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In the criminal justice system, confessions have long been considered the gold standard in evidence. An immediate problem arises for this gold standard, however, when the prevalence of false confessions is taken into account. Since 1989, there have been 367 post-conviction DNA exonerations in the United States, and 28% of these involved false confessions. Moreover, false confessions involve everything from minor infractions to detailed accounts of violent crimes. This article takes a close look at false confessions in connection with the phenomenon of testimonial injustice. It argues that false confessions provide a unique and compelling challenge to the current conceptual tools used to understand this epistemic wrong. In particular, it argues that we cannot make sense of the unjust ways in which false confessions function in our criminal justice system by focusing exclusively on speakers getting less credibility than they deserve. It concludes that the way we conceive of testimonial injustice requires a significant expansion to include what is called agential testimonial injustice—where an unwarranted credibility excess is afforded to speakers when their epistemic agency has been denied or subverted in the obtaining of their testimony. At the same time, it shows that work by legal scholars and social scientists can benefit by viewing the practices that produce confessions through the lens of this expanded notion, and hence that epistemological tools can shed light on issues with enormous moral and practical consequences.

Criminal defendants face an uphill battle when attempting to prove that the government’s loss or destruction of evidence that could have played a significant role in their defense deprived them of their constitutional due process rights. To make this showing, the defendant must prove that the government lost or destroyed the evidence in bad faith. This requirement is problematic because direct evidence illustrating the subjective intent of the government officials who lost or destroyed the evidence is unlikely to exist, and in the off chance it does, the prosecution is unlikely to freely hand it over to the defendant. Thus, short of an admission from the government that it lost or destroyed the evidence in bad faith—which is also unlikely to happen—criminal defendants face an evidentiary void that makes it extremely difficult for them to satisfy the bad faith requirement, thereby limiting their ability to obtain constitutional recourse. This Note proposes a burden-shifting framework that seeks to mitigate this problem. This framework effectively shifts the burden of producing evidence demonstrating the prosecution’s good or bad faith to the prosecution itself—the party best situated to make this showing. In so doing, it preserves the essence of the bad faith requirement—thereby increasing the Supreme Court’s receptiveness to adopting this change—while also rectifying the evidentiary imbalance between the prosecution and the defendant, making it easier for criminal defendants to satisfy the bad faith requirement and, consequently, vindicate their due process rights.

Recent legislation, exemplified in statutes from California and Washington, creates new methods for resentencing defendants in old cases. These laws place controlling authority for resentencing in the hands of local officials, especially local prosecutors, and invite variation at the county level.

This Article advises caution against over-reliance on local prosecutors' offices to effect second-look reforms and to filter cases worthy of review. Using the lens of New York's recent second-look law, the Domestic Violence Survivors Justice Act (DVSJA), I analyze the ways in which the local prosecutor can serve as a functional barrier to statewide implementation of sentencing reform. The New York State Legislature enacted the DVSJA--after advocacy from hundreds of directly impacted individuals, stakeholders, and organizations and after significant opposition from only the District Attorneys' Association--to change the way the State sentences survivors of domestic violence. The DVSJA also allows incarcerated survivors to seek resentencing under a reduced sentencing scheme. Data from the cases decided in the 'DVSJA's first five years of implementation suggests that consent from prosecutors is correlated with success in securing resentencing. It also suggests that this consent is unevenly distributed throughout the state. In some jurisdictions, the DA's office has served almost entirely to obstruct the path to relief. Even in those counties where prosecutors have demonstrated an openness to taking a second look, some categories of cases expose the limits of their willingness to pursue reform. This, I argue, should give us pause about the power of the local prosecutor both to implement and to thwart such statewide resentencing efforts. It offers, in turn, reason to be skeptical about second-look measures that depend on prosecutorial initiation or consent.

\"Better that ten guilty persons escape, than that one innocent suffer\" is a revered adage in the criminal law. It serves as shorthand for an important rule about punishment: minimizing wrongful convictions is more important than overall accuracy. This \"Blackstone principle\" accords with most people's deeply felt intuitions about criminal justice. This Article challenges that fundamental precept. It begins by situating the Blackstone principle in the history of Anglo-American criminal law. That history shows how the principle gained prominence — most notably, because in Blackstone's time and earlier, death was the exclusive penalty for many crimes — but provides no compelling justification today. The leading modern argument for the Blackstone principle is that false convictions are simply more costly than false acquittals. But that argument is incomplete, because it focuses myopically on the costs of errors in individual cases. A complete analysis of the Blackstone principle requires taking stock of its dynamic effects on the criminal justice system as a whole. That analysis reveals two significant but previously unrecognized drawbacks of the Blackstone principle: First, its benefits to innocent defendants are smaller than usually assumed; it could even make those defendants worse off. Second, the principle reinforces a widely recognized political process failure in criminal justice, hurting not just defendants but society as a whole. The magnitude of these effects is uncertain, but they could more than cancel out the principle's putative benefits. The Article then analyzes alternative justifications for the Blackstone principle. None is satisfactory; each rests on dubious empirical assertions, logical errors, or controversial normative premises. There is thus no fully persuasive justification for the principle today. Rejecting the Blackstone principle would require us to rethink — although not necessarily redesign — various aspects of our criminal procedure system.

