False Confessions

The Psychology of Confession Evidence by Saul Kassin

“Gone are the days when the police would shine bright lights on the suspects, grill them for 24 hours at a time, or beaten with rubber hose, but observational studies shown that the use of physical force is given way to more psychologically oriented techniques, such as feigned sympathy and friendship, appeals to God and religion, the use of informants, the presentation faults evidence, and other forms of trickery and deception.” (Confessions in the Courtroom, 1993)

The Reid Technique is a nine step procedure designed to overcome resistance of reluctant suspects.

1. The interrogator begins by confronting the subject with his or her guilt.
2. Develop psychological themes that justify or excuse the crime.
3. Interrupts all statements of denial.
4. Overcomes the subjects factual, moral, and emotional objections to the charges.
5. ensures that the increasingly passive suspect does not tune out.
6. Shows sympathy and understanding and urges the suspect to tell the truth.
7. Offers the suspect a face-saving alternative explanation for his or her guilty action.
8. Gets the suspect recount the details of the crime.
9. Converts the statement into a full written confession.

“While the Reid Manual describes this part of the Technique as a nine-step process, it actually resolves itself into three major components: (1) tell the suspect you already know for sure he committed the crime, and cut off any attempts on his part to deny it; (2) offer the suspect more than one scenario for how he committed the crime, and suggest that his conduct was likely the least culpable, perhaps even morally justifiable (minimization); (3) overstate the strength of the evidence the police have inculpating the suspect—by inventing non-existent physical evidence or witness statements, for example—and assuring him he’ll get convicted regardless of whether he talks. The driving idea is to persuade the suspect that it’s in his best interest to give a confession that paints him in a positive light. There is usually the implicit, and sometimes explicit, suggestion that the interrogator will intercede with the prosecutor or the judge on the suspect’s behalf so that he’ll get away with a light sentence or perhaps no sentence at all. In fact, of course, the suspect derives no benefit from speaking to the police; the only thing the confession accomplishes is to incriminate the defendant, who is promptly arrested and convicted based on his confession, even though there may be strong evidence exonerating him.”  Wyatt Kozinski, The Reid Interrogation Technique and false confessions: A time for change. (2018). Seattle Journal for Social Justice, Vol 16, 2, pp. 311-312.

Maximization and Minimization Techniques

1. Scare tactics are designed to intimidate a suspect believed to be guilty.  This intimidation is achieved by overstating the seriousness of offense and the magnitude of the charges and even by making false or exaggerated claims about the evidence.
2. Minimization is a soft sell technique in which the detective tries to lull the suspect into a false sense of security by offering sympathy, tolerance, face-saving excuses, and moral justification; by blaming the victim or an accomplice; and by underplaying the seriousness or magnitude of the charges.
3. A detective will use an average of 5.62 tactics per interrogation, and these tactics involve using both negative incentives (confronting the suspect with true or false incriminating evidence, refusing to accept denials, or noting contradictions in the suspect story) and positive incentives (appealing to the suspect self-interest or conscience, praising the suspect, minimizing the moral seriousness of the offense).
4. Typically promises and threats are made by pragmatic implication and not directly.

Types of False Confessions

1. Voluntary False Confessions.  This is a self-incriminating statement that is offered without external pressure from the police (200 people confessed to the Charles Lindbergh baby kidnapping).  Sometimes this is to protect a friend or relative.  You can also address a pathological need for feigning, acceptance, recognition, or self punishment.
2. Coerced – Compliant False Confessions.  Suspects confess after intense interrogation pressures.  Within this category there are two forms of social influence: compliance and internalization.  Compliance refers to a change in one’s public behaviors for instrumental purposes.  Research on obedience to authority is a classic example of this.  In contrast, internalization refers to a private acceptance of the beliefs expressed by others.
3. Coerced-compliant False Confessions occur when a suspect confesses in order to escape or avoid an adverse interrogation or to gain the promised reward.  In these cases, the confession is merely an active compliance, and the suspect privately knows that he or she is truly innocent.  From a psychological point of view, of course – compliant false confessions are the easiest to understand, as they arise when a suspect comes to believe that the short-term benefits of confessing outweigh the long-term costs.  “Individuals who are characteristically predisposed to exhibit compliance in social influence situations may be particularly vulnerable in this regard.”  Remember the Phoenix case in which six Thai Buddhist monks were murdered.  Three young men were falsely arrested and put under intense late-night pressure.  One was interrogated nonstop for 21 hours; another was told that his brothers would be arrested.  All of the men eventually confessed and spent 70 days in jail – until the real murderers were discovered.
4. Coerced-internalized False Confessions.  These occur when an innocent person – anxious, tired, confused, and subjected highly suggestive methods of interrogation – actually comes believe that he or she committed the crime.  This type of false confessions particular frightening because of suspects memory of his or her own actions may be altered, rendering the original contents potentially your retrievable.  Research is shown that individuals with high scores on interrogated suggestibility also tend to exhibit poor memories, high levels of anxiety, low self-esteem, and a lack of assertiveness.  Interrogated suggestibility scores increases function of prolonged sleep deprivation.

Gudjonsson Suggestibility Scales
Gisli Gudjonsson developed the GSS in order to measure, subtly yet objectively, the construct of interrogative suggestibility. Interrogative suggestibility is the extent to which an individual comes to accept messages or information communicated during formal questioning, essentially coming to believe the information presented as true. As measured by the Yield and Shift scores, information is obtained about the degree to which an individual yields to leading or misleading questions and gives in to negative feedback or pressure.

In addition to use for research, the GSS was developed for clinical use, such as assessing the psychological vulnerability of a defendant or witness to yielding to leading questions and to shifting from one response, right or wrong, to a different response, under pressure. This use has applications in providing data to the court regarding an individual’s susceptibility to providing false information during police questioning, which is highly relevant when the trier of fact is assessing the validity of a confession or witness statements. The measure also has applications when a court is determining the voluntariness of a confession or Miranda rights waiver.

False Confessions, Expert Testimony, and Admissibility
Clarence Watson, Kenneth J. Weiss and Claire Pouncey
Journal of the American Academy of Psychiatry and Law. (June 2010) Vol. 38, no. 2, 174-186.
Abstract
The confession of a criminal defendant serves as a prosecutor’s most compelling piece of evidence during trial. Courts must preserve a defendant’s constitutional right to a fair trial while upholding the judicial interests of presenting competent and reliable evidence to the jury. When a defendant seeks to challenge the validity of that confession through expert testimony, the prosecution often contests the admissibility of the expert’s opinion. Depending on the content and methodology of the expert’s opinion, testimony addressing the phenomenon of false confessions may or may not be admissible. This article outlines the scientific and epistemological bases of expert testimony on false confession, notes the obstacles facing its admissibility, and provides guidance to the expert in formulating opinions that will reach the judge or jury. We review the 2006 New Jersey Superior Court decision in State of New Jersey v. George King to illustrate what is involved in the admissibility of false-confession testimony and use the case as a starting point in developing a best-practice approach to working in this area.

Excerpts from Watson – False Confessions, Expert Testimony, and Admissibility

Custodial confessions, in the absence of physical evidence, can be the key to a criminal prosecution. Many criminal suspects, for a variety of reasons, give false or unreliable confessions and challenge their admissibility later at trial.¹ Courts have been receptive to such challenges on two bases: the voluntariness of the waiver of rights and the reliability of the content of an alleged false confession. In each instance, the suspect’s mental state is placed at issue before the court. Courts are aware of the phenomenon of false confessions and may look to expert witnesses to shed light on a defendant’s claim. In this article, we examine the phenomenon of false confessions, explore epistemological and practical concerns regarding the admissibility of expert testimony, and recommend ways to structure and present such testimony.

The Phenomenon of False Confessions
By now, there is little doubt that innocent criminal suspects give incriminating statements. The social science literature suggests that the interrogator-suspect interaction, coupled with the suspect’s psychological makeup, explains how an individual can act against his best interest.^2–5 These considerations are not novel. Indeed, various dynamics surrounding the quality of confessions have been considered as early as the mid-19th century.⁶ For example, Wharton⁷ outlined the following points to bear in mind when considering the validity of a confession: Before, however, a confession should be taken as real, it should be subjected to certain psychological tests. Delusion; a morbid desire to attract attention; a sort of epidemic which sometimes strikes down whole classes with a passionate impulse to insist upon some blood-stain on the conscience, something like the hypochondriac epidemic impulse which insists upon some personal abnormity [footnote omitted]; weariness of life; a propensity to self-destruction through a channel which from its very tortuousness possesses its own fascination; a Lara-like [Count Lara of Lord Byron’s 1814 poem] desire to appear mysterious and dark…the existence of such elements as these should be inquired into before a confession is received as absolute [Ref. 7, p 16].

 The notion of false confessions, however, may be counterintuitive to the average person, the potential juror. What else but guilt would cause any person to confess? This is the quandary in which criminal defendants find themselves when claiming to have falsely incriminated themselves. Nevertheless, it has been reported that numerous convicts who were subsequently exonerated from their alleged crimes initially provided confessions that supported their wrongful convictions.⁸

For defendants seeking to challenge the validity of their own words at trial, expert testimony may be essential in casting doubt on the customary view of confessions in the eyes of the jury. This task assumes additional complexity when a defendant has provided a false confession voluntarily in the absence of police misconduct. As Alschuler⁹ points out, there are no constitutional provisions for excluding legally obtained confessions, and accordingly, the jury must be allowed to weigh such confessions as it does other forms of evidence. Defendants therefore need the assistance of expert testimony to subvert the potent inference of guilt that confessions generate.

In some jurisdictions, defendants may proffer expert testimony to educate the judge or jury as to how a psychiatric condition in the suspect might explain a false confession. It is not enough, however, to testify that false confessions occur in various circumstances. Rather, testimony must be clinically based and dynamically related to the confession. A 2005 article in The Journal called attention to the necessity that expert witnesses know the legal standards underlying the admissibility of testimony.¹⁰ Legal scholars have conducted comprehensive reviews of the federal and state case law regarding the judicial treatment of expert testimony on false confessions.^11,12 As we discuss later, the admissibility of testimony depends on its helpfulness to the trier of fact and on its scientific basis. The following case, taken from an appellate court in New Jersey and decided subsequent to these case law surveys, encompasses many of the judicial concerns expressed regarding the treatment of expert testimony in the context of false confession claims. It is illustrative of the ongoing struggle that courts face as they manage the interplay between the boundaries of expert testimony and the constitutional requirement that a criminal defendant receive a fair trial.

State of New Jersey v. George King
On March 13, 2003, George King was arrested in Newark, New Jersey, for the murder of Edna Ryan.¹³ During the interrogation, Mr. King confessed to Ryan’s murder, adding, “I might as well tell you about Woodbridge,” referring to the unsolved murder of Meifang Rush in Woodbridge, New Jersey, two months earlier. On the basis of his confessions, he was charged with both murders.

He pleaded guilty to aggravated manslaughter of Ryan, but claimed that his confession to Rush’s murder was fabricated. He claimed that he had also attempted to confess falsely to several other murders during his interrogation. Police investigators involved in his interrogation claimed that, although he indicated that he possessed information about other unsolved crimes, he confessed only to the murders of Ryan and Rush. He did not assert that his confession was coerced.

Expert Testimony
Mr. King’s defense proffered psychiatric testimony to support the false-confession claim. Dr. Roger Harris, a forensic psychiatrist, concluded that Mr. King had narcissistic and antisocial personality disorders with borderline personality traits, making him predisposed to false confessions. He had exaggerated his criminal history to mental health professionals. Harris concluded that Mr. King’s grandiosity and need for admiration were the dynamics of the false confessions.

The state moved to exclude the expert testimony regarding Mr. King’s personality disorders, asserting that it was not relevant or admissible, because Harris did not provide a scientific basis linking personality disorders to false confessions. In addressing the state’s motion, the trial court stated: [B]y human nature, individuals will neither assert, concede, nor admit to facts that would affect them unfavorably. Consequently, statements that so disserve the declarant are deemed inherently trustworthy and reliable…. Dr. Harris offers a reason the Defendant’s confession might be false to contrast the usual supposition that confessions, like statements against interests generally, would not be made if they were not true… [Ref. 13, p 816].

In that light, the trial court found that Harris could testify that Mr. King’s personality disorders were consistent with his false-confession claim, but restricted him from testifying about “anything the defendant or anyone else told him about the circumstances surrounding the giving of the confession…” (Ref. 13, p 811). Both the defense and prosecution appealed this ambivalent ruling. The state’s appeal challenged the admissibility of Harris’s testimony, arguing that Mr. King’s personality disorders were immaterial to the alleged false confession. The defense appealed the limitation imposed on Harris’s testimony.

