Can coercive interrogation techniques lead to false confessions?
A former police detective and veteran investigator for a public defender’s office joins the debate.
The other day, I was installing a small piece of quarter round molding. I measured twice, cut once, and perfectly mitered both ends of the strip. I nailed it into place, but unfortunately I didn’t have a nail setter to hide the head of nail below the surface of the wood. I decided to use a screwdriver instead, and in doing so, split the molding in half and wrecked my work. Next time, I’ll use the proper tool for the job at hand.
What does this have to do with false confessions?
The author of a recent editorial in Pursuit Magazine described current interrogation techniques as “the best tool (sic) in the bag of the LE investigator.”(1) It is my opinion that value of this tool is greatly overstated and often used improperly.
Another tool in the bag is the authority to use deadly force. However, no police agency will issue a sidearm to a new recruit without first certifying that the officer understands how to use the weapon and is qualified to carry that weapon. The new recruit initially undergoes extensive training, then over the course of a career, must periodically demonstrate proficiency in the use of firearms. If the day comes when, in the officer’s judgment, deadly force is necessary, the officer must act. Hopefully, that response will be justified.
Law enforcement selection standards in the United States generally attract applicants of sound judgment. As mere mortals, however, they are subject to prejudices, biases, and misconceptions.
Law enforcement selection standards in the United States generally attract applicants who are of good moral character and sound judgment. As mere mortals, however, they are subject to prejudices, biases, and misconceptions. When a police officer faces charges stemming from improper use of a firearm, a criminal lapse of good judgment is usually at the heart of the state’s case.
The same can be said of the improper use of interrogation techniques in a criminal investigation—and sometimes, the result is the same as in a deadly-force scenario. After all, a wrongful conviction based on a false confession can result in the capital punishment or life imprisonment of an innocent person.
There’s a gatekeeper with the power to prevent this: the detective in the interrogation room. But what if he has already decided, “This guy is ‘looking good’” for having committed a crime, and ignores evidence to the contrary?
If the best tool in one’s toolbox is a hammer, every problem may begin to look like a nail.
The “Myth” of the False Confession
Research has shown “there is no known estimate of the incidence rate of false confessions.” (2) But the fact is that they do exist.
The reason for this lack of quantitative information is that police agencies do not keep track of how many confessions turn out to be false. That means that the task of collecting this data falls to organizations like universities and innocence projects.
Of the 1,543 cases listed in the University of Michigan’s National Registry of Exonerations, 195 entries (or 13% of the total) cite false confessions as factors contributing to conviction.(3) There’s also extensive research as to why false confessions occur. Some studies focus on the methods used by interrogators.
Current interview and interrogation techniques are designed to induce stress and evoke behaviors that might signal a person’s guilt or innocence. Many investigators trained in “deception detection” have an arrogant confidence in their ability to be human lie detectors. They believe they can accurately read body language and interpret which behavioral cues displayed by a suspect under interrogation are indicative of a guilty mind.
When asked to identify behavioral cues associated with deception, most people, including trained interviewers, are accurate only about half of the time.
Yet, studies have shown that behaviors thought to be associated with deception can indicate other conditions, such as anxiety or ambivalence. Other research has found that when asked to identify behavioral cues associated with deception, most people, including trained interviewers, are accurate only about half of the time. (4)
Legally sanctioned interrogation techniques such as offering false hope, minimizing the situation, and lying about witnesses or evidence would probably not be as damaging to the psyche were it not for the coercive nature of the interview room.
Freelance writer Quinn Norton was an involuntary witness in a criminal case against her friend Aaron Swartz, who was accused of downloading thousands of articles from a digital academic library. “I wanted to be friendly and cooperative,” she writes in an Atlantic article describing her experience at a proffer session with the US Attorney in Boston. She didn’t think she had any information for prosecutors, and she was convinced that the prosecution was an absurd overreach. But for her, the proffer session did not go as planned:
“They were questioning me, trying to get me to admit I knew something…The harsh questioning about me threw me off balance.They leaned in and loomed over me physically, calling me a liar, scowling and pausing and narrowing their eyes at me. I was cowed. Much of the time I spent telling them the same things, that I didn’t know what he’d been doing…They told me that was unnatural; they didn’t believe me.”(5)
By her own account, Ms. Norton was “confused,” “scared,” and “depressed” and couldn’t understand why she was in this situation. “I hadn’t done anything wrong,” she recalls. “I was unused to being in a room with large men, well-armed, continually telling me I’m lying and that I must have done something.”(6)
Until you’ve been on the other side of the interview room table, it’s difficult to fathom how frightening it is to be the subject of an investigation, even for people who haven’t committed any crime.
Voluntary confessions, when combined with corroborating evidence, are important in criminal cases because they vindicate the investigative process and provide closure. But confessions obtained through the use of coercive or deceptive interrogation techniques, where little or no other direct evidence of guilt exists, should not be trusted.
Confessions obtained through the use of coercive or deceptive interrogation techniques, where little or no other direct evidence of guilt exists, should not be trusted.
Confessions have a profound effect on criminal defendants’ cases, from their impact on plea negotiations to the weight afforded them by jurors during deliberations.
Which “best practices” can be employed when dealing with powerful but questionable evidence?
Explode the myth of the “human lie detector.”
I believe that it’s time to deemphasize the significance of behavioral analysis in interviews. A “dirty little secret” taught by representatives of one very famous interviewing course is to make up a coded personal shorthand to note the subject’s physical responses to questions.
This way, a defense attorney reviewing the notes can’t attack the observations or make accusations that the investigator is claiming to be an expert in reading body language. To me, this suggests that even those who practice “human lie detection” have a clue that it is a suspect “science.”
All police interviews should be recorded.
Approximately 850 jurisdictions nationwide have recording policies. Video and audio recordings benefit both the prosecution and the defense. They memorialize the interview for use at trial and can be used to refute claims of coercive or illegal tactics. (7)
Establish criteria to permit evidentiary hearings similar to those used in eyewitness identification cases.
If the defendant can show that the confession was made in violation of these criteria, or no other direct evidence of guilt exists, a hearing can be held to make the state prove the reliability of the confession. If the case goes to trial, the jury is entitled to a special instruction to help them evaluate this evidence. (8)
Make it easier to reopen possible innocence cases.
Every county, state and federal prosecutor’s office should have a Conviction Integrity Unit to investigate claims of wrongful convictions not caused by ineffective assistance of counsel.
An investigator has a moral responsibility to ensure that the conduct of an interview does not poison a case by assigning guilt to the innocent. It’s easy to become so focused on getting a suspect to admit wrongdoing that the investigator loses all perspective and forgets that a criminal investigation not only exposes the guilty but also exonerates the innocent. Confessions are important but should not be the centerpiece of the case.
About the Author:
David Young is a former police detective and has been an investigator with a state public defender’s office for nearly 15 years. He writes for numerous magazines and industry journals, including the FBI Law Enforcement Bulletin.
You may also enjoy:
(1) Blair E. Lacy, Pursuit Magazine, 20 Jan 2015.
(2) Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law. & Hum. Behav. 5 (2010)
(4) Saul M. Kassin et al., 3
(5) Quinn Norton, Life Inside the Aaron Swartz Investigation, 3 Mar 2013.
(6) The Internet’s Own Boy: The Story of Aaron Swartz https://www.youtube.com/watch?v=vXr-2hwTk58
(8) See e.g.: State v. Henderson, 27 A.3d 872 (N.J. 2011)