Presentation on theme: "Alexander Sasha Bardey MD Jonathan Moore Esq. Harvey Fishbein Esq."— Presentation transcript:
1Alexander Sasha Bardey MD Jonathan Moore Esq. Harvey Fishbein Esq. False Confessions and the Admissibility of Expert Testimony on False ConfessionsAlexander Sasha Bardey MDJonathan Moore Esq.Harvey Fishbein Esq.
2False Confessions … are self-incriminating statements that go to: - Motive: “Well, I guess I could have been pretty ticked off at my wife for leaving me alone with the baby while she went to the party.” [Illinois V. DeBord]- Opportunity: “Maybe you’re right and it was actually midnight before I got home..” [California V. Silapie]- Method: “I sure don’t remember it, but maybe my hand sometimes slipped when I spotted the girls.” [Illinois V. Cardemone]
3Perpetrators of the false confession Those who are totally innocent of the crime they are alleged to have committedThose who are involved in the alleged offence but overstated their involvementUsually in response to a demand for a confession and is either intentionally fabricated as a response to internal, external factors, or both
4Peine Forte et Dure “Hard and Forceful Punishment” Method of torture used in England until 1741 in England to extract a confession/pleaTruly the “weight of the evidence”This is the only US case, of Giles Corey at the Salem Witch Trials in the 1690’s
5False Confessions Happen Salem Witch Trials – about 50 women confessed to witchcraftGary Dotson- 1989, fist innocent exonerated by DNA1989- Central Park Jogger CaseInnocence Project – involved in about 200 post-conviction DNA exonerations and about 25% of those wrongly convicted, false confession was a contributing factor.A North American survey of 631 police investigators revealed that respondents estimated from their personal experience that 4.78% of innocent people provided false confessions during interrogations (Kassin et. al. 2007)
6Myths Everyone in prison claims to be innocent. Only people who live “on the edge” are charged with crimes they didn’t commit.People who are exonerated must have done something to get charged in the first place.Wrongful convictions are extremely rare.Exonerations prove the system works.It can’t happen to me.
7Facts5% to 10% of U.S. prison population are factually innocent of the crimes of which they were convicted.*In raw numbers, that means as many as 200,000 innocent people are imprisoned.Of those innocent people, 90% pled guilty.*Based on 1996 National Institute of Justice Report.
8Confessions as Evidence About 20% of all confessions are later recanted (suspect states that confession was false)Among first 70 DNA exonerations studied, 21% involved false confessionsWhy would someone falsely confess to a serious crime?
9Aggregated Studies of Documented False Confessions Author(s)/YearNumber in StudyNumber of False Confession% Wrongful Conviction Due to False ConfessionBedau/Radelet (1987)3504914%Leo/Ofshe (1998)60N/AWarden (2003)422560%Drizin/Leo (2004)125Gross Et. Al. (2005)3405115%Innocence Project (2006)1804424%
11False confessions in the laboratory Kassin’s research: student participants accused of causing a computer crashAll 75 participants initially denied chargeWhen confederate said she saw the participant cause the crash, all participants signed a confession, and 2/3 of the participants came to believe that they had actually done it!
12Why would someone confess to a crime that they did not commit? Richard Conti cites four major police tactics used to elicit a “false confession” in his article, The Psychology of False Confessions:Psychological deceit / reporting non-existing evidence as factual (“We have an eyewitness that puts you at the scene of the crime when it occurred”)Minimizing seriousness of crime (“Someone else in your situation may have acted the same way you did”)Guilt (“You mean to tell us that you left your wife alone in the woods!?”)Fear (“Tell us what happened or we’ll make sure you get the needle [lethal injection]”)
13Factors that Induce a False Confession External:Nature of InterrogationSensational nature of crimeSocio-political factorsInternal:CulturalIndividual
14Lie DetectionThe belief that interrogators can be trained to be highly accurate human lie detectors is both wrongIt is not supported by any scientific researchThere is no human behavior or physiological response that is unique to deception, and therefore no reliable behavioral signs of deception or truth telling.The same behaviors, mannerisms, gestures and attitudes that police trainers believe are the deceptive reactions of the guilty may just as easily be the truthful (but nervous) reactions of the innocent.Studies show that police investigators can accurately distinguish true and false denials slightly more than 50% of the time.
