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Reliability assessments as a condition for the admissibility of confessions in Tennessee.

   A. The Problematic Nature of False Confessions
   B. Calls for Reform
   C. Using Legislation to Implement Reform

   A. Miranda's Shortcomings
   B. Early Calls for Recording
   C. Incidence of False Confessions

   A. Miranda's Cover-up
   B. Evaluating Reliability: The Ofshe-Leo Test



A. The Problematic Nature of False Confessions

Despite the widespread use of video surveillance in our society--public surveillance cameras employed to detect street crime, traffic-light cameras to catch red light runners, law enforcement vehicles videotaping traffic stops, video-cameras to record depositions and witness identification lineups--the videotaping of interrogations remains largely constrained in its use and development. While police justify the expense in many criminal justice activities, they rarely record an entire interrogation. Such reticence on the part of police and prosecutors to adopt a recording requirement seems paradoxical given the overwhelming support of participants in jurisdictions that use videotaping. (1) Numerous academics, legal scholars, and researchers advocate that custodial interrogations be videotaped to open up the incommunicado context, which is typically characteristic of unrecorded interrogations, to public scrutiny. (2)

Since the emergence of DNA testing, there have been over 330 post-conviction exonerations using DNA testing in the United States, with about 25% of the cases involving false confessions and incriminating statements. (3) Throughout the last century of our country's legal history, police-induced false confessions constitute a primary cause of wrongful convictions, (4) despite the common layperson perception that innocent individuals do not falsely confess unless they suffer from mental problems or are under extreme duress. (5) Additionally, such exonerations open the door for a closer examination into the causes of wrongful convictions.

The cloaked confines of the interrogation room lead to an inherent difficulty in the ability to identify false confessions. As Leo and Ofshe point out, it is impossible to measure the frequency at which such confessions occur or how often they lead to miscarriages of justice. (6) Nevertheless, as this work will show, so many documented cases of false confessions have been revealed as a consequence of DNA exonerations that there no longer is any doubt about their incidence. (7) At the same time, as the number of exonerations involving a false confession continues to increase, so do concerns about the reliability of confession evidence.

To address the problematic issues raised by police-induced false confessions, this article argues that custodial interrogations, particularly in homicide cases, be videotaped and that courts, through their supervisory power, require a "reliability" determination separate and apart from a voluntariness determination, as a threshold to admissibility for a confession challenged on the basis of its falsity. As currently practiced, police interrogation raises the fundamental problem of unreliable fact-finding, which inescapably leads to erroneous trial outcomes. (8) If promoting truth finding is one goal of our justice system, then policy reforms must be put into place that confront and remedy the problem of inaccurate and incomplete fact-finding in the interrogation process.

The remainder of this introduction briefly examines the increase in advocacy and reform efforts in the post-DNA age. Section II discusses some of the shortcomings and limits of the mandate set forth in Miranda v. Arizona. (9) As part of that discussion, attention is directed to early calls for recording interrogations and to the problematic interplay between the interrogation process and false confessions, which has raised concerns regarding the reliability of confessions. Part II closes with a review of research studies evidencing the incidence of false confessions that result in wrongful convictions. Part III presents a treatment of Miranda's shortcomings in failing to illuminate the problem of false confessions and in sidestepping the problematic issue of "reliability" in a court's capability to detect false and/or involuntary confessions due to the lack of an objective and accurate evidentiary record. The authors then propose that a legal test regulating the admissibility of confessions include a separate determination of the reliability of the confession as a threshold for its admissibility. Finally, this article argues that a symbiotic relationship exists between videotaping interrogations and the ability to determine the reliability of a confession--that recording is a necessary prerequisite to any assessment of a confession's reliability. In so doing, the authors advocate that the Tennessee Supreme Court exercise its supervisory power and mandate courts to hold pretrial reliability hearings, apart from pretrial voluntariness hearings, and establish procedural rules for pretrial determinations of a confession's reliability based upon a sufficient showing of indicia of reliability as a threshold for a confession's admissibility.

This qualitative legal thesis involves research on the work of legal scholars and social scientists in the area of wrongful convictions based on false confessions. It seeks to update the analysis of the legal aspects of utilizing what is referred to as the "Ofshe-Leo Reliability Test," with the ultimate aim of suggesting policy reforms in rules governing criminal procedure, specifically those regulating the admissibility of confessions.

B. Calls for Reform

Currently there is no requirement that federal law enforcement agencies, such as the Federal Bureau of Investigation (FBI) and the Drug Enforcement Agency (DEA), electronically record custodial interrogations. (10) Similarly, in the author's home state, neither the Tennessee Bureau of Investigation (T.B.I.), (11) nor the Tennessee Highway Patrol, has a policy that requires the electronic recording of custodial interrogations. (12) Indeed, the T.B.I, written policy on interrogations requires only that the agent write a summary of what was said, and then have the suspect acknowledge the summary with his signature. (13)

The federal courts have not accepted the argument that the U.S. Constitution requires electronic recording of custodial interrogations as part of the Due Process Clause. (14) In United States v. Coades, the federal courts first addressed the issue of recording confessions. (15) The defendant argued on appeal that an FBI agent's testimony that the defendant confessed to the crime should have been suppressed due to the fact that it was not recorded either stenographically or electronically. (16) Rejecting the defendant's contention, the Court of Appeals for the Ninth Circuit found that the issue of an electronic recording requirement concerning confessions was a more appropriate consideration for Congress, rather than a court sitting in an appellate capacity. (17) Similarly, the Tennessee Supreme Court has held that there is no constitutional authority, state or federal, that requires that interrogations be electronically recorded. (18) While recognizing that sound policy considerations would support its adoption as a law enforcement practice, (19) the court noted that "the issue of electronically recording custodial interrogations 'is one more properly directed to the General Assembly' [of the Tennessee Legislature]." (20)

Criminal defense attorneys are well aware of the fact that appeals are only as good as the evidence corroborating the issues presented, that is, a transcript of the trial. State rules usually dictate that proceedings in criminal cases be preserved by electronic means or its equivalent. (21) For any judge involved in a contested confession case, determining exactly what transpired in the interrogation process presents a formidable challenge, especially in the absence of evidence that accurately and objectively depicts exactly what took place. And yet, in the majority of states, judges largely lack any objective record from which to make essential Miranda determinations such as voluntariness, admonition of warnings, and waiver of rights. At the same time, it would appear that a recording of an interrogation would provide the best possible evidence to ensure objectivity and document what took place in the interrogation process. (22) Such evidence would greatly assist a judge in determining whether a confession was voluntary and free from coercion, and whether there was a knowing and intelligent waiver of rights. (23) And yet, in the absence of such recording, a judge is called upon to construct, after the fact, precise details of an interrogation through witness statements about who said and did what to whom. (24)

Where a judge is left to speculate about what transpired in the cloaked confines of the interrogation room, where police are largely able to control and structure the "totality of the circumstances," (25) it is no secret that the defendant will rarely prevail when a confession is in evidence. (26) The entire set of rules governing the interaction between police and the suspect thus seems to rest on a house of cards whose major weakness inheres in the premise that a court can accurately determine what took place in the interrogation process. (27)

Despite the increase in advocacy supporting recording requirements, (28) just fifteen states and the District of Columbia have enacted legislation implementing such requirements. (29) State supreme courts have judicially imposed recording in seven states. (30) Although progress on this issue has been somewhat tentative, if measured by the number of states implementing a recording requirement over the last thirty years, since first mandated by the Alaska Supreme Court in Stephan v. State, there is room for optimism in that reform efforts seem to be ongoing. (31) Legislative initiatives to mandate recording are likely to provide the most success in mandating the practice because about half of state high courts have either rejected the notion that state constitutional due process requires electronic recording of interrogations or have declined to exercise their supervisory power to impose such a rule. (32)

Notwithstanding such extensive rejection by the courts on constitutional or supervisory grounds, some of those same courts have expressed a preference for recording interrogation in dicta, despite refusing to mandate it. (33) In State v. Godsey, (34) the Tennessee Supreme Court rejected the argument that recording interrogations was required under either the state or federal constitutions, but did go on to note that such recording would reduce court time in resolving disputes over what transpired in the interrogation process and that sound policy considerations would support its adoption as a law enforcement practice. (35) Thus, while a number of courts have refused to impose a recording mandate, there has been open acknowledgment of support by them for recording policies. However, because of the unwillingness of courts to impose recording by judicial fiat, perhaps out of a conscious respect of the limits of judicial authority or out of a reluctance to encroach on the traditional control of the legislative branch over police procedures and criminal justice administration, it is likely that future reform will reside with state legislatures.

The courts' deference to legislatures may prove to be the preferred path to recording dictates as legislation can be tailored in a more uniform and comprehensive fashion to address a number of problematic issues that court mandates may fail to address. (36) Such issues that must be spelled out in detail include: the method of recording to use, when to begin and end the recording, who gets recorded, what "custodial interrogation" encompasses to necessitate recording, the consequences for the failure to record, and the circumstances in which a failure to record will be excused or justified. (37) Indeed, in some of the first cases on recording, Alaska and Minnesota court mandates failed to enumerate exceptions to recording, which caused later problems and necessitated subsequent judicial review to recognize certain exceptions.

The Massachusetts Supreme Court, in its refusal to mandate a recording requirement that excludes unrecorded interrogations, opted for a rule that allows the defendant to request a jury instruction that cautions jurors to scrutinize unrecorded statements with care. (39) Though the court's approach to allow for a jury instruction has been criticized as having little effect in discovering improper police tactics, (40) the court itself noted that a court-ordered recording mandate would present a number of issues ripe for future litigation. (41) Court mandates, typically constructed and phrased in general mandatory terms, fail to address funding issues and other practical problems such as training of video operators, camera replacement, the location where such a requirement applies, guidelines for dealing with deaf suspects, and specifying what exceptions will be a valid excuse for not recording an interrogation. (42) Legislative action is more appropriately situated to deal effectively with the day-to-day exigencies that accompany a recording mandate. (43)

C. Using Legislation to Implement Reform

Using legislation to implement a recording policy also opens up the decision-making process to public input, as well as to public scrutiny. Indeed, the input of key stakeholders, such as prosecutors, criminal defense attorneys, and law enforcement is crucial to inform legislators in shaping recording legislation. Likewise, it is incumbent upon researchers to conduct empirical studies on recording practices to inform policy makers regarding the costs and benefits of recording. Such research to date has been rather scant. Academic and legal articles have tended to re-circulate the early seminal findings of William Geller's research. (44) His work, though preliminary in nature, surveyed criminal justice participants in jurisdictions and agencies where interrogations were routinely videotaped, gauging police, prosecutor and, to a lesser extent, defense attorney attimdes on the pros and cons of taping. Geller's study evidenced the fact that 97% of police agencies that utilized videotaping of interrogations found such videotaping useful and, given their experience with it, would do it again. (45)

More recently, Thomas Sullivan, who co-chaired Illinois Governor George Ryan's Commission on Capital Punishment and later chaired the Capital Punishment Reform Study Committee, has become the pivot man for advocates of recording reform. His published research has focused on identifying and evaluating the experiences of both law enforcement and prosecutors in jurisdictions where agencies employed electronic recording of interrogations, (46) and has served as a wellspring of advocacy for recording directives. (47) Like Geller's, Sullivan's work, although largely anecdotal, attempts to gauge the attitudes of police, prosecutors, and to a lesser extent, defense attorneys, toward electronic recording of interrogations in agencies and jurisdictions that have adopted recording. Both Geller's and Sullivan's watershed surveys have gone far in dispelling concerns that electronically recording interrogations will negatively impact criminal investigations and prove too costly to implement.

