“Investigations Vs. Confessions” Please Respond To The Following:
- Per the text, approximately 81% of suspects in criminal cases waive their Miranda rights. Discuss two (2) factors that contribute to the low number of suspects who exercise their Miranda rights. Take a position on whether or not it is ethical for investigating officers to attempt to obtain a waiver of Miranda rights. What is your rationale?
- Review the factors listed in Box 6.4 “The Innocence Project” in Chapter 6 of your textbook that contribute to a false confession during a police interrogation. Research a police department (maybe one in your area) and state one method they use to lessen the instances of false confessions. Remember to consider the factors stated by the Innocence Project.
147
Chapter 6
POLICE INVESTIGATIONS, INTERROGATIONS, AND CONFESSIONS
In this chapter, you will become familiar with:
The rights of individuals when arrested and subjected to interrogation Strategies police use to elicit confessions The reasons people confess to crimes The frequency of false confessions
• • • •
CHAPTER OBJECTIVES
POLICE INTERROGATIONS AND CONFESSIONS
A confession is perhaps the most compelling evidence that can be pre- sented in a criminal trial. A confession, even when subsequently retracted, can infl uence jury verdicts (Kassin & Sukel, 1997). Most jurors view con- fessions as accurate accounts of a defendant ’ s culpability. Indeed, it is likely that the majority of confessions are valid, in that the suspect actually committed a criminal act. However, it is sometimes the case that confes- sions are false. In these cases, a suspect confesses to a crime he or she did not actually commit. In this chapter, we consider the factors that can lead to a false confession.
In order to understand the factors that can contribute to a false confession, one must distinguish between personal and situational risk factors (Kassin & Gudjonsson, 2004). Some individuals are more susceptible to respond to interrogative coercion by being more compliant or more suggestible. Younger suspects, particularly adolescents, or individuals with mental health problems may be more vulnerable to interrogation tactics. Intelligence, drug or alcohol use, and stress are other personal risk factors that may increase the likelihood of a false confession. In contrast, situational risk factors involve the particular techniques used to extract the confession, the time of
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C o p y r i g h t 2 0 1 0 . W i l e y .
A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .
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148 Police Investigations, Interrogations, and Confessions
day the interrogation was conducted, or the length of the interrogation. We review both personal and situational risk factors later in this chapter.
Most people believe that they would never falsely confess to a crime, so they cannot imagine that others would do so. People also tend to believe that confessions stem from individual rather than situational factors. This is known as a fundamental attribution error , which is the tendency to overemphasize dispositional or personality – based explanations for an indi- vidual ’ s behavior while minimizing situational or external causes (Ross, 1977). When applied to confession evidence, this suggests that jurors would interpret a confession as refl ecting the actual guilt of a defendant and discount the possibility of external causes, such as coercion.
Hugo Munsterberg, whose seminal book, On the Witness Stand , is dis- cussed in Chapter 1 of this text, was perhaps the fi rst psychologist to write about the false confession phenomenon. Munsterberg was convinced that a man who had been hanged for murder had falsely confessed to the crime. The press at the time heard of Munsterberg ’ s comments on this case and he became the target of news stories and editorials attacking his view. It is unknown whether this man had actually falsely confessed, but the notion that it is possible that people do falsely confess remained diffi cult to accept until a number of cases surfaced beginning in the 1960s showing that false confessions can and do occur.
Review of Legal Cases
Given the implications of a confession, it is not surprising that there is a considerable amount of case law and research that has addressed the issue of ensuring that a suspect ’ s rights are protected and that a confession is made voluntarily and without coercion. The landmark case of Miranda v. Arizona (1966) held that prior to interrogating a suspect, police must inform individuals of their legal rights. Ernesto Miranda was an indigent defendant who was arrested in Arizona on charges of kidnapping and rape. He was interrogated and signed a confession, and was ultimately found guilty of the charges. He did not have a lawyer present during interroga- tion nor was he asked if he wanted to have an attorney present. In a prior case, the U.S. Supreme Court in Escobedo v. Illinois (1964) recognized a suspect ’ s right to an attorney during police interrogation. In Miranda , the Supreme Court extended this ruling by requiring police to warn suspects prior to interrogation or questioning of several rights, including the right to remain silent, that anything they say can be used against them in a court of law, the right to the presence of an attorney, and the right to free counsel if they cannot afford the cost of an attorney. These warnings are viewed as strengthening an individual ’ s protection against self – incrimination during
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police interrogation. Miranda requires that an interrogation must cease if at any time prior to or during questioning a suspect states a wish to remain silent or to have an attorney present. Once an attorney is requested, the suspect must be given an opportunity to confer with the attorney and to have the attorney present during any subsequent questioning. Miranda ’ s conviction was overturned, but he was subsequently tried without the con- fession evidence. He was convicted and served 11 years in prison.
A suspect may waive his or her rights under Miranda , but this requires that the rights be waived “ voluntarily, knowingly and intelligently before interrogation can commence, otherwise the resulting confession will be inadmissible ” ( Miranda , p. 479), and further that “ any evidence that the accused was threatened, tricked or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive the privilege ” ( Miranda , p. 475). Miranda thus requires fi rst that a suspect understand the nature of the rights that are being waived, and second, that any waiver of those rights is made voluntarily. The Miranda decision has survived a number of challenges, including an attempt by Congress to overturn it, but it has been affi rmed in subsequent cases (see Dickerson v. United States , 2000).
It is perhaps surprising that only about one in fi ve suspects exercise their Miranda rights (Leo, 1996). Police estimate that 81% of suspects waive their rights. Given that interrogation is inherently a stressful and risky situ- ation, the exercise of the right to silence would make a good deal of sense as an avoidance response. So why do so many suspects waive their rights? Costanzo (2004) suggests several reasons, including the fact that detectives deemphasize Miranda warnings, innocent suspects want to show they have nothing to hide, and guilty suspects don ’ t want to appear uncooperative. Costanzo adds that many suspects may not fully appreciate they are waiving their rights. White (2003) writes that police may use a variety of coercive techniques that are questionably legal, but adds that these techniques are dif- fi cult to prove that they resulted in a nonvoluntary waiver of Miranda rights.
