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"Power and Greed and the Corruptible Seed": Mental Disability, Prosecutorial Misconduct, and the Death Penalty
Abstract
The Supreme Court’s death penalty jurisprudence is based in large part on the assumption that jurors can be counted on to apply the law in this area conscientiously and fairly. All our criminal procedure jurisprudence is based in large part on the assumption that prosecutors and judges will act fairly. I believe that these assumptions are based on nothing more than wishful thinking, and that the record of death penalty litigation in the thirty-eight years since the “modern” penalty was approved in Gregg v. Georgia gives the lie to them.This article focuses solely on the role of prosecutors in this process, and the extent to which prosecutorial misconduct has contaminated the entire death penalty process, especially in cases involving defendants with mental disabilities. This is an issue known well to all those who represent such defendants in death penalty cases but, again, there is startlingly little literature on the topic. It is misconduct that is largely hidden and ignored. The article begins with some brief background on issues that relate to the treatment of persons with mental disabilities in the criminal justice system in general. It then discusses prosecutorial misconduct and the outcomes of that misconduct, with special attention to a cohort of appellate decisions in unheralded and rarely (if ever) discussed published cases that, in almost every instance, sanction such misconduct. Next, it demonstrates how some prosecutors purposely flaunt the canons of ethics in the prosecution of defendants with mental disabilities in death penalty cases, and then will discuss some solutions raised by scholars to (at least, partially) cure this problems, and concludes with some modest suggestions of my own.
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Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009 is the most comprehensive, up-to-date, quantitative and actionable study on the extent of prosecutorial misconduct in California, how the justice system identifies and addresses it, and its cost and consequences, including the wrongful conviction of innocent people. By shining a light on prosecutorial conduct, this groundbreaking research, the work of leading experts in the field from the highly respected legal resource, NCIP, will serve as a catalyst for reform.
Over the past decade, knowledge on false confessions has grown tremendously. However, a similar knowledge base on true confessions has not. In the present study, independent, self-reported true and false confession experiences of persons with serious mental illness were compared. In addition to examining the crimes and police questioning that led to the true or false confession, we investigated the reasons behind the confessions and the eventual case outcomes. We found that, in comparison to true confessors (n = 30), false confessors (n = 35) were questioned more times, took longer to confess, perceived the evidence against them to be weaker, and reported significantly more external pressure and less internal pressure. Moreover, of those participants who were convicted, false confessors were four times more likely to receive a prison sentence than true confessors. (PsycINFO Database Record (c) 2012 APA, all rights reserved)
Prosecutorial misconduct is one of the leading causes, or contributing causes, of wrongful convictions. This paper contends that prosecutorial misconduct is not chiefly the result of isolated instances of unprincipled choices or the failure of character on the part of some prosecutors. Rather, prosecutorial misconduct is largely the result of three institutional conditions: vague ethics rules that provide ambiguous guidance to prosecutors; vast discretionary authority with little or no transparency; and inadequate remedies for prosecutor misconduct. These three conditions create perverse incentives for prosecutors to engage in, rather than refrain from, prosecutorial misconduct. In order to reduce the number of wrongful convictions, it is essential to understand the institutional conditions that facilitate prosecutorial misconduct. This paper identifies and analyzes these institutional conditions and makes modest, concrete proposals to reduce the incidence of prosecutorial misconduct. The ultimate purpose of the proposals is to prevent wrongful convictions and not to impose unnecessary obligations or unrealistic expectations on prosecutors.
