Coerced or Nonvoluntary ConfessionsHollida Wakefield, M.A.* and Ralph Underwager, Ph.D.
A confession is one of the strongest forms of evidence that can be brought into a court of law. In the United States criminal justice system, prosecutors avidly seek confessions as the most persuasive evidence to win cases. Eliciting a confession and presenting it to the fact finder easily becomes a primary goal of the justice system. A confession has a compelling influence on jurors and they are more likely to convict on the basis of a confession than anything else, including eyewitness identification. This effect persists even when the jury is fully aware that a confession was coerced and likely nonvoluntary (Kassin & McNall, 1991; Kassin & Sukel, 1997; Kassin & Wrightsman, 1985). However, confessions have also been a source of controversy. Whether the suspect was of sound mind and whether the confession was voluntary or coerced must be considered by judges and juries. Kassin (1997) notes that "a confession is typically excluded if it was elicited by brute force; prolonged isolation; deprivation of food or sleep; threats of harm or punishment; promises of immunity or leniency; or, barring exceptional circumstances, without notifying the suspect of his or her constitutional rights" (p.221). If it is demonstrated that the police lied, fabricated evidence, or otherwise coerced a confession, the fact finder must consider whether the police lies and deception would have made an innocent person confess. Judges must determine the admissibility of the confession by evaluating whether it was voluntary, but they seldom find police lying so severe that it undermines voluntariness (Young, 1996). The result is that lying, deception, coercion, and fabrication of evidence may be approved and condoned in court rulings even while such practices are criticized. Convictions based on coerced confessions may later be upheld through the appellate process. Huff, Rattner, and Sagarin (1996) observe that a systemic bias exists in the justice system so that lower courts are seldom reversed by higher courts. When a confession is admitted and later retracted and claimed to have
been made under duress, an additional question is whether the jury can
understand the pressures that led up to the confession. Milgram's (1963,
1964) obedience studies suggest that, although most people may believe
they personally would never succumb to pressure, their behavior in a
coercive environment is to conform. Jury members may be unable to perceive
how an innocent person could actually confess to something he did not do.
Widespread overconfidence in personal ability to resist coercion may lead
jurors to give undue and erroneous weight to a coerced confession. Expert
testimony may be necessary to help jurors understand the circumstances
that lead to nonvoluntary confessions, but trial courts have not always
admitted such testimony. JUDGES AS GATEKEEPERS Whether a questionable confession is admitted as evidence before a fact finder is determined by the trial judge. The judge also determines whether expert testimony concerning the circumstances of the confession will be admitted. This is true whether the jurisdiction is operating under the older Frye rule or the more recent U.S. Supreme Court Daubert ruling on the admissibility of scientific evidence. A judge is the gatekeeper and either opens the gate for expert testimony or closes it. The result is that testimony about nonvoluntary confessions may or may not be admitted depending upon the particular judge and his or her interpretation of the law. The problem with judges as gatekeepers is likely that described by Chief Justice Rehnquist in his dissent to the Daubert ruling:
Saks (1989) sees the law as policy analysis without benefit of data and based on guesswork:
Judicial capacity as a gatekeeper may be affected by a number of
factors including bias, personality dispositions, cognitive capacity, and
social or political pressures (D'Amato, 1990; Imwinkelried; 1996; Landsman
& Rakos, 1994; Wesley, 1984). For the science of psychology, the
gatekeeping task of judges is an example of the fundamental tensions and
conflicts between the law and psychology that have been discerned in the
past (Meehl, 1989). COERCED CONFESSIONS AND FALSE CONFESSIONS Coerced or nonvoluntary confessions must be distinguished from false confessions, since not all coerced or nonvoluntary confessions are false and not all false confessions are coerced. Although it is common for defendants to retract confessions made during police interrogations, this will include both true and false confessions. Obviously, some nonvoluntary confessions are true. In this paper, the focus is on coerced and nonvoluntary confessions and is not limited to those that have been demonstrated to be false. It is sometimes argued that police coercion, including deception and trickery, is necessary to make criminals confess, but such interrogation techniques also risk eliciting false confessions. The extent to which this happens is unknown since no one knows the actual rate of false confessions (Kassin, 1997). Several researchers maintain that enough instances have been documented to suggest that a concern over such a risk is justified (i.e., Ayling, 1984; Brandon & Davies, 1973; Kassin & Wrightsman, 1985; Leo, 1996a, 1996b, 1996c; Leo & Ofshe, 1998). Rattner (1988), in a sample of 205 cases of wrongful convictions, reports that coerced confessions accounted for 8.4%. In a study of 229 inmates in Icelandic prisons, 27 (12%) of the inmates claimed to have made a false confession in the past during police interviewing (Gudjonsson & Sigurdsson, 1994) and the majority of the subjects (78%) were convicted of the offense to which they had allegedly made a false confession1. Others disagree that there is a significant problem with false confessions. Cassell (in press) believes that there is no empirical evidence that false confessions occur frequently and he maintains that the problem is largely confined to persons who are mentally retarded or have serious mental problems. He states that many reports of wrongful convictions from false confessions are based on media reports and other secondary sources, and that credible evidence shows that the individuals were most likely guilty of the crimes for which they were convicted. He argues that false confessions are not caused by police interrogation techniques in general but rather by using these techniques with narrow, mentally limited populations. In another article Cassell (1998) estimates the number of false confessions leading to wrongful convictions using data from a variety of sources, primarily Huff et al. (1996). He believes that a reasonable estimate is in the range of 10 to 394 wrongful convictions from false confessions in the United States each year. Cassell stresses that this estimate relies on extensive extrapolations and assumptions and cannot be viewed as a hard number. It must also be remembered that this estimate is not of all nonvoluntary confessions or even of all false confessions, but only pertains to the subset of false confessions that result in wrongful convictions. Being interrogated by the police is a highly stressful experience, especially when the individual is isolated and not in contact with familiar individuals. Isolation and confinement can cause a wide range of behavioral and physiological disturbances including loss of contact with reality (Gudjonsson & MacKeith, 1982). Foster (1969) notes that police interrogation "can produce a trance-like state of heightened suggestibility" so that "truth and falsehood become hopelessly confused in the suspect's mind" (pp.690-691). Stress can also arise from the suspect's submission to authority. When the interrogator is perceived as being invested with socially legitimate authority, the suspect may obey instructions and suggestions which would ordinarily be rejected. The experiments by Milgram (1963, 1964) on obedience to authority illustrate this. This is apt to be more likely in an individual who generally defers to authority. If a person has no experience with arrest and interrogation, he is more likely to become upset and stressed by the interrogation. A study in England (Irving, 1980) reported that anxiety and fear