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Silence, confessions, and the new accuracy imperative.

Abstract

Silence is both overpriced and underrated. This Article assesses the status of silence in light of renewed attention to reliability in criminal procedure. First, it considers the meaning of silence, both outside of the criminal justice process and within it. The Article then describes how silence can safeguard the context of confessions by making space for suspects to choose or reject engagement while shielding the content of statements from government manipulation. This account seeks to advance the discussion about protecting silence beyond the debate as to whether it advantages the innocent or the guilty. Empirical developments concerning wrongful convictions establish that factually innocent defendants do make false confessions, that the government often co-authors those statements, and that errors occur because the cost to defendants of staying silent is too high. The Article concludes by evaluating both exclusionary rules and law enforcement regulation that could better protect silence and, in doing so, enhance accuracy.
Table of Contents

Introduction
  I. Attempted Silence
     A. No Such Thing as Silence
     B. Silence and Separation
     C. The Legal Meaning of Silence
        1. Substantive Silence
        2. Procedural Silence
        3. Broken Silence and the Problem of Co-Authorship
 II. The New Accuracy Imperative
     A. Wrongful Convictions
     B. Silence and Innocence
     C. The Cost of Silence
III. Implications for Interrogation Regulation
     A. Space for Silence
     B. Implementing Reliability
     C. Law Enforcement Interventions
        1. Observing Silence
        2. Timing Silence
        3. Silence and Notice
Conclusion


Introduction

The "right to silence" figures prominently in both criminal procedure and popular culture about the criminal justice system, but neither silence itself nor any such right actually exists. (1) This Article explores the content of attempted silence, its function in interrogations, and the emerging connection between making space for silence and improving accuracy. It argues that the failure to understand and defend silence allows law enforcement to insert material into suspects' statements and, in doing so, to introduce error into criminal adjudication.

Many representations of silence outside of the criminal justice process illuminate two important aspects of the failure to protect it in interrogations. Silence is both unattainable and interactive. Its complexities begin to emerge from consideration of the silent symphonies and blank canvases of postmodern art, (2) which expose silence as so dynamic that it can never be perfected. There is always substance to silence, including information and engagement for the listener confronted with it. As performances of silence in the arts demonstrate, the audience adds content to silence both deliberately and inadvertently, and can later mistake those contributions for original statements by the performer.

Legal rules have not accounted for either the distinction between silence and emptiness or the inaccuracies that can flow from the moment that silence is breached. As the privilege against self-incrimination continues to contract, its diminished protections can be traced in part to misperceptions about what silence communicates, and about the response that it can provoke from law enforcement. Silence currently counts, for example, as an affirmative admission of guilt if a suspect remains silent instead of proffering anticipated denials. (3) Moreover, although a suspect cannot achieve a romantic conception of pure silence, (4) when stillness fails, the broken silence itself constitutes waiver of the privilege against self-incrimination. (5) Police leverage this perceived acquiescence while disregarding the signaled desire to separate from interrogators. (6)

Overriding attempted silence can lead, however, to jeopardizing reliability. Suspects rarely succeed in imposing silence on interrogators engaged in aggressive questioning, and prolonged questioning is a strategy that can turn a suspect's noncompliance into a false confession. When law enforcement breaches silence at critical junctures in interrogations, co-authored confessions--containing known and anticipated elements that investigators themselves generate--often result. And statements with substantial content provided by the government can indicate both involuntariness and inaccuracy. (7)

Recent data attributing wrongful convictions to false confessions sheds new light on the way in which silence itself can protect innocence. (8) Growing evidence from DNA exonerations has established that the problem of wrongful convictions is substantial, and that a significant number of those errors can be traced to government participation in the production of a suspect's statement. (9) The new empirical moment in criminal procedure scholarship thus creates an opportunity to revisit the rules surrounding silence and the way in which they connect to reliability. With the occurrence of error in criminal adjudication no longer a theoretical issue, the real gains and low costs of making more space for silence are easier to calculate.

