For Further Study:
- Professor Hans interview with Saul Kassin, Ph.D.
- Innocence Project False Confessions Page
- Frontline Episode - The Confessions
- False Confessions Non-profit Organization
- Central Park Joggers
- Leo & Drizin, The Three Errors: Pathways to False Confessions and Wrongful Conviction
- Kassin et al., Police-Induced False Confessions: Risk Factors and Recommendations
- Scott-Hayward, Explaining Juvenile False Confessions: Adolescent Development and Police Interrogation
- Drizin & Leo, The Problem of False Confessions in the Post-DNA World
- Clarence Watson et al., False Confessions, Expert Testimony and Admissibility
- Association for Psychological Science, Law and Disorder: The Psychology of False Confessions
Compiled by Amelia Hritz, Michal Blau, and Sara Tomezsko
Police-induced false confessions are among the leading causes of wrongful convictions.1 There are two doctrines in criminal law designed to keep illegally obtained confessions from the jury. The first is the Miranda warnings designed to establish procedural safeguards to protect a suspect from unknowingly incriminating himself. The second is the voluntariness requirement that prevents coerced confessions from reaching the jury. However, these rules govern the admissibility of a confession into evidence only; they cannot be relied upon to determine false from true confessions. To combat false confessions and wrongful convictions, innocent defendants must turn to social scientists and expert witnesses to present evidence on the dynamics of false confessions. Since the DNA exonerations by the Innocence Project have conclusively proven the innocence of some confessed offenders, social scientists have been able to examine false confessions in more detail. Their work has raised novel questions:
Are some offenders more likely than others to falsely confess to a crime?
How is social science evidence on false confessions used at trial?
Can false confessors who are later exonerated receive compensation for their wrongful convictions?
False confessions are not unique to the United States and other countries are beginning to investigate its prevalence. In Israel, a country that uses a combination of common law system with some civil law characteristics and has no jury system, individuals have also been convicted based on confessions for crimes they did not commit.
In the video below, Rebecca Murray, Ph.D. discusses the important role of social science in the legal system.
Rebecca K. Murray, Ph.D. is Chair of the Department of Sociology, Anthropology and Social Work at Creighton University and a volunteer for the Nebraska Innocence Project.
WHAT IS A "FALSE CONFESSION?"
Screen shot from interrogation video of Ada JoAnn Taylor. Credit: Journal Star
A false confession is "an admission to a criminal act – usually accompanied by a narrative of how and why the crime occurred – that the confessor did not commit."2 Characteristics of false confessions make them difficult to research. Police often do not keep records of them, or, if the confessed offenders are convicted, it is often difficult to prove their innocence. In addition, there is no known estimate of the incidence rate of false confessions.3 This makes it difficult for researchers to sample random cases where false confessions may or may not be present.
Even if sampling were possible, in many cases there are not recordings of entire interrogations, or other records that would provide researchers enough data to accurately analyze the confessions. Due to these limitations, most of the research on false confessions is based on analysis of the DNA exonerations.4 This kind of social science research presents several limitations. It is not known if the cases that contain DNA evidence are generalizable to other types of crimes. In addition, DNA exonerations allow social scientists to examine characteristics of the interrogations leading to known false confessions, but they are not able to manipulate and measure potential variables that may cause the false confession.
Alternately, some researchers have designed self-reporting studies of prisoners or police interrogators.5 Self-reporting designs have inherent limitations as well; participants may provide what they believe are socially desirable responses, which skew results. Finally, researchers have conducted laboratory experiments to gather information on the incidence of false confession in hypothetical situations, but ethically these experiments cannot replicate the true conditions of police interrogations.6 While confessions are difficult to study and the individual experimental designs have limitations, multiple methods by various researches have confirmed similar results. We can be confident in the findings presented by social scientists, but must critically evaluate their work.
ARE THERE DIFFERENT TYPES OF FALSE CONFESSIONS?
