Posts Tagged ‘confessions’

Of the 311 cases of wrongful convictions documented by The Innocence Project, about 25 percent include a false confession or false statement of guilt.  Yet false confessions remain the least understood type of justice system error.  Most people still ask, “why would anyone confess to a serious crime he did not commit, without physical abuse, a mental handicap or lack of sobriety?  I know I would never do that.”   Twenty years ago, I would have said the same thing.

Well, if you want to know how false confessions happen — how an innocent person could confess, even supplying details of how the crime was committed that only the perpetrator would know — and if you want to know how this could happen with a fine police detective operating according to the rules — you must listen to the latest episode of the radio show This American Life, called “Confessions.”  Here is the link to the show.  The story (one of several on the theme of confessions) runs approximately 28 minutes

A very brief summary, without giving anything away: A Washington, D.C. detective investigating a murder participated in the interrogation of the main suspect.  The woman denies any involvement at first, but after seventeen hours of questioning, she finally admits to participating in the crime, and supplies many incriminating details.  After the suspect is charged but before her case goes to trial, follow up investigation by police causes the case to fall apart, and a judge orders her released from jail after nine months.  The case is never solved.  Some years later, the same detective is assigned to a cold case unit, and he begins to look into the case again by watching a video tape of the interrogation.  What he sees reveals what went wrong, and it lays out an incredible lesson in exactly how the false confessions come to be.  And we learn that the video tape recording of the full interrogation was actually made just by chance; in the usual course of things, there would have been no recording, and none of this would have been discovered.

For anyone interested in police interrogation, for anyone still asking how an innocent person could ever confess, I cannot recommend this program more highly.  And it’s yet another endorsement of the idea that we must record interrogations if we are ever to solve this problem.

According to an article from the Syracuse Post Standard and syracuse.com, New York State has announced it will offer grants to law enforcement agencies for the purchase of equipment need to record police interrogations.  Governor Andrew Cuomo’s office announced the availability of the funding on July 15.  Recording interrogations, the Governor said, would prevent wrongful convictions and protect officers from false accusations.  In his words:

“Fairness and integrity form the foundation of our justice system and New York state is committed to providing local law enforcement with the resources necessary to improve the effectiveness of the process,” Cuomo said in a news release. “Wrongful convictions not only harm the innocent, but they allow the actual perpetrators of crime to remain free. The new equipment that will result from this funding will improve the strength of New York’s criminal justice system, making all New Yorkers safer as a result.”

What’s interesting to notice is how the issue is framed in terms of public safety and the integrity of the system.  Yes, recording will prevent the catastrophe of convicting the innocent, but at least as important, convicting an innocent person leaves the real predator on the street, able to kill or rape again.  And the thrust of the idea is to bolster the “fairness and integrity” of the system, because wrongful convictions eat away at both.

Readers, does New York State have mandatory standards, or any standards, for the recording of confessions?  Does your police department record interrogations?  The article states that “345 law enforcement agencies in 58 of the 62 counties statewide video record suspect interrogations, according to the governor’s office,” and supplies a partial list.

I’ve posted here about the ongoing review of cases in the Brooklyn DA’s office, many of them involving confessions taken by one man, now-retired Detective Louis Scarcella.  The  DA’s office has said that it is reviewing all of cases  in which confessions obtained by Scarcella played pivotal roles.  Now comes news that in some of these cases, experts see a disturbing pattern: many of the confessions use very similar phrases at crucial points.  The phrases “you got it right” or “I was there,” or both, recur in at least five of the confessions Scarcella obtained.

According to the Richard Leo, professor of law at the University of San Francisco and one of the foremost experts in the world on false confessions, “[i]t’s hard to imagine all five people used the same exact words…“It almost sounds like a template.”

In unrelated media interviews, Scarcella has uses these very words in a strikingly uncommon way, raising the question of whether the phrases that appear in the confessions came from the defendants, or from him.  According to one article:

In an interview with The New York Post last month, [Detective Scarcella] said he still remembered Mr. Ranta’s confession from a quarter century earlier: “I said: ‘You come from 66th Street. I come from 66th Street. We’re both Italian. Why don’t you tell me the truth?’ So he says, ‘Yeah, you’re right. I was there.’ ”

And talking about a different case during an appearance on the “Dr. Phil” television program in 2007, where he discussed the tactics he used to get suspects to admit their misdeeds, Mr. Scarcella recalled a similar conversation with a suspect. “He says to me, ‘Louis, you were right. I was there, but he kicked me, and I shot him by accident.’ I said, ‘Don’t you feel better now?’ And he’s now doing 37 ½ years to life.”

The review of Scarcella’s cases will continue to unfold, and we need to know whether his knack for getting confessions out of people, some of whom have claimed they never confessed, was due to his uncanny abilities to talk people into truthfully implicating themselves, or whether something else — perhaps something illegal — was going on.

