Decades after the Supreme Court mandated in Miranda v. Arizona that police advise suspects of their constitutional rights before custodial interrogation, confusion remains about the contours of the rule, and some law enforcement officers still try to game the system. In his excellent Note, “No Earlier Confession to Repeat”: Seibert, Dixon, and Question-First Interrogations, Lee Brett presents a careful analysis of the legal landscape applicable to so-called question-first interrogations. Mr. Brett offers a compelling argument urging courts not to interpret Bobby v. Dixon as limiting the application of Missouri v. Seibert to two-step (i.e., question-first) interrogations only when there’s an “earlier confession to repeat.”
I’m a little biased about this topic: I was one of the lawyers representing Bobby Johnson in petitioning the United States Supreme Court to review his case, which was the backdrop for Mr. Brett’s Note. Mr. Brett has done such an outstanding job that there’s not much left for me to say about those legal issues. So, I’d like to use this opportunity to explore false confessions and how the field of behavioral economics—specifically, the phenomenon that psychologist Daniel Kahneman dubs WYSIATI (What You See Is All There Is)—can help explain false confessions and the convictions they produce.
Recommended CitationMichael R. Hoernlein, Comment: WYSIATI and False Confessions, 78 Wash. & Lee L. Rev. 509 (2021).
Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol78/iss1/10