The title of this post is the headline of this new New York Times segment of its series “Room for Debate.” The NY Timesbrought together five leading lights to comment on this question (all of whom appear to supply variations on the answer “Yes”). Here is how the segment sets up the debate, followed by links to the must-read pieces that provide five different answers to the question: A U.S. district judge in Denver recently rejected a plea bargain in a child pornography case because the defendant had agreed to waive his right to appeal. The judge said such a deal would undermine the purpose of appellate courts. (He later accepted a plea bargain without that stipulation.) Legal observers — including the editorial board of The New York Times — focused on the judge’s concern as a sign that plea bargains have gotten out of control and in the process given prosecutors too much power. When one party decides whether to bring charges, what charges to bring and whether to offer a plea bargain, is the justice system lacking checks and balances? Angela Davis, “Prosecutors’ Overreaching Goes Unchecked” Samuel Buell, “Judgment Requires Power and Vice Versa” Rachel Barkow, “The Problem With Mandatory Minimums” Nancy Gertner, “The Right to Appeal Is an Issue of Fairness” Paul Cassell, “Limit Control Over Charges and Sentencing”

New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime. An article by Professor Garrett draws on trial transcripts, recorded confessions and other background materials to show how incriminating facts got into those confessions — by police introducing important facts about the case, whether intentionally or unintentionally, during the interrogation.

This is the issue of confession contamination. The issue is not new, but Professor Garrett’s research will go some way in establishing the point to be considered.

Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.” . . . Jim Trainum, a former policeman who now advises police departments on training officers to avoid false confessions, explained that few of them intend to contaminate an interrogation or convict the innocent. “You become so fixated on ‘This is the right person, this is the guilty person’ that you tend to ignore everything else,” he said. The problem with false confessions, he said, is “the wrong person is still out there, and he’s able to reoffend.”

This is the issue I talk about frequently with bad investigations – confirmatory bias. These same issues can and do arise in court-martial under the UCMJ.