“The idea that you would confess to a murder you didn’t commit is just….just absurd!”
Mock jurors don’t like to hear about false confessions or coerced confessions. They often do not want to believe the repeated errors and, in some cases, the lies told by police or prosecutors to obtain a conviction. They know they, personally, would “never” confess to a crime they did not commit. Not even a robbery. But never a violent crime– especially not a murder! Anyone who would do that might just deserve what they get.
Doing stupid things can be very costly, and you don’t have anyone to blame but yourself.
That’s what we hear from our mock jurors anyway. And it’s supported by the research on false confessions. It’s part of why once you make a false confession, you are much more likely to be convicted of the crime. You confessed. You can’t un-ring the bell– not even in the minds of judges and investigating professionals. You must be guilty. Gotcha. And the evidence is viewed through that confession. No one is looking for reasons your confession might be false. They are simply looking for evidence to support the confession.
Just like we review litigation-relevant research for this blog, we often review the social sciences research more thoroughly for ongoing cases in which we are completing pretrial research. We know some trial consultants who say things like “I don’t write papers because I’m too busy working”. And we think that’s a shame.
For us, it is (to paraphrase Stephen Covey) all about ‘sharpening our sword’. We study anything we work on– on our own time– if we feel it will make us more effective for our clients. Since we first wrote about the research on jurors and racism more than ten years ago, it’s been clear to us that we begin projects with much more clarity and direction when we’ve reviewed the social science research relevant to the case or area of study.
And we made a decision to share that work with you. Our website contains articles we’ve written over the years on a broad variety of topics. In the past five years, we’ve been publishing our work [once the specific cases are concluded] in The Jury Expert so it goes to an even broader audience.
Our most recent article is published in the November/December issue of The Jury Expert and is on the mystery of False Confessions. Because of the unique nature of the research and the importance of the content, we asked four professionals to offer their thoughts on the work. We are honored to have responses on the article from Saul Kassin, Walter Katz, Karen Franklin and Larry Barksdale. They are respectively, perhaps the best known expert on false confessions; a former criminal defense attorney turned police oversight attorney for the Office of Independent Review in the Los Angeles area; a forensic psychologist/expert witness; and a police detective with more than 4 decades of law enforcement work.
We hope you will read this article on false confessions and invite you to comment at The Jury Expert website. As in many of our past experiences, taking the time to review the research and write the article crystallized our thoughts, informed our practice, and made our feedback to client attorneys more useful, practical and relevant. We’re never “too busy working” to give specific cases in-depth attention. Make the time, get it right.
Here’s a link to the article now available in The Jury Expert: “Only the Guilty Would Confess to Crimes” Understanding the mystery of false confessions.
***We appreciate being included in the ABA Blawg 100 for the third year in a row! If you like our blawg, take a minute to vote for us here (under the Trial Practice category). Thanks! Doug and Rita***
Top criminal defense attorneys are an intense group. They care passionately about what they do. When they blog about the work they do, the result is often emotional, passionate, and downright amazing. Jeff Gamso (a criminal defense lawyer in Toledo, Ohio) writes Gamso For the Defense blog. His writing is often beautiful as befits a former English professor.
But as befits a blog about criminal defense, the content is gritty, often depressing, usually sad, and always intensely felt. I tend to imagine him writing in a darkened room after a long day of work with a strong drink next to him and fingers pounding at the keyboard in search of relief from the strain of seeking justice for his clients. For all I know, he writes laboriously and with precision (editing as he writes) in a sun-drenched room with a large mug of steaming black coffee. I’ve never met Jeff Gamso. But I read his thoughts regularly.
In the recent past, we have been living with the false confessions literature while working on a false confessions/wrongful convictions case. I was impressed by the volume of the literature and the regularity with which it emerges. Just in the past couple of weeks, for example, NPR did a story on what happens after jurors get it wrong and Pacific Standard wrote a terrific piece called “Why can’t law enforcement admit they blow it sometimes?”.
