The result is not just a false confession but an “internalized false confession” in which the suspect comes to think that he actually committed the crime. The admission is often embellished by invented details and motives—sometimes fed by the interrogator—that enhance the story’s credibility. As Kassin observes, however, “a police-induced confession is like a Hollywood drama: scripted by the interrogator’s theory of the case, shaped through questioning and rehearsal, directed by the questioner, and enacted by the suspect.”
As soon as Tankleff was out of interrogation, he recanted his confession, as if coming out of a spell. It didn’t help. The trial judge admitted it into evidence, a jury convicted him, and he was given fifty years to life. He got out seventeen years later, only after a New York appeals court vacated the conviction based on new evidence, uncovered mostly by a private investigator, that pointed in the direction of three ex-convicts organized by Steuerman, who had disappeared several days after the murders, shaved his beard, taken an alias, and moved to California.42 Furthermore, Detective McCready and Steuerman may have known each other, according to two witnesses quoted in a book by the private investigator and a Newsday reporter.43
New York’s attorney general decided against retrying Tankleff, and against charging Steuerman and the others because of insufficient evidence. Tankleff filed a civil rights suit against Suffolk County and the police officers.44
THE LAW SLIPS BACKWARD
“Ironically, as more is learned about the perils of false confessions, less is done to safeguard against them,” wrote Alan Hirsch after sifting through cases against slaves in the antebellum South. He had discovered something intriguing: judge after judge had thrown out confession after confession induced by oblique, understated suggestions of either leniency or threat. Such rulings would rarely happen today, for the courts have grown permissive.
Before the Civil War, however, some judges in Mississippi, Alabama, and Florida recognized that truth could be sacrificed to the power disparities between slave and interrogator. An Alabama court ruled that even “the slightest inducement” would contaminate a confession’s reliability. “A Mississippi court reversed a conviction when a slave confessed after being told that ‘it would be better for [him] to tell the whole truth,’ ” Hirsch reported. “An Alabama court reversed a conviction because the master said, ‘Boy, these denials only make the matter worse,’ and the slave might ‘very naturally have concluded that confessions of his guilt would make the matter better.’ ”45
Concerns over slaves’ vulnerabilities were probably magnified by bigotry; some rulings hinted at judges’ patronizing stereotypes of blacks as frail in character and intellect, unable to withstand interrogation. In throwing out a confession in 1864, an Alabama court sounded a call to protect “those who are weak, or ignorant, and who might be tempted, or seduced, or overawed, by influences which could not affect the minds of the more intelligent, or more intrepid.” Yet courts could not appraise the “constitutional firmness or weakness of each individual,” the opinion noted, and so imposed a universal rule to reject induced confessions by anyone, not just slaves.46
By the end of the century, the Supreme Court tuned in. Acknowledging the danger of implicit rewards and punishments, the Court in Bram v. United States quoted approvingly from a textbook’s warning that a confession “must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight.”
The case was a mystery at sea: During the dark mid-watch on a ship carrying lumber from Boston, an ax or other sharp tool was used to penetrate the skulls of the captain, his wife, and a second mate. An initial suspect with the name Brown, placed in irons, then accused Bram, the first officer, who was also taken into custody. During questioning in port, a detective confronted Bram with Brown’s assertion that from his position on the wheel, he saw Bram kill the captain. “He could not have seen me from there,” Bram replied, and that was taken as a confession. The detective urged him to name an accomplice to share the burden: an implicit promise of leniency, the Court found as it threw out the statements and ruled that once the accusation was presented, “the result was to produce upon his mind the fear that, if he remained silent, it would be considered an admission of guilt.”
“Any doubt as to whether the confession was voluntary must be determined in favor of the accused,” the justices declared. “Any doubt” has since grown to require much more: at least a 51 percent chance, a “preponderance of evidence,” that the confession was involuntary. Anything less and the confession comes into the trial.47
Bram was far ahead of its time, predating the modern research on false confessions; the justices were keen enough to grasp what psychologists have now documented. Yet the opinion never took hold in the judicial system. It was dodged and disregarded as lower courts imagined that the case before them didn’t quite fit the model, Hirsch observes, “that the alleged promise was not a promise, or somehow not a sufficient promise,” not explicit, specific, or clear enough. Some courts didn’t bother to rationalize Bram away; they just decided it should not be applied literally, or they simply stopped mentioning it at all, and then they cited one another in a chain reaction of evasion and erosion. In several cases, the Supreme Court was guilty of this itself, before finally laying the opinion quietly to rest in 1991. An excellent principle disintegrated into dust.48
The Reid training literature warns that threats and promises combined can generate false confessions, but it then takes advantage of the broadened latitude the courts have given. Interrogators are taught to walk a fine line between making a promise and cultivating hope. They may not say, “We’ll get you off without prison,” but they may ask, “Was this your idea or did your buddies talk you into it?” The question allows the suspect to consider two possibilities: a moral exemption for being pressured by peers, and a legal chance for a lighter sentence. When the prospect of leniency has been invented inside a suspect’s mind, triggered by a police officer’s subtle suggestion, courts usually allow the confession. Some judges permit interrogators to get very close to a promise—“I’ll let your cooperation be known to the prosecutor,” or, “I’ll recommend leniency to the judge”—as long as it stops short of a quid pro quo.
