Criminal Justice Section
Criminal Justice Magazine
Volume 17 Issue 4
False Confessions in Criminal Cases
By Welsh White
Welsh White , a professor of law at the University of Pittsburgh, is the author of Miranda’s Waning Protections , a book published by the University of Michigan Press in 2001. A review of the book ran in the previous issue of Criminal Justice magazine (17: 3 Crim. Just. 57 (Fall 2002).)
In a case that was featured on Forensic Files , a program shown on Court-TV, Christopher Ochoa confessed to the 1988 rape and murder of Nancy DePriest, a Pizza Hut restaurant employee who was raped eight times and then shot in the back of her head. In his confession, Ochoa provided detailed information relating to how the crime had occurred. He said that he and a friend, Richard Danzinger, raped DePriest before Ochoa used a 22-caliber pistol to shoot her in the head. He gave accurate information relating to where the killing occurred and items taken from the Pizza Hut. After reviewing Ochoa’s confession, even Ochoa’s trial attorney stated that he was convinced that his client was guilty. Ochoa eventually entered into a plea bargain in which he pled guilty to murder and agreed to testify against Danzinger in exchange for avoiding the death penalty. Ochoa’s testimony against Danzinger convinced the jury, which convicted Danzinger of rape and sentenced him to 99 years in prison.
But more than a decade later, the case took an unexpected turn when Achim Josef Marino, a man with no connections to either Danzinger or Ochoa, confessed to the crime. DNA evidence backed up his claim, showing Marino had raped DePriest and excluding both Ochoa and Danzinger as rape suspects. After serving more than 12 years in prison, Ochoa and Danzinger were exonerated and released.
The Ochoa case raises several questions about police-induced false confessions. First, how often are innocent defendants convicted on the basis of such confessions? Second, how can an attorney representing a defendant who has confessed determine whether the client’s confession may be false? And, third, if an attorney concludes that the client’s confession may be false, what can he or she do about it?
Most people find it difficult to believe that normal persons would confess to crimes they didn’t commit. Empirical data indicate, however, that over the past two decades, many innocent defendants have not only confessed to the police but been wrongfully convicted on the basis of their confessions. In the great majority of these cases the police did not extract the confession by employing torture or other clearly prohibited interrogation techniques. Instead, they employed modern, psychologically oriented interrogation techniques, similar to those described in the leading police interrogation manuals. (For cites to recent cases in which defendants were wrongfully convicted on the basis of police-induced false confessions, see, e.g., Andy Friedberg & Paula McMahon, 21-Year Inmate to Go Free; Miami-Dade Drops Charges in 2 Murders, Rape Case for Mentally Disabled Man, Sun-Sentinel (Ft. Lauderdale, Florida), June 15, 2001, at 1A (recounting case of Jerry Frank Townsend whose false confessions to six murders and one rape led him to plead guilty to some of those offenses and to be convicted of others); Dana Priest, At Each Step, Justice Faltered for Virginia Man, Wash. Post, July 16, 1989, at A1 (recounting case of David Vaquez whose false confession to murdering a woman in Virginia led him to plead guilty to second degree murder.) See generally Welsh S. White, Confessions in Capital Cases, 2003 Ill. L. Rev. ___ (2003) [forthcoming]; Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. Crim. L. & Criminology 429 (1998); Welsh S. White, False Confessions and the Constitution: Providing Safeguards Against Untrustworthy Confessions, 32 Harv. Civ. Rts.-Civ. Lib. L. Rev. 105 (1997).) The significant number of false confessions produced by these practices provides clear evidence that decision makers, as well as the public in general, have seriously underestimated the extent to which psychologically oriented interrogation techniques exert pressure on innocent people to confess.
How can a lawyer determine whether a defendant’s confession to the police is likely to be false? Professor Saul Kassin, one of the leading experts in the field of police-induced, false confessions, has provided a checklist to use in assessing whether a defendant’s confession is trustworthy. (See Professor Kassin’s website at http://www.williams.edu/Psychology/Faculty/Kassin/default.htm.) First, you should consider the defendant’s background. It is well known that mentally handicapped defendants are much more likely than others to respond to police interrogation with false confessions. (See James W. Ellis & Ruth A. Luckasson, Symposium on the ABA Criminal Justice Mental Health Standards: Mentally Retarded Criminal Defendants, 53 Geo. Wash. L. Rev. 414, 451 (1984).) Thus, you need to determine the defendant’s IQ and check for symptoms that might indicate any kind of mental disability. Even if the defendant is not mentally handicapped, you need to assess the defendant’s personality and his or her state of mind at the time of the interrogation. Does the defendant have a compliant personality that might make him or her eager to please the police by telling them what they want to hear? Was the defendant exhausted or terrified at the time of the interrogation? If so, these are factors that might lead to a false confession.
