By Thomas P. O’Connor, Chief, Maryland Heights Police Department, Missouri; and Timothy M. Maher, Associate Teaching Professor, University of Missouri-St. Louis, St. Louis, Missouri
|As darkness approached, the families and the community began to be afraid: two boys had not been seen for hours. Both had missed their lunch and supper. The searching helicopter’s whirl was deafening. Then, the screams from the search party echoed through the woods; the boys were found. A flashlight beam revealed the horror: two cold young boys, nude, side by side, and necks wrapped tight with ligatures. There was overwhelming pressure on law enforcement to bring the boys’ murderer to justice. There was little physical evidence tying the killer to the scene. Therefore, a confession would be essential to prosecute the case. The killer—a juvenile—confessed and reenacted the murder and was referred to a state mental health facility.|
In August 2006, the 10-year-old murder of JonBenet Ramsey was once again front-page news. New suspect John Mark Karr had been arrested in Bangkok, Thailand. In his confession, Karr alleged that he had drugged JonBonet, had sex with her, and “accidentally killed her.” John Mark Karr’s confession to the murder of JonBenet Ramsey proved to be a false confession. There was no match of Karr’s DNA at the crime scene.
In 1985, college student Timothy Cole was on trial for the rape of a Texas Tech sophomore. Despite the lack of evidence against him, a jury sentenced Cole to 25 years. Nearly two decades later, a confession by another man, now in prison, prompted new DNA testing in the case. Those tests proved that Cole was innocent, making him one of at least 34 men who have been exonerated by DNA evidence during this decade in Texas alone.
t the 115th Annual IACP Conference held in 2008 in San Diego, the Police Investigative Operations Committee, the Police Image and Ethics Committee, and the Forensics Committee adopted a resolution supporting research of wrongful convictions and recommended that Congress support and fund efforts to review and develop recommendations to reduce and eventually eliminate wrongful convictions.
Additionally, the resolution identified four major areas of concern to address to reduce future wrongful convictions incidents:
- False confessions
- Inadequate investigations
- Mistaken eyewitness identification
- Delayed, absent, mistaken, or improper forensic analysis
This article examines the history and effects of false confessions and discusses methods by which law enforcement can help prevent their occurrence.
For some, the word conjures up visions of coercion and sanctioned torture, and has for centuries, including the Inquisition, Gestapo atrocities under the Nazi regime, and the Viet Cong, to name just a few.
Torture is not limited only to acts of violence; it can include emotional and psychological torture. For example, as recently as 1998 in California, a 14-year-old boy and two friends were charged with first-degree murder in the stabbing of his 12-year-old sister. A vivid videotape captured the brother’s anguish, his cries to the police, and ultimately his admission of guilt for the world to see.
The interview became a media sensation, and the police received harsh criticism for their interrogation methods. The police were “bullies” who forced a juvenile to admit his participation in his sister’s death.
Later, all charges against the three had to be dismissed after the actual perpetrator’s arrest and conviction, thanks to a DNA link. The investigators—all trained, experienced, and well-versed in the art of the interview—had failed. They had charged three innocent suspects on a single source of primary evidence: false confessions.
The goal of the police investigative process is to identify and eliminate the innocent and to identify and convict the guilty. This process, in part, is achieved through the person-to-person interview. Administrative and command officers are responsible for the oversight of criminal investigations. Some suggestions to minimize, even more, the possibility of false confessions follow.
Approximately 80 percent of criminal cases are solved by less than a full confession. A recent study on the success rate of current police interrogation techniques indicates “that police interrogations produce at least some incriminating information in between 45% and 64% of cases… [I]n about a quarter of the cases, the suspect offers a full confession; however, we know very little about which tactics are likely to produce confessions.… It also appears that confessions have a moderate impact on case processing. Specifically, those who give at least some incriminating information are more likely to be charged, convicted, and receive a longer sentence.”1
What Do We Know About Interrogation in the United States? reports that “using national estimates of interrogations, arrests, convictions, and error rates, researchers have arrived at estimates of wrongful convictions resulting from false confessions that range from a low of 10 (.001% of all convictions) to a high of 840 (.04% of all convictions) per year.”2
According to J. Pete Blair, “If the goal of the interrogation is seen as gaining any incriminating information, about 64% of the interrogations in Leo’s (1996) study were successful. It should be noted that if suspects who invoked their Miranda rights are excluded, the success rate was approximately 76%.”3
However, as a handful of highly publicized exonerations shows not every confession holds up when physical evidence is introduced.
Human institutions are fallible, and an innocent person might confess to a crime that he or she did not commit. This “false confession” may, in turn, lead to a wrongful conviction.
