El Paso conference brought together top minds to prevent false confessions

Ed. note: Thanks to Edwin Colfax, the Austin director of the Justice Project, for providing this excellent update from last week's conference in El Paso on interrogations and confessions.

I believe it was Jeff Deskovic, a recent DNA exoneree from New York, who said he felt like he was at the Super Bowl, his way of saying that we were in the presence of the best of the best. Jeff was talking about the international conference titled “Interrogations and Confessions: A Conference Exploring Current Research, Practice and Policy,” held last week at the University of Texas at El Paso. Having been to a fair number of conferences on issues related to wrongful convictions, I have to say he was really on to something. The conference lineup was a who’s who of leading researchers on interrogations and false confessions, including most of the pioneering social psychologists and legal experts who have helped us understand the reality of false confessions and how they occur.

And, of course, Jeff was there to tell us his story about a grueling interrogation he endured at 17 after a classmate was murdered in Peekskill, New York. His eloquent effort to provide a glimpse into his experience is in many ways a tall order, given that most people have a hard time wrapping their head around how an innocent person (especially one who is not mentally disturbed) can be led to confess to a serious crime. Of course, the reality of the phenomenon is increasingly well known and well documented.

Saul Kassin, Richard Leo, Gisli Gudjonsson, Steven Drizin, Ray Bull and Allison Redlich are among the leaders in the field, and anyone interested in learning about interrogations would be well served to review their pioneering work and recent publications. Below are some highlights of the conference Grits readers might find of interest.

Recording Interrogations Benefits Everybody

Confessions are regarded as the most powerful evidence that can be presented at trial, and can even overcome other exculpatory evidence, even forensic evidence, as was the case in the Norfolk Four case.

One of the most straightforward policy responses to false confessions is to electronically record custodial interrogations, thereby creating a complete record of suspect statements and the process that led up to them. Having a complete record eliminates the swearing contests about who said what, when and in what context, and allows judges and juries to make fully informed calls about the voluntariness and reliability of suspect statements.

My own presentation reviewed the unmistakable national trend toward requiring recording of complete custodial interrogations, which is driven in large part by an increasing awareness among law enforcement that the policy serves their own interests as well as the protection of the innocent. My review showed at least 10 states plus the District of Columbia with some statewide recording policy, either in statute or by court ruling, the most recent being North Carolina. California Governor Arnold Schwarzenegger has a recording bill on his desk now.

Recording modernizes police procedures in a way that ensures the best evidence possible against the guilty, and protects police from bogus claims of misconduct. The Justice Project’s Policy Review on recording is a great overview of the issue, including case profiles, a model policy, and an overview of the research.

While police and prosecutors in jurisdictions that do not record often express skepticism, those who do record give unequivocal endorsements to the policy. Thanks to the hard work of Thomas P. Sullivan, a former federal prosecutor who has extensively interviewed experienced detectives who record, we know that recording is a valuable law enforcement tool. Sullivan has published several must-read articles on the benefits to law enforcement, available here and here. This work is sure to move us toward more recording as law enforcement hears from peers about the benefits and practicality.

Since Grits reported recently on Prof. Daniel Lassiter’s 20 year’s worth of research on camera angle bias, I’ll only mention that recording needs to be done carefully and properly to ensure that the evidence is documented in a complete, fully objective way. (Prof. Lassiter was one of the organizers of the El Paso conference, along with Prof. Christian Meissner, both of whom have made important contributions to the development of the literature.)

The Reid Technique and the Detection of Deception

Any serious discussion of interrogations in the U.S. will quickly move to the Reid Technique, which Grits has discussed before. Reid is the dominant interrogation methodology used by law enforcement in the U.S., and delivers trainings all over the country. The President of Reid and Associates, Joseph Buckley, gave an overview of the Reid Methods to a tough audience. Many of the researchers there have been highly critical of the Reid Technique because of the substantial risk of its generating unreliable statements from suspects.

One part of the Reid Technique involves asking a series of particular questions to suspects which are designed to elicit signals of deception from suspects. In fact, a fundamental assumption of the Reid Technique is that these questions, asked early on, are a reliable way to determine if the suspect is truthful or deceptive. If the interrogator determines that the suspect is deceptive, the Reid system moves into a confrontational interrogation mode, in which the interrogator does almost all the talking, and in which the suspect is offered to choose between alternative accounts, which maximize and minimize the suspect’s culpability (but each of which presupposes the suspect’s guilt).