And as I studied the literature, and then our mock juror data– all the while reading Jeff Gamso’s blog–it was clear how defense attorneys get hooked on the process. The stakes are the highest, and the implications of errors are horrible. The justice-seeking is lengthy, convoluted and often, fruitless. But it’s the right thing to do. So they do it. Very recently, Jeff wondered aloud (well, actually in text) if defense attorneys were more Sisyphus or more Don Quixote.
“It is clear, I hope, why we who toil in these trenches, who stand beside those who hear the words that will send them away or free them, those who may never see another sunset or hug a loved one, we often see ourselves as Sisyphus.
Our job is to fight. Our fate is to lose. And yet, as Camus concludes,
One must imagine Sisyphus happy.
I prefer the image of Quixote, the mad knight of La Mancha. Wrapped in his psychosis he is the romantic figure. Not dashing and romantic. Not capable and brilliant. He is no Lancelot. He hasn’t the purity of a Galahad.
What he has is his madness. His insistence that the world be as he wishes it, that it be a place where one such as he believes himself to be might exist, and even flourish. He will love she he declares his Dulcinea [in case you've forgotten, she is the object of Don Quixote's affections], because that is what a knight does. He will tilt at that windmill, no matter the consequence, because that is what a knight does.
He will, of course, no more tame the world than Sisyphus will tame his rock and mountain. But he’ll go forth to battle the windmills anyway. Convinced, as always, that this time he will win.”
This post reminded me why I have to read Jeff Gamso. The writer, the lawyer, the philosopher, and perhaps the poet. And then, shortly after that, he wrote a post on the experience of exoneration–here’s what he said in the introduction:
“A few years ago in Cleveland. Maybe 6 or 7 of us were walking back to the hotel after a dinner party for speakers at the seminar for capital defense lawyers. All but one were lawyers. The one was Ray Krone, the 100th person to be exonerated from death row.
He’d been convicted of kidnapping, raping, and murdering Kim Ancona in 1991. In fact, he’d been convicted of it twice. Except Ray didn’t do it. It was, instead a guy named Kenneth Phillips. Ray was wholly innocent. He’d been convicted based on junk science by an incompetent self-proclaimed forensic dentist. And he was at the seminar to tell his story, to remind the practicing lawyers there that we were dealing with real people with real lives. And that, at least sometimes, they were really truly factually innocent. Ray does a lot of these speaking gigs now. He talks to lawyers and activists and legislators. Telling his story. Standing up, as the organization he helped found says, as a Witness to Innocence.
Anyway, we were walking back to the hotel when some guy came up to us looking for a handout. Maybe he had a story. Maybe he said something about needing money to feed his family. Maybe he just wanted cash to buy a bottle of something or some controlled substance. Maybe he just stuck out his hand at this bunch of guys walking together and talking, looking much better off than he did. I don’t remember.
Here’s what I remember. Most of us were set to just keep walking. Ray reached into his pocket and gave the guy something: a five or a ten or a twenty. Whatever it was, one bill and more than a single. And as if on cue, the rest of us reached into our pockets and matched what Ray had done. I’m pretty sure the guy didn’t know just how he’d hit the mother lode, but he knew he had.
See, for Ray Krone it’s not theoretical. He’s stared right at the gates of hell. Shit, he entered. And he’s one of the comparatively lucky ones who came out the other side. And by his example, he shamed those of us who do this work, care about the work and the guys.
Because it’s not just our clients and our cause. There are lots of people who need help. Who have been beaten. Who are lost. There’s only so much we can do, but there’s always more.”
And that’s just the introduction. There is always more when Jeff Gamso writes. The point of the post is really to talk about what happens after exoneration and how people who have been wrongfully convicted put their lives back together. Or not.
It’s powerful. It’s Jeff Gamso at his best. It will make you cringe and catch your breath at injustice. And just maybe, it will make you want to act.
Thank you, Jeff.