were most commonly observed in first-time offenders and those suspected of sex crimes. Observations noted included trembling, shivering, sweating, hyperventilation, frequent urination, and verbal incoherence. A substantial proportion of the suspects were not in a normal mental state during interrogation. Gudjonsson and MacKeith (1982) note that factors encouraging a suspect to make a genuine confession may be similar to those that cause a person to make a false confession. They state that "non-psychotic individuals ruminating guiltily about such things as sexual deviation may also have an exceptionally low threshold to confession to things that they have not actually done" (p.259). The false confessor may be aware he is not telling the truth or his perceptions may be distorted or he might even be deluded for a brief period of time. The false confession in all of these situations is an interplay between the person's mental state, basic personality, intelligence, and all of the environmental circumstances of the interrogation. There are individual differences in the way people react to the stress of an arrest and interrogation. Three types of false confession have been distinguished: (a) voluntary (statements made without external pressure), (b) coerced-compliant (when the suspect confesses to escape an aversive interrogation, secure a promised benefit, or avoid a threatened harm), and (c) coerced-internalized (when suspects actually come to believe they are guilty of the crime (Kassin, 1997; Kassin & Kiechel, 1996; Kassin & Wrightsman, 1985)). Although the last type of false confession seems less likely, a suspect who is vulnerable and confused (internal factors) and who is given false evidence by a deceptive interrogator (external factors) may confess to the act, internalize the confession, and confabulate details consistent with the newly created belief. A laboratory test of these two factors demonstrated that they can lead to a coerced-internalized false confession (Kassin & Kiechel, 1996). The Paul Ingram case is a well known example of this. Ingram, following months of coercive and misleading interrogation that included hypnosis, not only falsely confessed but recalled false details of crime scenes (Ofshe, 1992). Gudjonsson and LeBegue (1989) also provide a detailed case report of a coerced-internalized false confession. A distinction must be made between the generation in an interrogative context of a false belief that a person committed a crime and a false memory for the crime. They may not go together (Gudjonsson, 1995). Creating a false belief may be the precursor to developing a false memory. The false memory may develop when there is some process which reinforces the false belief. Gudjonsson (1992) explains internalized coerced confessions by suggesting a memory distrust syndrome. This is thought to be a state of confusion in which people lose confidence in their own recollections of events. Then when the confusion dissipates and the original memory returns, the person retracts and challenges the confession. A situation we have observed is when the accusation is made by an
intimate or a highly regarded person. Although initially the accused knows
it is false, he may need to explain how it could happen that the
accusation was made. A low tolerance for ambiguity and a high need for
closure may cause the person to think about possible explanations.
Source
monitoring errors may eventually lead to a confusion between what is
thought and what happened. Across time the possible scenario becomes more
and more real and detailed. For example, in one case, a man began thinking
about an ambiguous dream he had. It then progressed through more dreams,
more details, and then moved to possible behaviors suggested by the
dreams. Finally, he admitted the possibility that he may have done
something inappropriate. THE GUDJONSSON SUGGESTIBILITY SCALES Research indicates that criminal suspects who make confession statements which they later deny differ from subjects who persistently deny any involvement in the crime of which they are accused. Gudjonsson and his colleagues have developed a scale to assess "interrogative suggestibility" which is intended to be applicable to police interrogations (Gudjonsson 1984a, 1984b, 1991c, 1997; Gudjonsson & Clark, 1986). Interrogative suggestibility is seen as differing from other types of suggestibility and is defined as "the extent to which, within a closed social interaction, people come to accept messages communicated during formal questioning, as a result of which their behavioral response is affected" (Gudjonsson & Clark, 1986, p.84). The features of interrogative suggestibility are: 1. It involves a questioning procedure which typically takes place within a closed social interaction. 2. The questions are mainly concerned with past experiences, events, and recollections. In contrast, other types of suggestibility are typically concerned with the motor and sensory experiences of the immediate situation. 3. Interrogative suggestibility contains a component of uncertainty, which is related to the ability of the person to process information cognitively. 4. Questioning in a police context commonly involves considerable stress with important consequences for the witness, victim, and suspect (Gudjonsson, 1997, pp.1-2). The Gudjonsson Suggestibility Scales (GSS 1 and its parallel form, GSS 2) (Gudjonsson, 1997) are intended to help identify people who are particularly susceptible to giving erroneous accounts of events when subjected to questioning. The scale, which is applicable to questioning of witnesses and alleged victims as well as interrogations of criminal suspects, assesses responses to leading questions and to pressure resulting from negative feedback. The scale is based on a short, narrative story, which is read out loud to the subject who is then asked to relate everything that can be recalled about it. After providing both immediate and delayed recall, the subject is asked 20 specific questions, 15 of which are subtly misleading. Next, the subject is clearly and firmly told that he or she has made a number of errors (even if no errors have been made), that it is necessary to ask all of the questions again, and that the subject should try to be more accurate. The extent to which the subject gives in to the misleading questions in the first trial is scored as Yield 1, any change in answers between the first and second trials is scored as Shift, and Yield 1 and Shift are added together to make up the Total Suggestibility score. Many studies have been done on the GSS and the manual (Gudjonsson, 1997) provides normative data from a number of populations. Intelligence has been found to correlate negatively with GSS suggestibility scores in several studies (Clare & Gudjonsson, 1993; Gudjonsson, 1997; Richardson & Kelly, 1995). Poor assertiveness, evaluative anxiety, state anxiety, and avoidance coping strategies correlate positively (Gudjonsson, 1997). Adolescents do not yield to leading questions more than do adults, but they are more responsive to negative feedback (Gudjonsson & Singh, 1984a); but after age 16, there is no relationship between age and suggestibility (Gudjonsson, 1984a). Most important for the issue of nonvoluntary confessions, research with the GSS indicates that "resisters" (subjects who persistently denied their involvement in the crime they were charged with) score significantly lower than "false confessors" (subjects who retracted confessions they had previously made during police interrogations) (Gudjonsson, 1984b, 1991a, 1991b). Gudjonsson (1991a) observes that these differences remain when intelligence and memory capacity are controlled for (Gudjonsson, 1991a). The results also suggest that the confessing behavior is linked to the suspects' ability to cope with pressure, rather than their tendency to give in to leading questions per se. Suggestibility also appears to be related to the suspect's experience with police interrogations in that it is negatively correlated with previous convictions (Gudjonsson & Singh, 1984b; Sharrock & Gudjonsson, 1993). Gudjonsson (1991 a) observes that it is almost certain that not all of
the "false confessors" in his study were innocent of the crime with which they are charged.