Kassin and Norwick (2004) conducted a laboratory experiment to under- stand why most people waive their rights. The study involved 72 participants who were guilty or innocent of a mock theft. Prior to their interrogation, they were given instructions to avoid going to trial or be acquitted at trial. The participants were confronted by either a neutral, sympathetic, or hostile male “ detective ” who sought a waiver of their Miranda rights. Overall, about 58% of all suspects waived their rights, but over 80% of the innocent suspects waived their rights. Kassin and Norwick noted that these participants had a “ na ï ve faith in the power of their own innocence to set them free ” (p. 218), and they conclude that “ Miranda warnings may not adequately protect from police authority the people who may need it most, those falsely accused of crimes they did not commit ” (p. 218).
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150 Police Investigations, Interrogations, and Confessions
The issue of appreciation of rights is central to a valid waiver. Grisso (1981) conceptualizes appreciation of the signifi cance of rights to com- prise three main parts:
One: Suspects must recognize the interrogative nature of police questioning. Two: Suspects must perceive the defense attorney as an advocate for them, and be willing to disclose confi dential information to him or her (appreciation of the right to counsel). Three: Suspects must perceive the right to silence as a right that cannot be revoked, and that statements made by suspects can be used in court (appreciation of the right to silence).
An intelligent waiver of rights suggests that a suspect understands the lan- guage used in Miranda warnings. A number of studies suggest that the vocabulary used in some Miranda warnings may exceed the comprehen- sion and reading level of some suspects. For example, Rogers, Hazelwood, Sewell, Harrison, and Shuman (2007) studied 356 different (written) English language versions of Miranda warnings (that there are so many variations of the Miranda warning is somewhat troubling in itself). They tested each version for reading level and found that they varied from ele- mentary school to college. They found that the majority of the warnings required at least a seventh – grade reading level, with less than 1% of the warnings readable at a fi fth – grade level (about 1% required college level reading ability!). Thus, the reading level of most Miranda warnings may exceed the capability of a substantial number of suspects.
Factors such as mental illness or mental retardation may also affect the accused ’ s ability to make a knowing and voluntary waiver. Suspects with anxiety disorders, for example, may make a false confession as a way of escaping from the anxiety of an interrogation (Leo & Ofshe, 1998). Individuals with intellectual defi cits may become confused, have a desire to please authority fi gures such as detectives, be more suggestible, or not fully appreciate the implications of a confession. Gudjonsson (2003) cites the case of Earl Washington, a mentally retarded man who confessed to murder and rape and was convicted and sentenced to death, despite the fact that he recanted his confession. His case was appealed on the basis that he had not voluntarily confessed and that he did not knowingly and intelli- gently waive his Miranda rights. He spent 18 years in prison before DNA evidence showed that he could not have committed the crime.
Rogers, Harrison, Hazelwood, and Sewell (2007) estimated that nearly 700,000 individuals with mental disorders are arrested annually in the United States. These authors administered Miranda comprehension measures to a sample of 107 mentally disordered defendants (MDOs), and
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•
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found that most defendants lacked good comprehension on all but the sim- plest Miranda warnings (those requiring less than a sixth – grade reading level). About one – fourth of the sample had substantial defi cits on measures of intellectual ability and general personality adjustment. This study raises serious questions about the ability of many mentally disordered suspects to waive their arrest rights.
Youth Capacity to Understand Arrest Rights
The Kent and Gault decisions (see Chapter 8 for a review of these two cases) establish the rights of youth in a variety of legal contexts. The age at which youth can be charged varies by state, but generally is between 8 and 18. Prior to Gault , youth were rarely represented by an attorney. Case law has now established that youth do have the right to an attorney. In Fare v. Michael C . (1979), the Supreme Court adopted the adult standard in a case involving a youth, and noted that the test allowed judicial review of factors such as a juvenile ’ s age, experience, education, background, and intelligence in evaluating whether the youth had the capacity to understand the warnings, the nature of his or her rights, and the consequences of waiv- ing those rights. Thus, the rights established in Miranda apply to youth, and police now routinely read youth their rights prior to interrogation. As we will see, the age of young suspects may require special protections to ensure their rights are protected. The likelihood of false confessions is higher for youth compared to adults. Drizin and Leo (2004), in a study discussed in more detail later in this chapter, reported that 35% of their sample of 125 proven false confessions were under the age of 17.
An example of a Miranda waiver form used by police for juvenile sus- pects in Washington State is shown in Box 6.1. It includes the four tradi- tional Miranda warnings as well as two additional prongs utilized in some U.S. jurisdictions. Roesch, McLachlan, and Viljoen (2007) reported that a Flesch – Kincaid reading level analysis conducted on the Washington State warning form yielded a reading grade level of 9.2. This suggests that in order for youth to be able to read this warning, they would have to be able to read at about a ninth – grade level. This diffi culty level is concern- ing, given the fact that youth much younger than 14 years old (a typical age for ninth – grade students) may be presented with the same form, and also that even those who are 14 years or older may have reading lev- els below the ninth – grade level. Indeed, research by Viljoen and Roesch (2005) indicated that the average IQ of a sample of youth in detention was 83, with reading levels well below ninth – grade. This study suggests that many youth would have diffi culty understanding the vocabulary used in Miranda warnings.
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152 Police Investigations, Interrogations, and Confessions
Assessing Understanding and Appreciation of Rights
Grisso (1998) developed a forensic assessment instrument called the Instruments for Assessing Understanding and Appreciation of Miranda Rights to assist mental health professionals in evaluating whether an individual made a knowing and intelligent waiver of rights at the time of interrogation. Four subtests measure various aspects of comprehension and understanding of rights. Each of the subtests are scored separately and judged relative to one another to determine the level of understanding and appreciation of interrogation rights, and no total comprehension score is derived. The four subtests are:
Comprehension of Miranda Rights (CMR) assesses examinees ’ understanding of the four elements of a standard rights warning by asking them to paraphrase the mean- ing of each right in four items (e.g., “ You do not have to make a statement and have the right to remain silent. ” ).
Comprehension of Miranda Rights – Recognition (CMR – R) requires little verbal skill and requires examinees to compare the four elements of a typical rights warning with a pool of statements including accurate and inaccurate rewordings of each of the sentences. This subtest comprises 12 items, with three semantic comparison items for each of the standard rights prongs.