***We appreciate being included in the ABA Blawg 100 for the third year in a row! If you like our blawg, take a minute to vote for us here (under the Trial Practice category). Thanks! Doug and Rita***
If you remember the hearings on Clarence Thomas’ Supreme Court nomination and the sexual harassment testimony from University of Oklahoma law professor Anita Hill, you likely recall how Hill was vilified. What you may not know is that after her testimony, sexual harassment complaints more than doubled while damage awards to harassment plaintiffs more than quadrupled.
Attorneys representing plaintiffs in sexual harassment suits are all too familiar with the condemnation heaped on the victims of sexual harassment for not acting sooner (among other criticisms). Efforts to minimize this condemnation have always been at the forefront of advocates’ minds. Now, we have new research that points to very specific ways to minimize this condemnation. It’s good news for sexual harassment victims and their advocates. It’s also intuitively sensible.
Researchers completed a series of five studies examining why we are so eager to condemn the victim (aka “blame the victim”). All five studies are important as they build to the ultimate conclusion and so we will briefly summarize the findings. Another important factor in the research was the choice to use all female participants: “We studied female participants across our studies because they provide a conservative test of our hypotheses–women are likely to have a better understanding of and appreciation for the experience faced by the sexual harassment victim”. The participants were women of both college age and women recruited from the community whose ages varied and they had significant workplace experience.
Sexual harassment was depicted by presenting the following scenario to participants:
“A female student named Karen was being interviewed for a research assistant position on campus. She was being interviewed by a male (age 32) in an office on campus. During the course of the interview, the male interviewer asked Karen the following questions:
Do you have a boyfriend?
Do people find you desirable?
Do you think it is important for women to wear bras to work?”
Participants in the initial three studies were then told that the female candidate (Karen) answered all three questions and thus behaved passively rather than confronting the interviewer/harasser. In the last two studies, some participants were told Karen answered the questions and others were told she did not respond, thereby confronting the harasser.
Study 1 and Study 2: asked participants to predict how they themselves would react if sexually harassed. Perhaps not surprisingly, participants predicted righteous indignation and said they would act much more forcefully than victims typically do in confronting the perpetrator. And again, perhaps unsurprisingly, the more forceful the participants predicted they would be themselves, the more condemning they were of the passive victim.
Study 3 examined the impact of instructing participants to consider the typical motivations reported by sexual harassment victims for not confronting the perpetrator. When participants considered those motivations [e.g., wanting to get the job and wanting to get along socially during the interview], their predictions for their own behavior if sexually harassed were much more consistent with those actually reported by sexual harassment victims.
Study 4 found that when important motivations experienced by victims were highlighted [e.g., wanting to get the job], participants were significantly less condemning of victim passivity.
Study 5 asked participants to recall a specific instance from their own workplace experiences where they had not acted when intimidated (although not sexually harassed). Again, their tendencies to condemn sexual harassment victims for passivity was decreased.
The researchers believe that the proud fantasy that we ourselves would act quickly and assertively in the face of harassment, leads to our condemnation of the typically passive victim of sexual harassment. When we are placed in situations that increase empathy with the victim (by simply considering their motivations or recalling the impact of being intimidated in the workplace) we are much more understanding and much less condemning.
They also discuss the importance of the distinction between two different forms of perspective-taking. It is one thing to imagine oneself in another’s shoes. It is quite different to instead focus on and imagine what the other person experienced. The first perspective does not always elicit empathy or an understanding of what their experience might have been like. The second often does.
We see this as an important study for the litigation advocate:
It outlines a specific strategy for decreasing the likelihood of a punitive and condemning attitude toward the plaintiff.
That strategy emphasizes the importance of situational factors on the plaintiff’s behavior as opposed to the plaintiff being a passive person (and thus somehow worthy of condemnation).
And that strategy results in a consistently empathic stance toward the plaintiff rather than an unpredictable tendency of some to condemn while others do not.