Dr. Richard Leo, a false confessions expert who testified in the Beatrice 6 case, which is discussed below, has identified three types of false confessions.7
Voluntary False Confession – a false confession knowingly given in response to little or no police pressure.8 Researchers and psychologists suggest that innocent suspects may voluntarily tender false confessions for a variety of reasons, including a pathological desire for notoriety, need for self-punishment stemming from guilt over prior transgressions, inability to distinguish fact from false evidence due to mental impairment, or desire to protect the actual perpetrator.9 A recent example of the desire to protect the
actual perpetrator is the case of Mayra Rosales, the "Half-Ton Killer" who confessed to killing her nephew to protect her sister, who had actually beaten the child victim to death.
Compliant False Confession – a false confession knowingly given to put an end to the interrogation or to receive an anticipated benefit or reward in exchange for a confession.10 These confessions are likely occur when innocent victims succumb to social pressure during interrogation and believe that the short-term benefits of a false confession outweigh the long-term costs of prolonged interrogation.11 A famous example of a compliant false confession in the 1989 Central Park jogger case, discussed below, in which five young suspects were told they could end their lengthy and coercive interrogations in connection with the rape and murder of a female victim if they "provided statements placing themselves at the scene and incriminating others."
Persuaded False Confession – a false confession knowingly given by an innocent suspect who comes to doubt the reliability of his memory and thus comes to believe that he may have committed the crime despite no actual memory of having done so.12 Also called "internalized false confessions,"13 these types of confessions are admittedly rare but exceedingly prejudicial when entered into evidence.14
In the video clip below, Rebecca Murray, Ph.D. discusses the different types of false confessions and the Beatrice 6 case.
WHAT CAUSES FALSE CONFESSIONS?
There are three kinds of errors made by police interrogators that can lead to false and detailed confessions.15
Misclassification Error – police mistakenly believe an innocent person is guilty.
Coercion Error – during the interrogation, police use techniques that break down a suspect's resistance to admitting guilt. Police often lie about the existence of persuasive evidence against the suspect in order to persuade the suspect that there is no way out and confessing will improve the situation. Interrogators can communicate to the suspect that the suspect will receive a higher charge or harsher punishment if he does not confess (or lesser is he does confess). The interrogator may also wear down or distress the subject to the point where he believes he has no choice but to confess.
A laboratory experiment by Kassin and Kiechel demonstrated the coercion error by finding that the presentation of false evidence could lead individuals to confess to an act they did not commit.16 Fully 69% of the participants in their study signed a confession that they hit a computer key causing an error in the computer system after being confronted with evidence that they were responsible. In addition, 28% of the participants believed that they were responsible, and 9% confabulated details to confirm their false beliefs. Furthermore, when the experiment was fast-paced (causing the participants to be uncertain if they were responsible) and when a witness claimed to have seen the participant hit the computer key, 100% of the participants signed a confession, 65% believed they were guilty and 35% confabulated details to support their false belief. These results suggest that false evidence can cause people to internalize blame and alter memory for their own actions.
Contamination Error – police shape the suspect’s statements and provide details to the confession (including crime facts and plausible motives) to make the statements as persuasive as possible. Police often do this by subtly motivating suspects to provide "correct" answers to their questions. The interrogator may try and get the suspect to include the following details in his or her confession: motive and explanation, emotions during and after the crime, statements that the confession is voluntary, and general or specific knowledge of the crime.
In the video below, Ada JoAnn Taylor discusses the interrogation tactics that led to her false confession. Her history of mental illness and physical abuse made her more vulnerable to these tactics and she came to believe that she was guilty.
Ada JoAnn Taylor was exonerated in 2009 by DNA evidence after spending almost 20 years in prison for a rape and murder that she did not commit. She and her five codefendants have become known as the "Beatrice Six."
HOW PREVALENT ARE FALSE CONFESSIONS?
The Innocence Project documents wrongful convictions cases in which the defendant was later exonerated by DNA evidence. Of the first 225 exonerations, 23% of the underlying wrongful convictions were based on false confessions or admissions.
ARE CERTAIN OFFENDERS MORE LIKELY TO FALSELY CONFESS?
