False Confessions / Admissions

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Background

The phenomenon of false confessions is not a recent development. In the United States, false confessions date back to the Salem Witch Trials of 1692. In this period, it was common for accusations of witchcraft to lead to false confessions.[1]

Today, false confessions are a leading cause of error in wrongful convictions. In about 25% of DNA exoneration cases, innocent defendants have made self-incriminating statements, delivered outright confessions, or pled guilty.[2] Because false confessions are generally discovered through subsequent exonerations, the overall frequency of false confessions is unknown.[3]

Persuasiveness of Confessions

Confessions are considered extremely persuasive evidence of guilt and are perhaps the most damaging evidence a prosecutor can present at trial.[4] Of crimes that are solved, the majority are solved as result of a confession obtained through police interrogation.[5] Despite widespread evidence that false confessions occur, juries have difficulty believing an innocent person would confess to a crime they did not commit.[6]

Why do Innocent People Confess?

Most people, particularly members of the jury acting as the fact-finder, have difficulty comprehending that an innocent person may confess to a crime he did not commit. However, false confessions are not uncommon. Some common elements that can lead to a false confession are:

  • Duress
  • Coercion
  • Intoxication
  • Diminished Capacity
  • Mental Impairment
  • Ignorance of the Law
  • Fear of violence
  • Threat of Harm
  • Misunderstanding of the Situation

Understanding what can lead to a false confession is the key to recognizing one in the future.[7]

Traits of Coerced, Forced, and False Confessions

Defense attorneys are responsible for investigating any confessions made by clients. Many people misunderstand coercion to include only physical torture. However, police investigators often employ psychologically coercive techniques that can also lead to false confessions. Attorneys unfamiliar with or inexperienced with false confessions may inappropriately counsel their clients to plead guilty based on the false confession to avoid harsh sentences at trial.[8] Common elements that increase the likelihood a confession is false include:

Coerced Confession Forced Confession False Confession
Pressure Physical Threats Youth
Deception Emotional Threats Mental Health Issues
Persuasion Isolation Linguistic Clues
Mental Health Issues Deprivation of Food Inaccurate Answers
False Promises Physical Contact Non-Responsive
False Facts Several Interrogators Contradictions
Youth Length of Detention Exaggeration
Low Self-Esteem Fear Desire to Please


All of the elements listed above can contribute to a client making a false confession. Defense attorneys should obtain any evidence surrounding the confession including police recordings of the interrogation and subsequent confession. In addition, it is important to interview your client and the interrogating police officers. Ask the client what happened and look for any discrepancies between their story and the confession. Remember to never presume the client is guilty, even if they have "confessed" to the police.[9]

Types of False Confessions

There are three types of false confessions: Voluntary, Compliant and Persuaded or Internalized.[10]

Voluntary Confessions:

A voluntary confession is one that occurs in the absence of police coercion. Typically the individual learns about the crime and contacts the police. Sometimes it is the result of pressure from third parties or the result of a mental illness. For instance, sometimes people confess to protect the real criminal or provide an alibi for another crime. In high profile cases, voluntary confessions may result from a desire for attention or self-punishment.

Voluntary false confessions tend to be an anomaly and the result of a personal choice.[11]


Compliant False Confessions:

Compliant false confessions are given in response to police coercion, stress or pressure. Compliant confessions occur when the confessor knows that he is innocent and that what he is saying is false. A variation of the compliant false confession is the coerced compliant false confession in which a confessor is convinced that he is trapped and the best solution is to confess in spite of his innocence. Typically the pressure of the interrogation process has become so overwhelming that the suspect is willing to agree to anything to avoid being questioned further. The confession is typically offered in exchange for a promise by the police, either for the defendant to return home, to end to the interview, or to protect the suspect's family. The perception from the confessor's perspective is that the immediate gain of ending interrogation outweighs the long-term consequences of confessing.[12] Many suspects do not understand that any kind of confession tends to be very persuasive to the fact-finder. Whether or not it is retracted in the future, the impact of the confession on the fact finder remains powerful.


