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False ConfessionsFalse Confessions

Richard A. Leo, Ph.D., J.D.

Associate Professor of Criminology &

Associate Professor of Psychology

University of California, Irvine

(949) 824-1560

Email: rleo@uci.edu

February, 2003

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OutlineOutline

What should you know about police interrogation and coercion?

How and why do police elicit false confessions?

How should you defend police-induced false confession cases?

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Background PreparationBackground Preparation

Learn the training, theory and practice of police interrogation

Familiarize yourself with local interrogation training materials

Read police interrogation training manualsRead any relevant academic articles

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History of American History of American Police InterrogationPolice Interrogation

The Era of the “Third Degree”The Rise of the PolygraphThe Era of Psychological Interrogation:

– The “Reid Method” (1942)– Miranda v. Arizona (1966)– The DNA Revolution in criminal justice

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The Reid Method of The Reid Method of InterrogationInterrogation

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The Reid MethodThe Reid MethodInterviewingBehavioral AnalysisInterrogation

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““Textbook” InterviewingTextbook” Interviewing

Victims, witnesses, potential suspectsPurpose: To get the truthGeneral, Open-ended questionsManner: Non-threatening, non-suggestiveDetective does not dominate questioning

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Behavioral Analysis: TheoryBehavioral Analysis: Theory

The act of lying induces fear and anxiety in normally socialized individuals

This internal tension produces involuntary behavioral (verbal & non-verbal) responses

Trained detectives can interpret whether these responses indicate truth-telling or deception

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““Textbook” InterrogationTextbook” Interrogation

Question “Suspects”Purpose: to get incriminating information,

Not necessarily the truthSuggestive, manipulative questionsManner: accusatorialDetective dominates questioning

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Broad Overview: The Stages Broad Overview: The Stages of the Interrogation Processof the Interrogation Process

I. Pre-interrogation interactionII. Eliciting the Miranda waiverIII. Interrogate suspectIV. Collecting post-admission narrative

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The Social Psychology of The Social Psychology of Police InterrogationPolice Interrogation

Goal: Move suspect from denial to admission Method: Manipulate suspect’s perceptions of

– His immediate situation– The choices available to him– The consequences of each choice

Psychological objective: Persuade suspect to perceive that it is in his self-interest to comply with the interrogator’s wishes

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The Psychological StepsThe Psychological Stepsof Police Interrogationof Police Interrogation

Step 1: Convince suspect that he is caught, there is no way out, his situation is hopeless

Step 2: Offer the suspect inducements to confess that convince him he is better off by confessing or that he has no real choice

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Step 1: Shifting a Suspect from Step 1: Shifting a Suspect from Confident to HopelessConfident to Hopeless

Isolate suspectConvey authority and controlAccusation (unwavering, repetitive)Cut-off denialsDominate interaction

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Step 1: Shifting a Suspect from Step 1: Shifting a Suspect from Confident to HopelessConfident to Hopeless

Isolate suspectConvey authority and controlAccusation (unwavering, repetitive)Cut-off denialsDominate interaction

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Step 1: Shift Suspect From Step 1: Shift Suspect From Confident to HopelessConfident to Hopeless

The Evidence PloyExamples:

– Demeanor evidence– Witness evidence– Print evidence– Bodily evidence– “Scientific” technology

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Review of Step 1:Review of Step 1:

Goal = Break suspect’s confidence in ability to deny accusation by persuading him to perceive his situation as hopeless

If successful, suspect will– perceive that he is caught– perceive that denial is futile– perceive there is no way out of his predicament

Still may not be enough to get admission

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Step 2: Low-End (Moral) Step 2: Low-End (Moral) InducementsInducements

Appeals to conscience and catharsisAppeals to religious duty, absolutionAppeals to an improved self-ImageAppeals to truthAppeals to communal benefits

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Step 2: Mid-range (Systemic) Step 2: Mid-range (Systemic) InducementsInducements

Implicitly focus suspect’s attention on the Processing of case in the criminal justice system

The consequences of cooperation, confession and Remorse vs. denial, deception and silence

“Only opportunity to tell your side of the story”Appeals to actions of police, prosecutor, judge, jury

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Step 2:High-end (Coercive) Step 2:High-end (Coercive) InducementsInducements

“Themes” communicating leniency/threatPre-meditated murder vs. accident or self-defense;Rape vs. consensual love-makingIntentional Theft vs. Borrowing the Money

“Maximization” & “Minimization”Formatted vs. Unformatted“Pragmatic Implication”Explicit threats and promises

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Review of Step 2Review of Step 2

Inducements intended to persuade suspect that the marginal benefits of confessing outweigh the marginal costs

Inducements are offered against the back-drop of hopelessness established in Step 1

If successful, suspect will perceive that the act of confessing is in his self-interest

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How to Defend Coerced/ How to Defend Coerced/ False Confessions: DiscoveryFalse Confessions: Discovery

If interrogation not tape recorded, have client write detailed, narrative “Time-Line”

Need to do right awayNot a summary statementDebrief client about “Time-Line” Time-line will be invaluable in structuring

interrogators’ cross-examination

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How to Defend Coerced/False How to Defend Coerced/False Confessions: DiscoveryConfessions: Discovery

Familiarize yourself with relevant police training materials and academic research

Subpoena detectives’ interrogation training notes, records, manuals, class materials, etc.