In light of our recent review and research on the phenomenon of false confessions (on our blog and coming in the next issue of The Jury Expert), it would be interesting to see how a similar research design would apply to these cases.
In essence, those who falsely confess during or following interrogation usually describe feeling harassed.
The wish to ‘escape’ the interrogation causes them to overlook the ramifications of their admitting to criminal acts of which they are innocent.
It sounds hard to believe that anyone would be so blind to the implications of cooperating with police in this way, but it happens. They confess in an effort to put an end to the aversive questioning. In the research design discussed here, the interviewee essentially acquiesces to the harassment in an effort to get the interview to conclude. In an effort to escape an uncomfortable interview and achieve her goal of employment, she overlooked the evident fact that this ‘boss’ feels entitled to cross sexual boundaries whenever he wants to, and that he is not likely to limit it to the job interview.
Keep in mind that this research was done with entirely female participants. This would speak to the value of using these strategies with a jury composed of a significant proportion of female jurors with workplace experience and representing a range of ages. Given the number of these sorts of cases where we’ve seen women jurors condemn the victim, this is a terrific and relevant study for helping everyone understand the variation between inaccurate predictions of one’s own action and the typically passive behavior of the sexual harassment victim.
And while this research is a good start, it raises questions about how men would respond to similar behavior toward men, or how they would appraise a female faced with this interviewee’s situation. The complexities of establishing a healthy workplace culture oblige us to understand who judges the harassment complaints as valid, who judges the woman (in this scenario) as agreeable or complicit, and who feels that the whole construct of sexual and emotional harassment is invalid.
Diekmann, K., Walker, S., Galinsky, A., & Tenbrunsel, A. (2012). Double Victimization in the Workplace: Why Observers Condemn Passive Victims of Sexual Harassment Organization Science DOI: 10.1287/orsc.1120.0753
The inaccuracy of eye-witness identification is well documented. Eye witnesses make mistakes and those mistakes grow in size over time as memory fades. These researchers were interested in knowing what would happen to the accuracy of eyewitness identifications if they allowed eyewitnesses to say they simply didn’t know when exposed to a lineup.
The researchers compared three conditions: witnesses given an explicit I don’t know response option; witnesses given a spontaneous, free report option where they could choose to write in an I don’t know response; and a forced choice option wherein the participant did not have the option of an I don’t know response. And here are some of their (only somewhat surprising) results:
Participants in the spontaneous/free-response condition were told to identify whether a photograph depicted a previously seen perpetrator. They were free to offer any written response but were not given specific response choices such as Yes, No, or I don’t know. Without the explicit presentation of an I don’t know response option, the participants in the spontaneous/free-response condition offered an I don’t know response only 2% of the time [3 of 139 participants]. In other words, there was not a stampede to the I don’t know response when it was not explicitly offered.
When explicitly given an option to check ‘I don’t know’, about 20% of the research participants did so. This is substantially higher than those in the free-response condition, but reflects their inability to express an opinion. That is, those that said I don’t know when given the opportunity, really didn’t know which photograph depicted the actual perpetrator. In other words, witnesses tend not to spontaneously report that they do not know the identify of the perpetrator, but if they’re asked, a substantial number admit they really don’t know. And they should.
When participants were forced to choose either yes or no–they were right just as many times but they were wrong two times as often. That is, they said the photograph depicted the perpetrator when it was really the innocent foil–these were false positive identifications. Taking away their opportunity to be unsure– forces errors.
The researchers say that what this shows us is that the inclusion of the I don’t know response is useful in increasing accuracy of eye witness identifications. They cite the realities that if a witness identifies a subject but really isn’t sure about the identification and then hears the subject will be prosecuted–they are likely to have increased confidence in their initially shaky identification. When we instead pay no attention to the low confidence or, more accurately, the I don’t know identification–the cascade of errors shown to exist in wrongful conviction cases will not include errors in eyewitness identifications.
