The Journal of Credibility Assessment and Witness Psychology 1999, Vol. 2, No. 1, 14-36

The Journal of Credibility Assessment and Witness Psychology 1999, Vol. 2, No. 1,

Published by the Department of Psychology of Boise State University

shus_0001_0006_0_img0585Richard P. Conti1

Copyright 2000 by the Department of Psychology of Boise State University and the Authors. Permission for non-profit electronic dissemination of this article is granted. Reproduction in hardcopy/print format for educational purposes or by non-profit organizations such as libraries and schools is permitted. For all other uses of this article, prior advance written permission is required. Send inquiries by hardcopy to: Charles R. Honts, Ph. D., Editor, The Journal of Credibility Assessment and Witness Psychology, Department of Psychology, Boise State University, 1910 University Drive, Boise, Idaho 83725, USA.

ABSTRACT: Obtaining a confession is one of the most important aims of police interrogation, and it is estimated that more than 80% of solved criminal cases are solved by a confession. However, a significant number of confessions that result in wrongful convictions are obtained through coercive questioning. This paper examines false confessions and discusses the psychological and social factors that influence innocent suspects to give self-incriminating false statements during police interrogation. Inherently coercive police questioning techniques that are employed to obtain confessions from suspects in-custody are presented.

The Psychology of False Confessions

Introduction

Frequently regarded as the most unequivocal evidence of guilt, a confession relieves doubts in the minds of judges and jurors more than any other evidence (Driver, 1968; Kassin & Wrightsman, 1985; Reik, 1959; Schafer, 1968; Wrightsman, Nietzel, & Fortune, 1994). In criminal law, the confession evidence is considered to be the most damaging form of evidence produced at a trial (Underwager & Wakefield, 1992; Wrightsman & Kassin, 1993; Zimbardo, 1967) and a prosecutor’s most potent weapon (Kassin & Sukel, 1997) — so potent that, in the words of one legal scholar, “the introduction of a confession makes the other aspects of a trial in court superfluous, and the real trial, for all practical purposes, occurs when the confession is obtained” (McCormick, 1972, p. 316). Confession evidence alone generally ensures a conviction (Driver, 1968; Kassin & Wrightsman, 1985; Schafer, 1968; Wrightsman et al., 1994). To obtain a confession is one of the most important aims of police interrogation (Underwager & Wakefield, 1992). Zimbardo (1967) estimated that of those criminal cases that are solved, more than 80% are solved by a confession. Dr. W. Sargant (cited in Brandon & Davies, 1973), speaking at the 5th Scientific Congress of the British Academy of Forensic Sciences, estimated that without confessions, convictions might be reduced by more than 70%. J. Barry of the Australian Supreme Court, ad dressing the United Nations, stated that “confession is the most attractive way of solving crimes” (cited in Brandon & Davies, 1973).

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During the first week of the Persian Gulf War in 1991, American TV viewers saw the grim and swollen faces of captured American airmen, and as reported by Fleming and Scott (1991), “each of the pilots identified himself and delivered a short speech deploring their government’s involvement in Operation Desert Storm” (p. 127).

Confessions are a very powerful form of evidence. This may be due to observers misattributing the cause of the confession as being internal to the person (e.g., actual guilt) while discounting situational factors (e.g., possible coercion) which may not be readily apparent to an observer (Gilbert & Malone, 1995). In social psychology, this is known as the fundamental attribution error: the tendency to attribute other people’s behavior to more dis positional (internal) causes, and underestimate the importance of situational (external) factors (Ross, 1977). As Wrightsman (1991) points out, “It seems that what you say is more influential than why you say it” (p. 170). Understanding the fundamental attribution error may help explain how peo ple, especially jurors, can be influenced by confession evidence even if the confession is considered unreliable. Once a suspect makes a confession, even if the confession is ruled inadmissible by the court, people often hold on to newly formed beliefs even after they have been discredited (Anderson, Lepper, & Ross, 1980) or instructed to ignore them by a judge (Kassin & Sukel, 1997; Kassin, Williams, & Saunders, 1990).

Are all confessions authentic? Do all suspected individuals give true confessions out of their own volition, devoid of duress during police interro gation? Bedau and Radelet (1987) revealed that the primary cause for the conviction of 49 (11.4%) of the 350 instances of miscarriages of justice in the U. S. this century was a false confession generated by coercive questioning. Bedau and Radelet operationally define a miscarriage of justice as “those cases which: (a) The defendant was convicted of homicide or sentenced to death for rape; and (b) when either (i) no such crime actually occurred, or (ii) the defendant was legally and physically uninvolved in the crime.” (p. 45). In 309 (88%) of the cases innocence was established by state decisions indicating error (e.g., reversal by trial or appellate court).