This article, written for a symposium on Atkins v. Virginia - the Supreme Court decision that prohibited execution of people with mental retardation - argues that people with severe mental illness must now also be protected from imposition of the death penalty. In labeling execution of people with mental retardation cruel and unusual, the Atkins majority stressed that mentally retarded people who kill are less blameworthy and less deterrable than the average murderer, an assertion that can also be made about people with severe mental illness. As it had in previous eighth amendment cases, however, the Court also relied heavily on an emerging legislative consensus against the execution of the former group. Such a consensus does not exist with respect to people with mental illness (in fact, only one state, Connecticut, bars their execution). But the same legislative inaction that undermines the eighth amendment argument bolsters an equal protection argument, because it shows an irrational prejudice against the latter group. A careful reading of Court's cases suggests that "rational basis with bite" is the right standard for assessing the validity of laws that discriminate on the basis of disability, at least when those laws deprive people of life or liberty. In any event, there may not be any rational basis for distinguishing between the people with retardation and people with mental illness in the death penalty context. A review of the psychiatric literature shows that severe mental illness, in the form of psychosis, reduces blameworthiness and deterrability at least as much as mental retardation. People with mental illness at the time of the offense, while often found sane and sentenced to death (possibly because mental illness is irrationally viewed as an aggravating circumstance by sentencing bodies), are no more responsible for their condition or able to appreciate society's mores than are people with retardation (or children under 17, another group the Court is likely to exempt from the death penalty). Nor are people with mental illness as likely to recidivate as these two groups. Concerns about malingering and misdiagnosis of mental illness, which are exaggerated where severe disorder is involved, should be dealt with through imposing more stringent standards of proof. Otherwise, we are allowing execution of people who do not deserve the death penalty simply because it is too "hard" to identify them.
Jailhouse informants and dishonest experts have long been identified as significant causes of wrongful convictions. Much has been written about the legal challenges to such testimony. However, less attention has been directed to the scope of any ethical obligations triggered by prosecutorial solicitation and presentation of the testimony of these exceedingly dubious witnesses in court, assuming full compliance with Brady, and the absence of any prosecutorial request for false testimony. Are prosecutors being willfully blind to the likelihood of perjury, or simply taking their witnesses as they find them in order to advance the cause of justice in a criminal justice system where their investigative resources are stretched thin over an ever increasing caseload? This essay concludes that there are significant institutional goals that warrant clarification of the ethical rules governing the introduction of testimony that sounds too good to be true, regardless of the inability of defendants to obtain a reversal when the ethical breach does not violate constitutional or statutory law. My objective is not to bash prosecutors for ever resorting to jailhouse informants or questionable experts. There are likely to be instances where even under stringent prosecutorial review such witnesses appear to be truthful, and the evidence is critical, justifying prosecutors to introduce the testimony pursuant to their role as advocates, particularly given that it will still be subject to defense challenges, as well as to judicial and jury review. Rather, I hope to encourage prosecutors to give meaningful content to their ethical obligations to innocent defendants by creating standards and policies to self regulate their over-reliance on such witnesses, making their appearance at trial the exception, rather than the norm. I also suggest that prosecutors create their own self-regulatory commission under the auspices of an organization such as the National District Attorneys Association to review cases in which courts have exonerated individuals who were convicted of crimes they did not commit.
This article examines the Court’s categorical exclusion of mentally retarded defendants from execution and explores how trial courts should employ procedures to accomplish heightened reliability in the mental retardation determination; it maintains that if a mentally retarded defendant is subjected to a death sentence then the Atkins directive has been ignored. To satisfy the Atkins Court’s objective of protecting mentally retarded defendants from the “special risk of wrongful execution,” the article explores whether trial courts should engage in a unified, pre-trial competency assessment in all capital cases where the defendant asserts mental retardation as a bar to execution and how the ancient in favorem vitae doctrine could ensure fairness and protect defendants who may be at special risk “that the death penalty will be imposed in spite of factors which may call for a less severe penalty.”
This article summarizes the findings and recommendations of the ABA Death Penalty Moratorium Implementation Project's Florida Assessment Team, which I chaired. Relying on an analysis of caselaw, studies, news reports, and interviews, the article describes significant flaws in Florida's death penalty law and practice in nine areas: the police investigative process; the analysis of scientific evidence; the conduct of prosecutors; the qualifications, reimbursement and competence of defense attorneys; the decision-making process of judges; the structure and decision-making process of capital sentencing juries; clemency; the system's reaction to the race of the victim; and the treatment of people with mental disability. It also notes that administration of the death penalty in Florida is extremely expensive and thus may undermine the reliability of adjudications in noncapital cases.
Mental Disability Law: Civil and Criminal is a logically organized and readable discussion of the entire body of law affecting the mentally disabled. It provides thoughtful answers to practically every research, counseling or litigation problem that could conceivably arise in this area. Each chapter of this treatise contains practical checklists and commentary to highlight and clarify case authority. Extensively annotated, it contains a table of cases and cites hundreds of authoritative secondary sources.