While the inclusion of the I don’t know category does result in fewer identification decisions overall, (about 20% less based on this research) “those that are lost are uninformative and arguably better not rendered, because investigators may give them more weight than they merit and witnesses may forget how uncertain they originally were”.
It’s a good tradeoff. Decrease quantity of confirmations, but increase accuracy. And if you missed Tim Perfect’s earlier work on increasing the accuracy of witness testimony by simply having them close their eyes–it’s well worth your time to review it.
Weber N, & Perfect TJ (2012). Improving eyewitness identification accuracy by screening out those who say they don’t know. Law and Human Behavior, 36 (1), 28-36 PMID: 22471383
The work of the Innocence Project gets a lot of attention. Justifiably so. But did you know that DNA evidence plays no role whatsoever in 90-95% of convictions and therefore, cannot be used to pursue future innocence claims? Pacific Standard has an informative review of non-DNA exonerations that is worth a read.
They talk about EXI–the Exoneration Initiative, a project that takes on cases without DNA evidence in an effort “to exonerate the actually innocent”. Prosecutors work hard to maintain and protect the conviction. As difficult as exonerations are when DNA evidence is available, it is far more difficult without it. Exoneration efforts consume thousands of volunteer work hours and can take years to resolve.
Their cases sometimes hinge on false confessions experts who do are expensive, and who are often not allowed to testify in court. Other times their cases revolve around challenging eyewitness or informant testimony, forensic evidence, the conduct and actions of the arresting or investigating police officers and prosecutors or defense attorneys. As prosecutors and criminal defense attorneys know, once a jury renders a guilty verdict, the accused is now the convict, and all assumptions of innocence cease. The bar is set very high for reversal and exoneration, and achieving this result is exceptionally difficult.
We’ve written about false confessions before and have recommended a non-fiction account by Ray Bonner on wrongful conviction as well as a fictional account from John Grisham. There is nothing entertaining however, in the realities of being imprisoned for a crime you did not commit.
As we’ve listened to mock jurors struggling to comprehend false confessions and why anyone could possibly confess to a heinous crime they did not commit–the hopelessness that is the life of the wrongfully convicted becomes palpable. Even when jurors are told there is no dispute about the person’s innocence–it is hard for them to accept. “Then why was there a confession?” They are appalled at such an extreme miscarriage of justice. But many of them are just as appalled that anyone would falsely confess and thus, they see the false confessor as having significant responsibility for their subsequent conviction and incarceration. Among some, it is easier to blame the victim of false imprisonment than to imagine that the system could go so horribly wrong.
Recently, we listened to mock jurors struggle with a case like this and were surprised to hear reality TV actually educating the mock jurors about the pressures of the interrogation room. Two of the mock jurors watched a show called The First 48 on A&E Television. Evidently, they watched it a lot, and boy did they like it! They were able to describe the “real-life” pressures in the interrogation room and make the idea of a false confession make more sense to the other mock jurors. As one skeptic said, “Well, obviously I know it can happen because I’ve read about DNA exonerations–but it still makes no sense to me that anyone would confess to murder when they didn’t do it. What was wrong with him?” There was no sympathy for the cascade of errors often seen in wrongful conviction cases (e.g., evidence errors, witness errors, police errors, and more) but there was also little sympathy for the man who’d lost his entire young adulthood, both parents and a sibling to his (wrongful) time in prison. “If he had just stood his ground and not confessed, we wouldn’t be here now!”
It’s a nightmare you cannot escape. Kafka comes to mind… Day after day after day. Having advocates like the Innocence Project or the Exoneration Initiative after such a miscarriage of justice is truly a ray of sunlight in a very dark (and typically very, very long) time. Pursuing the evidence needed to free the wrongfully convicted is often a thankless job until an exoneration is granted. That happens more often for the Innocence Project than it does for the Exoneration Initiative–just because of the nature of their focus. We want to thank both of them. They keep showing up after everyone else has gone home.