15Goals of Interrogation To gain informationTo gain an admission of guiltLegal methods of interrogation includeMinimizationMaximizationRapport building
16The Two Step Process of Interrogation First Step: convince the suspect that he is caught byrepeated accusations (of committing the offense, of lying when denying committing the offense)cutting off a suspect’s denialsconfronting the suspect with evidence of his apparent guilt
17The Two Step Process of Interrogation Second Step: motivate the suspect to believe that it is to his benefit to confess by offering:“inducements” such as feeling better by getting it off his chest, court leniency, orpromises of release from interrogation, of reduced charges, of a shorter sentence, or of probationA scenario with reduced personal culpability (self-defense instead of intentional act)or offering explicit threats (or higher charges, longer sentence or harsher punishment).
18The “Reid Technique” By Allen B The “Reid Technique” By Allen B. Ury (9 steps used by police interrogators to elicit a confession)Direct ConfrontationDeflectionDominanceTurning objections into justificationsExpressing EmpathyOffering alternative “themes” or scenarios7. Posing the “Alternative Question” 8. Repetition 9. Documentation
19Four Errors in Interrogation The misclassification errorThe coercion errorThe contamination errorThe individual vulnerability error
20The Misclassification Error erroneous decision that an innocent person is guiltyif police did not erroneously interrogate innocent people, they would never elicit false confessions
21The Coercion Erroraccusatorial interrogation, which is, by definition, a guilt-presumptive processpsychological coercion means either police use of interrogation techniques that are regarded as inherently coercive in psychology and law: or police use of interrogation techniques that, cumulatively, cause a suspect to perceive that he has no choice but to comply with the interrogators’ demandsPsychologically coercive interrogation techniques include the old “third degree”, such as deprivations of food, sleep, water or access to bathroom facilities, incommunicado interrogation, and inducing extreme exhaustion and fatigue.rare today)today’s police interrogators psychologically coercive techniques: implicit or explicit promises of leniency (in exchange for compliance and confession) or implicit or explicit threats of harsher treatment (in the absence of compliance and confession).
22The Contamination Error A confession is more than an “I did it” statement (i.e., first admission)It also consists of a narrative that contextualizes and attempts to explain the “I did it” statement.the post-admission interrogation process and resulting narrative of guilt that transforms the fledgling “I did it” statement into a fully formed confessionPost-admission interrogation is often leading, suggestive and manipulative and contains the following elements: a plausible plot-line, motives and explanations for why and how the crime occurred, expressions of remorse and regret, acknowledgements of voluntariness and, perhaps most importantly, inclusion of non-public crime facts that are said to originate with the confessor, not the interrogator.
23The individual vulnerability error Cultural (trust/distrust police, collectivistic vs. individualistic society)History of trauma/abusePhenomenology of innocence (belief that justice will prevail in the end)Special populations (MI/DD/Juvenile)Substance Intoxication
24Types of false confessions Voluntary false confessions: offered willingly to police or mediaCoerced-compliant confessions: suspect confesses, knowing he/she is innocentCoerced-internalized confessions: suspect actually comes to believe that he/she is guilty (e.g. Paul Ingram case)
25The Voluntary False Confession When person admits to crime they did not commit with no prompting from law enforcement.Occurs in high profile cases such as the Black Dahlia case in which approximately 50 voluntary false confessions had been given.Several reasons an individual would do this, pathological need for attention, mental illness/symptoms such as delusions, personality disorders, a perception of some tangible gain, and attempt to protect another.An unconscious need to expiate guilt via self-punishment.“I am guilty of something”
26The compliant false confession Wish to escape the stresses, pressures, confinement and psychological coercion of interrogation.Are worn down, can no longer withstand the highly distressing and overwhelming interrogation processWish to avoid an inferred or threatened harmWant to take advantage of a suggested or inferred promise or benefit.Individuals who give compliant false confessions are essentially distressed or coerced by an authority figure to the point where they are willing to falsely incriminate themselves in order to put and end to and thus escape the unpleasantness of the interrogation. Once they have decided to give in to the interrogators’ demands, compliant false confessors typically repeat back the details of the crime that were suggested to them by their interrogators, infer the correct answers or simply guess.
