Criminal Justice Section
Criminal Justice Magazine
Volume 19 Number 2
Juveniles and False Confessions
By Robert E. Shepherd, Jr.
Robert E. Shepherd, Jr., is emeritus professor of law at the University of Richmond School of Law in Virginia. He is also a contributing editor to Criminal Justice magazine and former chair of the Section's Juvenile Justice Committee.
In late winter 2003, LynNell Hancock wrote a disturbing article in the Columbia Journalism Review about the role of the media in the 1989 high-profile police investigation into the brutal beating and rape of an investment banker jogging through Central Park in New York City. She also authored a sidebar piece in the same journal issue about “false confessions” by children and adolescent youth in Chicago and California, which taken together, presented a fresh insight from a journalist’s perspective into how police interrogation techniques with juveniles can lead to major injustices in our legal system. The principal article on the Central Park jogger case showed how the press can both inflame an investigation and help create a climate for police overreaching, and yet later assist in exposing an injustice and help free the innocent victims of the same police misconduct. It recounted the press response to the savage assault on the white victim and the ensuing arrest of six African-American teenagers—14, 15, and 16 years old—all but one of whom confessed in some detail after up to 30 hours of interrogation.
The New York tabloid, the Daily News, covered the story extensively and used the term “wolf pack” in a headline on page one, and the similar New York Post coined “wilding” as “the newest term for terror in a city that lives in fear.” (LynNell Hancock, Wolf Pack: The Press and the Central Park Jogger and False Confessions: How They Happen, COLUMBIA JOURNALISM REV., Jan./Feb. 2003, at 38–42). Hancock reported that “in the competitive frenzy surrounding the story, that narrative took on a life of its own, ultimately slashing the city into two angry parts—white and black, Wall Street and Harlem, law-abiding adults and barbaric youth.” Although the youths quickly recanted their confessions, no one paid attention to their claims of innocence, even though there was no physical evidence linking the boys to the crime. Yet, 13 years later, after the teenagers had fully served their sentences, the Manhattan district attorney was forced to reopen the case when an adult serial rapist who had attacked a woman two days earlier in the same area of Central Park confessed to the Central Park jogger attack. His confession was backed up by DNA evidence.
The sidebar article on false confessions recounts three other high-profile cases where confessions were made by innocent youngsters. The author noted initially the case of four young men in Chicago who were convicted as teenagers of raping and murdering a 23-year-old medical student in 1986 only to have the Chicago Tribune investigate the case and find that DNA evidence pointed to two other men; gubernatorial pardons followed for the four innocent youths. She also reports on the seven- and eight-year-old Chicago boys who falsely confessed in 1998 to the sexual brutalization and killing of 11-year-old Ryan Harris. Once more, DNA evidence identified an adult sex offender who had been recently released from prison. Another case involved the 1998 killing of 12-year-old Stephanie Crowe in her bedroom in California and the confession of her 14-year-old brother. The police used deception and psychological pressure over two days to extract a confession, but one year later DNA evidence linked a mentally ill ex-con to the homicide.
Hancock’s concluding paragraph in the jogger article offers a challenge to the media: “Both Ross and Dwyer [two reporters who followed up the case for the Daily News and the Times respectively] would agree that the media can no longer ignore the importance of understanding juveniles and the policies that govern them in this changing world. More children are standing trial in adult courtrooms now than at any time in our nation’s history. This requires a vigilant press to report from behind the interrogation doors, to inform beyond the shrill screams for revenge. Because the wolf pack, now as in 1989, can be the media.” Since Hancock focuses in her articles on the ethical dimensions of the press coverage, especially in the Central Park jogger case, the ultimate outcome of the case shows the press in very poor light. However, her articles should similarly leave the legal system in general, and law enforcement in particular, reflecting over the propriety of their actions in extracting false confessions from the young men. A more recent and equally important article in the North Carolina Law Review by Steve Drizin, a clinical professor of law at Northwestern Law School, and Richard Leo, an associate professor of criminology, law and society, and psychology and social behavior at the University of California, Irvine, addresses more narrowly the false confession problem in the legal system. (Drizin & Leo, The Problem of False Confessions in the Post-DNA World, 82 NORTH CAROLINA L. REV. 891 (2004).) This column will focus on the problem of false confessions involving children and adolescents.