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone's view, the citizen jurors tasked with making due process protections a reality do not share the law's preference for false acquittals over false convictions. Across multiple national surveys sampling more than 12,000 people, we find that a majority of Americans consider false acquittals and false convictions to be errors of equal magnitude. Contrary to Blackstone, most people are unwilling to err on the side of letting the guilty go free to avoid convicting the innocent. Indeed, a sizeable minority view false acquittals as worse than false convictions; this group is willing to convict multiple innocent persons to avoid letting one guilty person go free. These value differences translate into behavioral differences: we show in multiple studies that jury-eligible adults who reject Blackstone's view are more accepting of prosecution evidence and are more conviction-prone than the minority of potential jurors who agree with Blackstone. These findings have important implications for our understanding of due process and criminal justice policy. Due process currently depends on jurors faithfully following instructions on the burden of proof, but many jurors are not inclined to hold the state to its high burden. Courts should do away with the fiction that the reasonable doubt standard guarantees due process and consider protections that do not depend on jurors honoring the law's preference for false acquittals, such as more stringent pretrial screening of criminal cases and stricter limits on prosecution evidence. Further, the fact that many people place crime control on par with, or above, the need to avoid wrongful convictions helps explain divisions in public opinion on important policy questions like bail and sentencing reform. Criminal justice proposals that emphasize deontic concerns without addressing consequentialist concerns are unlikely to garner widespread support.

The Typical Foundation One way of laying a foundation for admission of a videotape is standard in every American court: A witness takes the stand and testifies that the contents of the videotape represent a fair and accurate depiction of what the witness saw and heard. The trial judge overruled defense counsel's authentication objection without explanation. [...]the appellate court awarded Omar a reversal of two convictions that were based on admissible evidence. STEPHEN A. SALTZBURG is the Wallace and Beverley Woodbury University P George W ngton University Law School and is a former chair of the Criminal Justice Section.

In 2008, the Illinois State Legislature found that “innocent persons who have been wrongly convicted of crimes in Illinois and subsequently imprisoned have been frustrated in seeking legal redress due to a variety of substantive and technical obstacles in the law[.]” To correct this injustice, the General Assembly created a petition for a Certificate of Innocence (“COI”), which provides wrongfully convicted individuals the opportunity to obtain financial relief for time spent incarcerated. Petitioners must show that they “did not by [their] own conduct voluntarily cause or bring about [their] conviction.” Notably, the legislature did not supply a definition for “voluntary,” leaving courts free to impart their own. Despite the legislature’s recognition that “substantive and technical obstacles” prevent wrongly convicted individuals from relief, Illinois courts have imposed such obstacles through the term “voluntary.” In some instances, courts ignore this critical term by entirely omitting it from statutory analysis; in others, courts use “voluntary” to deny COIs. In the judiciary’s view, an individual “voluntarily cause[s] or bring[s] about” their conviction when they confess to a crime or accept a plea deal, regardless of the circumstances. This interpretation ignores the innocence of a person whose confession was coerced or accepted a plea deal under circumstances disguised as a rational choice. Although granting a COI is “generally within the sound discretion of a court,” the Illinois judiciary has improperly imposed a condition absent from the text that, carried to its logical conclusion, would deny COIs to innocent people. This Comment explores the purpose of Section 2-702, contemplates “voluntary” conduct, and illuminates the implications of judicial frustration. The case of Wayne Washington exemplifies the judiciary’s abuse of discretion and its imposition of substantive and technical obstacles that the Illinois legislature sought to overcome by enacting Section 2-702. Finally, this Comment argues that COIs are the only adequate remedy for wrongfully convicted individuals and proposes legislative and judicial solutions.

A puzzle is raised by cases of false confessions: How could an innocent person convincingly confess to a crime? Postconviction DNA testing has now exonerated over 250 convicts, more than forty of whom falsely confessed to rapes and murders. As a result, there is a new awareness that innocent people falsely confess, often due to psychological pressure placed upon them during police interrogations. Scholars increasingly examine the psychological techniques that can cause people to falsely confess and document instances of known false confessions. This Article takes a different approach, by examining the substance of false confessions, including what was said during interrogations and how the confession statements were then litigated at trial and postconviction. Doing so sheds light on the phenomenon of confession contamination. Not only can innocent people falsely confess, but all except two of the exonérées studied were induced to deliver false confessions with surprisingly rich, detailed, and accurate information. We now know that those details could not have likely originated with these innocent people, but rather must have been disclosed to them, most likely during the interrogation process. However, our constitutional criminal procedure does not regulate the postadmission interrogation process, nor do courts evaluate the reliability of confessions. This Article outlines a series of reforms that focus on the insidious problem of contamination, particularly videotaping interrogations in their entirety, but also reframing police procedures, trial practice, and judicial review. Unless criminal procedure is reoriented towards the reliability of the substance of confessions, contamination of facts may continue to go undetected, resulting in miscarriages of justice.

False confessions happen. At least 245 people have been exonerated from convictions in cases featuring confessions that were simply not true. Confessions offer a narrative that allows law enforcement, and society in general, to neatly resolve cases with apparent clarity and closure. And yet the pressures officers place on suspects to provide that closure weigh disproportionately on the vulnerable, including individuals with intellectual disabilities. These individuals are disadvantaged at every step of the custodial interrogation, and they face heightened risks of falsely confessing. Moreover, the principal judicial safeguards against false confessions—assessing a suspect's Miranda waiver and determining whether a confession was voluntarily given within the bounds of the Fourteenth Amendment's Due Process Clause—provide little protection for the innocent with intellectual disabilities. Few pieces of scholarship focus specifically on the heightened risks faced by individuals with intellectual disabilities throughout the process of police interrogation. This Note describes the various ways these individuals are disadvantaged. And it offers an additional data point illustrating the vulnerability of people with intellectual disabilities. This Note analyzes the 245 individuals (as of June 2, 2017) on the National Registry of Exonerations who have falsely confessed. Over one-quarter of them display indicia of intellectual disability. This percentage dwarfs the prevalence of people with intellectual disabilities in the general population and even exceeds most estimates of the proportion of the prison population suffering from intellectual disabilities. This Note concludes with several policy and doctrinal suggestions to better protect individuals with intellectual disabilities from the risks of false confession.