27The persuaded or internalized false confession The suspect comes to doubt the reliability of his memoryHe is persuaded that there may be an amnesia-based explanation (e.g., drug or alcoholic induced blackout, post-traumatic disorder, multiple personality, repressed memory, etc) to account for how the suspect could have committed the crime without rememberingHe makes a confession -- despite the absence of any memory of committing the crime – in an uncertain belief state with tentative language.The persuaded false confessor is in an uncertain belief state, temporarily persuaded that it is more likely than not that he committed the crimeOnce removed from the interrogation environment, the typical persuaded false confessor realizes that he should have trusted his memory not the detectives’ assertions of irrefutable (false) evidence against him or amnesia-based explanations for his alleged lack of memory.
28Risk Factors for False Confessions The idea of “risk factors” of course is a probabilistic concept: just because these factors are present in any given case does not mean that there will necessarily be a false confession, only that it is more likely than if not.There are essentially two types of risk factors for false confessions: interrogation techniques and individual vulnerabilities
29Shift and YieldYield refers to susceptibility to suggestive questioningShift refers to changing answers as a result of interrogative pressure.
30Risk Factors for False Confessions: interrogation techniques Isolation, confrontation and presentation of false evidence causes hopelessnessImplicit or explicit promises and threats coerce the suspect to believe that he has no meaningful choice but to comply with the interrogators’ demands and confess falsely.
31Risk Factors for False Confessions: interrogation techniques In persuaded false confessions, additional risk factor of attacking the suspect’s confidence in the reliability of his memoryLength of Interrogation: Average interrogation lasts up to 2 hours, in false confession cases usually longer than 6 hours. Physical and mental fatigue impair judgment and ability to resist pressure, deficits in thought process speed, concentration, motivation, confidence, attentions, and one’s ability to ignore misleading or irrelevant information. Long interrogations increase stress levels which impairs thinking and judgment – can cause tunnel vision (only way out to confess)
32Risk Factors for False Confessions: individual vulnerabilities Cultural IssuesPersonality traits of suggestibility and complianceThree groups or types of individuals who are most vulnerablethe mentally handicapped or developmentally disabledjuveniles (especially under the age of 16)the mentally ill
33The mentally handicapped or developmentally disabled Low intelligencePoor understanding or fund of knowledgeShort attention span, memory deficits, reduced conceptual skillsEasily confused, suggestible, acquiescence (compliance)Not likely to fully understand gravity of situation and long-term consequences of giving confession
34The mentally handicapped or developmentally disabled Not likely to understand the police are not their “friend”Poor conceptual and communication skills,Eager to please and tell the interrogator what they want to hearLow IQ more likely to believe that false confession will impact little on outcome (naivete re. the truth)
35The mentally handicapped or developmentally disabled Mental Retardation:Profound: IQ less than 25Severe: IQ 25 to 35Moderate: IQ 35 to 55Mild: IQ 55 to 70
36Juveniles Intellectually immature (Until early 20’s) Naïve/trusting of authorityPoor understanding of MirandaInability to fully understand long-term consequencesEager to please authorityLower tolerance for stress/pressureDrizin and Leo, 2004 , sample 125 proven false confessions, 63% were made by individuals under 25 years of age
37JuvenilesLess than 12: more suggestible and easily influenced by negative feedbackFrom 12 to 16: similar to adults on memory and yield, higher on shiftAfter 16: no difference than adults on measures of yield and shift+
39Substance Intoxication Alcohol intoxicationAlters mood, lowers anxiety, increases suggestibility, impairs memory (encoding and retrieval)Alcohol withdrawalIncreases suggestibilityDrug Intoxication / Drug withdrawal
40Psychological Factors Suggestibility correlates with lack of intelligence and poor memoryLow IQ means more susceptible to leading questions, more confabulation and more acquiescencePoor assertiveness, anxiety and avoidant coping strategies correlated with suggestibility
41Psychological Factors The more anxious, the more likely to change recollection and be suggestibleSuggestibility correlated sleep deprivationNo relationship between suggestibility and hallucinations, poor reality testing or depressionThe more suggestible, the less accurate in recalling details
42Proof of a false confession Discovery that no crime has been committed (e.g. victim still alive).New forensic evidence, including improved DNA testing capabilities.New alibi evidence.Newly discovered medical evidence which would have made it impossible for the person to have committed the crime.Somebody else confesses and is convicted of the offence.Psychological and psychiatric evidence that casts serious doubts on the veracity of the confession.A careful analysis of the post admission narrative, which reveals striking errors and omissions, rendering the confession unconvincing and inherently improbable.
