Transcript Mental Health Court

False Confessions and
the Admissibility of
Expert Testimony on
False Confessions
Alexander Sasha Bardey MD
Jonathan Moore Esq.
Harvey Fishbein Esq.
False Confessions
… are self-incriminating statements that go to:
- Motive: “Well, I guess I could have been pretty ticked
off at my wife for leaving me alone with the baby
while she went to the party.” [Illinois V. DeBord]
- Opportunity: “Maybe you’re right and it was actually
midnight before I got home..” [California V. Silapie]
- Method: “I sure don’t remember it, but maybe my
hand sometimes slipped when I spotted the girls.”
[Illinois V. Cardemone]
Perpetrators of the false confession
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Those who are totally innocent of the
crime they are alleged to have committed
Those who are involved in the alleged
offence but overstated their involvement
Usually in response to a demand for a
confession and is either intentionally
fabricated as a response to internal,
external factors, or both
Peine Forte et Dure
“Hard and Forceful Punishment”
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Method of torture used in England until 1741 in
England to extract a confession/plea
Truly the “weight of the evidence”
This is the only US case, of Giles Corey at the
Salem Witch Trials in the 1690’s
False Confessions Happen
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Salem Witch Trials – about 50 women confessed to
witchcraft
Gary Dotson- 1989, fist innocent exonerated by
DNA
1989- Central Park Jogger Case
Innocence Project – involved in about 200 postconviction DNA exonerations and about 25% of
those wrongly convicted, false confession was a
contributing factor.
A North American survey of 631 police investigators
revealed that respondents estimated from their
personal experience that 4.78% of innocent people
provided false confessions during interrogations
(Kassin et. al. 2007)
Myths
Everyone in prison claims to be innocent.
Only people who live “on the edge” are
charged with crimes they didn’t commit.
People who are exonerated must have done
something to get charged in the first place.
Wrongful convictions are extremely rare.
Exonerations prove the system works.
It can’t happen to me.
Facts
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5% to 10% of U.S. prison population are
factually innocent of the crimes of which
they were convicted.*
In raw numbers, that means as many as
200,000 innocent people are imprisoned.
Of those innocent people, 90% pled guilty.
*Based on 1996 National Institute of Justice Report.
Confessions as Evidence
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About 20% of all confessions are later
recanted (suspect states that
confession was false)
Among first 70 DNA exonerations
studied, 21% involved false
confessions
Why would someone falsely confess to
a serious crime?
Aggregated Studies of Documented False Confessions
Author(s)/Year
Number in
Study
Number of
False
Confessio
n
% Wrongful Conviction Due to False
Confession
Bedau/Radelet
(1987)
350
49
14%
Leo/Ofshe
(1998)
60
60
N/A
Warden (2003)
42
25
60%
Drizin/Leo
(2004)
125
125
N/A
Gross Et. Al.
(2005)
340
51
15%
Innocence
Project
(2006)
180
44
24%
Causes of Wrongful Conviction
False confessions in the
laboratory
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Kassin’s research: student
participants accused of causing a
computer crash
All 75 participants initially denied
charge
When confederate said she saw the
participant cause the crash, all
participants signed a confession, and
2/3 of the participants came to believe
Why would someone confess to a
crime that they did not commit?
Richard Conti cites four major police tactics used to elicit a
“false confession” in his article, The Psychology of False
Confessions:
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Psychological deceit / reporting non-existing
evidence as factual (“We have an eyewitness that puts
you at the scene of the crime when it occurred”)
Minimizing seriousness of crime (“Someone else in
your situation may have acted the same way you did”)
Guilt (“You mean to tell us that you left your wife alone
in the woods!?”)
Fear (“Tell us what happened or we’ll make sure you
get the needle [lethal injection]”)
Factors that Induce a
False Confession
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External:
– Nature of Interrogation
– Sensational nature of crime
– Socio-political factors
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Internal:
– Cultural
– Individual
Lie Detection
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The belief that interrogators can be trained to be highly
accurate human lie detectors is both wrong
It is not supported by any scientific research
There is no human behavior or physiological response that is
unique to deception, and therefore no reliable behavioral
signs of deception or truth telling.
The same behaviors, mannerisms, gestures and attitudes that
police trainers believe are the deceptive reactions of the guilty
may just as easily be the truthful (but nervous) reactions of
the innocent.
