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October 01, 2023 Scientific Evidence

False Confession Science

Jules M. Epstein

In 1992, Willie Veasy confessed to a murder, a confession a jury accepted despite a time card showing him to have been at work as a dishwasher eight miles away. In 2001, Jermel Lewis signed a confession admitting to participating in Philadelphia’s worst mass killing—the seven homicides in what was known as the “Lex Street massacre.” In 2007, Steven Lazar confessed to the killing of Dario Gutierrez.

None was tortured, although Lazar was held for 30 hours while in methadone withdrawal. Each confession was false.

Three known false confessions across this lawyer’s career—yet not an uncommon phenomenon, nor one without explanation grounded in scientific research. The proof? Saul Kassin’s extraordinary new book Duped—Why Innocent People Confess, and Why We Believe Their Confessions (Prometheus Books 2022).

Kassin, Distinguished Professor of Psychology at John Jay College of Criminal Justice, is properly acknowledged as the leading researcher on the causes of false confessions. Duped combines history lessons tracing false confessions back to the Salem witch trial, compelling psychological research, a focused analysis on the failure of constitutional law decisions to preclude use of false confession evidence, and prescriptions for detecting and reducing the likelihood of false admissions of guilt—all told through narratives of wrongly accused individuals (criminally and in the workplace) and what science tells us about this great anomaly—a person admitting to what they never did or, on occasion, what never happened.

Kassin shows repeatedly and conclusively the danger in current police interrogation practices. This may be Duped’s most important contribution—because it is only when police or those who set policing policy change to less risky and probably more reliable interviewing techniques will the danger of false confessions be reduced and the ability to detect them increase.

At this author’s request, Professor Kassin agreed to answer questions about the book.

Duped addresses at length what is known as the “Reid” method of interrogation and challenges it with substantial scientific research. Can you summarize the technique’s problems?

It’s hard to know where to begin. The Reid technique beings with a nonconfrontational interview aimed at determining if a suspect is telling the truth or lying. The problem is, the “behavioral analysis interview” that they claim enables highly accurate judgments of truth and deception does not work. For many years now, psychological research has shown that people cannot accurately distinguish truth from deception by observing a suspect’s eye contact, facial expressions, posture, fidgety movements, and the like.

Right out of the gate, this means that Reid-trained investigators often misidentify innocent people interrogation without any hard evidence, just a clinical hunch formed on the basis of pseudoscientific claims. And that means that the accusatory interrogation that follows is by definition guilt-presumptive and laser-focused on confession.

With this macro perspective as a backdrop, one can begin to understand why Reid-trained investigators often pursue suspects relentlessly, refusing to accept denials, plowing over objections, justifying outright lies about evidence, and offering minimization themes that imply leniency. …

I went to the Reid website and found this statement: “[T]he Reid Technique teaches that the denial should be evaluated to identify whether the denial is typical of an innocent or guilty suspect.” What Exactly Is the Reid Technique of Interrogation, Reid (last visited June 29, 2023). Are there “typical” denials that reflect innocence or guilt?

There is no empirical basis for the claim that some denials—in terms of the words used, tone, or behavior, are more typical of guilty than innocent suspects. For example, the Reid technique manual states that guilty suspects often preface their denials with a “permission phrase” like “But sir, may I say one thing?” There is no empirical basis for this claim. All I can say is, God help those suspects who are polite by nature, respectful of authority, and/or anxious not to offend a detective accusing them of a crime.

Just to be clear: Research has shown that people—including trained and experienced police officers—cannot tell the difference between true and false denials, or even between true and false confessions. Training increases self-confidence but not accuracy. That’s why new science-based approaches to suspect interviewing have shed these myths.

You strongly recommend videotaping the entire interview/process. What would one look for to properly assess the integrity of our problems with a confession?

Video recording of entire interrogations, from start to finish, is necessary for two reasons. First, it enables us to better evaluate the amount and type of pressure brought to bear on a suspect and whether it might cause an innocent person to capitulate. Personally, I don’t see how judges can rule with competence on voluntariness and coercion without watching the process for themselves (the alternative is to rely on flawed, often contradictory secondhand accounts).

Second, video recording enables us to determine the source of details in a narrative confession and whether those details were known by the suspect or communicated to that suspect. A vast majority of false confessions contain crime details that were spot--on accurate, details that only the perpetrator could have known, or so we thought. How can jurors assess the reliability of a confession unless they can trace the source of the information it contains?

Duped has a fascinating discussion about custody, a term of significance in the application of Miranda rights. No custody, no warnings. Based on the science, what is the problem with how we currently define custody?

Custody is a pivotal construct. It determines whether police must Mirandize a suspect. And in the now-30 states that require video recording, it determines whether the camera must be turned on.

The problem is, how do police, and later judges, know if a suspect was in custody versus free to leave, and therefore not “eligible” for Miranda or video recording? Over the years, the courts have suggested certain “objective metrics” for custody—whether the suspect was handcuffed, housed in a room with the door locked, accused of the crime, and the like.

But if these conditions do not exist, is a suspect free to leave? We did those studies in the lab. We staged a theft and brought in a security officer to investigate, and he questioned or outright accused a student who happened to be present. Observers who watched videos of these sessions often saw the student as free to leave and hence not in custody. But the students themselves never felt free to leave—even when the questioning was non-accusatory and even when they were advised ahead of time that they were free to leave.

In follow-up research, we found that judges, police officers, and laypeople presented with different vignettes often could not agree in their judgments. It’s easy to imagine a suspect as free to pick up and leave—until that suspect is you. Custody is in the eyes of the beholder.

What do jurors need to know about assessing confession evidence, and what is the best way to communicate that?

With regard to confession evidence, juries need to shed two commonsense myths about human nature before they will think critically about confession evidence.

Myth #1: I would never confess to a crime I did not commit. Yes, you would. And so would others.

Myth #2: I’d know a false confession if I saw one. No, you wouldn’t. And every wrongful conviction that hinged on a false confession proves it.

Only when juries release themselves from these myths can they begin to think critically about (1) whether tactics the interrogators used were psychologically coercive, even if they seemed benign at first glance; (2) whether the suspect was particularly vulnerable to manipulation because of youth or disability; and (3) whether the confession contained accurate details about the crime that are unequivocally attributable to the suspect—details that police did not already know or that led to evidence they did not already have.

Is there a “hot issue” in confession law and police practices today?

Since 2021, nine states (and counting) have passed laws to ban police from lying to suspects who are minors about evidence—a staple of the Reid technique. Several more states are lined up to consider the same. The momentum is building for states to do what the courts have not.

Finally, if there were one lesson you would want readers to take from Duped, what would that be?

Do not bank on your actual innocence to protect you. I’ve lost count of the number of exonerees I’ve spoken to, otherwise smart and ordinary people, who said they didn’t stop the process and ask for a lawyer because “I didn’t need a lawyer; I didn’t do anything wrong.” If you find yourself on a jury, standing in judgment of a defendant who had confessed and then recanted that confession, take your mind off autopilot and use your critical thinking skills. That defendant may well be innocent.

Duped teaches us why innocent people confess and the science of how we can do better. It is compelling reading and essential reading.

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Jules M. Epstein

Temple Beasley School of Law

Jules M. Epstein is Professor of Law and Director of Advocacy at Temple Beasley School of Law. He serves as a member of the Third Circuit Taskforce.