How often do false confessions lead to miscarriages of justice? Wrightsman and Kassin (1993) report that no one knows but cited Lloyd- Bostock’s report (1989) that in Great Britain, false confessions ranked second only to mistaken identifications as a cause of wrongful conviction among cases referred to the Court of Appeal. How often false confessions result in wrongful convictions is obscure (Gudjonsson & MacKeith, 1988; Kassin & Fong, 1999, Leo, 1998) although some observers (Gudjonsson, 1992; Kassin & Wrightsman, 1985; Leo, 1998; Leo & Ofshe, 1998; White, 1998; Wrightsman & Kassin, 1993; Wrightsman et al., 1994; Zimbardo, 1967) affirm that enough- cases have been documented to suggest that a concern over such a risk is justified. Leo (1998) points out three reasons why it is impossible to even estimate the incidence or prevalence of false confessions: (1) police interrogations are conducted in secrecy and they are usually not recorded, (2) law enforcement agencies do not keep records on the number of interrogations conducted, and (3) it is difficult to establish what actually occurred to elicit a- confession, especially if the confession resulted in a conviction.

The Supreme Court of the United States reversed the convictions in Brown on the grounds that the police had violated the defendants’ rights to due process of law. The Court ruled that evidence procured through physical torture and brutality must be excluded from trials. Furthermore, the Court asserted that a trial “is a mere pretense where the state authorities have continued a conviction resting solely upon confessions obtained by violence. ”

As Leo (1998) points out, it is very difficult to establish a baseline on the incidence or prevalence of false confessions in the United States. Huff, Rattner, and Sagarin (1986) gave a conservative estimate of 6,000 wrongful convictions in the United States for index crimes2 alone. The authors distributed surveys asking respondents who were directly involved in the criminal justice system (e.g., judges) to give estimates on the frequency of wrongful convictions. Using 1981 data for index crimes, Huff et al. used a 50% conviction rate and a wrongful conviction rate of only one-half of 1% (which was lower than most respondents estimated) to arrive at their esti mate. The authors concluded that even if a system is 99.5 % accurate, a high-volume area could produce 6,000 erroneous convictions per year. Keeping in mind the data from the Bedau and Radelet (1987) study which showed that 11.4% of the convictions in their sample were the result of a false confession, one could make a conservative estimate of 5% and still show that 300 false confessions result each year in a high-volume area.

The primary purpose of this paper is to examine the reasons why innocent people sometimes confess. To be more specific, what factors compel innocent suspects to give false statements and confess to crimes they did not commit during police questioning? Secondly, how do interrogators get suspects to confess; what psychological and social influence do they employ? Although there are a limited number of research studies regarding false confessions, the present review of the literature indicates a shift in court rulings throughout United States history with regard to the attainment of confessions and the admissibility and validity of confession evidence. Differ ent perspectives on false confessions will be analyzed. Three psychologically distinct types of false confessions–voluntary, coerced-compliant, and coerced-internalized (Kassin, 1997, 1998; Kassin & Sukel, 1997; Kassin & Wrightsman, 1985; Wrightsman & Kassin, 1993)–with the two latter types being significant with regard to police interrogation will be explored. In addition, some related case histories including landmark decisions such as Miranda v. Arizona (1966) and Brown v. Mississippi (1936) are reviewed. Emphasis is placed on the psychological perspectives of coerced-internalized false confessions and other factors that influence false confessions. Demand characteristics of the police interrogation process are also be dis cussed, and several types of psychological and social factors employed by police interrogators in order to secure confessions from suspects are presented.

A Historical Overview of False Confessions

police-interrogation-chFour centuries ago, a confession was treated as a conviction. The use of physical torture to extract confessions was common, and all confessions- were routinely admitted into evidence without question. But slowly over the centuries, the status of confessions in the legal system shifted from the- courts’ limiting the admissibility into evidence of ordinary confessions in the mid-1700s, to totally excluding coerced confessions by the mid to late 1800s. By the 19th century, the courts were cynical of all confessions and tended to dismiss them if questionable.