However, at least some most likely were and
the fact that not all of these people were of low intelligence reinforces
the point that people of normal intelligence can and do falsely confess to
serious crimes. POLICE INTERROGATIONS Police freely admit deceiving suspects and lying to induce confessions. Police have fabricated evidence, made false claims about witnesses to the crime, and falsely told suspects whatever they thought would succeed in obtaining a confession. They have lied about the suspect's culpability, assuring him that his behavior was understandable and not really blameworthy, or telling him that if he described what happened, the victim could be helped. They have falsely told suspects that they had physical evidence such as footprints, fingerprints, or semen, that a codefendant had confessed, that the weapon used in the crime was found, that the suspect failed a lie detector, and that there was medical proof of sexual molestation (Heavner, 1984; Hrones, 1996; Skolnick & Leo, 1992; Underwager & Wakefield, 1992; Young, 1996). Lindsay (1991) conducted a series of four experiments which suggest that police deliberately and intentionally construct biased lineups to assure identification of a suspect they believe to be guilty. Deception is justified by the police as a necessary evil in order to, obtain convictions of guilty persons. Skolnick (1982) notes that police officers move from investigation, through interrogation, to testimony. The system, including the training academies and the courts, permit, if not encourage, deception during the investigation phase. A detective may pose as a consumer, a fellow criminal, a panderer, or use informers and wiretaps. The line between entrapment and acceptable deceit is vague and unclear. The actual number of cases where police lie is not known, but, because most criminal cases end with guilty pleas, the reported cases represent only a fraction of the actual cases where police lie (Young, 1996). Police deception can result in innocent people being convicted; McCloskey (1989) lists police lies on the witness stand, police pressure to coerce false witnesses, suppression of exculpatory evidence, shoddy police work after a conclusion has been reached about guilt, and falsified forensic science reports as major factors in wrongful convictions. Miranda v. Arizona, decided by the U. S. Supreme Court in 1966, used quotations from Criminal interrogation and confessions by Inbau and Reid (1962) to show that police used deception and psychologically coercive methods in questioning people. The court concluded that interrogation is now psychologically oriented rather than physical but that the degree of coerciveness inherent in the situation had not diminished. The court observed that the 16 strategies for interrogation proposed by Inbau and Reid (1962) show three major themes. The first reattributes the implications of the situation by shifting the blame or minimizing the seriousness of the crime. The second attempts to frighten the individual by exaggerating the evidence available, telling the person that the interrogator knows he is guilty, or stressing the consequences. The third makes an emotional appeal through showing sympathy, flattery, and respect, and by appealing to the best interests of the suspect. The court found such practices inherently coercive. The most recent edition of this manual, which remains the most popular in the country for teaching interrogation methods, presents different themes for interrogators to use in eliciting confessions (Inbau, Reid, & Buckley, 1986). This book remains the most widely used text for training police. For example, in State v. Kelekolio the detective testified that he lied in the interrogation because he had been told to use that technique at a police seminar. When videotapes or audiotapes of police interrogations are available, it is easy to discover the specific techniques followed in the interrogation. Leo (1996b) notes that American police have become extremely skilled at the practice of manipulation and deception during interrogation. Based on hundreds of hours of research as a participant-observer in three police departments, he concludes that modern interrogation techniques can best be understood as a confidence game based on the manipulation and betrayal of trust. Zimbardo (1967), based on his review of training manuals, believes that the interrogation techniques of the police are sometimes more highly developed, more psychologically sophisticated, and more effective than those that were used by the Chinese Communists in Korea. The result of such sophisticated and psychologically persuasive interrogation techniques is that many people will confess to crimes, even when it is against their best interests. Leo (1996c) states that one of the most troubling aspects of false
confessions resulting from such police interrogations is that the police
leaders and trainers deny that their highly manipulative and deceptive
interrogation tactics may produce confessions from entirely innocent persons.
