Alexander Sasha Bardey MD Jonathan Moore Esq. Harvey Fishbein Esq. False Confessions and the Admissibility of Expert Testimony on False Confessions Alexander Sasha Bardey MD Jonathan Moore Esq. Harvey Fishbein Esq.

False 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]

Perpetrators of the false confession Those who are totally innocent of the crime they are alleged to have committed Those who are involved in the alleged offence but overstated their involvement Usually in response to a demand for a confession and is either intentionally fabricated as a response to internal, external factors, or both

Peine Forte et Dure “Hard and Forceful Punishment” Method of torture used in England until 1741 in England to extract a confession/plea Truly the “weight of the evidence” This is the only US case, of Giles Corey at the Salem Witch Trials in the 1690’s

False Confessions Happen Salem Witch Trials – about 50 women confessed to witchcraft Gary Dotson- 1989, fist innocent exonerated by DNA 1989- Central Park Jogger Case Innocence 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)

Myths 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.

Facts 5% 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.

Confessions 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 confessions Why would someone falsely confess to a serious crime?

Aggregated Studies of Documented False Confessions Author(s)/Year Number in Study Number of False Confession % Wrongful Conviction Due to False Confession Bedau/Radelet (1987) 350 49 14% Leo/Ofshe (1998) 60 N/A Warden (2003) 42 25 60% Drizin/Leo (2004) 125 Gross Et. Al. (2005) 340 51 15% Innocence Project (2006) 180 44 24%

Causes of Wrongful Conviction

False confessions in the laboratory Kassin’s research: student participants accused of causing a computer crash All 75 participants initially denied charge When 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!

Why 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]”)

Factors that Induce a False Confession External: Nature of Interrogation Sensational nature of crime Socio-political factors Internal: Cultural Individual

Lie Detection The belief that interrogators can be trained to be highly accurate human lie detectors is both wrong It is not supported by any scientific research There 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.

Goals of Interrogation To gain information To gain an admission of guilt Legal methods of interrogation include Minimization Maximization Rapport building

The Two Step Process of Interrogation First Step: convince the suspect that he is caught by repeated accusations (of committing the offense, of lying when denying committing the offense) cutting off a suspect’s denials confronting the suspect with evidence of his apparent guilt

The 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 probation A scenario with reduced personal culpability (self-defense instead of intentional act) or offering explicit threats (or higher charges, longer sentence or harsher punishment).

The “Reid Technique” By Allen B The “Reid Technique” By Allen B. Ury (9 steps used by police interrogators to elicit a confession) Direct Confrontation Deflection Dominance Turning objections into justifications Expressing Empathy Offering alternative “themes” or scenarios 7. Posing the “Alternative Question” 8. Repetition 9. Documentation

Four Errors in Interrogation The misclassification error The coercion error The contamination error The individual vulnerability error

The Misclassification Error erroneous decision that an innocent person is guilty if police did not erroneously interrogate innocent people, they would never elicit false confessions

The Coercion Error accusatorial interrogation, which is, by definition, a guilt-presumptive process psychological 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’ demands Psychologically 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).

The 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 confession Post-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.

The individual vulnerability error Cultural (trust/distrust police, collectivistic vs. individualistic society) History of trauma/abuse Phenomenology of innocence (belief that justice will prevail in the end) Special populations (MI/DD/Juvenile) Substance Intoxication

Types of false confessions Voluntary false confessions: offered willingly to police or media Coerced-compliant confessions: suspect confesses, knowing he/she is innocent Coerced-internalized confessions: suspect actually comes to believe that he/she is guilty (e.g. Paul Ingram case)

The 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”

The 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 process Wish to avoid an inferred or threatened harm Want 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.

The persuaded or internalized false confession The suspect comes to doubt the reliability of his memory He 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 remembering He 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 crime Once 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.

Risk 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

Shift and Yield Yield refers to susceptibility to suggestive questioning Shift refers to changing answers as a result of interrogative pressure.

Risk Factors for False Confessions: interrogation techniques Isolation, confrontation and presentation of false evidence causes hopelessness Implicit 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.