In the early 1900s, U. S. courts were increasingly faced with cases of Black defendants who were said to have “confessed” to crimes after being physically beaten by the police (Kassin, 1997; Kassin & Wrightsman, 1985; Wrightsman & Kassin, 1993; Wrightsman et al., 1994). The case of Brown v. Mississippi (1936) was a landmark decision on this matter. In that case, three Black men were apprehended by the police for murder. The men were not al lowed to consult with an attorney and were subsequently threatened, beaten, and tortured. Each of the three men eventually signed a police written “confession” to the murder. Each defendant was convicted and then sentenced to death. The Supreme Court of the United States reversed the convictions in Brown on the grounds that the police had violated the defendants’ rights to due process of law. The Court ruled that evidence procured through physical torture and brutality must be excluded from trials. Furthermore, the Court asserted that a trial “is a mere pretense where the state authorities have continued a conviction resting solely upon confessions obtained by violence” (p. 287). Thus, the admissibility of confession evidence is prefaced by the requirement that the confession be proved voluntary (Kassin, 1997; Kassin & Wrightsman, 1985). That is, the confession must be given freely and knowingly (Gudjonsson, 1992; White, 1998), without physical or psychological coercion (McCormick, 1972, 1992), and in an unconstrained manner by the individual (Culombe v. Connecticut, 1961). The ruling in Brown set a precedent “that a state court conviction resting upon a confession extorted by brutality and violence violated the accused’s general right to due process guaranteed by the Fourteenth Amendment” (McCormick, 1992, p. 232).

In determining the admissibility of confession evidence, the courts have considered other factors such as mental abuse in addition to physical force and threats. In the case of Chambers v. Florida (1940), the Supreme Court ruled that five days of prolonged questioning and other factors that fell just short of physical violence elicited concerns that the confessions given by the defendants were in danger of being false. An investigation into the totality of the circumstances surrounding the confessions was required as in the case of Haynes v. Washington, (1963). The defendant was refused telephone contact with his family and attorney and was told by police that these requests might be granted as soon as he made a statement. The Supreme Court of the United States ruled that the defendant’s confessions were coerced by the fact that the defendant’s “will” was overborne in an “atmosphere of substantial coercion and inducement created by statements and acts of state authorities” (p. 513). In the landmark case Miranda v. Arizona (1966), the Supreme Court ruled that unless the accused is advised by the police of his- constitutional rights to remain silent and to obtain counsel, all self- incriminating statements are inadmissible in court.

To measure the accuracy of confession evidence, one would have to assess the combined frequency with which truly guilty people confess and truly innocent people do not. Thus, two types of false errors are possible: false negatives, in which guilty suspects fail to confess, and false positives, in which suspects who are innocent confess (Kassin, 1997; Kassin & Wrights man, 1985). According to Kassin (1997), the false positive error, although less common than the false negative, poses a more serious dilemma for the courts. Kassin (1997) stressed the importance of knowing what factors in crease the risk of a false confession.

As noted earlier, a 1987 study by Bedau and Radelet discovered 350 in stances of miscarriages of justice in the United States alone. In each of these cases an innocent individual was convicted of murder or rape. In 49 of these cases, the foremost reason for the conviction was a false confession brought about by coercive interrogation. For several years, a coerced confession that lead to a conviction resulted in an automatic reversal of the conviction; however, this was changed in the case of Arizona v. Fulminante (1991). In this case, the Supreme Court of the United States ruled that a conviction based on a coerced confession was not to be automatically reversed. If the prosecution could prove beyond a reasonable doubt that the trial court error was harmless, the “harmless error” rule would apply. That is, other sufficient evidence must exist to sustain the conviction.

A Psychoanalytical Perspective on False Confessions

Theodor Reik (1959), renowned psychoanalyst and criminologist, state a belief that false statements originate from the unconscious compulsive need to confess. If instinctual impulses striving for expression are spurned or condemned by the external world, the still feeble ego can manage only to express them in the form of confession. Hence, the inclination to confess is a modified urge for the expression of the drives. Reik asserted that the un conscious compulsion to confess gratifies the need for punishment. That is, the need for punishment shifts from punishment to confession. He ex pounds further in his book, translated in 1959, The Compulsion to Confess:

Compare the situation with that of a little boy who seems to fear punishment for some secret misdeed. . . . least of all does he fear the punishment itself. Rather, he shows feeling of anxiety because of what his parents may be thinking as they learn of his little misdeed and because he must confess it to them. He has transformed the fear of punishment into the fear of confession. The confession itself, as that which precedes the punishment, has now become in the highest degree terrifying. The child himself says in many cases that it is not punishment he fears, but the scene in which he- will tell his parents what he did. (pp. 202-203)

Here, the need for punishment, like any other strong drive, emits severe stress and pressure. The intensity of these impulses can be lessened only by partial gratification (Reik, 1959; Schafer, 1968).