Despite occasional claims that specific individuals have been wrongfully convicted as a result of false confessions, this specific risk has never been the subject of empirical study.4
Paul Cassell, a law professor at the University of Utah and a former federal prosecutor, studies the phenomenon of false confessions. He says the problem doesn’t appear to be pandemic, as others have suggested, but confined to a very narrow and especially vulnerable subset of the population, namely the mentally impaired.5
“Some research suggests that false confessions are extremely rare.…In other words, while some critics of police interrogation practices suggest that convictions based on false confessions are common phenomena, research would suggest that 99.6% of convictions involving confessions are true and correct.”6
According to the Innocence Project, since 1982 there have been 156 exonerations, of which, 37 (2 percent) “confessed” and “Recent analyses reveal that 20 to 25% of prisoners exonerated by DNA had confessed to police.”7
In the same article the author, Saul M. Kassin identified three types of confessions:
- Voluntary Confessions – Those in which people claim responsibility for crimes they did not commit without prompting from police.
- Compliant Confessions – Cases in which the suspect acquiesces in order to escape from a stressful situation, avoid punishment, or gain a promised or implied reward.
- Internalized False Confessions – Those in which innocent but vulnerable suspects, exposed to highly suggestive interrogation techniques, come to not only confess but come to believe they committed the crime in question.8
Given that false confessions do occur, even if rarely, police administrators need to ensure that their investigators are properly trained in interview techniques that elicit the most accurate information from suspects.
A popular training program, the Reid technique, has been used to educate more than 500,000 law enforcement and security officers since 1974. The techniques taught at training seminars like Reid’s have been the foundation of the police interview process. Frequently, defense attorneys also undergo training in these same interviewing techniques in order to be able to subject the police interviewers to vigorous review and cross-examination.
Although Reid and others have advanced the art of the interview, police agencies need to do more to provide in-house training, thereby capitalizing on the skill and experiences of their own investigative staff.
Chiefs are ultimately responsible for all the work produced by their officers and therefore must strive to ensure that all police reports are professionally written and meet the standards set by local prosecutors. From a prosecutor’s perspective, the “perfect case” includes the following critical elements:
- A complete confession from the suspect. The confession would detail all of the facts of the crime, specifically the events that occurred before, during, and after the crime.
- Witnesses willing to testify in court.
- Evidence supporting the position that the person charged is the person responsible for the crime.
Police chiefs must require that those who oversee criminal investigations have specific knowledge about groups of individuals who are frequently unable to grasp the significance of the Fifth Amendment. Research suggests that the risk of false confessions is higher among the mentally impaired and juveniles. More than 90 percent of juveniles questioned by police waive their Miranda rights to remain silent and seek the assistance of a lawyer. “The problem is evident in the disproportionate number of juveniles in the population of false confessors.”9
Given that both juveniles and mentally impaired persons commit crimes, it is incumbent on police chiefs and detectives to make certain that these suspects fully understand their constitutional rights afforded by the Fifth Amendment. If the juvenile or impaired subject does not understand his/her rights, no interview should be conducted. Some Supreme Court decisions that will render “confessions” inadmissible include, but are not limited to, the following:
- Bram v. United States (1897) Promises of leniency overbear the will and are therefore impermissible.10
- Brown v. Mississippi (1936) Physical violence under all circumstances is prohibited.11
- Miller v. Fenton (1985) The confession was a product of “intense and mind bending psychological compulsion.”12
Investigators must also know the everchanging court decisions that sometimes affect many standard police interview techniques. Investigator training should cover potential defense tactics attacking police credibility and the methods used to obtain a confession. Any matter that may be construed as a possible violation of the 5th, 6th, 8th, or 14th Amendments will be vigorously addressed during court proceedings.
Defense attorneys frequently use the following tactics to challenge the admissibility and use of confessions:
- Excessively long interrogations (Corley v. United States)13 Illegal police practices (such as, denial of food or sleep deprivation)
- Promises (for example, confinement in a mental facility for treatment instead of prison for punishment)
- Threats (such as, “Your children will be taken from you,” “You will be raped in jail,” or “Talk or receive the electric chair”)
- Physical force of any kind (for example, handcuffing and physical assault, weapon forced into mouth, slaps, punches, pushes, or kicks)
- Denied repeated requests for an attorney
- Isolation (designed to intentionally increase anxiety)
- Confrontation (such as, police interviewer accuses the suspect of the crime by citing real or fictitious evidence to bolster the claim)
- Coercion (Was the confession voluntary or coerced?/review of the totality of the circumstances in which the confession was received)
Recommendations to Further Reduce the Possibility of False Confessions
1. Electronically record police interviews with criminal suspects.
In a special report, Thomas P. Sullivan of Northwestern School of Law, Center on Wrongful Convictions championed the use of electronically recording police interviews with criminal suspects.
Jurors are coming to expect recordings when questioning takes place in police station interview rooms. When no recordings are made, defense lawyers are quick to argue that unfavorable inferences should be drawn. This reform in interviewing and interrogation practices suggests that the overall benefit of electronic recording in custodial cases is not only feasible, but may have an overall benefit to the criminal justice system.14
Police agencies should prepare for the police interview environment of the future when all Part I crimes will be recorded by court mandate.
2. Develop and use police skill teams for the critical interview phase of the investigation.
The teams should consist of seasoned interview specialists who, through training and actual interview experiences, possess the skills necessary to conduct successful critical interviews. Skill teams must have access to and understand the intricacies unique to the crime scene. This knowledge reduces the likelihood of false confessions, especially when the suspect is unable to provide details about key elements of a crime scene that should be known by the person(s) with intimate knowledge of that scene. This recommendation would decrease the possibility of accepting false confessions.
