Unfair

by Adam Benforado

  More broadly, they appear to have: “DNA Exonerations Nationwide.”

  These cases tend to confound: Simon, In Doubt, 134–36. In one sample, more than 30 percent of the reviewed cases of false confession involved more than one innocent person confessing. Steven A. Drizin and Richard A. Leo, “The Problem of False Confessions in the Post-DNA World,” North Carolina Law Review 82 (2004): 972.

  Indeed, in one of the most famous: The boys were subjected to lengthy interrogations and immediately retracted their statements after being arrested. However, they were all convicted and sent to prison, until the true rapist confessed and agreed to a DNA test. Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Cambridge, MA: Harvard University Press, 2011), 31; “Central Park Jogger (1989),” New York Times, October 3, 2012, http://topics.nytimes.com/​top/reference/​timestopics/subjects/c/​central_park_jogger_case_1989/​index.html; Kassin et al., “Police-Induced Confessions,” 4.

  While some who falsely confess: Simon, In Doubt, 121. For a discussion of the different types of confessions, see Lawrence S. Wrightsman and Saul M. Kassin, Confessions in the Courtroom (Newbury Park, CA: Sage, 2003), 84–93. The focus in this chapter is on coerced confessions. There is an entirely separate category of truly voluntary false confessions, which may emerge particularly following highly publicized crimes. Two hundred people, for example, are known to have confessed to the kidnapping of Charles Lindbergh’s infant son. Kassin et al., “Police-Induced Confessions,” 14.

  The generally accepted gold standard: Fred E. Inbau et al., Criminal Interrogation and Confessions, 5th ed. (Burlington, MA: Jones & Barlett Learning, 2013); Simon, In Doubt, 121–22; Garrett, Convicting the Innocent, 22. Hundreds of thousands of investigators in North America, Europe, and Asia have been trained in the Reid technique. Inbau et al., Criminal Interrogation, viii.

  Using the Reid approach: Inbau et al., Criminal Interrogation, 3–7, 187. Investigators following the Reid technique may ask “behavior-provoking questions” (e.g., “Jim, under any circumstances do you think the person who started that fire should be given a second chance?”) meant to induce revealing behavior, like fidgeting with one’s hands, averting one’s gaze, and freezing up. Inbau et al., Criminal Interrogation, 155, 161; Kassin et al., “Police-Induced Confessions,” 6.

  And far from correcting: Inbau et al., Criminal Interrogation, 101–37; Simon, In Doubt, 127–28.

  Indeed, it is innocent people: Simon, In Doubt, 140.

  They tend to assume: There is some evidence that being innocent may actually increase one’s risk of falsely confessing. Kassin et al., “Police-Induced Confessions,” 22–23.; Simon, In Doubt, 140.

  Since they didn’t commit the crime: Simon, In Doubt, 140.

  But, in reality, once the interrogation: Inbau et al., Criminal Interrogation, 185–327; Simon, In Doubt, 133.

  To this end, the Reid manual: Kassin et al., “Police-Induced Confessions,” 12. The Reid manual, for instance, suggests bringing in a false evidence file into the interview room along with “other visual props, such as a DVD disc, CD-ROM, audio tape, a fingerprint card, an evidence bag containing hair or other fibers, spent shell casings, vials of colored liquid, and others.” Inbau et al., Criminal Interrogation, 192.

  As a result, the environment: Kassin et al., “Police-Induced Confessions,” 7; Simon, In Doubt, 134.

  Many who falsely confess later say: Simon, In Doubt, 134; Brandon Garrett, Convicting the Innocent, 18.

  And experimental evidence suggests: It has been hypothesized that because resisting accusations during an interrogation appears to result in stress-related bodily changes, it may be that participants falsely confess simply to relieve heavy physiologic stress. Max Guyll et al., “Innocence and Resisting Confession During Interrogation: Effects on Physiologic Activity,” Law and Human Behavior 37 (2013): 8, doi: 10.1037/lhb0000044.

  When we have an opportunity: Rivera, 962 N.E. 2d at 65–66.

  According to the nine steps: Kassin et al., “Police-Induced Confessions,” 7.

  The officer might suggest that: Inbau et al., Criminal Interrogation, 217–18; Kassin et al., “Police-Induced Confessions,” 12.

  Empirical evidence suggests that both of these: While the minimization technique appears to lead people to believe that they are being promised lenient treatment, maximization tends to be interpreted as a threat. Kassin and Gudjonsson, “The Psychology of Confessions,” 53-55; Saul M. Kassin and Karlyn McNall, “Police Interrogations and Confessions: Communicating Promises and Threats by Pragmatic Implication,” Law and Human Behavior, 15 (1991): 233–51; Melissa B. Russano et al., “Investigating True and False Confessions Within a Novel Experimental Paradigm,” Psychological Science 16 (2005): 481–86. For an overview of this literature, see Simon, In Doubt, 135–38; Kassin et al., “Police-Induced Confessions,” 12.