Geller's and Sullivan's research is important in that the information and insight it provides can be used to inform legislators on a variety of salient issues regarding recording, as well as on the attitudes of those who are stakeholders in the criminal process and have experience with recording policies. However, while Geller's research serves as a gauge of the attitudes and perceptions of police and prosecutors toward recording, it has been criticized as being limited in scope and methodology. (48) Sullivan's informal survey of 238 law enforcement agencies in thirty-eight states that taped their interrogation process, which he noted was not a scientific survey, (49) suffers from the same methodological shortcomings as Geller's in its failure to use empirical survey methods.

Nevertheless, again, while largely anecdotal in form, each researcher's work is important in providing descriptive input from participants using electronic recording in interrogation settings and in identifying the issues and concerns that need to be addressed in any recording policy implementation. Their conclusions reflect an overwhelming consensus by participants that recording serves to benefit the criminal justice system as a whole and, more particularly, those who are engaged in its use on a regular basis. (50)


A. Miranda's Shortcomings

An ever-present characteristic of almost all interrogations of suspects is that they take place incommunicado and entirely closed to outside scrutiny. (51) Interrogation manuals typically emphasize the psychological advantages for police when questioning takes place in isolation. (52) Some scholars feared that opening the interrogation process to public scrutiny would impede the police's ability to obtain confessions. (53) At the same time, there has been skepticism of interrogators' capacity to regulate and control their own interrogation methods and of the courts' ability to reliably determine which tactics result in false confessions by suspects questioned in secrecy. (54)

Prior to the landmark Miranda (55) decision, concerns had been raised that any Miranda-like warnings would be insufficient to adequately protect suspects against the high-pressure, duress-inducing techniques inherent in the secret confines of an interrogation room. (56) Relying on a study that found that the way police shape the administration of a warning can reduce its effectiveness, legal scholar Yale Kamisar opined that only an electronic recording of the interrogation, including admonitions, could enforce the proper administration of rights. (57)

Even the Miranda Court, which recognized the "evils" of incommunicado interrogation (58) by mandating the administration of warnings--including the right to remain silent and to have the presence of an attorney during interrogation--realized that secrecy in the process did nothing to illuminate knowledge of what actually transpired in the interrogation room. (59) However, despite the Court's recognition of this problem, the Miranda mandate did little to close this "knowledge gap" (60) and has, in practice, offered dubious protection against police eliciting false or unreliable confessions from suspects, or their submission into evidence. (61) This may very well be a consequence of the fact that most suspects waive their Miranda rights. (62) Once a waiver is obtained, the supposed buffer and protections afforded by the Miranda admonitions largely dissipate in response to deception, manipulation, and interrogation methods on the part of interrogators. (63)

In essence, with the dictates of Miranda satisfied, a degree of judicial myopia arises regarding any voluntariness issue, with courts reluctant to find a confession "involuntary." (64) For all intents and purposes, compliance with Miranda "lulls judges into admitting confessions with little inquiry into voluntariness," (65) or into whether the confession is, in fact, reliable. (66) Some five decades post-Miranda, our criminal courts are still bogged down in litigation over whether Miranda's dictates have been met and whether a suspect knowingly and voluntarily waived his rights. Such a time-consuming and resource-draining process is perhaps the result of the Miranda Court's failure to address and to implement a requirement that interrogations, including the admonitions and any waiver, be electronically recorded. (67)

Though Miranda went far in attempting to protect the privilege against self-incrimination, (68) it did not go far enough in confronting various forms of psychological pressure. (69) There has been little systemic reform of the interrogation process since the Miranda decision, notwithstanding the concerns raised by commentators, legal scholars, and social scientists over the fundamental fairness of our legal system that has evidenced a frequency of wrongful convictions and, more recently, numerous false confessions. (70)

B. Early Calls for Recording

One of the earliest calls for recording came from Yale Law professor, Edward Borchard, in his 1932 study of wrongful convictions. (71) Raising a rather novel point, he asserted that factually innocent people can be wrongfully convicted as a result of the physical and psychological methods employed by police in interrogations. (72) Borchard recognized that such confessions not only violated a suspect's self-incrimination rights, but also produced unreliable confessions. (73) His remedy was to require a contemporaneous "phonographic" record of the questioning that, by itself, would serve as evidence of the total context of the interrogation and that would ensure that the suspect's rights were protected. (74) In 1934, Roscoe Pound raised similar doubts about police behavior in interrogations and concurred with Borchard in advocating for a procedure to accurately document what took place during the interrogation for use as evidence in court. (75) Despite such early calls for reform, courts continued to face the issue of conflicting testimonial accounts regarding what took place in the interrogation room.

One of the earliest formal associations to recognize and decry brutal, "third degree" police interrogation tactics leading to questionable confessions was the Wickersham Commission. (76) It recognized the inherent nature of such tactics within the secrecy of the interrogation setting, and the problem--among others--of false confessions. (77) The Commission called for the creation of a contemporaneous record of police interrogations. (78) Such a record would not only provide "dependable information" of what took place, but presumably would rein in such police abuses by allowing both the public and press access to it. (79) Unfortunately, these cries for re form had little effect and not until some three decades later did the nascence of any true reform effort arise.

Leading the charge was former criminal investigator, Charles O'Hara, who in a 1954 investigation manual recognized that electronic recordings could not only provide accuracy in reflecting what transpired in the interview, but could also benefit police. (80) Not only did recording provide for a smoother interview, it also aided in securing voluntary confessions and protecting police from allegations of wrongdoing. (81) In a later work, O'Hara noted that the ideal solution would be an audio-video combination to record the interview. (82) O'Hara's recognition of the benefits that electronic recording could hold for police was certainly foresighted given the still secretive nature and context of the era's interrogation process. It was not until some thirty-five years later that William Geller would unfold his findings on many of the same points. (83)

In the interim, the American Law Institute in 1975 drafted a Model Code that required law enforcement officers to make audio recordings of all custodial interrogations. (84) Recognizing the inherent problem of the inevitable "swearing contest" between officer and suspect where no recording was made, the Institute's draft was intended to allow a court to make a determination of what took place in the interrogation from an objective and accurate recording. (85) Further, the Model Code established a framework and guideline for police departments to development plans and procedures for recording interrogations, (86) as well as providing a remedy (suppression) for the failure to record. (87)

Apart from the progressive views on recording espoused by early advocates, opposition to recording is still raised by law enforcement and prosecutors, at least in agencies, jurisdictions, and states where it is neither mandated nor voluntarily implemented. (88) Even where there is discretionary use of recording by a police department, the likelihood is that any recording will cover only the final confession, or "recap." rather than the entire inter view that precedes it. (89) In effect, it does little to provide suspects protection against police overbearing or from false confessions. (90) However, it may be that such opposition is an outgrowth of engrained attitudes existing before the post-DNA age, which has evidenced the fact that false confessions are a leading cause of wrongful convictions. (91)

In 1989, the first innocent person cleared by DNA technology was exonerated. (92) His exoneration was significant in that it opened a new inquiry into the largely unexamined and understudied area of wrongful convictions based on false confessions. Since that time, legal scholars, academics, and social scientists have extensively documented the incidence of false confessions. (93) Such examination has also led to a closer analysis of the interrogation methods employed by police, as well as the interrogation process itself, in contributing to the problem of false confessions. (94)

Despite the increased attention of academics and social scientists to the problematic nature of the interplay between the interrogation process and false confessions, we are still in the nascent stage of implementing a solution to the problem. In a sense, recent, empirically based research has filled in many pieces of the puzzle as to why innocent people get wrongfully convicted. At the same time, it is debatable how far we have come beyond Borchard's insight and suggested remedies. Notwithstanding Miranda, our criminal legal process is still bedeviled by court determinations of "voluntariness," claims of police coercion, adequacy of rights admonitions and waivers, and the reliability of confessions. In the absence of a videotape of the entire interrogation, courts are placed in the untenable position of having to resolve such issues largely on the basis of conflicting testimony between suspect and interrogator. (95) The consequence of not being able to pierce the secrecy of the interrogation room is that courts have been thwarted in their ability to rely on objective evidence in detecting involuntary confessions and in detecting false confessions. However, as the music sage Bob Dylan once sang: "you don't need a weatherman to know which way the wind blows." (96) A chill wind now appears to be blowing on opponents of change, largely the result of studies evidencing the incidence of false confessions.

