IN THE PENALTY PHASE of his trial, Zacarias Moussaoui declared that he planned to fly a fifth hijacked airplane into the White House on Sept. 11, 2001. No independent evidence suggests that such a plan ever existed. It seems quite possible that Moussaoui, who appears to be deranged in one way or another and clearly enjoys taunting his captors, fabricated it. Nevertheless, many commentators instantly declared that Moussaoui had sealed his fate -- death -- with this confession.
They may well be right. That's because, in our legal system, confessions are among the most persuasive kinds of evidence juries hear. Juries -- like all of us -- find it extremely difficult to believe that anyone would confess to a crime he didn't commit, or in this case, that he didn't plan to commit.
It's a notion that requires scrutiny. The commentators in the Moussaoui case, and the jury too, are presumably unaware that more than 200 people claimed to have kidnapped the Lindbergh baby. Desire for notoriety is among the many causes of false confessions. In fact, a surprising number of innocent people confess to crimes they did not commit.
Thanks in large part to DNA testing, we have learned that innocent people are convicted with greater frequency than anyone imagined. Since 1989, DNA testing has exonerated 175 people convicted of crimes. Intriguingly, one-fifth of them had confessed (among them, the five teenagers convicted of assaulting the "Central Park jogger").
Spurred by the DNA exonerations, several scholars have sought to show the prevalence of false confessions. Professors Richard Leo and Steven Drizin recently published a study in the North Carolina Law Review documenting 125 false confessions. Although it is impossible to estimate the total number or percentage of false confessions, experts believe that the known cases represent only the tip of the iceberg.
Many social scientists explain that a major cause of false confessions is interrogation tactics that leave an innocent suspect feeling there is no escape except an admission of guilt. Courts condone these tactics, apart from extreme cases. Interrogators exaggerate or fabricate evidence, telling a murder suspect, for example, that he was identified as the culprit in the victim's dying declaration. They threaten him with severe punishment unless he confesses, or they suggest mitigating circumstances and hint at lenient treatment, if only he confesses. Throughout the interrogation, they communicate unbreakable certainty of his guilt.
In the face of all this, at some point many suspects find the situation hopeless and conclude that they are simply better off confessing. That decision may be foolish, but it is not irrational. It reflects a conscious or unconscious cost-benefit analysis -- albeit an analysis skewed by fear and fatigue.
But aren't the interrogators obligated to inform the suspect of his rights to counsel and to remain silent? Yes, but many false confessors don't fully understand their Miranda rights. Moreover, the innocent suspect may feel no need to exercise these rights, believing he has nothing to hide. Paradoxically, his innocence only makes things worse. His aggressive denials of guilt cause interrogators to more insistently assert his guilt, triggering a Kafka-esque cycle of deepening despair.
Experts have identified many additional explanations for false confessions. Some innocent suspects actually come to believe they committed the crime. Others may confess to protect a friend or loved one, or to expiate guilt over other improper actions.
Once the confession is made, people assume it to be true because of the incorrect intuition that an innocent person would not confess, absent extreme coercion such as torture. When defendants who ultimately turned out to be false confessors pleaded not guilty and went to trial -- aggressively recanting the confession and working to contradict it -- studies show that conviction rates were high, ranging 73% to 81%.
The power of confessions also is on depressing display among prosecutors. After DNA exonerations of false confessors, prosecutors generally refuse to admit error, instead coming up with a new theory of the case (for example, that the confessor had an accomplice who physically committed the crime) even if no evidence supports it.
The reality is that confessions should be regarded as one piece of evidence only, and analyzed to determine, among other things, their consistency with other evidence and whether they disclose details of the crime unknown to the public. Instead, the authorities commonly regard a confession as a guarantee of guilt that forecloses the need for further inquiry.
Which brings us back to Moussaoui. It would be foolish to make him the poster child for false confessions -- his admissions of involvement with Al Qaeda have been verified; he almost certainly trained to commit terrorist acts, and he is unrepentant, to put it mildly. But if the jury sentences him to death, let's hope it is based on hard evidence of what he actually did rather than on a dubious, unsupported confession.
Few will shed tears for Moussaoui, but the deeply engrained habit of taking confessions at face value is one we desperately need to break.