With the news that the District Attorney of Brooklyn is re-examining convictions in 50 cases featuring the work of one particular detective (see stories here and here ), we see two issues that have surfaced on the Failed Evidence blog before: false convictions and Conviction Integrity Units (CIUs).

First, the cases under re-examination all involve retired NYPD Detective Louis Scarcella, who had a penchant for getting confessions out of suspects when other detectives could not. According to Scarcella, “there were cases where suspects talked to one detective and they got nothing, and they called me and I got statements. A lot of guys don’t know how to talk to people.”   Some of these suspects who allegedly confessed said that they had told Scarcella nothing.  Scarcella also relied regularly on testimony from one particular drug-addicted prostitute; among the many times she served as Scarcella’s “go-to witness,” she gave crucial eyewitness testimony in two separate murder cases against the same man.  According to one prosecutor who had the woman testify in two trials, “It was near folly to even think that anyone would believe [her] about anything, let alone the fact that she witnessed the same guy kill two different people.”

But there is also this: the re-examinations are being handled by the Brooklyn DA’s Conviction Integrity Unit (CIU), which I wrote about in connection with the exoneration and release of David Ranta, here.  As readers of the Failed Evidence blog know, CIUs are  dedicated units within prosecutors’ offices, just like  homicide or fraud units, that take on the task of re-opening old convictions now in doubt.  The first CIUs were established by DA Craig Watkins in Dallas and former DA Pat Lykos in Houston, and they have begun to pop up in other places.  In New York, both the Brooklyn DA and the Manhattan DA have established CIUs.

The CIU model for examining possible wrongful convictions isn’t perfect; a CIU is, by its nature, not independent of the DA’s office, and could be stopped in its tracks or dismantled completely just as easily as it could be created.  But as I’ve argued here before, they at least represent a step toward accountability for wrongful convictions, in a field in which too few elected prosecutors will touch prior convictions at all.  We should pay careful attention to how this large-scale investigation by the Brooklyn DA’s CIU works out; it will say a lot about whether CIUs can be part of the solution going forward.

 

In my previous post, I included a link to Psychology Today’s Shadow Boxing blog, which carried a brief interview in which I was critical of the Reid Technique, the most commonly used technique for interrogation taught in American police training.  This prompted an email to me from Joseph Buckley, the President of John T. Reid and Associates, Inc., in which he defended the Reid Technique.  I advised Mr. Buckley that I could not include his entire missive, but would be glad to include some of it.  He said, in part:

False confessions are not caused by the application of the Reid Technique, they are usually caused by interrogators engaging in improper behavior that is outside of the parameters of the Reid Technique – using improper interrogation procedures – engaging in behavior that the courts have ruled to be objectionable, such as threatening inevitable consequences; making a promise of leniency in return for the confession; denying a subject their rights; conducting an excessively long interrogation; etc.

Mr. Harris suggested that the goal of the Reid Technique is to get a confession – that is not correct; it is to learn the truth.

On page 4 of our training manual and page 5 of Criminal Interrogation and Confessions (5th ed, 2011) we state that the objective of an interrogation is to elicit the truth from a subject, not a confession.

In a subsequent email, Mr. Buckley suggested this link to his web page,  particularly the entry for March 11, 2012.

For my part, I stand by what I told Shadow Boxing, and I stand by everything I said about the Reid Technique in my book, Failed Evidence: Why Law Enforcement Resists Science.

For starters, I did say that the goal of the Reid Technique is to get a confession.  Mr. Buckley says that isn’t true.  What he doesn’t say is that until 2011′s fifth edition — through all of the previous editions — what the book said was “an interrogation is conducted only when the investigator is reasonably certain of the suspect’s guilt” (or words to that effect). This statement was changed after many commentators quoted it as perfectly descriptive of the Reid Technique’s reliance on an underlying assumption of guilt for all interrogations.  But even after changing the statement, the presumption of guilt underlying the whole process did not change.

But to me, what this comes down to is which side, Mr. Buckley or his many critics, have the science behind them.  On this dimension, it’s not a close call.  Rather than pull all of this out here, take a look at an excellent article by Keith Findley and Michael Scott, “The Multiple Dimensions of Tunnel Vision in Criminal Cases.”  (The link is to the abstract; you can then download the article for free.) Go right to page 333–340, where the authors lay out the case against the Reid Technique and (unlike Reid’s own materials) support their arguments with a vast amount of research literature.  Here’s a small slice (with footnotes omitted):

[T]he process of assessing an interview is likely to produce misjudgments about the suspect’s veracity and guilt. Police are trained to look for signs of deceit in the interview process to help them determine whether to shift from an interview to an interrogation. Police also use their interpretations of guilty responses to help them shape the remainder of their interrogation, and the content of their testimony at trial. Yet, considerable research indicates that people are poor intuitive judges of truth and deception.  In clinical studies, people consistently perform at only slightly better than chance levels (with typical accuracy rates of about 45 to 60 percent, when chance is 50 percent) at distinguishing lies from truth…Indeed, most studies indicate that trained detectives and others with relevant on-the-job experience “perform only slightly better than chance, if at all,” and do not perform more reliably than untrained individuals…Additionally, the signs that police officers are trained to believe indicate lies are not empirically related to lie detection…Research confirms that most police officers rely on such indicators.  But research also convincingly shows that such cues are not indicative of fabrication, and can actually reduce accuracy.