  And the effects are not small: Russano et al., “Investigating True and False Confessions,” 483–84. The minimization prompt provided in the main text is just one example of those used in the experiment.

  When the interrogator added: Russano et al., “Investigating True and False Confessions,” 484. It should be noted that the fifth edition of the Reid manual contains numerous asides offering cautions and caveats, some of which nod to the concerns raised in this chapter. The problem is that, looking at the manual as a whole from a typical reader’s perspective, it is hard to view them as anything but exceptions (e.g., gaze aversion is a good way to tell someone is lying, but there are a couple of exceptions). Inbau et al., Criminal Interrogation, 161. Indeed, the Reid manual may pose more of a threat now: while the problematic core has been preserved, the current edition contains sufficient hedges and scientific asides to convince judges that it is unlikely to encourage false confessions.

  Despite these serious concerns: It is not as if the Supreme Court has failed to grasp the importance of a confession. In the case of Colorado v. Connelly, the Court explained that “the introduction of a confession makes the other aspects of a trial in a court superfluous, and the real trial, for all practical purposes, occurs when the confession is obtained.” Colorado v. Connelly, 479 U.S. 157, 182 (1986). So, the failure of the Court to make changes to eliminate false confessions likely reflects mistaken beliefs about the prevalence of such incidents and a fear of constraining police officers and prosecutors.

  While the Supreme Court has formally: Bram v. United States, 168 U.S. 532, 542–43 (1897); Simon, In Doubt, 134–36. For instance, a review of cases revealed numerous instances where judges allowed confessions gained after interrogators offered what amounted to a prohibited “deal” (i.e., if you confess, we will make sure you get a lesser sentence). Welsh S. White, Miranda’s Waning Protections: Police Interrogation Practices after Dickerson (Ann Arbor, MI: University of Michigan Press, 2006). Indeed, while the language that the Supreme Court used in Bram v. United States would suggest a firm ban on minimization techniques, the case has been a weak and often nonexistent constraint on such practices. Kassin et al., “Police-Induced Confessions,” 12.

  Further, the justices have explicitly sanctioned: Simon, In Doubt, 135; Garrett, Convicting the Innocent, 23; Kassin and Gudjonsson, “The Psychology of Confessions,” 54. The Supreme Court has made it clear that deception by the police is not enough by itself to make a confession involuntary. Frazier v. Cupp, 394 U.S. 731 (1969); Kassin et al., “Police-Induced Confessions,” 13. That said, some state courts have barred the actual construction of false evidence (e.g., fake crime lab reports), while continuing to allow the police to lie to the suspect about the existence of incriminating evidence. Kassin et al., “Police-Induced Confessions,” 13.

  In one of the most tragic cases: David K. Shipler, “Why Do Innocent People Confess?” New York Times, February 23, 2012, http://www.nytimes.com/​2012/02/26/​opinion/sunday/why-do-innocent-people-confess.html?pagewanted=all.

  Investigators suspected that Martin: Shipler, “Innocent People Confess.”

  Afte
r the fake conversation: Shipler, “Innocent People Confess.” The interrogator also lied and said that strands of Martin’s hair were found in his mother’s hand and that a “humidity test” had revealed that he had showered to remove the blood on his body. Kassin et al., “Police-Induced Confessions,” 17.

  The father, in fact, never came to: Shipler, “Innocent People Confess.”

  His case involved two: Simon, In Doubt, 140; Gross et al., “Exonerations in the United States 1989 Through 2003,” Journal of Criminal Law and Criminology 95 (Winter 2005): 523–60.

  A disproportionate number of verified: Those who are young, low in intelligence, or mentally disabled have demonstrated particular susceptibility to coercion and a strong desire to defer to or please interrogators. Garrett, Convicting the Innocent, 38; Simon, In Doubt, 140.

  At the time of his arrest: Rivera, 962 N.E. 2d at 59–60; “Juan Rivera, Center on Wrongful Convictions,” Northwestern Law, accessed May 6, 2014, http://www.law.northwestern.edu/​legalclinic/wrongfulconvictions​/exonerations/il​/juan-rivera.html.

  Among other mental illnesses: Brief for Defendant at 26, Rivera (No. 2-09-1060).

  Despite these warning signs: “Juan Rivera, Center on Wrongful Convictions.” His mental health conditions were disclosed to the police on a Mental Data Sheet before the first polygraph. Brief for Defendant at 5, Rivera (No. 2-09-1060).