Social scientists have identified several factors that may contribute to the likelihood that a suspect will provide a false confession.17 We have provided a demonstrative example of the studies conducted to demonstrate each risk factor, but the plethora of social science evidence available is enough to fill a separate website for each individual factor.
Social science evidence strongly suggests that juveniles are particularly susceptible to interrogation techniques that produce false or involuntary confessions. In a study conducted by Steven A. Drizin and Richard A. Leo, researchers identified 125 false confession cases between the years of 1971 and 2002 by combing through electronic media and legal databases, police reports, trial transcripts, articles and books.18 The study focused on proven false confessions – those that dispositive evidence objectively established were indisputably false because the confessor could not possibly have been the perpetrator of the crime.19 The study indicated that juveniles (persons under the age of 18) were overrepresented in the sample of false confessions comprising approximately 33% of the sample.20 Of the 40 juvenile false confessors identified in the study, 22 were 15 years old or younger.21 This evidence suggests, "juveniles tend to be more ready to confess in response to police interrogation, especially coercive interrogation."22
Credit: Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C.L. REV. 891, 945 (2004).
Cognitive or Intellectual Disability
Social science evidence suggests that the same vulnerability to false confessions seen in juvenile populations is present in populations with cognitive or intellectual disability as well.23 Researchers recruited 1,249 individuals with mental illnesses from jails and courts in six locations around the United States to participate in a self-reporting survey about false confessions and false guilty pleas.24 Diagnoses of participants’ mental illness were obtained from the collaborating jail or court.25 Participants were asked two questions:
- Did you ever confess or admit to the police that you did a crime when you really did not do the crime? (emphasis in original)
- Did you ever plead guilty to a crime you did not commit?
Participants who answered yes to either question were asked the number of total times, the most serious crime for which they falsely confessed/falsely pleaded guilty, and the reasons why.26
Results indicated that 274 participants (22%) had falsely confessed to a crime they did not commit.27 A total of 453 participants (36.5%) tendered false guilty pleas.28 Researches also noted the strong correlation between those who had falsely confessed and those who tendered false guilty pleas; of those who false confessed, 84% also claimed to have false plead guilty.29 Researchers also identified the type of false confessions given by participants (results indicate some overlap due to participants citing more than one reason). Overall, 65% of participants provided compliant false confessions (e.g., to stop police questioning and go home); 53% of participants provided voluntary false confessions (e.g., to protect the real perpetrator); and 26% of participants provided persuaded or internalized false confessions (e.g., participant initially thought he or she was the actual perpetrator).30 In addition, 48% of participants claimed that police pressure resulted in their false confessions.31 Researchers suggest that such high rates of false confessions and false guilty pleas among offenders with mental disabilities are due to higher levels of compliance32and suggestibility among this population.33
One particularly noteworthy limitation of this study is the heavy reliance on self-reported information from those diagnosed with mental or cognitive disabilities. While self-reporting surveys are often prone to threats like socially desirable answer reporting, one may wonder how this threat is exacerbated in the case of respondents with intellectual disabilities.
Credit: Allison D. Redlich et al., Self-Reported False Confessions and False Guilty Pleas Among Offenders with Mental Illness, 34 LAW & HUM. BEHAV. 79, 82 (2010).
Personality Disorders or Psychopathology
While this risk factor seems to encompass a wide and diverse breadth of the population, several studies conducted in recent years indicate that disorders such as depression and attention deficit hyperactivity disorder (ADHD) increase the likelihood that an offender will false confess to a crime. A study conducted on 90 male Icelandic prisoners demonstrated the heightened risk of false confessions among inmates diagnosed with ADHD.34 Within 10 days of initial incarceration, each participant was interviewed regarding their socio-economic background and asked the following question: Have you ever made a confession to the police about a crime you did not commit?35 Participants were then asked to complete four survey or questionnaires: the Gudjonsson Suggestibility Scale and the Gudjonsson Compliance Scale to measure suggestibility and compliance, the Wender Utah Rating Scale to detect childhood symptoms of ADHD, and the DSM-IV Checklist of Symptoms to detect adult symptoms of ADHD.36 Of the total sample of participants, 27 participants (30%) were symptomatic for ADHD.37 Among this group of ADHD symptomatic participants, 11 (41%) reported having made a false confession to police.38 Compared against the statistic for non-ADHD symptomatic participants (only 18% had reported false confessions), this difference is statistically significant. Researchers accordingly concluded "people with current ADHD symptoms, regardless of their childhood symptoms, are vulnerable to making a false confession during interrogation."39
One significant limitation to this experimental design in the possibility of limited external-validity. Although researchers specifically chose ADHD, a personality disorder that exhibited substantial overlaps with other disorders, it may not be possible to extrapolate as to the impact other social disorders would have on instances of false confession. Indeed, one might expect very different results between respondents diagnosed with ADHD, a relatively mild social disorder, and respondents with paranoid schizophrenia for example.
