Handbook of Psychology of Investigative Interviewing: Current Developments and Future Directions
Page 12
Transport
far as the car is
registration DP - KH - 28 found
Agency
concerned?
near your home during the
and own
search?
observation
8
X
Establish that
How long have you been
+
So you were
X
Source: None
Howard was
driving the car? Who
the only
No confrontation
the only
else uses the car?
person to
person to use
Anyone else? When was
use the red
the red Rover
the last time you drove
Rover for
for the last
the car? Where do you
the last two
two days.
keep the keys? Who else
days.
has a set of keys? When
was the last time you
used the car?
No.
Evidence
Objective
Information - gathering
+/ −
Summary
Confrontation
+/ − Confi rmation
Further
questions
questioning
or
investigation
9
The red Rover
Establish that
Where did you park the car
+
So you parked
So how is it that during our
+
Good. That ’ s
(DP - KH - 28)
Howard
the last time you used it?
−
the red
search we found the red
clear.
was parked
parked the
Where else do you park
Rover
Rover near your home at 2
near Howard ’ s
red Rover
it? Where was the last
outside/near
Mill Lane?
home at 2
(DP - KH - 28)
place you parked it?
number 2
Mill Lane,
near 2 Mill
Which street did you
Mill Lane in
Millwood this
Lane,
park it in? How far is
Millwood at
morning.
Millwood.
that from your home?
… . on … …
Source: Report
When was that? What
Alternative
of the search
time was it?
and own
observation
10 The red Rover
Establish that
What did you do when you
+
So you locked
So how is it that we found the
+
Great. That ’ s
was locked
Howard
parked the car there?
−
the car
car locked during the search?
clear
where it was
locked the
What else? How did you
where you
parked.
red Rover
leave the car? How did
parked it.
Source: Own
when he
you lock it? How many
Alternative
observation
parked it near
sets of keys are there?
his home.
11 The keys of the
Establish that
What did you do with the
+
So you left the So how is it that we found the
+
OK
Rover were
Howard left
keys after you locked the
−
car keys on
keys on the table in the living
found on the
the keys
car? What do you usually
the table in
room during the search?
table in the
on the table
do with the keys? What
the living
living room
in the living
did you do with the keys
room in the
during the
room and
after you entered the
place where
search.
that no one
living room? Where did
we found
Source: Report
else used the
you leave the keys?
them during
of the search
keys.
Where were they lying
the search.
precisely? Who touched
Alternative
the keys after that?
No.
Evidence
Objective
Information - gathering
+/ −
Summary
Confrontation
+/ − Confi rmation
Further
questions
questioning
or
investigation
12 A red Rover
Establish that
Where were you coming
+
So on Sunday
So how is it that witness Tivey
+
That ’ s clear
with vehicle
Howard
from when you parked
−
night you
has stated that he saw a
registration
parked his
the car near your home?
drove the
red Rover with vehicle
number
mother ’ s red
Where else did you go
red Rover to
registration DP - KH - 2? parked
DP - KH - 2? was
Rover in
with the car? Where else
… .. and you
in Old Lane at 2.30 last
seen parked in
Old Lane,
did you park your car?
parked the
Sunday morning?
Old Lane at
Millwood at
Where else? Where was
Rover in
2.30 last
2.30 last
the car parked at 2.30
Old Lane at
Sunday
Sunday
last Sunday morning?
2.30 in the
morning.
morning.
morning
Source:
Alternative
Statement
made by
witness Tivey.
13 A man matching
Establish that
Where did you walk last
+
So you were
So how is it that witness Tivey
+
That ’ s clear
Howard ’ s
Howard was
night? Which streets did
−
walking in
has stated that he saw a man
description was
walking in
you walk in? Where were
Cock Street
matching your description
seen walking
Old Lane at
you at around 2.30 in
at 2.30
walking near the red Rover
near the red
2.30 in the
the morning? What tim
e
in the
in Old Lane at 2.30 in the
Rover in Old
morning last
was it when you were
morning.
morning last Sunday night?