Persuaded or Internalized False Confessions:

The third type is persuaded or internalized false confession, in which the suspect becomes convinced that he may have committed the crime. The suspect doubts his own innocence, and then is persuaded that he must have committed the crime without remembering. In this type of false confession, the suspect actually believes that he may be guilty. Memory lapses contribute to this belief, whether as a result of amnesia or other causes. Coercive tactics and techniques are used to engender self-doubt and create a false reality for the suspect. Coercive interrogation techniques will be explained in greater detail below.[13]

Coercive Interrogation Techniques

The police officer's goal is to make the suspect confess. Your goal as the defense attorney is to prevent any undue coercion or bullying tactics. While most of the below factors can and probably will be present during police interrogation, any can contribute to false confessions. It is your job as the defense attorney to look for all of these factors and then evaluate whether your client was coerced on a case-by-case basis.[14]


Coercive Tactics:

  • Repeated Statements by Investigators of Client's Guilt
  • Repeated Reminders of Memory Lapses
  • Withholding Information
  • Isolation from Family, Friends and/or Legal Defender
  • Lengthy Interrogation
  • Emotionally Intense Interrogation
  • Presentation of "Scientific Evidence" without Explanation
  • Creating a Hostile Environment, where the Accused Fears Denying Guilt
  • Physical Threats or Physical Abuse


As the defender, it is your responsibility to look for evidence of any coercion. All legal defenders should be present during interrogation. If you cannot be physically present, try to obtain any recordings of the interrogation and look for coercion. Recordings are the best way to decrease the likelihood of false confessions. They have been shown to decrease coercion and increase the reliability of confessions as evidence. Be sure to listen for any prevarications by your client, such as:


Typical Prevarications:

  • "I guess I must have . . ."
  • "I think I did this next . . ."
  • "If what you said is true, then . . ."
  • "I just want to get this over with . . ."
  • "If I tell you what happened, can I go home?"


Any of the above phrases point to coercion and uncertainty, but remember to evaluate the confession as a whole, not individual statements.[15]

Confession Contamination

One of the problems with false confessions is that the confession often includes details that theoretically only the perpetrator should know. But, often the police supply details of the crime during interrogation to encourage confession. As a result, the confessor appears guilty because of his perceived knowledge of the crime. This issue is particularly problematic when presented to a jury.

Case Studies

  • Eddie Joe Lloyd:

Eddie Joe Lloyd provides a good example of an individual with a mental illness being coerced by the police. Lloyd was convicted of the 1984 murder of a 16 year old girl in Detroit. He had written to the police with suggestions on how to solve recent crimes and was brought in for questioning. During several interviews, the police fed details of the crime to Lloyd, and convinced him that by confessing he was helping them find the real killer. He eventually signed a confession and gave a tape-recorded statement despite his innocence. In 2002, DNA testing proved that Lloyd was innocent and he was exonerated.

This is an example of confession contamination. From the jury's perspective, Lloyd had confessed with details that only the killer could have known. The jury was not given evidence of the police's interference. As a result of this case, Detroit Police officials agreed to begin videotaping interrogations.[16]


  • Edgar Garrett:

Edgar Garrett presents another example of a false confession resulting from extreme interrogation and persuasion by the police. Garrett's 14 year old daughter, Michelle, was murdered. After a 14-hour interrogation, Garrett confessed. The police told him that witnesses placed him with his daughter shortly before her disappearance. One of the officers suggested to Garrett that he could have blacked out and reminded Garrett that he had once struck Michelle while drinking. Garrett, who had initially insisted that he hadn't seen Michelle before she disappeared, began to change his story and signed a confession. However, his confession contradicted all the major facts of the case and the police lacked any additional evidence. Garrett was acquitted by the jury. A partial excerpt from the transcript of his police interrogation is provided below:


Interrogation Transcript

Garrett: I just don't remember if I went out, if I did talk to Michelle.... I can't remember fighting with Michelle on Sunday.

Detective: You did. Not only did you fight but you thumped her. You didn't mean to hurt her.

G: What did I thump her with?

D: I don't know.

G: I don't know either.

D: But you thumped her.

G: Well, I killed my own daughter?

D: Yeah.


When Garrett kept insisting that he didn't remember attacking her, the interrogator again raised the possibility of an alcohol-induced blackout.

D: Okay, then what happened next?

G: I must have left her there.

D: Okay.

G: And must have went home.

D: All right. What did you do with the stick?

G: It's in the house. I must have took it back to the house.


This excerpt from Garrett's interrogation illustrates how interrogators can railroad a suspect into believing they committed the crime.

Defense Attorney Tips

Client Interview:

The most important step for a defense lawyer is the client interview. Always interview your client. Learn the details of your client's history. Ask about your client's medical history, educational history and any mental health issues that may exist.

Remember to approach your client as a confidant. Ask them to tell you what happened and what they remember. Do not confront them with the confession and ask them if it is true. It is important to get a statement of what they remember about the incident before asking them to corroborate a prior statement.

