If someone is in prison because they confessed to a crime, you can be pretty sure that they’re actually guilty, right? Statistically, that’s probably a safe bet.
However, a surprising, and disturbingly-high, number of people have been exonerated (almost always through DNA evidence) years after having been convicted, with the only evidence against them being their own confession. Since 1976, at least 40 people in prison based on their own confessions have been proven innocent, according to a New York Times story. And that’s just the number of confirmed cases. The actual number is almost certainly much higher.
How can this be? What could possibly drive an innocent person to doom themselves to years in prison by confessing to a crime they didn’t commit?
Well, there are some obvious explanations: if a defendant is very young, mentally ill, or mentally impaired, inducing them to confess might be quite easy, and interrogators might even induce false confessions unintentionally in cases like this. However, a large number of these cases involved adults of at least average intelligence, with no obvious susceptibility to suggestion.
To be a skilled interrogator, one has to be very good at psychological manipulation. There’s nothing inherently wrong with that. However, an interrogator must be careful to ensure that they’re manipulating the subject into to telling the truth, not what the interrogator wants to hear. Sometimes, even the interrogator might not be consciously aware of which is which.
In getting a confession, the first thing the interrogator has to do is convince the suspect to start talking. After all, when you’re arrested, you’re under absolutely no legal obligation to answer the questions of your interrogator, and you have a right to have an attorney present during questioning. However, when a suspect invokes this right, the police typically don’t bother with an interrogation, since the presence of an attorney makes interrogation much more difficult. So, the first thing the interrogator has to do is get the defendant to waive this right. Usually, it’s not very difficult.
The interrogator will tell the suspect something like “well, you could get a lawyer, that’s certainly your right, but if you do, we won’t be able to talk anymore, and I’ll have to write it up like I see it, without getting your side of the story.”
“You made a smart choice, kid. Now, if you could just sign here, indicating that you voluntarily waive your right to remain silent, we can get started…” And so it begins.
The suspect has agreed to talk. Why don’t they just explain where they were when the crime was committed, and, knowing they’re telling the truth, assume that the evidence will bear this out? Well, if an interrogator is convinced that they’ve got the right person, they probably don’t want to be proven wrong (just as nobody likes being proven wrong). According to the New York Times story, one suspect simply told the interrogator what he thought he wanted to hear, just to end the hours of intense questioning, which had become nearly unbearable. Still, many of these false confessions contain details about the crime that prosecutors tell juries only the perpetrator could have known.
In the case of false confessions, this is caused by interrogators dropping certain hints about the details of the crime to the suspect, either intentionally or unintentionally. This is known as “contamination.” Just like a crime scene needs to be tightly controlled to prevent outside materials from mixing with evidence left by the perpetrator, interrogators must be very careful to not give the suspect any information about the crime that only the perpetrator should know. This way, if the suspect slips and lets on that they know some of these details, you can be pretty sure that they were in some way involved in the crime. But if the interrogator accidentally lets some of this information slip, this method immediately becomes unreliable.
According to the Wall Street Journal Law Blog (also reported here) criminal defense attorneys are taking note. It used to be that an admissible confession was the final nail in a coffin for a criminal defense. Nowadays, defense attorneys are paying much closer attention to confessions, and going to a much greater effort to ensure that confessions are reliable. After all, defense attorneys don’t simply take witnesses for the prosecution at their word, and of course they shouldn’t. They generally expect the prosecutor to present some evidence backing up the statements of witnesses, and if none exists, they make sure the jury knows it.
While it’s certainly good that defense attorneys are getting wise to this phenomenon, some serious changes should be made in police procedure to mitigate the problem of false confessions. For example, perhaps interrogations should be videotaped in all cases involving major crimes, not just capital cases.
And this might be a common theme that’s emerging in my posts, but it always seems to be what I take away from stories like these: the general public needs to be better-educated on the basics of the substantive law that governs their actions and, perhaps more importantly, the legal system that actually carries out those laws.
A citizenry that’s educated about their legal rights will be far less likely to waive them. And if you find yourself suspected of a crime you didn’t commit, waiving your right to have an attorney present during your questioning is just about the last thing you would want to do.
By: Rusty Shackleford