Mental Disability Law: Civil and Criminal was released in a new Third Edition in 2016, and for the first time in a 3-binder loose-leaf format. Beginning with this edition, separate cumulative supplements will no longer be published. To improve ease of use, annual revisions and updates can now be integrated immediately into the main text. Of particular note in the new Third Edition, there are greatly expanded chapters on sex offender laws and on the Americans with Disabilities Act.
- See more at: http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?pageName=relatedProducts&prodId=7583#sthash.o47FyYRg.dpuf
Death is the ultimate sanction that our society permits. Because of its irrevocability and extremity, the United States Supreme Court has gone to great lengths to devise a system in which capital punishment is fairly applied. This fairness not only includes limiting the number of offenses for which death is eligible, but also allowing the capital defendant to introduce evidence that may lead the jury to shy away from its imposition. One way in which a defendant may seek to influence the jury is by introducing opinions from the victim's family that they do not wish to see the defendant die. Unfortunately for both parties, courts have refused to admit these "mercy opinions," deeming them irrelevant to the issue at hand. This Note suggests otherwise. It argues that mercy opinions are, in fact, relevant to a capital sentencing proceeding, and that the fairness to the accused mandated by Supreme Court precedent counsels strongly in favor of their admissibility.
In this Article, Professor Liebman concludes that trial actors have strong incentives to--and do--overproduce death sentences, condemning to death men and women who, under state substantive law, do not deserve that penalty. Because trial-level procedural rights do not weaken these incentives or constrain the overproduction that results, it falls to post-trial procedural review--which is ill-suited to the task and fails to feed back needed information to the trial level--to identify the many substantive mistakes made at capital trials. This system is difficult to reform because it benefits both pro-death penalty trial actors (who generate more death sentences than otherwise) and anti-death penalty lawyers (who concentrate their resources on post-trial review proceedings where, given high rates of trial error, they prevail abnormally often). Reforms that focus only on trials or appeals cannot solve the problem. Professor Liebman offers a comprehensive 10-part plan to adjust the skewed incentives and curb the overproduction of death.
The capital punishment system in the United States is broken. Studies reveal growing delays nationwide between death sentences and executions and inexcusably high rates of reversals and retrials of capital verdicts. The current system persistently malfunctions because it rewards trial actors, such as police, prosecutors, and trial judges, for imposing death sentences, but it does not force them either to avoid making mistakes or to bear the cost of mistakes that are made during the process. Nor is there any adversarial discipline imposed at the trial level because capital defendants usually receive appointed counsel who either do not have experience trying capital cases or who receive inadequate resources from the State to pay litigation expenses. Instead, the appellate system is forced to deal with large amounts of error, creating backlog and delays. This article proposes a radical trade-off for capital defendants in which they agree to give up existing post-conviction review rights in return for a real assurance of better qualified, higher quality trial counsel. This proposal will avoid the traps of window dressing reforms, save states a good bit of the expense of appellate review, and make the capital punishment system more fair, efficient, and effective.
OVERVIEW Professional responsibility by both defense attorneys and prosecutors is critical in every criminal case. But when the state seeks the ultimate punishment of death, attorneys on both sides should be expected to adhere strictly to the highest standards of professional conduct. Unfortunately, in death penalty cases in California, all too often both prosecutors and defense attorneys fall far below this ideal with little consequence. 1 Indeed, our research reveals that even in the most egregious case in which prosecutorial misconduct led to the reversal of a death sentence in California, the prosecutor has never been publicly disciplined. Further, we identified the prosecutors in six out of eight death penalty cases that were reversed for prosecutorial People v. Babbitt, 755 P.2d 253 (Cal. 1988). Thus, although this article focuses on the role of prosecutorial misconduct in death penalty cases, it is important to consider both misconduct and ineffective assistance of counsel together as they are often both present in cases that result in questionable death sentences.