Risk Factors for False Confessions: interrogation techniques In persuaded false confessions, additional risk factor of attacking the suspect’s confidence in the reliability of his memory Length 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)

Risk Factors for False Confessions: individual vulnerabilities Cultural Issues Personality traits of suggestibility and compliance Three groups or types of individuals who are most vulnerable the mentally handicapped or developmentally disabled juveniles (especially under the age of 16) the mentally ill

The mentally handicapped or developmentally disabled Low intelligence Poor understanding or fund of knowledge Short attention span, memory deficits, reduced conceptual skills Easily confused, suggestible, acquiescence (compliance) Not likely to fully understand gravity of situation and long-term consequences of giving confession

The 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 hear Low IQ more likely to believe that false confession will impact little on outcome (naivete re. the truth)

The mentally handicapped or developmentally disabled Mental Retardation: Profound: IQ less than 25 Severe: IQ 25 to 35 Moderate: IQ 35 to 55 Mild: IQ 55 to 70

Juveniles Intellectually immature (Until early 20’s) Naïve/trusting of authority Poor understanding of Miranda Inability to fully understand long-term consequences Eager to please authority Lower tolerance for stress/pressure Drizin and Leo, 2004 , sample 125 proven false confessions, 63% were made by individuals under 25 years of age

Juveniles Less than 12: more suggestible and easily influenced by negative feedback From 12 to 16: similar to adults on memory and yield, higher on shift After 16: no difference than adults on measures of yield and shift+

The mentally ill psychiatric symptoms poor reality testing, anxiety, distorted perceptions/beliefs, thought disorder, delusions. low tolerance for stress/pressure. poor impulse control. mood disturbance. low self-esteem / suicidality

Substance Intoxication Alcohol intoxication Alters mood, lowers anxiety, increases suggestibility, impairs memory (encoding and retrieval) Alcohol withdrawal Increases suggestibility Drug Intoxication / Drug withdrawal

Psychological Factors Suggestibility correlates with lack of intelligence and poor memory Low IQ means more susceptible to leading questions, more confabulation and more acquiescence Poor assertiveness, anxiety and avoidant coping strategies correlated with suggestibility

Psychological Factors The more anxious, the more likely to change recollection and be suggestible Suggestibility correlated sleep deprivation No relationship between suggestibility and hallucinations, poor reality testing or depression The more suggestible, the less accurate in recalling details

Proof 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.

Post-Admission Narrative PAN Look for striking errors and omissions, rendering the confession unconvincing and inherently improbable. Leads to discovery of yet unknown evidence Includes identification of highly unusual elements of the crime Includes accurate description of mundane details

False False Confessions Incentive for any defendant to retract a confession after arrest (shame, avoid prosecution, rejection of family or fear of retaliation) Legal strategy The authority of one's own attorney, especially because of the trusted relationship, can provoke a retraction of a perfectly legitimate confession Malingering

Role of Psychiatric Expert To assess nature/extent of cultural and/or individual vulnerabilities, clinical exam, psychological tests To assess for malingered vs. genuine mental illness/impairment To gauge extent of suggestibility and compliance

Role of Psychiatric Expert Gudjonsson Suggestibility Scale (GSS) Instrument to assess possibility of FC Meets or exceeds Frye and Daubert standards Considered consistent, valid, reliable, with good confidence

Possible 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.

Possible 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 confession Jury Instructions

Bibliography Ashworth, A. “Should the police be allowed to use deceptive practices?” L.Q.R. 1998, 114(Jan), 108 -140. Dr G. Gudjonsson, “The psychology of false confession”, N.L.J. 1992, 142(6568), 1277-1278. Colvin, E. “Convicting the innocent: a critique of theories of wrongful convictions”, Crim. L.F., 20(2), 173-192. Mirfield, P. “Expert evidence and unreliable confession”, L.Q.R. 1992, 108(Oct), 528-534. Hegarty, A. “Truth, law and official denial: the case of Bloody Sunday” , Crim. L.F. 2004, 15(1/2), 199-246. 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).

Bibliography 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): 14-36. http://www.usconstitution.net/miranda.html http://news.everest.edu/post/2009/06/modern-police-interrogation-techniques (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.

Alexander Sasha Bardey, M.D. DrSashaBardey@aol.com 212-223-1983