Comprehension of Miranda Vocabulary (CMV) requires examinees to provide defi – nitions of six words contained in the interrogation warnings (e.g., attorney and interrogation ).
I have the right to remain silent and not make any statement at all. Any statement that I do make can and will be used against me in a court of law. I have the right to consult with and have an attorney present before and during questioning or the making of any statement. If I desire an attorney but cannot afford one, an attorney will be appointed for me at public expense prior to any questioning. I may exercise these rights at any time before or during questioning. If I am under 18 years of age I am considered a juvenile, but I do realize that this matter may be remanded to adult court for criminal prosecution, where I would be treated as an adult in all respects.
After initialing each of the above statements, the youth is asked to sign the form after reading the following:
I understand each of these rights that I have read or had read to me. I under- stand that I may exercise these rights at any time before or during questioning. I do wish to waive my right to remain silent, and I do wish to waive my right to an attorney at this time.
From R. Roesch, K. McLachlan, & J. L. Viljoen (2007), p. 268.
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•
• •
•
Box 6.1 Washington State’s Miranda Warning for Youth
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Function of Rights in Interrogation (FRI) assesses the examinee ’ s appreciation of the importance of rights in an interrogation and legal situations generally. This subtest comprises three subsections, each assessing appreciation of the signifi cance of the warning in different areas including: recognition of the nature of interrogation (NI), signifi cance of the right to counsel (RC), and signifi cance of the right to silence (RS). Examinees are presented with a series of four pictures in which youth are shown interacting with various criminal justice fi gures, including police offi cers, a lawyer, and a court scenario. They are read a short description of what is happening in a given picture, and then asked questions about the scenario (e.g., “ What is it that the police want Joe to do? ” ).
Research has shown that younger children are more likely to have reduced capacity to understand their rights. In one study, Viljoen and Roesch (2005) administered Grisso ’ s measure to 152 male and female defendants aged 11 to 17 in a detention center in Washington State. They found that age signifi – cantly predicted overall comprehension of rights, with younger adolescents demonstrating more impaired comprehension than older adolescents. Roesch and colleagues (2007) commented that coupled with anxiety that may be present under questioning by police, it is possible that many youth, espe- cially younger ones, do not adequately understand their rights.
Given these fi ndings, what can be done to protect the rights of youth? One suggestion is to require the presence of an adult before a youth could waive rights. This could be an attorney, but some states also allow a par- ent or other interested adult as a substitute. However, the expectation that parents would help ensure understanding and protect the rights of their child may sometimes not be realized in practice. Parents may place coercive pressures on youth to talk to the police because they are upset or angry with their child. They also may advise their children to waive their right to an attorney, encourage them to cooperate, and even adopt an adversarial attitude toward their own children. In their study of youth in pretrial detention, Viljoen, Klaver, and Roesch (2005) found 89% of youth indicated their parents wanted them to confess or tell the truth, 11% indi- cated that their parents wanted them to deny the offense, and none reported that their parents advised them to remain silent.
INTERROGATION TECHNIQUES
In 1930, police detectives interrogated Tony Colletti, an 18 – year – old man whose wife had been murdered. Although he denied any involvement, police suspected he had killed his wife. Leo (2004) describes his interrogation:
At the station house during the next 26 hours, Colletti was questioned con- tinuously in relays, lied to, threatened, yelled at, cursed, deprived of food and water, made to stand for hours, forced to stay awake, slapped, slugged
Interrogation Techniques 153
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154 Police Investigations, Interrogations, and Confessions
with bare fi sts, stripped naked, and beaten with a rubber hose until he no longer denied killing his wife and fi nally agreed to sign a confession acknowledging guilt. (pp. 37 – 38)
Colletti later recanted the confession, claiming it was made under duress. It is not known whether he did kill his wife, because he hanged himself in jail prior to his trial. Leo (2004) notes that the techniques used to extract his confession, known in the popular culture as the third degree , were widely used by police in the 1920s and 1930s. The practice declined in the 1940s and by the 1950s, a new approach began to emerge. Modern inter- rogation techniques no longer use such strong – arm tactics, but rely instead on a more psychological approach that may involve deceptive techniques, including the presentation of false evidence.
Police offi cers and detectives receive extensive training on interviewing suspects. The most popular training approach is the Reid Technique . This approach was fi rst introduced by Inbau and Reid in 1962, and it has since been revised and developed in several editions, with the most recent one authored by Inbau, Reid, Buckley, and Jayne in 2001.
Inbau and colleagues provide a detailed procedure for interrogating sus- pects, including advice about how to set up an interrogation room. The room should have minimal furniture (straightback chairs and a table), with nothing on the walls. One – way mirrors are common, to allow for observa- tion from another room. Once the suspect is seated, interrogation begins, with the interrogator following the nine sequential steps that comprise the Reid Technique (Gudjonsson, 2003; Inbau et al., 2001; Leo, 2004):
1. Begin by confronting the suspect with his or her guilt. The interrogator states this confi dently, even in the absence of clear evidence. The accu- sation of guilt may be repeated several times. The interrogator observes the reactions of the suspect, looking for signs of deception.
2. Develop psychological “ themes ” that justify or excuse the crime. The interrogator displays understanding and sympathy as a means of obtain- ing the suspect ’ s trust. The themes suggested by the interrogator are designed to minimize guilt or provide possible excuses for committing the crime. “ In this way the suspect can accept physical responsibility for the crime while at the same time either minimizing the seriousness of it or the internal blame for it ” (Gudjonsson, 2003, p. 13).
3. Interrupt all statements of denial. “ Repeated denials by the suspect are seen as being very undesirable because they give the suspect a psycho- logical advantage ” (Gudjonsson, p. 17). Inbau and colleagues (2001) argue that there are differences in denials by guilty and innocent sus- pects. “ Innocent suspects ’ denials are said to be more spontaneous,
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forceful, and direct, whereas denials of guilty suspects are more defen- sive, qualifi ed, and hesitant ” (Gudjonsson, p. 17).
