A recent study noted that 15% of the wrongful convictions reviewed involved a false confession. A reasonable person would have to ask, “How can that happen?” Phil Locke, Science and Technology Advisor, Ohio Innocence Project, posed this question in a recent blog entry on the Wrongful Convictions Blog.
“Well, there are some quirky psychological reasons why some unique individuals might confess to a crime they didn’t commit, but in the more general case, there are reasons why people do this,” he writes.
The standard way in the early portion of the Twentieth Century was called “the third degree.” This is basically a euphemism Jerome Herbert Skolnick, author of the 1994 book Above the Law, used for the “inflicting of pain, physical or mental, to extract confessions or statements.”
In 1931, “the Wickersham Commission found that use of the third degree was widespread in the US. After the Wickersham report, the third degree was technically made illegal, but that doesn’t mean that it went away,” Mr. Locke writes.
Despite infrequent persistence of the third degree, most of law enforcement now uses what is called the Reid Method.
“The Reid Method,” as Phil Locke describes is, “is a psychologically structured interview and interrogation technique developed by, and taught by, John E. Reid & Associates”
He writes, “The method starts with a “behavioral analysis interview (BAI).” During this phase, the interrogator maintains a “friendly” demeanor, but poses structured questions designed to provoke responses that can indicate guilt.”
“If the interrogator decides that the suspect is ‘guilty,’ the method then proceeds to the ‘interrogation’ phase, which is confrontational. There are nine separate steps to the interrogation phase, and they are psychologically designed to get the suspect to the point where he believes his ‘only way out’ is to confess,” Mr. Locke continues.
“As part of the interrogation phase, the suspect may be offered a promise of leniency if he confesses,” he wrote.
There are two basic categories of confessions. First is the compliant confession where “the suspect confesses for a reason. Investigators may have promised the suspect that they will be lenient if he confesses.” Second is the internalized confession, where “the suspect begins to believe that he actually committed the crime.”
A 2010 New York Magazine article reports, “Critics say the Reid technique is a major source of the problem. What was once seen as the vanguard of criminal science, they argue, is nothing more than a psychological version of the third degree.”
Even beyond the Reid method, the courts have given police “carte blanche in the interrogation room for any tactics shy of physical abuse,” said Steven Drizin, a researcher at Northwestern Law School.
Mr. Locke believes each of these techniques can result in problems.
In the compliant confession, the subject “may have become so fatigued and upset by the interrogation process that he will do anything to end it.” In the internalized confession, the person may be susceptible to suggestions and this susceptibility may become enhanced as “the investigator repeats the same scenario so many times that the suspect begins to feel as though he remembers it.”
Writes Mr. Locke, “There has been open criticism of the Reid Method, because of its ability to produce false confessions, particularly if misused by police agencies. People who are young, developmentally disabled, or mentally ill are particularly subject to falsely confessing as a result of this method.”
Part of the problem is that “police are absolutely allowed to outright lie to a suspect during interrogation. This can take the form of ‘fake evidence’ placed out for view in the interrogation room – file folders, fingerprint cards, shell casings.”
Not all countries allow this. For example, Great Britain’s police are not allowed to employ deceptive techniques.
The New York Magazine article reports, “Reid detractors also say that police often feed evidence to suspects, which accounts for why false confessors sometimes know details about a crime that they wouldn’t otherwise know.”
They reference the study from University of Virginia law professor Brandon Garrett which “found that in 97 percent of the false-confession cases he studied from the DNA era, the wrongly accused suspects were said to have supplied such telling details – facts either picked up elsewhere or provided by police.”
The New York Magazine also reports, “Interrogators also tend to be overconfident of their abilities to spot guilty suspects. No study so far (aside from Reid’s own research) has shown the police to be any better than average at picking out liars.”
And, they argued, they are sometimes worse.
For example, they cite a 1987 study where “police officers watched videotaped statements of witnesses, and their record at identifying deceptive testimony was no better than the average person’s.”
Practitioners of the Reid Method took issue with Mr. Locke’s article and responded.
Joseph Buckley, president of John E. Reid & Associates argues, “To the contrary, we teach that interrogators should not make any promises of leniency and they should not try to talk a suspect into believing that they committed the crime – these admonitions are well documented in our book.”
They argue in a document called, “Clarifying Misinformation about the Reid Technique” that it “is specifically designed to do everything possible to protect against a person making a false confession.”
