CRIMINAL LAW BULLETIN Volume 37, Number 4 Contents 291 The Truth About False Confessions and Advocacy Scholarship Richard A. Leo and Richard J. Ofshe 371 A Defense Perspective of Treatment Programs for Juvenile Sex Oenders David R. Katner 395 Empirical Studies on Race and Death Penalty Sentencing: A De- cade After the GAO Report Jon Sorensen; Donald H. Wallace and Rocky L. Pilgrim 408 Forensic Science: Statistical Evidence Edward J. Imwinkelried 420 United State Supreme Court Decisions 422 Significant State Court Decisions 426 Selected State Court Decisions 431 From the Legal Literature 438 Book Review Volume 37, Number 4. Criminal Law Bulletin (USPS 0138-000) (ISSN 0011-1317) is published 6 times a year, bimonthly, by West Group, 610 Opperman Drive, Eagan, MN 55123-1396. Subscription Price: USA, US possessions and Canada-$150 annually; elsewhere-$195 annually. Periodicals postage paid at St. Paul, MN, and additional mailing oces. 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Vista Montanas School of Criminal Justice Tucson, Arizona 85749 SUNY at Albany 135 Western Ave. Albany, New York 12222 West Group has created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. West Group is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other profes- sional. @MAGNETO/VENUS/HANDBOOK01/BULLETIN/CRIMLAW/CLB01374 SESS: 1 COMP: 07/23/01 PG. POS: 2 The Truth About False Confessions and Advocacy Scholarship1 Richard A. Leo2 Richard J. Ofshe3 Research References West Key No. Digests Criminal Law ” 516 to 538 KeyCiteL: Cases and other legal materials listed in KeyCite Scope can be researched through West Group’s KeyCite service on WestlawL. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including cita- tions to other decisions and secondary materials. I. Introduction: The Problem II. The Consequences of False Confessions: The Findings III. Cassell’s Commentary Is Inaccurate, Unpersuasive and Flawed (A) Introduction (B) Cassell’s Flawed Presentation of Numbers and Arguments (C) Cassell’s Critique of Our Sources is Inaccurate and Unpersua- sive (D) Cassell’s Commentary Misses the Point (E) Cassell Mischaracterizes the Recommendations of Conse- quences IV. Cassell’s Failed Case Challenges (A) Introduction (B) Illustrating Cassell’s Inadequate Case Presentations (1) The Case of Barry Lee Fairchild (a) Voluntariness (b) Reliability V. Conclusion 1 We thank James Acker, Steve Drizin, Stanley Fisher, George C. Thomas III, Charles Weisselberg, and Welsh White for helpful comments on earlier drafts of this article. 2 Assistant Professor of Criminology, Law and Society and Assistant Professor of Psychology and Social Behavior, University of California, Irvine. 3 Professor of Sociology, University of California, Berkeley. 293 @MAGNETO/VENUS/HANDBOOK01/BULLETIN/CRIMLAW/CLB01374 SESS: 1 COMP: 07/23/01 PG. POS: 3 CRIMINAL LAW BULLETIN VI. Appendix: The Remaining Eight Cases (1) Joseph Giarratano (2) Paul Ingram (3) Richard Lapointe (4) Jessie Misskelley (5) Bradley Page (6) James Harry Reyos (7) Linda Stangel (8) Martin Tankle I. Introduction Few topics shed more light on the administration of criminal justice than the study of its errors: wrongful arrests, prosecutions, convictions, incarcera- tions and executions. Beginning with Edwin Borchard’s study Convicting The Innocent in 1932,4 social scientists, legal scholars, and journalists have documented hundreds of wrongful arrests and miscarriages of justice in America,5 including cases in which innocent individuals were executed by the state.6 Researchers have sought to deepen our understanding of the decision-making biases of criminal justice ocials and juries that have led to erroneous judgments; the multiple sources and causes of wrongful arrest and conviction; the conditions under which the wrongful use of state power is likely to occur; the harms and deprivations of liberty that the criminal justice system inicts on the lives of the wrongfully arrested, prosecuted, convicted 4 Edwin Borchard, CONVICTING THE INNOCENT (1932). 5 See, for example, Borchard, supra note 4; Erle Stanley Gardner, THE COURT OF LAST RESORT (1952); Jerome Frank & Barbara Frank, NOT GUILTY (1957); Edward Radin, THE INNOCENTS (1964); Hugo Adam Bedau and Michael L Rade- let, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21 (1987) [Hereinafter, Miscarriages of Justice]; Samuel R. Gross, Loss of Innocence: Eyewitness Identication and Proof of Guilt, 16 J. Legal Stud. 395 (1987); Martin Yant, PRESUMED GUILTY: WHEN INNOCENT PEOPLE ARE WRONG- FULLY CONVICTED (1991); Edward Conners et al., CONVICTED BY JURIES, EXONERATED BY SCIENCE: CASE STUDIES IN THE USE OF DNA EVI- DENCE TO ESTABLISH INNOCENCE AFTER TRIAL; C. Ronald Hu et al., CONVICTED BUT INNOCENT: WRONGFUL CONVICTION AND PUBLIC POLICY (1996); Daniel Givelber, Meaningless Acquittals, Meaningful Convic- tions: Do we Reliably Acquit the Innocent, 49 RUTG. L. REV. 1317 (1997); Mi- chael L. Radelet et al., Prisoners Released From Death Rows Since 1970 Because of Doubts About Their Guilt, 13 T.M. COOLEY L. REV. 907 (1998); Edward Humes, MEAN JUSTICE; and Barry Scheck et. al., ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION AND OTHER DISPATCHES FROM THE WRONGLY CON- VICTED (2000). 6 See Bedau and Radelet, supra note 5. See also Samuel R. Gross, The Risks of Death: Why Erroneous Convictions are Common in Capital Cases, 44 BUFF. L. REV. 469 (1996). 294 @MAGNETO/VENUS/HANDBOOK01/BULLETIN/CRIMLAW/CLB01374 SESS: 1 COMP: 07/23/01 PG. POS: 4 FALSE CONFESSIONS and/or incarcerated; and the types of policy reforms that, if implemented, could minimize the incidence of wrongful conviction in America.7 To contribute to this investigation, in 1998 we published The Conse- quences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation (hereinafter, Conse- quences) — a study of 60 confession-driven cases, all of which involved a false confession by an innocent person, arrest and often wrongful convic- tion.8 As with the seminal research of Bedau and Radelet on miscarriages of justice in capital and potentially capital cases,9 our article drew a one-sided response from Paul Cassell, The Guilty and the ‘‘Innocent’’: An Examina- tion of Alleged Cases of Wrongful Conviction from False Confessions (here- inafter Examination).10 Numerous social scientists and legal scholars have strongly criticized Cassell for his bias;11 reliance on awed methods, studies, and data;12 inaccurate and incomplete summaries;13 sources and quotes out of context;14 arbitrary, speculative and exaggerated statistical estimates;15 7 See generally supra note 5. 8 Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J.CRIM. L. & CRIMINOLOGY 429 (1998) [Hereinafter Leo & Ofshe, Consequences]. 9 See Bedau and Radelet, Miscarriages of Justice, supra note 5; Stephen L. Mark- man & Paul G. Cassell, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 STAN. L. REV. 121 (1988); Hugo Adam Bedau and Michael Radelet, The Myth of Infallibility: A Reply to Markman and Cassell, 41 STAN. L. REV.