This closer look at what silence consists of, how it communicates, and what occurs when it is breached suggests a reconceptualization of the measures that protect it. Part I of the Article describes artistic representations of silence to begin to give it some content and make it possible to "listen" to the signals that silence sends. It then assesses the legal meaning of silence in investigations in light of this broader cultural context. In Part II, the Article links silence and accuracy in order to move the debate about the scope of the right to remain silent beyond speculation on whether it benefits innocent or guilty defendants. Empirical developments on false confessions establish that there are "known innocents" who attempted silence, and their cases raise the possibility that a more robust right to silence could decrease wrongful convictions. Part III addresses potential reforms to both legal standards and law enforcement methods that would raise the status of silence in investigations and better protect against error.

I. ATTEMPTED SILENCE

A. No Such Thing as Silence

Silence is not simple. Reevaluating its constitutional status first requires a fuller theory of what it means. Reflections on silence in other contexts help illuminate its distinction from blankness, its communicative function, and the way in which failed attempts at silence conflate speaker and listener.

Performers and visual artists have long explored the impossibility of pure silence. Consider, for example, composer John Cage's work 4'33". When it was first presented in 1952, it consisted of a virtuoso pianist, David Tudor, sitting at the piano for four minutes and thirty-three seconds without striking a note. (10) Commonly known as the "silent" piece, Cage's composition includes three movements. (11) Tudor raised and lowered the piano lid at the beginning and end of each movement, measured the passing time with a stopwatch, and turned several pages of the score during the performance. (12) Each time the piece is presented, the performer or performers--the score is written for a single instrument, an ensemble, or an orchestra--receive instructions to produce no intentional sounds at all. (13) But of course, though the orchestra appears silent, members of the audience are not. The inevitable murmurs and rustles from the listeners, as well as incidental sounds in the concert hall, form part of the composition. (14) In Cage's words, the project sought to demonstrate that there is "no such thing as silence." (15)

There is no such thing as silence because the performer cannot maintain it, and the audience cannot avoid filling it. Government-created evidence in criminal cases similarly arises both from supplementing suspects' own words and from imputing facts to suspects that do not originate with them. Documented false confessions suggest that when the government presses past attempted silence, it has not so much overcome it as replaced it with evidence of the government's own making. (16) Preventing that inaccuracy begins with understanding what silence is and does, and work like Cage's aids comprehension. The primary substance of any performance of 4'33" comes from the audience's search for patterns in the background noise and from the experience of adding its own ambient sounds. Cage demonstrated how intentional and unintentional sound merge in a composition and can change a work each time it is performed.

Recent revivals of Yves Klein's more elaborate Monotone-Silence Symphony again underscore the co-authorship of listener and performer. (17) Swiss composer Roland Dahinden recently conducted the piece with seventy performers--cellists, violinists, bassists, flutists, oboists, French horn players, and singers--all filling the air for twenty minutes with a single note played without vibrato or variation, followed by twenty minutes of silence. In the silence, Dahinden explains, "[y]ou sit in the audience and you start to hear some melodies and some fragments of melodies, and yet nobody is playing them." (18)

Silent music is but one example of the impossibility of creating and preserving silence, and other media similarly experiment with the way silence can shift attention from the performer to the surroundings and the audience. 4'33" reversed the conventional direction of music, and was both highly controversial and hugely influential. (19) Postmodern visual art owes a particular debt to the silent symphony, and its reconstructed score was the centerpiece of a recent exhibit at the Museum of Modern Art. (20) The exhibit, entitled There Will Never Be Silence, explores chance operations like ambient and involuntary noises in music, and the indeterminacy of monochrome canvases and found objects as well. (21) Cage himself was influenced by Marcel Duchamp's "ready-made" art and his inversion of content and context (22) as well as the smooth, unarticulated white canvases of another frequent collaborator, Robert Rauschenberg. (23) Rauschenberg stripped out the anticipated elements of "art" to show the interaction between the "silent" paintings and "the light and dust particles in the air." (24)