Toward that end they specifically teach the following: “Do not make any promises of leniency; Do not threaten the subject with any physical harm or inevitable consequences; Do not conduct interrogations for an excessively lengthy period of time; Do not deny the subject any of their rights; Do not deny the subject the opportunity to satisfy their physical needs; Withhold information about the details of the crime from the subject so that if the subject confesses he can reveal information that only the guilty would know; Exercise special cautions when questioning juveniles or individuals with mental or psychological impairments; The confession is not the end of the investigation – investigate the confession details in an effort to establish the authenticity of the subject’s statement.”
As one U.S. District court stated, “In sum, the proffered expert testimony to the effect that the Reid technique enhanced the risk of an unreliable confession lacked any objective basis for support whatever.”
Instead, they argue, “False confessions are not caused by the application of the Reid Technique, they are usually caused by interrogators engaging in improper behavior that is outside of the parameters of the Reid Technique – using improper interrogation procedures – engaging in behavior that the courts have ruled to be objectionable, such as threatening inevitable consequences; making a promise of leniency in return for the confession; denying a subject their rights; conducting an excessively long interrogation.”
Mr. Buckley continues, “We are very concerned about false confessions caused by improper police interrogation methods and I have served as an expert witness for the Innocence Project (NY) several times (as well as other attorneys), testifying against the police.”
At the same time, others responded, “Merely because a court has found a particular method to withstand constitutional review does not, necessarily, mean that it does not result in a false confession. Moreover, while there is a strong argument that it is the misapplication of the Method which results in an innocent person proffering a confession to a crime he did not commit, the undeniable truth is that it happens – with great regularity.”
On the other hand, Mr. Locke asked, “What’s to keep a police interrogator, who is perfectly willing to tell outright lies and use fake evidence, from using the psychological levers of the Reid Technique to extract a confession when he has made the predetermination that the suspect is guilty?”
Defenders of the Reid Technique argue that “it’s not the Reid technique that’s to blame but the misapplication of it.”
The problem it seems is not necessarily the method itself but the lack of appropriate controls. Part of the problem that seems to dog much of the evidence around wrongful convictions, whether it is faulty confessions, eyewitness misidentification or forensic science, is the utter lack of true neutral and double-blind scientific verification of techniques and practices.
—David M. Greenwald reporting
[quote]Part of the problem is that “police are absolutely allowed to outright lie to a suspect during interrogation. This can take the form of ‘fake evidence’ placed out for view in the interrogation room – file folders, fingerprint cards, shell casings.”[/quote]
I want to give an example of a case I was involved in which this technique was used (police producing fake evidence), to show how effective this interrogation tool can be in obtaining a false confession. My client held a position in which part of the job description was to collect money. My client would sign off each month that the money was received and counted; then my client would pass the money and the signed receipt off to Mrs. X, who then supposedly took the money to the bank, or so my client believed. My client never received signed copies of the receipt.
At some point, my client was accused of embezzlement by Mrs. X. The police questioned my client alone in her office with no one else in the room, claiming they had proof my client had committed the crime in question. The police were emphatic my client was the thief. My client began to doubt herself, wondering if somehow she had made a mistake. She began blathering incoherently. The police did not get precisely what they wanted, but told my client they would return the next day for more details because it was clear she was guilty.
My client called me. She was hysterical, blubbering that she had no idea what she had said to the police, and asking me what she should do. After calming her down, I first asked her how the money was collected. She advised me that every month Mrs. X would come around, to collect the money. My client would turn over the correct amount, then sign a receipt that the correct money had been collected. I asked her who then took the money to the bank. She told me she thought Mrs. X did.
I asked her if Mrs. X turned over the correct money to the bank, or if other people were in the collection chain between Mrs. X and the bank? My client had no idea. Nor was my client ever given a copy of the receipt she signed to show she had turned over the correct amount of money. I advised my client it was much more likely the real criminal here was Mrs. X, since she was the accuser. The bottom line was my client signed receipts for the correct amounts of money every time. If Mrs. X did not receive the correct amount of money, why didn’t she say something at the time she was collecting the money from my client, such as “where is the rest of the money you owe me”?
I then explained to my client a few home truths. The police can lie and say anything they want to get a confession. IF THEY REALLY HAD EVIDENCE SHE HAD EMBEZZLED, THEY WOULD HAVE ARRESTED HER. My observation was that because the money was collected in the way it was, there were many places along the way to its destination – the bank – the embezzlement could have taken place. Since my client had no idea what happened to the money after she turned it over to Mrs. X, she had no clue how many hands it passed through before it arrived at the bank.