“Why is it that antebellum southern judges better understood … that the innocent might confess?” Hirsch asked. “The answer may lie in the nature of slavery, an evil so stark as to provide a certain clarity.” From that most extreme condition of bondage, the courts extended their misgivings about inducements to all confessions, not just those by slaves—and appropriately so. “To put the point provocatively, all interrogated suspects are slaves,” Hirsch wrote. “That is, the conditions of interrogation create a social and psychological reality mirroring that of the slave.”49
MANIPULATING MIRANDA
Hirsch may be right about the social and psychological reality, but the legal reality is quite different, not at all akin to slavery. In the legal realm, the suspect enjoys control he may not sense and options he may not recognize. Therefore, he should be empowered by the Miranda warning. If administered sincerely and explained thoroughly, it is not just a text but a process: the interrogator, in reciting the rights, cedes some measure of authority, conveys the true nature of free choice, and levels the imbalance in the room.
So police officers learn how to Mirandize without jeopardizing their control, without disrupting the flow of questioning, without inviting the suspect to invoke his rights and close down. But of course, innocent people tend to waive their rights, because they believe naively that they have nothing to fear.
“Introduce Miranda casually,” the Reid training suggests, and not promptly at the time of arrest, when the suspect “is often defensive and guarded. If he is advised of his constitutional rights in that frame of mind, he is more likely to invoke his rights.” Rather, the warnings are better spliced seamlessly into conversation: I want to hear your side, but before I do, I’ve got to mention your rights, which you
probably understand already. You have the right to remain silent.… Now, let’s talk. OK?50
Officers are urged to adopt soft characterizations of the interview as just “routine questions,” “to clarify circumstances,” “to assist in our investigation.” The crime can be called “this thing that happened,” and the verb “murder” can be replaced by “cause the death of.”
Cops are advised to remove their guns and handcuffs before going into the interview room, so as not to dramatize the force of law enforcement. If the questioning is taped, it should be done surreptitiously, Reid suggests, because visible recording equipment “serves as a huge reminder of punishment, e.g. your words will be used against you later.”51 Therefore, while a skillful interrogation respects the suspect’s rights as required by the courts, it does not keep him mentally in the world of legal reality, where his rights give him leverage. It moves him into the psychological realm, where he has less influence.
The strategy is feasible because confession is not just a legal act. It is also a complicated cultural phenomenon. Legally, it carries unhappy consequences, but as a personal, religious, moral step it can expiate guilt and bring redemption. In most settings, it is coupled with forgiveness. It is a religious duty in Christianity, an ethical obligation in family relations, a personal catharsis, a purging, a new beginning designed for salvation to wipe the slate clean of sin. Police officers may play on all these extralegal keys.
Interrogators are encouraged to make appeals to remorse by implying forgiveness morally but not criminally, as in the case of a woman with a long criminal record. To harness her grief and regret, an interrogator collected her mug shots taken over a decade, put them in an album, and slowly turned the pages. In the first photograph, she looked pretty and unspoiled, even naive, but gradually her face grew hardened and scarred by drugs and crime. As she watched herself deteriorating, the officer talked about the pain that her choices had brought in her own life. “By the time the investigator got to the suspect’s most recent photograph, she was in tears and confessed not only to the issue under investigation, but implicated a number of other suspects in unsolved crimes.”52
Like car salesmen who want to close the deal, cops have developed various ways to hurry things up and sell confession as a virtue. Trainers suggest telling the suspect that people naturally believe the original version they hear, so he’d better get his on the table first. Buckley gives this tactic a softer interpretation. “We sell telling the truth,” he declares. “Not everyone we interrogate is guilty,” and an interrogation should be considered successful if someone is eliminated as a suspect.
That quest for truth is one of the Fifth Amendment’s values but, like most noble principles, not universally put into practice. In real life, for example, cops often question before Mirandizing, then slip the warning into the middle of the conversation after someone has made an incriminating statement, and finally build the rest of the interrogation on that pre-Miranda admission. It’s a method approved by the Supreme Court.
Federal prosecutors in Washington, D.C., defended it by first arguing in court that a man handcuffed at home during a search was not “in custody” and therefore didn’t have to be Mirandized. The police had handcuffed twenty-five-year-old William Davis in his mother’s kitchen while they searched the house for drugs. “It is common,” said Detective Robert Saunders. “They would go inside and handcuff during a search. You don’t want people running around and breaking into weapons.” Exemptions are made for women, children, the elderly, and others who don’t pose a threat, he said, but Davis had done some time for robbery. His mother, Barbara Destry, was in the kitchen too, unrestrained.
She called him “Bumbles,” poor guy, short for Bumble Bee, the nickname he’d been given as a newborn when somebody said he looked like the bee on a can of tuna. Bumbles was mentally impaired, unable to read beyond the level of a second grader, a handicap that worked against him in a fast-paced, tricky situation such as this one.
