“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***
The public does not believe the innocent falsely confess even in the face of coercive interrogation tactics. And research shows us that once we have a false confession–a domino effect can occur that results in increasing numbers of evidence errors and sometimes, wrongful convictions. Once a confession is given, under any circumstance or for any reason, jurors fight like crazy to minimize any contradictory evidence. They will insist that “There is no way in the world I would ever admit to a serious crime I didn’t commit. They caught him in a moment of candor, and now he’s trying to wriggle out of it.” Of course, they are skeptical of claims of innocence, but cling tenaciously to admissions against interest.
Is there a way to stop the cascade of flawed conclusions that start with the false confession? Can you help a jury to question the initial confession and thus the flood of flawed evidence following that confession? It’s undoubtedly an uphill battle but new research on the impact of expert witness testimony gives some insight into possible remedies.
Researchers conducted two separate studies. In the first, they explored whether interrogation techniques were perceived as coercive by jurors awaiting service in the Santa Ana branch of the Superior Court of California, (Orange County). Jurors thought harming the suspect or presenting false evidence was coercive but did not see it as likely to elicit false confession in an innocent suspect.
“Participants may believe that even though harming the suspect and presenting false evidence are highly coercive tactics, they can be resisted to some degree by guilty suspects and to a greater extent by innocent suspects.”
In the second study, researchers explored the impact of educating jurors about the potential risks of various interrogation tactics. Jury-eligible participants from a number of metropolitan Los Angeles, California colleges were given a condensed transcript of an actual legal case (People of the State of California v. Catarino Gonzalez, 2001) involving the murder of a police officer. For the study, the main piece of evidence presented was the confession of the defendant (disputed on grounds of coercion during interrogation). A defense expert witness testified about the impact of coercive interrogation on false confessions. This expert testimony focused only on the research and offered no opinion as to the reliability of the confession in question.
Questionnaires were completed by participants after reviewing Part 1 of the experimental documents (an introductory summary and transcripts of the interrogation and relevant evidence) and again after Part 2 (documents containing expert witness testimony on the research surrounding interrogation tactics and false confessions).
Prior to the expert testimony, 89.7% of the jurors found the defendant guilty. Statistical analyses showed the confession was the primary reason for their decision (prior arrests and gang affiliation were not statistically significant reasons for a guilty verdict). Further, despite most of them believing the interrogation process exerted a great deal of pressure on the defendant, most of them believed the interrogation tactics to be “relatively fair”.
After the expert testimony, 76.5% (p < .01) of the jurors found the defendant guilty. Yes– even though a unanimous verdict is required in California, this only improves the Defense case, it doesn’t solve the problem. Further, jurors were more certain (p < .001) of the accuracy of their decision, even though they found five of the eight interrogation tactics to be more coercive (p < .001).
Tactics found to be more coercive after expert witness testimony were: informing suspect of failed polygraph, repeatedly accusing suspect, offering an ultimatum to confess before polygraph, asking suspect to take polygraph, and magnifying the seriousness of the crime.
Finally, researchers looked at 9 aspects of the expert witness testimony to see which were persuasive in juror decisions. They all were.
“Encouragingly, the expert witness testimony seemed to have helped reduce this bias in our study. After the expert testimony, guilty verdicts were reduced and interrogation tactics were perceived as more coercive. As compared to those who did not change their verdicts, those who did, found specific aspects of the expert testimony to be influential in their decisions. This is an important finding because the testimony in this study was framed around the issue of situational factors that may unduly influence suspects’ decisions to confess. As such, the influence of the expert witness was not simply in the form of raising skepticism in the reliability of the confession, but rather it seems to have been in the form of an informational value. Together these results suggest that the expert testimony may help reduce attribution errors by highlighting the influences situational factors can have on behavior. This can lead to a more careful evaluation of confession evidence by jurors.”
In sum, expert witnesses can help educate jurors on the link between psychologically coercive testimony and false confessions. We would caution that the expert witness in this study is widely recognized as an expert in this area. Be sure your own expert is truly “expert” and take a look at this article (and the transcript of the actual trial) to see how extensively the police interrogation was evaluated and what jurors were taught about coercive interrogation tactics. It’s a terrific article with an important message: Given an opportunity to understand how confessions can be unreliable, jurors listen carefully.
Blandón-Gitlin, I., Sperry, K., & Leo, R. (2011). Jurors believe interrogation tactics are not likely to elicit false confessions: will expert witness testimony inform them otherwise? Psychology, Crime & Law, 17 (3), 239-260 DOI: 10.1080/10683160903113699
Vaughan Bell at Mind Hacks blog (one of our favorites) discusses an article in the APS Observer on the psychology and power of false confessions. The article itself is a good read that points out the many reasons for false confessions. It then shifts to a discussion of how lay persons and experts modify their own opinions after learning about confessions. In brief (and you really do want to read the full article) they found that lay people (read ‘jurors’) and experts (read ‘expert witnesses’, ‘forensic experts’) change their evaluation of the non-confession evidence (the other evidence presented) and see it as stronger evidence against the accused.