HOW IS SOCIAL SCIENCE EVIDENCE OF FALSE CONFESSIONS USED AT TRIAL?
Tracy Hightower-Henne, J.D. describes the process of introducing evidence of a false confession at trial.
In the following video, Rebecca Murray, Ph.D. and Tracy Hightower-Henne, J.D. discuss the courts' reactions to false confession evidence.
Social science evidence documents the prevalence of false confessions, and suggests that certain individuals are more likely to falsely confess than others. Such evidence might be invaluable to an innocent defendant at trial. However, courts have traditionally excluded such expert testimony on false confessions because the possibility of false confessions fall within the common knowledge of the average juror, and therefore would not assist the jury in evaluating the confession evidence.40 The following cases illustrate this point.
State v. Davis, 32 S.W. 3d 603 (Mo. Ct. App. 2000).
Defendant was convicted by a Missouri trial court of murder in the first degree, armed criminal action and attempted forcible rape. During police interrogation, the defendant tendered a confession. At trial, however, the defendant argued that the confession was false and that the police coerced him into making a confession by promising leniency, among other techniques. The defendant sought to offer testimony by Dr. Richard Leo regarding the correlation between certain criminal interrogation techniques and incidents of false confessions. Dr. Leo’s testimony would also serve to educate the jury on why false confessions occur and how to evaluate the reliability of a confession. The trial court declared that the expert testimony was inadmissible since "it would not aid the jury."
On appeal, the defendant argued that the trial court erred in excluding the expert testimony of Dr. Leo on the subject of false confessions. The Missouri Court of Appeals affirmed the trial court’s exclusion of the expert evidence, stating that "[t]o allow such expert testimony invades the jury’s proper realm." The Court noted that the jury is already capable of understanding why a statement made to police would be unreliable, and therefore Dr. Leo’s expert testimony would be "a superfluous attempt to put the gloss of expertise, like a bit of frosting, upon inferences which lay persons were equally capable of drawing from the evidence."
Vent v. State, 67 P.3d 661 (Alaska Ct. App. 2003).
Eugene Vent was convicted by an Alaskan trial court of second-degree murder, first-degree sexual assault, second-degree assault, and two counts of first-degree robbery of two victims. During interrogation, Vent made inculpatory statements to police which were introduced into evidence at trial. Vent contested the use of his confession against him, arguing that it was involuntary. He also sought to offer expert testimony from Dr. Richard Leo regarding the psychology of confessions and how police interrogation techniques can cause innocent people to confess to crimes they did not commit. Specifically, Dr. Leo was prepared to testify that:
There is a common belief that people do not make unreliable or false statements unless they’re tortured or mentally ill. And I would explain … that’s not the case, sometimes people do make false statements, even if they’re not psychically tortured or mentally ill, that there … is psychological research that explains how certain techniques can lead people to make the decision to confess whether they’re guilty or innocent. And that there are certain principles of analysis that researchers use to evaluate whether or not statement is likely reliable or likely unreliable. … [The testimony would explain] how interrogation works to produce confessions, particular techniques and what their impact can be on someone’s decision making.