43Post-Admission Narrative PAN Look for striking errors and omissions, rendering the confession unconvincing and inherently improbable.Leads to discovery of yet unknown evidenceIncludes identification of highly unusual elements of the crimeIncludes accurate description of mundane details
44False False Confessions Incentive for any defendant to retract a confession after arrest (shame, avoid prosecution, rejection of family or fear of retaliation)Legal strategyThe authority of one's own attorney, especially because of the trusted relationship, can provoke a retraction of a perfectly legitimate confessionMalingering
45Role of Psychiatric Expert To assess nature/extent of cultural and/or individual vulnerabilities, clinical exam, psychological testsTo assess for malingered vs. genuine mental illness/impairmentTo gauge extent of suggestibility and compliance
46Role of Psychiatric Expert Gudjonsson Suggestibility Scale (GSS)Instrument to assess possibility of FCMeets or exceeds Frye and Daubert standardsConsidered consistent, valid, reliable, with good confidence
47Possible Reforms Prohibit inherently coercive Interrogation techniques Videotape police interrogations in serious felony cases, available to all parties.Minor, mentally ill or developmentally disabled to be accompanied by neutral third-party adult, when possible.Eliminate suggestive eyewitness identification procedures.Show photos one at a time, not in multi-photo spreads.Officer not involved in investigation should conduct the identification review.
48Possible Reforms Limit length of interrogations Just as in the insanity defense, both sides should have the opportunity to examine the suspect’s mental state and diagnosis at the time of his decision to confess – and to retract – and to probe psychosocial background and risk factors that make the suspect more vulnerable and less vulnerable.Expert testimony on interrogation and confessionJury Instructions
49BibliographyAshworth, A. “Should the police be allowed to use deceptive practices?” L.Q.R. 1998, 114(Jan),Dr G. Gudjonsson, “The psychology of false confession”, N.L.J. 1992, 142(6568),Colvin, E. “Convicting the innocent: a critique of theories of wrongful convictions”, Crim. L.F., 20(2),Mirfield, P. “Expert evidence and unreliable confession”, L.Q.R. 1992, 108(Oct),Hegarty, A. “Truth, law and official denial: the case of Bloody Sunday” , Crim. L.F. 2004, 15(1/2),Allen, C. Practical Guide to Evidence, 4th edition, 2008.Dennis, I. The Law of Evidence, 3rd edition, 2007.Keane, A, ‘Modern Law of Evidence’, (2006).
50Bibliography http://www.innocenceproject.org/Content/351.php Conti, Richard P. “The Psychology of False Confessions.” The Journal of Credibility Assessment and Witness Psychology 2. 1 (1999):(Allen B. Ury)Pratkanis, Anthony, and Elliot Aronson. Age of Propaganda: The Everyday Use and Abuse of Persuasion. New York: Henry Holt and Company, 2001.