Studies show that police investigators can accurately
distinguish true and false denials slightly more than 50% of
the time.
Goals of Interrogation
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To gain information
To gain an admission of guilt
Legal methods of interrogation include
– Minimization
– Maximization
– Rapport building
The Two Step Process of
Interrogation
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First Step: convince the suspect that
he is caught by
– repeated accusations (of committing the
offense, of lying when denying
committing the offense)
– cutting off a suspect’s denials
– confronting the suspect with evidence of
his apparent guilt
The Two Step Process of
Interrogation
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Second Step: motivate the suspect to
believe that it is to his benefit to confess by
offering:
– “inducements” such as feeling better by getting
it off his chest, court leniency, orpromises of
release from interrogation, of reduced charges,
of a shorter sentence, or of probation
– A scenario with reduced personal culpability
(self-defense instead of intentional act)
– or offering explicit threats (or higher charges,
longer sentence or harsher punishment).
The “Reid Technique”
By Allen B. Ury
(9 steps used by police interrogators to elicit a confession)
1.
2.
3.
4.
5.
6.
Direct Confrontation 7. Posing the
“Alternative Question”
Deflection
8. Repetition
Dominance
9. Documentation
Turning objections
into justifications
Expressing Empathy
Offering alternative
“themes” or
scenarios
Four Errors in Interrogation
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The
The
The
The
misclassification error
coercion error
contamination error
individual vulnerability error
The Misclassification Error
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erroneous decision that an innocent
person is guilty
if police did not erroneously
interrogate innocent people, they
would never elicit false confessions
The Coercion Error
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accusatorial interrogation, which is, by definition, a guilt-presumptive
process
psychological coercion means either police use of interrogation
techniques that are regarded as inherently coercive in psychology
and law: or police use of interrogation techniques that, cumulatively,
cause a suspect to perceive that he has no choice but to comply with
the interrogators’ demands
Psychologically coercive interrogation techniques include the old
“third degree”, such as deprivations of food, sleep, water or access
to bathroom facilities, incommunicado interrogation, and inducing
extreme exhaustion and fatigue.rare today)
today’s police interrogators psychologically coercive techniques:
implicit or explicit promises of leniency (in exchange for compliance
and confession) or implicit or explicit threats of harsher treatment (in
the absence of compliance and confession).
The Contamination Error
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A confession is more than an “I did it” statement (i.e., first
admission)
It also consists of a narrative that contextualizes and attempts
to explain the “I did it” statement.
the post-admission interrogation process and resulting
narrative of guilt that transforms the fledgling “I did it”
statement into a fully formed confession
Post-admission interrogation is often leading, suggestive and
manipulative and contains the following elements: a plausible
plot-line, motives and explanations for why and how the crime
occurred, expressions of remorse and regret,
acknowledgements of voluntariness and, perhaps most
importantly, inclusion of non-public crime facts that are said
to originate with the confessor, not the interrogator.
The individual vulnerability
error
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Cultural (trust/distrust police,
collectivistic vs. individualistic society)
History of trauma/abuse
Phenomenology of innocence (belief
that justice will prevail in the end)
Special populations (MI/DD/Juvenile)
Substance Intoxication
Types of false confessions
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Voluntary false confessions: offered
willingly to police or media
Coerced-compliant confessions:
suspect confesses, knowing he/she is
innocent
Coerced-internalized confessions:
suspect actually comes to believe that
he/she is guilty (e.g. Paul Ingram
case)
The Voluntary False
Confession
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When person admits to crime they did not commit
with no prompting from law enforcement.
Occurs in high profile cases such as the Black
Dahlia case in which approximately 50 voluntary
false confessions had been given.
Several reasons an individual would do this,
pathological need for attention, mental
illness/symptoms such as delusions, personality
disorders, a perception of some tangible gain, and
attempt to protect another.
An unconscious need to expiate guilt via selfpunishment.
“I am guilty of something”
The compliant false
confession
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Wish to escape the stresses, pressures, confinement and
psychological coercion of interrogation.
Are worn down, can no longer withstand the highly distressing and
overwhelming interrogation process
Wish to avoid an inferred or threatened harm
Want to take advantage of a suggested or inferred promise or
benefit.