He observes that, due to
the widely held belief among police officers that virtually all suspects
are guilty and will confess only if they are, in fact, guilty, the
interrogator may elicit a false confession without realizing it. Leo
believes that many criminal suspects remain incarcerated for crimes they
did not commit as a result of such false confessions. EXAMPLES OF COERCED CONFESSIONS Example 1: The Mother Shortly after a fire killed her severely handicapped child, a mother was asked to come to police headquarters to talk with a detective. The mother knew that her two older children had been questioned by a detective at school that day but she had no idea what they wanted from her. After she reached the police station, she was questioned by a detective for several hours. At the conclusion of the interrogation, she was arrested and charged with murdering the child by starting a fire by deliberately throwing an afghan over a space heater that was next to the child's crib. The videotape of the interrogation illustrates the recommended coercive psychological techniques of Inbau et al. (1986) — deception, lying about evidence, and threat. For example, the book suggests asking, "[D]id you ever think about hurting [the victim] even though you did not go through with it?" (p.66). The interrogator is then instructed to follow up with questions about the kind and frequency of such thoughts. Throughout the interrogation, the detective asked variations on this question until the mother eventually acknowledged that it "was possible" she may have thought about it. The detective claimed that he also had a special needs, severely handicapped child and he assured the mother that he and his wife often thought of hurting their child and even had said that he would be better off dead. Inbau et al. (1986) describe this technique of creating "a perception on the part of the suspect that he is a less reprehensible person, morally speaking, than the bare facts of the case would indicate" (p.97). Inbau et al. instruct the interrogator to "Sympathize with [the] suspect by saying anyone else under similar conditions or circumstances might have done [the] same thing" (p.97). The purpose in repeatedly telling the mother that anybody else, including the detective's wife, would do the same thing (hope their child was dead and, in fact, kill her) was to elicit a confession. Inbau et al. (1986) say "Reduce [the] suspect's feeling of guilt by minimizing [the] moral seriousness of [the] offense" (p.99). The detective said several times that it was understandable to want a special needs child to be with God, in a better life, and not to suffer any longer. He said repeatedly that he could understand this because he thought this way about his own child. The detective also threatened to charge the two older children with murder by telling the mother that they were suspects, and that if she did not start the fire, then they must have done it. When the mother later described her reactions to the interrogation, it is clear that at this point she dissociated and responded to this threat with high anxiety, confusion, and stress. The detective falsely told the mother that they had conclusive physical evidence that the fire started from the space heater (no tests had been done at that point and none were produced at the trial). He also falsely told her at the beginning of the interrogation that there was no intention to charge her. When the interrogation ended hours later she went directly to jail. The evaluation of the mother indicated that she was most likely dissociating at times during the interrogation. She also had a very high score on the Gudjonsson Suggestibility Scale. The mother never admitted purposefully to choosing to throw an afghan
on the space heater but only that it might have happened inadvertently
without her knowledge. Later, she specifically denied that she put it
there. She never admitted to wanting the child dead but only to the
possibility that part of her may have wanted that to happen. Nevertheless,
selected portions of the videotape were presented to the jury as a
confession of murder. Example 2: The Friend John Doe was a mentally retarded young man who lived at home with his parents. He had never held a job but spent his time doing things with friends and working at odd jobs for his father. He was in special education classes in school and was on social security disability. Mr. Doe had spent the night on a married friend's couch after a fishing trip and awakened early the next morning and returned home. After he left, the three-year-old daughter came into the kitchen with her pajama bottoms off. The child's mother questioned her about this and the child eventually said that Mr. Doe had been in her room. After further questioning, the child allegedly said that Mr. Doe had removed her pajamas and touched her in her genital area. The authorities were contacted and the child was interviewed several times. Tapes indicate that these interviews were suggestive and leading. A few days later, a police officer told Mr. Doe to come to the police station for an interview. By this time, the child had been interviewed and the police believed that Mr. Doe had abused her. The Miranda warning was not given because the police officer said that Mr. Doe was not under arrest and was free to leave the interview at any time. The interrogation of Mr. Doe was not recorded. Later, Mr. Doe said that he had been confused about what was going on and that he felt "shook up and scared". He said that he denied he had touched the child at first and that he repeated his denials several times but that eventually he agreed to what the officer wanted. He felt he had to do this in order to end the interview. Despite the fact that the officer later maintained he had been free to leave, Mr. Doe said he believed he would be arrested if he tried to go. At the end of the interrogation, the officer wrote out the confession and asked Mr. Doe to sign it. The psychological testing confirmed Mr. Doe's mental retardation. He was barely able to read and, in fact, could not read the signed confession out loud accurately. Mr. Doe's intellectual limitations are essential in understanding his reaction to the interrogation. A retarded person learns early on to try to please others, particularly those in authority. They tend to acquiesce — that is, say yes to yes-no questions — much more than do persons of normal intelligence (Sigelman, Budd, Spanhel, & Schoenrock, 1981). The retarded individual learns to smile, nod, make appropriate short comments that mimic an unexceptional social interaction but which may be incomprehensible to the retarded person. Mr. Doe's performance on the Gudjonsson Suggestibility Scale (GSS) is consistent with this. After he answered the first set of 20 questions and was told he had made a number of errors and should try to be more accurate, his entire demeanor changed. He became noticeably anxious and uncomfortable and then changed 9 out of the 20 answers. His score on the GSS was two and one-half standard deviations higher than the mean of the normative sample. What this means is that Mr. Doe was extremely vulnerable to making a
non-voluntary confession in a police interview, even compared to other
intellectually disabled persons. He responded to the interrogation by
doing and saying what the police officer wanted and he lacked the
cognitive capacity to understand the ramifications of agreeing to sign the