Filmmakers have further investigated the texture of silence and complicated its meaning. A 1964 film by Nam June Paik--Zen for Film--consists of a projection of a roll of clear film, punctuated by the sound of the projector and the dust on the film itself. (25) Samuel Beckett wrote and directed Film, which runs twenty-four minutes without dialogue or background music. (26) Modernist writers from Virginia Woolf to Harold Pinter also exposed the inevitable expressive functions of silence between people and within conversations. (27) Performance artists have not only given silence concrete form but also commodified it. For Yves Klein's 1958 exhibition Le Vide (The Void), he purged a small Parisian gallery of every object within it, scrubbed it clean, and painted it pure white. (28) He declared the "invisible pictorial state" to be "endowed with autonomous life" and proceeded to sell several copies of a work he called the Zone of Immaterial Pictorial Sensibility. (29) Though patrons paid (in gold) for their copy of the piece, they received nothing tangible in exchange. (30)

Theorizing the content and function of silence itself gives rise to new thinking about suspects and defendants who try but fail to remain silent. If there is no such thing as silence, then a privilege extended only to those who remain perfectly silent is a hollow one. Moreover, the performances of silence in other realms, as demonstrated by the work of John Cage and his contemporaries, reveal that it is never inert, and that when silence attempts but does not achieve separation, then the listener inevitably begins to construct meaning. That constructed meaning links the low status of attempted silence with the danger of unreliable statements. Law enforcement's interaction with silence is a key source of inaccuracy and wrongful convictions. Cage's work elucidates why that occurs. As he explained, "[T]ry as we may to make a silence, we cannot." (31) A more ample theory of silence also illuminates how deceptive the sounds around it can be, and thus how overriding attempted silence can enlarge the problem of government-created evidence.

B. Silence and Separation

Although the connection between silence and autonomy has long been recognized, understanding that it is impossible to sustain pure silence, and that much is lost when the attempt goes unrecognized, puts a new gloss on the significance of silence. Silence indicates the need for a space within which to make choices. (32) It protects "freedom to choose what to say to whom and when to say it," (33) and it leaves room for individuals to form their own plans. (34) Silence preserves an interior realm, mental privacy, and introspection. Allowing silence to separate thus gives effect to the autonomy rationales that partly animate the Fifth Amendment privilege. The Supreme Court has stated that an individual should have the right "to remain silent unless he chooses to speak in the unfettered exercise of his own will." (35) Indeed, the majority opinion in Miranda v. Arizona (36) references the concept of free choice nine times. (37)

Attempted silence signifies this desire to create a boundary; it is a statement at least about the choice to remain separate. Silence per se may not exist, but the effort to maintain it creates a border between the self and interrogators. (38) That same border often separates accurate and inaccurate statements and thus merits stronger protection. The autonomy and reliability principles behind Fifth Amendment protections converge in the space that silence creates between a suspect's own words and confessions co-authored by the government.

Yet common interrogation tactics and narrowing constitutional constructions of the right to claim silence both operate to close that gap. Questioners crowd the suspect's space and override the appeal for separation. The interrogation room itself imposes physical limits: It is small and enclosed, and one can sit there for an extended period of time. (39) As the Supreme Court described in Miranda, the environment of a typical interrogation is "compelling," "secret," "isolated," "menacing," and "police-dominated." (40) A longstanding approach to breaking silence is to establish a sense that questioner and suspect are alone together. (41) The "quiet room" is a related paradigm in interrogation techniques, designed to convey intimacy. (42) In writer David Simon's iconic descriptive work on the Baltimore Homicide Department's tactics, he reports that this illusion of privacy distorts "the natural hostility between hunter and hunted, transforming it until it resembles a relationship more symbiotic than adversarial." (43) Conflating the speakers in a distorted exchange often yields unreliable evidence.

