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Laura H. Nirider Center on wrongful convictions of youth

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1 Un-Smelling the Skunk: False Confession Experts and the Fight to Change the Narrative
Laura H. Nirider Center on wrongful convictions of youth Northwestern university school of law 375 E. Chicago Ave., 8th Floor Chicago, IL 60611 (312)

2 The Power of Confession Evidence
Consequences of False Confessions: Confession evidence can corrupt other evidence. Further police investigation is often limited/nonexistent. Conviction has historically been all but guaranteed. 81% of false confessors whose cases went to trial were wrongfully convicted. “Triers of fact accord confessions such heavy weight in their determinations that the introduction of a confession makes the other aspects of a trial in court superfluous.” --Colorado v. Connelly, 479 U.S. 157, 182 (1986)

3 False Confession = Skunk?
If you throw a skunk into the jury box, you can't instruct the jury not to smell it. -- Dunn v. U.S., 307 F.2d 883 (5th Cir. 1962) How do you convince a factfinder to “un-smell the skunk” – how do you develop a persuasive claim of innocence – after your client has confessed? CONSIDER THE VALUE OF EXPERT TESTIMONY.

4 Two Types of Expertise Relevant to Confessions
“False Confessions” Expert, a.k.a. Police Interrogations Expert Forensic Psychologist

5 What Can a Forensic Psychologist Say?
Forensic Psychologist Evaluation Did Defendant truly comprehend Miranda? Administer Miranda comprehension tests Is Defendant highly suggestive or compliant? Administer Gudjonsson Suggestibility Scales Measures “shift” and “yield” Yield is the degree to which a person will simply agree with leading questions. Shift involves a person slightly modifying their answers when they see that the interrogator isn't pleased. Sometimes all it takes is repeating the question multiple times. Does Defendant suffer from a mental illness or disorder that may make him or her more vulnerable to police interrogation tactics?

6 What Can a Police Interrogation Expert Add ?
Educate factfinder on social science research regarding police interrogation tactics Establish that false confessions can happen due to the pressures of psychological interrogation Examine the tactics used during this interrogation; ask whether these tactics have been scientifically associated with false confessions Conduct a specific reliability analysis of Defendant’s statement

7 Who is a Police Interrogation Expert?
Who should you consult? “False confession”/police interrogation expert Social psychologist/criminologist who has studied or familiarized himself/herself with research concerning the relationship between police interrogation tactics and false confessions Lawyer with special expertise Consider “unusual” experts: Former Washington, D.C. homicide detective Jim Trainum President of Reid & Associates Joseph Buckley

8 Professor Saul Kassin on False Confessions

9 First Contact: What Should You Ask the Expert to Do?
Your expert should never evaluate the ultimate issue, i.e., a confession’s truth or falsity. She or he should only evaluate whether indicia of unreliability exist. During your initial conversation, set out ground rules regarding discovery and the production of written notes/materials during the expert’s review Consider hiring the expert before the suppression hearing to make the most of his or her opinion on coercion

10 What Materials Should You Give the Expert?
What materials should you give an expert? Every police report, medical examiner’s report Results of forensic testing Every statement (transcript, video, audio, written) Transcripts from motion to suppress (if it’s already happened) The expert should be informed of all incriminating evidence Should the expert interview your client? Recorded confession versus unrecorded confession

11 Many confessions are unreliable but not false.
The Expert’s Opinion What is a Confession? Inculpatory statement Admission Confession with post-admission narrative What is a False Confession? Physically impossible for defendant to have committed crime Forensic evidence proves the confession false No crime ever occurred True perpetrator is reliably identified Many confessions are unreliable but not false.