DNA testing and its application to the criminal investigation process and, more particularly, to the post-conviction review stage, is generating an increased recognition of the fact that innocent people do get wrongfully convicted. (97) To be sure, the incidence of false confessions is a problem that can no longer be disregarded as a rare anomaly in our system of justice. (98)

C. Incidence of False Confessions

One of the major events of the 1990's was the emergence of DNA testing and its application to the criminal justice system, primarily in post-conviction cases. (99) It has established factual innocence, in contrast to procedural innocence. (100) DNA exonerations are conclusive and beyond doubt. (101) They have provided a wedge for researchers and scholars to open the justice system to expose the fact of wrongful convictions and have allowed for the attention of researchers to be directed at examining the causes of miscarriages of justice. (102)

It is extremely difficult to measure the incidence of false confessions due to the fact that not all errors of conviction are subjected to DNA analysis in post-conviction reviews. (103) It may be the case that no biological evidence was recovered in the investigation, or that biological evidence, upon which the defendant claims innocence, has been lost or destroyed after conviction. (104) Moreover, as researchers Richard Leo and Richard Ofshe point out, calculating the incidence of false convictions is not possible because of the lack of records kept on the frequency of interrogations and confessions and because many false confession cases are not picked up and tracked by either media or researchers. (105)

It is evident from studies documenting the incidence of false confessions using DNA technology that psychologically-induced false confessions are more prevalent than previously believed and occur with distressing frequency. (106) Over the last fifteen years the Innocence Project, led by co-founders Barry Scheck and Peter Neufeld at New York City's Cardozo Law School, has documented over 420 post-conviction DNA exonerations in the United States, with more than 340 exonerations coming since 2000. (107) They estimate that approximately 25% of the wrongful convictions overturned by DNA testing were the result of some form of false confession. (108) Moreover, those numbers will likely continue to grow given the fact that the rate of exonerations has increased markedly since 2000. (109)

What is particularly troubling is that false confessions seem to be concentrated among murder cases, especially capital cases. (110) A study of 125 documented "proven false confession" cases indicated that 81% of the false confessions occurred in murder cases. (111) Another study, which examined exonerations in the United States from 1989 through 2003, revealed that 80% of the false confessions documented in the study involved murder. (112) Overall, the comprehensive study found 340 exonerations, 144 of which were cleared by DNA evidence during that time period. (113) Put more simply, one scholar on erroneous convictions remarked: "[F]alse confessions are three to four times more common as a cause of miscarriages of justice for homicide cases than for other crimes. (114)

In effect, the frequency of false confessions in murder cases casts a dark shadow on our legal system, which prides itself on legal challenges to convictions for the purpose of ferreting out and correcting wrongful convictions. But what is so disturbing is that, with our system of review, re searchers have been able to document the fact that hundreds of individuals have been wrongly convicted of capital crimes in the modern era. (115) Specifically, Hugo Bedau and Michael Radelet's seminal study set the threshold for research of wrongful convictions in capital or potentially capital cases in the U.S. from 1900 to 1985. (116) Their primary aim was to facilitate a "better understanding of the miscarriages of justice" that have occurred in in these type cases over the last century. (117) Their results revealed the disconcerting fact that 350 innocent people had been wrongfully convicted. (118) Of that number, forty-nine were the result of false confessions. (119) Moreover, within the span of five years, their conviction figure had increased to 416. (120) The truly tragic, as well as frightening, aspect of these findings is that we will never know the number of wrongfully convicted persons who were executed or died while serving their sentence. However, the one glimmer of light in this research is that there is now more attention directed to the causes of such miscarriages of justice and to developing techniques for the purpose of hopefully preventing such injustices. (121) Such research is also providing us with an idea of what we, as researchers, are neglecting.

While the Miranda Court assailed interrogation tactics utilized by police, (122) it stopped short of an outright prohibition of such methods. (123) The result is that police have diminished the intended effects of Miranda--buttressing self-incrimination protections--by increasingly refining their interrogation techniques in more subtle fashions with the aim of maximizing psychological pressure on suspects and, at the same time, minimizing the appearance of overt manipulation. (124) As some have posited, Miranda has fallen short of its promise and has failed to deliver "even a fraction of what it seem[ed] to promise." (125) This assertion is particularly true in regard to the problem of false confessions.

Certainly, the interrogation methods have largely adjusted to the dictates of Miranda. (126) Yet, the confession rate of suspects has not significantly changed post-Miranda. (127) Indeed, little has changed in the behavior of police in the interrogation process except for the sophistication of the interrogators. (128) Ironically, the ingrained immutability of police behavior in using psychological pressure on

suspects in interrogation settings is reflected in the fact that the "bible" of interrogation tactics, which the Miranda Court criticized almost fifty years ago, is now in its fifth edition without substantial modification. (129) Although discussing for the first time the problem of false confessions, this edition of the manual continues to minimize the possibility that its methods are prone to cause an innocent person to confess. (130) The result is that erroneous confessions, long thought only to arise as a consequence of physical coercion, continue to remain a persistent problem as an outgrowth of police tactics that can increase the probability of false confessions. (131) Preventing police-induced confessions and the miscarriages of justice they produce will necessitate substantive changes that not only open the dungeon door, but also shine a light of transparency on what takes place in the interrogation process.

It is clear that videotaping custodial interrogations would go far in opening the process to review by providing courts with an accurate and complete means of objectively deciphering the facts. (132) Such videotaping, as a precondition, would set the stage for reinvigorating the early intent of Miranda by refining the current standards for determining the admissibility of confessions. Specifically, as is proposed in the next section, there must be a strengthening of the criterion for admissibility by expanding the current focus on voluntariness to looking at the "reliability" aspect of a confession. Thus, a threshold determination of the reliability of the confession would strengthen the position of the trial judge as a gatekeeper of unreliable evidence.


Miranda has not proven to be a remedy regarding the vexing problem that continues to confront our adversarial system of criminal justice. (133) It has not only failed to stem the tide of false confessions, but has also proven unsuccessful in forcing the interrogation room open in order to provide a more objective record for adjudicating the "swearing contest" between officer and suspect. (134) And such neglect has continued to have an impact on the judiciary's ability to determine the voluntariness of a suspect's confession. Legal scholar Christopher Slobogin has gone a bit further in his criticism of Miranda by calling it "a hoax." (135) With a bit more theatrical flourish, Professor Paul Cassell refers to defenders of Miranda as living "The Grand Illusion." (136)

A. Miranda's Cover-up

Miranda critics point to the fact that the interrogation process has been impacted little and that there has been no diminution in suspect confessions as a result of its dictates. (137) Moreover, a surprising majority of suspects waive their rights. (138) Once a valid waiver is obtained from a suspect, Miranda recedes in importance in regard to both the process and outcome of the interrogation. (139) As Chief Justice Rehnquist noted in Dickerson v. United States, Miranda can actually restrict a defendant's means to constitutionally challenge the admissibility of his confession due to the fact that once admonitions are given and a valid waiver is secured, any colorable claim of compulsion would be rare. (140) Thus, once the police have properly informed a suspect of his rights and the suspect waives them, Miranda has the effect of giving little weight or scrutiny to subsequent interrogation practices. (141) Among others, Slobogin has argued that there is only one material fact in the interrogation practice that has real meaning or importance for both police and the courts: the proper admonition and waiver of warnings. (142) And, as previously noted, the entire warnings and waiver scenario rests on police representations of what transpired in the secrecy of the interrogation room. (143)

After a valid waiver has taken place, courts are often called upon to decide whether a confession was involuntary and a result of coercion. (144) If so, its admission into evidence violates the defendant's due process rights. (145) The state has the burden of establishing the voluntariness of confession. (146) The due process standard regarding admissibility of a confession eventually centers on the issue of whether the pressures and methods of the interrogation were such as to overbear the suspect's will to resist, with the result that the confession was not freely self-determined by the suspect. (147)

Preceding Miranda, the United States Supreme Court reversed the convictions of three black tenant farmers accused of murdering a white farmer after police whipped and tortured them until they gave a detailed confession. (148) The Court held that the admission of the confessions constituted a violation of the Fourteenth Amendment's Due Process Clause. (149) In essence, the Court established a "voluntariness" standard for determining the admissibility of confessions in state cases. (150) Under this approach, courts would employ a "totality of the circumstances" test to determine voluntariness. (151) Courts would look at the suspect's age, education, and mental and physical condition. (152) Also, courts would examine the circumstances of the interrogation, including police conduct. (153) The amount of coercion necessary to meet the involuntary standard could vary from context to context because it takes into account both a suspect's personal attributes and any external pressures exerted by the interrogation environment or police behavior. (154)

Initially, the reasoning of the Court seemed to be that an involuntary confession was less trustworthy. However, in the subsequent case of Lisenba v. California, the Court clarified the parameters of trustworthiness by holding that it was not the only consideration in assessing voluntariness. (155) As the Court pointed out, "The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence whether true or false." (156) Thereafter, in later confession cases, the Supreme Court seemed to shift once again in its rationale of what constituted involuntariness, by deciding that confessions secured by unfair police methods could be involuntary despite their truthfulness. (157)

As decisions were handed down on the due process voluntariness standard, it appeared the Court was espousing three different and somewhat conflicting rationales for assessing a confession's voluntariness. (158) While the Court's initial motive was to promote reliability in the trial process by excluding confessions on the basis that they were untrustworthy due to police coercion or overbearing influence, (159) it then shifted its rationale by endorsing the position that only confessions that were yielded by a free and independent will should be admitted into evidence. (160) Ultimately, the Court enunciated another basis for the voluntariness inquiry: that confessions resulting from unfair police interrogation methods be excluded as a deterrent to such offensive behavior, regardless of the voluntariness or trustworthiness of the confession. (161) Thus, the Court shied away from looking to the reliability of a suspect's confession as a relevant consideration in determining its voluntariness. (162)

As the Court's interpretation of the due process voluntariness test evolved in the mid-twentieth century, it became apparent that the Court had recognized that a false or unreliable confession could, at least logically, be considered voluntary and thus admissible against the defendant. (163) In Rogers v. Richmond, the Court held that the standard for the admissibility of a confession was whether the police methods and conduct were "such as to overbear petitioner's will to resist and bring about confessions not freely self-determined--a question to be answered with complete disregard of whether or not [the] petitioner in fact spoke the truth." (164) This emphasis became the primary consideration of the due process voluntariness test and would hold important ramifications for the justice process in regard to wrongful convictions based on false confessions.