This occurs in part because, given interrogators' expectations and experiences, sustained silence can surprise them. In a culture where data increases exponentially, (44) interrupting the anticipated flow of information requires careful, affirmative steps. (45) That resistance is a procedural move, however--an insistence on differentiating oneself. (46) It "expresses concern--shared and presented by law itself--that the legal process may not be able to do justice to, or in terms of, the accused's own speech." (47) Michael Seidman also highlights the connection between silence and the authenticity and integrity of narrative. "Whereas speech ensnares us in a web of other people," he writes, "silence demonstrates the ineradicable and exhilarating loneliness of pure choice." (48) The discernible content of silence lies primarily in this refusal to take part. Although difficult to maintain over time, silence should have more procedural force when it is attempted. The current law of interrogations, however, gives attempted silence no effect.

Nor has legal theory accounted for the complicated co-authorship of statements produced in the wake of attempted silence. (49) Silence in performance illustrates why preserving that space matters. It otherwise fills with sound from the audience. What creates interesting compositions in the arts leaves dangerous ambiguity in the criminal justice system. When law enforcement attributes substantive meaning to silence, that imputed meaning often misleads.'" Negative inferences flow from opting out of questioning, even though greeting law enforcement with silence or signs of anxiety may have nothing to do with consciousness of guilt. And when interrogators then add their own sounds to the silence and thus shape a statement to conform to expectations, even deeper inaccuracies can result.

C. The Legal Meaning of Silence

In contemporary criminal investigations, however, silence rarely succeeds in separating defendants' own thoughts and plans from investigators' intentions. Conversely, silence is often taken as incriminating speech. Law enforcement can accuse someone of a crime and then introduce silence in the face of that accusation as substantive evidence of guilt. (51) Silence can also impeach a defendant's excuse, explanation, or alibi at trial. (52) Relatedly, silence in response to a statement by someone else can qualify as a defendant's adoption of that statement for purposes of the exemption of a party's own admissions from the hearsay prohibition. (53) It is treated as evidence of the truth of the unrefuted accusation and admissible as such, so long as "it would have been natural, under the circumstances, to assert [or deny] the fact." (54) But the circumstances of both law enforcement encounters and criminal accusations upset the balance of natural conversation. (55) Withdrawal when confronted with law enforcement questioning constitutes the most ordinary reaction. Choosing to stay silent, however, does not suffice to invoke a defendant's right to have silence and end questioning. (56) Thus, while silence has evidentiary worth, it cannot by itself assert a defendant's rights. (57)

This is so because, contrary to the popular gloss on "taking the Fifth," no robust right to be silent or to impose silence on law enforcement actually exists. The Fifth Amendment provides protection only against compelled, testimonial self-incrimination. (58) Disregard for the procedural significance of silent refusal has a long provenance. According to Albert Alschuler, for example, the Fifth Amendment privilege "in its inception was not intended to afford criminal defendants a right to refuse to respond to incriminating questions." (59) Instead, "as embodied in the United States Constitution," its goal was simply to prohibit "improper methods of interrogation." (60) One must affirmatively assert the right to stay silent, while under threat of judicially imposed punishment, before the right even attaches.

Until the 1966 Miranda decision, the "improper" questioning addressed by the Fifth Amendment did not generally contemplate extrajudicial interrogations like encounters with the police. (61) The Court's earlier oversight of police questioning references the Due Process Clause, (62) using a "totality of the circumstances" inquiry to evaluate whether a given interrogation technique overbore a suspect's will. (63) The nature of law enforcement's threats and promises, the conditions of the questioning, and the suspect's particular vulnerabilities are among the relevant circumstances. (64) That subjective test has proven unpredictable, (65) and the Miranda Court substituted a set of bright-line requirements in the form of warnings to suspects. (66)