  It took four days: “Juan Rivera, Center on Wrongful Convictions.”

  But the police, as they often do: “Juan Rivera, Center on Wrongful Convictions.”

  Although the polygraphs administered: Brief for Defendant at 77, Rivera (No. 2-09-1060). It is worth noting that, in experiments, falsely telling participants that a polygraph shows that they committed a violation increases the number of people who admit to that violation. Kassin et al., “Police-Induced Confessions,” 17.

  Rivera immediately became upset: Brief for Defendant at 7–8, Rivera (No. 2-09-1060).

  At around midnight: Brief for Defendant at 9, Rivera (No. 2-09-1060).

  He wasn’t able to get the words out: Brief for Defendant at 9, Rivera (No. 2-09-1060).

  Over the next few hours: Brief for Defendant at 9–10, Rivera (No. 2-09-1060).

  By 3 a.m., the officers had: Brief for Defendant at 11, Rivera (No. 2-09-1060).

  Rivera, left on his own: Brief for Defendant at 11, 27, Rivera (No. 2-09-1060).

  Moved to a padded cell: Brief for Defendant at 11, 27, Rivera (No. 2-09-1060).

  The nurse on duty described him: Brief for Defendant at 11–12, Rivera (No. 2-09-1060).

  When she checked back: Brief for Defendant at 12, Rivera (No. 2-09-1060).

  Returning in the early morning: Brief for Defendant at 12, Rivera (No. 2-09-1060).

  The document, though, was so inconsistent: Brief for Defendant at 13, Rivera (No. 2-09-1060).

  The two detectives: Brief for Defendant at 13, Rivera (No. 2-09-1060).

  These interrogators focused on: Brief for Defendant at 15, Rivera (No. 2-09-1060).

  After a few more hours: Brief for Defendant at 15, Rivera (No. 2-09-1060).

  Questions like: Brief for Defendant at 15, Rivera (No. 2-09-1060); Simon, In Doubt, 136.

  Information that only the real perpetrator: Simon, In Doubt, 136.

  Juan Rivera discussed the crime: Rivera, 962 N.E. 2d at 67; Brief for Defendant at 5, Rivera (No. 2-09-1060); Brief for Respondent at 7, Rivera (No. 2-09-1060), http://www.law.northwestern.edu/​legalclinic/wrongfulconvictions/​exonerations/documents/​Rivera_States2011Brief.pdf.

  Moreover, at least fifteen: Rivera, 962 N.E. 2d at 65–66. It is notable that a significant number of false confessions cases have involved taking the suspect to the crime scene. Garrett, Convicting the Innocent, 33.

  Lamentably, these are just the types: Simon, In Doubt, 136.

  While a more rigorous interrogation protocol: A less error-prone interrogation approach would have involved eliminating suggestive questioning, contaminating information, and coercive pressures, among other things. Although the Reid manual explicitly bars contaminating confessions by providing relevant details to a suspect, it still occurs. Garrett, Convicting the Innocent, 23.

  This can be problematic when it comes to: In Doubt, 126; Carol Toris and Bella M. DePaulo, “Effects of Actual Deception and Suspiciousness of Deception on Interpersonal Perceptions,” Journal of Personality and Social Psychology 47 (1984): 1063–73.

  Beginning the process with a theory: Simon, In Doubt, 126.

  This, in turn, can lead them: Simon, In Doubt, 137.

  One study found that mock interrogators: Simon, In Doubt, 137.

  The results were stark: Simon, In Doubt, 137.

  As is common in false confessions: Brief for Defendant at 9, 10, 42, Rivera (No. 2-09-1060). It is very common for suspects to provide facts that contradict what is known about the crime, appearing in at least 75 percent of known false confession exoneration cases. Garrett, Convicting the Innocent, 33.

  And once a confession is extracted: Brandon L. Garrett, “Introduction: New England Law Review Symposium on ‘Convicting the Innocent,’ ” New England Law Review 46 (2012): 680.

  In turn, your defense attorney: Kassin et al., “Police-Induced Confessions,” 23. While prosecutors tend to maximize the charges they bring against confessing defendants and seek higher bails, defense attorneys tend to push plea bargains thinking they’ll lose at trial. Drizin and Leo, “The Problem of False Confessions,” 922.

  Perhaps most important, a confession: Once they get a confession, the police wrap things up, which means that new evidence of innocence tends to be disregarded and leads focused on other suspects tend to be ignored. Kassin et al., “Police-Induced Confessions,” 23; Drizin and Leo, “The Problem of False Confessions,” 921–23; Garrett, Convicting the Innocent, 35.