12 The Expert’s Opinion Known Incidence Rates of False Confessions
Establish that false confessions happen Currently 311 DNA exonerations; 20-25% of those convictions were attributable to false confessions Cite to leading registries and studies for known incidence rates Drizin/Leo study of false confessions Nat’l Registry of Exonerations (online) Some facts about incidence unknowable

13 The Expert’s Opinion Types of False Confessions Voluntary Compliant
Occur without prompting or pressure by police Example: John Mark Carr Compliant Occur when suspects are induced through police interrogation to confess – while knowing that he or she is innocent – in order to escape the stresses of interrogation, avoid punishment, or gain a promised/implied reward Examples: Central Park Five, Dixmoor Five, Norfolk Four Internalized/Persuaded Occur when suspects who are told during interrogation that there is incontrovertible evidence of their guilt come to believe that they committed the crime in question, even though they do not remember committing it Sometimes associated with use of polygraph or voice stress analyzer Example: Michael Crowe

14 The Expert’s Opinion Three Errors That Lead to False Confessions
Misclassification Coercion Contamination Ways to Evaluate a Confession’s Reliability Fit test and contamination screen Hallmark of unreliable confession: Suspect unable to identify correct detail about crime absent contamination

15 The Expert’s Opinion Psychologically Coercive Tactics
Overview of interrogation techniques generally Overview of psychologically coercive inducements Low-end inducements Interpersonal or moral appeals that are used convince a suspect that he will feel better if he confesses “Confessing is the Christian thing to do,” “get it off your chest” Rarely thought to lead to false confessions Systemic inducements Statements focusing the suspect’s attention on the processes and outcomes of the criminal justice system, in order to get the suspect to conclude that the system will process his case more favorably if he confesses Police will “go to bat for you” in court or will write up his report in a favorable way Some systemic inducements can be psychologically coercive (depending on content, how explicit/vaguely stated it is, and content of message) High-end inducements Either explicit or implicit statements that directly communicate that a suspect will receive leniency if his confesses, whereas noncompliance will lead to a harsher punishment Nearly all high-end inducements are psychologically coercive

16 The Expert’s Opinion Application of the Above Concepts: The Expert’s
Analysis of Your Client’s Statement Identification and analysis of inducements Application of fit test/contamination screen (chart?) Remember, the expert should never conclude that a confession is false – at most, if appropriate, the expert should conclude that it is unreliable Include quotes, excerpts from interrogation to illustrate points Include video clips where possible

17 Qualifying the Science: The Daubert Standard
Expert testimony will be admitted if: Scientific knowledge that will assist the trier of fact. First reliability must be assessed, then its relevance. Reliability: Whether theory can and has been tested Whether theory has been subjected to peer review/publication Whether there is a known rate of error Whether theory enjoys general acceptance within the relevant scientific, technical, or other specialized community ***IMPORTANT: This is “not an exclusive list”; a trial court might find other factors relevant. Further, “the Daubert factors might not even be relevant in a given case.” Miller v. Eldridge, 146 S.W.3d 909, (2004)

18 Meeting the Daubert Factors
Whether theory can and has been tested: Has the premise that psychological interrogation can induce false confessions been tested? Yes, extensively. Tested via social science methodologies Surveys Interviews Empirical studies/observations (e.g. Drizin/Leo, Gross) Case studies Tested in lab studies Kassin/Kiechel alt-key study Russano cheating study: Minimization increased true confessions by 35%, but the rate of false confessions tripled Convergent validity

19 Meeting the Daubert Factors
Whether theory has been subjected to peer review and publication: Yes, extensively: American Psychological Association White Paper (available online) Consensus document of the American Psychology-Law Society members all received the document and were invited to review; comments were incorporated Association for Psychological Science literature review American Psychological Association & Innocence Network amicus briefs recite literature (available online)

20 Meeting the Daubert Factors
Whether theory has a known error rate: Yes, but: Lab studies are guided by scientific principles, overseen by IRBs, etc. , to ensure scientific reliability. The studies often report an error rate. Real-life studies: Unaware of any studies of exonerations that inadvertently included people who, in fact, were guilty. But: Error rate is a poor fit for a social scientific inquiry. This area of specialized social science does not deal with hard numbers and Newtonian science, like expert opinions regarding the delayed reporting of sexual abuse. Litigators should strive to limit Daubert inquiries into error rates. In the context of this particular social science, it is a misplaced inquiry that can cause the science to appear infirm when, in fact, it is not.