4. Overcome the suspect ’ s factual, moral, and emotional objections to the charges.
5. Ensure that the increasingly passive suspect does not tune out. The interrogator may do this by moving closer to the suspect, maintaining eye contact, and touching the suspect.
6. Show sympathy and understanding and urge the suspect to tell the truth. 7. Offer the suspect a face – saving alternative explanation for his or her
guilty action. The interrogator presents two possible alternatives to explain the crime, with one alternative serving a face – saving function while the other represents a more callous or repulsive motivation. Both implicate the suspect, but one is seen as a more positive explanation for the crime. Gudjonsson comments, “ It is a highly coercive procedure where suspects are pressured to choose between two incriminating alter- natives when neither may be applicable ” (p. 19).
8. Get the suspect to recount the details of the crime. This step follows from step 7 in which the suspect has accepted one of the alternative explanations. Once this occurs, the suspect is then asked to orally pro- vide details.
9. Convert that statement into a full written confession. The suspect signs the confession.
Kassin and McNall (1991) observed that the strategies used by inter- rogators following the Reid Technique fell into two general categories. In maximization , the interrogator uses “ scare tactics ” designed to intimidate a suspect into a confession. This intimidation is achieved by emphasiz- ing or even overstating the seriousness of the offense and the magnitude of the charges. Detectives might also make false or exaggerated claims about the evidence (e.g., by staging an eyewitness identifi cation or a rigged lie – detector test, by claiming to have fi ngerprints or other types of forensic evidence, or by citing admissions that were supposedly made by an accomplice). In minimization , interrogators provide a false sense of security by offering face – saving excuses, moral justifi cation, blaming a victim or accomplice, or playing down the seriousness of the charges. In the Central Park Jogger case (see Box 6.2 ), each of the fi ve boys who confessed minimized their own involvement while placing more blame on the other boys (Kassin & Gudjonsson, 2003). Contrasting the two types of interrogation categories, Costanzo (2004) comments that “ maximization implies a threat of severe punishment and minimization implies a promise of leniency ” (p. 39).
Interrogation Techniques 155
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156 Police Investigations, Interrogations, and Confessions
Kassin and McNall (1991) conducted several laboratory studies to exam- ine how potential jurors perceived these interrogation approaches. They used transcripts from an actual interrogation in which these techniques were used and asked participants about their expectations for the sen- tence that might be received. Kassin (1997) concluded that these studies indicated that “ (a) the use of maximization raised sentencing expectations, leading participants to expect a harsher sentence . . . and (b) minimization lowered sentencing expectations, which led participants to anticipate leni- ency ” (p. 224). Gudjonsson (2003) comments that the Kassin and McNall
In 1989, a female jogger was beaten senseless raped, and left for dead in New York City’s Central Park. Her skull had multiple fractures, her eye socket was crushed, and she lost three quarters of her blood. She managed to survive, but she was and still is completely amnesic for the incident (Meili, 2003). Within 48 hours, solely on the basis of police-induced confessions, fi ve African American and Hispanic American boys, 14 to 16 years old, were arrested for the attack. All were ultimately tried, convicted, and sentenced to prison. The crime scene betrayed a bloody, horrifi c act, but no physical traces at all of the defendants. Yet it was easy to understand why detectives, under the glare of a national media spot- light, aggressively interrogated the boys, at least some of whom were “wilding” in the park that night. It was also easy to understand why the boys were then pros- ecuted and convicted. Four of their confessions were videotaped and presented at trial. The tapes were compelling, with each and every one of the defendants describing in vivid—though, in many ways, erroneous—detail how the jogger was attacked, when, where, and by whom, and the role that he played. One boy stood up and reenacted the way he allegedly pulled off the jogger’s running pants. A second said he felt pressured by the others to participate in his “fi rst rape.” He expressed remorse and assured the assistant district attorney that he would not commit such a crime again. Collectively, the taped confessions persuaded police, prosecutors, two trial juries, a city, and a nation.
Thirteen years later, Matias Reyes, in prison for three rapes and a murder committed subsequent to the jogger attack, stepped forward at his own initia- tive and confessed. He said that he had raped the Central Park jogger and that he had acted alone. Investigating this new claim, the Manhattan district attorney’s offi ce questioned Reyes and discovered that he had accurate, privileged, and independently corroborated knowledge of the crime and crime scene. DNA testing further revealed that the semen samples originally recovered from the victim— which had conclusively excluded the boys as donors (prosecutors had argued at trial that the police may not have captured all the perpetrators in the alleged gang rape, but this did not mean they did not get some of them)—belonged to Reyes. In December 2002, the defendants’ convictions were vacated. The case of the Central Park jogger revealed fi ve false confessions resulting from a single investigation.
Excerpt from Kassin & Gudjonsson (2004, p. 34).
Box 6.2 The Central Park Jogger
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studies “ are important because they show that the techniques advocated by Inbau and his colleagues are inherently coercive in that they communicate implicit threats and promises to suspects ” (p. 21).
DETECTING DECEPTION
One of the assumptions made in the Reid Technique is that detectives can distinguish between truthful and untruthful suspects. Psychological research suggests there is little support for the assumption that investigators can rely on verbal and nonverbal cues to make accurate judgments about whether a suspect is lying or telling the truth (Meissner & Kassin, 2004).
Kassin and colleagues (2007) surveyed 574 investigators from 16 police departments in fi ve U.S. states and 57 customs offi cials from two Canadian provinces. They asked a series of questions about the inter- rogation process. In response to a question about their ability to detect lies, 77% said they could detect truthful and dishonest suspects. Kassin and colleagues comment that this fi gure far exceeds research fi ndings on accuracy, as other research by Kassin (Kassin, Meissner, & Norwick, 2005) has shown that although police are more confi dent about their judg- ments of accuracy, they are actually no more accurate than lay people in detecting lies. Indeed, even with training, accuracy is only slightly better than chance.