confession statement that he was unable to read and understand. Example 3: The Sergeant The sergeant was accused of sexually abusing an 11-year-old boy with a history of serious psychiatric problems. The boy made the accusation several months after the alleged event while in the hospital. Charges were pursued and the sergeant was interrogated, arrested, and facing a court-martial. The interrogation was not recorded but information on the circumstances of the confession was obtained from the testimony of various people in the Article 39 hearings. The interrogation took place in a small windowless interview room with the doors locked. The agent, according to his hearing testimony, interrogated the sergeant for over an hour until he confessed. The sergeant did not directly admit to any specific acts, but instead the confession was in the form of agreeing to allegations posed to him by the agent. The interrogation was not taped and the agent did not begin to take notes until after the confession. He acknowledged using the interrogation technique of exploring different themes (Inbau et al., 1986) to make the sergeant confess. After the confession, the sergeant vacillated back and forth between admitting and recanting the allegations. According to the agent, he started crying and became extremely upset and then withdrawn, quiet, emotional, and hard to talk to, "as if he was mentally not with me anymore". After the agent dictated a statement to be signed, he observed the sergeant on his knees, praying and crying. The chaplain was called who observed the sergeant leaning against the shelf and uttering a prayer. A supervising officer was called and the chaplain and the officer described the sergeant as "very distraught", "highly upset", and "shell shocked". The officer took him to the hospital. On the way to the hospital he told the supervising officer that he really did not know what was going on, but that he was sure he was not guilty. He said that the agent had wanted him to sign a statement but he was not sure whether he signed the statement or not. The sergeant met with a psychiatric resident who reported that the sergeant adamantly denied abusing the boy. While in the hospital, the sergeant called his pastor and asked him to come to the hospital. When the pastor arrived, the sergeant was frantic, pacing back and forth with a wild look in his eyes, and weeping and incoherent. He eventually calmed down enough to tell his pastor what happened. He described the allegations and said that the agent had kept telling him again and again "Let's get this kid some help". He said that he lined everything out in the statement except for a part about exposing himself to the boy under the carport. He said that this might have happened accidentally when he was wearing gym shorts with no underpants. He said he remembered very little about the interrogation. His recollection was that he initially denied the abuse but the agent repeated that he knew it had actually happened and kept saying, "Come on sergeant, Billy is really in bad shape ... Billy needs help and you are the key to him getting well". The sergeant said that he eventually admitted it so the child could get help but that it really did not happen. The sergeant had no prior history of psychiatric or psychological treatment. He was very active in the United Pentecostal church and reported the gift of the Holy Spirit and speaking in tongues. Psychological testing indicated that he was conforming, conventional, moralistic, immature, naive, and suggestible and had difficulty handling stress and conflict. He was vulnerable to dissociating if placed in an extremely stressful situation. The descriptions of the sergeant's behavior during and following the interrogation indicate that he reacted with unusual distress during and after the time the confession was elicited. Persons who have no experience with arrest and interrogation and those suspected of sex crimes are especially likely to become upset and stressed by the interrogation and to therefore not be in a normal mental state (Irving, 1980). The theme approach used in this interrogation is included in the
tactics recommended by Inbau et al. (1986). The agent overwhelmed the
sergeant with damaging evidence, asserted a firm belief in his guilt, and
then suggested that it would be easier for all concerned if the suspect
admitted to his role in the crime. In addition, the personality
characteristics of the sergeant are likely to have made him unusually
vulnerable to the interrogation techniques designed to elicit a
confession. Example 4: The Stepfather The stepfather, who also had several biological children from three different women, had a history of petty infractions of the law and was unemployed. He was charged with sexually abusing his 8-year-old stepdaughter. He was interrogated by the police and initially denied the allegations but eventually acknowledged sexually abusing the child on several occasions when he was very drunk. He then signed a confession which he later retracted. The interrogation, which lasted two and one-half hours, was not taped. According to the stepfather, he was arrested at his home by four police officers, handcuffed, and brought to a small interrogation room with a one-way mirror. The handcuffs were removed during questioning. He said that he became very frightened when he realized what he was being questioned for. "I was scared ... This was the scariest time in my life." He was frightened because he knew how serious the charges were and how much trouble this would cause. He was afraid that he would go to prison for the rest of his life. He initially denied the allegations but then the police officer took a five minute break and returned, saying that their investigation had shown that he had, in fact, had intercourse with his stepdaughter. In the police report, the officer acknowledged he told the stepfather the medical evidence convinced him the stepfather was not being truthful in his denial, that the child would not make up a detailed disclosure such as this, and that the stepfather was ''sick'' and needed help. The stepfather described the officer waving a piece of paper at him while maintaining that they had medical proof of penetration and had found blood and semen on the sheets and the child's underwear. He said that the officer screamed, "You're a good f— liar" and "turned red in the face because he was hollering so bad". He said that the interrogator told him he would get over five counts if he refused to sign a confession but only three if he did. The interrogator kept talking about all of the counts and said that he would go to jail for 160 years. He said, "I've been doing this for 13 years and know when someone is lying". During this period, the stepfather described himself as crying and extremely frightened. He said he finally made the verbal admission and signed the confession because he believed he would be convicted of more counts and be in jail much longer if he did not go along with it. Psychological testing indicated that the stepfather was of average
intelligence but had long-standing and severe personality problems, was
easily distracted and confused, and was likely to deteriorate under
stress. His total suggestibility score on the Gudjonsson Suggestibility
Scale was two standard deviations above the mean. His personality made him
especially vulnerable to the type of coercive police interrogation he
