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 extremely persuasive at trial, for a number of reasons. Despite widespread evidence of their occurrence, juries have difficulty understanding the basic notion of a false confession. Police-induced confessions are counterintuitive to many people. Even when coercion is a factor, many people are unable to comprehend how an individual could possibly confess to a crime that he or she did not commit.[4]

In addition, coercion is misunderstood by many people. In general, only physical torture is found to be coercive; this ignores the influence of psychological games and maneuvers by police investigators that can lead to confessions. Finally, many attorneys lack the knowledge or ability to determine whether a confession is false, which leads to innocent defendants pleading guilty at the behest of their lawyers to avoid harsh sentences.[5]

Why do Suspects Confess?

The mystery of a suspect confessing to a crime he didn't commit perplexes most people. 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, it happens. People confess all the time. Some common elements that 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.[6]

Traits of Coercion, Force, and False Statements

A defense attorney's responsibility includes investigating any confessions by clients. It is important to look for specific elements of coercion, force and false statements. Elements include:

Coerced Confession

  • Pressure
  • Deception
  • Persuasion
  • Custodial
  • False Promises
  • False Facts
  • Youth
  • Low Self-Esteem


Forced Confession

  • Physical Threats
  • Emotional Threats
  • Isolation
  • Deprived of Food
  • Physical Contact
  • Several Interrogators
  • Length of Holding
  • Fear


False Confession

  • Youth
  • Mental Health Issues
  • Linguistic Clues
  • Inaccurate Answers
  • Non-responsive
  • Contradictory
  • Exaggerated
  • Desire to Please


All of the elements listed above can contribute to a client making a false confession. To investigate, obtain any evidence of the confession. Look for police recordings of the interrogation and subsequent confession. Interview your client and the 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.[7]

Types of False Confessions

There are three types of false confessions: Voluntary, Compliant and Persuaded or Internalized.[8]

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.[9]


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.[10] 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.[11]

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.[12]


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.[13]

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.[14]


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 interrogator's can railroad a suspect into believing they committed the crime.


Defense Attorney Tips

Client Interview:

The most important step for a defense lawyer is to interview your client. Always, always interview your client! Learn the details of your client's history; ask about medical history, any mental health issues and educational history.

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 him if anything was promised to him in exchange for the confession; this is an important element of coerced confessions. Often the police promise to go easier on the suspect if they confess, without any real promises made.


Pre-Trial Steps:

The defense should try to obtain experts for false confessions if at all possible. However, this is not always feasible. In the event that experts are not available, remember to 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; deprivations of food, sleep or friends and family; failing to inform or misleading the suspect as to his rights and false allegations by the police.

Again, always remember to interview all parties involved in the case!


Trial:

At trial, begin establishing a false confession during the opening statement. Use photographic exhibits to emphasize the length and circumstances of the interrogation. Use the opening statement as an opportunity to illustrate how the circumstances of the interrogation could have led the client to make a false confession; but, remember you are only supposed to be laying out what will be heard at trial, not arguing. Try to recreate the interrogation for the jury, bring photographs of the room and create a timeline of the length. Most importantly use what you have learned from 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 innocent client was overcome by police tactics to the extent that your client confessed to a crime he did not commit.


Final Thoughts:


The most effective means of combating false confession is simply understanding how they work. Having a working knowledge of the elements and practices leading to false confessions is crucial to being able to combat against them. 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.

In the future, every country will hopefully work towards recording interrogations. 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. 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.
  5. 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.
  6. Innocence Project Website: [2]
  7. International Bridges to Justice: Vietnam Hanoi Criminal Defense Training Program Materials(2004).
  8. International Bridges to Justice: Vietnam Hanoi Criminal Defense Training Program Materials(2004).
  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. Innocence Project Website: [3]