21 Meeting the Daubert Factors
Whether theory has been generally accepted in the scientific community: Yes, certainly: Most social scientists agree that false confessions happen and that certain psychological interrogation tactics are risk factors for false confessions. The A.P.A. White Paper is a perfect illustration of this. Do not let split appellate court opinions be construed against acceptance. There are hundreds of cases in which experts have been admitted in courts/states all over the country. Contact Drs. Ofshe, Leo, Kassin, Davis, etc. to see if they have testified in your state

22 The APA White Paper Police-Induced Confessions: Risk Factors and Recommendations (Kassin/Drizin/Grisso/Gudjonsson/Leo/Redlich; 2010)

23 Does a False Confession Expert Assist the Trier of Fact?
Studies prove juror unfamiliarity with false confessions: Richard Leo & Brittany Liu, “What Do Potential Jurors Know About Police Interrogation Techniques and False Confessions?” Behav. Sci. & the Law (Apr. 2009) Mark Costanzo, “Juror Beliefs About Police Interrogations, False Confessions, and Expert Testimony,” Journal of Empirical Legal Studies (2010) Iris Blandon-Gitlin et al., “Jurors Believe Interrogation Tactics Are Not Likely to Elicit False Confessions: Will Expert Witness Testimony Inform Them Otherwise?” Psych., Crime, & Law (2009) [actual jurors] Linda Henkel, “A Survey of People’s Attitudes and Beliefs about False Confessions,” Behav. Sci. & Law (2008) Danielle Chojnacki, “An Empirical Basis for the Admission of Expert Testimony on False Confessions,” Ariz. St. Law J. (2007) “[T]here is now [empirical] evidence that a significant proportion of jurors do generally assume that suspects who confess to crimes are guilty.” Public polling by D.C. and Missouri public defender offices reaffirms this conclusion.

24 Does a False Confession Expert Assist the Trier of Fact?
Issues beyond the ken of most jurors: Psychological interrogation tactics, not physical, are responsible for most proven false confessions Not only the mentally ill, young, or intellectually disabled falsely confess Certain techniques may increase the risk of false confessions as shown in actual cases of false confessions, laboratory studies, etc. Russano study: Important! Most documented false confessions occur in murder cases Confession evidence can corrupt other forms of evidence, including supposedly objective science like fingerprint analysis There are commonly accepted ways of assessing the reliability of confession evidence that are shared by social scientists and law enforcement experts alike Prevalence and sources of contamination (38 of 40 first DNA exons)

25 Helpful Caselaw U.S. v. Hall, 93 F.3d 1337 (7th Cir. 1996)
Reversing a defendant’s conviction based on exclusion of false confession expert testimony The testimony “would have let the jury know that a phenomenon known as false confessions exists, how to recognize it, and how to decide whether it fits the facts of the case being tried” “It would have been up to the jury, of course, tod ecide how much weight to attach to [the expert’s] theory, and to decide whether they believed his explanation of Hall’s behavior or the more commonplace explanation that the confession was true. But the jury here may have been deprived of critical information it should have had in evaluating Hall’s case.” Admitting expert under Daubert while recognizing poor match between Daubert factors and social science

26 Helpful Caselaw Caine v. Burge (N.D. Ill. 2013)
Admitting expert under Daubert Excluding false confession experts “overlook[s] the utility of valid social science,” notwithstanding the awkward fit between social science and Daubert Many objections to the admission of the expert’s testimony can be explored and challenged during cross-examination

27 Not-So-Helpful (But Distinguishable) Caselaw
Tunstull v. Commonwealth, 337 S.W.3d 576, 588 (KY 2011) Affirmed trial court’s decision to deny funding for a false confession expert where the defense theory was that the defendant falsely confessed to robbery to protect his cousin, whom he loved like a brother. The trial court “explained that lying to cover for another person was not a false confession of the type for which expert testimony was necessary, as opposed to the types of situations where it is alleged, for example, that police used interrogation techniques which overcame a person’s free will or made him believe that he did something he did not do. The court explained that it is the latter type situations that cause great concern to the court and give rise to the need for an expert….” “We agree with the trial court that the jury was fully equipped to evaluate Appellant’s claim, and that there was no reasonable and necessity for an expert…There was no allegation in this case, that, for example, Appellant’s confession was unreliable due to a mental condition, that his will had been overcome, or that police made him believe he did something he did not do.”


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