Read and evaluate.  You decide.

In another sign that resistance to better, science-based practices will eventually have to yield, a news report indicates that a member of the South Carolina has  introduced a bill that would require police to record interrogations of suspects.

The bill, proposed by Rep. Todd Rutherford of Columbia, “would require judges to instruct jurors that they could ‘draw an adverse inference’ if a law enforcement officer failed to record the questioning of a suspect unless there was an equipment failure.”  That required instruction would effectively require that the police record interrogations, because jurors would hear from the court that the interrogation might be suspicious.

Even if the bill does not pass, the significance of the proposal is hard to miss.  An increasing number of states and jurisdictions require recording of interrogations under various circumstances (see the Innocence Project’s map here), and the research shows that the recording requirement does not harm the investigation process.  In fact, recording turns out to be a great help to the police overall.  The research of Thomas Sullivan on the practical effects of recording has been particularly insightful and helpful on this issue, and academics such as Richard Leo, Saul Kassin, and Richard Ofshe have made tremendous contributions in the area of false confessions and why recording can help.

More to the point, South Carolina would not be viewed by anyone as a jurisdiction that has been particularly favorable to defendants on criminal justice issues.  The fact that the legislature in South Carolina now has a proposal to consider on recording interrogations means that, little by little, we are nearing a tipping point, which will bring us closer to what the scientific research shows us.

 

An article titled “Lawyers, Saying DNA Cleared Inmate, Pursue Access to Data” tells the story of the case of Joseph Buffey, a man imprisoned in West Virginia for 70 years for rape.  And Buffey’s story tells us something disturbing: control of DNA evidence in most states is in the hands of law enforcement.  Unfortunately, this can block defense efforts to get at the truth.

Buffey’s case features something common to more than a quarter of DNA exonerations: he confessed, and later entered a guilty plea and apologized, at the urging of his lawyer.    But Buffey then recanted his confession and maintained his innocence.  Years later, defense lawyers got the physical evidence tested, and the DNA did not belong to Mr. Buffey.

Defense lawyers then asked the state to run the sample against the state’s DNA database (known as CODIS, which stands for Combined DNA Index System).  The idea, of course, was that the DNA might have come from a person whose DNA was already in the database.

The state of West Virginia’s reaction: no thanks.  According to the article, the authorities in West Virginia said that “the state does not believe such testing will or can prove the defendant’s innocence after his guilty plea.”  West Virginia is one of the other thirty-one that do not give a defendant the right to have the sample run through the DNA database.

After 18 months of legal wrangling, West Virginia agreed to the test.  The result: the DNA belongs to a man incarcerated in another state prison with a history of assaulting women.

Naturally, Buffey’s lawyers are now working to get him out of prison.  But the more important thing to notice is that in West Virginia, as in most other states, DNA databases, constructed at great public expense, remain in control of one party to criminal cases: the prosecution.  They, and they alone, decide whether testing will be done, and under what circumstances.  And while we can certainly hope that requests to run DNA through the database will be granted, it can also be withheld when the state simply decides that this is not in its interest.

But the article contains something I had not seen before.  Scott Burns, executive director of the National District Attorneys Association is quoted as saying that he sees the failure to run DNA samples through CODIS as a problem that must be solved.

We, as law enforcement and prosecutors, are obligated to seek the truth and follow the evidence, and DNA should be entered into Codis,” said Burns.  “It seems like there should be laws for it, and I agree that the defense should be given the information.

Hats off to Mr. Burns and the NDAA if this is their official position.  (I say “if” because they have not always been open to such changes.)  In the next few days, I will attempt to confirm that the impression given by the story — that the organization would join in an effort to assure that DNA in a case like Buffey’s should be run — is correct.

There is more talk than ever about how to safegaurd the criminal justice system against false confessions.  One reform that can help avoid these catastrophic errors is for police to record in-custody confessions.  With a recording of the entire interrogation (not just the part where the subject admits his or her involvement), the worst abuses are curbed, the jury or judge can see and hear exactly what happened, and there are many fewer legal issues about whether Miranda warnings were properly given.  The results, according to the police departments that have been required under state law to do this for years (most notably, Minnesota since 1994 and Alaska even earlier) have been almost uniformly positive.