Appeal and Opinion
The Superior Court of New Jersey, Appellate Division, reviewed the matter and ruled that Harris’s testimony regarding Mr. King’s personality disorders was admissible. In addressing the state’s appeal, the court initially looked to the U.S. Supreme Court decision in Crane v. Kentucky.¹⁴ In that case, a criminal defendant appealed his conviction, arguing that the lower court erred in excluding expert testimony that the duration and nature of the interrogation process brought about a false confession. In reversing the conviction, the Crane Court pointed out that under the Sixth and Fourteenth Amendments to the Constitution, criminal defendants are entitled to provide juries with reliable and competent evidence addressing the credibility of their confessions, especially when the confession is central to the innocence plea and there is no valid state justification for excluding it. The Court held that the physical and psychological environment in which the confession was obtained was relevant to the defendant’s claim of innocence.

Scope of Testimony
With Crane in mind, the New Jersey appellate court reviewed cases in other jurisdictions, extending Crane beyond the objective interrogation environment to the subjective psychological makeup of defendants. The appellate court cited People v. Hamilton,¹⁵ a Michigan Court of Appeals case that reversed the murder conviction of a defendant after he was barred from presenting expert testimony about how his psychological makeup affected the reliability of his statements to police. The Michigan court in Hamilton, considering Crane, found that although Crane dealt with the external interrogation environment, its principle was equally applicable to the psychological makeup of the defendant. As such, the defendant’s psychology was considered relevant to the reliability of his confession.

Persuaded by Hamilton and similar holdings in other jurisdictions, the New Jersey appellate court found that the testimony regarding Mr. King’s personality disorders in relation to the reliability of his confession was relevant. Since Mr. King’s confession was “the linchpin of the State’s case,” the court held that such testimony was necessary to assist the fact finder in assessing the reliability of that evidence. The court, however, pointed out that this testimony could be limited, thus adhering to the judicial interests of presenting competent and reliable evidence to the jury.

Admissibility
In keeping with those judicial interests, the appellate court focused principally on whether the scientific reliability requirement of New Jersey Rule of Evidence 702 was satisfied. The state argued that since Harris did not offer an authoritative source or study linking Mr. King’s personality disorders to false confessions, Harris’s testimony was not scientifically reliable. For that reason, the state asserted that the trial court erred in admitting the testimony under the general-acceptance standard in Frye v. United States.¹⁶ The appellate court, however, disagreed with the state’s view.

The court acknowledged that the “general acceptance standard by the relevant scientific community” established in Fryedetermined the scientific reliability of expert testimony in criminal cases in New Jersey. The court indicated that this standard could be established by expert testimony, authoritative scientific literature, or persuasive judicial opinions. According to the court, all of these methods were satisfied in King.

The appellate court contrasted the instant case with its earlier decision in State v. Free.¹⁷ In Free, the Superior Court of New Jersey reversed a trial court’s decision to admit social psychologist Kassin’s testimony regarding police interrogation techniques challenging the reliability of the defendant’s confession. In reversing the decision, the appellate court first found that the trial court erred in applying the Daubert¹⁸ standard to the proffered testimony instead of the Frye standard. In New Jersey, the admissibility standard for expert testimony in criminal cases is the Frye test, whereas the Daubert test is applied in civil cases. Under Daubert, the judge/gatekeeper would determine, among other things, whether the testimony would be helpful to the jury and is supported by the literature, not just whether the proposed evidence is generally accepted in the field. In its erroneous application of Daubert, the trial court in Free found the social psychologist’s testimony admissible on the basis of specialized knowledge. The appellate court reviewed the testimony under the Frye test and did not find general acceptance of the basis of the psychologist’s opinion in the relevant scientific community. The appellate court further found that a major defect in the psychologist’s testimony was that he addressed only the theoretical effects of police interrogation techniques on confessions and did not evaluate the defendant clinically.

By contrast, the appellate court in King observed that Harris personally examined the defendant as a basis for the psychiatric diagnoses. The court found that Harris had diagnosed psychiatric disorders in the defendant that were described in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV),¹⁹ and that the “[g]eneral acceptance of the DSM in the psychiatric community is beyond dispute” (Ref. 13, p 821). Thus, the appellate court held that Harris’s testimony satisfied the Frye test, dismissing the state’s argument that his opinions were not scientifically reliable. Furthermore, the court was not persuaded by the state’s argument that Harris’s opinion was inadmissible, since it was not based on scientific studies showing a causal connection between personality disorders and false confessions. As the court noted, Harris’s testimony was offered, not for the purpose of establishing causation but to show that Mr. King’s personality disorders were consistent with his false-confession claim. In the court’s view, lack of a causal nexus between the influence of Mr. King’s personality disorders and his false confession claim went to “the weightof Dr. Harris’s opinion, not its admissibility [emphasis added]” (Ref. 13, p 821).

In further support of this view, the court cited Beagel v. State.²⁰ In Beagel, the Alaska Court of Appeals overturned a defendant’s manslaughter conviction because the trial court excluded psychiatric testimony that the defendant’s self-incriminating statements were caused by confabulation produced by psychogenic amnesia. The Beagel court found that the testimony was supported by diagnostic criteria of the Diagnostic and Statistical Manual of Mental Disorders, Third Edition, Revised (DSM-III-R),²¹ representing a prima facie case that the testimony was based on generally accepted principles in the field of psychiatry, as required by Frye. The appellate court in King noted that the Beagel court was not swayed by the absence of scientific studies linking the defendant’s psychiatric diagnosis to false confessions.

The appellate court then turned to Mr. King’s appeal of the trial court’s order prohibiting his expert from testifying about “anything the defendant or anyone else told him about the circumstances surrounding the giving of the confession…” (Ref. 13, p 822; emphasis in the original). The defense argued that since Harris relied on Mr. King’s statements during his clinical assessment to formulate his diagnosis and opinion, he be permitted to explain their basis. Otherwise, such a sweeping prohibition would leave Harris with a net opinion. The defense also argued that Harris should be allowed to refer to police investigators’ statements, as they supported his opinion that Mr. King attempted to confess falsely to other murders.

Addressing these arguments, the appellate court noted that under Rule 703 an expert witness is permitted to base an opinion on facts not otherwise admissible as evidence. The court also cited the New Jersey decision in State v. Farthing,²²recognizing the admissibility of hearsay statements relied on by an expert, not for the purpose of establishing the statement’s truth, but to provide the jury with the basis of the opinion. The court observed that psychiatrists had been permitted regularly to testify in New Jersey criminal cases about a defendant’s statements if the expert relied on those statements to reach an opinion about a psychiatric condition. Accordingly, the appellate court found that the blanket prohibition barring Harris’s testimony about Mr. King’s statements during his clinical interviews was improper. However, the appellate court cautioned that an expert may not be used to circumvent the inadmissibility of hearsay statements to put before the jury evidence that it would not otherwise be permitted to consider. To that end, the court upheld the inadmissibility of the expert’s testimony related to police investigators’ statements about Mr. King’s reference to other unsolved crimes during the interrogation. In the court’s view, allowing Harris to represent the investigators’ statements as confirmation that Mr. King attempted to provide additional false confessions would be prejudicial to the state’s case.

False Confessions: The Elephant in the (Court)room
Obtaining evidence in criminal cases takes on different meaning when it is infused with interpersonal dynamics (the interrogation) and the psychological traits or psychopathology of the suspect. We suggest that the problem of false or unreliable confessions is greater than meets the eye and represents significant discomfort for law enforcement and prosecutors. It is the elephant in the room that often gets ignored.

The significance of false confessions becomes apparent when one considers that one-quarter of the over 200 wrongful convictions overturned by DNA evidence in the United States involved a false confession.²³ Several studies have attempted to measure the breadth of the problem of wrongful convictions based on such confessions. In the first of these studies, Bedau and Radelet²⁴ identified 350 wrongful convictions in capital and potential capital cases between 1900 and 1985 and found that 49 of them were caused by false confessions. Gross and colleagues²⁵ examined 340 exonerations in the United States from 1989 through 2003, of which 144 were cleared by DNA evidence and found that 15 percent of these individuals had falsely confessed. That study further indicated that 69 percent of the innocent confessors were either mentally ill or mentally retarded. In 2000, Scheck and collaborators²⁶ analyzed 62 cases of wrongfully convicted individuals who had been exonerated by DNA evidence and found that approximately 24 percent involved false confessions. Finally, a 2008 empirical study found that 16 percent of the first 200 individuals exonerated by postconviction DNA testing in the United States had false confessions introduced during their trials.²⁷Despite the variability of results in these studies, the message is clear: the risk of wrongful conviction based on false confession is genuine. Thus, to the degree that a suspect’s mental state plays into the analysis, there is an opportunity for expert testimony.

Classifying False Confessions
The custodial interrogation process is inherently coercive and designed to produce a confession. We do not take the position that all confessions are the product of coercion or that anyone who confesses is mentally disturbed. Yet, criminal defendants’ claims of false confessions are, by nature, counterintuitive.¹² That is, a judge or jury must consider the strange occurrence of an individual’s having made a statement against liberty interest. Despite this apparent oddity, the literature supports not only the existence of the false confession phenomenon, but identifies a confluence of factors that may produce them. For a variety of reasons, ranging from police coercion to a guilt-ridden mind to mental illness or retardation, false or unreliable confessions find their way into criminal cases.^1,11,12

Kassin and Keichel^3,4 categorized false confessions into three types: voluntary, coerced-compliant, and coerced-internalized. Voluntary false confessions come about in the absence of overwhelming external stressors by law enforcement. Instead, observes Gudjonsson,⁵ an individual may be seeking notoriety, may have guilty feelings about some other transgression, may have an inability to distinguish reality from fantasy, or may be attempting to protect another person. Coerced-compliant false confessions are offered in an attempt to avoid external pressure or to obtain a reward. However, within this framework, the confessor subjectively does not accept the confession as true.Coerced-internalized false confessions involve an innocent person who, because of confusion and the stress of the interrogation, begins to accept criminal responsibility.

Ofshe and Leo² propose that the improper use of interrogation techniques can result in four types of false confessions:

1. Stress-compliant, in which the suspect is overwhelmed by the anxiety of the situation, is physically exhausted, or both, and confesses to bring an end to the stress.
2. Coerced-compliant, in which the suspect responds to overt or covert threats of harm, to promises of leniency, or to both, believing that by confessing, punishment will be reduced or eliminated.
3. Persuaded false-noncoerced and -coerced, in which the suspect is persuaded by the interrogator of the probability of guilt, even though the suspect has no memory of the crime. The distinction between the noncoerced and coerced types is the extent to which threats, promises, or other coercive techniques are used.

To bridge the cognitive dissonance of guilt in the face of amnesia, interrogators supply theories such as alcohol- or drug-induced blackout, momentary lapse in consciousness, a repressed memory, or multiple personality.² Ofshe and Leo² also illustrate multiple dynamics by which skilled interrogators obtain confessions from innocent suspects—for example, the rhetorical minimization of the recited Miranda warnings, which can induce hopelessness; interpreting the suspect’s demeanor (“I’m a human lie detector”); and fabricating eyewitness corroboration, co-perpetrator confession, or scientific evidence (polygraphy, fingerprints, DNA). From the suspect’s side, a variety of mental conditions may contribute to the susceptibility to confessing falsely or to confessing without full understanding of the waiver of rights.¹These conditions include mental illness (e.g., psychosis, depression), mental retardation, and drug intoxication or withdrawal.

Social Science and Medical Testimony
A defendant facing the legal consequences of a confession given under coercive circumstances often seeks to challenge its validity. Such challenges may be based on the voluntariness of the confession, the credibility of the confession, or both. Various constitutional principles have been identified in the case law that supports such challenges. The Fifth Amendment right against self incrimination, the Sixth Amendment confrontation clause, and the Fourteenth Amendment right to due process are all safeguards against unreliable confessions.^28–31 Yet one may wonder: what, if anything, can psychiatric, psychological, or social scientific testimony bring to the table to aid the trier of fact?

Using the New Jersey cases of Free and King as examples, one can observe that expert testimony on a false-confession claim may come from criminology or clinical science: social science or medical models. In the social science model, in the testimony, based on studies of how humans behave under stress, the expert witness explains how an individual may make statements against interest for reasons stemming from the suspect-interrogator interaction. For example, in the Ofshe and Leo,² Kassin and Keichel,^3,4 and Gudjonssen⁵ models, we see a typology linking typical police tactics to psychological types. This is not to say that good detective work produces false, involuntary, or unreliable confessions, only that there is a model that explains a suspect’s will being overborne or shaped to the demand characteristics of the situation. In the Free ruling, social science testimony was too general to be helpful. Perhaps it would have been admitted if New Jersey had adopted the standard in Daubert rather than that in Frye. In the medical model, the expert witness looks at the individual suspect to see whether, at the time of the confession, there were cognizable psychological or psychiatric conditions present that support or explain the defendant’s claim that the statement was false. For example, as we saw in the King case, there were aspects of a personality disorder that contributed to Mr. King’s self-incrimination. Similarly, in the schema proposed by Weiss,¹ there are many such scenarios, based on medical diagnoses of the suspect, through which to understand the suspect’s choices. We are uncomfortable with the appellate court’s elevating DSM-IV to the level of implying that an official diagnosis tells us something meaningful about the reliability of a confession. While no psychiatric diagnosis is ever dispositive of the question of voluntariness or reliability, expert testimony may shed light on how the characteristics of an individual suspect under the specified conditions may have led to a declaration against interest.