later reported and which is described in the police officer's report. Taping Interrogations of Suspects Only one of the above examples, that of the mother, was taped. In the third example (the sergeant), the agent acknowledged in his Article 39 testimony that he used the interrogation technique of exploring different themes to encourage the sergeant to "admit to wrongdoing when he otherwise wouldn't". In the fourth example, the officer's report corroborated some, but not all, of what the stepfather claimed took place in the interrogation. But, in the second example (the friend), the police officer insisted that the young mentally retarded man knew he was not under arrest and was free to leave. The young man was only able to provide limited details of what took place in the interrogation. We believe that videotaping is extremely helpful in dealing with nonvoluntary and retracted confessions. Without a tape the issue is likely to come down to a dispute between the suspect and the police about the nature of the interrogation. Video- or audiotaping provides the only means by which what actually took place can be known for certain. Requiring all interrogations of suspects to be taped is therefore an important way of responding to the possibility of psychologically coerced interrogations and police deception. Cassell (1997) notes there is virtual unanimity that videotaping interrogations is an effective solution to the problem of false confessions. He argues that videotaping provides an excellent protection for false confessions resulting from inappropriate police questioning since it allows judges and juries to see when the police have coerced an innocent person into admitting to a crime he did not commit (Cassell, 1998). In addition, taping protects the police against false claims of improper questioning. Leo (1996c) observes that many police stations now routinely tape interrogations of suspects and that the state supreme courts of Minnesota and Alaska have held that statements obtained in the absence of taping are generally inadmissible. He argues:
VOLUNTARINESS AND ADMISSIBILITY Confessions have been problematical for the U.S. justice system. Fact finders must evaluate the reliability of a confession, first in terms of its admissibility and, if admitted, in terms of its weight. To do this, they must determine whether the confession was voluntary or was the result of pressure or inducement and whether the defendant was intellectually competent or was anxious, fatigued, mentally retarded, or unusually suggestible. This is a complex and difficult task. Young (1996) describes how the standards for the admissibility of confessions have shifted back and forth over the years. Early in American jurisprudence, a high standard for admissibility of a confession was set so that the slightest deceptive practice in eliciting a confession rendered it inadmissible. The U.S. Supreme Court first addressed the admissibility of a confession and the test of voluntariness in 1897 in Bram v. United States. In Bram, the Supreme Court analyzed the issues in terms of the Fifth Amendment privilege against self-incrimination and ruled that to be admissible a confession must not be extracted by any sort of threat or violence nor obtained by any direct or implied promises, however slight. Bram, however, was a federal case and the Supreme Court's reliance on the Fifth Amendment in this ruling limited it to federal cases. At the beginning of the 20th century state courts generally admitted confessions obtained by lies and deception, reasoning that such tactics were not apt to produce false confessions. During this period, there was a shift as the police began to take over the interrogation process and questioning moved from judicial supervision to the back room (Young, 1996). Young (1996) speculates that the leniency of state courts in admitting confessions obtained by police interrogation may have been due to their responding to the new role of the police and their hope for more efficient and successful law enforcement. The result was that for many years state police misconduct was unrestrained. In 1931, the Wickersham Commission Report provided numerous examples of state police misconduct in interrogations and warned of the dangers of false confessions. In 1936, using the Due Process Clause of the Fourteenth Amendment, the U.S. Supreme Court ruled that confessions could not be obtained by physical violence (Brown v. Mississippi) and a few years later reversed a conviction obtained by persistent questioning and "other ingenious form of entrapment" (Chambers v. Florida, 1940) (Young, 1996, pp. 444-445). In the 35 confession cases it decided from 1936 and 1964, the Supreme Court employed the due process voluntariness test to evaluate the admissibility of confessions and it also delineated appropriate and inappropriate interrogation techniques, generally by reducing the amount of psychological pressure that could produce a legally voluntary confession (Leo, 1996c). In these cases, the Supreme Court continued to criticize third degree tactics and, in considering the voluntariness of a confession, looked at the totality of the circumstances, establishing that test as the standard by which it would review police conduct in interrogations (Young, 1996). The criterion for the admissibility of a confession has thus evolved into the quality of voluntariness. The aim of admitting into evidence only voluntary confessions is to prevent the introduction of unreliable evidence. The Supreme Court has kept the definition of voluntariness vague and imprecise and speaks of a comprehensive analysis of the totality of the relevant circumstances (Kassin & Wrightsman, 1985). But, as currently interpreted, the modern test of voluntariness is so flexible that courts can use it to admit confessions obtained by police lying (Young, 1996). The result is that judges may exclude confessions where the coercion is blatant and obvious but not exclude confessions where the coercion is subtle and more readily disguised. Typically, confessions are excluded if they are elicited by physical violence or a threat of harm or punishment, promise of leniency, or without notifying suspects of their Miranda rights (Kassin & Sukel, 1997). However, although some courts have differentiated between false
statements and fabricated evidence (Young, 1996), even clear evidence of
police lying and fabrication of evidence may be considered acceptable.
In
State v. Jackson (1983), the interrogating officer put blood and
fingerprints on a knife that was similar to the murder weapon and then
photographed it so it appeared that a fingerprint identification had been
made. In the interrogation, the suspect was shown the knife and the
photograph and told that the fingerprint had been identified as his.
Despite the use of this clearly fabricated evidence to obtain a confession
along with other false statements, the North Carolina Supreme Court ruled
that these techniques were constitutional because they were not likely to