Kassin ’ s research is consistent with one of the fi rst studies done on the ability to detect lying in interview situations. Ekman and O ’ Sullivan (1991) asked seven groups of participants to view videotaped inter- views of 10 university – aged women. They were told that half of the women were lying when they responded to questions about a fi lm they had seen. The seven groups were (1) Secret Service agents, (2) federal polygraphers, (3) robbery investigators, (4) judges, (5) psychiatrists, (6) a group of students who had taken a university extension course on deceit, and (7) undergraduate psychology students. Participants were asked to decide if each woman was lying or telling the truth. Were any of the groups accurate in detecting deception? Only one group, Secret Service agents, performed better than chance. Ekman and O ’ Sullivan comment that many Secret Service agents had been assigned to protection work, guarding important government offi cials from potential attack. They speculate that this type of work may increase reliance on nonverbal cues (e.g., through scanning crowds), so that Secret Service agents paid greater attention to nonverbal behavior in their study. However, a study by Mann, Vrij, and Bull (2004), which used videotapes of actual sus- pects, found that police offi cers in England were able to detect truth or lies at a rate better than chance (65%), with more experienced offi cers
Detecting Deception 157
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158 Police Investigations, Interrogations, and Confessions
performing better than less experienced ones. Even this more positive fi nding indicates that detectives are frequently wrong in their judgments of suspects.
The fi nding that investigators may not be accurate in judgments of guilt is particularly troubling because research has shown that a presumption of guilt can affect how the interrogation proceeds. Kassin, Goldstein, and Savitsky (2003) found that student interrogators in a controlled laboratory study who presumed guilt asked more guilt – presumptive questions, used a greater number of interrogation techniques, exerted more pressure on sus- pects to confess, and made innocent suspects sound more defensive and guilty to observers.
The presumption of guilt can lead to what has been referred to as inves- tigative bias . Investigators will develop a theory about a crime, presume a suspect is guilty, and conduct the interrogation with the goal of obtaining a confession that fi ts that theory of the crime (Meissner & Kassin, 2004). The presumption of guilt is also related to the advocacy of more aggressive interrogation tactics. This approach may, as Saul Kassin (2005) has commented, put innocent individuals at a greater risk for making a false confession.
FALSE CONFESSIONS
A false confession occurs when individuals confess to a crime they did not commit or exaggerate involvement in a crime they did commit. As discussed in this chapter, there are many documented cases of false confessions that have resulted in a conviction. Box 6.3 summarizes one of these cases.
Eddie Joe Lloyd was convicted of the 1984 murder of a 16-year-old girl in Detroit after he wrote to police with suggestions on how to solve various recent crimes. During several interviews, police fed details of the crime to Lloyd, who was men- tally ill, and convinced him that by confessing he was helping them “smoke out” the real killer. Lloyd eventually signed a confession and gave a tape-recorded statement. The jury deliberated less than an hour before convicting him and the judge said at sentencing that execution, which had been outlawed in Michigan, would have been the “only justifi able sentence” if it were available. In 2002, DNA testing proved that Lloyd was innocent and he was exonerated. As mandated in a settlement with Lloyd’s family, Detroit police offi cials said in 2006 that they would start videotaping all interrogations in crimes that could carry a sentence of life.
Source: http://www.innocenceproject.org/understand/False-Confessions.php.
Box 6.3 A Case of a False Confession
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Why would an innocent person confess to a crime that he or she didn ’ t commit? In Lloyd ’ s case (see Box 6.3 ), investigators fed him informa- tion that he could not otherwise have known, including details about the victim ’ s clothing and location of her body. Lloyd spent 17 years in prison before being exonerated in 2002, becoming the 110th person to be released through the introduction of DNA evidence.
Kassin and McNall (1991) estimated a relatively small rate of less than 60 alleged false confessions occur annually in the United States, while others have set the rate much higher, perhaps over 600 (Huff, Rattner, & Sagarin, 1986). The rate is diffi cult to assess accurately because, for example, it is unknown what percent of recanted confessions are valid. Obviously, some guilty suspects may come to regret their confession and subsequently claim it was coerced. The only hard evidence for a false confession is the conviction of another person who actually committed the crime or through DNA testing exonerating the individual who had falsely confessed. Of course, this will underestimate the number of false confessions given that some innocent individuals who confessed are convicted and their false confessions are never proven.
DNA technology allowed researchers to provide estimates of the contri- bution of false confessions to wrongful convictions. For example, Connors, Lundregan, Miller, and McEwen (1996) found that 5 of 28 convictions in which DNA evidence established innocence were attributable to false con- fessions. The Innocence Project tracks cases in which convicted individu- als have been exonerated. The Project has found that in more than 25% of over 200 DNA exoneration cases, innocent defendants made incriminat- ing statements, delivered outright confessions, or pled guilty. As shown in Box 6.4 , there are many reasons that may explain why this occurs, includ- ing mental impairment, as in the case of Eddie Joe Lloyd.
The Innocence Project (www.innocenceproject.org) tracks cases in which individ- uals have been exonerated, most commonly due to DNA evidence proving that the convicted person was innocent.
Why do innocent people confess? A variety of factors can contribute to a false confession during a police interrogation. Many cases have included a combina- tion of several of these causes:
duress coercion intoxication diminished capacity mental impairment
•
• • • • •
Box 6.4 The Innocence Project
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160 Police Investigations, Interrogations, and Confessions
One of the most shocking examples of false confessions is the Central Park Jogger case (refer back to Box 6.2 ). For many years, the victim was unknown and referred to only as the “ Central Park Jogger ” in media reports. Trisha Meili later identifi ed herself, telling her story in a book entitled I Am the Central Park Jogger . Police apparently used a variety of tactics to get fi ve young boys (all between the ages of 14 to 16) to confess, including fairly constant interrogation over a period ranging from 14 to 30 hours. Each of the boys subsequently retracted their confessions, stating that they did so because they expected they could go home (Kassin & Gudjonsson, 2004).
Research on False Confessions
Edwin Borchard (1932) was one of the fi rst to identify cases in which innocent individuals were convicted. His work, although largely descrip- tive in nature, established that individuals can be falsely convicted, and led researchers to begin focusing on the reasons for false convictions as well as what can be done to prevent these outcomes.