The government's duty to disclose favorable evidence to the defense under Brady v. Maryland has become one of the most unenforced constitutional mandates in criminal law. The intentional or bad faith withholding of Brady evidence is by far the most egregious type of Brady violation and has led to wrongful convictions, near executions, and other miscarriages of justice. This Article suggests that two ramifications should flow from intentional Brady violations. First, courts should have the power to inform the jury of the government's Brady misconduct by imposing a specially crafted punitive jury instruction. Unlike the ineffective sanctioning scheme currently used to redress Brady violations, the proposed "Brady Instruction" could serve as a powerful deterrent against this virulent form of prosecutorial misconduct. Second, under well-established evidentiary principles, a litigant's intentional suppression of relevant evidence gives rise to an inference that the litigant's case is weak and that the litigant knew his case would not prevail if the evidence was presented at trial. The government's intentional Brady misconduct falls within the scope of the "consciousness of a weak case" inference. Given that the government always has the burden of proof in a criminal case, evidence that the government's case is weak is relevant to whether the government can prove guilt beyond a reasonable doubt. Brady misconduct evidence also meets all other requirements for admissibility under the rules of evidence. As such, the blanket exclusion of this evidence could infringe upon the defendant's consitutional right to present a defense.
I appreciate the opportunity to make some remarks about capital punishment and about the crime debate in our country today. Unfortunately, what is called a crime debate is really no debate at all, but an unseemly competition among politicians to show how tough they are on crime by supporting harsher penalties and less due process. The death penalty and long prison sentences are being put forward as an answer to the problem of violent crime. This approach is expensive and counter productive. It is corrupting the courts and diverting our efforts from the important problems of racial prejudice, poverty, violence and crime. It is not making our streets any safer.
The power of government is increasingly being used to wage class warfare top down against the poorest and the most powerless people in our society: immigrants, women and children who are on welfare, and those who are accused of crimes. These people have no lobby and no ability to influence legislation or the decisionmakers in government. They have no political action committee. Unlike Rupert Murdock, they cannot drop by and meet with the Speaker of the U.S. House of Representatives while he is contemplating a book deal. Their only protection against the passions of the moment is the Bill of Rights.
The Bill of Rights is becoming a casualty of the war on the poor. There has been very little discussions of the consequences to our society. The United States Congress, in the first one hundred days after the Republican takeover with the “Contract with America,” behaved much like the legislatures in Georgia or Alabama, where bills are often passed without hearings, without a great deal of opposition, without much debate, and without the members being informed about what they are voting on.
In the discussion of crime measures, the Bill of Rights is dismissed as nothing more than a collection of “technicalities” which burden law enforcement. The war against drugs has all but eliminated the Fourth Amendment’s protection from unreasonable searches and seizures from the Constitution. Police departments and law enforcement agencies all across the country have become corrupted, but we have very little to show for this effort in terms of having reduced the amount of drug use in this society. Now, those who profess to be our leaders are talking about a broader war, the war on crime, that will be waged at a much greater cost.
In this special issue of Exceptionality focused on individuals with disabilities in the criminal justice and correctional systems, we present the challenges that adolescents and adults with disabilities may face in the criminal justice system. We focus on interrogation, prosecution, sentencing, and incarceration.
The main aim of the study was to investigate the rate of claimed false confession during police questioning and identify variables that best discriminate between false confessors and non-false confessors. The participants were 24 627 high school students in seven countries in Europe. Out of 2726 who had been interrogated by the police as a suspect, 375 (13.8%) claimed to have made false confessions to the police. Logistic regression analyses showed that for both boys and girls, having attended substance abuse therapy, been attacked and bullied, and having committed a burglary, significantly discriminated between the false confessor and non-false confessor. In addition for boys, having been sexually abused by an adult outside the family was the single best predictor. The study shows the importance of history of victimization and substance misuse among adolescents in relation to giving a false confession to police during interrogation.
In almost every state that authorizes capital punishment, local county prosecutors are responsible for deciding when to seek the death penalty and for handling capital trials. This approach has proven to be arbitrary and inefficient. Because death penalty cases are extremely expensive and complicated, counties with large budgets and experienced prosecutors are able to seek the death penalty often. By contrast, smaller counties with limited budgets often lack the funds and institutional knowledge to seek the death penalty in truly heinous cases. The result is geographic arbitrariness. The difference between life and death may depend on the side of the county line where the offense was committed. Furthermore, in some counties, death penalty cases are handled by subpar lawyers. Inadequate lawyering leads to capital cases being reversed for prosecutorial misconduct, ineffective assistance of counsel, and inaccurate rulings by trial judges. Following reversal, these capital cases are re-litigated for years at enormous expense. Because county control of death penalty cases has proven to be a failure, this article offers a roadmap for eliminating counties' involvement in the death penalty system. All aspects of capital cases - charging, trial, appeal, and everything in between - can and should be handled at the state level by an elite group of prosecutors, defense lawyers, and judges whose sole responsibility is to deal with capital cases. This article details how an elite statewide death penalty unit could be created and how it could minimize the geographic arbitrariness of the death penalty while simultaneously reducing the costs of handling death penalty cases.