make an innocent person confess. ADMISSIBILITY OF EXPERT TESTIMONY The effect of the more subtle coercive interrogation methods on jurors is extremely powerful. Although jurors may discount confessions when it is evident they were obtained by blatant coercion, when it appears to be the more subtle interrogation techniques that elicit a confession jurors accept it and discount any coercion (Kassin & McNall, 1991). In a laboratory experiment, Kassin and Sukel (1997) demonstrated that, even when a confession was recognized as coerced, when it was stricken from the record, and when mock jurors said it had no influence, the confession increased the conviction rate. In Arizona v. Fulminante (1991), the U.S. Supreme Court found that Fulminante's confession that he had murdered his stepdaughter was coerced and that it was "prejudicial error" to admit it. But the court also ruled that in certain circumstances, such as when a confession is cumulative or when there is sufficient corroborating evidence, a wrongly admitted coerced confession may constitute ''harmless error." That is, the court said that admission of a nonvoluntary confession is a "trial error" similar to the erroneous admission of other types of evidence. The Fulminante opinion therefore places great faith in the ability of a jury to properly evaluate a confession and the evidence about how it was obtained (Kassin & Sukel, 1997). When a coerced confession is admitted into evidence, the jury will be required to evaluate the testimony about the circumstances surrounding the confession. Unfortunately, research indicates that jurors may have difficulty correctly performing this task (Kassin & Sukel, 1997). It can be extremely helpful to have testimony from an expert concerning the social psychology of interrogation tactics, the circumstances surrounding false or coerced confessions, interrogation tactics used in the particular case, and the characteristics of the defendant that may have made him or her unusually susceptible to a coercive interrogation. This type of testimony makes it possible for the finder of fact to properly evaluate the confession. In United States v. Hall (1996), the Seventh Circuit Court of Appeals reversed Hall's kidnapping conviction on the grounds that expert testimony relating to the police interviews of the defendant and the defendant's susceptibility to giving false confession was erroneously excluded. One of the experts was social psychologist Richard Ofshe, a recognized expert in coercive police interrogation techniques and coerced confessions. The court held that the district court's "failure to undertake full Daubert inquiry regarding admissibility, as scientific evidence, of psychologist's testimony on false confessions was not harmless" (p.1338) and it said that the district court had erred in excluding the evidence related to the police interview techniques because "it saw no potential usefulness in the evidence, because it was within the jury's knowledge" (p.1341). The court stated:
The court noted that:
The court addressed the fact that some of the knowledge to which the experts would have testified was within the jurors' experience, since the district court had concluded that the expert testimony would usurp the jury's role:
In its ruling, the court summarized the approach a judge must take under Daubert when faced with a proffer of expert scientific testimony and stated that "we cannot be confident that the district court applied the Daubert framework" (p.1342). The court concluded that the failure of the district court to conduct a full Daubert inquiry was not harmless error, since Dr. Ofshe's proffered testimony went to the heart of Hall's defense. It also concluded that the other psychologist should have been permitted to testify about Hall's susceptibility to interrogation techniques and his propensity to give a false confession. Following the Seventh Circuit ruling remanding a new trial, a Daubert
hearing was held in the district court (United States v. Hall, 1997) to
determine the admissibility of Dr. Ofshe's expert testimony. At this
hearing, the district court judge determined that the proffered testimony
relating to false and coerced confessions was properly understood to be
scientific knowledge. The basis for this determination was the testimony
that there is a large body of scientific research dealing with coercion,
false confessions, and interrogation methods. CONCLUSIONS Psychological coercion appears to be common in the interrogations of
suspects. The structure and nature of law enforcement is a powerful
influence that may produce police misbehavior. An indeterminate number of
nonvoluntary confessions may be attributed to the coercive nature of
police interrogation during which deceptive and deceitful practices may be
used. A psychologist who relates to the justice system needs to understand
the extent, nature, and impact of these practices. However, in order to
have testimony about this scientific knowledge admitted, the psychologist
must be prepared to deal with efforts to preclude such testimony. The
gatekeeping function of judges must be understood and responded to with a
careful, valid, and reliable presentation of the relevant scientific
research. REFERENCES Arizona v. Fulminante, 111 S.Ct 1246 (1991). Ayling, C. (1984). Corroborating confessions: an empirical analysis of legal safeguards against false confessions. Wisconsin Law Review, 4, 1121-1204. Bran v. United States, 168 U.S. 532 (1897). Brandon, R., & Davies, C. (1973). Wrongful Imprisonment: Mistaken
Convictions and Their Consequences ( Brown v. Mississippi, 297 U.S. 278 (1936). Cassell, P. G. (1997). Balanced approaches to the false confession problem: a brief comment on Ofshe, Leo, and Alschuler. Denver University Law Review, 74, 1123-1133. Cassell, P. G. (1998). Protecting the innocent from false confessions and lost confessions-and from Miranda. The Journal of Criminal Law and Criminology, 88, 497-556. Cassell, P. G. (in press). The guilty and the "innocent": an examination of alleged cases of wrongful conviction from false confessions. Harvard Journal of Law and Public Policy, 22. Chambers v. Florida, 309 U.S. 227 (1940). Clare, I. C. H., & Gudjonsson, G. H. (1993). Interrogative suggestibility, confabulation, and acquiescence in people with mild learning disabilities (mental handicap): implications for reliability during police interrogations. British Journal of Clinical Psychology, 32, 295-301. D'Amato, A. (1990). The ultimate injustice: when a court misstates the facts. Cardozo Law Review, 11, 1313-1347. Daubert v. Dow Pharmaceuticals, Inc. 113 S.Ct. 2786 (1993). Foster, H. H. (1969). Confessions and the station house syndrome. DePaul Law Review, 18, 683-701. Gudjonsson, G. H. (1984a). A new scale of interrogative suggestibility. Personality and Individual Differences, 5, 303-314. Gudjonsson, G. H. (1984b). Interrogative suggestibility: Comparison between 'false confessors' and 'deniers' in criminal trials. Medicine, Science and the Law, 24, 56-60. Gudjonsson, G. H. (1991a). Suggestibility and compliance among alleged false confessors and resisters in criminal trials. Medicine, Science and the Law, 31, 147-151. Gudjonsson, G. H. (1991b). The effects of intelligence and memory on group differences in suggestibility and compliance. Personality and Individual Differences, 12, 503-505. Gudjonsson, G. H. (1991c). The application of interrogative
suggestibility to police interviewing. In J. F. Schumaker (Ed.), Human
Suggestibility ( Gudjonsson, G. H. (1992). The Psychology of Interrogations,
Confessions, and Testimony ( Gudjonsson, G. H. (1995). "I'll help you boys as much as I can" — How eagerness to please can result in a false confession. Journal of Forensic Psychiatry, 6, 333-342. Gudjonsson, G. H. (1997). The Gudjonsson Suggestibility Scales Manual. East Sussex, UK: Psychology Press. Gudjonsson, G. H., & Clark N. K. (1986). Suggestibility in police interrogation: a social psychological model. Social Behavior, 1, 83-104. Gudjonsson, G. H., & LeBegue, B. (1989). Psychological and psychiatric aspects of a coerced-internalized false confession. Journal of the Forensic Science Society, 29(4), 261-269. Gudjonsson, G., & MacKeith, J. A. C. (1982). False confessions.
