We love confessions.
The confession has been called the "queen of the evidentiary chessboard" because when it's obtained, everyone comfortably believes that the police have arrested the real perpetrator. Next to DNA testing, a confession is considered the best evidence of proof beyond a reasonable doubt.
Hopefully, the media obsession over creepy John Karr's false confession to the murder of JonBenet Ramsey won't end up trivializing the problem of false confessions.
His saga does not properly represent the real nature of a problem that has plagued our justice system for the past 100 years.
People have trouble accepting the phenomenon of false confessions. We know that people take credit for good things they haven't done, but we find it hard to understand why anyone would lay claim to bad things they did not do.
Despite this skepticism, the phenomenon is well-documented. In 25 per cent of 140 documented cases of wrongful convictions in the United States (which were corrected by DNA retesting done by the Innocence Project in New York), it was found that the suspect falsely confessed to the crime.
Karr's confession is of the voluntary type, no different than those of the 200 people who falsely confessed to kidnapping the Lindbergh baby in the 1930s or the dozens of people who tried to claim responsibility for murdering OJ's wife.
When a confession like Karr's is volunteered and freely offered, the police must investigate to ensure that it's not the product of a sick mind seeking attention and infamy.
There's nothing inherently wrong with police and prosecutors relying on a corroborated and voluntary confession of guilt to prove their case. The problem arises when the police try too hard and end up obtaining a coerced false confession.
Prolonged interrogation can lead to emotional disintegration, and the police are clearly well trained in the art of psychological terror. We are so determined to extract confessions that we are content to leave suspects in police custody for 24 hours without charge to allow the police to play good cop/bad cop and engage in the dangerous ploy of confronting suspects with fabricated evidence.
Many false confessions were obtained after the police lied to suspects and told them their fingerprints were found on the scene or on the murder weapon.
In 1999, the Supreme Court of Canada recognized that aggressive interrogation could induce a false confession from vulnerable suspects. The case of Romeo Phillion has been recently reopened in light of this judicial recognition.
Last week the Minister of Justice referred Phillion's case to the Court of Appeal of Ontario to determine if Phillion's claims that his alibi was suppressed by police and that he falsely confessed should lead to a new trial for his 1972 murder conviction.
Justice is a human process, so mistakes are inevitable, but the system keeps making the same ones. Some of these are caused by officials not doing their jobs properly, and some occur because officials try too hard, lose objectivity and become crusaders.
The most flagrant example in recent memory of an official not doing his/her job involves Judge Donald Thompson of Oklahoma, who was jailed for four years last month for using a penis pump, concealed under this judicial robes, while presiding over at least four trials. Talk about a perversion of justice.
Our judiciary may not have fallen prey to the penis pump problem, but we have plenty of telling examples of judges, lawyers and police displaying incompetence or indifference in discharging their professional obligations.
Throughout the summer, various courts and commissions of inquiry have been busy trying to understand why innocent men like David Milgaard (Saskatchewan), James Driskell (Manitoba), Gregory Parsons, Ronald Dalton and Randy Druken (Newfoundland) all ended up in jail for crimes they did not commit. In addition, this summer the Court of Appeal of Ontario conducted a hearing to determine if Steven Truscott was wrongfully convicted of murder over 40 years ago.
Fortunately, when a wrongful conviction is caused by incompetence, this can usually be detected and corrected upon appeal. However, it's very difficult to uncover miscarriages of justice that occur when officials are too zealous, because the same zeal will usually be employed to prevent discovery of the mistake.
Phillion sat in prison for over 30 years for the 1967 murder of a firefighter in Ottawa until the tireless efforts of law students enrolled in the Innocence Project at Osgoode Hall Law School uncovered evidence that the police may have suppressed the fact that his alibi had been confirmed early in the investigation.
While in custody, Phillion made Freedom Of Information applications for the release of police investigative files, but the materials he received were largely indecipherable. Most of documents were heavily edited, with much of the content whited-out. Mysteriously, unedited versions of these documents showed up in correctional files years later.
In addition to the alibi issue, the court that will review his case has been directed to review expert evidence on the subject of false confession. Experts retained to assist Phillion examined his statement and found many of the hallmarks of a false confession.
I have always believed that it is unfair to subject suspects to closed-door interrogations at the police station in the absence of counsel.
It seems to me that if a suspect wishes to make a statement, this should be done in open court before a judge, a court reporter and counsel. This would significantly reduce the risk of false confessions, but presumably it would also reduce the total number of confessions obtained by the police.
Unless and until we take a serious look at the interrogation practices of the police, we will continue to run the risk of wrongful convictions based on false confessions. Coercive persuasion may be an effective tool for indoctrination into a cult, but it should not be standard police practice.