This interview caused me to change my practice. Previously, the presence of a confession in a discovery package would alter my view of all other evidence, even though I am their attorney, my client’s advocate. I cannot imagine the impact on juries and judges and even appellate courts.
It is easier for someone to cognitively understand why someone would commit suicide than understand why someone would falsely confess to a crime they did not commit.
In a separate interview, Kassin makes another good point.
Judges, juries, lay people — they can’t tell the difference between a true confession and a false confession just by watching the confession. I went into a prison outside of Boston with colleagues. We had prisoners on tape confessing to the crimes for which they were incarcerated and then we asked each one to make up a confession to a crime he did not commit. People cannot tell the difference between those two sets of confessions. And the story of every false confession is not just a story of what happened in the police interrogation room. It’s a story of the fact that once that false confession was taken and recanted and the person pled not guilty and went to trial, in every instance, a prosecutor, judge, jury and, typically, an appeals court, believed that false confession.
Kassin makes the point that we should have full recording of entire interviews. Some jurisdictions do record the entire interview/interrogation. Others do not record at all. (Should we challenge these statements by our clients because law enforcement have intentionally spoiled the process for judicial review. As Kassin points out, how will these judges, the gatekeepers of evidence, make an informed decision? Have the spoiled the evidence? 25 states require the recording of interrogations, least in serious felony cases.
So, first thing it’s important to know is there’s no way to identify what it is that law enforcement does simply by watching the final statement. That’s why what’s most important and whenever I clamor for reform and other psychologists in this area clamor for reform, the number one rule for reform is, record the entire process…The minute they walk in. And in fact, I’m sitting here right now in the District of Columbia Metro Police — DC Metro Police went to the system years ago. They’ve got interview rooms set up and as soon as somebody walks into the room the motion activation system turns on the lights and turns on the camera. Simple as that. Every interaction is recorded. It’s the only way that a judge and a jury can make a reasonable determination as to what happened. You can’t know from listening to the final product.
Now, I keep saying judge and jury. The judge, almost always when a confessor recants and goes to trial, the judge ends up having to rule in a pre-trial suppression hearing as to whether or not that confession was voluntary because by law if the judge determines that it was not voluntary then it should not be admissible into evidence and the case is usually closed.
So every judge has to rule on whether the confession was voluntary. Most times confessions are ruled voluntary. They go into trial and then it’s up to the jury to determine whether it’s a credible confession. I don’t know how a judge is competent to determine voluntariness without watching the process. I don’t know how a jury can know whether it’s a good confession without watching the process.
Kassin implicitly identifies another point on which defense attorneys may need to challenge these confessions. He describes a two step process in American style interrogations. First there is accusation:
There tends to be an American style, confrontational style set of techniques that are shaped around what the law permits and those techniques are confrontational meaning that the goal is to accuse right out of the gate accuse the suspect of having committed the crime. And in fact, the opening salvo of an American style interrogation is an accusation of guilt. And a refusal to accept denials. So, when a subject denies that having any involvement post-accusation typically what the American detective will do is call that person a liar, say no, we know what happened. We want you to tell the truth. And the process then proceeds kind of relentlessly for some degree of time. I should say, the average interrogation lasts for 30 to 60 minutes. But if you look at false confession cases, they’re six hours, eight hours, 10 hours, 14 hours — and so this is this relentless process.
Now, it starts with an accusation. Eventually what happens is the American interrogator fashions a set of tactics that are designed both to make it stressful to continue to deny and less stressful to continue to confess.
But the weakness is on the second step: minimization:
Get it over with and along the way not only does the interrogator imply that we have all sorts of evidence against you, most countries do not allow their police to lie about the evidence. It makes the suspect feel overwhelmed as if they have no choice, as if there is an air of inevitability. And so now you’re looking for an expedient way out.
Well, here comes the second set of tactics, which I have collectively used the term minimization to describe it. Minimization is, and you see this in every one of these cases, minimization is you know, I think you’re a good person. I don’t think you intended to do this. I don’t think this is something you went in there intended to do. It’s possible you may have had too much to drink. It’s possible somebody put you up to it. You were under pressure. You were provoked. There are externalizations of blame, moral justification. The implication is, you know what, I don’t think this is such a big deal. So, the crime and the implications of that crime are minimized. It is not a coincidence that every one of the Central Park Five boys and their families who were present, when their interrogations had concluded and they were put under arrest, they were shocked. They all thought they were going home. The most common comment you hear when a microphone is put into the face of an exoneree who had confessed is, “So why did you confess?” The typical thing they say is because they wanted to go home…
Again, as am empirical matter we’ve done these studies. When people hear minimization tactics, the take-home message that they infer when we ask them is leniency. This person will not be treated with a harsh punishment. And so that’s the American-style interrogation.
“A confession is prima facie involuntary and inadmissible, and the state must show voluntariness and a Miranda predicate in order for it to be admitted.” Thomas v. State, 373 So.2d 1167 (Ala. 1979) Whether there was a waiver of the right to remain silent and the right to counsel and, if so, whether it was knowingly, voluntarily, and intelligently made must be decided from the particular facts and circumstances of each case, including the background, experience, and conduct of the accused — the totality of the circumstances. For a confession, or an inculpatory statement, to be admissible, the State must prove by a preponderance of the evidence that it was voluntary. Ex parte Singleton, 465 So. 2d 443, 445 (Ala. 1985) I am not sure trial courts or even lawyers even believe this any longer but its the law.
But if Prof. Kassin is correct that the minimization is received psychologically as a promise of leniency, it should be inadmissible. “It has long been held that a confession, or any inculpatory statement, is involuntary if it is either coerced through force or induced through an express or implied promise of leniency.” McLeod v. State, 718 So. 2d 727. (Ala.1998)
Basic research in social cognition suggests a second troubling mechanism by which confessions exert influence: by tainting the perceptions of eyewitnesses, alibis, forensic examiners, and others who are supposed to contribute independent evidence to the courts. This results in the operation of forensic confirmation biases.The effects on laypersons can prove substantial. In a study involving eyewitnesses, participants witnessed a staged theft and then made an identification decision from a target-absent lineup. Two days later, they received additional information and an opportunity to change their decision. When told that another suspect had confessed, 61% of the participants changed their initial decision and identified the suspect who had allegedly confessed. Those told that the identified individual had confessed became more confident in their decision. Among participants who had correctly indicated that the culprit was not present in the original lineup, nearly half went on to identify an innocent person after being told that someone had confessed (Hasel & Kassin, 2009). A similar effect recently appeared in a study of alibis who had vouched for a participant accused of theft—until that participant was said to have confessed (Marion, Kukucka, Collins, Kassin, & Burke, 2014).
The biasing effect of confessions is not a mere laboratory phenomenon. An analysis of the first 241 DNA exonerations tested whether confessions prompt additional evidentiary errors, by examining other contributing factors present in DNA exoneration cases containing a false confession (Kassin, Bogart, & Kerner, 2012). Additional errors were present in 78% of these cases—significantly more than in non-confession cases. Specifically, false confessions were accompanied by invalid or improper forensic science (63%), mistaken eyewitness identifications (29%), and snitches or informants (19%). Consistent with the causal hypothesis that the false confessions influenced these other errors, the confession was obtained first rather than later in the investigation in two thirds of these cases. To sum up, by creating a strong expectation of guilt, confessions can taint the perceptions, memories, and judgments of lay and expert witnesses, thereby creating an illusion of corroboration for the confession itself.