The trial court excluded Dr. Leo’s testimony on the ground that it "would not appreciably aid the jury in determining whether Vent made a false confession." The trial court further explained that there was no way to quantify or test Dr. Leo’s conclusions, suggesting it would fall short of the stringent Daubert standard governing admissibility of expert testimony. Like the Davis court, the trial court also believed that jurors were inherently aware of the possibility of false confessions. On appeal, Vent argued that the trial court erred in excluding Dr. Leo’s testimony. In its review of the trial court’s decision, the Alaska Court of Appeals cited at length the work of Major James R. Agar II, author of The Admissibility of False Confession Expert Testimony. Agar conceded that at least two federal appellate courts had found this type of expert testimony admissible, and that state courts were split on the issue. However, the Court of Appeals agreed with Agar’s assessment that "false confession theory needs further study and refinement. Consequently, the admission of expert testimony based on this new theory is premature and therefore unreliable." In the end, it was within the discretion of the trial court to conclude that Dr. Leo’s testimony would not aid the jury in Vent’s case.
State v. Lamonica, 2009-1366 (La. App. 1st Cir. 7/29/10); 44 So. 3d 895.
A Louisiana trial court convicted pastor Louis Lamonica of raping his two sons, M.L. and S.L. over a period of eight years. During a psychological examination of the boys, both revealed to a pediatric forensic medicine specialist that they were forced to perform sexual acts on their father and other members of the church. Subsequently, Lamonica voluntarily contacted police and confessed to raping his sons. During one of three inculpatory interviews, Lamonica provided detailed accounts of various sexual encounters at the church that involved his sons. His confession was introduced against him at trial. When the trial commenced, however, both sons testified that the sexual abuse had never occurred, and that a member of the church was forcing them to make false allegations against their father. Lamonica contested the validity of confession, stating that his spiritual advisor, Lois Mowbry, had control over him and forced him to speak and write about acts he never committed. Lamonica also sought to introduce expert testimony of Dr. Richard Ofshe on false confessions and the influence of high-control groups or cults. The prosecutor challenged the legitimacy of Dr. Ofshe’s testimony and the scientific evidence of false confessions generally. Upon this challenge, the trial court retired the jury and conducted a Daubert hearing.
At the Daubert hearing, Dr. Ofshe explained the difference between voluntary false confessions and interrogation-driven coerced confessions. He explained that a voluntary confession "can occur because of pressure brought on an individual by his environment, including a high-control group, to do something." When asked about his methodology in studying false confessions, Dr. Ofshe explained that "it consisted of observations of confessions and interviews of those who gave false confession or were involved in high-control groups," and that he did not use laboratory studies because his conclusions were "based on the study of real interrogations in the real world." The prosecutor also questioned Dr. Ofshe on the "testability" of false confession theory, to which Dr. Ofshe replied that "mention of an error rate is premature." He continued:
It’s not impossible to test it. It’s prohibitively expensive and prohibitively laborious, even assuming you could do it. It would take a methodology that is not worth the effort. The methodology that’s used within the social sciences is to look at established, proven cases in which miscarriages have occurred, study what happened in those cases, and therefore isolate the power of false confession to produce a miscarriage of justice. That doesn’t tell us how many miscarriages happen annually and it doesn’t tell us how many false confessions happened annually. But it does tell us that false confession is a major contributor to innocent people going to prison.
Both the trial Court and the Court of Appeals rejected Dr. Ofshe’s testimony as falling below the Daubert standard of admissibility. The Court of Appeals explained that false confession theory lacked a methodology that could be tested, and the lack of an appreciable error rate cast doubts on the reliability of this kind of evidence. The Court of Appeals concluded that the science of false confessions, particularly in the area of voluntary false confessions caused by a high-control group, was "vague and speculative, at best." Finally, in light of the fact that Dr. Ofshe had not worked on or studied any cases in this particular area for more than ten years, his expert testimony fell short of the necessary indicia of reliability under Daubert. These shortcomings noted by the court at the Daubert hearing addressed Dr. Ofshe’s credibility as an expert witness regarding this specific topic. The Court strongly implied that had it accepted high-control group induced false confession theory as sound science in its own right, Dr. Ofshe’s lack of recent research in the area would have disqualified him as an expert witness.