The Miranda decision concluded that the privilege against self-incrimination is "fully applicable during a period of custodial interrogation" and required specific safeguards for the privilege in that setting. (67) But those safeguards are not additional protections so much as a hedge against the implications of the holding. Miranda established that all situations of custodial interrogation are, by definition, compulsion, (68) and the constitutional privilege is violated whenever there is compelled testimonial self-incrimination. As a result, all incriminating statements obtained through custodial interrogations were theoretically subject to exclusion. In other words, Miranda stands for a proposition it does not state. It does not grant a "right to remain silent" per se. Rather, it sets forth a procedure for permitting custodial interrogation despite the right to be free from compelled testimonial self-incrimination. (69)

The Court's establishment of the well-known warnings that suspects receive--and its pronouncement that those warnings would be sufficient to mitigate the inherent compulsion of interrogations--allowed the continued use of investigative interviews. (70) A person in custody and subject to questioning "must first be informed in clear and unequivocal terms that he has the right to remain silent." (71) That warning must also "be accompanied by the explanation that anything said can and will be used against the individual in court." (72) And the suspect must be further "informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation," and that "if he is indigent a lawyer will be appointed to represent him." (73) Given those warnings, a suspect, in theory, no longer experiences compulsion, and subsequent statements are admissible. Many police interrogations, however, occur prior to formal custody and therefore in the absence of any warnings at all. (74)

Moreover, even though the Fifth Amendment privilege now extends beyond the courtroom to the stationhouse, silence in the courtroom receives substantially more protection than silence in interrogations. (75) In Griffin v. California, (76) the Supreme Court established that prosecutors may not comment on a defendant's silence at trial, as that argument raises the cost of asserting the Fifth Amendment privilege. (77) Conversely, defendants cannot escape comments equating silence with guilt when the silence occurred in conversation with law enforcement. A defendant's post-arrest silence, after receiving Miranda warnings, is sufficiently "ambiguous" to preclude admission. (78) Prt-Miranda silence, however, even when a defendant is under arrest, still constitutes impeachment material. (79)

The law thus treats silent responses during noncustodial questioning as substantively unambiguous. Pre-arrest silence signifies a telling failure to deny or consciousness of wrongdoing. On the other hand, silence is procedurally ambivalent throughout investigative encounters. Rather than serving as a clear refusal to engage or an effective invocation of rights, at best it delays questioning and "confession." Of course, silence can preface a truthful and accurate statement, but its breach often leads to the unreliable government-created evidence as well. Interrogation practices on the ground, however, take no account of the connection between silence and the integrity of the investigation.

1. Substantive Silence. The Supreme Court's most recent decision concerning police interviews that occur prior to arrest further encroaches on the protection that silence can provide by way of separation. According to the reasoning in Salinas v. Texas, (80) silence constitutes a substantive admission of guilt if maintained in a noncustodial setting. (81) And even stationhouse interviews that are functionally official can be labeled noncustodial if they lack the formal indicia of arrests. (82) In Salinas, the defendant Genovevo Salinas voluntarily went to a Houston police station to answer questions about the 1992 murder of two brothers. (83) As he was not in custody during questioning, the case did not implicate Miranda but instead addressed the broader evidentiary significance and admissibility of pre-arrest silence under the Fifth Amendment. Over the course of an hour, Salinas answered all of the officers' questions save one. When asked if the shotgun casings found at the scene of the crime would match a shotgun retrieved from the home he shared with his parents, Salinas exhibited nervous behavior--reportedly looking down at the floor, shuffling his feet, biting his lip, clenching his hands, and "tightening] up" (84)--but he gave no verbal response. After he stayed silent for a few moments, police changed the subject, and Salinas continued answering questions. (85) He was arrested immediately after questioning on outstanding traffic warrants but subsequently released because prosecutors did not believe they had sufficient evidence to charge him. (86) Salinas was later indicted for murder, convicted, and sentenced to twenty years in prison. (87) At trial, prosecutors cited his failure to respond to the ballistics question as evidence of his guilt. In closing argument, the prosecutor asserted that an innocent person asked about the shotgun shells would have said, "What are you talking about? I didn't do that. I wasn't there." (88)

