For the better part of the past year, the New York media has been obsessing over retired Brooklyn Homicide Detective Louis Scarcella and his alleged role in procuring numerous confessions from murder suspects. I have no personal knowledge regarding any of these cases. Everything I know comes from reading media accounts. For those that don’t know, the basic gist is that Det. Scarcella appears to have either forced people into confessing to murders they did not commit or he lied about the statements the suspects made by falsely saying they made inculpatory statements. As a result, the Brooklyn District Attorney’s Office has a launched an investigation into every single murder case the detective worked on. Several months ago, a conviction procured by a confession obtained by Det. Scarcella has been vacated. Now, a second one has too.
To people who have no experience in law enforcement or the criminal justice system, it seems odd that a person could confess to something he didn’t do. And the thought of confessing to murder seems ludicrous unless the confessor is actually guilty. These thoughts are perfectly rational. After all, people are themselves inherently rational actors who act based on incentive or benefit. If that assumption is true, then why would someone ever confess to a crime that could either land him in prison for the rest of his natural life or even onto death row? It seems to me that people would concede that these sorts of things can happen when physical abuse or torture is used. But what about in situations where the police aren’t being physically abusive, but are still aggressive and manipulative? Apparently, aggressive or manipulative tactics can be just as effective at procuring a false confession.
In the December 9, 2013 issue of the New Yorker, author Douglas Starr discusses a tactic known as the Reid Technique. I won’t summarize the article because I won’t be able to do it justice in a short blog post, but it is worth reading. I will say, however, that the Reid Technique is still widely used by law enforcement today. This is true despite widespread criticism and clear evidence that it has lead to multiple false confessions in the past. The New Yorker article ends by including tactics that are considerably more fair to suspects, like ones used in Europe.
There appears to be incontrovertible evidence that innocent people confess to crimes they did not commit. While I am not aware of a specific case in which an innocent person was executed as a result of a false confession, it stands to reason that it is highly likely that it has happened at some point. The defense bar has argued that all interrogations should be videotaped so that there is a clear record as to what was said as well as the method in which the statements were procured. It appears that the rest of the world is catching up to these requests and the reality from which they stem. The DA’s Office in which I used to work has had a requirement that all statements taken by Assistant District Attorneys be on video. The NYPD is even starting a pilot program where they started to do the same.
It seems like a no-brainer to me. I can’t think of an instance in which anybody wins when a statement is made off-video. Videotaped statements are the only real way to ensure the 5th and 6th amendment rights of the suspect are being protected. Moreover, a videotaped confession ensures public confidence in knowing that the right person was arrested. Nobody wins by a false confession…. except the real perpetrator of the crime!