In the following video, Tracy Hightower-Henne, J.D. gives advice to lawyers who have cases with confessions.
CAN FALSE CONFESSORS WHO ARE LATER EXONERATED RECEIVE COMPENSATION FOR THEIR WRONGFUL CONVICTIONS?
Social science evidence plays a completely different role in civil cases in which exonerated false confessors seek compensation for their wrongful convictions. An illustrative example of the use of social science evidence in a compensation case is the case of Ada JoAnn Taylor.
Taylor v. Smith, No. 4:09CV3148, 2009 WL 4263644 (D.Neb. Nov. 25, 2009).
Police arrested Taylor and five others (Thomas Winslow, Joseph White, Kathy Gonzalez, James Dean and Debra Shelden) for the rape and murder of Helen Wilson. Taylor was subjected to repeated interrogations after her arrest. She was told that Joseph White, a former acquaintance of Beatrice, had implicated her in the crime. In addition, Dr. Wayne Price, a Deputy Sheriff of Gage County who had also been Taylor’s psychologist prior to the case, was involved in Taylor’s interrogations after her arrest. Eventually Taylor confessed to the crime and pled guilty to second-degree murder. She spent close to twenty years in prison before she was exonerated by DNA evidence. Taylor filed for compensation under the Nebraska Wrongful Convictions Act.
The Nebraska Wrongful Conviction Act requires clear and convincing evidence that the claimant is innocent of the crimes he or she was convicted of and that:
He or she did not commit or suborn perjury, fabricate evidence, or otherwise make a false statement to cause or bring about such conviction or the conviction of another … except that a guilty plea, a confession, or an admission, coerced by law enforcement and later found to be false, does not constitute bringing about his or her own conviction or such crime or crimes.41
Thus, Taylor was required to demonstrate that she did not knowingly make false statements because at the time she truly believed she was guilty. To do so, Taylor and Dean (in his separate compensation case) enlisted Dr. Richard Leo to introduce evidence on the dynamics of false confessions. Dr. Leo testified that Taylor had a history of mental illness and alcohol abuse that caused her to be vulnerable to interrogation tactics by police. He further testified that her confession was a persuaded false confession and she really believed she was involved in the murder. Citing Dr. Leo’s testimony, Judge Daniel E. Bryan Jr. granted Taylor $500,000 in compensation, which is the maximum amount under the Nebraska Compensation Statute. Judge Bryan stated that "the primary blame or cause for Taylorís belief of guilt rests primarily on law enforcementís mistakes, whether intentional or unintentional. Law enforcement was fully aware of Taylorís history and mental illness. No precautions were taken to assure she was a credible witness."
In the following video, Tracy Hightower-Henne, J.D., Rebecca Murray, Ph.D. and Ada JoAnn Taylor discuss Taylor's compensation case.
A COMPARATIVE VIEW – FALSE CONFESSIONS IN THE ISRAELI LEGAL SYSTEM
The Israeli legal system is a western legal system with unique characteristics. It has a lot in common with United States law, and is composed of a common law system with civil law characteristics with additional resources, such as Jewish Law (the "Halachah") and the Ottoman System.42 Israel legal system is based on case law but has codification attempts. There is no jury in courts, but only judges that are being elected according to profession, including in the Supreme Court. The Supreme Court is very accessible and is dealing both with entitlement appeals and permission appeals, as well as a court of first instance often in matters concerning the legality of decisions of state authorities.
The confession is considered "Queen Evidence" (very strong evidence) in Israel’s legal system, both in legislation and in court. Since the early 1990s, several severe cases have been proven to be wrongful convictions based upon false confessions. In some of the cases, the police were exposed as using harsh patterns of investigation, include physical violence and threats; however, in other cases the causes of the false confessions varied.
