Oct 11, 2010

The narrative need for confessions

"My Law get me to say I did this but I did not do this I was not at that house that day went I tell my Law that it seen like Im not telling no one any thank. Be for I go up the road to jail for murder that I did not do I would want someone burn me on fire tell I die why I say I was in the house the police say they has proof to say we was in that Lady house ...."
-- Anthony Gray, wrongfully convicted of rape and murder, crimes to which he confessed, but did not commit.

"According to tapes and transcripts of the interrogation obtained by theWashington Post [the detectives] told Vasquez during this first 90-minute session that they had found his fingerprints at the crime scene. This was not true, according to the detectives' later testimony. They yelled at Vasquez when his answers did not fit the facts of the crime. They told him dozens of details about the crime, then encouraged him to restate them."
-- Dana Priest in the Washington Post, 1974.

An odd thing: juries believe confessions.

Which I take to mean: we believe in confessions.

When someone says for the camera or to the camera (not necessarily knowingly), I did it -- I did it, I murdered, I raped, I (fill in the blank) did it -- we believe them. Even when we shouldn't, we believe them. Even when there are reasons, sometimes lots of reasons, to think that maybe we shouldn't accept this confession, shouldn't trust it, still we do. There's something of a reflex to it.

You would think, at least, there's a Cretan's paradox here: the one who has confessed to whatever horrible thing should not, it seems, be taken as a reliable source of information. If we accept that a man is a murderer, then it would seem to be a safe assumption that we wouldn't or shouldn't trust this person. The confession itself ought to act to undermine whatever faith we'd place in this person's testimony, whatever standard trust we'd have, in a normal case, in someone's honesty, veracity, or reliability.

It doesn't work that way, though, with juries or with us. We believe people who say they're people who shouldn't believe. Call it the Miranda paradox, the paradox that we find no paradox here.

We believe confessions. Even when it seems like we shouldn't.

In the context of a trial, at the trials I've covered, it's almost never the case that the confession is undisputed. But it's believed anyway. The one who has confessed always comes back and says, no, he was lying, and then the prosecutor always says, indignant and preforming for the jury, "if you were lying then, why should we believe you now?" But never, so far as I saw, is that question asked by anyone in the other direction: If you are lying now, why should I believe you then?

When someone, accused of a crime, denies it 17 or 70 times, but then once, in the middle somewhere, confesses, we take that one story as the truth.

The defendant always says no, that was the lie, and the confession was coerced by psychological pressure. The psychological pressure part is true, too, regardless of what we think of the confession that comes out of it. Confessions don't just come from nowhere. They're not spontaneous. They're squeezed out. Maybe that's how we get the truth, or maybe that tactic produces and elicits lies, but that's how confessions happen in America after Miranda, now that phonebook beatings aren't winked at.

Pressure. Confessions get twisted out of you. The detectives can, and often do, and are trained to lie about everything. They tell you there's evidence when there isn't. They tell you there're witnesses, you were caught on camera, they have finger prints, and they say they have you, "dead to rights." Even (especially) when they don't. They talk until you're trapped. Feel trapped. Until the world warps around you, and reality itself seems to convict you and you know you're innocent (dear little Kafka) but you sit in the room at the table in cuffs, and the bottom drops out, and you know, with what they're telling you, that silent innocence is not enough. You're gonna have to explain the accidents, defend yourself, explain the horrible mistake that's happened here.

They talk until you panic at the evidence arrayed against you. Until you think even those disposed to believe you, those people who know you, the real you, and like you, would look at this evidence the detectives say they have and think, "he did it." It's you against the things we take as truth, against the documentation we consider to equal reality.

They don't need a confession. They tell you this repeatedly: They have all the evidence they need. It explains itself that you're guilty. You're going away or worse. They don't need a confession. They have you, they say, and they just want to know what you have to say.

And then they give you a way out. Why don't you offer your interpretation.

And then you do, you confess.

Even, sometimes, when you didn't do it.

The police, and the Law and Order crowd, will dispute the idea of false confessions. They have always had two arguments against them. The first is that innocent people don't confess. "Would you?" they say.

This argument, it seems to me, seems to insist on an assumption on difference, to pander to one's own assumed moral rectitude, and to ignore the reservoir of guilt that is inside most of us. It seems to simply pretend that there aren't a lot of times when people feel pressured, even in normal life, life outside the police interrogation room, to lie to say they're sorry. Even ignoring that, though, there's more than enough anecdotal evidence to show that, whatever you might or might not do, it does happen. People confess to crimes they didn't commit. Innocent people confess.

The New York Times has documented this, and that's not exactly new. An article published in the The Journal of the American Academy of Psychiatry and the Law last year noted that more than 220 people had been cleared of crimes because of DNA, and that a "disturbing number of these cases involved false confessions given by innocent defendants during a psychologically coercive police interrogation." And most cases don't involve any DNA evidence, which means there isn't anything that could possibly overturn a false confessions. We have no idea how many multitudes we're talking about here.