It wasn ’ t until the 1980s that researchers began to conduct empiri- cal studies of wrongful convictions. Bedau and Radelet (1987) found that 49 of 350 cases (14%) of wrongful conviction in potentially capital cases in the United States from 1900 – 1987 were attributed to false con- fessions. False confessions resulting in convictions represent a high cost, both in terms of loss of liberty for individuals wrongly convicted as well as the cost of imprisonment. Drizin and Leo (2004) analyzed 125 cases
ignorance of the law fear of violence the actual infl iction of harm the threat of a harsh sentence misunderstanding the situation
Some false confessions can be explained by the mental state of the confessor:
Confessions obtained from juveniles are often unreliable. Children can be easily manipulated and are not always fully aware of their situation. Children and adults both are often convinced that they can “go home” as soon as they admit guilt. People with mental disabilities have often falsely confessed because they are tempted to accommodate and agree with authority fi gures. Further, many law enforcement interrogators are not given any special training on questioning sus- pects with mental disabilities. An impaired mental state due to mental illness, drugs, or alcohol may also elicit false admissions of guilt. Mentally capable adults also give false confessions due to a variety of factors like the length of interrogation, exhaustion, or a belief that they can be released after confessing and prove their innocence later.
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•
•
•
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of proven interrogation – induced false confessions. First, they found that 81% of the cases involved charges of murder, with convictions resulting in lengthy sentences or even the death penalty. One shocking fi nding was that the average length of interrogation was 16.3 hours, a fi gure many times higher than the less than two – hour average interrogation in over 90% of all cases in which suspects are interrogated. Their study also shows the high fi nancial cost associated with false confessions. Only 44 of the 125 cases resulted in a conviction, because many cases were either never charged or did not result in successful prosecution. Of the 44 cases, 18 (41%) individ- uals were sentenced to more than 20 years or life in prison, and 9 (20%) were sentenced to death. Many of the individuals who were never con- victed nevertheless spent considerable time in jail while awaiting trial; 24% of those never convicted spent more than a year in jail.
In addition to understanding false confessions through actual cases, it is possible to study this issue in the laboratory setting. Kassin and Kiechel (1996) used a creative approach to determine whether experimenters could use police interrogation techniques to get participants in an experiment to confess to a crime they did not commit. They were also interested in examining whether participants would make up details about the crime and whether they could come to believe that they actually committed the crime. Their experimental paradigm involved bringing participants into a lab ostensibly for a reaction time study. The 75 participants were seated at a keyboard across a table from a confederate who read a list of letters. The participants were instructed to type the letters but to avoid hitting the ALT key, as they were told that hitting this key would crash the computer and all the data would be lost. Although no one actually hit the ALT key, the computer crashed after 60 seconds. The participants had been randomly assigned to one of four groups in a 2 (high versus low vulnerability) � 2 (presence versus absence of a false incriminating witness) factorial design. Vulnerability was simulated by reading the letters at a slow or a fast pace (43 versus 67 letters per minute), and the confederate for half of the par- ticipants said she saw the participant hit the ALT key. Once the compu- ter crashed, the experimenter appeared upset and accused the participant of crashing the computer. All participants initially denied the accusation. Upon further questioning, and the introduction of the false incriminating witness, the participants were asked to sign a confession.
The results of this study support the notion that participants will con- fess to a crime they did not commit. The researchers reported that 69% of the participants signed the confession, 28% evidenced internalized guilt (they believed they had pressed the ALT key), and 9% confabulated details to support their false beliefs. The results also showed different effects by condition. In the low vulnerability/no witness group, only 35% signed
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162 Police Investigations, Interrogations, and Confessions
the confession, no one exhibited internalization or confabulated details. However, in the high vulnerability/witness group, all participants signed the confession, 65% came to believe they were guilty, and 35% made up details. The researchers noted that these results support the hypothesis that people can be induced to confess, to internalize guilt even when innocent, and that the risk for a false confession is increased when false evidence is produced.
Another laboratory study provides some evidence that age is a factor in explaining false confessions. Goldstein, Condie, Kalbeitzer, Osman, and Geier (2003) studied a sample of 57 adolescent boys, ranging in age from 13 to 18, drawn from a residential, postadjudication, juvenile justice facil- ity. They administered the Perceptions of Coercion during Holding and Interrogation Procedures (P – CHIP) , a measure that assessed the partici- pants self – reported likelihood of offering false confessions while various police interrogation techniques were applied to a hypothetical situation. The participants read a vignette describing a police interrogation of an ado- lescent falsely accused of stealing a watch and kicking a boy. Twenty – six police behaviors were systematically added to the interrogation that were based on the Reid Technique (e.g., police told the child if he confessed, they would allow him to leave; police told the child if he did not confess at that moment, he would spend the rest of his life in prison; police told the child if he did not confess, his parents would be very disappointed in him). Following the description of each of the 26 police behaviors, par- ticipants were asked their likelihood (on a 6 – point scale) of offering a false confession. As shown in Figure 6.1 , this study found that age was the most important risk factor for self – reported likelihood of offering a false con- fession, as most participants 15 years or younger had substantially higher rates of false confessions. Overall, 25% said they would defi nitely give a false confession in at least one scenario. Goldstein and colleagues con- clude that police should be particularly cautious about ensuring for youth, especially those younger than 16 years.
Figure 6.1 Total self-reported likelihood of false confession score by age
26
52
78
104
130
156
13 14 15 16 17 18
To ta
l F al
se C
on fe
ss io
ns S
co re
Age
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While laboratory studies provide valuable information, it is not clear whether the results reported by Kassin and Keichel or Goldstein and col- leagues can be generalized to actual interrogation situations. The conse- quences of confessing in a laboratory setting are trivial compared to the real – life consequences of confessing to police in a criminal investigation. Nevertheless, studies such as these generate intriguing questions about the manner in which confessions are elicited.
Types of False Confessions
There are three types of false confessions. A voluntary false confession occurs when an innocent person con-
fesses without being prompted by the police. Cases in which there is considerable media attention often draw voluntary false confessions. For example, John Mark Karr was detained in Thailand and returned to the United States after he had voluntarily confessed to the still unsolved mur- der of JonBenet Ramsay. Evidence later showed that he could not have been her killer. The motivation for this type of false confession may be to gain fame or notoriety. A desire to protect friends or relatives is another motivation for a voluntary false confession.