Baranes v. Israel (HCJ-retrial decision 3032/99; civil procedure 429/03)
Amos Baranes, spent 8.5 years in prison for the murder of Rachel Heller, a crime to which he confessed, however, he was declared not guilty by the court 18 years after his conviction. After he was released, he initiated a civil law suit against Israel and received compensation of about $350,000 USD for the time he was in prison and for the treatment he received from police during the investigation that led him to confess. The law in Israel gives the court discretion to decide if and how much compensation a person should receive after being declared innocent in a retrial. In deciding this question the court can balance various factors, including the reason for the retrial and for the declaration of innocence, the suffering that the person and the person's family has been through, and the government’s arguments. In order to determine compensation in this case, the Court used Baranes’ testimony as to what he was put through during the investigation and the effect of jail time of his life, but there was no use of expert testimony.
The Israeli courts can allow expert testimony regarding the effects of interrogations that lead to false confessions, but do so only rarely. For example, psychiatrists may testify about the effects of police interrogations on minors and the psychological and social aspects of interrogations. The expert can testify about false confessions in general and about the specific case (e.g., the defendant’s behavior in a videotaped interrogation is typical of false confessors who are attempting to satisfy interrogators). The Court referred to this testimony in its opinion, but challenged the reliability of the studies, which the experts relied upon.
In Israel, unlike the U.S, there is no jury system, and therefore the judges decide the ruling and the sentences. In Israel, the court sees itself as having enough understanding and knowledge on the subject of false confessions to not need any experts. Therefore, the use of expert testimony on this subject is rare.
The false confession issue is a contemporary subject that is being promoted and discussed by the top legal professionals, judges and professors in Israel. These efforts lead to a new rule of evidence that will be legislated and will include obligatory evidence corroborating the confession in order to convict. This corroborating evidence is not just minor evidence that can be established from the confession itself and must be "something more." In addition, there is an Israeli organization named Hezkat-Haput ("innocent until proven guilty"), which seeks to spread knowledge regarding the problematic aspects of the use of confessions at trial in order to change the current approach.
According to Jewish Law, a person cannot be convicted upon his own confession. In order to achieve justice and convict a person for a crime, there must be two witnesses to the crime. However, Israeli Law has not adopted this rule of evidence or the state of mind that the Halachah reflect upon it.
A former Israeli Supreme Court Justice, Dalia Dorner, expressed an instructive remark within the context of a dissenting opinion43:
The confession of an accused person is suspicious evidence, even if it was made without external pressure having been exerted on the accused. In many cases a confession is an irrational act, and taking the irrational step itself of making a confession, raises a suspicion regarding the veracity of the confession. This suspicion is not merely theoretical, but rather it has been proven several times by human experience.
HOW CAN WE PREVENT FALSE CONFESSIONS?
One solution that is being implemented in certain states is recording the entire interrogation of a suspect. This allows investigators to go back and discover where details from the confession came from to determine if they were truly provided by the confessor. While this is a great improvement, it is not the entire solution because it is not possible to videotape every moment of the confessor’s life. For example, there may be unofficial interrogations that affect their mental state, such as comments made by prison guards.
In the following video, Ada JoAnn Taylor and Rebecca Murray, Ph.D. discuss changes to interrogations that are necessary to prevent false confessions.
Another method that the Nebraska Innocence Project has promoted is preventing interrogators from threatening suspects with the death penalty, which can coerce innocent suspects to confess in exchange for a lesser sentence.
In the following video, Tracy Hightower-Henne, J.D. and Rebecca Murray, Ph.D. discuss the threat of the death penalty and false confessions.
Another way to reduce the likelihood of a false convictions based solely upon confessions is to require corroborating evidence to the confession, as is required when accomplices implicate others in crimes.44 As more people are exonerated through DNA evidence, the problems in the criminal justice system are being illuminated. It is important for more research to be done on the characteristics of false confessions and for the courts to be more willing to accept evidence that people do falsely confess. While Ada JoAnn Taylor and the other members of the Beatrice 6 have been exonerated, they are still feeling lasting effects from the police interrogations and the time they spent in prison.
In the following video, Ada JoAnn Taylor describes what life has been like after being exonerated.
1 Facts and Figures, FalseConfessions.org (2009), http://falseconfessions.org/fact-a-figures (last visited Nov. 11, 2012).