This Article approaches prosecutorial misconduct from a pedagogical perspective by exploring the ways in which law school clinicians can teach their students how to confront the problem proactively and in-the-moment, with an eye toward reducing its rate of occurrence and blunting its corrosive effect. Prosecutorial misconduct is a serious problem that strikes at the heart of a criminal defendant’s constitutional right to a fair trial. More broadly, it has the potential to impact the integrity of the criminal justice system as a whole. Educating law school students in criminal clinics about this issue before they become prosecutors and criminal defense attorneys serves three important goals. First, such instruction can act as preventative medicine by reducing the likelihood that future prosecutors will step over the line out of ignorance of the applicable case law and court rules or out of a misplaced desire to win at all costs. Second, it enables future defense counsel to develop litigation methods designed to prevent the problem from occurring in the first instance. Third, it can prepare defense counsel to recognize prosecutorial misconduct that proves unpreventable so that she is able to respond effectively in-the-moment rather than belatedly, after the harm has been done. The blended learning approach that is the signature pedagogy of the clinical classroom is well-suited to addressing prosecutorial misconduct because it provides an opportunity for students to engage in a frank and thoughtful dissection of the legal and ethical issues that are inextricably bound up with it. The model I propose combines instruction in black letter law, ethics, and skills acquisition. It also seeks to have clinicians model the process of analyzing and responding to prosecutorial misconduct using examples from their real world experiences. With this approach, students will learn to think critically about their roles and responsibilities as future prosecutors and defense attorneys and to develop sound professional judgment before they enter the whirlwind of practice.
This Article examines categories of prosecutor misconduct that may occur in capital cases, and it discusses suggestions to help prevent and remedy such misconduct. The prosecutor’s role is especially important in death penalty cases because the prosecutor is a determining force in the decision of whether a defendant will live or die. Thus, even though prosecutor misconduct is an important concern for all types of cases, it has a special impact in capital cases. Instances of prosecutor misconduct may occur prior to trial during discovery, during jury selection, and during trial and post-trial. In Part One of the Article, we discuss situations where prosecutors withhold exculpatory evidence from defendants in capital cases. In Part Two, we discuss the problem where prosecutors improperly use pretrial publicity to achieve convictions and death sentences in capital cases. Misconduct may occur during jury selection, and in Part Three, we examine situations where some prosecutors have improperly used peremptory challenges to exclude prospective jurors based upon race. Under Batson v. Kentucky, 476 U.S. 79 (1986), this type of prosecutor misconduct may rise to constitutional significance. Next, in Part Four, we consider the trial itself and discuss situations where prosecutors improperly used false evidence or statements in capital cases. In Part Five, we consider methods for addressing misconduct in capital cases. The Article considers three different categories of ways to deter instances of prosecutor misconduct in capital cases: (1) institutional and systemic methods of preventing prosecutor misconduct; (2) punishment of individual prosecutors responsible for egregious misconduct; and (3) remedies for defendants who are victims of misconduct. After giving an overview of various suggestions, the Article concludes with five specific proposals that should be the first steps toward deterring and remedying prosecutor misconduct in capital cases.
