Interrogating the Facts of the Case

Buried within many criminal judicial opinions is the origin of their “facts”—the interrogation room. Criminal law pedagogy should expose this origin. If we treat the alleged product of interrogation as “what happened,” as criminal cases (and professors) sometimes do, we obscure the ways in which interrogators are trained to incriminate and to co-create confessions. We also risk obscuring subsequent layers of reporting by police, prosecutors, or judges. Recent scholarly literature urges criminal law professors to teach differently, warning that we distort, sanitize, and bolster the carceral state when we erase governmental agents and bypass procedure. Treating the “facts of the case” as “what happened” brings those same risks and must be added to the literature and its calls for change. Criminal law professors need not embark on a full exposition of police interrogation or police “testilying.” But they should open the door. Criminal teaching would benefit from discussions of the importance, here as elsewhere, of scrutinizing assertions and investigating their sources. Criminal scholarship would benefit from discussion of this pedagogical problem and of our broader tendency to treat governmental assertions as fact. The benefits are not just pedagogical. The criminal law classroom contains the vast bulk of future criminal system practitioners and many other changemakers. Invigorated awareness of the governmental assertion’s power, and of the government’s construction of “fact” and thus of “crime,” can shift and unsettle views of the system and those affected by it and thus can shift the system itself.