How Do We Know What We Know?
It is all too easy to assert that false confessions occur, that there are models to explain them, and that they may be linked to psychopathology. The harder questions involve how expert witnesses can be helpful and educational without breaching the boundaries of knowledge. Expert testimony in confessions cases, as in other areas of the criminal justice process, is provided with reasonable medical (or psychological) certainty. Witnesses must be careful not to accept the defendant’s version at face value. Rather, all factors, including objective evidence of the interrogation, the defendant’s prior experience, and the Axis I or II diagnosis, must be synthesized. Even so, the witness would not be expected to opine on whether a confession was true or false, only whether scientific evidence supports the defendant’s current claim that the confession was false. The situation varies somewhat in the scenario of determining whether the statement was given knowingly, intelligently, and voluntarily. The expert may introduce evidence of state or trait characteristics that may have been in play in the suspect’s capacity at the time the Miranda warnings were given.¹ There is usually interplay between the suspect’s mental state (medical model) and the overall interrogation (social science model).

Before discussing ways in which expert testimony can be introduced, we would like to comment on its scientific basis. It is apparent from the cases cited that courts are legitimately concerned about the basis of a professional’s saying anything about a suspect’s state of mind during a custodial interrogation. It is our view that a best-practice approach includes two elements: knowledge of the social science literature regarding police-suspect interactions and the permutations of how a suspect’s will and motivations are shaped by the demand characteristics of the interrogation; and clinical data from personal examinations, psychometric testing, medical records, and school records that inform the court, within reasonable scientific certainty, about how, in the instant case, the suspect acted against liberty interest. This is not to say that the two should be given equal weight, since it is clear from case law that without clinical data the social science approach alone is likely to be excluded.¹² Indeed, we suggest that ideal testimony would include an interplay between the two.

Support for this two-pronged approach comes from the philosophy of science, and it is fundamental to medical reasoning. Scientific statements are based on generally accepted laws of nature, coupled with empirical data, forming the distinction between nomothetic and idiographic levels of inference.³² In this dichotomy, nomothetic facts are general, whereas idiographic ones are specific. Thus, the social science model looks generally at the problem, and the medical model specifically at the person under consideration. It is not our intent to put too fine a point on our characterization of social science information as nomothetic in the sense of following a basic law of nature. The modest analogy we propose is that the literature on the social psychology of confessions is sufficiently robust for expert witnesses to assert, for example, “There are certain characteristics of humans in stressful situations that give rise to adaptations that would be considered self-defeating.” There does not appear to be much controversy about whether false confessions occur. The idiographic component, then, paints a picture of the individual in question, whereby the expert witness can testify; for example, “The suspect, with borderline personality disorder and anxiety developed an unrealistic belief that confessing would lead to release from custody.” It is our view that such an approach, reflecting ordinary, first-order medical logic, has a sufficient scientific basis to qualify as supportable under the Frye or Daubert tests.

Further support for this approach is found in a recent review by Chojnacki and colleagues³³ of the admission of expert testimony in false-confession cases. They note, consistent with our observations, that testimony will focus on two broad areas: macro-level research on the subject, and dispositional factors and situational factors, which are psychological traits of individuals (e.g., mental illness or retardation) and specifics of the interrogation that predisposed to a false confession (e.g., police-suspect interactions and physical conditions). They acknowledge that whether the admissibility standard is Frye, Daubert, or another, the question of the utility of an expert is reduced to “whether the expert’s proffered testimony: (1) will assist the jury in evaluating the credibility of the confession and is therefore admissible; or (2) is already within the common knowledge of the jury, making the testimony superfluous and therefore inadmissible” (Ref. 33, pp 20–21). They proceed to discuss the results of their empirical study of “what jurors know.” Starting from the assumption that we must know what jurors tend to know before deciding whether expert testimony would assist them, they posed a series of questions to 502 jury-eligible citizens in 38 states. The results showed an impressive lack of knowledge about suspects’ rights, confessions, and police. Examples include uncertainty about the role of Miranda rights; uncertainty as to whether police can detect lying better than the average person; underestimation of the proportion of suspects who confess; and failure to appreciate that a false confession would lead to a conviction (nearly half of those interviewed). Very few said that one could tell whether a confession is true or false by listening to an audiotape or watching a videotape. Looking at the citizens’ self-assessments, the authors found that about 80 percent did not believe that they had sufficient knowledge of confessions to participate in a trial and that an equal number believed that, where the truthfulness of a confession is disputed, they would benefit from expert testimony. Chojnacki et al. concluded that these findings lend support to the practice of admitting expert testimony when the question turns on whether the subject matter is beyond the knowledge of the average citizen. After all, the role of the expert is to educate the court and jury.

Show Me the Data
When weighing the value of expert testimony regarding false confession claims, a critical question that must be addressed is whether the empirical evidence supports the testimony. While the literature regarding the phenomenon of false confessions and the theoretical psychological impact of interrogations on vulnerable populations is abundant, currently there is no empirical evidence that links any particular psychiatric diagnosis with giving false confessions.³⁴ Many studies focus on factors such as individual susceptibility and compliance in groups such as juveniles and the intellectually disabled, who may be exploited during the interrogation process.³⁴ Although these studies implicate particular qualities that may give rise to false confessions within these groups, they do not provide a causal link to false confessions or suggest that members of these groups cannot give valid confessions. Moreover, while susceptibility and compliance studies are particularly relevant in alleged coerced false-confession situations, they are less significant in the context of voluntary confessions.

It is possible that, under certain circumstances, an actively psychotic individual who is unable to distinguish reality from delusional beliefs will voluntarily provide unreliable information to authorities. However, there are no scientific studies that establish a causal link between psychosis and false confessions. The absence of such a correlation is also the case with other psychiatric disorders. What, then, is the value of psychiatric and psychological testimony in these cases? First, the expert may educate the jury and the court regarding the existence of false confessions and dispel the common-sense belief that individuals do not falsely incriminate themselves.³⁵ This point cannot be underestimated when one considers that mock-jury studies have shown reliably that confessions carry more weight than eyewitness and character evidence.³⁶

Second, an expert may testify about the presence or absence of mental illness, relevant features of a particular psychiatric diagnosis, if present, and the defendant’s mental state at the time of the confession. While the scientific literature may not establish a causal nexus between a particular psychiatric diagnosis and false confessions, an expert may educate the jury about the features of a diagnosis and thereby assist the jury in its determination whether the defendant’s diagnosis has caused or is consistent with a false-confession claim. It is our position that since the empirical evidence linking psychiatric diagnoses to false confessions is lacking, it should be left to the jury to determine causation and whether the diagnostic features as outlined by an expert are consistent with a particular defendant’s false-confession claim.

Finally, psychiatric and psychological testimony are valuable in cases in which the defendant asserts that mental illness brought about a false confession. As stated in the second point, while an expert should not testify regarding causation in these matters, testimony can be used regarding the presence or absence of mental illness and the impact that the illness may have had on the defendant’s mental state. Such a determination would be critical in assessing the defendant’s claim and is clearly beyond the knowledge of the average lay person.

Practical Considerations
Thus far, we have looked at the reasons that expert testimony may aid the adjudication of false-confession claims, ranging from the prevalence of the phenomenon to the social and psychological dynamics of interrogations to an education gap in jurors’ understanding of the process. From a practical point of view, defendants may have one or more opportunities to raise issues involving expert testimony.

Three Bites of the Apple
A defendant may challenge the reliability of the statement during both the pretrial and trial phases of the criminal matter, as well as in a postconviction relief application. The ability to make such challenges, of course, would be waived by the defendant in the event of a plea agreement, the most prevalent of outcomes. The following discussion suggests uses of expert testimony in cases in which a false-confession claim is made.

First Bite: Pretrial
During the pretrial phase, a motion to suppress the confession may be initiated by the defense to prevent it from reaching the jury at trial. Such a motion is supported by the defendant’s constitutional right to a judicial determination of the voluntariness of the confession.³⁷ In response to this motion, a judicial hearing is held to determine, in light of the totality of the circumstances, whether the statement was voluntary.³⁸ If the judge determines that the preponderance of the evidence supports a finding of voluntariness, then the defendant’s motion is denied, and the confession is admissible at the trial phase.³⁹ The importance of the false-confession phenomenon becomes magnified when the confession is the key evidence in the prosecution. It comes as no surprise, then, that expert testimony regarding the defendant’s cognitive, emotional, or motivational state may come into play. In our experience, judges in evidence-suppression (Miranda) hearings are reluctant to rule on the reliability of alleged false confessions; the decision is relegated to the jury. Beyond that is the question of what kinds of expert testimony might be helpful to the jury without prejudicing them or invading their domain.

Second Bite: Trial
Notwithstanding the pretrial judicial determination permitting the jury to hear the confession, the defendant may still challenge its reliability through expert testimony at trial (there is no second bite if a jury trial is waived). Under such circumstances, the prosecution customarily presents a motion to exclude the defense expert’s testimony. The trial judge, guided by the applicable admissibility standards for scientific expert testimony, then determines whether the expert’s testimony is admissible. If the judge finds that the expert’s testimony is inadmissible, the jury must weigh the incriminating statement without hearing the expert’s testimony. If the judge finds that the defense expert’s testimony is admissible, then the jury may consider the defendant’s confession in light of the expert’s opinion regarding its reliability.

Third Bite: After Conviction
Confessions are so persuasive that appellate courts, in our experience, are reluctant to overturn a conviction by revisiting a Miranda issue, except on procedural grounds (whether or when the suspect was mirandized). Psychiatric and psychological expert opinions may be useful, however, when there was ineffective assistance of counsel by failure to explore bites one and two, and DNA or other scientific evidence needs to be bolstered by a credible explanation of how a false confession came about.

Discussion
The decision in King illustrates the delicate balance that courts must apply when weighing a defendant’s right to present a complete defense against the judicial interest of allowing only reliable and competent evidence to reach the eyes and ears of the jury. The King case involved voluntary statements by the defendant and, accordingly, did not require a pretrial determination of voluntariness. Thus, the appellate court in King addressed two major questions: first, whether the psychiatric testimony regarding Mr. King’s personality disorders was relevant and material to his false-confession claim and, second, whether the proffered expert testimony satisfied the Frye general-acceptance standard of admissibility. The appellate court answered both of these questions in the affirmative. While the King decision cannot be generalized in regard to the standard for admissibility, we agree with the court that meaningful connections can be made between personality disorders and false-confession susceptibility. As always, testimony in this regard would go to the weight of the statement, not its truthfulness. That is, the jury is free to accept the confession at face value, to reject it as unreliable, or to adjust its importance in light of the totality of evidence.

Under the Sixth and Fourteenth Amendments to the Constitution, criminal defendants are entitled to present a complete defense, including the right to confront the state’s evidence. In this case, Mr. King’s seemingly voluntary statements were the primary evidence against him—the linchpin in the prosecution’s case, as the court noted; no physical evidence linked him to the crime. Accordingly, Mr. King’s challenging the reliability of his confession was supported by constitutional principles and due-process rights. Moreover, both Crane and Hamilton established legal precedents that such challenges may address not only the external circumstances surrounding the interrogation (for example, police conduct and conditions of the interrogation), but also the internal psychological makeup of a defendant during the interrogation. As noted by Weiss,¹ internal factors may include mental illness, mental retardation, intoxication, and drug withdrawal. In Mr. King’s case, personality disorder, a cognizable mental disorder, may have affected the content and reliability of his statements and thus were deemed relevant to his false-confession claim on appeal.

Relevance is one threshold for the admissibility of an expert’s opinion. The testimony must also satisfy a scientific reliability threshold, such as the standards in Daubert or Frye. In King, the Frye standard governed the admissibility of expert testimony. Mr. King’s expert was required to base his testimony on generally accepted principles in the psychiatric community to be admitted. The general acceptance standard of Frye was satisfied in this case, in major part because Mr. King’s personality disorders and their diagnostic features were outlined in DSM-IV.¹⁹ In fact, the appellate court pointed out that recognition of a mental disorder by an authoritative source, such as the DSM-IV, represents a prima facie case of general acceptance in the psychiatric community. While it may be true that clinicians generally accept DSM-IV for classification purposes, we do not suggest that the willy-nilly use of medical labels should pass for acceptable testimony. The paucity of scientific studies linking the relevant personality disorders to false confessions did not bar the admission of the expert’s testimony in King, which was otherwise admissible under the Frye test. Indeed, had the testimony been merely that individuals with personality disorders are generally susceptible to giving unreliable confessions, it likely would have been barred. Habitual lying would be a dubious example of illustrating such a relationship. One can only imagine the ensuing chaos if the confessions of antisocial individuals were considered unreliable as a matter of law.