Contemporary death penalty law is deeply conflicted. The basic procedural and jurisprudential structures - the foundational principle of "individual consideration," the open-ended evidentiary rules that govern sentencing processes, and the procedural devices by which that unbounded evidence is evaluated - all originated as the offspring of an explicitly non-retributive penal theory crafted in large part by Herbert Wechsler and codified in the Model Penal Code. The Court's understanding of the purposes served by the death penalty, however, has increasingly been informed by retributive principles. Currently, the American Law Institute is undertaking a fundamental revision of the Code's sentencing provisions to reflect the resurgence of retributivism in contemporary penal discourse. In this Article, the author argues that because the Court has continued to sanction the procedural structures outlined by the MPC - structures which reflect the non-retributive theoretical underpinnings of the Code - contemporary sentencing procedures fail to serve the predominantly retributive role that the Court's understanding of the death penalty indicates they should play. Thus, the capital sentencing procedures outlined in the Code, implemented by numerous states, and sanctioned by the Court, must also be subjected to a new, and searching, scrutiny. The author suggests that a retributive approach to capital sentencing procedure would diverge from the current utilitarian, offender-based model in three important respects. First, the evidentiary universe upon which sentencing decisions are made would be more tightly circumscribed to ensure that the sentencing decision is grounded on appropriate retributive considerations: the harm caused by the offender and his personal culpability. Second, the mitigation and aggravation components of the sentencing inquiry would be disentangled, and the weighing paradigm reflected in the MPC would be abandoned. Third, in recrafting the penalty phase, arguments in mitigation would be conceptually disaggregated from pleas for mercy. Under such a regime, "bad character" evidence that now routinely is admitted at penalty phase proceedings would instead only be admissible to rebut a defendant's plea for mercy. By shifting the focus of capital sentencing from the character of the offender to the nature of the offense the predominant retributive goal: ensuring that only the most morally blameworthy defendants are subject to the most severe penal sanction, would better be achieved.
This article studies the precise impact that false confessions have on criminal defendants. Using evidence from sixty cases of police-induced false confessions in which the defendant's confession is not supported by any physical or reliable inculpatory evidence, the authors explore the impact of unreliable confession evidence on criminal justice officials, the jurors and the criminal justice system. The article demonstrates that a trier of fact may be so biased by a false confession that it will likely favor prosecution and conviction despite strong evidence of innocence, often leading to a defendant's incarceration and even death. Additionally, the article finds that, despite Miranda, contemporary law enforcement personnel continue to employ coercive and manipulative methods.To prevent miscarriages of justice caused by false confessions, prosecutors, judges, and juries should carefully scrutinize and evaluate a suspect's post-admission narrative against the known facts of the crime. The article also asserts that mandatory video- or audio-recording of police interrogations would greatly decrease the risk of harm caused by false confessions by reducing the use of psychologically coercive interrogation methods.
Although supported in principle by two-thirds of the public and even more of the States, capital punishment in the United States is a minority practice when the actual death-sentencing practices of the nation’s 3000-plus counties and their populations are considered. This feature of American capital punishment has been present for decades, has become more pronounced recently, and is especially clear when death sentences, which are merely infrequent, are distinguished from executions, which are exceedingly rare. The first question this Article asks is what forces account for the death-proneness of a minority of American communities? The answer to that question - that a combination of parochialism and libertarianism characterizes the communities most disposed to impose death sentences - helps to answer the next question addressed here: Why so few death sentences end in executions? It turns out that the imposition of death sentences, particularly for felony murder (a proxy for the out-of-the-blue stranger killings that generate the greatest fear among parochial communities), provides parochial and libertarian communities with a quick and cheap alternative to effective law enforcement. And that alternative is largely realized whether or not death sentences are ultimately carried out. This explanation sheds light on two other criminal law conundrums - the survival of the most idiosyncratic manifestation of the felony murder doctrine (which mysteriously transmogrifies involuntary manslaughter into capitally aggravated murder) and the failure of the death penalty to have a demonstrable deterrent effect (which is not surprising if the death penalty operates as a weak substitute for, rather than a powerful addition to, otherwise effective law enforcement strategies). The explanation also reveals a number of costs the capitally prone minority imposes on the majority of citizens and locales that can do without the death penalty, including more crime, a cumbersome process for reviewing systematically flawed death sentences whose execution is of less interest to the death sentences’ originators than their imposition, and a heightened risk - to the judicial system as well as individual defendants - of miscarriages of justice.These explanations, in turn, beg the most important and difficult question considered here. Why do the majority of communities and citizens who can live without the death penalty tolerate a minority practice with serious costs that the majority mainly bears? With a bow towards Douglas Hay’s famous explanation for the survival over many decades of eighteenth century England’s no less universally vilified death-sentencing system - which likewise condemned many but executed few - we offer some reasons for the minority’s success in wagging the majority. In response to recent evidence of a (thus far largely counterproductive) majority backlash, we conclude by offering some suggestions about how the majority might require the minority of death-prone communities to bear more of the costs of their death-proneness without increasing the risk of miscarriage of justice.