The enigmatic character of the Court's perplexing approach to voluntariness is perhaps best illustrated by the case of Colorado v. Connelly, where the Court held that a mentally ill person freely, and unsolicited by the officer, confessed to murder because of commands he was receiving from God. (165) The Court held that his confession was voluntary, regardless of any indicia of trustworthiness, due to the fact that there was no coercion by the officer. (166) The Court further clarified that the issue of the reliability of the defendant's statement held no importance in determining its constitutional voluntariness. (167) Rather, it was a matter best reserved for and answered by "the evidentiary laws of the forum ... not by the Due Process Clause of the Fourteenth Amendment." (168)

In Miranda v. Arizona, one of the most widely known cases ever decided by the Supreme Court in the area of criminal procedure, the Court enunciated a rule intended to counteract the inherently compelling pressures of the interrogation setting that could overwhelm a suspect's free will in giving a confession. (169) In so doing, the Court pointed out that these compelling pressures of modern interrogation techniques presented the threat of weakening a suspect's rational decision-making ability by "trad[ing] on the weakness of individuals." (170) Indeed, this was a consequence that stemmed from the secretive environment in which interrogations were conducted, as well as the psychological pressures and stresses to confess. (171)

In light of these considerations, the Miranda Court extended the Fifth Amendment right against self-incrimination by making it applicable to custodial interrogations. (172) Additionally, the Court enumerated certain safeguards it felt were vital to protecting a suspect's rights. (173) Among those were the rights to remain silent and to have the presence of counsel prior to any questioning. (174) The Court felt that the awareness of such rights would enlighten individuals in deciding whether to waive or invoke those rights. (175) Furthermore, the burden of showing that a suspect voluntarily, knowingly, and intelligently waived these rights was on the state. (176) In effect, no statement by a suspect could be used in court unless the prosecution demonstrated compliance with the procedural safeguards effective in protecting a suspect's right against self-incrimination. (177) Thus, in the absence of such a showing, any statements from a suspect were presumed to be coerced and therefore not admissible as a matter of law. (178) Even though subsequent decisions have moderated Miranda's importance, (179) it should be noted that involuntary statements are not admissible in any trial context. (180)

By way of comparison, Tennessee courts have largely followed the United States Supreme Court's interrogation and confession decisions. (181) While Tennessee courts do utilize the voluntariness test in determining the admissibility of confessions, the voluntariness test for confessions as provided under Article I, section 9 of the Tennessee Constitution is considered broader and more protective of individual rights than the voluntariness test under the Fifth Amendment. (182) Yet, at the same time, the Tennessee Supreme Court has not recognized any authority that requires electronic recording of interrogations. (183)

Although the Supreme Court has since recognized that one of the purposes of Miranda is to exclude unreliable statements, (184) a number of scholars and researchers of wrongful convictions view Miranda as offering few or no safeguards against the eliciting of false or unreliable confessions or their use at trial. (185) Importantly, the Court's dictate of proper admonitions and informed, intelligent waivers were intended to protect the rational and voluntary decision-making of suspects in the interrogation setting. (186) However, regardless of such good intentions, Miranda had the consequence of shifting judges' admissibility determinations from the voluntariness of a confession to the voluntariness of a suspect's waiver. (187) In essence, the decision has provided judges with a facade of objectivity by framing a seemingly objective and consistent rule for determining the admissibility of confessions: if there was compliance with Miranda and a valid waiver given, then the confession was voluntary and admissible. (188) Interestingly, research into documented cases of false confessions reveals that in the vast majority of such instances, innocent suspects either explicitly or implicitly waived their Miranda rights. (189)

Perhaps the most pernicious failing of Miranda is that the entire admonitions and waivers framework relies on the interrogators' definition and construction of what transpired inside the interrogation room. (190) As Stephen Schulhofer has meaningfully argued, the Miranda Court itself acknowledged the problem of secrecy surrounding interrogations, but did nothing to lessen the pitfalls of the "swearing contest" in court. (191) By failing to require objective evidence, such as videotapes, to substantiate the fact of proper warnings and valid waivers, courts have effectively ceded judicial control of the interrogation process to police. Thus the vicious cycle of secrecy and control of the interrogation process continues, setting in motion a nearly irrefutable presumption of guilt, and burdening judges with a lack of objective, reliable evidence as to precisely what was said and done during secret questioning.

One way for the courts to recapture the regulation of the interrogation process and, as a by-product, to make objective, reliable findings regarding the admissibility of confessions is to go beyond the sole focus on voluntariness. Courts must re-focus on the "reliability" inquiry. The reality of wrongful convictions based on false convictions shows that we cannot know definitively when a confession is untruthful and should certainly provide an impetus for per se rules governing police behavior, interrogation methods, and suspect characteristics that lead to untruthful statements. Courts grappling with the issue of false convictions can lean on the research of scholars in the wrongful conviction debate. Such research can lend insights into the police methods most likely to induce false confessions, as well as the types of individuals most likely to be induced to falsely confess. (192)

Current rules of criminal procedure are myopic in their sole focus on the adequacy of Miranda warnings and the voluntariness of a suspect's incriminatory statements. Having made a determination that a confession was voluntary, a court fails to go further in evaluating the formation of a confession narrative, essentially bypassing any inquiry into its reliability. Existing procedural rules thus fundamentally undergird dangers of contamination by accepting police averments of a suspect's "inside knowledge" of a crime without gauging whether a suspect's rendition of facts was truly volunteered or was the product of contamination. The facade of judicial objectivity in determining the admissibility of confessions therefore continues, despite a lack of any objective evidence as to what truly took place between police and suspect during the interrogation.

The use of videotapes to capture the entire interrogation would go far in solving the problem. Videotaping interrogations should be a necessary condition for interpreting and assessing the reliability of a confession. A complete, objective record of the interrogation would open up the possibility for a meaningful reliability inquiry and could go far in confronting the vexing issue of confession contamination by disclosing the "inside" of the interrogation, rather than relying on a "constructed" police version of what transpired. (193) As noted previously, absent a complete videotape of the interrogation, a judge is faced with having to reconstruct what happened on the basis of a "swearing contest" between the police and the suspect, relying largely on subjective credibility judgments. A comprehensive and reviewable record of the events would empower courts with the ability to both assess reliability and to address the problem of contamination through objective evidence of key facts. (194) Simply stated, if an interrogation is not taped, an objective assessment of the reliability of a confession can never come about. Additionally, videotaping interrogations is a prerequisite to any meaningful assessment of the reliability of a suspect's confession. This work explores the latter issue in the remainder of this section.

B. Evaluating Reliability: The Ofshe-Leo Test

Our criminal procedure largely avoids evidence of unreliability in confessions in favor of its preoccupation with whether Miranda has been met and whether there has been no coercion. Despite this, studies documenting the existence of false confessions, which are more prevalent than previously thought, are forcing the justice system to address how to go about screening out false confessions. (195) Researchers, social scientists, and legal scholars have called for courts to shift the focus from voluntariness to include assessments of confession reliability. (196) Indeed, in what some regard as "prescient, wide-ranging, insightful, and ahead of its time," (197) a 1984 student comment written by Corey Ayling addressed what he referred to as "the problem of physically uncoerced false confessions," (198) and argued against the then prevailing view that only "freaks" made uncoerced untruthful confessions. (199) Looking to the existing social science literature, he posited that false confessions were not a rarity and called for the implementation of legal safeguards. (200) Of course, since Ayling's comment, there have been numerous empirical studies documenting the incidence of false confessions, (201) as well as the mechanisms of interrogations leading to such. (202)

A number of legal scholars and researchers have called upon courts to appraise the reliability of the entire structure and process of interrogations rather than restricting their focus on the issue of voluntariness. (203) Specifically, Leo and Ofshe argue that courts should conduct reliability determinations of a suspect's confession by gauging "the fit between a postadmission narrative and the crime facts" in order to see whether the narrative evidences the presence or absence of guilty knowledge and whether such knowledge can be corroborated (or disproved) by objective, independent evidence. (204) Leo et al., in expanding upon and refining Leo and Ofshe's standard for evaluating the reliability of suspects' statements, advocate that courts hold pre-trial reliability hearings, apart from the voluntariness determination, and employ the standard that evidence have sufficient indicia of reliability as a threshold to a confession's admissibility. (205) Their test goes further in that it distinguishes the indicia of reliability in recognizing reliable from unreliable confessions and is consistent with the emphasis on admitting only relevant and reliable evidence at trial. (206) The work of these scholars provides the foundation and structure of the discussion that follows.

In a 1997 article, Ofshe and Leo reviewed interrogation transcripts and interviews from more than 125 cases of contested interrogations between 1987 and 1997. (207) They found that the individuals who were classified as false confessors were almost entirely composed of persons who were either proven innocent prior to being tried, found not guilty at trial, or found guilty at trial and later proven innocent. (208) Although, as they point out, "false confessions might seem unlikely, irrational, and perhaps so rare as to be exotic," (209) their work empirically describes and analyzes the process of interrogations and goes far in explicating why false confessions, like truthful ones, are rational responses to the methods and manipulation strategies and tactics employed by police during interrogation. (210) One of their findings was that poor training and negligence on the part of police both induce and allow false confessions to happen--that police are not trained to avoid inducing them or to detect their different forms and distinguishing characteristics. (211) Importantly, interrogators largely fail to appreciate how their methods influence an innocent individual to falsely confess. (212) Ofshe and Leo have contended that the reliability of a suspect's confession can be assessed by gauging the correspondence (fit), or the lack thereof, between the suspect's descriptions in his post-admission narrative and the crime facts in order to ascertain whether or not the narrative discloses the existence of guilty knowledge and whether or not it is corroborated by objective evidence. (213) A mere general admission--in the absence of additional indications of reliability provided by the "fit" between the suspect's description of the crime, the facts, and/or independent evidence derived from the confession statement--is not a particularly strong indicator of guilt. (214) A guilty suspect's version of the crime will likely reveal personal, nonpublic knowledge of the facts of the crime, which can oftentimes lead investigators to new evidence and shed light on aberrant or unusual aspects of the crime. (215) On the other hand, an innocent suspect will not possess such intricate, thorough knowledge of the details of the crime unless the suspect had prior knowledge learned from media accounts, community gossip, as an innocent bystander during the commission of the crime, or from the police "contaminating" the suspect through leaks of information. (216) Assuming none of these factors exist: "[t]he only time an innocent person will contribute correct information is when he makes an unlucky guess." (217) It is somewhat ironic, as the authors note, that guilty suspects can evidence knowledge of a crime, but innocent suspects can never prove their ignorance of such. (218)

Leo and Ofshe set out a framework for analyzing the correspondence or "fit" between a suspect's narrative, the crime facts, and the objective evidence in the case. (219) They provide the following indicia of reliability as a standard for measuring a statement's reliability:

   There are at least three indicia of reliability that can be
   evaluated to reach a conclusion about the trustworthiness
   of a confession. Does the statement: (1) lead to the discovery
   of evidence unknown to the police? (e.g., location of a
   missing weapon that can be proven to have been used in
   the crime, location of missing loot that can be proven to
   have been taken from the crime scene, etc.); (2) include
   identification of highly unusual elements of the crime that
   have not been made public? (e.g., an unlikely method of
   killing, mutilation of a certain type, use of a particular device
   to silence the victim, etc.); or (3) include an accurate
   description of the mundane details of the crime scene
   which are not easily guessed and have not been reported
   publicly? (e.g., how the victim was clothed, disarray of
   certain furniture pieces, presence or absence of particular
   objects at the crime scene, etc.). (220)

Perhaps the one drawback of the Ofshe-Leo reliability "fit" test is their insistence on some "minimum standard of reliability" for admissibility, without their clarifying in a more definitive manner how the minimum standard would be clearly met. (221) To their credit, they see the necessity of having an objective record of the entire interrogation, such as videotape, which would prevent the inevitable "swearing contest" and go far in enabling a meaningful reliability assessment. (222) Indeed, some have argued that the state should have a higher burden to meet for a confession's admissibility in the absence of a recording. (223)