Next, you need to assess the circumstances of the police questioning. How long did the interrogation last? What tactics did the police employ during the interrogation? Did they tell the suspect they had incontrovertible evidence of guilt? Did they make any express or implied threats or promises? In Ochoa’s case, for example, detectives told the defendant he would be executed if he didn’t confess and even showed him the place on his arm where the lethal injection needle would be placed. In other false confession cases, less elaborate threats or promises have been used. In some cases, the police simply tell suspects that they will be able to go home as soon as they admit involvement in the crime. Interrogation tactics such as misrepresentation of the evidence, threats or promises, and minimizing the defendant’s culpability for the crime should all be viewed as coercive factors, which in some situations will have the potential for producing a false confession.
Even if there are relatively few coercive factors, you should try to determine whether the defendant’s confession should be viewed as his or her own statement or, rather, as an acceptance of police suggestions. One thing to look for is whether the defendant’s statement to the police leads them to new evidence that they didn’t have prior to the statement. If, for example, the defendant states, "I killed the victim and then I buried her body in my backyard," and the police then find the victim’s body buried in the defendant’s backyard, this is obviously strong evidence that the defendant’s statement is trustworthy. The defendant could not have learned the critical facts in the statement from the police because the police were not aware of those facts at the time the defendant made the statement.
If there is a recording or a transcript of the interrogation, you should try to see whether it was the police or the defendant who first stated significant facts. Suppose, for example, the victim’s mouth had been bound with duct tape and that this was a fact that had not been reported in the media. If in response to an interrogator’s question about how the crime was committed, the defendant responded, "First, I bound the woman’s mouth with duct tape," this would constitute strong evidence that the defendant’s confession was true. On the other hand, if earlier in the interrogation, the interrogators had suggested to the defendant that he or she had bound the victim’s mouth with duct tape, the defendant’s later acceptance of the police suggestion would not be evidence that the confession was trustworthy. In Ochoa’s case, he provided numerous accurate details relating to the crime. But Ochoa’s attorney at the time he was exonerated concluded that every detail Ochoa stated in his confession had been made known to the defendant by the police.
Unfortunately, in most cases there will not be a recording or a transcript of the entire interrogation. (At present, only two states—Alaska and Minnesota—require that the police provide an electronic recording of most interrogations. And only Alaska provides that the police’s failure to comply with the recording provision ordinarily mandates exclusion of the defendant’s confession.) In fact, the police and the defendant will often provide conflicting versions of the circumstances of the interrogation. The police may testify, for example, that they did not pressure the defendant to confess in any way and that the defendant confessed almost as soon as the police began the questioning. The defendant, on the other hand, may testify that the police interrogated him or her continuously for several hours, lied about the evidence, and promised he or she would be allowed to go home as soon as there was a confession. When confronted with this kind of situation, you must search for any objective evidence that corroborates your client’s version of the events. Although most interrogations are conducted in secret, a non-police witness might have observed something that would corroborate some part of the defendant’s testimony. Or there might be police records that would tend to substantiate the defendant’s claim as to the time during which he or she was in police custody. On the other hand, if there is evidence that corroborates the police testimony as to what happened during the interrogation, the likelihood that the defendant’s confession is untrustworthy (or can be suppressed through a pretrial motion) is undoubtedly reduced.
If you believe you are able to establish that the police employed coercive tactics during the interrogation, you should seek to suppress the confession on the ground that it was involuntary and that its admission would violate both state law and the Due Process Clause of the Fourteenth Amendment. In some states there are state court decisions that interpret the state constitution so as to provide defendants with more protection than the U.S. Supreme Court’s decisions. (See Kenneth Gormley, State Constitutional Commentary: The Most Noteworthy State Constitutional Decisions: The Short-lived Burial of Miranda, 59 Alb. L. Rev. 1275 (1996).)
