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Editor: Kevin Cole
Univ. of San Diego School of Law

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Thursday, August 12, 2010

Davis & Leo on the Three Prongs of the Confession Problem

Leo richard Deborah Davis and Richard A. Leo  (pictured) (University of Nevada, Reno and University of San Francisco - School of Law) have posted Three Prongs of the Confession Problem: Issues and Proposed Solutions (THE FUTURE OF EVIDENCE, Epstein, Jules, ed., Forthcoming) on SSRN. Here is the abstract:

Many cases could not be successfully prosecuted without a confession, and, in the absence of a confession, many would be much more costly to investigate and to develop other evidence sufficient to convict. Responding to this pressure to reliably elicit confessions from their suspects, the police have developed sophisticated psychological techniques to accomplish two goals: to induce suspects to submit to questioning without an attorney, and to induce them to confess. Unfortunately, these methods are sufficiently powerful to induce false as well as true confessions and to render them involuntary. Further, because they are based upon often subtle, yet sophisticated weapons of influence, their coercive power sometimes goes unrecognized by those who must judge their voluntariness or validity. This yields a crucially important yet often unrecognized three-pronged problem with confession evidence - voluntariness, validity, and prejudicial impact. In this chapter, the authors first briefly review the nature of modern interrogation tactics, and then turn to consideration of the three-pronged confession problem, systemic barriers to recognizing and addressing the problem, and some proposed solutions.

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