Leo et al. have refined the "fit" test in a manner that more particularly delineates the indicia of reliability. (224) Although they suggest different burdens of proof be met depending on whether or not the interrogation was electronically recorded, the focus herein will be on confessions that were the product of a recorded interrogation. (225) Such a recording would assist judges in determining whether police contamination took place and in revealing whether the suspect accessed knowledge of any important crime facts that had been released to the public through media avenues. (226)

The refined reliability test maintains that judges should weigh three factors in a reliability determination:

1) whether the confession contains nonpublic information that can be independently verified, would only be known by the true perpetrator or an accomplice, and cannot likely be guessed by chance; 2) whether the suspect's confession led the police to new evidence about the crime; and 3) whether the suspect's postadmission narrative "fits" (or fails to fit) with the crime facts and existing objective evidence. (227)

Challenges to admissibility should be made by motion, suggesting that they be styled as motions in limine under local rules tracking Rule 403 of the Federal Rules of Evidence. (228) The Tennessee rule, adopted verbatim from Federal Rule 403, reads as follows: "[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." (229) The rule allows a judge the inherent authority to exclude relevant evidence on the principle that some evidence, although relevant, ought not be admitted if doing so would vitiate the more important values of saving time or preserving the integrity of the fact finding process. (230) Put more simply, the rule allows a judge to exclude relevant evidence if the probative value of that evidence is substantially outweighed by the dangers of an unfair trial or inefficient judicial process. (231) Furthermore, the rule is to be considered only subsequent to evidence that has been determined to be relevant. (232)

When excluding evidence for one of the reasons listed in Rule 403, the judge must determine whether the prejudicial effect "substantially" outweighs the probative value of the evidence. (233) However, the tenn is not defined in the rules. As a result, it is undoubtedly elastic in its range, and in applying that standard, the judge exercises broad discretion.

Therefore, even if a suspect's confession falls short in meeting one or more of the factors in the reliability test, it is relevant under evidentiary rules. (234) At the same time, it may not be especially probative of a suspect's guilt. (235) Nevertheless, if a suspect's false confession is introduced at trial, it is highly probable to result in a wrongful conviction due to the fact that juries tend to view confession evidence as dispositive of guilt, even when it is untruthful. (236) As the U.S. Supreme Court has aptly noted: "[a] confession is like no other evidence," (237) potently prejudicial in its power to influence jurors to wrongfully convict an innocent defendant. (238) Sadly, the justice system seems to lack preventive measures designed to inhibit juries from assigning disproportionate weight to such confessions. (239)

Leo et al. suggest that any reliability hearing be conducted separate and apart from a suppression motion dealing with involuntariness contentions. (240) Their rationale is rather straightforward: whether a confession is true or not is not relevant to the issue of whether it was voluntarily given. (241) They go on to suggest that reliability assessments be conducted only after voluntariness detenninations, due to the fact that reliability assessments could pour-over and bias voluntariness determinations in cases where reliability was previously found. (242)

The initial burden going forward lies with the defendant, who must proffer sufficient evidence showing that the confession is unreliable, predicated upon the tripartite "fit" test previously discussed. (243) However, the ultimate burden falls on the prosecutor. (244) Leo et al. maintain that the standard for admissibility be by a "preponderance of the evidence," which is lower than the "beyond a reasonable doubt" standard that is necessary to convict a defendant. (245) Likewise, their proposal is consistent with the Tennessee Supreme Court's view that "the appropriate standard of proof for preliminary facts required for the admission of evidence is proof by a preponderance of the evidence." (246)

Indeed, as Leo et al. observe, the proposed evidentiary analysis is one that judges carry out continuously in courts across the U.S. in grappling with the issue of unreliable or non-probative evidence, and in preventing it from biasing, confusing, or misleading juries. (247) The question whether to admit reliable evidence is a recurring one in courts, be it involving hearsay, lineups, witness identification, or an informant's information for a search warrant. (248) Thus, the requirement that a suspect's confession have indicia of reliability as a condition for its admissibility is not unique.

The value of the aforementioned research is in the development of a standard by which a suspect's confession may be measured in relation to its reliability. This proposal further refines the three-factor "fit" test by more particularly defining the indicia of reliability, and by proposing mechanisms for carrying out such assessments (e.g., holding separate pretrial hearings for determinations of voluntariness and reliability, and the applicable burden of proof). (249) Perhaps their hope is that judges will somehow take it upon themselves to apply the "fit" test to a suspect's statements.

However, in the absence of a "reinvigoration" of the judiciary's focus on false confessions and the issue of their unreliability, and without procedural rule reform specifying the framework and assessment measures to be applied, it is doubtful that courts would be motivated to move in that direction. One part of the problem underlying the courts' inertia is most likely the fact that, in the current environment of the justice process, gauging reliability presents considerable difficulties. (250) Without a videotape of the entire interrogation, judges are cut off from exposure to the facts. (251) Recording is an essential condition to any meaningful reliability review. (232) The other part of the problem is devising a way to implement real rule reform governing reliability assessment of confessions. That is the direction that the discussion in the concluding section takes us.


This final section delineates the legal bases for the Tennessee Supreme Court's power to make supervisory rules. Areas where the court has already engaged in "rule-making" are reviewed with special attention given to those areas where the court's involvement has concerned the reliability of evidence.

There are two bases for the Tennessee Supreme Court's legal authority to engage in supervisory "rule-making." The first comes from the court's plenary powers endorsed in TENN. CODE. ANN. [section][section] 16-3-503 and 504. (253) The second comes from the court's power to decide cases and issue opinions. (254) With regard to the first basis, perhaps the better expression of this power is found in Cantor v. Brading, where the appellate court stated:

   [The] supreme judicial and judicial supervisory power [of
   the Supreme Court] is an inherent power of the Supreme
   Court and has been so recognized by the legislative branch
   of our government. Section 16-331 T.C.A. recognizes
   that the Supreme Court has the power to take [a] 11 action as
   may be necessary to the orderly administration of justice
   within the State, whether or not enumerated in that code
   section or elsewhere. Section 16-332 T.C.A. declares that
   this power is of common law origin as it existed at the time
   of the adoption of our Constitution. (255)

The mandate to ensure the fair administration of justice is at the core of the court's exercising of its supervisory powers. Of course, this power is not unbounded, and appears under a plain reading of Cantor and Tenn. CODE. Ann. [section] 16-3-503 to be based in part on the court's powers as they existed at common law. (256) It is necessary, then, to gain some understanding of the court's original common law power at the time of the passage of the Tennessee Constitution.

Theodore Brown, Jr., in his essay tracing the formative period between 1796 and 1835 of the Tennessee Supreme Court, points out that when the Tennessee Constitution was ratified in 1796 there was no independent judiciary created by that document. (257) In fact, there was no Tennessee Supreme Court as we know it today. (258) The framers chose instead to adopt and carry forward the three-judge superior court that had existed in North Carolina and territorial governments at the time. (259) This court was considered to be the highest court in the state as there were others created under it, and it exercised general original jurisdiction over matters of law and equity. (260) It was, in essence, a trial court of general jurisdiction. (261)

"Through 1809, [this court] exercised original jurisdiction over all but the most minor of civil and criminal [trials,]" functioning as both a court of law and equity. (262) In 1809, after years of legislative haggling, the legislature passed the first major restructuring of the court since its inception. (263) "The measure abolished the superior court [and] replaced it with [the] supreme court of errors and appeals, and created an intermediate system of circuit courts between the county courts and the new supreme court." (264) The new supreme court then became an appellate court solely and heard appeals from the circuit courts brought by writs of error. (263)

Thus, what became the Tennessee Supreme Court in 1809 began as a general trial court. Even after the restructuring, however, the removal of all original jurisdiction from the court was controversial. "In 1811, the General Assembly passed significant legislation revesting the [c]ourt with exclusive equity jurisdiction and divesting the circuit courts of such jurisdiction." (266) It is abundantly clear, then, that the current court has longstanding roots as a trial court with original jurisdiction over significant areas of the law.

As a court that heard cases originally, it is also evident that the early court had authority over evidentiary matters. As a trial court, it would necessarily have controlled the flow of evidence before it. As all trial courts must, the early superior/supreme court would have made decisions about what evidence it would hear in the resolution of matters before it. One of the earliest cases decided by the superior court dealt with the admissibility of a confession in a murder case. (267) State v. Doherty involved a murder charge against a young woman who had apparently confessed to the crime. (268) The court held the confession inadmissible after finding it to have been the product of coercion. (269) It is important to note in Doherty that the court based its ruling on considerations of natural law, or in its wording, the "laws of humanity" and "humane principles in the ancient books," and not on any considerations of constitutional or statutory law related to interrogations and confessions, which were still years removed from being developed. (270)

Though Doherty and the other early cases involving interrogations and the admissibility of confession evidence focused primarily on the vol untariness of the statements, trial courts have other types of admissibility decisions to make regarding confessions--the admissibility of confessions is a question for the judge on elementary principles that define the functions of the judge and jury. (271) It is elementary that trial judges are the gatekeepers of all the evidence and the jury may only weigh the evidence that the court admits in the first place. (272)

The real efforts at implementing rules pursuant to this plenary power have come in the actual promulgation of written rules and standards." 73 Some of the rule-making here is outside the realm of the criminal justice system. For example, Rule 11, Section VII of the Rules of the Tennessee Supreme Court sets out detailed procedures for the appointment of substitute trial judges. (274) Rule 13, on the other hand, is an example of rulemaking with direct and substantial impact on the criminal justice system. (275) Broadly speaking, that rule governs the appointment of attorneys and resources in criminal cases to indigent defendants. (276) Importantly, Rule 13 goes well beyond any rights guaranteed by the federal and state constitutions. (277) Indeed, the Tenn. Court has a history of interpreting constitutional rights, both substantive as well as procedural, more broadly than the U.S. Supreme Court. (278)

The other basis for the Tenn. Court's power in the area of rulemaking is through its power to decide cases and issue opinions. The best explanation for this type of rule-making is to consider how it has worked on the federal level. Several of the U.S. Supreme Court's best-known decisions have involved examples of rule-making to address constitutional issues raised. Miranda v Arizona may be the best known criminal procedure case to come out of the U.S. Supreme Court in the last century, and the import of that decision involved the construction of a rule designed to protect a suspect's rights against compelled self-incrimination. (279) The Miranda "warnings" might be the most well-known mexample of a court's rulemaking powers.