Despite the admission of expert testimony in King regarding psychiatric disorders in relation to the defendant’s false-confession claim, in the absence of scientific evidence supporting a causal link, a word of caution: while studies clearly show that false confessions occur, as experts we must avoid overstating the current empirical evidence regarding the relationship between mental illness and false confessions. Clearly, without such evidence it would be improper for an expert to testify about causation in these matters. Further, a major barrier to testifying with reasonable medical or psychological certainty that a particular diagnosis caused a false confession is that we cannot know that the confession is in fact false. It is the jury’s role, not the expert’s, to weigh the validity of a confession.

The court in King attempted to ease this conundrum by prohibiting testimony on causation; instead, it permitted testimony on whether the defendant’s psychiatric diagnosis was consistent with his false-confession claim. However, we argue that the consistent-with standard is simply a variation of causation and remains problematic for the reasons previously outlined. Consequently, it is our view that the jury should weigh whether a defendant’s psychiatric diagnosis is consistent with his false-confession claim in light of expert testimony regarding the nature of the defendant’s psychiatric illness and mental state at the time of the confession. The expert can best assist the jury in making this determination by addressing the presence or absence of a psychiatric diagnosis, on the basis of psychiatric history and clinical evaluation; particular features of the defendant’s psychiatric diagnosis that may have affected the defendant’s ability to communicate with law enforcement (e.g., inability to distinguish reality from delusions); and the defendant’s mental state at the time of the confession.

Providing broad statements that a particular psychiatric diagnosis is consistent with a false-confession claim may ultimately diminish the value of expert testimony to the court; features of many psychiatric diagnoses arguably have the potential to produce false confessions under certain circumstances. While the presence of psychiatric diagnoses may open the courtroom door for expert testimony in these matters, experts must be wary of venturing too far without the support of empirical evidence.

Toward a Best-Practice Model
Valid waivers of Miranda rights must be knowing, intelligent, and voluntary. Voluntariness comes into question when the defendant claims coercion. The reliability of the content of a statement will come under scrutiny when a defendant claims his or her will was overborne, usually by a combination of factors. These elements can have both objective and subjective dimensions, the former reflecting social science concerns (macro-research, nomothetic), and the latter being more conducive to mental health testimony (dispositional-situational, idiographic).³³ In the earlier New Jersey case, State v. Free,¹⁷ the appellate court found inadmissible sociological expert testimony regarding the theory of false confessions on the grounds that it did not satisfy the Frye standard, because it merely asserted general theoretical concepts about how a false confession could transpire. In contrast, Mr. King’s expert not only offered generally accepted psychiatric principles, but also based his opinion on the psychiatric examination and history of Mr. King, together with the specific circumstances of the interrogation. With this in mind, it is clear that the proffered expert testimony in Free fell within the social science model, whereas the medical model underlay the testimony in King. The divergent outcomes of these cases demonstrate courts’ disapproval of presenting generalized concepts to a jury in the absence of the specific application of those concepts to a particular defendant. That is, judges want less theory and more of a dynamic explanation of how a suspect acted under the specified conditions. Perhaps they understand intuitively that jurors’ fund of knowledge is often deficient, as the empirical study showed.³³ Although we understand as psychiatrists that medical reasoning traditionally flows from the general to the specific, when that logic is presented to a jury, it must conform to the prevailing admissibility standard, and the jury must not be left to connect the dots.

Jurisdictions other than New Jersey also appear to favor the medical model in regulating the admissibility threshold. Notably, Soree¹² called attention to state jurisdictions that addressed both models but showed a clear preference for the medical model over the social science model. In Kansas, the medical model was admitted in State v. Kleypas,⁴⁰ but the court in State v. Cobb⁴¹ held that the social science model was inadmissible. In an Illinois case, People v. Rivera,⁴² the medical model was admitted, but the social science model was excluded. As noted, King was decided after the above case law surveys were conducted. Given the inadmissibility of the social science model in the earlier New Jersey decision in Free, the King decision places New Jersey squarely within the category of state jurisdictions showing a preference for the medical model. As Bear and Bresler⁴³ commented, testimony regarding specific psychological disorders relevant to a confession may be less likely to elicit a Daubert or Frye challenge, whereas the value of social science testimony to the jury is often considered by the prosecution and the court as questionable. Hence, we suggest that expert testimony based on the medical model is more likely to result in admissibility in these cases, with the understanding that witnesses must be alert to jurisdictional subtleties and local case law that inform the nature of the testimony.

Accordingly, we offer the following approach to a best-practice model for preparing psychiatric testimony in false-confession cases on the defense side; prosecution-proffered testimony can utilize the model in rebuttal.

1. Be aware of whether the defendant is claiming that he lacked the capacity to waive Miranda rights rather than that he confessed because of factors in the circumstances of the interrogation or a breakdown in mental faculties.
2. There is a tendency for attorneys to rely on experts in interrogations to present the theory of false confessions in the service of an argument that the confession may have been false; this theoretical support is not sufficient. Even in jurisdictions that seem to favor the social science model, we recommend clinical correlation.
3. The expert witness should be prepared to use all available data to educate the court about the connection between the circumstances of the interrogation and the suspect’s diagnosis on the one hand and the mechanism that produced the incompetent waiver of rights or false confession on the other. These data can be obtained with validated psychometric instruments,⁴⁴ so long as they are integrated with other clinical data.
4. Courts generally look unfavorably on sweeping expert opinions that fail to consider the qualities of a specific defendant and the specific circumstances involved in the matter. As a result, a full psychiatric examination of the defendant and a review of the defendant’s psychiatric records are likely to be required. Further, the review of any documentation relating to the defendant’s confession is critical in assessing the false-confession claim. Such a process would include a review of the complete, unedited video recording of the defendant’s interrogation, if available.⁴⁵
5. The proffered testimony is more likely to satisfy the threshold requirement for admissibility if the expert offers a specific DSM-IV diagnosis of the defendant. The lack of scientific studies connecting a psychiatric diagnosis to the making of false confessions should not bar admissibility. As the court in King stated, the absence of such studies is a matter of weight, not admissibility.
6. Experts addressing these matters are not permitted to offer testimony regarding causation. In other words, an expert may not testify that a defendant’s psychological makeup caused a false confession. Certainly, an expert cannot know that a confession is truly false and, therefore, can only offer factors that may increase the risk of an unreliable confession. Causation is a question of fact to be determined by the jury; for an expert witness to comment on it would be tantamount to saying guilty or not guilty. In assisting a jury’s assessment of causation, an expert may testify in some jurisdictions that a particular psychiatric disorder is consistent with a false-confession claim, in the sense that the disorder may have been a factor in this suspect’s behavior on this occasion. As noted by Soree citing United States v. Shay,⁴⁶ Federal Rule of Evidence 702 “prohibits an expert to testify that ′another witness is lying or telling the truth…because the opinion exceeds the scope of the expert’s knowledge and therefore merely informs the jury that it should reach a particular conclusion’” (Ref. 12, p 228). Consequently, avoiding interference with the province of the jury is imperative and increases the likelihood that the court will admit the expert opinion.
7. As an exception to the inadmissibility rule of hearsay statements, a psychiatrist may testify about statements made by a defendant during the psychiatric examination if those statements were utilized to formulate the opinion. Essentially, an expert may base an opinion on facts not otherwise admissible as evidence. Prosecutors may view the hearsay exception as a drawback, since it allows the defendant’s words to reach the jury without cross-examination. However, by permitting such testimony, this exception facilitates the jury’s education about how the expert actually reached the opinion. This perspective becomes obvious when one considers the fundamental role of the expert—assisting the jury to understand subject matter that is beyond the ken of the average citizen. Without the exception, the jury would only acquire the expert’s bottom-line conclusion, thereby undermining its ability to assess the evidence within the full context of the case. Exclusion of such testimony would defeat the overall purpose of presenting an expert witness to the jury.

As the U.S. Supreme Court has noted, quoting Justice White’s dissent in Bruton v. United States: A confession is like no other evidence. Indeed, “the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him…. [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so” [Ref. 31, p 296].

The judicious use of expert testimony, when grounded within the limits of empirical science, has the potential to provide fact-finders with needed perspective.

Footnotes

• Disclosures of financial or other conflicts of interest: None.
• American Academy of Psychiatry and the Law

References

1. Weiss KJ: Confessions and expert testimony. J Am Acad Psychiatry Law 31:451–8, 2003
2. Ofshe RJ, Leo RA: The decision to confess falsely: rational choice and irrational action, in Symposium on Coercion: An Interdisciplinary Examination of Coercion, Exploitation, and the Law. II. Coerced Confessions. Denv U L Rev 74:979–1122, 1997
3. Kassin SM: The psychology of confession evidence. Am Psychol 52:221–33, 1997
4. Kassin SM, Keichel KL: The social psychology of false confessions: compliance, internalization, and confabulation. Psychol Sci 7:125–8, 1996
5. Gudjonsson G: The Psychology of Interrogations, Confessions, and Testimony. Chichester, UK: John Wiley & Sons, 1992
6. Wharton F, Stillé A: A Treatise on Medical Jurisprudence (ed 2). Philadelphia: Kay & Brother, 1860
7. Wharton F: Involuntary Confessions: A Monograph. Philadelphia: Kay & Brother, 1860
8. Drizin SA, Leo RA: The problem of false confessions in the post-DNA world. NC L Rev 82:891–1007, 2004
9. Alschuler A: Constraint and confession, in Symposium on Coercion: An Interdisciplinary Examination of Coercion, Exploitation, and the Law. II. Coerced Confessions. Denv U L Rev 74:957–78, 1997
10. Quintieri P, Weiss KJ: Admissibility of false-confession testimony: know thy standard. J Am Acad Psychiatry Law 33:535–8, 2005
11. Kastenberg JE: A three-dimensional model for the use of expert psychiatric and psychological evidence in false confession defenses before the trier of fact. Seattle U L Rev 26:783–845, 2003
12. Soree N: When the innocent speak: false confessions, constitutional safeguards, and the role of expert testimony. Am J Crim Law 32:191–263, 2005
13. State v. King, 904 A.2d 808 (N.J. Super. Ct. App. Div. 2006)
14. Crane v. Kentucky, 476 U.S. 683 (1986)
15. People v. Hamilton, 415 N.W.2d 653 (Mich. Ct. App. 1987)
16. Frye v. United States, 293 F. 1013 (D.C. Cir. l923)
17. State v. Free, 798 A.2d 83 (N.J. Super. Ct. App. Div. 2002)
18. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
19. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. Washington, DC: American Psychiatric Association, 1994
20. Beagel v. State, 813 P.2d 699 (Alaska Ct. App. 1991)
21. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Third Edition, Revised. Washington, DC: American Psychiatric Association, 1987
22. State v. Farthing, 751 A.2d 123 (N.J. Super. Ct. App. Div. 2000), cert. denied, 760 A.2d 784 (N.J. 2000)
23. The Innocence Project. Available at http://www.innocenceproject.org. Accessed July 13, 2008
24. Bedau HA, Radelet ML: Miscarriages of justice in potentially capital cases. Stan L Rev 40:21–179, 1987
25. Gross SR, Jacoby K, Matheson DJ, et al: Exonerations in the United States 1989 through 2003, in Symposium: Innocence in Capital Sentencing. J Crim Law Criminol 95:523–60, 2005
26. Scheck B, Neufeld P, Dwyer J: Actual Innocence: Five Days to Execution and Other Dispatches From the Wrongly Convicted. New York: Doubleday, 2000
27. Garrett BL: Judging innocence. Colum L Rev 108:55–142, 2008
28. Bram v. United States, 168 U.S. 532 (1897)
29. Brown v. State of Mississippi, 297 U.S. 278 (1936)
30. Ashcraft v. State of Tennessee, 322 U.S. 143 (1944)
31. Arizona v. Fulminante, 499 U.S. 279 (1991)
32. Schäfer M: Nomothetic and idiographic methodology in psychiatry: a historical-philosophical analysis. Med Health Care Phil 2:265–74, 1999
33. Chojnacki DE, Cicchini MD, White LT: An empirical basis for the admission of expert testimony on false confessions. Ariz St L J 40:1–45, 2008
34. Gudjonsson GH: The Psychology of Interrogations and Confessions: A Handbook. West Sussex, UK: John Wiley & Sons, 2003
35. Kassin SM, Gudjonsson GH: The psychology of confessions: a review of the literature and issues. Psychol Sci Public Interest 5:33–67, 2004
36. Kassin SM, Neumann K: On the power of confession evidence: an experimental test of the “fundamental difference” hypothesis. Law Hum Behav 21:469–84, 1997
37. Jackson v. Denno, 378 U.S. 368 (1964)
38. Fikes v. Alabama, 352 U.S. 191 (1957)
39. Lego v. Twomey, 404 U.S. 477 (1972)
40. State v. Kleypas, 40 P.3d 139 (Kan. 2001)
41. State v. Cobb, 43 P.3d 855 (Kan. Ct. App. 2002)
42. People v. Rivera, No. 2-98-1662, 2001 WL 1580919 (Ill. App. Ct. 2001)
43. Bear JE, Bresler SA: Overshadowing innocence: evaluating and challenging the false confession. Champion 31:16–22, 2007
44. Grisso T: Instruments for Assessing Understanding & Appreciation of Miranda Rights. Sarasota, FL: Professional Resource Press, 1998
45. Cassell PG: Coerced confessions: balanced approaches to the false confession problem—a brief comment on Ofshe, Leo, and Alschuler, in Symposium on Coercion: An Interdisciplinary Examination of Coercion, Exploitation, and the Law II. Denv U L Rev 74:1123–33, 1997
46. United States v. Shay, 57 F.3d 126 (1st Cir. 1995)

