False confessions are exceptions, said Leo, not the norm, but they are caused by flaws in policing techniques that make them much more likely to happen. As has been discussed previously on Grits, most police interrogation training in the United States is based on the so-called "Reid method," which teaches there are three stages to the process of questioning suspects: Behavior analysis, the interview, and the interrogation.
Police tactics that encourage false confessions include erroneous behavior analysis and moving too quickly from the "interview" to the "interrogation" phase.
Much of the behavioral analysis taught by Reid and Associates amounts to "faux psychology," said Leo, about how guilty and innocent people behave that doesn't stand up to scholarly rigor. Police are taught to believe these methods are so reliable that officers become "human lie detectors," but excessive confidence in their ability to read deception cues can cause police to inadvertently assume guilt. That can directly lead to the more critical mistake: Moving too quickly from interview to an interrogation.
To be clear: A police interview is a relatively non-confrontational, information gathering process, where police are trained only to use interrogation methods on those they believe are guilty. Interrogation is a "guilt presumptive" process in which officers may lie, yell, intimidate, threaten, offer inducements, or otherwise manipulate suspects to secure a confession.
Leo insisted that police interrogation tactics are the primary cause of false confessions, but thinks that a secondary cause has to do with individual personality types. At risk individuals include juveniles, the mentally retarded, the mentally ill, people who are highly suggestible or compliant, or who have poor memory or high anxiety.
Most false confessors, he said, are "mentally normal" individuals, but those in a risk group are more likely to falsely confess.
There are three types of false confessors, said Leo: Voluntary, Compliant, and Persuaded. To use a current, local example, all three of these false confession types were in play in Austin's Yogurt Shop murders.
Voluntary false confessions typically occur in high profile cases when people come forward of their own volition to confess to the crime. This is a surprisingly common phenomenon -in Austin's Yogurt shop murders, some 50 different people confessed to the crime.
A "compliant" confesson occurs when a suspect confesses at the end of a long, grueling interrogation in order to put an end to the stress and make the interrogation stop. In the Yogurt Shop case, the confession offered by defendant Robert Springsteen falls into this category, he said.
The "persuaded" confessor actually comes to temporarily believe, or at least accept, that they must have committed the crime even when they really didn't. Leo said that Michael Scott's confession in the Yogurt Shop case is a classic example of this, and that he believes Scott is actually innocent with "every bone in my body."
Quite a few "persuaded" confessors have had their convictions overturned by DNA evidence, said Leo, pointing out that DNA evidence failed to corroborate Scott and Springsteen's Yogurt Shop confessions.
In summary, Leo says there are three basic "pathways to false confessions." Police may make "misclassification" errors in which officers misjudge guilt on the front end and mistakenly initiate interrogations. They might make a "coercion" error in which psychological manipulation techniques backfire and intimidate innocent suspects to confess. And police also can make a "contamination" error, in which they inadvertently feed suspects information that later fills out the details of a confession, but which came from the officer, not the defendant.
When it comes to public policy reforms to prevent false confessions, Leo thinks recording interrogations is the best available tool. Generally, he said, police tend to oppose recording interrogations on the front end, but once they've fully implemented the practice, "they love it." While some false confessions still occur when they're recorded (like Scott and Springsteen's), recording creates a reviewable record, eliminates "swearing contests" about what was said in the interrogation room, and protects police from false allegations of misconduct.
Ten states already require recording interrogations, he said. In two of them - Minnesota and Alaska - courts issued the requirement, while elsewhere it was enacted through legislation. Wisconsin's statute, said Leo, is the best version currently available and should be considered a model.
Some states require recording in all felonies, some only for homicides, and the Wisconsin legislation allows exceptions for field interviews and when exigent circumstances prevent recording.
Rep. Jim McReynolds asked about funding, to which Leo replied that this is an often-raised concern by police but their objections can be easily overcome. These days recording is "not super expensive," he said, and digital storage has become especially cheap.
What's more, recording saves the state money at future points in the process, though such savings won't necessarily accrue to the police budget. Overall, recording more than makes up for the minimalist expense by saving time in the courts, mostly because it facilitates plea bargains and reduces haggling over whether confessions are admitted. The recording expenditure more than pays for itself when you consider how much it costs to pay lawyers, judges, bailiffs, etc., for suppression hearings.
While Leo said recording interrogations would be his top recommendation for reducing false confessions, he mentioned several other approaches worth recording here:
- Expanded police training on the causes of false confessions and how to avoid them.
- Create a post-confession review team when a confessor falls in an at-risk group
- Jury instructions where confessions are the primary evidence.
- Allowing expert witnesses in court to dispute confessions.
BLOGVERSATION: From Simple Justice, "The Bricks that Build a False Confession." See also coverage of Leo's talk from the Stand Down Texas blog.