Individuals who give compliant false confessions are essentially
distressed or coerced by an authority figure to the point where they
are willing to falsely incriminate themselves in order to put and end
to and thus escape the unpleasantness of the interrogation. Once
they have decided to give in to the interrogators’ demands,
compliant false confessors typically repeat back the details of the
crime that were suggested to them by their interrogators, infer the
correct answers or simply guess.
The persuaded or
internalized false confession
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The suspect comes to doubt the reliability of his memory
He is persuaded that there may be an amnesia-based explanation
(e.g., drug or alcoholic induced blackout, post-traumatic disorder,
multiple personality, repressed memory, etc) to account for how the
suspect could have committed the crime without remembering
He makes a confession -- despite the absence of any memory of
committing the crime – in an uncertain belief state with tentative
language.
The persuaded false confessor is in an uncertain belief state,
temporarily persuaded that it is more likely than not that he
committed the crime
Once removed from the interrogation environment, the typical
persuaded false confessor realizes that he should have trusted his
memory not the detectives’ assertions of irrefutable (false) evidence
against him or amnesia-based explanations for his alleged lack of
memory.
Risk Factors for False
Confessions
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The idea of “risk factors” of course is a
probabilistic concept: just because these
factors are present in any given case does
not mean that there will necessarily be a
false confession, only that it is more likely
than if not.
There are essentially two types of risk
factors for false confessions: interrogation
techniques and individual vulnerabilities
Shift and Yield
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Yield refers to susceptibility to
suggestive questioning
Shift refers to changing answers as a
result of interrogative pressure.
Risk Factors for False Confessions:
interrogation techniques
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Isolation, confrontation and
presentation of false evidence causes
hopelessness
Implicit or explicit promises and
threats coerce the suspect to believe
that he has no meaningful choice but
to comply with the interrogators’
demands and confess falsely.
Risk Factors for False Confessions:
interrogation techniques
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In persuaded false confessions, additional risk
factor of attacking the suspect’s confidence in the
reliability of his memory
Length of Interrogation: Average interrogation lasts
up to 2 hours, in false confession cases usually
longer than 6 hours. Physical and mental fatigue
impair judgment and ability to resist pressure,
deficits in thought process speed, concentration,
motivation, confidence, attentions, and one’s
ability to ignore misleading or irrelevant information.
Long interrogations increase stress levels which
impairs thinking and judgment – can cause tunnel
vision (only way out to confess)
Risk Factors for False Confessions:
individual vulnerabilities
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Cultural Issues
Personality traits of suggestibility and
compliance
Three groups or types of individuals who
are most vulnerable
– the mentally handicapped or developmentally
disabled
– juveniles (especially under the age of 16)
– the mentally ill
The mentally handicapped
or developmentally disabled
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Low intelligence
Poor understanding or fund of knowledge
Short attention span, memory deficits,
reduced conceptual skills
Easily confused, suggestible, acquiescence
(compliance)
Not likely to fully understand gravity of
situation and long-term consequences of
giving confession
The mentally handicapped
or developmentally disabled
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Not likely to understand the police are not
their “friend”
Poor conceptual and communication skills,
Eager to please and tell the interrogator
what they want to hear
Low IQ more likely to believe that false
confession will impact little on outcome
(naivete re. the truth)
The mentally handicapped
or developmentally disabled
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Mental Retardation:
– Profound: IQ less than 25
– Severe: IQ 25 to 35
– Moderate: IQ 35 to 55
– Mild: IQ 55 to 70
Juveniles
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Intellectually immature (Until early 20’s)
Naïve/trusting of authority
Poor understanding of Miranda
Inability to fully understand long-term
consequences
Eager to please authority
Lower tolerance for stress/pressure
Drizin and Leo, 2004 , sample 125 proven
false confessions, 63% were made by
individuals under 25 years of age
Juveniles
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Less than 12: more suggestible and
easily influenced by negative feedback
From 12 to 16: similar to adults on
memory and yield, higher on shift
After 16: no difference than adults on
measures of yield and shift+
The mentally ill
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psychiatric symptoms
– poor reality testing, anxiety, distorted
perceptions/beliefs, thought disorder,
delusions.
– low tolerance for stress/pressure.
– poor impulse control.
– mood disturbance.