 Research Related to False Confessions

Coerced confessions, judicial instruction, and mock juror verdicts.
Kassin, Saul M.
Journal of Applied Social Psychology, Vol 11(6), Nov-Dec, 1981. pp. 489-506.
Abstract:
Assessed whether judicial instruction can curb jurors’ inappropriate use of coerced-confession evidence; 350 undergraduates participated. In Exp I, Ss read an auto theft trial in which the defendant had confessed on his own initiative (no constraint), after an offer of leniency (positive constraint), or after a threat of punishment (negative constraint). Ss then received an instruction that simply directed them to ignore a coerced confession (short form), another that additionally defined both positive and negative inducement as coercive and hence unreliable (long form), or no instruction at all. Ss fully discounted the negatively constrained confession, but not the positively induced one, which, although judged involuntary, produced a high percentage of guilty verdicts. In Exp II, Ss read an assault case involving a voluntary or positively coerced confession and 1 of 4 types of instruction. The positive coercion bias was replicated. An instruction that stressed both the unreliability and unfairness of an induced confession decreased voluntariness judgments but failed to lower the conviction rate. (27 ref)

Courts review participation of mentally disabled persons in criminal justice system.
No authorship indicated
Mental & Physical Disability Law Reporter, Vol 8(3), May-Jun, 1984. pp. 289-290.
Abstract:
Four decisions discussed the capacity of mentally disabled persons to participate in the criminal court system: (1) Eddings v. Alabama, 443 So. 2d 1308 (Ala. Crim. App. 1983); (2) Louisiana v. Brown, 445 So. 2d 456 (La. Ct. App. 1984); (3) Pickens v. Alaska, 675 P.2d 665 (Alaska Ct. App. 1984); and (4) United States v. Gutman, 725 F.2d 417 (7th Cir. 1984). Specific issues include waivers of constitutional rights, voluntariness of confessions, and witness or victim submissions to psychiatric examinations.

Involuntary confessions based on mental impairments.
Parry, John.
Mental & Physical Disability Law Reporter, Vol 11(1), Jan-Feb, 1987. pp. 2-6.
Abstract:
Discusses the US Supreme Court’s ruling in Colorado v. Connelly, in which the issue of the voluntariness of a confession is severed from the question of the confessor’s mental capacity. This ruling is contrasted with 3 previous Supreme Court decisions related to involuntary confessions: Blackburn v. Alabama, 361 U.S. 199 (1960); Townsend v. Sain, 372 U.S. 293 (1963); and Moran v. Burbine, 106 S. Ct. 1135 (U.S. Sup. Ct. 1986).

U.S. Supreme Court finds confession of severely mentally ill man voluntary.
No authorship indicated
Mental & Physical Disability Law Reporter, Vol 11(1), Jan-Feb, 1987. pp. 19-21.
Abstract:
A divided Supreme Court found that a defendant’s mental condition by itself does not determine whether a confession was coerced or a waiver of rights properly made under Miranda v. Arizona, 384 U.S. 436 (1966). Moreover, the state was only required to meet a preponderance-of-the-evidence standard in demonstrating that the defendant had waived his Miranda rights. Colorado v. Connelly, No. 85-660, 55 U.S.L.W. 4043 (U.S. Sup. Ct. Dec. 10, 1986).

Voluntariness of confessions assessed.
No authorship indicated
Mental & Physical Disability Law Reporter, Vol 11(2), Mar-Apr, 1987. pp. 103-104.
Abstract:
The following 6 decisions considered the voluntariness of confessions made by criminal defendants with various mental impairments who claimed to lack the intellectual capacity to validly waive their constitutional rights: Illinois v. Kokoraleis, 501 N.E.2d 207 (Ill. App. Ct. 1986); Reddix v. Thigpen, 805 F.2d 506 (5th Cir. 1986); Nebraska v. Dickson, 395 N.W.2d 770 (Neb. Sup. Ct. 1986); Watkins v. Alabama, 497 So. 2d 1153 (Ala. Crim. App. 1986); Sasser v. Alabama, 497 So.2d 1131 (Ala. Crim. App. 1986); Maine v. Addington, 518 A.2d 449 (Me. Sup. Jud. Ct. 1986).

Colorado v. Connelly: Is free will no longer a criteria for the voluntariness of an accused’s waiver and confession under Miranda?
Cheney, William G.
Law & Psychology Review, Vol 11, Spr 1987. pp. 153-167.
Abstract:
Describes the evolution of the right against self-incrimination. It is concluded that in Colorado v. Connelly, the Court makes the 5th amendment right against self-incrimination and the Miranda warning useless for accused individuals whose mental incompetency prevents them from properly exercising their rights.

One hundred alleged false confession cases: Some normative data.
Gudjonsson, Gisli
British Journal of Clinical Psychology, Vol 29(2), May, 1990. pp. 249-250.
Abstract:
Examined the psychological characteristics of individuals who retract self-incriminating admissions made during police interviewing by comparing 100 alleged false confessors with 104 other forensic referrals on 4 psychological variables. Measures used included the Wechsler Adult Intelligence Scale (WAIS) and the Gudjonsson Suggestibility Scale. The 2 groups differed significantly on tests of intelligence, suggestibility, compliance, and acquiescence. Normative data are provided.

The potential for bias in videotaped confessions.
Lassiter, G. Daniel, et.al.
Journal of Applied Social Psychology, Vol 22(23), Dec, 1992. pp. 1838-1851.
Abstract:
Previous research by G. D. Lassiter and A. A. Irvine (see record 1986-24380-001) indicates that the point of view from which a confession is videotaped can influence determinations of its voluntariness. The present study, with 172 undergraduates, extended this finding. Ss completed the Need for Cognition Scale and then acted as jurors evaluating 1 of 3 mock interrogations. Confessor-focus, but not equal-focus (on the confessor and interrogator), videotapes produced judgments of greater voluntariness compared with more traditional audiotape and transcript formats. Also, this pattern generalized across confessions concerned with 3 different crimes (rape, drug trafficking, and burglary). Ss high and low in need for cognition were equally susceptible to the videotaped-confession bias. Biased voluntariness judgments may, in turn, prejudice likelihood-of-guilt assessments.

The psychology of confession evidence.
Kassin, Saul M.
American Psychologist, Vol 52(3), Mar, 1997. pp. 221-233.
Abstract:
Basic questions are raised concerning police interrogations, the risk of false confessions, and the impact that such evidence has on a jury. On the basis of available research, it was concluded that the criminal justice system currently does not afford adequate protection to innocent people branded as suspects and that there are serious dangers associated with confession evidence. The specific problems are threefold: (a) The police routinely use deception, trickery, and psychologically coercive methods of interrogation; (b) these methods may, at times, cause innocent people to confess to crimes they did not commit; and (c) when coerced self-incriminating statements are presented in the courtroom, juries do not sufficiently discount the evidence in reaching a verdict. It is argued that the topic of confession evidence has largely been overlooked by the scientific community and that further research is needed to build a useful empirical foundation.

Broadening the typology of false confessions.
McCann, Joseph T.
American Psychologist, Vol 53(3), Mar, 1998. pp. 319-320.
Abstract:
Comments that S. M. Kassin’s (see record 1997-07781-003) attempt to provide a theoretical framework for conceptualizing the various types of false confessions is of value to the clinician who is called on in applied settings to evaluate issues pertaining to the voluntariness of confession or related issues. An attempt is made to broaden this conceptual framework to include other coercive factors that may impact on a particular case, in order that research might begin to focus on additional variables so that the framework will have even broader practical utility.

Accountability and the camera perspective bias in videotaped confessions.
Lassiter, G. Daniel, et.al.
Analyses of Social Issues and Public Policy (ASAP), Vol 1(1), Dec, 2001. pp. 53-70.
Abstract:
Prior research indicates that altering the perspective from which a videotaped confession is recorded influences assessments of the confession’s voluntariness. The present study examined whether increasing decision makers’ sense of accountability attenuates this biasing effect of camera perspective. Participants in a high-accountability (but not a low-accountability) condition were told that they would have to justify their judgments concerning the voluntary status of a videotaped confession to a trial judge. Although supplementary measures indicated that high-accountability participants processed information contained in the videotaped confession more carefully and thoroughly, the camera perspective bias persisted. This result adds to a growing body of work indicating that the criminal justice system needs to be seriously concerned with how it acquires and utilizes videotaped confession evidence.

Further evidence of a robust point-of-view bias in videotaped confessions.
Lassiter, G. Daniel, et.al.
Current Psychology: A Journal for Diverse Perspectives on Diverse Psychological Issues, Vol 21(3), Fal 2002. pp. 265-288.
Abstract:
Four experiments with 539 undergraduates were conducted to test possible limits on the previously demonstrated point-of-view bias in videotaped confessions. Study 1 showed that deliberation did not eliminate the bias. Study 2 showed that forewarning did not eliminate the bias. Study 3 showed that directing greater attention to the content of the confession did not eliminate the bias. Study 4 showed that using a lengthier, case-based confession also did not eliminate the bias. Taken together, this research clearly indicates that the legal system needs to be concerned with the potential for bias that exists in videotaped confessions.

Law enforcement perspectives on the use of trickery and deceit during the interrogation process.
Ruffin, James Leslie.
Dissertation Abstracts International Section A: Humanities and Social Sciences, Vol 63(1-A), Jul, 2002. pp. 339.
Abstract:
The current research examined the law enforcement officer perspective regarding the use of deceit and trickery during criminal interviews and interrogations. There are currently varied debates on the appropriateness of these techniques and the impact on criminal suspects. Legal scholars allege that these techniques violate the protections conceived with Miranda. Psychologists suggest the techniques place a suspect in a vulnerable position, a position that may cause false confessions. The courts have provided little guidance, leaving officers free to explore the boundaries of acceptable methods. The present research targeted the law enforcement community of federal, state, and local officers using a combined methodology of survey research and in-depth interviews. Eight hundred forty surveys were distributed nationally to those officers who regularly conduct interviews, and in-depth interviews were conducted with 16 additional officers. The survey consisted of 21 questions and 9 additional questions for demographic and training information. The survey was designed to collect information about what perceptions officers have about their use of trickery and deceit in order to obtain confessions, to identify their perceptions about the use of trickery and deceit as its use applies to the Miranda warnings, and to determine whether officers perceive trickery and deceit as a tactic that removes voluntariness from Miranda waivers and confessions. Results substantiate that officers believe trickery and deceit are an appropriate tool for law enforcement and that the use of the technique does not negatively impact Miranda. Further, officers believe the techniques are ethical and professional, and that departments should not establish guidelines restricting their use. Lastly, although officers felt Miranda was still a viable tool for the protection of civil rights, individual officers or departments should not be held civilly liable for violations of Miranda. The implications of these findings are discussed in light of what is being argued by those in the legal and social science fields.

Videotaped interrogations and confessions: A simple change in camera perspective alters verdicts in simulated trials.
Lassiter, G. Daniel, et.al.
Journal of Applied Psychology, Vol 87(5), Oct, 2002. pp. 867-874.
Abstract:
Prior research has indicated that altering the perspective from which a videotaped confession is recorded influences assessments of the confession’s voluntariness. The authors examined whether this camera perspective bias persists in more ecologically valid contexts. In Study 1, neither a realistic videotaped trial simulation nor potentially corrective judicial instruction was sufficient to mitigate the prejudicial effect of camera perspective on mock jurors’ assessments of voluntariness or on their all-important final verdicts. Study 2 suggests that perhaps the best camera perspective to use is one that focuses trial fact finders’ attention on the interrogator, as this particular vantage point may facilitate decision makers’ capacity to detect coercive influences, which in turn could, in some cases, improve assessments of the confession’s reliability.

