1 False Confessions False Confessions Richard A. Leo, Ph.D., J.D. Associate Professor of Criminology & Associate Professor of Psychology University of California, Irvine (949) February, 2003

2 Outline 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?

3 Background Preparation Learn the training, theory and practice of police interrogation Familiarize yourself with local interrogation training materials Read police interrogation training manuals Read any relevant academic articles

4 History of American Police Interrogation The Era of the “Third Degree” The Rise of the Polygraph The Era of Psychological Interrogation: – The “Reid Method” (1942) – Miranda v. Arizona (1966) – The DNA Revolution in criminal justice

5 The Reid Method of Interrogation

6 The Reid Method Interviewing Behavioral Analysis Interrogation

7 “Textbook” Interviewing Victims, witnesses, potential suspects Purpose: To get the truth General, Open-ended questions Manner: Non-threatening, non-suggestive Detective does not dominate questioning

8 Behavioral 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

9 “Textbook” Interrogation Question “Suspects” Purpose: to get incriminating information, Not necessarily the truth Suggestive, manipulative questions Manner: accusatorial Detective dominates questioning

10 Broad Overview: The Stages of the Interrogation Process I. Pre-interrogation interaction II. Eliciting the Miranda waiver III. Interrogate suspect IV. Collecting post-admission narrative

11 The Social Psychology of Police 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

12 The Psychological Steps of 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

13 Step 1: Shifting a Suspect from Confident to Hopeless Step 1: Shifting a Suspect from Confident to Hopeless Isolate suspect Convey authority and control Accusation (unwavering, repetitive) Cut-off denials Dominate interaction

14 Step 1: Shifting a Suspect from Confident to Hopeless Step 1: Shifting a Suspect from Confident to Hopeless Isolate suspect Convey authority and control Accusation (unwavering, repetitive) Cut-off denials Dominate interaction

15 Step 1: Shift Suspect From Confident to Hopeless The Evidence Ploy Examples: – Demeanor evidence – Witness evidence – Print evidence – Bodily evidence – “Scientific” technology

16 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

17 Step 2: Low-End (Moral) Inducements Step 2: Low-End (Moral) Inducements Appeals to conscience and catharsis Appeals to religious duty, absolution Appeals to an improved self-Image Appeals to truth Appeals to communal benefits

18 Step 2: Mid-range (Systemic) Inducements Step 2: Mid-range (Systemic) Inducements 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

19 Step 2:High-end (Coercive) Inducements “Themes” communicating leniency/threat Pre-meditated murder vs. accident or self-defense; Rape vs. consensual love-making Intentional Theft vs. Borrowing the Money “Maximization” & “Minimization” Formatted vs. Unformatted “Pragmatic Implication” Explicit threats and promises

20 Review 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

21 How to Defend Coerced/ False Confessions: Discovery If interrogation not tape recorded, have client write detailed, narrative “Time-Line” Need to do right away Not a summary statement Debrief client about “Time-Line” Time-line will be invaluable in structuring interrogators’ cross-examination

22 How to Defend Coerced/False Confessions: 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 possible Search for detectives’ prior interrogation cases & talk to other defense attorneys

23 How to Defend Coerced/False Confessions: Suppression Do your homework & have a game plan Cross-examine detectives on general training & practice, as well as case specifics If 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

24 How to Defend Coerced/False Confessions: Suppression Demonstrate coercion & involuntariness Argue 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)

25 The “Myth” of False Confessions 1) Police interrogation is just a conversation 2) Innocent people will not confess 3) Only time police interrogation will lead to false confession is if: – A) Interrogator uses physical torture; or – B) Suspect is mentally ill

26 Why do the innocent confess? Inept, improper, and/or psychologically coercive interrogation procedures Interact with individual personality traits Two pathways to police-induced false confession: – Compliance – Persuasion

27 “Compliant” False Confessions Suspect confesses to put an end to intolerable stress, to receive perceived benefit and/or avoid harsher punishment Suspect knowingly confesses falsely Suspect comes to perceive that benefits of confessing outweigh costs of denial Suspect typically retracts confession immediately following interrogation

28 “Persuaded” False Confession 1 st Step: Interrogator causes suspect to come to doubt reliability of his memory 2 nd Step: Suspect comes to believe a reason exists for his amnesia/memory failure 3 rd Step: Suspect constructs post-admission narrative, usually by guessing, making up or inferring answers to detective’s questions

29 At Risk Individuals “Mentally Handicapped” individuals Juveniles Highly suggestible, compliant and/or naive individuals Individuals with low tolerance for stress

30 IV. Analyzing Reliability: Evaluating the Post- 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

31 Evaluating Your Client’s Post-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?

32 Evaluating Your Client’s Post-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?

33 How to Defend Coerced/False Confessions: 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 testify Do not let detective interpret your client’s “signs of guilt” to the jury

34 How to Defend Coerced/False Confessions: Trial Argue innocence, not reasonable doubt Use demonstrative/visual materials Use cautionary instructions: – That oral admissions made outside presence of court should be taken with caution

35 Whether to Consult an Interrogation Expert May not need an expert: Pros & Cons If you want one, make sure you contact an interrogation/confession expert Social psychologist v. Forensic psychologist Consultant v. Expert witness “Pure” expert v. case specific expert

36 Cases Supporting The use of Expert Witness Testimony Cases Supporting The use of Expert Witness Testimony California v. Page, 2 Cal.App. 4 th 161(1991) U.S. v. Hall, 93 F.3d 1337 (1996) U.S. v. Hall, 974 F.Supp (1997) Crane v. Kentucky, 476 U.S. 683 (1986)

37 Future Reforms: Mandatory Electronic 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

38 Resources: 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.

39 Resources: 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.