In a similar vein, the U.S. Supreme Court's exclusionary rule decisions, beginning with Weeks v. United States, involved additional examples of the Court's rule-making powers to deal with the problem of police misconduct and the discovery of evidence. (280) The Miranda "warnings" and the exclusionary rule were, when announced, prime examples of the power of courts to make far-reaching rules designed to enhance the fair administration of justice. Relevant to the discussion herein, the Tennessee courts have expressly adopted the "rules" set out in both Miranda and Weeks. (281)

Two illustrative Tennessee cases bear particular emphasis because they exhibit this rule-making within the decision power of the court. In State v. Smith, the Tennessee Supreme Court set out specific standards that must be met before the defense can introduce a third party's admission of guilt. (282) Similarly, in Proctor v. State, the Tennessee Court of Criminal Appeals set out a "rule" to be followed before a defendant could be convicted based on the testimony of an accomplice. (283) The common thread in both of the cases is the court's focus on the reliability of the evidence in question. Both rules designed by the respective courts were in pursuit of making the evidence (third party confessions and accomplice testimony) more reliable to the fact finder.

The issue of a confession's trustworthiness touches deeply on the issue of reliability. Routinely dealing with reliability is a basic function of trial courts. Matters as diverse as the introduction of hearsay evidence, the application of the best evidence rule, and the introduction of expert scientific opinions all require the courts to be "gatekeepers" at the evidentiary door. (284) At common law, reliability issues required similar attention by the courts, and in the absence of any formal rules of evidence, an even greater responsibility was placed on them. (285)

Whether it is questioning the voluntariness of a statement or demanding a better form for the evidence to take, one central issue trial courts routinely deal with is the reliability of the evidence, or in this case, the reliability of the defendant's statement. Reliability, in turn, depends to some extent on the circumstances of the interrogation process. The reason why the voluntariness jurisprudence of the U.S. Supreme Court was developed in the first place is in part to ensure that the product of police interrogations is reliable. (286) As a general principle, it is reasonable to demand that a court, where possible, admit the most reliable evidence available, which in many cases requires the court to have the best and most complete possible factual record. It seems clear that the Tenn. Court had the common law power to make rules (rulings) related to the determination of whether evidence was reliable. As demonstrated in Smith and Proctor, Tennessee courts have embraced this common law power in recent times. By adopting an assessment of reliability rule, the Tenn. Court would simply be continuing a tradition of intervening in evidentiary matters which impact the administration of justice in the state of Tennessee, and for which there is seemingly, at present, no legislative solution.

Lance H. Selva, Professor and Interim Chair of Criminal Justice Administration, Middle Tennessee State University; J.D., The University of Alabama School of Law; Ph.D., Criminology, Florida State University. Mr. Selva is also a criminal defense practitioner.

William L. Shulman, Associate Professor of Criminal Justice Administration, Middle Tennessee State University; J.D., University of Tennessee College of Law. Mr. Shulman worked as a Public Defender in Nashville, Tennessee from 1986-1990.

Stephen Reid, J.D. Candidate, Northeastern University School of Law; M.C.J.. Middle Tennessee State University, 2011.

(1) See, e.g., William A. Geller, Police Videotaping of Suspect Interrogation and Confessions: A Preliminary Examination of Issues and Practices, NAT'L INST. JUSTICE 153 (August 1992) Geller, Police Videotaping] (finding police who had experience with videotaping, expressed strong support of the practice); Thomas P. Sullivan, Police Experiences with Recording Custodial Interrogations, 88 JUDICATURE 132, 133 (2004) [hereinafter Sullivan, Police Experiences] ("Virtually every officer who has had experience with custodial recordings enthusiastically favors the practice.")

(2) Steven A. Drizin & Beth A. Colgan, Let the Cameras Roll: Mandatory Videotaping of Interrogations is the Solution to Illinois' Problem of False Confessions, 32 LOY. U. CHI. L.J. 337, 340-41 (2001); Richard A. Leo, The Impact o/Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621, 623-24 (1996) [hereinafter Leo, Miranda Revisited]-, Julie R. Linkins, Note, Satisfy the Demands of Justice: Embrace Electronic Recording of Custodial Investigative Interviews Through Legislation, Agency Policy, or Court Mandate, 44 Am. CRIM. L. Rev. 141, 143-44 (2007); Wayne T. Westling, Something is Rotten in the Interrogation Room: Let's Try Video Oversight, 34 J. MARSHALL L. Rev. 537, 547-52 (2001).

(3) DNA Exonerations Nationwide, INNOCENCE PROJECT, (last updated Feb. 19, 2016) [hereinafter DNA Exonerations].

(4) See Hugo A. Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21, 57-58 (1987); Samuel R. Gross et al., Exonerations in the United States 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523 (2005); DNA Exonerations, supra note 2; 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, 430-31 (1998) [hereinafter Leo & Ofshe, Consequences of False Confessions],

(5) Richard A. Leo, False Confessions: Causes, Consequences, and Solutions, in WRONGLY CONVICTED: PERSPECTIVES ON FAILED JUSTICE 36, 37 (Saundra D. Westervelt & John A. Humphrey eds., 2001) [hereinafter Leo, False Confessions].

(6) Leo & Ofshe, Consequences of False Confessions, supra note 4.

(7) Drizin & Colgan, supra note 2, at 423.

(8) False Confessions & Recording of Custodial Interrogations, INNOCENCE PROJECT, (last updated May 5, 2016) [hereinafter Recording Interrogations].

(9) 384 U.S. 436 (1966).

(10) FED. BUREAU OF INVESTIGATION, LEGAL HANDBOOK FOR SPECIAL AGENTS [section][section] 7-14 (discouraging agent from recording), cited in Daniel Donavan & John Rhodes, Comes a Time: The Case for Recording Interrogations, 61 Mont. L. Rev. 223, 229 (2000); Michael Higgins, Taping Police Interrogation May End the Lies With ... Irrefutable Evidence, A.B.A. J., May 1998, at 18 (pointing out that the F.B.I. is identified as an agency that does not routinely record interrogations); see United States v. Lewis, 355 F. Supp. 2d 870, 872 (E.D. Mich. 2005) (noting that the D.E.A. does not have a recording requirement); Gail Johnson, False Confessions and Fundamental Fairness: The Needfor Electronic Recording of Custodial Interrogations, 6 B.U. PUB. INT. L.J. 719, 748-49 (1997).

(11) Tennessee Bureau of Investigation, Interview and Interrogations, written policy 8-3004 (1994) [hereinafter TBI],

(12) Memorandum from Gary Nix, Tenn. Highway Patrol Criminal Investigations Div., to Lt. David Wyllie (Mar. 5, 2007) (on file with authors); TBI, supra note 10, at 4.

(13) TBI, supra note 10, at 4.

(14) Roberto Iraola, The Electronic Recording of Criminal Interrogations, 40 U. RICH. L. REV. 463,471 (2006); see Johnson, supra note 10, at 748;Statev. Scales, 518 N.W.2d 587, 592 (Minn. 1994); United States v. Short, 947 F.2d 1445, 1451 (10th Cir. 1991).

(15) 549 F.2d 1303 (9th Cir. 1977).

(16) Id. at 1305.

(17) Id. Of course, the decision avoids the issue of a court's use of its supervisory powers in the administration of justice; see Miranda v. Arizona, 384 U.S. 436 (1966); Mallory v. United States, 354 U.S. 449 (1957); McNabb v. United States, 318 U.S. 332 (1943); Weeks v. United States, 232 U.S. 383 (1914) (all involving United States Supreme Court rulemaking). The supervisory powers approach to the recording issue has been adopted by one state's high court. In State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994), the Minnesota Supreme Court mandated recording based on its inherent supervisory powers to ensure the fair administration of justice, holding that recording interrogations was a "reasonable and necessary safeguard essential to preserving valuable constitutional rights."

(18) State v. Godsey, 60 S.W.3d 759, 771 (Tenn. 2001).

(19) Id. at 771-72.

(20) Id. at 772 (citing State v. Odom, 928 S.W.2d 18, 24 (Tenn. 1996)).

(21) See TENN. R. CRIM. P. 5.1(a)(3) (requiring preliminary hearings to be recorded and recognizing that the defendant has a constitutional right to have access to the recording); see also Brit v. North Carolina, 404 U.S. 226 (1971) (holding that in the narrow circumstances of the case, a transcript was not needed for the petitioner's defense).

(22) Thomas P. Sullivan, The Time Has Come for Law Enforcement Recordings of Custodial Interviews, Start to Finish, 37 GOLDEN GATE U. L. Rev. 175,178-79 (2006) [hereinafter Sullivan, The Time Has Come]

(23) Id. at 179.

(24) Id.

(25) Steven A. Drizin & Marissa J. Reich, Heeding the Lesson of History: The Need for Mandatory Recording of Police Interrogations to Accurately Assess the Reliability and Voluntariness of Confessions, 52 DRAKE L. REV. 619, 638 (2004).

(26) Leo & Ofshe, Consequences of False Confessions, supra note 4, at 429.

(27) See Westling, supra note 2, at 541.

(28) Drizin & Reich, supra note 25; Johnson, supra note 10; Lisa C. Oliver, Mandatory Recording of Custodial Interrogations Nationwide: Recommending a New Model Code, 39 SUFFOLK U. L. REV. 263 (2005); Sullivan. The Time Has Come, supra note 22; Amy Klobuchar, Eye on Interrogations: How Videotaping Serves the Cause of Justice, WASH. Post, June 10, 2002, at A21; Thomas P. Sullivan, Federal Law Enforcement Should Record Custodial Interrogations, 31 CHAMPION 8 (April 2007) [hereinafter Sullivan, Federal Law Enforcement]', Westling, supra note 2.

(29) False Confessions & Recording of Custodial Interrogations, INNOCENCE PROJECT (June 14. 2016), of-custodial-interrogations [hereinafter False Confessions].

(30) Id.

(31) 711 P.2d 1156, 1162 (Alaska 1985).

(32) See Oliver, supra note 28, at 274 n.92, 275 n.101; Sullivan, The Time Has Come, supra note 22.

(33) See People v. Raibon, 843 P.2d 46, 49 (Colo. App. 1992); State v. James, 678 A.2d 1338, 1360 (Conn. 1996) (recording is a desirable investigation practice which should be encouraged); State v. Kekona, 886 P.2d 740, 745-46 (Haw. 1994); Stoker v. State, 692 N.E.2d 1386, 1390 (Ind. Ct. App. 1998) (recording strongly recommended as a matter of sound policy); State v. Buzzell, 617 A.2d 1016, 1018 (Me. 1992) (recognizing that the benefits of recording are "obvious"); Commonwealth v. Fryar, 610 N.E.2d 903, 909 n.8 (Mass. 1993) (recording would be helpful means of evaluating voluntariness of confessions); Williams v. State, 522 So. 2d 201, 208 (Miss. 1988) (recognizing that recorded statements are valuable in many contexts); State v. James, 858 P.2d 1012, 1018 (Utah Ct. App. 1993) (has potential of preventing coercion); State v. Kilmer, 439 S.E.2d 881, 893 (W.Va. 1993) (noting the benefits of recording for police, the suspect, and the court in determining admissibility of confession).