The Court ruled 5-4 that this inference from Salinas's silence was a permissible argument because the Fifth Amendment privilege is not "self-executing." (89) Justice Alito's opinion for the plurality of the Court concluded that Salinas failed to invoke his Fifth Amendment right, and that invocation is required except when a criminal defendant has declined to take the stand at trial, or where there is government coercion rendering a statement involuntary. (90) Because Salinas was neither a nontestifying defendant protected by Griffin nor a suspect subjected to the inherently coercive environment of custodial interrogation, the silent response received no protection. To escape the evidentiary significance of pausing and remaining silent during questioning, the Court held that suspects--in some affirmative terms not specified in the opinion--must assert their rights. (91)

A more nuanced understanding of the expressive function of silence emerges from Justice Breyer's dissent. Commenting on silence does, in the dissent's view, compel a defendant to testify against himself. (92) As the Miranda Court concluded, no use should be made at trial of "the fact that [the defendant] stood mute or claimed his privilege in the face of accusation." (93) Even in precustodial encounters, because silence can communicate implied assertions of fact or belief, it can also be "testimonial" within the meaning of the Fifth Amendment. (94) Moreover, invocation of the Fifth Amendment privilege should be recognized, according to the dissent, even absent specific words or direct assertions. (95) The relevant question is whether one can "fairly infer from an individual's silence and surrounding circumstances an exercise of the Fifth Amendment privilege." (96) The majority's reasoning in Salinas, however, precludes consideration of silence for the one thing it seems well suited to communicate, which is a suspect's reluctance to engage. (97) Instead, the decision supports the use of silence as a confession, despite the substantive ambiguity of silence, and the opening that it leaves for participation and interpretation by the government. (98)

2. Procedural Silence. Even in cases that clearly animate Miranda's protections, the Court has interpreted silence to the government's advantage. Not speaking to assert Fifth Amendment rights can be enough to establish waiver. Take the defendant in Berghuis v. Thompkins, (99) a shooting suspect who sat in a straight-backed chair for almost three hours, making few audible noises, and refusing to respond to law enforcement's questions. (100) Throughout a lengthy accusatory monologue by police, Thompkins sustained near-total silence--punctuated only by a few nods of his head, a moment when he rejected the offer of a peppermint, and a comment that his chair was uncomfortably hard. (101) Though Thompkins received his Miranda warnings and acknowledged that he understood them, he declined to sign the written waiver of his rights. (102) At the end of this interrogation, a detective asked if Thompkins believed in God, and he responded audibly with one word: "Yes." Thompkins was then asked if he prayed to God, and he again answered "yes." And finally, the detective said, "Do you pray to God to forgive you for shooting that boy down?" Thompkins once more said "yes," but thereafter refused to make a written confession. (103) The Michigan trial court admitted his three "yes" responses into evidence, and Thompkins was convicted of murder and sentenced to life imprisonment. (104)

When the case reached the Sixth Circuit on habeas review, the court held that Thompkins' "persistent silence for nearly three hours in response to questioning and repeated invitations to tell his side of the story offered a clear and unequivocal message to the officers: Thompkins did not wish to waive his rights. (105) The Supreme Court reversed, in another 5-4 decision, reasoning that the silence itself was insignificant because the "yes" responses were uncoerced and established "an implied waiver of the right to remain silent." (106) The Court further concluded that allowing silence itself to serve as an invocation of the right to be silent would complicate law enforcement's ability to determine a suspect's intent. (107) Thus the ambiguity of silence operates only in law enforcement's favor. That analysis marks a clear departure from the Miranda decision itself, which stated that neither silence nor a subsequent confession could amount to a valid waiver. (108)

For suspects, it has grown increasingly difficult to assert and maintain the right to stay silent. Only by verbally and explicitly invoking the Fifth Amendment privilege can one silence questions. Once the privilege is successfully invoked, interrogators in theory will "scrupulously honor[]" it by ceasing questioning, and will resume engagement only after time has passed and new warnings have been issued. (109) If a specific request for the assistance of an attorney has been made, questioning must stop altogether and cannot continue without counsel present, unless the defendant reinitiates the interview and waives her rights. (110) That request for legal assistance, however, must be not only specific but also sustained. The defendant in Davis v. United States (111) for example, endured an hour and a half of questioning in silence, and then said, "Maybe I should talk to a lawyer." (112) The Court found that statement too equivocal to constitute a request for counsel. (113)