A coerced – compliant false confession occurs when a suspect wishes to escape from the stress of the interrogation, to avoid a threat of harm or punishment, or to gain a promised or implied reward such as being allowed to sleep, eat, or make a phone call. The Central Park jogger case is an example of a coerced – compliant false confession, because the boys were interrogated over lengthy periods, were deprived of sleep, and thought they would be allowed to go home if they confessed.
On the night of September 28, 1973, Barbara Gibbons of Canaan, Connecticut, was brutally killed in her home. Her throat was slashed almost severing her head, and her legs were broken, apparently after she was killed. There was evidence she had been sexually molested. There were multiple cuts to her body, and the bedroom was splashed with blood. Peter Reilly, her son, claimed that he returned home and found his mother on the fl oor of her bedroom, covered with blood and breathing with diffi culty.
State police who questioned Peter immediately suspected him because he appeared to express no grief. The fact that he claimed to have found his mother alive, and that her legs were apparently broken after she died, raised police suspi- cions about his involvement. But when police examined him, they found no blood
Box 6.5 Case Study: Using Polygraph Results to Elicit a Confession
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164 Police Investigations, Interrogations, and Confessions
on his clothes or on his body. After his explanation to the police, he was held overnight, then interrogated. At some point, he requested a polygraph test, in the apparent belief that its results would clear him of any suspicion. However, he had not slept the night before, and as the questioning wore on for more than six hours, he eventually agreed with the police that he might have killed his mother but then blocked the event from his memory. His interrogation was recorded, and later transcripts revealed that although he was not intimidated or threatened physically, he became more and more confused and eager to please his questioners during the lengthy process.
He later recanted the confession, and after extensive community effort, he appealed for a new trial based on new evidence. His petition for a new trial was granted, but the state never brought him to a second trial and charges against him were dismissed.
The following is an excerpt from the interrogation transcript:
Peter: The polygraph test is giving me some doubts right now. Disregarding the test, I don’t think I hurt my mother.
Det.: You’re so damned ashamed of last night that you’re trying to just block it out of your mind.
Peter: I’m not purposely denying it. If I did it, I wish I knew I’d done it. I’d be more than happy to admit it if I knew it. But I don’t remember it. . . . Have you ever been proven totally wrong? A person, just from nervousness responds that way?
Det.: No, the polygraph can never be wrong because it is just a recording device, recording from you.
Peter: But if I did it, and I didn’t realize it, there’s got to be some clue in the house.
Det.: I’ve got this clue here, the polygraph charts. This is a recording of your mind.
Peter: Would it defi nitely be me? Could it be someone else? Det.: No way, not from these reactions.
Source: http://law.jrank.org/pages/3232/Peter-Reilly-Trial-1974–1976-Son-Confesses.html.
A coerced – internalized false confession results from highly sugges- tive interrogations. As Kassin (1997) notes, a suspect who is coerced, tired, and highly suggestible actually comes to believe that he or she com- mitted the crime. The case of Peter Reilly (see Box 6.5 ) is an example of this type of false confession. Kassin comments that two factors account for this type of false confession. One is a internal factor, involving a vul- nerable suspect with a malleable memory due to youth, interpersonal trust, naivet é , suggestibility, lack of intelligence, stress, fatigue, alcohol, or substance use. The second is an external factor, involving the presenta- tion of false evidence such as the false polygraph feedback provided to Peter Reilly.
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Kassin and Gudjonsson (2004) summarize the case of 14 – year – old Michael Crowe as an example of a coerced – internalized false confession:
At fi rst, Michael vehemently denied that he had stabbed his sister Stephanie. Eventually, however, he conceded that he was a killer: “ I ’ m not sure how I did it. All I know is I did it ” (see Drizin & Colgan, 2004, p. 141). This admission followed three interrogation sessions during which Michael was told that his hair was found in Stephanie ’ s grasp, that her blood was in his bedroom, that all means of entry to the house were locked, and that he had failed a lie test — all claims that were false. Failing to recall the stabbing, Michael was persuaded that he had a split personality, that “ good Michael ” had blocked out the incident, and that he should try to imagine how “ bad Michael ” had killed Stephanie. . . . the charges against the boys were later dropped when a local vagrant seen in the area that night was found with Stephanie ’ s blood on his clothing. (p. 50)
The Role of Compliance and Suggestibility
Two psychological constructs are important in understanding false con- fessions. The fi rst is compliance , which is the tendency to go along with people in authority. The second is suggestibility , which is the tendency to internalize information communicated during questioning. Compliance is a factor in coerced – compliant false confessions, while suggestibility is related to coerced – internalized confessions.
The distinction between compliance and suggestibility is an important one. A compliant suspect would confess to a crime, even one that he or she didn ’ t commit, in an effort to please an interrogator or avoid confl ict or confrontation. A suggestible suspect might confess to a crime because he or she has come to believe or internalize information communicated during the interrogation process. Gisli Gudjonsson, a British researcher, has developed scales to measure both of these constructs.
The Gudjonsson Compliance Scale (GCS) contains 20 true/false items that measure two types of interview behavior (Gudjonsson, 2003). The fi rst type of interview behavior measured assesses the tendency to comply with requests and obey instructions for instrumental gain, such as the ter- mination of the interrogation, release from custody, avoidance of confl ict, or eagerness to please the interviewer. The second type of interview behav- ior measured assesses susceptibility to pressure from others to commit an offense. Examples of items are “ I tend to give in to people who insist that they are right, ” “ I try hard to please others, ” and “ I generally believe in doing as I am told. ” Research on the GCS suggests that this is a promis- ing measure of compliance. Gudjonsson reports that the GCS is correlated with other measures with which it is theoretically related, such as social
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166 Police Investigations, Interrogations, and Confessions
desirability and social conformity. In a naturalistic study, Gudjonsson found that the GCS discriminated between false confessors and those sus- pects who resisted police pressure to confess.