Psychological effects of interrogation. A discussion paper. In A. Trankell (Ed.),
Reconstructing the Past ( Gudjonsson, G. H., & Sigurdsson, J. F. (1994). How frequently do false confessions occur? An empirical study among prison inmates. Psychology, Crime & Law, 1, 21-26. Gudjonsson, G. H., & Singh, K. K. (1984a). Interrogative suggestibility and delinquent boys: an empirical validation study. Personality and Individual Differences, 5, 425-430. Gudjonsson, G. H., & Singh, K. K. (1984b). The relationship between criminal conviction and interrogative suggestibility among delinquent boys. Journal of Adolescence, 7, 29-34. Heavner, J. M. (1984). Admissibility of confessions: The voluntariness requirement and police trickery in North Carolina-State v. Jackson. Wake Forest Law Review, 20, 251-275. Hrones, S. (1996, June). The phony fingerprint case: study in police perjury. The Champion, 16-17. Huff, C. R., Rattner, A., & Sagarin, E. (1996). Convicted But
Innocent: Wrongful Conviction and Public Policy ( Imwinkelried, E. J. (1996, July). Evidence law: Uncertainty of scientific enterprise. The Champion, 12-15, 50-57. Inbau, F. E., & Reid, J. E. (1962). Criminal Interrogation and
Confessions ( Inbau, F. E., Reid, J. E., & Buckley,. P. (1986). Criminal
Interrogation and Confessions (3rd ed.) ( Irving, B. (1980). Police interrogation: A case study of current practice (Royal Commission on Criminal Procedure Research Study No.4). London: HMSO. Kassin, S. M. (1997). The psychology of confession evidence. American Psychologist, 52, 221-323. Kassin, S. M., & Kiechel, K. L. (1996). The social psychology of false confessions: compliance, internalization, and confabulation. Psychological Science, 7, 125-128. Kassin, S. M., & McNall, K. (1991). Police interrogations and confessions: communicating promises and threats by pragmatic implication. Law and Human Behavior, 15, 233-251. Kassin. S. M., & Sukel, H. (1997). Coerced confessions and the jury: an experimental test of the "harmless error" rule. Law and Human Behavior, 21, 27-46. Kassin, S. M., & Wrightsman, L. 5. (1985). Confession evidence. In
S. M. Kassin & L. S. Wrightsman (Eds.), The Psychology of Evidence and
Trial Procedure ( Landsman, S., & Rakos, R. F. (1994). A preliminary inquiry into the effect of potentially biasing information on judges and jurors in civil litigation. Behavioral Sciences and the Law, 12, 113-126. Leo, R. A. (1996a). Inside the interrogation room. The Journal of Criminal Law and Criminology, 86, 266-303. Leo, R. A. (1996b). Miranda's revenge: police interrogation as a confidence game. Law & Society Review, 30, 259-288. Leo, R. A. (1996c). The impact of Miranda revisited. The Journal of Criminal Law and Criminology, 86, 621-692. Leo, R. A., & Ofshe, R. J. (1998). The consequences of false confessions: deprivations of liberty and miscarriages of justice in the age of psychological interrogations. The Journal of Criminal Law and Criminology, 88, 429. Lindsay, R. C. L. (1991, June 15). Biased lineups: Where do they come from? Paper presented at the meeting of the American Psychological Society, Washington, DC. McCloskey, J. (1989, December). Convicting the innocent. Voice For The Defense, 20-25. Meehl, P. E. (1989). Law and the fireside inductions (with postscript): some reflections of a clinical psychologist. Behavioral Sciences and the Law, 7, 521-550. Milgram, S. (1963), Behavioral study of obedience. Journal of Abnormal and Social Psychology, 67, 371-378. Milgram, 5. (1964). Issues in the study of obedience: a reply to Baumrind. American Psychologist, 19, 848-852. Miranda v. Arizona, 384 U.S. 436 (1966). Ofshe, R. J. (1992). Inadvertent hypnosis during interrogation: False confession due to dissociative state; misidentified multiple personality and the satanic cult hypothesis. International Journal of Clinical and Experimental Hypnosis, 40(3), 125-156. Rattner, A. (1988). Convicted but innocent: Wrongful conviction and the criminal justice system. Law and Human Behavior, 12, 283-293. Richardson, G., & Kelly, T. P. (1995). The relationship between intelligence, memory and interrogative suggestibility in young offenders. Psychology, Crime and Law, 1, 283-290. Saks, M. (1989). Legal policy analysis and evaluation. American Psychologist, 44, 1110-1117. Sharrock, R., & Gudjonsson, G. H. (1993). Intelligence, previous convictions and interrogative suggestibility: A path analysis of alleged false-confession cases. British Journal of Clinical Psychology, 32, 169-175. Sigelman, C., Budd, E., Spanhel, C., & Schoenrock, C. (1981). When in doubt, say yes: acquiescence in interviews with mentally retarded persons. Mental Retardation, 19, 53-58. Skolnick, J. H. (1982). Deception by police. Criminal Justice Ethics, 1(2), 40-54. Skolnick, J. H., & Leo, R. A. (1992). The ethics of deceptive interrogation. Criminal Justice Ethnics, 11(1), 3-12. State v. Jackson, 304 S.E.2d 134 (N.C. 1983). State v. Kelekolio, 849 P.2d 58 (Haw. 1993). Underwager, R., & Wakefield, H. (1992). False confessions and police deception. American Journal of Forensic Psychology, 10(3), 49-66. United States v. Hall, 93 F.3d 1337 (7th Cir. 1996). United States v. Hall, 974 F. Supp. 1198 (S.D. 111.1997). Wesley, J. W. (1984). Scientific evidence and the question of judicial capacity. William and Mary Law Review, 25, 675-703. Young, D. (1996). Unnecessary evil: police lying in interrogations. Connecticut Law Review, 28, 425-477. Zimbardo, P. G. (1967, July). Toward a more perfect justice. Psychology Today, 45-46.
1 Cassell (1998) reevaluates this data and argues that the actual frequency of false confessions is about 0.6%. [Back] |