(34) 60 S.W.3d 759 (Tenn. 2001).

(35) Id. at 771-72.

(36) Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J. CRIM. L. & CRIMINOLOGY 1127,1131 (2005) [hereinafter Sullivan, Electronic Recording].

(37) Id.

(38) See Bodnar v. Anchorage, No. A-7763, 2001 WL 1477922, at *l-2 (Alaska Ct. App. Nov. 21, 2001) (allowing an unrecorded interrogation into evidence where police made good faith effort to record); George v. State, 836 P.2d 960, 962 (Alaska Ct. App. 1992) (admitting an unrecorded interrogation into evidence where police attempted to record using malfunctioning recorder); State v. Miller, 573 N.W.2d 661, 674-75 (Minn. 1998) (because of officer mistake, no recording made); State v. Shroeder, 560 N.W.2d 739, 740-41 (Minn. Ct. App. 1997) (tape recorder inoperative).

(39) Commonwealth v. DiGiambattista, 813 N.E.2d 516, 532 (Mass. 2004).

(40) See Oliver, supra note 28, at 285.

(41) DiGiambattista, 813 N.E.2d at 532.

(42) Id.; see also Sullivan, Electronic Recording, supra note 36, at 1131.

(43) Sullivan, Electronic Recording, supra note 36, at 1131.

(44) See Geller, Police Videotaping, supra note 1; see also William A. Geller, Videotaping Interrogations and Confessions, NAT'L INST. JUSTICE (March 1993) Geller, Videotaping Interrogations].

(45) Geller, Videotaping Interrogations, supra note 37, at 10.

(46) See Sullivan, Police Experiences, supra note 1, at 133.

(47) Sullivan, The Time Has Come, supra note 22, at 179; Sullivan, Federal Law Enforcement, supra note 28, at 9-10; Sullivan, Electronic Recording, supra note 36. at 1129-30.


(49) Sullivan, Police Experiences, supra note 1, at 133; Sullivan, The Time Has Come, supra note 22, at 178.

(50) Geller, Videotaping Interrogations, supra note 37, at 1; Sullivan, The Time has Come, supra note 22, at 178-80.

(51) See Westling, supra note 2, at 537; see also Drizin & Reich, supra note 25, at 629-30.

(52) Saul M. Kassin & Holly Sukel, Coerced Confessions and the Jury: An Experimental Test of the "Harmless Error" Rule, 21 LAW & HUM. BEHAV. 27, 27 (1997); GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS, AND TESTIMONY 26 (1992).

(53) See Fred E. Inbau, Police Interrogation--A Practical Necessity, 52 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 16, 17-19 (1961).

(54) Bernard Weisberg, Police Interrogation of Arrested Persons: A Skeptical View, 52 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 21,46 (1961); Richard A. Leo et al., Bring Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis. L. REV. 479, 512-20.

(55) 384 U.S. 436 (1966).

(56) Yale Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in CRIMINAL JUSTICE IN OUR TIME 1 (A. E. Dick Howard ed., 1965).

(57) Id. at 84, 86-87.

(58) Miranda, 384 U.S. at 457-58.

(59) Id. at 478-79.

(60) Id. at 448 ("Interrogation ... takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.").

(61) Richard A. Leo, Miranda and the Problem of False Confessions, in THE MIRANDA DEBATE: LAW, JUSTICE AND POLICING 271, 273 (Richard A. Leo & George C. Thomas III eds., 1998) [hereinafter Leo, Problem of False Confessions]', Leo et al., supra note 54, at 496-98.

(62) Richard A. Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY 266, 275-76, 286 (1996) [hereinafter Leo, Inside the Interrogation].

(63) Paul G. Cassell & Bret Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects q/Miranda, 43 UCLA L. REV. 839, 859 (1996); Leo, Problem of False Confessions, supra note 61, at 275-76.

(64) Leo et al., supra note 54, at 498; Richard A. Leo, Questioning the Relevance of Miranda in the Twenty-First Century, 99 MICH. L. REV. 1000, 1025-26 (2001) [hereinafter Leo, Questioning]; George C. Thomas III, The End of the Road for Miranda v. Arizona?: On the History and Future of Rules for Police Interrogation, 37 Am. CRIM. L. REV. 1, 18-19 (2000).

(65) Thomas, supra note 64, at 18.

(66) Leo et al., supra note 54, at 498.

(67) See Missouri v. Seibert, 542 U.S. 608 (2004); Yale Kamisar, Kauper's "Judicial Examination of the Accused" Forty Years Later--Some Comments on a Remarkable Article, 73 MICH. L. REV. 15, 29 (1974).

(68) See Geoffrey Stone, The Miranda Doctrine in the Burger Court, 1977 SUP. CT. REV. 99, 101-06.

(69) See EDWIN M. BORCHARD, CONVICTING THE INNOCENT: SIXTY-FIVE ACTUAL ERRORS OF CRIMINAL JUSTICE (1932); Bedau & Radelet, supra note 4, at 56-64; Leo & Ofshe, Consequences of False Confessions, supra note 4, at 429, 433-36; Gisli H. Gudjonsson, One Hundred Alleged False Confession Cases: Some Normative Data, 29 BRIT. J. CLINICAL PSYCHOL. 249 (1990); Steven A. Drizin & Richard Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. REV. 891, 905-06 (2004).

(70) DNA Exonerations, supra note 3.

(71) See BORCHARD, supra note 62.

(72) Id. at 371-72.

(73) Id. at 370-71.

(74) Id.

(75) Roscoe Pound, Legal Interrogation of Persons Accused or Suspected of Crime, 24 J. CRIM. L. & CRIMINOLOGY 1014, 1017 (1934).

(76) See ZECHARIAH CHAFEE, JR. ET AL., NAT'L COMM'N ON LAW OBSERVANCE & ENFORCEMENT, REPORT ON LAWLESSNESS IN LAW ENFORCEMENT (1931) [hereinafter REPORT ON LAWLESSNESS]. The "third degree" refers to "the employment of methods which inflict suffering, physical or mental, upon a person in order to obtain information about a crime." Id. at 19.

(77) Mat 181-92.

(78) Id. at 192.

(79) Id.


(81) See id. at 152.


(83) Geller, Police Videotaping, supra note 1; Geller, Videotaping Interrogations, supra note 37.

(84) See MODEL CODE OF PRE-ARRAIGNMENT PROCEDURES [section] 130.4 (1975).

(85) Id.

(86) Id.

(87) Id. at [section] 130.4(3).

(88) Drizin & Colgan, supra note 2, 389-402.

(89) See Geller, Police Videotaping, supra note 1, at 65-67 (acknowledging recap videotapes are not unusual and the prejudicial effect of their use).

(90) Adrienne Drell, Procedure Falls Short, Legal Experts Caution, CHI. SUN-TIMES, OCT. 2, 1998, at 2.

(91) See BARRY SCHECK ET AL., ACTUAL INNOCENCE 92 (2000); Drizin & Leo, supra note 69, at 905-06.

(92) See Gross et al., supra note 4, at 523.

(93) See Gudjonsson, supra note 69; Drizin & Leo, supra note 69, at 893, 905-06; Gross et al., supra note 4, at 544-46; Leo & Ofshe, Consequences of False Confessions, supra note 4, at 429,433-36.

(94) See Leo, Problem of False Confessions, supra note 61, at 276-78; Johnson, supra note 10, at 730-35.

(95) Sullivan, The Time Has Come, supra note 22, at 179.

(96) BOB DYLAN, Subterranean Homesick Blues, on BRINGING IT ALL BACK HOME (Columbia Records 1965).

(97) See, e.g., NAT'L REGISTRY OF EXONERATIONS, (last visited May 13, 2016). Registry collects, analyzes and disseminates comprehensive information and data on every known exoneration in the United States since 1989 in an effort to better educate policy makers and the general public about conviction of innocent defendants.

(98) See Bedau & Radelet, supra note 4, at 62-63.

(99) Richard A. Leo, Rethinking the Study of Miscarriages of Justice: Developing a Criminology of Wrongful Conviction, 21 J. CONTEMP. CRIM. JUST. 201, 205-06 (2005) [hereinafter Leo, Rethinking].

(100) Id.

(101) Id.

(102) Id.

(103) Leo & Ofshe, Consequences of False Confessions, supra note 4, at 430-32.

(104) See SCHECK ET AL., supra note 91.

(105) See Richard A. Leo & Richard J. Ofshe, Using the Innocent to Scapegoat Miranda: Another Reply to Paul Cassell, 88 J. CRIM. L. & CRIMINOLOGY 557, 560 (1998) [hereinafter Leo & Ofshe, Using the Innocent].

(106) See Leo & Ofshe, Consequences of False Confessions, supra note 4; Gudjonsson, supra note 69.

(107) See DNA Exonerations, supra note 3.

(108) Id.

(109) See Gross et al., supra note 4, at 527-28.

(110) Id. at 531.

(111) Drizin & Leo, supra note 69, at 946-49.

(112) Gross et al., supra note 4, at 544.

(113) Id. at 524.

(114) Samuel R. Gross, The Risks of Death: Why Erroneous Convictions are Common in Capital Cases, 44 BUFF. L. REV. 469, 486 (1996).

(115) See Virginia Hughes, How Many People Are Wrongly Convicted? Researchers Do the Math, NAT'L GEOGRAPHIC, Apr. 28, 2014, (discussing what calculations and considerations researchers use when computing rates of wrongful conviction).

(116) See Bedau & Radelet, supra note 4, at 21-31.

(117) Id. at 26.

(118) Id. at 23-24.

(119) Id. at 57.

(120) Richard C. Dieter, Innocence and the Death Penalty: The Increasing Danger of Executing the Innocent, DEATH PENALTY INFO. CTR. (Jul. 1997), (citing MICHAEL L. RADELET ET AL., IN SPITE OF INNOCENCE: ERRONEOUS CONVICTIONS IN CAPITAL CASES 17 (1994)).

(121) Bedau & Radelet, supra note 4, at 86-90.

(122) Miranda v. Arizona, 384 U.S. 436, 448-55 (1966).

(123) Id. at 457.

(124) See FRED E. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS (5th ed. 2011); Richard A. Leo, Police Interrogation and Social Control, 3 Soc. & LEGAL STUD. 93, 93-98 (1994) [hereinafter Leo, Social Control].