Situationist Blog also comments on this research quoting the primary author saying ““the most common reaction I get from a lay audience is, ‘Well, I would never do that. I would never confess to something I didn’t do.’ And people apply that logic in the jury room. It’s just that basic belief that false confessions don’t occur.”
This is potentially deadly. We ‘see’ evidence differently if we know someone has confessed. The Innocence Project has hard data on the relationship of false confession to wrongful conviction. But what do you say to jurors?
- If you can’t keep the confession out via a motion in limine, you have an uphill climb.
- You can show them evidence of false confessions and how they are coerced.
- You can teach them about the powerfully biasing effects of a false confession.
- And you can tell them about the Innocence Project’s numbers on how often we wrongfully convict based on false convictions. Ask them to look at the evidence. If they didn’t have that confession, would they convict?
You may have heard the idea that people fulfill our expectations so that if we expect accomplishment we often get it and if we expect failure, we can get that too. In research it is called ‘experimenter expectancy’ (and the reason for double-blind studies). In education it is called ‘the halo effect’. Turns out it’s true in mock investigative interviews as well. If we believe the person we are viewing is guilty, we just don’t find them believable.
This is a common problem in police investigation interviews where, when the interviewer determines the interviewee is guilty–the investigation shifts to an interrogation. The investigative interview is to gather information. The interrogation is to determine guilt. The problem with this, as pointed out by false confessions/wrongful conviction researchers, is that when we presume guilt, we tend to hear and recall only the information that points to deception and guilt. We simply pay no attention to facts that disconfirm our assumptions. It isn’t necessarily intentional. We simply look for data to confirm hypotheses.
In this study, 285 undergraduate students at a Midwestern University watched a videotaped narrative of what a young man had done for a few hours on a particular day. Some of them were told his narrative was an alibi and others were not. Further, some were told his narrative was an alibi and he was guilty (while others were told he was innocent). After viewing the videotape, participants were asked to write down as many different facts as they could recall from the videotaped alibi and to be as specific as they could. Finally, they were asked to rate how believable they found the alibi provider. The results of this research mirror what has been written about for decades in the wrongful convictions/false confessions literature.
Participants who had been told the person giving the alibi was guilty recalled less detail from the videotaped alibi, found the alibi less believable and viewed the alibi provider more negatively than those who had not been told he was guilty.
This actually makes sense to us. If you know someone to be guilty, it makes sense you wouldn’t listen as closely, wouldn’t find the person believable and see them negatively in relation to an innocent person. The issue is not when you know the person is guilty–but when you presume/assume they are guilty before you have a basis for judging the issue. And that is the difference between research with undergraduates and with real-life police officers either interviewing or interrogating an individual. The question for the real-life situation is–how can we stop that presumption of guilt from happening?
A recent civil wrongful conviction suit we worked on was eye-opening for us. To aid us in understanding mock juror reactions to the case narrative, we completed a comprehensive review of the (voluminous) literature on the topic. It was, in a word, disturbing. And later, as we chewed peanut M&Ms and drank ridiculous amounts of coffee in the darkened observation room while mock jurors deliberated–we heard almost every theme we’d read about in the literature. While we knew, as did the mock jurors, that the man was innocent and bad things had happened during his interrogation–the mock jurors simply couldn’t understand why he would have falsely confessed to a homicide. The idea that he was young, naive, exhausted, terrified, and told it would all stop if he simply admitted he had killed the victim was raised and discarded by many of our mock jurors. Even when told of the exculpating DNA evidence and that the authorities had agreed about his innocence, some still didn’t want to believe it.
Fortunately for the wrongly convicted man, some of our mock jurors had watched a true-crime reality show called The First 48 and they excitedly educated their peers on how frightening and leading and guilt-assumptive the interrogation process can be when it goes wrong. Ultimately, more analytical heads prevailed and the jurors agreed the young teenager (now a middle-aged man) had been done wrong and there were pressures they could not imagine on him during the interview turned interrogation. The television show– almost certainly not admissible at trial– was among the most persuasive “evidence” for two jurors, and it gave them a basis for a full-throated lecture to the others. Even though what they said was correct, it was one of those scary times when extra-evidentiary information completely turned a deliberation.
So we look at this research and think it really isn’t about anyone in the real world being told someone is guilty. It’s about making that presumptive leap that changes everything. The question is how we get people, who are professionally trained to look for deception, to suspend disbelief and attempt to get to the truth rather than close the case. It’s a long-standing quagmire for the justice system. For a review of literature about strategies that actually reduce the problem in investigations, read our paper.
Olson, EA (2013). “You don’t expect me to believe that, do you?” Expectations influence recall and belief of alibi information. Journal of Applied Social Psychology, 43 DOI: 10.1111/jasp.12086
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***