Officers were searching around the outside of the house when Detective Saunders heard an officer call in and “give a code we use when we recover a weapon.” So he turned to Bumbles. “I asked, ‘Is there anything we should know about that could get your mother into trouble?’ He said, ‘There’s a gun back there.’ ”
Destry heard it differently. “He said, ‘You have to admit to it, or we’re gonna lock your mother up,’ ” she told me. She was angry at the detective, angry at her son for admitting to a gun, angry that a gun was in a place where children could get it, apparently stashed in a vent on an outside wall. She scolded him. “There are kids out there,” she said, and punched her grown son hard enough to knock him off his chair. Only later did she learn that the gun was not her son’s, she said, but belonged to a cousin who got it for protection after another cousin had been shot and killed. It was a rough neighborhood.53
The cops helped Davis up and took him to the living room, where “I advised him of his rights orally,” Saunders testified. The D.C. police usually have suspects sign a form, the PD-47, signifying that they’ve been Mirandized, but “we don’t unhandcuff anybody to let them sign the PD-47,” the detective said. Whether or not Davis understood his rights was a question, but in any case the unwarned part of the conversation flowed seamlessly into the post-Miranda phase.
“He appeared to be embarrassed,” Saunders recalled as he read from his notes. “He said, ‘Please don’t take my mother. The gun’s mine. It’s a black .45. The safety’s on.’ ”
When Davis’s defense moved to suppress his statements, the assistant U.S. attorney argued that in the kitchen, before being Mirandized, he was not in custody. The federal judge Rosemary Collyer disagreed. “I find that he was in custody,” she said. “I agree that an occupant of a house in handcuffs while his house is being searched is in custody.… The question from Detective Saunders was improper and the answer should not be admitted, and I’m going to suppress it.”
Davis’s statement in the living room, however, after the Miranda warning was recited, “was voluntarily given,” she ruled. “I therefore find that it is admissible.”
So the police tactic worked: question without the Miranda warning first, threaten to arrest the mother, get an incriminating statement, then recite the rights and build on the first statement to get it again.
The method narrowly received a formal imprimatur in 2004 from the Supreme Court, ruling 5–4 in Missouri v. Seibert in favor of an arresting officer who deliberately avoided Mirandizing an arson and murder suspect. After she had confessed, the officer gave her the Miranda warning, confronted her with her earlier admission, and obtained it a second time.54 If a similar sequence were followed in a physical search—an illegal traffic stop, for example, leading to the discovery of a gun in the car—Fourth Amendment case law would regard the resulting evidence as inadmissible, known in legal parlance as the fruit of a poisonous tree. By contrast, in questioning covered by the Fifth Amendment, judges have decided that the fruit of the poisonous tree can be eaten with no ill effects.55
REMEDIES
Courts and legislatures are understandably reluctant to tie police interrogators’ hands so tightly that they get no confessions of any kind, true or false. But a false confession is obviously worse than no confession, since it deludes the authorities into thinking they’ve solved the crime, and it ends with two people in places they shouldn’t be: the innocent in jail and the guilty still on the street. That hardly makes society safer. So it seems logical to devise remedies against false confessions, even if that means losing some that are true.
Several steps would eliminate specific tactics that have produced bogus admissions. First, police could be prohibited from lying to suspects by pretending to have evidence that doesn’t exist. Second, judges and lawmakers could return to the strict nineteenth-century standards on inducements, outlawing even the subtlest suggestions of leniency. Third, no child should be questioned without a parent or a lawyer present.
Fourth, if the whol
e interrogation is videotaped, from beginning to end, prosecutors, defense attorneys, judges, and jurors can see the full police repertoire of tricks and maneuvers. This idea is catching on, with several state legislatures and state supreme courts ordering that it be done in capital or other serious crimes. When Barack Obama was an Illinois state senator, he labored and lobbied successfully for legislation in 2003 to require such recording in the wake of the Chicago torture and the DNA reversals of death penalty convictions.56 The following year, the Massachusetts Supreme Judicial Court ruled that jurors should regard unrecorded confessions with “great caution.”57 A scattering of other states and local authorities now require taping, including Maine, Alaska, and New Mexico.
Police sometimes skate past the rule, using poor equipment so that inaudible words can be resolved in the authorities’ favor. Or they record the confession only, which may compound the power of false statements as the judge and the jury see the suspect in the last few minutes of a long session, after he has been broken and is reciting his rehearsed lines. No evidence is more persuasive than a taped confession, especially in the absence of the manipulative interrogation that has preceded it. Some confessions later proven false have been recorded. Very few wrongful convictions are known to have resulted when the entire questioning has been taped from the outset, although that may be partly because recording is still rare.58
Full recording in Massachusetts got a murder confession by Shamar Q. White suppressed after the judge could see the interrogator ignore his request for a lawyer. Police told another defendant they wouldn’t charge him if he confessed, and then, of course, brought charges based on his admission. With the camera watching, the vulnerabilities of the suspects to interrogators’ suggestions become dramatically obvious. Police behavior presumably becomes more professional and responsible.59
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 11