Procedural Considerations

Opponents of questionable and inappropriate police interrogation and investigative procedures argue that a false confession is nothing more than the product of police incompetence (Ofshe, 1991; Zimbardo, 1967) and police viciousness. According to this view, in attempting to elicit confessions from suspects, police interrogators may use outright lies and subtler forms of deception (Underwager & Wakefield, 1992; Wood, 1995). The most widely used and influential textbook on police interrogations (Gudjonsson, 1992, 1994; Huff, Rattner, & Sagarin, 1996), Inbau, Reid, and Buckley’s (1986) Criminal Interrogations and Confessions encourages and describes a step-by-step process by which interrogators are to elicit a confession from a suspect by using out right deceit and psychological manipulation. Inbau et al. recommend telling suspects that they have evidence linking them to the crime where none ex ists and to minimize the seriousness of the offense “by saying anyone else under similar conditions or circumstances might have done the same thing” (p. 97). In reviewing the recommendations made by Inbau, et al., Gudjons son (1994) states “this means that police officers are encouraged to make a false confession themselves in order to obtain a confession from suspects” (p. 239).

Another area problematic during interrogations is the reliance on meth ods for detecting deception (e.g., nonverbal behavior) that are offered in po lice training manuals. A suspect in police custody may be perceived by the interrogating officer as being deceptive when in fact this may not be true. In bau et al. (1986) recommend using the aforementioned techniques on sus pects who appear to be guilty based on the methods for detecting deception as described in their manual. However, research has shown that people– even those with special training–are poor at detecting deception (Ekman, 1992; Kassin & Fong, 1999; Shuy, 1998).

Negligence and overzealousness on the part of prosecutors (Bedau & Putnam, 1996; Frisman, 1995; Zimbardo, 1967) may also lead to false confes sions. Gardner (1995) recounts a case in which he was involved where the prosecution decided that a young woman was sexually abusing boys on the basis of a rumor and an anonymous tip. The alleged victims in the case were taken into police custody and told they would not be released until they “confessed” about the sexual abuses by this woman. Yant (1991) points out two major reasons why prosecutors abuse their power. First, American courts- are structured as an adversarial system. The search for the truth is lost, and- the focus becomes winning the case at any cost. In this effort, the prosecu tor may “frequently cross the line into withholding or fabricating evidence, allowing perjured testimony, and making exaggerated attacks on the defen dant” (p. 139). Second, in order to be re-elected or for other professional ad vancement reasons, many prosecutors feel they must maintain a high rate of convictions. In addition, prosecutors may encounter pressure for a political necessity to close a case (Greenspan, 1996; Ofshe, 1991). This would mos-t likely occur in high profile cases where there is a public outcry for justice.

False Confessions: High Profile Cases

More than 60 years ago, over 200 people confessed to the kidnapping and murder of Charles Lindbergh’s baby (Macdonald & Michaud, 1987; Rogge, 1959). Then in the late 1940s, more than 30 people falsely confessed to the murder and mutilation of Elizabeth Short, an aspiring Hollywood actress whose severed remains were found in a vacant Los Angles lot. The Short case received nationwide attention and became known as the “Black Dahlia” murder, due to descriptions of Ms. Short having always dressed in black. The Short case is still unresolved (Macdonald & Michaud, 1987; Nash, 1983; Rogge, 1959). Still another instance of a false confession is the story of SS leader Heinrich Himmler, who lost his pipe while visiting a concentration camp. A search followed, but upon returning to his car the pipe was discov ered on his seat. The camp commandant protested that six prisoners have already confessed to stealing it (Macdonald & Michaud, 1987).

The above high profile cases are included to illustrate two general points to the reader. First, false confessions can and do occur, and they are not a new phenomenon. In fact, Munsterberg (1908) was the first psychologist to write on the subject nearly a century ago. In his classic book, On the Witness Stand, Munsterberg devotes an entire chapter to untrue confessions. Many of Munsterberg’s observations on false confessions (e.g., “in some instances the confessing persons really believed themselves guilty” [p.146]; “pseudo- confessions may thus arise in men who are distinctly not ill” [p. 150]) are strikingly similar to what modern research has revealed on the subject. Sec ond, false confessions occur in widely publicized types of cases in alarming numbers without any type of influence or pressure from the criminal justice system. When one takes this fact into account and further considers the in fluence of situational features (e.g., interpersonal pressure) during an inter rogation, a better understanding of false confessions is fostered.

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