Purpose. The main aim of the study was to examine the reasons and personality factors associated with confessions and denials. It was hypothesized that antisocial personality traits and active involvement in criminal behaviour would distinguish true confessors and true deniers from false confessors and false deniers.Method. The participants were 1,080 students in further education in Iceland. Each was asked about false admissions made to teachers and parents in the past, as well as about confessions or denials (true and false) made to the police during questioning, and the reasons for having responded in the way they did. The participants also completed questionnaires relating to offending, personality and self-esteem.Results. One-quarter (25%) of the participants stated that they had in the past been interrogated by the police in relation to a suspected offence, of whom 59% said they had confessed. A small minority of those interrogated (3.7%; 1% of the total sample) claimed to have made false confessions to the police, whereas 10% claimed to have made false confessions to teachers or parents. Males were significantly more likely to report false confessions than females. False confessions and false denials were significantly associated with antisocial personality traits, with Eysenck Personality Questionnaire Psychoticism being the single best predictor. Those participants who made true confessions and true denials were most normal in their personality.Conclusions. Personality is a significant predictor of who makes false confessions and false denials.
Part I of this article examines in greater detail this vast accretion of prosecutorial power, and explains how this transformation has resulted in a radical skewing of the balance of advantage in the criminal justice system in favor of the state. Part II then offers several suggestions on restoring some equilibrium to the process. Equilibrium should be restored because the prosecutor, with the power of the state behind him or her, should not have this unfair advantage. Reliability and fairness will suffer if the equilibrium continues its shift.
No government official has as much unreviewable power or discretion as the prosecutor. Few regulations bind or even guide prosecutorial discretion, and fewer still work well. Most commentators favor more external regulation by legislatures, judges, or bar authorities. Neither across-the-board legislation nor ex post review of individual cases has proven to be effective, however. Drawing on management literature, this article reframes the issue as a principal-agent problem and suggests corporate strategies for better serving the relevant stakeholders. Fear of voters could better check prosecutors, as could victim participation in individual cases. Scholars have largely neglected the most promising avenue of reform, namely changing the internal structure and management of prosecutors' offices. Leaders could do more to develop office cultures, norms, and ideals that value more than just maximizing conviction statistics. Hierarchical office structures and internal procedural and substantive office policies could promote deliberation, give fair notice, and increase consistency. Hiring, training, promotion, and tenure practices could better shape prosecutors and their behavior. Pay structures and feedback from judges, defense counsel, and victims could encourage good behavior. Finally, publishing more data on charges, convictions, plea bargains, and sentences could also improve accountability.
To access publisher full text version of this article. Please click on the hyperlink in Additional Links field The main aims of the study were twofold. Firstly, to ascertain a national base rate of custodial interrogation, confession, denial and false confession among Icelandic youth (age group 16-24 years), and secondly, to investigate psychological and criminological factors associated with false confession. The participants were 10,472 students in further education in Iceland. All colleges of secondary education in Iceland were represented. As a part of a large national study into the background, behaviour, and mental health of adolescents, each pupil was asked about custodial interrogation, confessions, denials, and false confessions. Almost one-fourth (18.6%) of the participants stated, that they had been interrogated by the police in relation to a suspected offence, of whom 53% said they had confessed truthfully. A small minority of those interrogated (7.3% of those interrogated and 1.6% of the total sample) claimed to have made false confessions to the police. The false confession rate was highest (12%) among those interrogated more than once and lowest (3%) among those interrogated only once. A Discriminant Function Analysis found that false confessions during interrogation were mostly associated with the extent of involvement in delinquent activities, the involvement of friends in delinquency, and depression
In 1985 Connecticut established an administrative psychiatric security review board to monitor the postverdict disposition of defendants found not guilty by reason of mental disease or defect. The five-member board may confine an insanity acquittee in a mental hospital, grant temporary leave, order conditional release, and terminate confinement or conditional release. Judicial review is required before a patient is discharged from the board's custody. Between 1985 and 1989, a total of 173 insanity acquittees were under the board's jurisdiction; most were hospitalized in state psychiatric facilities. The authors discuss issues that must be addressed in creating a psychiatric security review board, including the conflict between protecting the public and treating insanity acquittees, clinicians' resistance to treating these patients, and problems posed by patients who do not appear to be mentally ill or who are well known to the public.
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