In addition, you should seek to suppress the confession on the ground that it was obtained in violation of Miranda. The basis of this claim would generally be that, even if the police gave the defendant the Miranda warnings, the defendant did not validly waive his or her Miranda rights. If, for example, the defendant has subnormal intelligence (an IQ below about 90), it would often be advisable to present expert testimony in support of the claim that the defendant did not understand the substance of the Miranda warnings. New empirical data, in fact, provide impressive support for the claim that defendants with subnormal intelligence will generally not be able to understand the meaning of the warnings. (See Morgan Cloud et al., Words Without Meanings: The Constitution, Confessions, and Mentally Retarded Suspects, 69 U. Chi. L. Rev. 495, 573 (2002).)
In practice, if the government is able to show that the police did not violate Miranda, they will probably also be able to defeat the defendant’s claim that the confession was involuntary. In explaining Miranda’s benefits, the Court in Dickerson v. United States, 530 U.S. 428 (2000), referred to the fact that, once it is shown that the defendant’s confession was obtained in compliance with Miranda, the defendant’s chances of excluding his or her confession on the ground that the confession was involuntary are extremely remote. A survey of recent lower court decisions provides impressive support for the Court’s conclusion. (See Welsh S. White, Miranda’s Waning Protections: Police Interrogation Practices after Dickerson (U. Mich. Press 2001).)
In some states, however, a defendant’s chances of excluding his or her confession on the ground that it is involuntary or untrustworthy may be improving. Many states have the rule that when interrogating a suspect, the police are not allowed to use interrogation tactics that are likely to produce an untrustworthy confession. ( See, e.g., Commonwealth v. DuPree, 275 A.2d 326 (Pa. 1971).) In applying this test, state courts have generally favored law enforcement. Although some states exclude confessions induced by threats or promises, most do not. In most states, moreover, an interrogator’s misrepresentation of the evidence against the suspect (including lies about forensic evidence) is not generally viewed as trickery that is likely to produce an untrustworthy confession. ( See White, Miranda’s Waning Protections, supra.)
Using the recent empirical data relating to police-induced false confessions, defense counsel might be able to convince state courts that interrogation tactics previously thought to be permissible should be viewed as improper because of their potential for producing false confessions. Cases like Ochoa show that, at least in capital cases, threats and promises of leniency exert extraordinary pressure on innocent people to confess. Other cases show that an interrogator’s deception relating to forensic evidence—a statement that the defendant’s fingerprints were found at the scene of the crime, for example—are also likely to produce false confessions.( See Richard J. Ofshe & Richard A. Leo, The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions, 16 Stud. in L., Pol. & Soc’y. 189 (1997).) Based on this new empirical data, defense counsel could argue that confessions induced by such tactics should be inadmissible because new evidence shows that these interrogation tactics are, in fact, likely to produce untrustworthy confessions. ( See White, Miranda’s Waning Protections, supra.)
Although this argument is certainly worth making, its chances of success should not be overestimated. In most states, the law governing the admissibility of confessions can be expected to change slowly, if at all. Despite the accumulating data relating to wrongful convictions resulting from police-induced false confessions, state courts are likely to be reluctant to impose new restrictions on the admission of confessions. In most states, defense counsel seeking to exclude confessions on the ground that they are involuntary or otherwise inadmissible on the basis of state law are likely to be facing an uphill battle.
If the defendant’s confession is admitted into evidence, a defense attorney may argue to the jury that the defendant’s confession is false. In most cases, however, convincing the jury that an innocent person would confess to a crime he or she didn’t commit will be difficult. Like other laypersons, jurors are likely to believe that, in the absence of torture or other extraordinary circumstances, innocent people would never confess to a crime they didn’t commit. In order to provide the jury with a clearer understanding of the circumstances under which police-induced false confessions are likely occur, defense counsel should sometimes seek to introduce the testimony of an expert on the subject.
