(This is the fourth in an 11-part series by The Vanguard reporting on a study of exonerations produced by Samuel R. Gross, Maurice J. Possley, Kaitlyn J. Roll, and Klara H. Stephens)
By Layla Mustafa
While there are many interrogation tactics deemed “permissible” by the court, there have also been some specified forms of misconduct – misconduct in interrogations may play a role in the wrongful convictions, and oftentimes false confessions by a considerable number of exonerees, according to a study by Samuel R. Gross, Maurice J. Possley, Kaitlyn J. Roll, and Klara H. Stephens.
The study notes:
When interrogating suspects, law enforcement officials tend to resort to deceit or manipulation in order to extract a confession. However, these practices are not necessarily considered impermissible by the court. It is generally understood that a true criminal is less inclined to admit to their crime, thus law enforcement officials must resort to particular forms of interrogation to attain a confession.
However, these practices run a great risk of resulting in a false confession.
For example, in the case of innocent Frank Sterling, interrogators lied about the available evidence against him, administered a lie detector test which falsely indicated his failure, and fed him 
explicit details of the murder he was accused of committing.
And, after such pressure, Sterling gave his confession to a murder which he did not commit. Despite this false confession, none of the tactics used by interrogators in this case were actually considered to be a form of misconduct.
In Miranda v. Arizona, it became established that a suspect in police custody may not be questioned until they have been fully informed of their rights. However, Miranda violations are not considered misconduct by the court. Rather, Miranda violations are viewed as an opportunity for a defendant to prevent some statements from being used as court evidence.
Under this interpretation, the researchers did not consider violations of a defendant’s Miranda rights as a misconduct for the study.
The Supreme Court developed a doctrine which established interrogation misconduct as “police behavior that is so “coercive” that it makes a confession involuntary.” The doctrine supported the determination that the use or imminent use of violence should be classified as misconduct in interrogations. Many other instances of misconduct are weighed on a case by case basis and are reviewed using the Supreme Court’s doctrine as reference.
Other common forms of misconduct tend to be threats to relatives or sham plea bargaining. Misconduct in interrogations produced 165 false confessions, representative of seven percent of the exonerations observed in the study.
The frequency of false confessions tends to be higher in violent crimes. False confessions are commonly difficult to obtain and are generally reserved for more serious cases. This implies that murder cases or those which involve no eyewitnesses consistently produce higher rates of false confessions.
In the majority of interrogation misconduct which resulted in false confessions, an overwhelming amount of convictions were the result of one of three types of interrogation misconduct. The three most common forms of misconduct included: violence, sham plea bargaining, and threats to third parties, said Samuel R. Gross, Maurice J. Possley, Kaitlyn J. Roll, and Klara H. Stephens, adding:
Violence is the most common type of interrogation misconduct which produces false confessions. Interrogation misconduct involving violence may subject the offending official to criminal, civil, and professional sanctions. The mentally disabled who are threatened with violence tend to experience higher rates of false confessions, as they are more likely to fall privy to manipulation tactics.
When observing all cases of violence in obtaining false confessions from exonerees, half of the misconduct occurred in Chicago. This was partially due to a period of time throughout the 1970’s and 1980’s known as the “torture regime.”
The “torture regime” was a period in which Lieutenant Jon Burge interrogated hundreds of suspects (almost entirely black men) and was able to extract false confessions admitting their guilt. These interrogations involved violence ranging from beating to suffocation. This pattern of torture used by Burge and his colleagues was very effective. The ability to produce a confession in a case which had little to no other evidence was essential to the resulting conviction.
Once the Burge cases came into the public eye, Illinois created a “torture commission” to review his actions, and he was eventually sentenced. Burge however, only accounted for 19 of the 53 exonerations with false confessions extracted through violence by the Chicago police.
Sham plea bargaining is another form of interrogation misconduct, performed when officials lie about the law, according to the study by Samuel R. Gross, Maurice J. Possley, Kaitlyn J. Roll, and Klara H. Stephens.
Lies considered as misconduct may include pretending that the accused may obtain a more lenient sentence or offering freedom in exchange for a confession. The power to decide whether to prosecute and the basis for those charges’ rests solely in the power of the prosecutor, not the police. Lying about their own legal authority is within lying about the law and impermissible to the courts.