Lane.
Sunday night.
walking in Old Lane?
Alternative
Source:
Statement
made by
witness Tivey.
Source: Police Academy of the Netherlands.
Chapter Four
Finding False Confessions
Peter J. van Koppen
Faculties of Law, Maastricht University
and Free University Amsterdam
Confession m ade u nder t orture
A confession is in many ways a religious experience. At the end of the Middle
Ages everywhere in Europe a new system of evidence was introduced in which
torture still had a place (the following is based on Langbein, 1977 ). The new
rules replaced divine judgement with human judgement. It was understood,
however, that assessing the evidence could only be trusted to humans if they
were guided by strict rules. Thus, only a few types of evidence were allowed:
(i) The court could convict on the statement of no fewer than two witnesses
who actually saw the crime take place. (ii) If there were fewer than two wit-
nesses, the suspect could only be convicted if he confessed. (iii) Indirect or
circumstantial evidence alone, however convincing, could not secure a
conviction.
So, two witnesses or a confession could constitute full proof, but because
in many cases there were no eyewitnesses, the suspect ’ s confession played a
major role. If a suspect did not confess voluntarily, a confession could be
extracted by force, using torture. Torture, however, could only be used in
cases of the more serious crimes – crimes that carried the death penalty or
some form of maiming. The rules did not apply to less serious crimes, the
delicta levia . In these cases the court could convict on its belief, which in turn
could be based on indirect, circumstantial evidence alone, so in these cases
torture was no longer used.
Handbook of Psychology of Investigative Interviewing: Current Developments and Future Directions
Edited by Ray Bull, Tim Valentine and Tom Williamson
© 2009 John Wiley & Sons, Ltd.
54
Handbook of Psychology of Investigative Interviewing
The seriousness of the crime was not the only condition that had to be met
before torture could be used. There should be at least ‘ half ’ proof. Such proof
could be a single witness statement or serious circumstantial evidence. Of
course, it was understood that everyone will confess to anything under severe
torture. A confession obtained under torture, therefore, should at least dem-
onstrate the suspect ’ s intimate knowledge of the crime. The torturer was not
allowed to ask leading questions or provide the suspect with detailed knowl-
edge. The confession made under torture should be verifi ed as far as possible
against evidence from other sources. Even then a confession made under
torture was not considered valid proof. This was the case only if the confession
was repeated voluntarily in court. Of course, this could hardly be voluntary;
suspects knew they would be returned to the torture chamber if they changed
their story in court.
In this system there was little scope for a free evaluation of the evidence by
the court. That did develop over time, but only indirectly. In the case of
extenuating circumstances the court could ignore the mandatory sentence by
rendering a poeno extraordinario . This could also be rendered if there was
insuffi cient evidence against the suspect. A poeno extraordinario was always less
than the mandatory sentence imposed in cases of complete evidence. Thus a
system of evaluation of the proof by the court for serious crimes developed in
line with that which already existed for delicta levia . This was enhanced by the
substitution in more and more jurisdictions of lay judges with professional
judges, to whom adjudication was entrusted. In this manner, the confession
was no longer an essential part of the evidence and torture became obsolete,
so that during the nineteenth century it was abolished formally everywhere in
western Europe. ‘ Only when confession evidence was no longer necessary to
convict the guilty could European law escape its centuries of dependence on
judicial torture ’ (Langbein, 1983 : 1555 – 1556).
Even though torture was abolished in the Netherlands in 1798 (art. 36 of
the Staatsregeling [State Statute]), some of the other rules did not disappear.
In the present Code of Criminal Procedure the evidence of a single witness
remains insuffi cient for a conviction (art. 341, Code of Criminal Procedure).
