Forthcoming 2019: Why Do We Admit Criminal Confessions into Evidence?
Forthcoming 2019 is a section from the Everyday Evidence Legal Blog that highlights recent papers from attorneys and professors from across the legal spectrum. These recent and soon-to-be publications offer readers a chance to see a wide range of issues from different legal fields.
Today’s Forthcoming 2019 features:
Why Do We Admit Criminal Confessions into Evidence?
Seattle Law Review
There is an enormous literature about the admissibility of criminal confessions. But almost all of it deals with issues related to self-incrimination or, to a lesser extent, with hearsay or accuracy concerns. As a result, the question whether we ever admit criminal confessions into evidence has not been the subject of much analysis. This gap is odd, since confessions are implicitly disfavored by a proportion of the literature and they often collide with exclusionary doctrines. Furthermore, the self-incrimination issue sometimes is resolved by balancing, and it would help if we knew what we were balancing. Therefore, one might ask: Why does the criminal justice system admit confessions into evidence at all? This article is an effort to address that strange gap in the literature. It should be pointed out that the description of supporting rationales for admitting a criminal confession certainly does not resolve the separate issue of admissibility. There are constitutional and evidentiary principles that control that issue, and this consideration should constantly be borne in mind; but even so, the underlying rationales for confession admissibility may sometimes be relevant. Sometimes unique doctrines, which often are products of legislation, determine that confessions are inadmissible, such as requirements that statements be in writing, or recorded, or corroborated. An understanding of the rationales for admitting confessions would assist in interpreting these kinds of doctrines, as well as informing the decision to legislate limits upon the use of confessions as evidence.
David Crump, Why Do We Admit Criminal Confessions into Evidence?, 43 SEATTLE U. L. REV. 71 (2019).