Confessions

A defendant can confess to guilt in a variety of different settings, and different legal rules govern admissibility in each setting. First, some defendants make inculpatory statements to friends or associates. In general, if the prosecution learns of these statements because of the cooperation of a person who hears them, the statements are admissible against the defendant. The primary exception to this general rule arises when a government agent deliberately elicits statements made by an individual who has been formally charged with a crime. As we shall see, admission of statements secured in these special circumstances violates the defendant's Sixth Amendment right to counsel. In the more typical situation, there is no constitutional bar to admission of the statements. Although various evidentiary privileges may bar introduction of inculpatory statements made to a spouse, a lawyer, a member of the clergy, or a physician, the admissions exception defeats a general hearsay objection to the evidence. Moreover, the Supreme Court has repeatedly held that there is no "reasonable expectation of privacy" implicating Fourth Amendment rights when an individual voluntarily shares information with others. Nor is there usually the "compulsion" or "involuntariness" required to invoke self-incrimination or due process objections.

Second, defendants regularly admit culpability when they plead guilty to an offense. Indeed, confessions associated with guilty pleas are the most commonly used inculpatory statements in the criminal justice system. Approximately 90 percent of all criminal prosecutions end in guilty pleas. To be sure, the defendant need not always concede his factual guilt when he pleads guilty, but prosecutors frequently insist on such a concession, and most guilty pleas are accompanied by an admission of guilt. One might suppose that guilty pleas would implicate the Fifth Amendment's self-incrimination clause when they are extracted through a threat of harsher punishment if a guilty plea is not forthcoming. However, the Supreme Court has held that the mere risk of conviction does not constitute the kind of compulsion that implicates self-incrimination rights and that plea bargaining is therefore permissible, at least so long as the defendant's plea satisfies the looser "voluntariness" standard.

Third, whether or not they plead guilty, defendants frequently make inculpatory statements during the sentencing process in order to demonstrate contrition. The Federal Sentencing Guidelines grant defendants a reduction in their offense level if they "clearly demonstrate . . . acceptance of responsibility for [the] offense," and judges regularly take into account remorse or contrition even in the absence of formal guidelines requiring them to do so. Although the Supreme Court has held that self-incrimination rights attach at the sentencing phase, the Court has yet to decide whether harsher punishment for defendants who refuse to admit their guilt at sentencing violates Fifth Amendment rights.

Finally, many defendants confess as a result of police interrogation conducted after their arrest. Confessions in this setting have generated the most controversy, and a complex body of law, discussed below, regulates their use. Despite this regulation, it appears that a surprisingly large number of defendants make inculpatory statements to the police. Although there are no nationwide statistics, a smattering of local studies is suggestive. In a study published in 1996, Richard Leo reported on observations of 182 police interrogations, most of them in a major urban police departments. He found that 64.29 percent of the suspects gave incriminating information of some type and that 41.76 percent either confessed or made partial admissions. In 1994, Paul Cassell studied data on confessions and incriminating statements in cases submitted for prosecution to the Salt Lake County Attorney's Office. He found that in 33.3 percent of the cases, the suspect confessed, gave incriminating statements, or was locked into a false alibi (1996).

There has been considerable controversy over just how important these confessions are to successful law enforcement. In Escobedo v. Illinois (378 U.S. 478, 488 (1964)), a majority of the Justices implied that reliance on "extrinsic evidence independently secured through skillful investigation" could achieve the same results as a system that relied heavily on confessions. In contrast, Justice Byron White, dissenting in Miranda v. Arizona (384 U.S. 436, 541 (1966)), warned that limitations on confessions would "measurably weaken the ability of the criminal law to perform [its] tasks," and Justice Tom Clark, dissenting in the same case, argued that a limitation on confessions "inserted at the nerve center of crime detection may well kill the patient" (384 U.S. at 500).

Decades after Justice Clark's gloomy prediction, the patient seems to be alive and kicking, but there are no recent, systematic empirical studies that throw light on these rival claims. A group of studies conducted in the 1960s tended to show that confessions were necessary for convictions in about a quarter of all cases prosecuted, but the numbers varied widely in different studies, and there appears to be no solid, nationwide data from more recent years.