But in the case of confessions things have changed: a suspect cannot be
convicted on the basis of his or her confession alone: further evidence is
required. As a result, the importance of a confession formally was reduced to
the same level as any witness statement. However, in practice things are
different.
Confessions are considered a holy part of proof. Even in cases where there
is an abundance of other evidence, police offi cers tend to interrogate suspects,
not just to give them the opportunity to tell their story or their version of
what happened, but also to get them to confess. An example is the case of
Julien C (in the Netherlands the full names of suspects are not made public),
who was accused of killing eight - year - old Jesse Dingemans. On 1 December
2006 a man entered a primary school, found Jesse alone in a classroom (Jesse
was just collecting something) and slit his throat. There was an abundance of
evidence against Julien – for instance, he was seen hiding his clothes which
Finding False Confessions
55
were soaked with Jesse ’ s blood in the woods. Julien denied the killing, and
accused three Eastern European men though his account was unbelievable.
He was interviewed by the police during 13 lengthy interrogations. Julien was
convicted by both the district court and the appellate court. He received a life
sentence (Hof (Appelate Court) ’ s - Hertogenbosch, 26 February 2008, LJN -
number BC 5105, see www.rechtspraak.nl ).
If police offi cers feel the need to interrogate suspects like Julien in cases
where there is overwhelming evidence, they surely will interrogate extensively
in serious cases where the evidence against the suspect is not very strong. The
police ’ s need for a confession can as a result elicit false confessions.
In many cases it is hard to assess whether a confession is false or not. And
that is the problem I want to discuss in this chapter: after a confession has
been made, how do we identify a false one? Several approaches are possible:
1) assessing the psychological characteristics of the suspect; 2) assessing the
characteristics of the (series of ) interviews and circumstances of detention; 3)
assessing the content of the confession. I shall conclude that in some cases,
under some circumstances, a false confession can be distinguished from a true
one. For that purpose, the content of the c
onfession is more valuable than the
other two approaches.
Psychological c haracteristics
Gudjonsson proposed that some personality traits make suspects susceptible
to making a false confession: low IQ, lack of confi dence in one ’ s memory,
psychological disturbance, suggestibility and compliance, and other related
characteristics (Gudjonsson, 2003 ). In a long series of studies by Gudjonsson
and others it was demonstrated that suspects with these traits more often make
false confessions than others (see also Horselenberg, Merckelbach & Josephs,
2003 ).
That does not make personality characteristics the golden tool for identify-
ing false confession: studies of false confessions are usually experimental, where
the question is whether people with certain characteristics are more or less
prone to making a false confession than others. In practice, however, the ques-
tion is quite different: is this particular confession false? To answer that ques-
tion, personality traits are not very useful. First, the problem in using personality
traits to identify false confessions is that many suspects have a low IQ anyway,
and the other characteristics mentioned above also apply to them. That means
that, with little exaggeration, one can say that the base rate of personality
characteristics of suspects are more or less the personality characteristics that
make suspects prone to confess falsely. Deviations from a strong base rate, we
know, are hard to predict.
Second, individual behaviour is not just the result of personality, but
depends on interaction of personality with the situation (Bem & Funder, 1978 ;
Mischel,
1977, 1979
). That means that, for instance, with a gentle form
56
Handbook of Psychology of Investigative Interviewing
of interrogation only impressionable suspects are susceptible to making a false
confession, while a rough interrogation can make almost everybody confess
almost anything. Third, even if a suspect is prone to making a false confession,
he may have committed the crime and thus the confession may actually
be true.
It seems fair to say that if a suspect has the personality characteristics men-
tioned above, knowing that does not help very much in distinguishing between
true and false confessions. If, however, a suspect has the opposite characteris-
tics – a high IQ, trust in his memory, sound faculties and is neither suggestible
nor compliant – we may conclude that any confession made will not be the
product of his personality. Thus, personality characteristics seem to be of
some, but not great use in distinguishing between true and false confessions.
However, that does not mean that they are not highly relevant to interro-