  In one particularly egregious case: Garrett, Convicting the Innocent, 35.

  He was turned down, however: Garrett, Convicting the Innocent, 35.

  In eight of the first 250: Garrett, Convicting the Innocent, 35.

  The only reason these men: Garrett, Convicting the Innocent, 35.

  As remarkable as it is: Garrett, Convicting the Innocent, 35.

  Hard-nosed interrogations are particularly: Simon, In Doubt, 132; Garrett, Convicting the Innocent, 21.

  Failing to gain a confession: Simon, In Doubt, 132.

  By the time Juan was brought in: Martin, “Prosecution’s Case.”

  In December 2011: Martin, “Illinois: Inmate Cleared.”

  Juan Rivera spent half his life: Martin, “Prosecution’s Case”; Martin, “Illinois: Inmate Cleared.” Juan suffered, as the court put it, “the nightmare of wrongful incarceration.” Rivera, 962 N.E. at 67–68.

  It took Juan keeping faith: Black and Fuller, “3rd Life Sentence.”

  In a deeply troubling twist: Steve Mills and Dan Hinkel, “DNA Links Murder and Rape of Holly Staker, 11, to Second Murder 8 Years Later,” Chicago Tribune, June 10, 2014, http://articles.chicagotribune.com/​2014-06-10/​news/chi-dna-links-murder-and-rape-of-holly-staker-11-to-second-murder-8-years-later-20140610_1_holly-staker-dna-evidence-dna-match.

  During the closing argument: Martin, “Prosecution’s Case.”

  Members of the media and others: Martin, “Prosecution’s Case.”

  Ninety to ninety-five percent: Lindsey Devers, “Plea and Charge Bargaining,” U.S. Department of Justice, January 24, 2011, 3, https://www.bja.gov/Publications/PleaBargainingResearchSummary.pdf; John H. Langbein, “Torture and Plea Bargaining,” University of Chicago Law Review 46 (1978): 12.

  Let that sink in: Langbein, “Torture and Plea Bargaining,” 12; Devers, “Plea and Charge Bargaining,” 3.

  Suppose you were told that: Innocence Project, “James Ochoa,” accessed May 6, 2014, http://www.innocenceproject.org/​Content/​James_Ochoa.php.

  Twenty-year-old James Ochoa: “James Ochoa”; R. Scott Moxley, “CSI Games: If DNA Evidence Doesn’t Fit in Orange County, Alter It?,” OC Weekly New
s, March 13, 2008, http://www.ocweekly.com/​2008-03-13/​news/csi-games/.

  He took the plea and spent: “James Ochoa.” Thankfully, the stabbing was not fatal. Moxley, “CSI Games.”

  The Supreme Court believes that: Lucian E. Dervan and Vanessa A. Edkins, “The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem,” Journal of Criminal Law and Criminology 103 (2013): 12, 46–47.

  In one recent study extending: Dervan and Edkins, “The Innocent Defendant’s Dilemma,” 1, 3.

  Over half of innocent participants: Dervan and Edkins, “The Innocent Defendant’s Dilemma,” 1, 3.

  If we really believe in transparency: Langbein, “Torture and Plea Bargaining,” 18.

  Despite the bluster of the prosecutors: R. Scott Moxley, “The Case of the Dog That Couldn’t Sniff Straight,” OC Weekly News, November 5, 2005, http://www.ocweekly.com/​2005-11-03/news/​the-case-of-the-dog-that-couldn-t-sniff-straight/2/.

  Most critically, the sheriff’s crime lab: The perpetrator’s gun and hat both had DNA matching the same person, but not Ochoa’s. R. Scott Moxley, “Oops,” OC Weekly News, October 26, 2006, http://www.ocweekly.com/​2006-10-26/​news/oops/.

  But the real cards were: R. Scott Moxley, “The Case of the Dog That Couldn’t Sniff Straight,” OC Weekly News, November 5, 2005, http://www.ocweekly.com/​2005-11-03/news/the-case-of​-the-dog-that-couldn-t-sniff-straight/2/.

  3. The Criminal Mind ~ The Suspect

  Mug shot photographs: Frank Masters, photograph, 1890 (New Zealand Police Museum, Porirua); John Powell, photograph, 1889 (New Zealand Police Museum, Porirua); Alick Evan McGregor, photograph, 1887 (New Zealand Police Museum, Porirua); William Johnston, photograph, 1887 (New Zealand Police Museum, Porirua).

  Which one was convicted of raping: “Frank Masters,” New Zealand Police Museum, accessed May 13, 2014, https://sites.google.com​/site/newzealandpolicemuseum/home/online-exhibitions/​mug-shots/selectedbiographies/frankmasters.