– low self-esteem / suicidality
Substance Intoxication
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Alcohol intoxication
– Alters mood, lowers anxiety, increases
suggestibility, impairs memory (encoding
and retrieval)
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Alcohol withdrawal
– Increases suggestibility
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Drug Intoxication / Drug withdrawal
Psychological Factors
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Suggestibility correlates with lack of
intelligence and poor memory
Low IQ means more susceptible to
leading questions, more confabulation
and more acquiescence
Poor assertiveness, anxiety and
avoidant coping strategies correlated
with suggestibility
Psychological Factors
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The more anxious, the more likely to
change recollection and be suggestible
Suggestibility correlated sleep deprivation
No relationship between suggestibility and
hallucinations, poor reality testing or
depression
The more suggestible, the less accurate in
recalling details
Proof of a false confession
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Discovery that no crime has been committed (e.g. victim
still alive).
New forensic evidence, including improved DNA testing
capabilities.
New alibi evidence.
Newly discovered medical evidence which would have made
it impossible for the person to have committed the crime.
Somebody else confesses and is convicted of the offence.
Psychological and psychiatric evidence that casts serious
doubts on the veracity of the confession.
A careful analysis of the post admission narrative, which
reveals striking errors and omissions, rendering the
confession unconvincing and inherently improbable.
Post-Admission Narrative
PAN
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Look for striking errors and omissions,
rendering the confession unconvincing and
inherently improbable.
Leads to discovery of yet unknown evidence
Includes identification of highly unusual
elements of the crime
Includes accurate description of mundane
details
False False Confessions
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Incentive for any defendant to retract a
confession after arrest (shame, avoid
prosecution, rejection of family or fear of
retaliation)
Legal strategy
The authority of one's own attorney,
especially because of the trusted
relationship, can provoke a retraction of a
perfectly legitimate confession
Malingering
Role of Psychiatric Expert
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To assess nature/extent of cultural
and/or individual vulnerabilities,
clinical exam, psychological tests
To assess for malingered vs. genuine
mental illness/impairment
To gauge extent of suggestibility and
compliance
Role of Psychiatric Expert
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Gudjonsson Suggestibility Scale (GSS)
– Instrument to assess possibility of FC
– Meets or exceeds Frye and Daubert
standards
– Considered consistent, valid, reliable, with
good confidence
Possible Reforms
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Prohibit inherently coercive Interrogation techniques
Videotape police interrogations in serious felony cases, available
to all parties.
Minor, mentally ill or developmentally disabled to be
accompanied by neutral third-party adult, when possible.
Eliminate suggestive eyewitness identification procedures.
– Show photos one at a time, not in multi-photo spreads.
– Officer not involved in investigation should conduct the
identification review.
Possible Reforms
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Limit length of interrogations
Just as in the insanity defense, both sides should have the
opportunity to examine the suspect’s mental state and
diagnosis at the time of his decision to confess – and to
retract – and to probe psychosocial background and risk
factors that make the suspect more vulnerable and less
vulnerable.
Expert testimony on interrogation and confession
Jury Instructions
Bibliography
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Ashworth, A. “Should the police be allowed to use deceptive
practices?” L.Q.R. 1998, 114(Jan), 108 -140.
Dr G. Gudjonsson, “The psychology of false confession”, N.L.J.
1992, 142(6568), 1277-1278.
Colvin, E. “Convicting the innocent: a critique of theories of
wrongful convictions”, Crim. L.F., 20(2), 173-192.
Mirfield, P. “Expert evidence and unreliable confession”, L.Q.R.
1992, 108(Oct), 528-534.
Hegarty, A. “Truth, law and official denial: the case of Bloody
Sunday” , Crim. L.F. 2004, 15(1/2), 199-246.
Allen, C. Practical Guide to Evidence, 4th edition, 2008.
Dennis, I. The Law of Evidence, 3rd edition, 2007.
Keane, A, ‘Modern Law of Evidence’, (2006).
Bibliography
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http://www.innocenceproject.org/Content/351.php
Conti, Richard P. “The Psychology of False Confessions.” The
Journal of Credibility Assessment and Witness Psychology 2. 1
(1999): 14-36.
http://www.usconstitution.net/miranda.html
http://news.everest.edu/post/2009/06/modern-policeinterrogation-techniques (Allen B. Ury)
Pratkanis, Anthony, and Elliot Aronson. Age of Propaganda:
The Everyday Use and Abuse of Persuasion. New York: Henry
Holt and Company, 2001.
Alexander Sasha Bardey, M.D.
[email protected]
212-223-1983