The high standards for invoking the right to stop questioning produce many failed attempts at silence. Invocation must be unmistakable, (114) and it must be out loud. Any ambivalence allows questioning to continue over time, and silence is always construed as ambivalent. As Justice Sotomayor noted in her Berghuis dissent, "[A] suspect who wishes to guard his right to remain silent against such a finding of 'waiver' must, counterintuitively, speak--and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police." (115) Her opinion catalogues a variety of direct statements deemed too ambiguous to constitute invocation--including "I'm not going to talk about nothin[g]"; "I just don't think that I should say anything"; "I don't even want to, you know what I'm saying, discuss no more about it"; "I wish to not say any more"; and "I'd like to be done with this." (116) It is no wonder that so few defendants can successfully invoke the right to silence when it is insufficient simply to state "I got nothin[g] more to say to you. I'm done. This is over." (117)

It is true that a suspect can, technically, neither waive nor invoke, and instead remain completely silent and wait out law enforcement's tactics. But precedents like Berghuis encourage law enforcement "to question a suspect at length--notwithstanding his persistent refusal to answer questions--in the hope of eventually obtaining a single inculpatory response which will suffice to prove waiver of rights." (118) The boundary that silence seeks to create is simply unsustainable in the face of prolonged interrogation.

As a result, attempted silence rarely serves any purpose helpful to the defendant. The negative space around it gets interpreted as assent, but it does not succeed as a positive assertion of rights or as an objection. And the real danger of encroaching on silence arises once these permissive rules encourage its breach and defendants do begin to speak.

(3). Broken Silence and the Problem of Co-Authorship. When the significance of silence as an assertion goes unnoticed, and interrogators succeed in breaking silence, the resulting statements are only partly of a suspect's own making. Manipulating a subject into compliance often means that a confession contains intentional or unintentional distortions as well. The datasets recently generated by Innocence Projects reveal the leading role that false confessions play in wrongful convictions and a high incidence of government-created evidence within those false confessions. (119) Brandon Garrett's landmark study identifies forty false confessions to rape or murder among the first 250 cases involving DNA exonerations. (120) Ninety seven percent of those statements included specific, nonpublic details about how the crime occurred. (121) For example, defendant Jeffrey Deskovic, whose story Garrett recounts, drew accurate diagrams of three different crime scenes of which he had no actual knowledge. He was convicted and served sixteen years in prison before he was exonerated. (122)

Many criminal justice scholars have turned their attention to the puzzling mechanisms of contaminated confessions, (123) but the relationship between a suspect's initial silence and those statements is not well understood. Silence may constitute the only accurate contribution that a suspect can offer, and the statement least likely to deceive. (124) Yet investigators often undervalue it, and may even find it discomfiting. Forbearance in an interrogation can appear confrontational when law enforcement assumes guilty knowledge on the part of the suspect. (125) Police want to assert their authority, (126) enhance the efficiency of the investigation, and extract information they view as essential to solving the crime. (127)

Moreover, confessional speech, in Western culture, has a "prime mark of authenticity" and is "par excellence the kind of speech in characteristics such as youth, disability, or mental illness, id. at 1064, but many of them involved transmission of non-public facts to the defendant by law enforcement, id. at 1057. This contamination problem now appears "epidemic, not episodic" when it comes to false confessions. Laura H. Nirider, Joshua A. Tepfer & Steven A. Drizin, Combating Contamination in Confession Cases, 79 U. CHI. L. Rev. 837, 846-49 (2012). which the individual authenticates his inner truth." (128) Both investigators and fact-finders highly prize confessions because they appear to address the intractable intersubjectivity problem: an individual's own statement seems the best proof of her state of mind. (129) In many cases, what "really happened" is not otherwise accessible to investigators, and the prospects for identifying any actionable offense turn on overcoming a suspect's silence. (130)

