conformity” with the Prosecutor’s Office before they face, after a long and painful process, a much higher sentence.
I have to remember how years ago I read in “Breviarios de Derecho”, Collection directed by the Spanish Professor exiled from Francoism in Argentina, Santiago Sentis Melendo, an excellent little book by the German Professor MAX HIRSCHBERG whose title was, nothing less , “The Erroneous Sentence in the Criminal Process”, and in which after very interesting considerations he came to the conclusion that among the most of the erroneous criminal sentences, the first of which was the non-critical assessment of the confession, followed by the non-critical assessment of the accusations brought forward by co-defendants, protected witnesses and testimonial depositions, in general.
Finally, and as a corollary to the above, we must underline what we all know is obvious: A confession can only have full value as proof of prosecution if it is achieved without any kind of deception or physical or moral coercion, wherever it comes from. Otherwise, all of us who make up the world of Criminal Law professionals must consider ourselves failed and our fundamental objectives unfulfilled.