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Volume 110 - Issue 1


Innocent Juvenile Confessions

Seth P. Waxman | January 1, 2020

An Exoneree’s Interrogation Nightmare

Christopher Ochoa | January 1, 2020

Defining “Special Care”

Ben Gifford | January 1, 2020

For the better part of the last century, the Supreme Court has held that courts must evaluate the voluntariness of juvenile confessions with “special care.” This special care requirement cautions courts against judging juveniles “by the more exacting standards of maturity” or comparing a juvenile suspect “with an adult in full possession of his senses and knowledgeable of the consequences of his admissions.” It also instructs courts to ensure that a juvenile’s “admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.” Despite the force with which the Supreme Court has spoken on the issue, lower courts regularly fail to follow the special care mandate. Some overlook the standard altogether, while others only pay lip service to it, and still others misconstrue it and disregard it on mistaken grounds. The result in any of these cases is that lower courts assess the voluntariness of juvenile confessions in the same way they would evaluate confessions obtained from adults, not with the heightened degree of scrutiny that Supreme Court precedent requires. In order to tether courts more firmly to the mast of special care, this Article highlights specific factors that courts should consider when evaluating the voluntariness of juvenile confessions. By framing their analyses in terms of these factors, courts can hopefully begin to evaluate juvenile confessions with the requisite level of care.

False Confessions and Testimonial Injustice

Jennifer Lackey | January 1, 2020

In the criminal justice system, confessions have long been considered the gold standard in evidence. An immediate problem arises for this gold standard, however, when the prevalence of false confessions is taken into account. Since 1989, there have been 367 post-conviction DNA exonerations in the United States, and 28% of these involved false confessions. Moreover, false confessions involve everything from minor infractions to detailed accounts of violent crimes. This article takes a close look at false confessions in connection with the phenomenon of testimonial injustice. It argues that false confessions provide a unique and compelling challenge to the current conceptual tools used to understand this epistemic wrong. In particular, it argues that we cannot make sense of the unjust ways in which false confessions function in our criminal justice system by focusing exclusively on speakers getting less credibility than they deserve. It concludes that the way we conceive of testimonial injustice requires a significant expansion to include what is called agential testimonial injustice—where an unwarranted credibility excess is afforded to speakers when their epistemic agency has been denied or subverted in the obtaining of their testimony. At the same time, it shows that work by legal scholars and social scientists can benefit by viewing the practices that produce confessions through the lens of this expanded notion, and hence that epistemological tools can shed light on issues with enormous moral and practical consequences.