One presenter, however, pointed out that the assumptions about outward signals of deceptive behavior that Reid relies on are based on paltry and questionable research, and what little there is uses a very small sample size and ignored ground truth about when a confession is true or false. Professor Aldert Vrij’s research actually shows that police are “generally rather poor” at distinguishing deceptiveness. Vrij has published a new edition of his book which he characterizes as an alternative to the Reid Technique that has a much more solid empirical foundation. Given that the high-powered interrogations that have elicited false confessions got cranked up as a result of a mistaken judgment about the truthfulness of a suspect, this research may help to put fewer people in the inherent jeopardy of those psychologically coercive interrogation sessions.

One of Vrij’s examples I found particularly interesting. Many people think that excessive blinking may be a sign that someone is deceptive, presumably because they are more nervous about the situation and what they are saying. But research suggests otherwise. First off, innocent people are very nervous in interrogations, too—they are nervous about not being believed! But Vrij has pointed out that lying is, cognitively speaking, harder work than truth telling. Because the liar has to think more about what he is saying, he actually tends to blink less, while focusing all that cognition on keeping his story straight.

Many other bits of ‘folk psychology’ about deception are similarly dubious.

Juvenile Interrogation Tactics Ignore Developmental Vulnerabilities

Another significant criticism of the Reid Technique is that juvenile suspects (as well as those who are mentally retarded or mentally ill) are especially vulnerable to deceptive and psychologically coercive interrogation techniques now standard because they are more compliant and suggestible. There is significant research to show that juveniles are more susceptible to false confessions, but Reid training does not address the relevant differences between kids and adults, and indicates that their standard methods are appropriate for juveniles.

In what I thought was one of the most instructive studies presented, Professor N. Dickon Reppucci from the University of Virginia demonstrated that American police officers, while they generally demonstrated a decent understanding of the developmental differences between youth and adults, seemed to ignore those differences in the context of interrogating young suspects. Repucci and his colleagues did an extensive national survey of police in representative jurisdictions across the country, asking their knowledge about child development and developmental limitations, as well as their views about interrogating youths. There was an unmistakable disconnect between their general appreciation of some basic and relevant developmental factors and their belief that youth can be dealt with in the same manner as adults when it comes to interrogation.

England's Different Approach

Professor Ray Bull gave an overview of the evolution of practices in England, which contains important lessons for those of us in the U.S. who are concerned about false confessions. After some high profile exonerations, the British revised policies in the 1980’s away from confrontational, accusatory models of interrogation (like Reid’s) to an information-gathering model. And, of course, the British have required recording of custodial interrogations for many years now, too. According to Prof. Bull, these changes have been embraced by the police service and have proven effective, and there is no effort to go back to the old ways of doing things.

How Innocence Can Work Against You

Saul Kassin gave a fascinating presentation on how the “phenomenology of innocence” can actually contribute to false confessions. Kassin described research that shows that innocent suspects are much more likely to waive their rights and to be open and forthcoming. This seems to be the result of a somewhat naïve but natural faith in the transparency of their innocence. While innocent people are able to offer more plausible denials, they actually seem to trigger harsher tactics from guilt-presumptive interrogators (see Kassin’s study from 2003).

On top of all this, there is a distrust of what are perceived as “weak” alibis, such as that one was at home, sleeping in bed, or with family members or friends watching television. Those kinds of things are the reality of most people’s everyday lives, yet investigative tunnel vision can make them seem “weak.” All these factors contribute to what Kassin calls an innocence/confession paradox.

Even misrepresentations of evidence, a common, legally permissible interrogation tactic, can, under the right conditions, actually contribute to a false confession. If one is told that his fingerprints are on the gun, or his DNA is at the scene, if he believes in the criminal justice system and in his own innocence, he may actually be more likely to confess to get himself out of a particularly nasty, confrontational interrogation. Such a confession is motivated by the belief that the physical evidence will, when reviewed properly, clear up the mistake. But often that evidence does not exist at all, and was only a bluff by the interrogator to extract a confession. Youths and others with developmental disabilities, in particular, are susceptible to such an ill-advised short-term strategy for getting out of a nasty interrogation.

- Edwin Colfax

MORE on the conference from Austin Criminal Defense Lawyer.