Presentation on theme: "Laura H. Nirider Center on wrongful convictions of youth"— Presentation transcript:
1 Un-Smelling the Skunk: False Confession Experts and the Fight to Change the Narrative Laura H. NiriderCenter on wrongful convictions of youthNorthwestern university school of law375 E. Chicago Ave., 8th FloorChicago, 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 trialwere wrongfully convicted.“Triers of fact accord confessions such heavy weightin their determinations that the introduction of a confessionmakes 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 ExpertForensic Psychologist
5 What Can a Forensic Psychologist Say? Forensic Psychologist EvaluationDid Defendant truly comprehend Miranda?Administer Miranda comprehension testsIs Defendant highly suggestive or compliant?Administer Gudjonsson Suggestibility ScalesMeasures “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 tacticsEstablish that false confessions can happen due to the pressures of psychological interrogationExamine the tactics used during this interrogation; ask whether these tactics have been scientifically associated with false confessionsConduct a specific reliability analysis of Defendant’s statement
7 Who is a Police Interrogation Expert? Who should you consult?“False confession”/police interrogation expertSocial psychologist/criminologist who has studied or familiarized himself/herself with research concerning the relationship between police interrogation tactics and false confessionsLawyer with special expertiseConsider “unusual” experts:Former Washington, D.C. homicide detective Jim TrainumPresident of Reid & Associates Joseph Buckley
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 reviewConsider 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 reportResults of forensic testingEvery statement (transcript, video, audio, written)Transcripts from motion to suppress (if it’s already happened)The expert should be informed of all incriminating evidenceShould the expert interview your client?Recorded confession versus unrecorded confession
11 Many confessions are unreliable but not false. The Expert’s OpinionWhat is a Confession?Inculpatory statementAdmissionConfession with post-admission narrativeWhat is a False Confession?Physically impossible for defendant to have committed crimeForensic evidence proves the confession falseNo crime ever occurredTrue perpetrator is reliably identifiedMany confessions are unreliable but not false.
12 The Expert’s Opinion Known Incidence Rates of False Confessions Establish that false confessions happenCurrently 311 DNA exonerations; 20-25% of those convictions were attributable to false confessionsCite to leading registries and studies for known incidence ratesDrizin/Leo study of false confessionsNat’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 policeExample: John Mark CarrCompliantOccur 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 rewardExamples: Central Park Five, Dixmoor Five, Norfolk FourInternalized/PersuadedOccur 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 itSometimes associated with use of polygraph or voice stress analyzerExample: Michael Crowe
14 The Expert’s Opinion Three Errors That Lead to False Confessions MisclassificationCoercionContaminationWays to Evaluate a Confession’s ReliabilityFit test and contamination screenHallmark 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 generallyOverview of psychologically coercive inducementsLow-end inducementsInterpersonal 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 confessionsSystemic inducementsStatements 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 confessesPolice will “go to bat for you” in court or will write up his report in a favorable waySome systemic inducements can be psychologically coercive (depending on content, how explicit/vaguely stated it is, and content of message)High-end inducementsEither explicit or implicit statements that directly communicate that a suspect will receive leniency if his confesses, whereas noncompliance will lead to a harsher punishmentNearly 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 StatementIdentification and analysis of inducementsApplication 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 unreliableInclude quotes, excerpts from interrogation to illustrate pointsInclude 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 testedWhether theory has been subjected to peer review/publicationWhether there is a known rate of errorWhether 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 methodologiesSurveysInterviewsEmpirical studies/observations (e.g. Drizin/Leo, Gross)Case studiesTested in lab studiesKassin/Kiechel alt-key studyRussano cheating study: Minimization increased true confessions by 35%, but the rate of false confessions tripledConvergent 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 Societymembers all received the document and were invited to review; comments were incorporatedAssociation for Psychological Science literature reviewAmerican 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 PaperPolice-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 confessionsNot only the mentally ill, young, or intellectually disabled falsely confessCertain 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 casesConfession evidence can corrupt other forms of evidence, including supposedly objective science like fingerprint analysisThere are commonly accepted ways of assessing the reliability of confession evidence that are shared by social scientists and law enforcement experts alikePrevalence 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 testimonyThe 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 DaubertExcluding false confession experts “overlook[s] the utility of valid social science,” notwithstanding the awkward fit between social science and DaubertMany 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.”