Thus I was encouraged by a news item I saw from Pennsylvania, my home state, in which a county prosecutor seemed to take a forward-looking stance: she was launching a pilot program in which county detectives will record interrogations of murder suspects:

“Police and prosecutors need to be on the front lines of making sure we are doing things the right way … It’s up to us to do our jobs with integrity and maintain integrity in our investigations,” Montgomery County District Attorney Risa Vetri Ferman said…[S]he said she was drawn to the issue after serving as a member of the Joint State Government Commission’s advisory committee on wrongful convictions. The committee issued a report in the fall of 2011.

Applause for Ms. Fermin…except for one thing.  She is against any requirement that recording  be mandatory.  Rather, police and prosecutors should get to decide for themselves whether they want to do this.

“When you’re working in law enforcement and you’re working on the street … you learn there are any number of ways to do” things, Ms. Ferman said. “Why would you try to hamstring police? The goal should be: do it right, do it properly, do it with integrity and do it fairly.”

I can’t agree.  First, police and prosecutors in Pennsylvania have the power, right now, to decide to make recording of interrogations standard practice.  Despite the fact that it is universally applauded by law enforcement in every jurisdiction in which it is required — see the many comments here and in Failed Evidence from police and prosecutors experienced with recording — most agencies still don’t do it.  Second, recording really does make for better law enforcement and better outcomes and fewer false confessions. So there comes a time when those resisting should not get to continue to resist, just because they think they know better.

If a doctor wanted to keep using leeches because he thought he knew better, would we let that continue?

 

 

Recall the 1989 case of the Central Park jogger: a young woman brutally beaten and sexually assaulted in Central Park.  The suspects, five young black and Latino men, confessed while in police custody.  Based on those confessions — there was no physical evidence connecting them to the crime, and their DNA did not match specimens at the crime scene — they went to prison.  Years after the fact, a convicted rapist and murderer confessed that he had perpetrated the crime, acting alone.  When his DNA did match, the five men were exonerated by a court.

This case is the newest subject for filmmaker Ken Burns, the man who has made widely-acclaimed multi-part PBS documentaries about baseball, the Civil War, and so many other aspects of American life and history.  In “The Central Park Five”, Burns (joined by co-directors David McMahon and Sarah Burns, his daughter) tells a powerful story of injustice.  A major focus of the film is a central question that will be familiar to readers of Failed Evidence: why would anyone ever confess to committing a serious crime, when the person did not do it?  For example, here is Kenneth Turan, film critic for the Los Angeles Times, in a review heard December 3 on National Public Radio’s Morning Edition:

“The Central Park Five” also serves as a cinematic primer on what has become a disturbing aspect of our criminal justice system: the ability and the willingness of police to psychologically manipulate people into confessing to things they have not done.

Turan’s review lets one of the five exonerated men explain why and how such a thing could happen:

They had made up a story saying something like, uh, ‘well, we have your prints on her pants.’  I’m thinking, ‘how did they take my prints, and put it on her pants?’

Readers of Failed Evidence will recognize what happened here: lies about forensic results and forensic testing are among the perfectly legal interrogation techniques that increase the risk that an innocent person will confess.

Congratulations to Burns and his co-directors for bringing the full story of the case to the nation’s attention.   The question I am most frequently asked, in presentations and interviews of all kinds, remains the same: why would anyone confess to something that the person did not do?  Perhaps The Central Park Five will help give people an answer.

 

This week, Jurist, a national and international legal reporting website, is featuring my commentary on Failed Evidence.   Here’s a quick sample:

[The] image of a deep alliance between police work and modern science is misleading at best. With the exception of DNA work and certain kinds of classic chemical analysis, law enforcement generally does not embrace existing scientific work. In fact, police and prosecutors in the US resist science. The scientific work I am referring to involves the testing of the more traditional techniques of law enforcement investigation and prosecution: not the high-tech sheen of the DNA lab, but scientific testing of eyewitness identification, the interrogation of suspects and the more traditional forensic methods such as fingerprint identification. This is the daily bread and butter of law enforcement, and scientists have found it wanting. The science on these basic police investigation methods has existed for years — some of it for decades. It is rigorous, and has undergone peer review, publication and replication. It tells us what the problems with traditional police work are, and also gives us some straightforward ways of solving these problems. Yet, most — not all, to be sure, but most — of American law enforcement continues to resist this science and refuses to change its basic tactics to reflect the best of what science has to offer.

Jurist mixes straight reporting and commentary from the U.S. and around the world; it’s a great source for anyone interested in issues of justice and how it plays out in domestic and international situations around the world.  (Full disclosure: Jurist is supported by my own institution, the University of Pittsburgh School of Law, and has been guided and run since the beginning by my esteemed colleague, Professor Bernard Hibbitts.)  Check it out.