Individual differences and false confessions: A conceptual replication of Kassin and Kiechel.
Horselenberg, Robert, Merckelbach, Harald, Josephs, Sarah
Psychology, Crime & Law, Vol 9(1), Mar, 2003. pp. 1-8.
Abstract:
In their study, S. M. Kassin and K. L. Kiechel (1996) falsely accused students of causing a computer crash and found that 69% of them were willing to sign a false confession, 28% internalized guilt, and 9% confabulated details to support their false beliefs. The authors interpreted these results to mean that false confessions can be easily elicited. However, in their study, false confessions were explicitly not associated with negative consequences. This study examined whether falseincriminating evidence may elicit false confessions in 34 female undergraduates (aged 18-22 yrs) when such confessionsare explicitly associated with financial loss. The authors also explored whether individual differences in compliance, suggestibility, fantasy-proneness, dissociation, and cognitive failures are related to false confessions. Methods were largely replicated from Kassin and Kiechel’s study. Data indicate that the large majority of participants (82%) were willing to sign a false confession. In about half of the participants, false confessions were accompanied by internalization and confabulation. There was no evidence that individual differences modulate participants’ susceptibility to false confessions. Taken together, this study replicates previous findings of Kassin and Kiechel.

The Psychology of Confessions: A Review of the Literature and Issues.
Kassin, Saul M., Gudjonsson, Gisli H.
Psychological Science in the Public Interest, Vol 5(2), Nov, 2004. Special issue: The Psychology of Confessions: A Review of the Literature and Issues. pp. 33-67.
Abstract:
Recently, in a number of high-profile cases, defendants who were prosecuted, convicted, and sentenced on the basis of false confessions have been exonerated through DNA evidence. As a historical matter, confession has played a prominent role in religion, in psychotherapy, and in criminal law-where it is a prosecutor’s most potent weapon. In recent years, psychologists from the clinical, personality, developmental, cognitive, and social areas have brought their theories and research methods to bear on an analysis of confession evidence, how it is obtained, and what impact it has on judges, juries, and other people. Drawing on individual case studies, archival reports, correlational studies, and laboratory and field experiments, this monograph scrutinizes a sequence of events during which confessions may be obtained from criminal suspects and used as evidence. First, we examine the preinterrogation interview, a process by which police target potential suspects for interrogation by making demeanor-based judgments of whether they are being truthful. Second, we examine the Miranda warning and waiver, a process by which police apprise suspects of their constitutional rights to silence and to counsel. Third, we examine the modern police interrogation, a guilt-presumptive process of social influence during which trained police use strong, psychologically oriented techniques involving isolation, confrontation, and minimization of blame to elicit confessions. Fourth, we examine the confession itself, discussing theoretical perspectives and research on why people confess during interrogation. Fifth, we examine the consequences of confession evidence as evaluated by police and prosecutors, followed by judges and juries in court. Finally, we address the role of psychologists as expert witnesses and suggest a number of possible safeguards. In particular, we argue that there is a need to reform interrogation practices that increase the risk of false confessions and recommend a policy of mandatory videotaping of all interviews and interrogations.

On the Psychology of Confessions: Does Innocence Put Innocents at Risk?
Kassin, Saul M., American Psychologist, Vol 60(3), Apr, 2005. pp. 215-228.
Abstract:
The Central Park jogger case and other recent exonerations highlight the problem of wrongful convictions, 15% to 25% of which have contained confessions in evidence. Recent research suggests that actual innocence does not protect people across a sequence of pivotal decisions: (a) In preinterrogation interviews, investigators commit false-positive errors, presuming innocent suspects guilty; (b) naively believing in the transparency of their innocence, innocent suspects waive their rights; (c) despite or because of their denials, innocent suspects elicit highly confrontational interrogations; (d) certain commonly used techniques lead suspects to confess to crimes they did not commit; and (e) police and others cannot distinguish between uncorroborated true and false confessions. It appears that innocence puts innocents at risk, that consideration should be given to reforming current practices, and that a policy of videotaping interrogations is a necessary means of protection.

Relationship between academic achievement and Miranda rights comprehension and false confessions.
Osman, Douglas A.
Dissertation Abstracts International: Section B: The Sciences and Engineering, Vol 66(3-B), 2005. pp. 1731.
Abstract:
Courts ordinarily consider a waiver of Miranda rights valid if the defendant understands the nature of the rights and appreciates the consequences of waiving those rights and offers a confession free from police coercion. Today, juvenile offenders face longer sentences and harsher punishments. Research is needed to evaluate which factors courts should consider in determining the validity of a juvenile’s waiver of rights and how these factors relate to Miranda comprehension and voluntariness of confessions. Previous research has found that age and IQ are significantly related to comprehension of Miranda rights in juveniles; however, research to date has not looked at the relationship between academic achievement and Miranda comprehension. The current research was conducted as part of a larger, ongoing study. For the current study, 73 male participants were assessed using the WASI, WIAT, and MRCI-II. This study hypothesized that academic achievement (composite scores from the WIAT), controlling for age and IQ, would predict Miranda comprehension and self-reported likelihood of offering a false confession. Multiple regression analyses failed to find significant relationships between academic achievement and overall Miranda comprehension, as well as self-reported likelihood of offering a false confession (as measured by the P-CHIP). Standard Language scores and two of the specific Miranda instruments were related, as were Listening Comprehension and FRI. Research and policy implications are discussed, and theories about the overall lack of significant findings are proposed.

Attributional Complexity and the Camera Perspective Bias in Videotaped Confessions.
Lassiter, G. Daniel, et.al.
Basic and Applied Social Psychology, Vol 27(1), Mar, 2005. pp. 27-35.
Abstract:
Prior research has established that simply altering the perspective from which a videotaped confession is recorded influences judgments of the confession’s voluntariness and the suspect’s guilt. This study examined whether, when evaluating a videotaped confession, a higher degree of attributional complexity would buffer people from the contaminating effects of camera perspective. We found that although people high and low in attributional complexity differed in their overall verdicts and voluntariness assessments, they were comparably swayed by the camera’s perspective. That is, consistent with prior demonstrations of the camera perspective bias, the proportion of guilty verdicts and the proportion assessing the confession was voluntary were both significantly greater when the camera focused on the suspect rather than focused equally on the suspect and the interrogator. Theoretical and practical implications of these findings are discussed.

Suspect personality, police interrogations, and false confessions: Maybe it is not just the situation.
Forrest, Krista D., et.al.
Personality and Individual Differences, Vol 40(3), Feb, 2006. pp. 621-628.
Abstract:
We empirically examined whether individual personality differences exist between people who falsely confess and internalize responsibility for an incident and those who do not. After completing personality inventories assessing authoritarianism, locus of control, interaction anxiousness, and fear of negative evaluation, as well as the Gudjonsson Suggestibility Scale (GSS 2), participants completed the Kassin and Kiechel (1996) computer paradigm for eliciting false confessions. Overall, 81.6% of the 98 participants confessed to and 59.2% internalized responsibility for the incident. Although none of the personality variables related to participant false confessions, locus of control, interaction anxiousness and authoritarianism all differed as a function of internalization.

Interrogations and Disputed Confessions: A Manual for Forensic Psychological Practice
Gregory DeClue (2005).  Professional Resource Press, Sarasota, Florida.

The roles of interrogation, perception, and individual differences in producing compliant false confessions.
Blair, J. P.
Psychology, Crime & Law, Vol 13(2), Apr, 2007. pp. 173-186.
Abstract:
This study utilized an experimental design to examine the amount of variance in false confessions that was explained by three types of variables. These variable sets were interrogation tactics, perceptions, and individual differences. The results indicated that interrogation tactics alone explained only a trivial amount of variance; whereas perceptions and individual differences each explained significant amounts of the variance in false confessions. The individual difference measure called interrogative compliance was found to be particularly important in explaining false confessions. Implications for theory are discussed.

Research and Expert Testimony on Interrogations and Confessions.
Costanzo, Mark, Leo, Richard A.
Expert psychological testimony for the courts. Costanzo, Mark (Ed.); Krauss, Daniel (Ed.); Pezdek, Kathy (Ed.); pp. 69-98. Mahwah, NJ, US: Lawrence Erlbaum Associates Publishers, 2007. vi, 321 pp.
Abstract:
Scholars have long pointed out the importance of interrogation and the potential for false confessions, but there have been at least two significant obstacles to empirical research in this important area. First, it is often difficult to know for certain whether a contested confession is truly false. Consequently, the development of DNA identification technology in the 1990s, and the resulting exoneration of innocent prisoners, provided a major boost to research on this topic by helping scholars identify scores of proven false confessions to serious crimes. A second obstacle has been the difficulty of studying false confessions in the psychological laboratory. A realistic, convincing laboratory simulation of a police interrogation would require that the experimenter induce levels of stress in research participants that would violate ethical standards. Moreover, the crushing potential consequences of a false confession–a trial and possible prison sentence–cannot be fully simulated in the laboratory. We do not know–and it may be impossible to know–how many false confessions occur each year or what percentage of confessions are false. However, based on aggregated case studies by the Innocence Project and others, we do know that approximately 14% to 25% of known wrongful convictions appear to involve false confessions–that is, a false confession was the primary or sole evidence against the defendant. We also know that a confession has a powerful impact on the outcome of a case. In sum, all the available evidence indicates that a confession is extremely difficult for jurors to discount or ignore, even if that confession is false, even if it is coerced, and even when there is little corroborating evidence.

Effects of personality, interrogation techniques and plausibility in an experimental false confession paradigm.
Klaver, Jessica R., Lee, Zina, Rose, V. Gordon
Legal and Criminological Psychology, Vol 13(1), Feb, 2008. pp. 71-88.
Abstract:
Purpose: The goal of the present study was to investigate the effects of personality variables, interrogation techniques and the plausibility level of an alleged transgression on the experimental elicitation of false confessions. Methods: Two hundred and nineteen undergraduate students assessed on measures of compliance, self-esteem, locus of control and interrogative suggestibility participated in the Kassin and Kiechel (1996) paradigm. Experimental manipulations included minimization and maximization interrogation techniques and high and low plausibility of the alleged typing mistake to examine rates of false confession and internalization. Results: The overall false confession and internalization rates across all conditions were 43 and 10%, respectively. An increased likelihood of false confession behaviour was associated with higher Shift scores on the Gudjonsson Suggestibility Scale, the use of minimization interrogation techniques and an increase in the plausibility of the allegation. Females were more likely to falsely confess than males in the high plausibility condition, whereas Caucasian and Asian participants were equally likely to falsely confess. Personality variables, such as compliance, most influenced the behaviour of males and Asians. Conclusions: The results of this study offer insight into false confession behaviour, suggesting that individuals who have a tendency to change their responses in the face of negative feedback may be more prone to false confession behaviour. The findings also serve to highlight the dangers of using minimization interrogation techniques and elucidate the limited generalizability of the paradigm to situations in which the alleged transgression is less plausible.

False confessions: Causes, consequences, and implications for reform.
Kassin, Saul M.
Current Directions in Psychological Science, Vol 17(4), Aug, 2008. pp. 249-253.
Abstract:
Despite the commonsense belief that people do not confess to crimes they did not commit, 20 to 25% of all DNA exonerations involve innocent prisoners who confessed. After distinguishing between voluntary, compliant, and internalized false confessions, this article suggests that a sequence of three processes is responsible for false confessionsand their adverse consequences. First, police sometimes target innocent people for interrogation because of erroneous judgments of truth and deception. Second, innocent people sometimes confess as a function of certain interrogation tactics, dispositional suspect vulnerabilities, and the phenomenology of innocence. Third, jurors fail to discount even those confessions they see as coerced. At present, researchers are seeking ways to improve the accuracy of confessionevidence and its evaluation in the courtroom.

Confession evidence: Commonsense myths and misconceptions.

Kassin, Saul M., Criminal Justice and Behavior, Vol 35(10), Oct, 2008. pp. 1309-1322.

Abstract:

Confession evidence is powerful but flawed, often in nonintuitive ways. Contradicting widely held beliefs, research reviewed in this article suggests the following: Despite special training in how to conduct interviews, police cannot distinguish better than the layperson whether suspects are lying or telling the truth. Suspects in custody routinely waive their self-protective rights to silence and to counsel–especially if they are innocent. Certain legal but deceptive interrogation tactics increase the risk that innocents will confess to crimes they did not commit. Judges and juries are easily fooled, unable to distinguish between true and false confessions. Appellate courts cannot be expected to reasonably determine whether the error of admitting a coerced confession at trial was harmless or prejudicial.