Next, talk to your client about the interrogation, especially if you are unable to obtain a recording. Ask how the police treated him, what happened, what he was told about the evidence, and so on. Ask if he received any promises in exchange for the confession. This is frequently an element of coerced confessions--often the police promise to go easier on the suspect if he confesses.


The Pre-Trial Phase:

The defense should try to obtain experts with knowledge of false confessions if at all possible. However, this is not always feasible. In the event that experts are not available, use the resources that you have. Direct and cross examination of witnesses, your client, and investigators can be invaluable.

The defense lawyer should bring a pre-trial motion to suppress a confession in every case, even if you are sure it will be denied. Remember to emphasize any evidence of lengthy detention and interrogation; repeated interrogations; deprivation of food, sleep, or visitors; failing to inform the suspect of his rights or misleading him; and false allegations by the police.


Trial:

At trial, begin establishing that the confession was false during the opening statement. The opening statement presents an opportunity to illustrate how the circumstances of the interrogation could have led the client to make a false confession. But remember, during the opening statement you are only supposed to be laying out what will be heard at trial, not arguing. Try to recreate the situation for the jury; bring photographs of the interrogation room and create a timeline which establishes the length of questioning. Most important, use what you have learned in interviews to effectively cross examine the prosecution's witnesses. Then put your client on the stand and let them tell their story. Remember you are trying to convince the jury that your client was overcome by police tactics to such an extent that he confessed to a crime he did not commit.


Final Thoughts:

The most effective means of combating false confessions is simply understanding them. A working knowledge of the elements and practices leading to false confessions is crucial. Thoroughly investigating any client confession is a fundamental step for every good defense attorney. Generally the best way to investigate is by obtaining recordings of the interrogation. However, not every country records interrogations.

Recording interrogations is becoming a more widespread policy. Video recordings both decrease the likelihood of false confessions and increase the validity of a confession. By rendering the interrogation process transparent, police lose any leverage to coerce innocent suspects.



See Causes of Wrongful Convictions

Notes

  1. Saul M. Kassin, John Jay College of Criminal Justice, False Confessions: Causes, Consequences, and Implications for Reform, Current Directions in Psychological Science 17:4, 249 (2008) available at http://www.williams.edu/Psychology/Faculty/Kassin/files/Kassin%20%282008%29%20-%20APS%20CD.pdf.
  2. Innocence Project Website: [1]
  3. Saul M. Kassin, John Jay College of Criminal Justice, False Confessions: Causes, Consequences, and Implications for Reform, Current Directions in Psychological Science 17:4, 249 (2008) available at http://www.williams.edu/Psychology/Faculty/Kassin/files/Kassin%20%282008%29%20-%20APS%20CD.pdf.
  4. Richard P. Conti, The Psychology of False Confessions, The Journal of Credibility Assessment, Vol. 2., No. 1, p.14, pp.14-15 (1999) available at http://truth.boisestate.edu/jcaawp/9901/9901.pdf.
  5. Richard P. Conti, The Psychology of False Confessions, The Journal of Credibility Assessment, Vol. 2., No. 1, p.14, pp.14-15 (1999) available at http://truth.boisestate.edu/jcaawp/9901/9901.pdf.
  6. Saul M. Kassin, John Jay College of Criminal Justice, False Confessions: Causes, Consequences, and Implications for Reform, Current Directions in Psychological Science 17:4, 249 (2008) available at http://www.williams.edu/Psychology/Faculty/Kassin/files/Kassin%20%282008%29%20-%20APS%20CD.pdf.
  7. Innocence Project Website: [2]
  8. Saul M. Kassin, John Jay College of Criminal Justice, False Confessions: Causes, Consequences, and Implications for Reform, Current Directions in Psychological Science 17:4, 249 (2008) available at http://www.williams.edu/Psychology/Faculty/Kassin/files/Kassin%20%282008%29%20-%20APS%20CD.pdf.
  9. International Bridges to Justice: Vietnam Hanoi Criminal Defense Training Program Materials(2004).
  10. International Bridges to Justice: Vietnam Hanoi Criminal Defense Training Program Materials(2004).
  11. International Bridges to Justice: Vietnam Hanoi Criminal Defense Training Program Materials(2004).
  12. International Bridges to Justice: Vietnam Hanoi Criminal Defense Training Program Materials(2004).
  13. International Bridges to Justice: Vietnam Hanoi Criminal Defense Training Program Materials(2004).
  14. International Bridges to Justice: Vietnam Hanoi Criminal Defense Training Program Materials(2004).
  15. International Bridges to Justice: Vietnam Hanoi Criminal Defense Training Program Materials(2004).
  16. Innocence Project Website: [3]