Interview/depose interrogators if possibleSearch for detectives’ prior interrogation

cases & talk to other defense attorneys

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How to Defend Coerced/False How to Defend Coerced/False Confessions: SuppressionConfessions: Suppression

Do your homework & have a game planCross-examine detectives on general

training & practice, as well as case specificsIf interrogation not recorded, challenge lack

of fit between detective’s account and expectations from training/research

If not recorded, argue that this fact undermines state’s burden of proof

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How to Defend Coerced/False How to Defend Coerced/False Confessions: SuppressionConfessions: Suppression

Demonstrate coercion & involuntarinessArgue that State’s willful failure to preserve

the evidentiary record is unacceptable and falls below contemporary standards

Argue your client’s innocence (if relevant)Argue that prejudicial effect of confession

outweighs its probative value (if relevant)

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The “Myth” of The “Myth” of False ConfessionsFalse Confessions

1) Police interrogation is just a conversation2) Innocent people will not confess3) Only time police interrogation will lead

to false confession is if:– A) Interrogator uses physical torture; or– B) Suspect is mentally ill

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Why do the innocent confess?Why do the innocent confess?

Inept, improper, and/or psychologically coercive interrogation procedures

Interact with individual personality traitsTwo pathways to police-induced false

confession:– Compliance– Persuasion

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““Compliant” False Compliant” False ConfessionsConfessions

Suspect confesses to put an end to intolerable stress, to receive perceived benefit and/or avoid harsher punishment

Suspect knowingly confesses falselySuspect comes to perceive that benefits of

confessing outweigh costs of denialSuspect typically retracts confession

immediately following interrogation

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““Persuaded” False ConfessionPersuaded” False Confession

1st Step: Interrogator causes suspect to come to doubt reliability of his memory

2nd Step: Suspect comes to believe a reason exists for his amnesia/memory failure

3rd Step: Suspect constructs post-admission narrative, usually by guessing, making up or inferring answers to detective’s questions

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At Risk IndividualsAt Risk Individuals

“Mentally Handicapped” individualsJuvenilesHighly suggestible, compliant and/or naive

individualsIndividuals with low tolerance for stress

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IV. Analyzing Reliability: IV. Analyzing Reliability: Evaluating the Post-Evaluating the Post- Admission Narrative Admission Narrative

Interrogation can be analytically divided into pre-admission and post-admission phases

Post-admission narrative = Account suspect gives after saying “I did it”

Post-admission narrative = standard by which the validity of confession should be judged

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Evaluating Your Client’sEvaluating Your Client’sPost-Admission NarrativePost-Admission Narrative

How well does it “fit” with the crime facts?Absent contamination, does it demonstrate

guilty knowledge? Or ignorance (on both mundane & dramatic details of crime)

Does it lead police to new, missing or derivative evidence?

Can the confessor explain case anomalies?

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Evaluating Your Client’s Evaluating Your Client’s Post-Admission NarrativePost-Admission Narrative

Is it plausible and internally consistent?Does the confessor’s post-admission

narrative match the V’s accusation?Is it corroborated or disconfirmed by the

physical & medical evidence?Is there evidence left by perpetrator at the

crime scene failing to match the confessor?

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How to Defend Coerced/False How to Defend Coerced/False Confessions: TrialConfessions: Trial

Voir dire potential jurors about whether they believe innocent individuals sometimes falsely confess

Educate jury about the dynamics of interrogation & coerced/false confession

Have client testifyDo not let detective interpret your client’s

“signs of guilt” to the jury

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How to Defend Coerced/False How to Defend Coerced/False Confessions: TrialConfessions: Trial

Argue innocence, not reasonable doubtUse demonstrative/visual materialsUse cautionary instructions:

– That oral admissions made outside presence of court should be taken with caution

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Whether to Consult an Whether to Consult an Interrogation ExpertInterrogation Expert

May not need an expert: Pros & ConsIf you want one, make sure you contact an

interrogation/confession expertSocial psychologist v. Forensic

psychologistConsultant v. Expert witness“Pure” expert v. case specific expert

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Cases Supporting The use of Cases Supporting The use of Expert Witness TestimonyExpert Witness Testimony

California v. Page, 2 Cal.App. 4th 161(1991)

U.S. v. Hall, 93 F.3d 1337 (1996)U.S. v. Hall, 974 F.Supp. 1198 (1997)Crane v. Kentucky, 476 U.S. 683 (1986)

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Future Reforms: Mandatory Future Reforms: Mandatory Electronic RecordingElectronic Recording

Recording creates an objective, comprehensive and reviewable record

Recording eliminates the swearing contest & deters police misconduct

You need to act collectively to make police record interrogations

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Resources: ArticlesResources: Articles

R. Leo (1996). “Inside the Interrogation Room.” Journal of Criminal Law and Criminology.

S. Kassin (1997). “The Psychology of Confession Evidence.” The American Psychologist.

R. Ofshe & R. Leo (1997). “The Decision to Confess.” Denver University Law Review.

R. Leo & R. Ofshe (1998). “The Consequences of False Confessions.” Journal of Criminal Law & Criminology.

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Resources: BooksResources: Books

Gisli Gudjonsson (1992). The Psychology of Interrogation, Confessions & Testimony.

Lawrence Wrightsman and Saul Kassin (1993). Confessions in the Courtroom.

David Lykken (1998). A Tremor in the Blood: The Uses and Abuses of the Lie Detector.