Threats to third parties are another form of interrogation misconduct.
Police officers are allowed to tell a suspect that if he doesn’t talk, they will arrest, but these rules are different when a suspect’s spouse or child is involved in the threat. If there is any threat to arrest a third-party relation to the suspect, it is considered misconduct – eight percent of cases with false confessions were a result of the exoneree falsely confessing after an officer threatened to arrest a member of the exoneree’s family.
Besides the three common types of interrogation misconduct, researchers said, there are many permissible interrogation practices that produce false confessions.
These practices include lying about the investigation, making promises and threats that are not categorically prohibited, feeding details of the crime to the suspect, and interrogating a juvenile with no parent present. These practices are considered permissible by the court as they can be occasionally effective at securing true confessions. However, these practices all increase the risk of false confession, and are important to note.
Lying about the investigation is routinely permitted and not considered equivalent to lying about the law. The court reasons that those who are innocent will not be moved by investigation lies over witnesses or physical evidence.
However, in practice, this is not always the outcome. In one case, law enforcement lied to the accused that they had identified his fingerprints, and that he had failed a voice stress test, so the defendant pleaded guilty despite having not committed the crime.
Law enforcement officials also use promises and threats outside of the realm of sham plea bargains in order to extract a confession. While threats implicating violence are impermissible, vague promises or threats are generally allowed.
For example, an officer may use vague threats such as, “Things will get very tough if you don’t tell us what happened right now.” As long as the official is promising or threatening within their legal power, it is not considered misconduct.
In one startling form of permissible misconduct cited in the report by Samuel R. Gross, Maurice J. Possley, Kaitlyn J. Roll, and Klara H. Stephens, police officers were able to manipulate a 16-year-old into a confession.
Believing the victim had lied about her rape, they promised to aid her in looking for her rapist if she agreed to write on a piece of paper that she was lying. The girl was exonerated seven years later by a DNA test, after having been accused of filing a false police report. However, the conduct used by interrogating officers was not considered impermissible by the courts because their “promise” to find her rapist was within their authority.
A very common form of permitted interrogation practice is feeding the suspects the details of the crime.
Many exonerees with false confessions were convicted partially due to the specific detail of their confession. Often inadvertently, during an interrogation, police will feed very specific details of the crime to the accused. This is problematic for the defendant when in court because they are aware of details the court and jury commonly assume only the criminal would be aware of.
Researchers suggest a way to easily rectify this problem is by ensuring the recordings of interrogations. This way, the court and jury are able to understand all of the details that may have been fed to the accused. Only eight of the interrogations leading to false confessions of exonerees included a video of the interrogation.
Finally, depending on the state, it may be permissible to interrogate a juvenile without a parent present. Like the mentally disabled, juveniles are more prone to false confessions. However, in some state’s juveniles and/or parents may waive the right to be present during interrogation, and in other states, the law varies depending on the age of the juvenile.
Permitted practices contributing to a false confession were much more likely in interrogations with misconduct rather than on their own – 79 percent of interrogations with misconduct included a permitted practice, compared to the 57 percent of interrogations without misconduct present.
The study showed that there are many permitted practices in interrogation. This runs a great risk and tends to incur many law enforcement officials to toe the line of what is permissible and what is not. Permitted behaviors leading to false confessions additionally tend to be much less likely if interrogations are recorded.
It is finally important to note, point out the study authors, that interrogation misconduct may also occur in interrogations of codefendants. Codefendant confessions implicating an exoneree were slightly more common than false confessions by the exonerees themselves.
False confessions of both codefendants and exonerees contributed to 21 percent of the total number of convictions studied – 75 percent of exonerations with incriminating codefendant confessions were concentrated to murder cases.
The researchers noted a peculiar instance in three cases (out of 65) where codefendants falsely implicated an exoneree. In these cases, the defendant was exonerated, however the codefendant was not exonerated with the defendant. This occurrence is slightly bewildering when you consider that the codefendant’s sentence was under charges that would technically no longer exist. If the defendant is no longer considered a criminal, then the codefendant would not have been able to assist said-criminal. Despite these facts, the codefendants were never released.
Misconduct in interrogations seem to contain a vast amount of legal gray area in what is necessarily permissible. The misconduct seems to allow for more case by case decisions, which may also vary state by state.
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