The law relating to whether such expert testimony will be admissible is in a state of flux. About half the states that have ruled on the issue have excluded the expert testimony, some on the ground that it does not meet the Frye or Daubert standards relating to reliability of expert testimony ( see Frye v. United States, 293 F. 1013 (1923); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)) and others on the ground that it is not helpful to the jury because laypersons already understand the circumstances under which police-induced false confessions are likely to occur. In a few states, the expert testimony will be admissible only if it relates to the defendant’s mental or psychological state, explaining why the particular defendant might be especially likely to respond to police questioning with a false confession. The trend, however, seems to be in the direction of admitting the expert testimony, at least in cases where defense counsel can convince the judge that the expert testimony will provide the jury with a clearer understanding of issues that are important in the case. (For an analysis of the state and federal court decisions, see James R. Agar, II, The Admissibility of False Confession Expert Testimony, Army Law., Aug. 1999, at 26.)
To persuade the judge that expert testimony relating to police-induced false confessions should be allowed, counsel should cite the articles and empirical data relating to police-induced false confessions. Based on this data, it is clear that the principles relating to the circumstances under which false confessions are likely to occur are counterintuitive. Most laypersons would not realize, for example, that individuals with compliant personalities may be so eager to gain approval of authority figures that they will confess to crimes they didn’t commit in order to please police interrogators. Similarly, most laypersons do not understand the potential effect of specific interrogation tactics, such as promises of leniency. Through effective use of this data, counsel may be able to persuade the judge that an expert witness should at least be allowed to explain to the jury the circumstances under which police-induced false confessions are likely to occur. Once this testimony is introduced, counsel will then have a basis upon which to argue to the jury that the defendant’s confession should not be believed.
Surmounting Frye or Daubert Standards for the Admissibility of Expert Testimony
By Welsh White
In l923, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), held that expert testimony on the basis of a scientific technique or principle would be admissible only if the technique or principle was "generally accepted" in the relevant "field" in which the technique or principle belonged. Until the Supreme Court’s decision in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Frye test provided the standard for determining the admissibility of expert testimony in the federal courts and most state courts.
In the Daubert case, the Supreme Court replaced the Frye test with a more flexible test under which trial judges serve as "gatekeepers" to determine whether expert testimony relating to a scientific principle is relevant and reliable. Daubert identified four factors for trial judges to use in making this determination:
1. whether the theory or technique can be tested;
2. whether it has been subjected to peer review;
3. its known or potential rate of error; and
4. whether it has won "general acceptance."
In Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137 (1999), the Court held that the Daubert test also applies to testimony by experts who are not scientists but are testifying on the basis of "other specialized" knowledge.
Under the Frye test, an attorney seeking to introduce expert testimony relating to police-induced false confessions will need to show that within the field of social psychology it is generally accepted that psychologists who have studied police interrogation techniques are able to detect interrogation methods likely to cause false confessions. Under the Daubert test, the attorney must satisfy the judge that the expert proffered as a witness will be able to make a reasonably reliable assessment of the circumstances under which police interrogation methods are likely to produce false confessions.
Under either test, it will be important for the attorney to show that the expert will be able to testify to reliable principles relating to the circumstances under which police-induced false confessions are likely to occur. The reliability of the principles, moreover, must be shown to have been verified by testing that appears persuasive at least to the court, if not to others in the field of social psychology. Since the principles relating to determining the trustworthiness of a confession are necessarily imprecise, surmounting this barrier can be difficult in practice.
In order to show that expert testimony should be permitted, the attorney should begin by having the expert refer to articles that draw upon empirical data to identify both the interrogation techniques that have the potential for producing false confessions and the characteristics of individuals who are most likely to falsely confess. (See Richard F. Ofshe & Richard A. Leo, The Social Psychology of Police Interrogation, The Theory and Classification of True and False Confessions, 16 Stud. L., Pol. & Soc’y 189 (1997); Leo & Ofshe, Consequences, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogations, 88 J. Crim. L. & Criminology 429 (1998); Saul M. Kassin, The Psychology of Confession Evidence, 52 Am. Psychologist 221 (1997); Welsh S. White, False Confessions and the Constitution, 32 Harv. C.R.-C.L. L. Rev. 105 (1997).) The expert can further testify that the principles explained in these articles are generally recognized in the field of social psychology. Based on these principles, an expert on police-induced false confessions can explain that he or she is able to draw upon recognized principles for the purpose of identifying the circumstances under which police-induced false confessions are likely to occur.
