A New Twist to False Confessions – The Pharmacological Factor

We’ve reported before on this blog about how police interview & interrogation tactics and techniques can contribute to false confessions.  See previous posts here, here, here, here and here.  One aspect of false confessions that we have not previously covered is the situation in which a subject is interviewed or interrogated while under the influence of medically supervised mind altering drugs.  Recently, two prominent researchers in this area have undertaken a collaboration on this very subject with the intent of educating attorneys about the pharmacological and psychological factors that may affect how a suspect responds to the pressure of interrogation.

Dr. David Benjamin (medlaw@doctorbenjamin.com) is a Clinical Pharmacologist and Forensic Toxicologist, and Adjunct Associate Professor in the Pharmaceutical Sciences Department of Northeastern University School of Pharmacy in Boston, MA.  Dr. Brian Cutler is Professor of Forensic Psychology and Associate Dean of the Faculty of Social Science and Humanities at the University Of Ontario Institute Of Technology, Oshawa, Ontario, Canada (briancutler@mac.com).  Both have extensive experience as educators, consultants, and expert witnesses.

Dr. Benjamin has authored numerous papers, some of which are available on his website,  www.doctorbenjamin.com.  He also conducts a seminar on “Developing Active Listening Skills” which is intended to raise the awareness of testifying expert witnesses to the rhetorical ploys, subterfuge, forms of questions and other attempts to gain concessions used by prosecutors during depositions or during cross examination.  Dr. Cutler has co-authored, with Prof. Timothy Moore, the article titled “Mistaken Eyewitness Identification, False Confession, and Conviction of the Innocent,” and you can read that article here:  Cutler & Moore

As part of their mission to educate attorneys on interrogation and false confessions in general and pharmacological issues in particular, Dr. Benjamin and Dr. Cutler have proposed a workshop on the topic to the National Association of Criminal Defense Lawyers (NACDL) and the American Bar Association (ABA).  The workshop proposal is under review, and the abstract is provided below.  Regardless of the outcome of the review processes, Drs. Benjamin and Cutler aim to pursue educational opportunities for attorneys and are open to presentation, publication, and other methods of reaching out to attorneys about this timely and important topic.

False and Coerced Confessions: Causes and Cures by David M. Benjamin Ph.D. and Brian L. Cutler Ph.D.

False and coerced confessions are a major cause of conviction of the innocent.  So say Brian Cutler and Timothy Moore in their revealing article published in For the Defense (2012; 34(1)20-26).  In the present paper, a pharmacologist (Dr. Benjamin) and a psychologist (Dr. Cutler) explain the process and factors that lead to false confessions.

Both pharmacologic and psychological factors contribute to false confessions.  Numerous cases have involved police officers visiting suspects in the hospital and interrogating them shortly after, or while they are receiving mind altering drugs like morphine or Ativan.  The medical-legal paradigm is clear.  When a patient has received mind altering drugs, they are not considered competent to sign a consent form for surgery or to alter a legal document such as a will.  If we look to the law for a standard, we recognize the rhetoric used by the judge in a plea colloquy when the judge asks the defendant if he or she has taken any mind-altering drugs during the past 24 hours, or if anyone coerced them into taking the plea or promised them any special treatment if they took the plea.  The judge’s objective is to ensure that the defendant was capable of providing a voluntary, intelligent and knowing waiver of his right to a jury trial.  However when a suspect is interrogated and he is asked to waive his Miranda rights, 5th Amendment rights and 6^th amendment right to have counsel present, there may be no one present to remind him of his rights or to recommend he retained counsel.  As a matter of fact, in some instances, suspects have asked the police officer, “Shouldn’t I have a lawyer here with me?”  The inevitable answer from the police officer sounds something like, “Why do you want to get a lawyer involved in this?  They’ll just muck up everything and make things more difficult.”

It also is important to recognize the difference between an interrogation and an interview.  While an interview is designed to collect information (e.g., Where were you at the time of the accident?  What time was it?  Did you actually see the accident occur?).  An interrogation is designed to obtain a confession from a suspect the police already believe is guilty.   Accordingly, questions in an interrogation are designed to obtain an admission that the suspect committed the crime.  The police officer begins with the assumption that the person he/she is interrogating is guilty (cognitive bias), and refuses to accept any denial of that fact.  This so-called maximization technique is designed to convey the police officer’s unshakable belief that the suspect is guilty.  Accusations of guilt are forcefully repeated, the subject is interrupted when he or she denies culpability, and the subject may be overtly or subtly threatened that more serious consequences will ensue if he or she does not confess right now.  These techniques are quite similar to those used in taking someone’s deposition or Cross-Examining an expert or a lay witness.  Subterfuge and false statements are frequently used to convince the suspect that they will not be able to continue to deny their guilt.  Such tactics may involve statements like:  “We have witnesses who say they saw you leaving the scene after the shooting occurred” or “We found your fingerprints on the gun that was used to kill the decedent and we found traces of gunshot residue on your hands when you were tested.”  The suspect may be given a polygraph and then provided with fabricated results indicating that the suspect is lying.  False evidence makes the suspect believe that professing his/her innocence is futile and that he/she is going to be prosecuted regardless.  These maximization techniques create a sense of hopelessness in the suspect and are even effective in innocent suspects, who ultimately give up all hope of being vindicated.

Those suspects who are taking antidepressants or anti-anxiety medication under a physician’s supervision or who suffer from any type of psychological or psychiatric disorder or who are mentally challenged in any capacity are easy targets for overbearing and aggressive police interrogations.  Youth and suspects with developmental disabilities are likewise at greater risk for susceptibility to influence during interrogation.  Once the subject becomes demoralized and hopeless, the police officer may change his tactics to a technique known as minimization, where the police officer adopts a demeanor of empathy and reassures the suspect by telling him/her, “I know that you’re a decent person and that any person in your situation would have done the same thing that you did.  If you just get it off your chest and tell me that you committed the crime right now, it will be all over and you will be able to rest more easily with a clear conscience,” or “Surely, the victim had a part in this, and had this coming.” Another tactic is to tell the suspect, “If you just sign the confession now I will do everything I can to help you get the best deal.”  Even when explicit promises of leniency are not given (because they are not all allowed), the use of minimization tactics such as sympathy, empathy and the development of excuses and moral justifications make the suspect believe that a confession will be met with more lenient treatment.  Notice that all of these tactics violate the questions in the judge’s plea colloquy.

Specific interrogation methods, such as the Reid technique and the Wicklander-Zulawski (W-Z) technique are often taught to police officers in order to provide them with powerful psychological tools to obtain confessions.  While the use of these techniques may be justified in that they induce guilty suspects to confess and thereby enhance efficiency in solving crimes, they can create two problems.  First, they can be used to the extreme, crossing an allowable threshold of coerciveness, particularly when prolonged, coupled with isolation and sleep deprivation, and in suspects who are handicapped due to pharmacologic, psychological or developmental impairments.  Second, innocent citizens get caught in the net.  The techniques that are effective in inducing true confessions in guilty people are just as effective – if not more so- in inducing false confessions in the innocent.  This statement is based on statistics from the Innocence Project (IP) who reported that approximately 25% of the exonerations identified by the IP involved some form of false admission or confession to investigators.

These are the causes.  What is the cure?  Several months ago, a young lawyer asked Supreme Court Justice Scalia, “What is the best way for me to represent my clients?”  Justice Scalia replied, “Admit nothing, and deny everything.”  For the common man, this translates into get a lawyer who will protect your rights, and don’t buy the Brooklyn Bridge or swamp land in Florida from a police officer.