Gudjonsson ’ s Suggestibility Scales (GSS) measure interrogative sug- gestibility, and tap into two distinct forms of suggestibility: the extent to which people yield to misleading questions, and the extent to which people shift their answers after receiving negative feedback (Gudjonsson, 2003). The scales are designed to measure “ individual differences in the degree to which they may yield to suggestions by police offi cers ” (Grisso, 2003, p. 164), and whether a person ’ s confession may have been distorted or false (Gudjonsson, 2003). The measure is presented as a memory test, and it employs one of two narrative paragraphs describing a fi ctitious story that is played on audiotape. After listening to the story, individuals are asked to recall as many details from the story as they can, both immediately and again after a 50 – minute delay. The second portion of the GSS asks partici- pants 20 specifi c questions about the content of the story, 15 of which are misleading. Regardless of actual performance on these questions, partici- pants are provided with negative feedback from the examiner who informs them that they have made a number of errors. They are then sternly asked to respond to the same set of questions again and to try and provide more accurate answers. The extent to which individuals give in to the mislead- ing questions is scored as a yield, and any change in the person ’ s answers from the previous trial is noted as shift. The yield and shift scores are then added together for a Total Suggestibility score.
Research shows that children are more suggestible than adolescents and adults, as measured by the GSS (Gudjonsson, 2003), and that suggestibil- ity decreases steadily as age increases (Warren, Hulse – Trotter, & Tubbs, 1991). Gudjonsson (2003) has suggested that interrogative suggestibility is possibly related to the likelihood of false confession. Most of the research on this possibility has been conducted in labs. In one such study, Redlich and Goodman (2003) demonstrated that younger and more suggest- ible adolescent participants were more likely than young adults to falsely take responsibility for crashing a computer in an experimental paradigm. Interestingly, they found that while participants ’ GSS shift scores were unrelated to confession, those who were more likely to yield to misleading questions were also more likely to agree with an experimenter ’ s request to (falsely) sign a confession form.
Suggestibility may also be a factor in understanding arrest rights. Redlich, Silverman, and Steiner (2003) investigated the relationship between Miranda rights comprehension and suggestibility in a sample of 18 juveniles (14 to 17 years old) and 17 young adults (18 to 25 years old) recruited from various community settings. They found that higher
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suggestibility in terms of yielding to misleading questions (GSS yield) signifi cantly predicted increased comprehension and overall scores of Miranda rights understanding. Further, they found that higher suggest- ibility in terms of shifting answers after receiving negative feedback (GSS shift) was associated with lower comprehension. One implication of this research is that those individuals who are more susceptible to waiving arrest rights may also be at an increased risk for false confessions.
Recommendations for Reducing False Confessions
False confessions do occur. So, what can be done to reduce them? The Innocence Project has recommended specifi c changes in the practice of suspect interrogations in the United States, including the mandatory video recording of interrogations, which has been shown to decrease the number of false confessions and increase the reliability of confessions as evidence. The Project recommends that the entire custodial interroga- tion be recorded, and in fact, this is now the practice in over 500 jurisdic- tions nationwide, including the states of Alaska, Minnesota, and Illinois. Recording allows a later assessment of the accuracy of a confession. The Project notes that in some false confession cases, police may inadvertently communicate details of the crime. When a suspect later recounts these details, the police take the knowledge as evidence of guilt. The Project also notes that threats or promises may be made to the suspect off camera and then the camera is turned on for a false confession. Recording the entire interrogation would prevent this from happening. To avoid contaminating a confession with facts provided to the suspect, Leo and Ofshe (1998) rec- ommended that investigators evaluate the suspect ’ s postadmission narra- tive to determine the extent to which the details provided in the statement are consistent with known facts in the case. Investigators should not pro- vide a suspect with details of the crime during the course of an interroga- tion (including evidentiary materials, crime scene photographs, or visits to the crime scene).
A model for police interrogation has been developed in England and Wales (Bull & Milne, 2004). Coercive interrogation techniques are explic- itly forbidden. The approach includes extensive training of police offi cers in noncoercive interview techniques aimed at obtaining accurate infor- mation from a suspect. Interviewers are instructed to keep an open mind about the innocence or guilt of the suspect and to treat all suspects fairly. Vulnerable suspects are to be treated with special consideration.
Another safeguard is to allow expert testimony about the research on false confessions. This type of testimony would not focus on the validity of a particular confession but rather on the research on interviewing and
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168 Police Investigations, Interrogations, and Confessions
interrogation, as well as the factors that may increase the risk of a false confession. Many, but not all, states do allow this form of testimony (Fulero, 2004).
SUMMARY
This chapter provides a review of the arrest and interrogation process. The process begins with an arrest, at which time a suspect is read their Miranda rights. The majority of suspects waive those rights, despite the risks involved in submitting to an interrogation. Particular attention was paid to issues sur- rounding waiver of rights by youth and mentally disordered suspects, as research shows that many individuals in these groups may not fully under- stand their rights and may be more susceptible to making false confessions. Police strategies for soliciting a confession were reviewed, including the commonly used Reid Technique. A confession is perhaps the most compel- ling evidence that can be presented in a criminal trial, and police are moti- vated to obtain a confession once they believe a suspect is guilty. Although the heavy – handed tactics used in the past are no longer relied upon, police are now trained in a variety of sophisticated psychological strategies designed to convince a suspect to confess. Many do, although some of these confessions turn out to be untrue. Reasons for false confessions were reviewed, and strat- egies for reducing the risk of false confessions were presented.
SUGGESTED READINGS
Ekman, P., & O ’ Sullivan, M. (1991). Who can catch a liar? American Psychologist, 46 , 913 – 920.
Kassin, S. M., & Gudjonsson, G. H. (2004). The psychology of confessions: A review of the literature and issues. Psychological Science in the Public Interest , 5 , 35 – 67.
Meissner, C. A., & Kassin, S. M. (2004). “ You ’ re guilty, so just confess! ” Cognitive and behavioral confi rmation biases in the interrogation room. In G. D. Lassiter (Ed.), Interrogations, confessions, and entrapment (pp. 85 – 106). New York: Kluwer Academic.
Rogers, R., Hazelwood, L. L., Sewell, K. W., Harrison, K. S., & Shuman, D. W. (2007). The language of Miranda warnings in American jurisdictions: A rep- lication and vocabulary analysis. Law and Human Behavior, 37 , 401 – 418.
KEY TERMS
Coerced – compliant false confession Coerced – internalized false confession
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Compliance False confessions Fundamental attribution error Investigative bias Maximization Minimization Reid Technique Suggestibility Third degree Voluntary false confession
References
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