Camera perspective bias in videotaped confessions: Evidence that visual attention is a
Ware, Lezlee J., et.al.
Journal of Experimental Psychology: Applied, Vol 14(2), Jun, 2008. pp. 192-200.
Abstract:
Several experiments have demonstrated a camera perspective bias in evaluations of videotaped confessions: videotapes with the camera focused on the suspect lead to judgments of greater voluntariness than alternative presentation formats. The present research investigated potential mediators of this bias. Using eye tracking to measure visual attention, Experiment 1 replicated the bias and revealed that changes in camera perspective are accompanied by corresponding changes in duration of fixation on the suspect and interrogator. A path analysis indicated that visual attention partially mediated the bias, with at least one additional factor independently contributing to it. A proposed second factor was changes in available visual content that naturally coincide with alterations in camera perspective. Experiment 2 directly manipulated observers’ focus and thus more conclusively established visual attention as one mediator of the camera perspective bias. Together the two experiments provide plausible evidence that differences in visual content may also mediate the bias.

Deception, coercion, and the limits of interrogation.
Appelbaum, Paul S.
Psychiatric Services, Vol 60(4), Apr, 2009. pp. 422-424.
Abstract:
This column discusses the recent case of U.S. v. Boskic to highlight issues related to voluntariness—in particular, the voluntariness of a confession. At a meeting with U.S. government agents, Boskic, a Croat from Bosnia living in the United States, confessed to involvement in the 1995 Srebrenica massacre. The agents had deceived him about the meeting’s purpose and did not disclose that they had a warrant for his arrest. The courts were asked to decide whether the confession was involuntary, and thus not admissible as evidence, on the basis of whether the deception was coercive.

Police–induced confessions: Risk factors and recommendations.
Kassin, Saul M., Drizin, Steven A., Grisso, Thomas, Gudjonsson, Gisli H., Leo, Richard A., Redlich, Allison D.
Law and Human Behavior, Vol 34(1), Feb, 2010. pp. 3-38.
Abstract:
Recent DNA exonerations have shed light on the problem that people sometimes confess to crimes they did not commit. Drawing on police practices, laws concerning the admissibility of confession evidence, core principles of psychology, and forensic studies involving multiple methodologies, this White Paper summarizes what is known about police-inducedconfessions. In this review, we identify suspect characteristics (e.g., adolescence; intellectual disability; mental illness; and certain personality traits), interrogation tactics (e.g., excessive interrogation time; presentations of false evidence; and minimization), and the phenomenology of innocence (e.g., the tendency to waive Miranda rights) that influence confessions as well as their effects on judges and juries. This article concludes with a strong recommendation for the mandatory electronic recording of interrogations and considers other possibilities for the reform of interrogation practices and the protection of vulnerable suspect populations.

Interrogative suggestibility: Life adversity, neuroticism, and compliance.
Drake, Kim E.
Personality and Individual Differences, Vol 48(4), Mar, 2010. pp. 493-498.
Abstract:
This study investigates the relationship between the number and intensity of negative life events experienced (nNLE and iNLE respectively), neuroticism (N), compliance (C), and interrogative suggestibility on the Gudjonsson Suggestibility Scale 1 (GSS 1). Participants (N = 127) completed the GSS1, the Life Events Questionnaire, and the NEO Personality Inventory-Revised. Results show that nNLE correlates significantly with both Yield 1 and Yield 2. Blended models including iNLE and N as independent variables, C as the mediator, and GSS scores as dependent variables provide the most acceptable accounts of GSS scores. The models demonstrate that: (i) the effects of iNLE, N and C on Yield 1 are not statistically significant, (ii) iNLE (but not N or C) exerts a significant and positive direct effect on Yield 2, and (iii) iNLE, N and C exert significant and positive direct effects on shift scores. Findings suggest that answer-shifting on the GSS may result from a negative mindset within interviewees, a desire to alleviate distress, and from compliant tendencies in response to feelings of uncertainty and expectations of success. They further imply that false confessions, in interviewees reporting iNLEs, could also result from compliance with interviewer-pressure or negative feedback during questioning.

Evaluations of competency to waive Miranda rights and coerced or false confessions: Common pitfalls in expert testimony.
Frumkin, I. Bruce
Police interrogations and false confessions: Current research, practice, and policy recommendations. Lassiter, G. Daniel, (Ed); Meissner, Christian A., (Ed); pp. 191-209; Washington, DC, US: American Psychological Association; 2010. xviii, 250 pp.
Abstract:
A forensic psychological evaluation of a specific defendant can provide relevant data to the court regarding those psychological characteristics that heighten the risk of a false confession and impact the voluntariness of a confession or Miranda waiver. Also, an evaluation oriented toward a defendant’s ability at the time of the police interrogation to understand and appreciate the Miranda warnings can assist the court in determining the competency of a defendant to have made a knowing and intelligent waiver of those rights. A number of evaluation protocols have been proposed in the literature for conducting such evaluations. There are many more similarities than differences in how these evaluations should be conducted. Yet, to date, there has not been a detailed analysis of the common errors or pitfalls psychologists make when conducting these evaluations and their subsequent testimony in court. This chapter is divided into five parts. It discusses psychologists’ involvement in the evaluation of competency to waive Miranda rights and the use of the so-called Grisso tests. There is a discussion on evaluations relevant to issues of the voluntariness of a Miranda waiver and confession, the validity of a confession, and in particular, the use of the Gudjonsson Suggestibility Scales (GSS). The chapter also discusses potential errors or pitfalls psychologists make when using and testifying about both the Grisso tests and the GSS, respectively. The chapter closes with a discussion of admissibility issues pertinent to expert testimony.

Police Interrogations and False Confessions: Current Research, Practice, and Policy Recommendations (Decade of Behavior)
[Book] Daniel Lassiter (Editor), Christian A. Meissner (Editor) Series: Decade of Behavior, Publication Date: March 2010.
Book Description
Although it is generally believed that wrongful convictions based on false confessions are relatively rare the 1989 Central Park jogger wilding case being the most notorious example recent exonerations of the innocent through DNA testing are increasing at a rate that few in the criminal justice system might have speculated. Because of the growing realization of the false confession phenomenon, psychologists, sociologists, and legal/law-enforcement scholars and practitioners have begun to examine the factors embedded in American criminal investigations and interrogations that may lead innocent people to implicate themselves in crimes they did not commit. Police Interrogations and False Confessions brings together a group of renowned scholars and practitioners in the fields of social psychology, cognitive psychology, developmental psychology, criminology, clinical-forensic psychology, and law to examine three salient dimensions of false confessions: interrogation tactics and the problem of false confessions; review of Supreme Court decisions regarding Miranda warnings and custodial interrogations; and new research on juvenile confessions and deception in interrogative interviews. Chapters include well-recognized programs of research on the topics of interrogative interviewing, false confessions, the detection of deception in forensic interviews, individual differences, and clinical-forensic evaluations. The book concludes with policy recommendations to attenuate the institutional and social psychological persistence (and pervasiveness) of the various inducements and impediments that have informed law enforcement s interrogation techniques and the types of false confessions they encourage.

Selling confession: Setting the stage with the “sympathetic detective with a time-limited offer”.
Davis, Deborah, Leo, Richard A., Follette, William C.
Journal of Contemporary Criminal Justice, Vol 26(4), Nov, 2010. pp. 441-457.
Abstract:
The effectiveness of an interrogation tactic dubbed the “sympathetic detective with a time limited offer” was tested. Participants read two versions of an interrogation transcript, with and without the tactic. Those who read the sympathetic detective version believed the detective had greater authority to determine whether and with what to charge the suspect, more beneficent intentions toward the suspect, and viewed confession as more wise. However, regression analyses indicated that for innocent suspects, only perceptions of the strength of evidence against the suspect and the detective’s beneficence and authority predicted the perceived wisdom of false confession. Interrogation tactics were generally effective, as indicated by participant recommendations of confession (vs. invoking Miranda, denial, or continuing to talk without admitting guilt) for both innocent (16.7%) and guilty (74.4%) suspects, and reasons offered for participants’ recommendations for confession versus other choices generally conformed to those reported by real-life confessors and interrogation scholars.

Formal assessment of voluntariness with a three-part consent process
Paul G Stiles, et.al.
Psychiatr Serv, 2011 Jan;62(1):87-9.
Abstract
Informed consent that is voluntary and made by an individual who is knowledgeable and competent is a foundational requirement for protecting human subjects from harm and exploitation that could result from research participation. In 1974 Miller and Willner proposed a two-part consent process that involved disclosure of information and assessment of comprehension. The authors propose a brief third component to the consent process: assessment of voluntariness. Three steps are involved: generate a list of potential coercive influences on the basis of the research population and the study context, develop a set of questions to assess the presence and intensity of the impact of these influences, and identify alternative courses of action should coercion be identified.

Inside interrogation: The lie, the bluff, and false confessions.
Perillo, Jennifer T., Kassin, Saul M.
Law and Human Behavior, Vol 35(4), Aug, 2011. pp. 327-337.
Abstract:
Using a less deceptive variant of the false evidence ploy, interrogators often use the bluff tactic, whereby they pretend to have evidence to be tested without further claiming that it necessarily implicates the suspect. Three experiments were conducted to assess the impact of the bluff on confession rates. Using the Kassin and Kiechel (Psychol Sci 7:125–128, 1996) computer crash paradigm, Experiment 1 indicated that bluffing increases false confessions comparable to the effect produced by the presentation of false evidence. Experiment 2 replicated the bluff effect and provided self-reports indicating that innocent participants saw the bluff as a promise of future exoneration which, paradoxically, made it easier to confess. Using a variant of the Russano et al. (Psychol Sci 16:481–486, 2005) cheating paradigm, Experiment 3 replicated the bluff effect on innocent suspects once again, though a ceiling effect was obtained in the guilty condition. Results suggest that the phenomenology of innocence can lead innocents to confess even in response to relatively benign interrogation tactics.

Conviction of the innocent: Lessons from psychological research.
Cutler, Brian L., (Ed.), Washington, DC, US: American Psychological Association, 2012. xiv,
Abstract:
(from the publicity materials) Over the last several decades over 250 citizens convicted of major felonies were found innocent and were exonerated. Today, thanks to the work of psychologists and other criminal justice researchers, the psychological foundations that underlie conviction of the innocent are becoming clear. There is real hope that these findings can lead to positive reforms, reduce the risk of miscarriages of justice, and avoid the consequences of wrongful convictions to victims and society. In this book, editor Brian Cutler presents a state-of-the-field review of current psychological research on conviction of the innocent. Chapter authors investigate how the roles played by suspects, investigators, eyewitnesses, and trial witnesses and how pervasive systemic issues contribute to conspire to increase the risk of conviction of the innocent. The chapters skillfully examine psychological perspectives on such topics as police interrogations, confessions, eyewitness identification, trial procedures, juries, and forensic science, as well as broader issues such as racism and tunnel vision within the justice system. This comprehensive volume represents an important milestone for research on miscarriages of justice. By bringing psychological theories and research to bear on this social problem, the authors derive compelling recommendations for future research and practical reform in police and legal procedures.

Harmless error analysis: How do judges respond to confession errors?
Wallace, D. Brian and Kassin, Saul M.
Law and Human Behavior, Vol 36(2), Apr, 2012. pp. 151-157.
Abstract:
In Arizona v. Fulminante (1991), the U.S. Supreme Court opened the door for appellate judges to conduct a harmless error analysis of erroneously admitted, coerced confessions. In this study, 132 judges from three states read a murder case summary, evaluated the defendant’s guilt, assessed the voluntariness of his confession, and responded to implicit and explicit measures of harmless error. Results indicated that judges found a high-pressure confession to be coerced and hence improperly admitted into evidence. As in studies with mock jurors, however, the improper confession significantly increased their conviction rate in the absence of other evidence. On the harmless error measures, judges successfully overruled the confession when required to do so, indicating that they are capable of this analysis.