(125) Stephen Schulhofer, Confessions and the Court, 79 MICH. L. REV. 865, 892 (1981).

(126) Leo, Social Control, supra note 124, at 116.

(127) George C. Thomas 111, Plain Talk About the Miranda Empirical Debate: A "Steady-State " Theory of Confessions, 43 UCLA L. REV. 933, 953-59 (1996).

(128) Leo, Social Control, supra note 124, at 93.

(129) See generally INBAU Et AL., supra note 124.

(130) Id.

(131) Christopher Slobogin, Commentary. Towards Taping, 1 OHIO ST. J. CRIM. L. 309, 309-12 (2003).

(132) Leo, Miranda Revisited, supra note 2, at 689-92.

(133) See Leo, Inside the Interrogation, supra note 62, at 266-68.

(134) Schulhofer, supra note 125, at 882.

(135) Slobogin, supra note 131, at 309-15.

(136) Paul Cassell, Reply, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders. 90 Nw. U. L. REV. 1084, 1084 (1996).

(137) Cassell & Hayman, supra note 63, at 876; Leo, Miranda Revisited, supra note 2, at 633; Schulhofer, supra note 125, at 878-84; Welsh S. White, Miranda's Failure to Restrain Pernicious Interrogation Practices, 99 Mich. L. Rev. 1211, 1213 (2001).

(138) RICHARD A. LEO, POLICE INTERROGATION AND AMERICAN JUSTICE 280 (2008) (internal citation omitted).

(139) White, supra note 137, at 1213.

(140) Dickerson. 530 U.S. 428, 444 (2000) (citing Berkemer v. McCarty 468 U.S. 420, 433 n.20 (1984)).

(141) White, supra note 137, at 1220.

(142) Slobogin, supra note 131, at 310.

(143) Mat 316.

(144) Rogers v. Richmond, 365 U.S. 534, 540-44 (1961)).

(145) Id.

(146) Id.

(147) Id.

(148) Brown v. Mississippi, 297 U.S. 278, 287 (1936).

(149) Id. at 287.

(150) See id.

(151) See Spano v. New York, 360 U.S. 315, 323-24 (1959).

(152) Mat 320-23.


(154) See Culombe v. Connecticut, 367 U.S. 568, 603-06 (1961); North Carolina v. Butler, 441 U.S. 369, 374-75 (1979).

(155) 314 U.S. 219,236 (1941).

(156) Id.

(157) Rogers v. Richmond, 365 U.S. 534, 540-44 (1961)).

(158) See Welsh S. White, What is an Involuntary Confession Now?, 50 RUTGERS L. REV. 2001, 2008-20(1998).

(159) Id. at 2009-14.

(160) Steven Penny, Theories of Confession Admissibility: A Historical View, 25 AM. J. CRIM. L. 309, 337-45 (1998).

(161) Id. at 358-59.

(162) Id. at 359-61.

(163) Id. at 341-61.

(164) 365 U.S. 534, 544(1961).

(165) 479 U.S. 157, 161 (1961).

(166) Id. at 167.

(167) Id.

(168) Id:, see also Miranda v. Arizona, 384 U.S. 436, 478-79 (1966).

(169) Miranda, 384 U.S. at 439.

(170) Id. at 455.

(171) Id. at 448-51, 455-57.

(172) Id. at 444, 467-68.

(173) Mat 444-45.

(174) Id. at 467-69.

(175) Miranda, 384 U.S. at 478-79.

(176) Id. at 475-76.

(177) Id. at 444.

(178) Id. at 467.

(179) See Missouri v. Seibert, 542 U.S. 608 (2004); New York v. Quarles, 467 U.S. 649 (1984); Oregon v. Haas, 420 U.S. 714 (1975); Harris v. New York, 401 U.S. 222 (1971).

(180) Mincey v. Arizona, 437 U.S. 385, 398 (1978).

(181) See, e.g., State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996); State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994).

(182) See Smith, 933 S.W.2d at 455; Stephenson, 878 S.W.2d at 544; TENN. CONST, art. I, [section] 9; see also V. Lakshmi Arimilli, Confessions and the Tennessee Constitution, 25 U. MEM. L. REV. 637(1995).

(183) See State v. Godsey, 60 S.W.3d 759, 771 (Tenn. 2001) (noting there is no requirement to record interrogations).

(184) Johnson v. New Jersey, 384 U.S. 719, 730 (1966).

(185) See Cassell, supra note 136, at 1084; Slobogin, supra note 131, at 314-15; White, supra note 137, at 1215.

(186) Miranda v. Arizona, 384 U.S. 436, 467-69 (1966).

(187) Leo, Rethinking, supra note 99, at 280-82.

(188) Id. at 282.

(189) See Leo, Questioning, supra note 64, at 1012; Leo, Problem of False Confessions, supra note 61, at 275-76.

(190) See Miranda, 343 U.S. at 471-74.

(191) See Schulhofer, supra note 125, at 880-84.

(192) See generally EDWARD CONNORS ET AL., DEP'T OF JUSTICE, CONVICTED BY JURIES, EXONERATED BY SCIENCE: CASE STUDIES IN THE USE OF DNA EVIDENCE TO ESTABLISH INNOCENCE AFTER TRIAL (1996); White, supra note 137; Bedau & Radelet, supra note 4; Drizin & Leo, supra note 69; Leo & Ofshe, Consequences of False Confessions, supra note 4.

(193) Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 LAW & HUM. BEHAV. 3, 26 (2009).

(194) Id.

(195) See Leo, Consequences of False Confessions, supra note 4.

(196) Leo et al., supra note 54, at 520-35.

(197) Id. at 512.

(198) Corey Ayling, Comment, Corroborating Confessions: An Empirical Analysis of Legal Safeguards Against False Confessions, 1984 WIS. L. REV. 1121, 1124.

(199) Id. at 1155.

(200) Id. at 1156-57.

(201) See Bedau & Radelet. supra note 4; Leo, Problem False Confessions, supra note 61; Leo & Ofshe, Consequences of False Confessions, supra note 4.

(202) See GUDJONSSON, supra note 52, at 115-57; Leo, supra note 54; Richard Ofshe & Richard Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 DENV. U. L. REV. 979(1997).

(203) See Paul Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996); Drizin & Reich, supra note 25; Leo, Miranda Revisited, supra note 2; Leo et al., supra note 54; Slobogin, supra note 131.

(204) Ofshe & Leo, supra note 202, at 1119.

(205) Leo et al., supra note 54, at 486-87.

(206) Id.; see Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

(207) Ofshe & Leo, supra note 202, at 981 n. 1.

(208) Id.

(209) Id. at 983.

(210) See generally id.

(211) Id. at 983

(212) Id.

(213) Ofshe & Leo, supra note 202, at 991-92.

(214) Id. at 991.

(215) Id.

(216) Id. at 1119.

(217) Id. at 993.

(218) Id. at 994.

(219) Leo & Ofshe, Consequences of False Confessions, supra note 4, at 438-39.

(220) Id. at 438-39.

(221) See Richard Ofshe & Richard Leo, The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions, 16 STUD. L. POL. & SOC'Y. 189, 239 (1997).

(222) Id. at 239-40.

(223) Leo et al., supra note 54, at 530-34.

(224) See id. at 530-36.

(225) Id.

(226) Id. at 523.

(227) Id. at 531.

(228) Leo et al., supra note 54, at 531.

(229) TENN. R. EVID. RULE 403. The Tennessee Supreme Court adopted Federal Rule 403 in the case of Stale v. Banks, 564 S.W.2d 947 (Tenn. 1978).

(230) TENN. R. EVID. RULE 403.

(231) Id.

(232) Id.

(233) Id.

(234) Leo et al., supra note 54, at 531

(235) Id.

(236) Id. at 485.

(237) Arizona v. Fulminate, 499 U.S. 279, 296 (1991).

(238) Leo et al., supra note 54, at 519-20.

(239) See WHITE, supra note 153, at 154.

(240) See Leo et al., supra note 54, at 486.

(241) Id. at 532.

(242) Id.

(243) Id.

(244) Id.

(245) Id.

(246) State v. Stamper, 863 S.W.2d 404, 406 (Tenn. 1973).

(247) Leo et al., supra note 54, at 532.

(248) Id.

(249) See id. at 525-39.

(250) Id. at 530.

(251) Id.

(252) Id. at 530-32.

(253) See TENN. CODE ANN. [section][section] 16-3-503 to-504 (1970).

(254) See TENN. CONST, art. VI, [section] 1.

(255) Cantor v. Brading, 494 S.W.2d 139, 142 (Tenn. Ct. App. 1973).

(256) Id.

(257) Theodore Brown Jr., The Formative Period in the History of the Supreme Court of Tennessee, in A HISTORY OF THE TENNESSEE SUPREME COURT 1, 5 (James W. Ely Jr. ed., 2002).

(258) Id. at 5.

(259) Id. at 6.

(260) Id. at 6.

(261) Id.

(262) Id.

(263) Brown, supra note 257, at 7.

(264) Id. at 7-8.

(265) Id. at 8.

(266) Id.

(267) State v. Doherty, 2 Tenn. (2 Overt.) 80 (Super. Ct. Law & Eq. Tenn. 1806).

(268) Id. at 84-86.

(269) Id. at 86-87.

(270) Id.

(271) See, e.g., Smith v. State, 535 S.W.2d 162, 164 (Tenn. Crim. App. 1976).

(272) Id.

(273) See, e.g., Rides of Court, TENN. STATE COURTS, (last visited March 30, 2016).

(274) TENN. SUP. CT. R. 11 [section] VII(c).

(275) TENN. SUP. CT. R. 13.

(276) Id.

(277) See id.

(278) State v. Jacumin, 778 S.W.2d 430, 436-37 (Tenn. 1989) (requiring stricter evidentiary standards in determining the existence of probable cause for the issuance of search warrants than the U.S. Supreme Court).

(279) 384 U.S. 436(1966).

(280) 232 U.S. 383 (1914).

(281) See State v. Dailey, 273 S.W.3d 94, 100-02 (Tenn. 2009) (describing state court's history of Miranda adoption); Brewer v. State, 501 S.W.2d 280, 281 (Tenn. 1973) ("[T]he exclusionary rule established in [Weeks] is well established law in Tennessee").

(282) 933 S.W.2d 450, 455-56 (Tenn. 1996).

(283) 565 S.W.2d 909, 914-15 (Tenn. Crim. App. 1978).

(284) See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 145 (1999).

(285) FED. R. EVID. 602 (notes of advisory committee on proposed rules).

(286) See Miranda v. Arizona, 384 U.S. 436,464 n.33 (1966).
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