False Confessions and Youth
Drizin and Leo specifically address seven cases involving interrogation-induced confessions by children under 14 where the suspects were proven to be innocent, including the two initially implicated in the Ryan Harris murder, and 40 cases of false confessions by juveniles between the ages of 14 and 18, including the falsely convicted youths in the jogger case, the four teenagers falsely convicted of the rape and murder of the student in Chicago, and Michael Crowe, the 14-year-old California youth charged in the death of his younger sister. In all of these cases detailed by Hancock and reviewed by Drizin and Leo, the juveniles had confessed to killings later proven by scientifically conclusive methods to have been committed by someone else.
The Drizin and Leo article points to the particular vulnerability of children and juveniles, in addition to adults who are mentally disabled in some fashion, to interrogation techniques that are coercive or calculated to create psychological pressures on a suspect. It also demonstrates that confessions, even patently false confessions, are almost inevitably believed by juries even where there may be strong evidence to the contrary. (See also Saul Kassin, The Psychology of Confession Evidence, 52 AM. PSYCHOL. 221 (1997); Saul Kassin & Katherine Neumann, On the Power of Confession Evidence: An Experimental Test of the Fundamental Difference Hypothesis, 21 LAW & HUM. BEHAV. 469 (1997).) Even where confessions have been proven to be false by the presence of DNA, or other scientific evidence linking another suspect to the crime, police and prosecutors have been reluctant to withdraw prosecutions or agree to overturn convictions and release the falsely convicted confessor. Other safeguards are undoubtedly required to prevent these injustices in the first instance.
After describing so many cases of wrongful convictions and inappropriate prosecutions following false confessions, Professors Drizin and Leo have several suggestions to lower the risk of this injustice. First, they propose requiring the police to “electronically record the entirety of all custodial interrogations of suspects.” (Drizin & Leo at 997.) This would create a complete and objective record of the interrogation; it would lead to a higher level of scrutiny that would serve to deter police misconduct; and it would provide an opportunity for various persons to more closely monitor both the quality of the interrogation and the reliability of statements made. This practice has become legally required in Illinois in homicide cases beginning in July of 2005, and decisions of the Alaska and Minnesota Supreme Courts require taping in those two states as well. Taping has become regular police protocol in Prince Georges County, Maryland, and in Miami and in Broward County, Florida. Second, Drizin and Leo recommend that there be greater education and training of police in interrogation techniques designed to secure reliable confessions, especially in the interrogation of children, juveniles, and developmentally disabled suspects. (Id. at 1003.) They further urge that where evidence is available for DNA testing, such should take place as soon as possible in cases where there is a confession.
The right to counsel during interrogation
Drizin and Leo also suggest that juvenile suspects be provided access to attorneys before their interrogation, describing the Cook County, Illinois, practice of requiring attorney consultation for all children under the age of 13 before any police interrogation in murder or sex offense cases. (Id at 1005.) They also point out that the Cook County State’s Attorney’s Office had convened an interdisciplinary Juvenile Court Competency Commission to “study the ability of young people to understand and meaningfully participate in the interrogation process and court proceedings.” (Id.) That commission recommended preventing the state from using any uncounseled statements by children under the age of 17 in any proceeding in which they face potential adult punishments; that the complete interrogation of any youth in felony cases be videotaped; and that more procedures be developed to ensure that a juvenile’s parent or custodian is present during questioning.
Standard 3.2 of the IJA-ABA Juvenile Justice Standards Relating to Police Handling of Juvenile Problems provides that “for some investigative procedures, greater constitutional safeguards are needed because of the vulnerability of juveniles. Juveniles should not be permitted to waive constitutional rights on their own.” However, it is not until the commentary that there is this flat statement:
(b) Following an arrest, a juvenile may be questioned only after conferring with counsel. All such questioning must take place in counsel’s presence unless the right to counsel has been previously waived.
(c) The right to counsel may only be waived after the juvenile has consulted with counsel and this waiver must take place in counsel’s presence.
The more recent ABA report of the Task Force on Youth in the Criminal Justice System—“Youth in the Criminal Justice System: Guidelines for Policymakers and Practitioners”—is more explicit. It states: “Any statements made during the course of custodial interrogation in the absence of counsel and the youth’s parent or parents should be carefully scrutinized consistent with the general principles of this document. Custodial interrogation of a youth who has not reached his or her [sixteenth] birthday should not take place outside the presence of counsel.” It is urged that the only way to truly protect juveniles against interrogation processes and techniques that might result in false confessions is the provision of an unwaivable right to counsel during any questioning, especially for youngsters who may have multiple disabilities.