According to Rob Warden, of 70 wrongful convictions in Cook County, Illinois, between 1986 and 2011, a false confession was involved in more than half, including both those who falsely confessed to a crime they did not commit and those implicated by another person’s false confession. Warden should know. Co-founder and executive director of the Center on Wrongful Convictions at Northwestern Law, he’s an award-winning legal affairs journalist, whose efforts to expose official misconduct—physical abuse in interrogations in Illinois—resulted in a more complete understanding of the phenomenon of false confession.
Warden’s 11-minute TEDx video (here) is a primer on why false confessions occur and how the criminal justice system can reduce them.
Warden notes that physical torture does not account for the majority of false confessions today. Most are the result of psychological pressures that could prompt many reading this article to confess to a crime not committed.
According to Warden, three types of false confessions—or explanations for their occurrence—have been revealed in wrongful convictions. First, brainwashing can convince a suspect that he or she committed the crime and blocked it out in a kind of self-protective amnesia. Second, desperation can prompt a suspect to say just about anything to get out of an uncomfortable interrogation (discomfort can be in the form of fatigue and sleep deprivation, fear, high stress, physical abuse, mental abuse, claustrophobia, etc.). Third, inquisitory techniques—for example, pressuring a suspect to choose between two scenarios—can lead to the flawed conclusion that confessing is in his or her best interest.
The Innocence Project reports (here) that in 25 percent of wrongful convictions overturned by DNA evidence, “false confessions, admissions or (self-incriminating) statements to law enforcement officials” contributed to the miscarriage of justice. Warden’s higher implication of false confession in Cook County exonerations may be the result of the more expanded view that includes those incriminated by another’s false confession. Police techniques can also directly contribute to the frequency of false confessions in a particular jurisdiction.
Warden offers four recommendations to reduce false confessions. First, requiring the video recording of all interrogations is a widely recommended best practice that benefits all involved in criminal justice by protecting both suspects and law enforcement from false accusations and accounts of what occurred during an interrogation. To be an effective reform, the videotaping ideally focuses on both the interrogator and the suspect, but, if just on one of these, it should be focused on the interrogator.
According to the Innocence Project, requiring recording of interrogations can be achieved through legislation, action by a jurisdiction’s highest court, or by voluntary adoption by individual police departments.
Warden recommends that an interrogation be limited, never to exceed four hours. Studies have indicted that in DNA-proven wrongful convictions involving a false confession, the interrogation was 16+ hours, at least six times longer than the average police interrogation of up to two hours.
Police departments should restrict the tactic of lying to suspects in interrogations. Warden notes that while prohibited in other nations, police officials in the United States are permitted to misrepresent to suspects the evidence they have supporting their conviction. Fear of conviction and a draconian sentence or even a death sentence can prompt a confession. An abundance of what appears to be highly credible evidence—in part because it is stipulated by an assumed credible source, the police—can also prompt a person to believe he or she has blocked out the memory of the crime.
Finally, Warden believes that courts should admit expert testimony on false confession at trials. It is so counter-intuitive that anyone would confess to a crime not committed that jurors may be naturally skeptical to this defense until they have been apprised of the causes, contributors, and scope of false confession.
This blog has published numerous instructive articles on false confession, including yesterday’s post by Martin Yant (here); Phil Locke’s articles on the subject and the use of the Reid Technique, as exemplified here; Kana Sasakura’s articles on this contributor to wrongful convictions in Japan, as exemplified here; Mark Godsey’s reference to wrongful confessions in Canada (here); among many others.
Yet, nearly daily news reports, wrongful convictions, judicial opinions, and public policies relating to criminal justice reflect a widespread misunderstanding of the phenomenon of false confession. Reality has not yet replaced myth in practices and policies relating to interrogations and confessions.
DNA-proven wrongful convictions have revealed that juveniles, the mentally or psychologically impaired, and many subjected to dishonest or psychologically manipulative techniques are particularly vulnerable to confessing to a crime not committed. Also among those most vulnerable? Innocent people. Those who have no prior record and are unfamiliar with the justice system, tend to trust law enforcement and have confidence that the justice system will ultimately get it right. Most don’t realize that, after a false confession, “getting it right” may take decades, if ever.