But we know it's just not true that innocent people don't confess.

The second argument has always been that confessions can't be false when the suspect confesses to details of the crime that weren't publicly available. When the confession corroborates certain facts that have been withheld. He had, they say, knowledge he couldn't have had, unless he was guilty. He knew things.

This has seemed like a very solid argument, but a study published in the Stanford Law Review earlier this year shatters it completely. In the cases where there were false confessions, 97 percent of them included these details that supposedly corroborated guilt.

"Not only can innocent people falsely confess," Brandon L. Garret concludes, "but all except two of the exonerees studied were induced to deliver false confessions with surprisingly rich, detailed, and accurate information."

He calls this, "the phenomenon of confession contamination."

The University of Virginia online law library has compiled a partial but deeply disturbing list of cases where people confessed in detail but were later cleared of the crimes based on DNA evidence. Look at the confessions and the court documents, too. They look convincing even when you know they're false, when you know you shouldn't believe. We believe in confessions.

This is one of those things -- it's not a new idea to anyone who's worked with these issues. Defense attorneys always have stories like this. We've known for a long time of particular cases where confessions were contaminated and false, but this study seems to bolster that case, and makes it in a way that can't be dismissed as mere soft-hearted liberalness.

Garret suggests some legal reforms, including requiring that confessions be recorded, so that "Criminal procedure rules regulating confessions can be reoriented towards reliability," and suggests confessions should be scrutinized.

Confessions should be scrutinized by judges and legal scholars, law makers and commentators, but we should look at it too. Why do we believe confessions? Why do we want confessions?

Rene Girard, a structuralist anthropologist and literary theorist who developed a theory of mimesis and scapegoating, says that confessions are part of the "scapegoat mechanism." It is the final moment in the process of projecting guilt, of restoring order by establishing a "fall guy," when the scapegoat accedes to the scapegoating. The scapegoat -- who is always guilty, separate and even before the crime and always for more than the crime, because he has been constructed as guilty -- succumbs. He admits to the crime, which is also all crime, which is also all chaos and disorder. He admits to the rightness of the community, the societal assessment, to the totality of it. He admits, confesses, succumbs to the interpretation of the world, gives up his counter claim of innocence, his alternative theory where he is not guilty, and accedes that the interpretation is the only interpretation. Dissent disturbs the unity that scapegoating is designed to restore, and the confession is necessary. Confession means there's no other interpretation of the world. The confession is the key, then, the final key, to restoring societal unity.

The confession acts as an alleviation. The scapegoat takes the responsibility for the crime, and the disorder, and takes the responsibility for designating responsibility. The jury doesn't have to say -- we don't have to say -- anything. The confession is there, there's the state's case, the detective's testimony and the sensibilities of good people and all we have to do is assent to the unanimity.

Girard has pointed out that the confession wouldn't be necessary if it weren't for the scapegoating. If it were just a matter of identifying and punishing the right person, we wouldn't need confessions like we need confessions. It's not as if, for example, confessions are necessary for legal convictions. There's no legal need to identify a motive for a crime. The standards of evidence and "beyond a reasonable doubt" don't require that one know why someone did what they did, much less that they confess in a somewhat cogent manner, and admit what they did. This is even more true for narratives.

Within this idea of guilt alleviation, and unity restoration, nests a narrative need, too. There is, or feels like there is, a narrative need for confessions. Confessions aren't necessary for legal convictions. There's no legal need, for example, to identify a motive for a crime. The standards of evidence and "beyond a reasonable doubt" don't require that one know why someone did what they did, much less that they confess in a somewhat cogent manner, and admit what they did. But there is a narrative need for confessions -- without that cathartic moment, the story doesn't end. That restoration of the status quo, the resolution of the narrative into a final unity is, textbook definition, what happens at the end of a crime narrative.

Different sub genres have developed with different ways of getting the reader or viewer to that revelation that restores unity and puts everything back where it was, the way it was, but that confession has to happen.

We want it. Without it we feel cheated.

Even with a show like CSI, which is based on a premise of evidence that makes the confession completely unnecessary, a show that only makes sense if you accept that the science of crime investigation labs is more important than traditional detective work, that it gets at what's true in a way the other stuff doesn't and can't, there still almost always has to be a confession. That's the narrative's pay off. It's the resolution, and without it the story doesn't seem to arc like it's supposed to, and it doesn't seem to end with the unitary neatness we want and need.

Otherwise the story just dribbles on out in all directions.

Judicial scholars and law makers and lawyers need to rethink confessions. The articles about false confessions and confession contamination are good signs that is happening. The thing is, though, the need for confessions doesn't come out of the law, I don't think, but from our narratives. Writers need to rethink confessions. Writers need beware of the implications of something as innocent-sounding as "resolution," and "unity."

The narrative need ought to be scrutinized too -- there are ethical implications to the "naturalized" narrative structure that have serious, serious consequences.