It is true, of course, that most suspects talk, and some of them make the affirmative choice (albeit an ill-considered one) to do so. More than (80) percent of suspects waive their right to silence once advised of it, and the majority of interrogations yield some form of incriminating statement. (131) Factually innocent suspects often waive because they believe they have nothing to fear, while guilty ones often conclude that waiver will make them appear less culpable. (132) "[W]ith the right combination of alibi and excuse," (133) they imagine they will parry questions successfully.

Another set of suspects makes a meaningful attempt at silence and still fails. (134) The focus here is on this group because the statements they ultimately give to investigators often include critical elements that the interrogators co-author. The resulting "government-created evidence" has in turn been revealed as a significant source of error that merits closer scrutiny. (135) Some measure of participation from an interrogator is inevitable, and most confessions are jointly produced to an extent. Likewise, cross-examination in court can yield useful and accurate testimony, even though it consists almost entirely of statements by the examining lawyer. Even confessions that do contribute to truth-seeking emerge through questioning and thus include language generated by the government. As Anne Coughlin writes, "shapely confessions"--statements that will advance the government's case in court, or strengthen its hand at plea bargaining--"rarely, if ever, spring full-blown from the mouths of criminal suspects." (136)

Though all evidence "comes" from the government in the sense that the government gathers it in the investigative process and presents it in order to meet the burden of proof, (137) evidence that is heavily influenced by the government yet purports to be from some independent source can cause error. That flaw seems to emerge more frequently when a suspect first chooses not to talk but then submits after a prolonged silence. Although (90) percent of all interrogations last no more than two hours, (138) percent of the exonerees in Brandon Garrett's dataset of wrongful convictions endured interrogations that went on for more than three hours, and in some cases took place over days. (139) In protracted encounters, law enforcement "maintains control of the storytelling, so that the suspect is put in a position of denying or affirming--often, affirming through denials that lead to entrapment--the unfolding narrative that ... is largely of the interrogator's own making." (140)

Despite the assumption that the evidence in the accused's own words always represents "the most reliable evidence we can have," (141) contaminated confessions contain few salient facts that are actually the accused's own statements. The extent to which interrogators participate in the construction of statements requires some calibration, and what happened when attempted silence failed is often quite telling with regard to the degree of government participation. The moment when silence is breached contains information not only about whether involuntary testimony was elicited from a defendant's "own mouth," (142) but also about whether the government put words in the defendant's mouth. Recent assessments of unconfronted hearsay statements, (143) suggestive eyewitness identifications, (144) and statements of jailhouse informants (145) underscore this problem of government-created evidence. But false confessions may best illustrate the investigative interstices where government agents can knowingly or unknowingly manipulate inputs. (146)

Although interrogation regulation has been slow to change, the social science research demonstrating that "innocent individuals are surprisingly easily seduced to falsely confess a crime" has proliferated. (147) Researchers have demonstrated that subjects will not only succumb to the pressures of interrogation but will then internalize false memories of committing a crime. In a recent study, 70 percent of a group of Canadian undergraduate students reported episodic memories of committing crimes after exposure to misinformation in a controlled experimental setting. (148) Interrogation techniques can thus put words not only in suspects' mouths but in their memories. In a realm where complicating the very idea of authorship is part of the point, confounding the identity of the "performers" in 4'33" expands the meaning of the piece. 4'33" is "full of sound," Cage explained, that he "did not think of beforehand," but heard "for the first time the same time others hear[d]." (149) But blurring those lines is not desirable when law enforcement participates in creating evidence, and that evidence is then central to a finding of criminal liability.
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Title Annotation:Abstract through I. Attempted Silence, p. 697-722
Author:Griffin, Lisa Kern
Publication:Duke Law Journal
Date:Jan 1, 2016
Words:6087
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