3. Provide mandatory police training on issues that lead to false confessions.
The training should focus on circumstances that motivate false confessions. Some examples follow:
- The suspect’s desire to eliminate friends, relatives, and close associates from the investigative process
- The suspect’s attempt to distract police from identifying other motives and/or suspects through a false confession, which is usually fraught with inconsistencies
- Situations in which police officers provide too much information to the suspect, which the suspect may later repeat as part of a false confession, such as, the date and time of death, the location of the offense, the specific positioning of the body, wounds to the body, and the instrumentation of death, which the suspect should be able to supply to the police
4. Provide mandatory police training on special interview considerations for populations most vulnerable to false confessions, especially juveniles and mentally impaired suspects.
5. Police agencies that in the past have been involved in wrongful convictions based on false confessions should review existing policies and make the appropriate changes to eliminate the problem.
6. Provide training to receive confessions in a manner that offers details of the incident, sufficiently precise so as to be improbable that the suspect did not participate in the crime.
7. Mandate that investigators use only acceptable methods of coercion and no physical force. In addition, investigators must establish that the suspect was not under the influence of alcohol and or/drugs.
8. Mandate that police conclude the interview by asking a series of questions that emphasize the voluntariness of the confession, that is, no coercion was used, and that the suspect was not under the influence of alcohol and drugs. Interviews should be concluded with questions that firmly establish the fairness and professionalism of the interviewing investigators. A simple yet very effective way to achieve this result is by asking questions such as: “Why did you decide to talk to me?” and “Why did you decide to talk to me now?”
Although the percentage of false confessions is small, the effects are significant, not only to the falsely accused and the community, but also to the agency, who suffers diminished credibility. They can also cost money, if the agency or its officers are sued in court. Quality training programs, proper supervision, and collective experience offer solutions to the problem of false confessions. ■
1J. Pete Blair “What Do We Know About Interrogation in the United States?” Journal of Police and Criminal Psychology 20, no. 2 (September 2005): 56, citing Paul G. Cassell & Bret S. Hayman, “Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda,” UCLA Law Review 43 (1996):839–931 and Richard A. Leo, “Inside the Interrogation Room,” Journal of Criminal Law and Criminology 86, no. 2 (1996): 266–303.
2J. Pete Blair “What Do We Know About Interrogation in the United States?”, 52 citing Paul G. Cassell, “Protecting the Innocent from False Confessions and Lost Confessions and from Miranda,” Journal of Criminal Law and Criminology 88 (1998): 497–556.
3J. Pete Blair “What Do We Know About Interrogation in the United States?” 49.
4Paul G. Cassen, “The Guilty and the Innocent: An Examination of Alleged Cases of Wrongful Confessions,” Harvard Journal of Law and Public Policy (Spring 1999): 1.
5Mark Hansen, “Untrue Confessions,” ABA Journal (July 1999), http://www.truthinjustice.org/untrueconfession.htm (accessed August 21, 2009).
6John E. Reid & Associates, Inc., “Critics Corner: False and Coerced Confessions,” citing J. Pete Blair “What Do We Know About Interrogation in the United States?” http://www.reid.com/educational_info/criticfalseconf.html (accessed August 21, 2009).
7Saul M. Kassin, “False Confessions Causes, Consequences, and Implications for Reform,” Current Directions in Psychological Science 17, no. 4 (2008): 249, http://www.williams.edu/Psychology/Faculty/Kassin/files/Kassin%20(2008)%20-%20APS%20CD.pdf (accessed August 24, 2009).
9Ibid, 251, citing Steven A. Drizin and Richard A. Leo, “The Problem of False Confessions in the Post-DNA World,” North Carolina Law Review 82 (2004): 891–1007.
10Bram v. United States, 168 U.S. 532 (1897).
11Brown v. Mississippi, 297 U.S. 278 (1936).
12Miller v. Fenton, 474 U.S. 104, 108 (1985).
13Corley v. United States, 556 U. S. ____ (2009); where the Court states “The prompt presentment requirement is not just an administrative nicety. It dates back to the common law. Under Rule 5, presentment is the point at which the judge must take several key steps to foreclose Government overreaching: e.g., informing the defendant of the charges against him and giving the defendant a chance to consult with counsel. Without McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, . . . inducing people to confess to crimes they never committed.”
14Thomas P. Sullivan, Police Experiences with Recording Custodial Interrogations (Chicago: Northwestern University School of Law, Center on Wrongful Convictions, 2004): 26, http://www.jenner.com/files/tbl_s20Publications/RelatedDocumentsPDFs1252/748/CWC_article_with%20Index.final.pdf (accessed August 21, 2009), citing Brian C. Jayne, Empirical Experiences of Required Electronic Recording of Interviews and Interrogations on Investigators’ Practices and Case Outcomes (Chicago: John E. Reid & Associates, Inc.,: 2003), https://www.reid.com/pdfs/Videotaping_study.pdf (accessed August 21, 2009).