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September 26, 2008

"The Confessional Penalty"

The title of this post is the title of this paper I just noticed on SSRN.  The paper, by two professors at Tel Aviv University, is another interesting suggestion to use sentencing rules to deal with non-sentencing concerns (like the recently implemented thoughtful proposal to use sentence reductions to deal with prosecutorial misconduct).  Here is part of the the abstract for "The Confessional Penalty":

Many attempts have been made to deal with confession-based wrongful convictions.  Examples include the Miranda rules or the requirements for varying degrees and types of corroborating evidence.  To date, all the rules and proposals share a common characteristic: They all attempt to correct the evidentiary fallacies associated with out-of-court confessions by evidentiary means, whether admissibility oriented or weight oriented.

In the article we argue that none of the proposed mechanisms is likely to solve the problem.   The root of the problem lies in the fact that the entire criminal justice system is currently organized around confessions. Law enforcement officers focus on obtaining confessions and the prosecution uses it as its evidentiary centerpiece.  Further restricting admissibility or requiring a higher degree of corroboration will not change this trend.  Moreover, the confessional lure is too strong to resist.  Like the Sirens' Song, the confession casts a spell on all those subjected to it and, no matter how strong a corroboration we require, we will eventually fall back on the confession.

We propose an entirely different solution to the tendency to over-use confessions, one that utilizes penal means to change the incentive structure within the criminal justice system.  We propose to incorporate into the sentencing guidelines a mandatory reduction of the criminal sanction whenever an out-of-court confession is introduced into evidence by the prosecution. In other words, our proposal is to elevate the cost of using out-of court confessions, as compared to other types of evidence.  The article will demonstrate how placing such a "sentencing price tag" on the use of out-of-court confessions will correct the current bias in favor of using this evidence and induce law enforcement officials to seek extrinsic evidence, thus turning confessions into a residual evidentiary devise.  The article will also show that the proposed regime will improve the court's ability to distinguish between true and false confessions.  After discussing the proposed model's normative appeal, the article will proceed to deal with possible criticisms which can be leveled against it, whether retributive, utilitarian or expressive.

September 26, 2008 at 05:49 PM | Permalink

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