Bottom line, she had signed off on her end, so she was clearly not the culprit. I also gave her my suspicion that Mrs. X was certainly a possible suspect, especially because she was the one who made the accusations against my client to the police, rather than just turning the embezzlement matter over for investigation.
I strongly advised my client to “lawyer up” when the police came back to question her – meaning she should say she had retained an attorney and would not answer any questions. The police did return, she gave them the statement I advised her to give, and they went away highly dissatisfied and frustrated. To my knowledge they never found the embezzler, but my client was never charged. However, my client was fired from her job. The good news is she found a better one soon thereafter, so no loss there. For her to continue working in a working environment with such slipshod business management practices was just asking for trouble.
Lest you think this case is unusual, my daughter had a summer job at age 16, in which the same sort of shady business practices took place. She was expected to collect money at the end of the day, then take the bag of money and drive to another location and drop it in the safe late at night with no one else around, w/o a receipt of any kind being issued. Many people had access to that safe. When money went missing one time, there was an uproar. But I told my daughter exactly what to say about the shoddy business practices that could have resulted in anyone having access to that money.
Fortunately my daughter’s boss recognized the problem, and changed the way business was done in the future. But it was a shameful position to put young 16 – 18 year olds in, who are as naive as babes in the woods in the ways of the world. Had my daughter not had a lawyer for a mother, she might easily have been caught up in a messy situation, and accused of a crime, through no fault of her own.
Just remember: 1) police can lie to obtain incriminating statements; 2) if the police actually had enough evidence of wrongdoing, it is likely they would have already arrested you; 3) don’t assume you did anything wrong just because the police say you did; 4) always stay polite when talking to law enforcement.
[quote]Just remember: 1) police can lie to obtain incriminating statements; 2) if the police actually had enough evidence of wrongdoing, it is likely they would have already arrested you; 3) don’t assume you did anything wrong just because the police say you did; 4) always stay polite when talking to law enforcement.[/quote]
So let me make sure I have this straight:
Those who are entrusted with enforcement of our justice system have no vested interest in participating in a “just” system. While there is a presupposition of honesty on one side ” Do you swear to tell the truth, the whole truth and nothing but the truth” imposed on a defendant, the police can do the exact opposite to get them to the point of trial, or plea bargain if the point is to avoid a trial.
Does this not seem like the height of duplicity and anything but “just” to anyone but me.
Elaine, do you have any idea how this particular part of police process evolved and how anyone can possibly continue to defend it ? Is there any will or movement at all to change this ?
I honestly cannot see how this would differ from a doctor, who preferred for example that a patient choose a surgery over a less expense means of treatment since the doctor would benefit, lying to the patient about test findings. I would see this as completely unethical and worthy of loss of license.
Can you explain the difference ?
And as for always remaining polite when speaking with the police, should that not apply to everyone in any formal interaction ?
[quote]Elaine, do you have any idea how this particular part of police process evolved and how anyone can possibly continue to defend it ?[/quote]
I suspect this sort of thing has been going on as long as there has been a criminal court system – well back to the middle ages. The Miranda warnings are one of the few attempts to change the existing dynamic. The police would argue that they would never get convictions if not permitted to engage in telling falsehoods, since most criminals try every which way to cover up any and all evidence…
Correction: The police would perhaps argue…
Frankly, in the case I cited above, IMO the police should have asked my client what the procedure was, then questioned EVERYONE who had access to the money before it went to the bank. Had the police done such an investigation, they would have realized my client signed a receipt every time for the exact amount owed, which would have pretty much let her off the hook unless the theory was that she and the lady who collected the money were in collusion. But the lady who collected the money was the accuser against my client, which should have raised suspicions against the accuser once the facts of the procedure were known…
[quote]The police would argue that they would never get convictions if not permitted to engage in telling falsehoods, since most criminals try every which way to cover up any and all evidence…[/quote]
So it would appear that the police have so little faith in the ability to do basic investigative work, that they have to lie to trick people in to providing confessions. Not exactly a rousing commendation of police work, would you say ? And whatever happened to “innocent until proven guilty” ? Do they not believe that by lying, they intrinsically corrupt this basic tenet of our legal system ?
” The police would argue that they would never get convictions if not permitted to engage in telling falsehoods, since most criminals try every which way to cover up any and all evidence…”
I guess an interesting comparison point would be comparing it to Britain. That said, I’m not sure why tricking people into confessing is the optimal strategy.