- Collection:
- Scholarly Works
- Title:
- Confession and Confrontation
- Creator:
- Ortman, William
- Date of Original:
- 2025-01-01
- Subject:
- Law--History
Constitutional law
Law--Study and teaching - Location:
- United States, Georgia, Clarke County, Athens, 33.96095, -83.37794
- Medium:
- articles
- Type:
- Text
- Format:
- application/pdf
- Description:
- The constitutional law of confessions has a critical blind spot. In theory, the law serves two interests. First, it protects the autonomy of suspects by stipulating that they can be questioned while in custody only with their consent. Second, it restrains official misconduct by forbidding interrogation methods that overbear a suspect's will. Even if the law adequately safeguards those interests, something is missing: reliability. As false confessions emerge as a major source of wrongful convictions and as social scientists expose how standard interrogation tactics prompt innocent people to confess, the Supreme Court and conventional wisdom insist that the reliability of confessions is not a constitutional concern. The Supreme Court and conventional wisdom are wrong. Inattention to reliability is a jurisprudential oversight, not a feature of constitutional design. The problem is that the Court and commentators have neglected the part of the Constitution that unabashedly curates prosecutorial evidence: the Confrontation Clause. For much of our constitutional history, that omission could be excused, as the Confrontation Clause was a sleepy corner of the Sixth Amendment. Twenty years ago, in Crawford v. Washington, the Supreme Court enlivened it. This Article shows that a straightforward reading of Crawford, combined with a smattering of legal history, yields a simple but transformative rule: If police obtain a confession through psychologically manipulative tactics that induce 'fear" or "hope, " the confession should be inadmissible unless the defendant testifies. Eighteenth-century jurists and modern social scientists agree that such tactics lead to unreliable confessions, yet these tactics remain a staple of modern American interrogations. That would change if courts recognized the Confrontation Clause's capacity to regulate confessions.
criminal law -- confession -- constitution -- Crawford v. Washington -- Miranda -- 5th Amendment -- Due Process -- 14th Amendment -- Civil Rights and Discrimination -- Constitutional Law -- Criminal Law -- Criminal Procedure -- Fourteenth Amendment - External Identifiers:
- Metadata URL:
- https://digitalcommons.law.uga.edu/fac_artchop/1718
- Holding Institution:
- Alexander Campbell King Law Library
- Rights:
-