An explanation for camera perspective bias in voluntariness judgment for video-recorded confession: Suggestion of cognitive frame.
Park, Kwangbai, et.al.
Law and Human Behavior, Vol 36(3), Jun, 2012. pp. 184-194.
Abstract:
Three experiments were conducted to test the hypothesis that difference in voluntariness judgment for a custodial confession filmed in different camera focuses (‘camera perspective bias’) could occur because a particular camera focus conveys a suggestion of a particular cognitive frame. In Experiment 1, 146 juror eligible adults in Korea showed a camera perspective bias in voluntariness judgment with a simulated confession filmed with two cameras of different focuses, one on the suspect and the other on the detective. In Experiment 2, the same bias in voluntariness judgment emerged without cameras when the participants were cognitively framed, prior to listening to the audio track of the videos used in Experiment 1, by instructions to make either a voluntariness judgment for a confession or a coerciveness judgment for an interrogation. In Experiment 3, the camera perspective bias in voluntariness judgment disappeared when the participants viewing the video focused on the suspect were initially framed to make coerciveness judgment for the interrogation and the participants viewing the video focused on the detective were initially framed to make voluntariness judgment for the confession. The results in combination indicated that a particular camera focus may convey a suggestion of a particular cognitive frame in which a video-recorded confession/interrogation is initially represented. Some forensic and policy implications were discussed.

Conceptualizing defendants as minorities leads mock jurors to make biased evaluations in retracted confession cases.
Pickel, Kerri L., et.al.Psychology, Public Policy, and Law, Vol 19(1), Feb, 2013. pp. 56-69.
Abstract:
Criminal suspects who confess during interrogations sometimes retract their confessions and go to trial. Jurors must then evaluate the voluntariness and authenticity of the confession and determine guilt. Previous research indicates that focusing the camera on the detective and defendant equally (rather than on the defendant alone) while recording the interrogation protects defendants from a salience bias produced by the camera perspective. We demonstrated that, even with an equal-focus video, a salience bias can occur if jurors conceptualize a defendant as a member of a minority group and therefore see the defendant as distinctive. In two experiments, mock jurors viewed an equal-focus confession video embedded within a murder trial. The defendant’s physical appearance remained constant; however, when jurors believed he was a minority rather than a majority group member, they directed more visual attention toward him, rated his confession as more voluntary, authentic, and incriminating, and considered him more likely guilty. Contrary to our prediction, the defendant’s minority status did not interact with his apparent motive (Experiment 1). However, the detective’s use of a false evidence ploy during interrogation led jurors to evaluate the defendant less negatively on most measures (Experiment 2), although verdicts were unaffected.

Examining the judicial decision to substitute credibility instructions for expert testimony on confessions.
Gomes, Dayna M., et.al.
Legal and Criminological Psychology, Vol 21(2), Sep, 2016. pp. 319-331.
Abstract:

Purpose: The present study tested the judicial decision to deny false confession expert testimony on the basis that jury instructions are sufficient to aid jurors in their determinations of disputed confession evidence.

Methods: Three groups of mock jurors (N = 150) were presented with a trial summary that included a videotaped re‐enactment of an interrogation in which the interrogator used a maximization ploy. One group received expert testimony in the trial summary, another group received credibility instructions, and a control group received neither. All participants received standard reasonable doubt instructions at the end of the trial summary and then answered questions such as their verdict in the case, the defendant’s likelihood of guilt, and the voluntariness of the defendant’s confession.

Results: The results showed a high rate of conviction that was only reduced when participants received expert testimony. Across all measures, no significant differences were found between the control and credibility instruction groups.

Conclusions: The results suggest that credibility instructions are not comparable to expert testimony in influencing jurors’ judgments of disputed confession evidence. These findings do not support the judicial decision to deny expert testimony on the basis that credibility instructions alone are sufficient to aid potential jurors in their evaluations of confession evidence. Avenues for future research on expert testimony and jury instructions in confession cases are discussed.

Can expert testimony sensitize jurors to coercive interrogation tactics?
Jones, Angela M. and Penrod, Steven.
Journal of Forensic Psychology Practice, Vol 16(5), Oct, 2016. pp. 393-409.
Abstract:
Lay knowledge concerning false confession risk factors appears to be insufficient to safeguard against wrongful convictions, and research on false confession expert testimony has not led to a clear understanding of its impact on juror decision making. Thus, the current study sought to clarify whether expert testimony can induce sensitivity to a wide variety of false confession risk factors. Furthermore, jurors bring a variety of predispositions into the courtroom that may shape the way they view evidence. Yet, little research has evaluated the impact of individual differences in cases involving confession evidence. The current study assessed 330 participants’ self-reported likelihood of falsely confessing. These participants subsequently read an abbreviated criminal trial transcript where the defendant confessed to committing murder, but later recanted. We varied police use of four psychologically coercive interrogation techniques as well as the presence of expert testimony during the trial. Generally, participants were not sensitive to variations in the psychological coerciveness of the interrogation with or without an expert. However, self-reported likelihood of falsely confessing influenced perceptions of the detective and confession voluntariness, which in turn predicted verdict decisions. Increasing belief that one could falsely confess decreased the likelihood of conviction by decreasing perceptions of detective credibility and confession voluntariness. The results suggest the need to take into account individual differences of jurors who evaluate confession evidence. Current remedies may also need modification to assist jurors in deciphering confession evidence quality.

The interdependence of perceived confession voluntariness and case evidence.
Greenspan, Rachel and Scurich, Nicholas.
Law and Human Behavior, Vol 40(6), Dec, 2016. pp. 650-659.
Abstract:
The current research investigated the mechanisms by which perceptions of confession evidence both influence and are influenced by perceptions of other case evidence using the theoretical framework of coherence-based reasoning (CBR). CBR posits that ambiguity and uncertainty are eschewed by artificially imposing consistency between pieces of evidence through bidirectional reasoning: Inferences about evidence lead to a preferred verdict, which in turn radiates backward to influence the perception of evidence. Two studies tested the CBR account with regard to confessions. An online sample of participants evaluated confession and nonconfession evidence at pretest and posttest. Study 1 revealed that, during pretest, participants (N = 119) deemed the evidence independent and nonprobative and the confession to be voluntary. However, at posttest, in the context of a criminal trial, participants considered the same evidence interrelated and highly inculpatory or exculpatory, depending on their verdict. Moreover, participants who voted to convict deemed the confession substantially voluntary, whereas participants who voted to acquit deemed it involuntary. Study 2 experimentally manipulated the strength of the nonconfession evidence in an effort to push participants (N = 127) toward a particular verdict. The same patterns of results emerged but were conditional on the strength of the nonconfession evidence: Strong case evidence caused the confession to be perceived as more voluntary, despite the fact that the confession was held constant. These findings replicate the coherence effect in a new domain and suggest that judges conducting harmless error analysis or making admissibility decisions might underappreciate the impact of confession evidence on jurors’ verdicts.

Interrogation: a review of the science.
High-Value Detainee Interrogation Group
September 2016

• • This report was reviewed by FBI, CIA, USD(I), DIA, USMC, and Army G2X. (p2)
  • Strategically introduce evidence or information.

Without revealing the evidence or information, the interrogator asks the subject to provide a free narrative about a particular topic. He then asks the subject to repeat the same narrative and follows with specific questions in order to pin the subject down to his exact version of the event he is describing. Once such details are elicited, the interrogator introduces a piece of evidence or information (in terms of a vague source and low specificity) and asks the subject to explain it. The interrogator then introduces the evidence or information with a greater precision in terms of source and a higher degree of specificity, and again asks the subject to explain it. The interrogation team makes notes of the subject’s within-statement and between-statement inconsistencies. P.7

• • Recording the interview

The number of American states requiring law enforcement officers to electronically record some or all interviews conducted with suspects in their custody has grown from two to at least 22 since 2003 [172]. On May 22, 2014, the U.S. Department of Justice announced a substantial change in its policy, creating a presumption that the FBI, Drug Enforcement Agency, Bureau of Alcohol, Tobacco, Firearms and Explosives, and United States Marshals Service will electronically record their custodial interviews [173].

Arguments in favor of this practice, which were made as early as the 1930s [174-177], have included the need for a good record of the proceedings [178-181], addressing disparities in perceptions or preconceived biases [178,182], including differences in how statements are interpreted [183]; deterring police misconduct; reducing the number and length of motions to suppress confessions; and ensuring that the essence of the Miranda warning was not eschewed when presented to suspects (178,184-187]. In addition, juries are increasingly finding it implausible that a video record was not easily accomplished and are inferring that the motivation for failing to record was to hide some aspect of the proceedings [178,181,188]. An important factor in favor of video or audio recording is that it relieves the interrogator from note taking, which is distracting [178,181], allows for others to review the interrogation [178,179], and can be used to provide a transcript of the proceedings.

There is no evidence that video or audio recording affects cooperation or confessions [189], and police agencies that have implemented video recording of interrogations have reported the change as positive in almost all instances [179,190]. (p.32)

Research-based instructions induce sensitivity to confession evidence.
Jones, Angela M. and Penrod, Steven.
Psychiatry, Psychology and Law, Vol 25(2), Apr, 2018. pp. 257-272.
Abstract:
Evidence is mixed on whether or not laypersons have sufficient knowledge of false confession risk factors. Procedural safeguards such as judicial instructions may assist jurors who are unable to effectively evaluate confession evidence. Participants were randomly assigned to one of five conditions that varied in the quality of a confession and the presence of instructions on coercive interrogation techniques. The results indicate that instructions induce sensitivity by altering verdict decisions and perceptions of evidence strength and confession voluntariness in line with the quality of the interrogation. Furthermore, the presence of instructions in low-quality interrogations resulted in participants completely discounting the confession. These findings suggest that research-based instructions on coercive interrogation techniques may be an effective safeguard against the use of potentially unreliable confession evidence.

The Cutting Edge of Confession Evidence: Redefining Coercion and Reforming Police Interrogation Techniques in the American Criminal Justice System
Dylan J. French (2019).
Texas Law Review, Vol. 97:1031-1060
Abstract
The American criminal justice system is at a tipping point. The Reid accusatory model of interrogation, which has for decades defined interrogation in the United States, is struggling to hold back a growing body of literature in the social sciences condemning such techniques and advocating for reform. While social scientists have for years criticized accusatory interrogation techniques by showing how certain techniques unnecessarily increase the risk of false confessions, this criticism has only led to marginal change. Accusatory interrogation techniques still exist within law enforcement, and courts continue to admit confessions elicited using these techniques.

Unlike previous articles on confession evidence, this Note is not a critique of the totality-of-the-circumstances test or an analysis of the current state of voluntariness law. Rather, this Note analyzes the disconnect between the courts and the social sciences, focusing on how the courts’ outdated understanding of coercion has impacted the evaluation of confession evidence and fueled the continued existence of the Reid accusatory model of interrogation. Recognizing this disconnect, the Note maps out three paths away from the accusatory interrogation techniques of the past, toward a new understanding of coercion and a reformed, more reliable system of interrogation in the American criminal justice system.

“2. Videotaping Should Be Required for All Custodial Interrogations.

Videotaping is one of the least controversial reforms; its benefits are numerous and well-documented. For instance, videotaping creates a record of the proceedings that can be used to address disparities in perceptions or preconceived biases as well as differences in how statements are interpreted. It deters police misconduct and assures that Miranda warnings were properly presented to suspects. And it reduces the number and length of motions to suppress, thereby decreasing congestion in the courts. In short, “[r]ecording an interrogation is the most accurate means of preserving what happened in an interrogation room . . . .” While twenty-five states and D.C. currently require custodial interviews to be videotaped, and over one thousand jurisdictions have voluntarily implemented videotaping policies, a significant portion of the United States still needs to follow suit.” (p.1056)

4. False Evidence Has No Place in the Interrogation Room.

Research in the social sciences has demonstrated how deceptive police tactics cause false confessions. Nonetheless, suggestions that police should be limited in their use of such tactics draw fierce resistance. The strongest opposition comes from law enforcement officials, arguing that “lying is sometimes a necessary evil, effective, and without risk to the innocent.” While a per se rule against all use of police trickery and deception may be desirable, such a rule would likely be unworkable given the pervasiveness of such tactics and the inevitability of some trickery and deceit inherent in any accusatory model of interrogation. A more reasonable reform would be to specifically bar the use of false evidence. While this suggestion would still face some resistance from law enforcement, it strikes a more reasonable balance between preserving society’s interest in exposing criminals and protecting the individual’s interest in being free from unduly coercive interrogation tactics.

This reform would bar police from both misrepresenting the existence of evidence and confronting the suspect with fabricated evidence—two ploys proven to increase the risk of false confessions.204 It would prohibit falsely telling suspects such as Martin Tankleff that their father had awakened at the hospital and identified them as the attacker, or an investigator telling a suspect that the police had a “Neutron Proton Negligence Intelligence Test” that could prove they fired the murder weapon. It would prevent the police from confronting a suspect with fabricated visual props, such as a thick case file full of empty pages, videotapes, or fingerprint cards. And it would put an end to the common ploy of confronting a suspect with falsified results from a polygraph or DNA test.

(p.1057-1058)

*204. Saul M.Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 LAW & HUM. BEHAV. 3, 30 (2010). At 28, “From a convergence of three sources, there is strong support for the proposition that outright lies can put innocents at risk to confess by leading them to feel trapped by the inevitability of evidence against them.”