The prosecution may assert that this type of expert testimony is not sufficiently reliable to meet the Frye or Daubert standard because the principles applied by experts in this field are not precise enough to enable experts to determine whether a particular defendant’s confession is true or false. In support of this claim, prosecution witnesses sometimes rely on an article by Professor (now Judge) Paul Cassell claiming that Leo and Ofshe’s conclusions relating to whether particular confessions are either proven or probably false are erroneous. ( See Paul G. Cassell, The Guilty and the "Innocent": An Examination of Alleged Cases of Wrongful Conviction from False Confessions, 22 Harv. J.L. & Pub. Pol’y 523 (1999).) The argument is then made that since the "error rate" in identifying false confessions is so high, the principles through which false confessions are identified are not sufficiently reliable to satisfy the Frye or Daubert tests.
To counter this argument, the defense attorney should point out that the purpose of the expert testimony is not to determine whether the particular defendant’s confession is true or false, but rather to inform the jury of principles that should be used to assess the confession’s reliability. The jury should then use these principles (along with whatever other analytical tools it chooses to employ) to make its own determination as to whether the defendant’s confession is true. The question of whether Leo and Ofshe have mistakenly labeled particular police-induced confessions as false is, thus, irrelevant. The proper focus should be on whether Leo, Ofshe, and other experts in the field have properly identified principles relating to the circumstances under which the confessions of defendants are likely to be untrustworthy. Defense counsel can point to strong empirical data supporting some of the relevant principles: for example, the likelihood that mentally handicapped suspects will falsely confess, the likelihood that lengthy interrogation with additional "coercive" factors will produce false confessions, and the likelihood that police deception relating to forensic evidence will produce false confessions.
In this respect, expert testimony relating to police-induced false confessions is analogous to expert testimony relating to eyewitness identifications. In both cases, the purpose of the testimony is to provide the jury with a better understanding of the circumstances under which a type of evidence generally viewed by laypersons as reliable may, in fact, be erroneous. No expert in eyewitness identifications would claim to be able to determine with certainty whether a particular witness’s identification is correct. Expert witnesses in this field are, however, able to draw on empirical evidence to testify to principles relating to the circumstances under which eyewitness identifications are unreliable. These principles are helpful to the jury, moreover, because some of them are counterintuitive. Most jurors would not understand, for example, that witnesses who are "positive" of their identifications are often incorrect, or that witnesses who are exposed to traumatic situations (such as being the victim of a crime) are less likely than other witnesses to make a correct identification. Although the law relating to the admissibility of expert eyewitness identification testimony varies among jurisdictions, the trend in recent years has been that such "expert testimony may be offered . . . on the subject of the psychological factors which influence the memory process." ( United States v. Smithers, 212 F.3d 306, 311–12 (6th Cir. 2000). ( See generally Robert P. Murran, The Admissibility of Expert Testimony Under the Federal Rules, 29 Colum. L. Rev. 379, 396 (1999).) Following this line of authority, defense counsel should argue that expert testimony relating to the circumstances under which police-induced confessions are likely to be unreliable should also be admissible.
Juveniles at Special Risk
Editor’s Note: Perhaps no other group, except the mentally disabled, is at greater risk for false confessions than juveniles. With more juveniles being charged and tried as adults, the issue is of particular concern to defenders. Evidence shows that juveniles often give answers that they believe the questioner—especially an authority figure—wants to hear. The younger the child, the more likely he or she is to be so influenced, and the less likely to be able to understand the notion of a right to silence or what it means to waive that right.
For more information on this topic, see the
u Juveniles’ Capacities to Waive Miranda Rights: an Empirical Analysis by Thomas Grisso (68 Cal. L. Rev. 134 (1980); also see Juvenile Competency to Stand Trial by Thomas Grisso (12:3 Crim. Just. 4 (Fall 1997).)
u Juvenile’s Waiver of the Rright to Counsel by Robert E. Shepherd (12:1 Crim. Just. 38 (Spring 1998); also see When a Disabled Juvenile Confesses to a Crime by Robert E. Shepherd and Barbara A. Zaremba (9:4 Crim. Just. 31 (Winter 1995).)
u Immaturity, Culpability, and Competency in Juveniles: A Stdy of 17 Cases by Marty Beyer (15:2 Crim. Just. 26 (Summer 2000).)