Wisconsin Lawyer
Vol. 80, No. 8, August 2007
DOJ Observations on False Confessions
The Wisconsin Department of Justice (DOJ) is a sponsor of the Wisconsin Criminal Justice Study Commission and several of the DOJ's officials participated in its recent study of the false confession phenomenon ("Study Suggests Causes of and Ways to Prevent False Confessions," May 2007 Wisconsin Lawyer). While the May article identifies a number of factors that may lead a person to falsely confess to a crime during law enforcement interrogation, two additional observations are in order, lest one be left with the impression that the study represents the views of the DOJ in all respects.
First, from a judicial perspective, the admissibility of a defendant's confession is determined on the basis of the totality of the circumstances surrounding the making of the confession. The presence of a factor referred to as a possible "cause" of false confessions does not automatically render a confession involuntary or not reliable. Additionally, no two defendants are exactly alike. The presence of a factor referred to as a possible "cause" of a false confession in one case does not automatically bring the reliability or accuracy of any other confession into doubt.
Second, the purpose of interrogation is to reveal the truth regarding the matter under investigation. Like defendants, no two interrogations are exactly alike, and no two law enforcement officers will interrogate a subject in precisely the same manner. Criticism of certain specific interrogation techniques, for example, the Reid technique (see Inbau, Reid, Buckley and Jayne, Criminal Interrogation and Confessions (4th ed. 2001)), has become common in some quarters. The mere use of a particular interview technique - or a combination of different techniques - does not automatically bring the reliability or accuracy of a resulting confession into doubt. Most law enforcement officers use a combination of different techniques and strategems during interrogation. The DOJ has sponsored law enforcement training sessions on interrogation techniques that we believe enhance the reliability or accuracy of confessions secured from criminal suspects.
The DOJ is mindful of the false confession phenomenon. We will continue to support reasoned and reasonable efforts to reduce the possibility of false confessions in Wisconsin criminal investigations.
Raymond P. Taffora, Deputy Attorney General, Wisconsin Department of Justice
Rising Sun at the BBE
State Bar past president Steve Levine's message in the May Wisconsin Lawyer is so fraught with outright errors, half truths, and bogus scare stories that it is hard to know where to begin. I'll begin at the beginning, based on my 11 years on the Board of Bar Examiners' (BBE) staff. I was the BBE director at the time the events Mr. Levine wrote about took place, and I am in a good position to respond.
Item: The lawyer who returned from military service in Iraq and was assessed a $50 penalty for filing his CLE report late.
Truth: At my instigation, the BBE adopted a policy when the troops were first deployed to Iraq to waive the reporting period's deadlines and accompanying fees on notice that a given lawyer/soldier was deployed. This policy was publicized extensively in the Wisconsin Lawyer. Any lawyer/soldier who did not tell the BBE he or she was being deployed would get a late-filing fee assessed (as would any late-filing lawyer), but the fee would be immediately waived when staff was informed of the deployment.
Item: The out-of-state lawyer who was denied entrance to the bar exam for failure to supply a transcript and who was denied permission to fax a transcript.
Truth: Every bar exam applicant is informed repeatedly if he or she lacks a necessary proof of eligibility to sit for the exam. One such applicant came close to being denied permission to sit, but his transcript arrived the very day of registration, and he was permitted to sit. Another applicant was denied permission to sit, but only after he had been sent repeated notices of his ineligibility. (Notices routinely are sent at four weeks, two weeks, and one week before the exam.) The BBE cannot be responsible for applicants who fail to read their mail and fail to keep their addresses updated (they are expressly instructed to do so). Faxed transcripts are never accepted, not by the BBE, not by any other bar admissions agency, nor by any institution of higher education, because such a fax can be easily faked.
Item: The out-of-state lawyer who had to retake the multistate bar exam because the lawyer most recently took the exam three years ago (beyond the BBE's limit on transferability).
Truth: More than half of the American law jurisdictions do not permit the transfer of any multistate score and require that all applicants retake the exam. Some states will accept only a concurrent score. Wisconsin lies among the most liberal of jurisdictions that permit transfer.
Mr. Levine is concerned that many BBE members are diploma privilege admittees who are somehow being "unfair" because they require others to follow the Wisconsin Supreme Court's rules and take the bar exam or be admitted on proof of practice elsewhere instead of on presentation of a diploma. First, the diploma privilege is more rigorous in Wisconsin than it was in the few other states that had it. Second, the diploma privilege is far from moribund; it has been adopted in New Hampshire as an honors program.
Mr. Levine thinks the BBE has no written procedural rules. I guess he hasn't bothered to look, just as he's never bothered to look at the applicant disclosures that he petitioned the supreme court to have the BBE make and that now fill a filing drawer awaiting being looked at by someone - anyone.
The sad thing is that Mr. Levine (and a few others) fail to grasp that the BBE's central purpose is consumer protection. It is the BBE's responsibility to weed out those applicants who the late Judge Wahl (a former BBE chair) would see as unfit to handle his mom's legal affairs. As with any regulatory agency that has the occasional duty to say "no," some people denied will try to find a reason to complain. We worked hard to ensure that when a complaint was well-founded, it was addressed fairly, quickly, and directly.
Gene R. Rankin, Madison
Wisconsin Lawyer