2 Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law. & Hum. Behav. 3, 5 (2010) [hereinafter Police-Induced Confessions].
3 Police-Induced Confessions at 5.
4 See e.g., Steven A. Drizin and Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C.L. Rev. 891, 924 (2004).
5 See e.g., Jon F. Sigurdsson & G.H. Gudjonsson, False Confessions: The Relative Importance of Psychological, Criminological and Substance Abuse Variables, 7 Psychol., Crime & L. 275 (2001); Saul M. Kassin et al., Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs, 31 Law & Hum. Behav. 381 (2007).
6 See e.g., Saul M. Kassin & Katherine L. Kiechel, The Social Psychology of False Confessions: Compliance, Internalization and Confabulation, 7 Psychol. Sci. 125 (1996).
7 Aff. of Dr. Richard A. Leo, Ph.D. at 15 Dean v. Smith, 805 F. Supp. 2d 750 (D. Neb. 2007) (No. 4:09CV3144).
9 Police-Induced Confessions at 14.
10 Aff. of Dr. Richard A. Leo, supra note XX, at 15.
11 Police-Induced Confessions at 14.
12 Aff. of Dr. Richard Leo, supra note XX, at 15.
13 Police-Induced Confessions at 15.
14 Aff. of Dr. Richard Leo, supra note XX, at 16.
15 Richard A. Leo & Steven A. Drizin, The Three Errors: Pathways to False Confession and Wrongful Conviction, in Police Interrogations & False Confessions 9 (G. Daniel Lassiter & Christian A. Meissner eds., 2010), available at http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1542901.
16 Kassin & Kiechel, supra note 6.
17 See e.g., Police-Induced Confessions at 19–22; Richard A. Leo, False Confessions: Causes, Consequences, and Implications, 37 J. Am. Acad. Psychiatry L. 332 (2009), available at http://www.jaapl.org/content/37/3/332.full#ref-24.
18 Drizin & Leo, supra note 13, at 924.
19 Id. at 925.
20 Id. at 944.
23 See generally Geoffrey Pickersgill, What Evidence Is There for a Link Between Mental Impairment and an Increased Risk of False Confessions? Internet J. of Crim. (July 2012), http://www.internetjournal of criminology.com/Pickersgill_Mental_Impairment_and_an_Increased_Risk_of_False_Confessions_IJC_July_2012.pdf.
24 Allison D. Redlich et al., Self-Reported False Confessions and False Guilty Pleas Among Offenders with Mental Illness, 34 Law & Hum. Behav. 79, 82 (2010).
25 Id. at 83.
30 Id. at 84–85.
31 Id. at 85.
32 Saul M. Kassin and Gisli H. Gudjonsson, The Psychology of Confessions: A Review of the Literature and Issues, 5 Psychol. Sci. in the Pub. Int. 33, 51 (2004).
33 Id. at 53.
34 Gisli H. Gudjonsson et al., Interrogative Suggestibility, Compliance and False Confessions Among Prisoners and their Relationship with Attention Deficit Hyperactivity Disorder (ADHD) Symptoms, 38 Psychol. Med. 1037, 1038 (2008).
35 Id. at 1039.
36 Id. at 1038–39.
37 Id. at 1039–40.
38 Id. at 1040–41.
39 Id. at 1042.
40 Danielle E. Chojnacki et al., An Empirical Basis for the Admission of Expert Testimony on False Confessions, 40 Ariz. St. L.J. 1, 45 (2008).
41 Neb. Rev. Stat. §§ 29-4601–4608.
42 For more information on Israel’s legal system, visit http://www.theisraelproject.org/site/apps/nlnet/ content2.aspx?c=hsJPK0PIJpH&b=883997&ct=8622625.
43 Cr.F.H 4342, 4350/97 Israel v. Al Abid; Al Abid v. Israel 51(1) P.D. 736, 836 (all translations provided by author). It should be noted that, unfortunately, this view of an accused person’s confession as suspicious evidence—in our opinion, very correct—is not characteristic of many judges.
44 Opper v. United States, 348 U.S. 84 (1954).