Police Interrogations and The Problem of False Confessions

“[A]n innocent person would not confess to a crime someone else committed.”[1] While this belief may make a confession a very compelling piece of evidence at trial,[2] it is also incorrect.[3] This is clear from the infamous cases of false confessions over the years including The Central Park Five in the United States,[4] the Birmingham Six in the United Kingdom,[5] and the Guðmundur and Geirfinnur case in Iceland.[6] For various reasons, innocent people have confessed to crimes they had no part in.[7] The problem of false confessions exists for police departments across the globe, but the interrogation strategy employed by the United Kingdom is likely to be more effective in limiting the number of false confessions when compared to the strategies employed by the United States.[8]

             Following a series of high-profile cases of false confessions through police coercion, the United Kingdom made sweeping changes to their justice system.[9] One of these changes was a new model of police interrogation called “the PEACE model,” which aims, not to obtain a confession, but to gather facts and information.[10] Called “investigative interviewing,” this method of questioning is designed with the goal of eliciting “accurate, relevant, and complete accounts from those being interviewed”.[11] UK courts have also prohibited the use of deceitful tactics by officers.[12] One officer argued that this prohibition may be helpful in an interview stating, “When the suspect knows that I can’t lie – my job is on the line if I do – I get more information.”[13] This is the general sentiment, that the UK approach to interviews will lead to productive results, “[A]ccusatorial methods increase the likelihood of false confession, while information-gathering methods protect the innocent, yet preserve interrogators’ ability to elicit confessions from guilty persons.”[14]

            Officers in the United States, on the other hand, use the Reid technique, a “guilt-presumptive accusatorial interrogation” method designed to obtain a confession.[15] Unlike the PEACE model, where officers seek to gather information through the interview, “techniques like the Reid method solely focus on eliciting a confession from the suspect.”[16] US courts apply a “totality of the circumstances” analysis to determine whether a confession was coerced.[17] While the courts have placed some limits on the extent to which police may lie to a suspect, they have, nonetheless generally allowed deceit during interrogations.[18] Police argue that lies are often necessary to get at the truth, as one former detective argued, “[D]eceiving a suspect is needed to ‘get an edge.’”[19]

            The trouble with finding voluntary confessions where deceitful tactics were used is that various experiments have demonstrated that, when presented with falsified evidence, people will falsely confess.[20] In one particularly troubling experiment, participants were presented with various versions of falsified evidence of them cheating while completing a computerized gambling task.[21] “Every participant confessed.”[22]

            The issue is not simply the confession itself. It is that once made, true or false, a confession is very difficult to walk back. “[I]t appears that people who stand falsely accused tend to believe that truth and justice will prevail and that their innocence will become transparent to investigators, juries, and others.”[23] However, while innocent people may believe that their innocence will prevail through the criminal justice process, that is not always the reality. “Mock jury studies have shown that confessions have more impact than other forms of evidence […] and that people do not fully discount confessions—even when they are judged to be coerced.”[24]

            If the ultimate goal is justice, an interrogation strategy focused on information gathering seems, at least, less problematic than one focused on obtaining a confession. The PEACE model has been adopted by Norway, New Zealand, and Australia.[25] “Since PEACE was introduced in the United Kingdom […] other countries have started to abandon the Reid accusatory model of interrogation as ‘unethical and unreliable.’”[26] The US has started to take note, at least two US states have officially banned lying by police to juveniles during investigations.[27] This is a small step in the right direction.

Caitlin McNeil is a staff member of Fordham International Law Journal Volume XLV.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.
—

[1] Dylan J. French, The Cutting Edge of Confession Evidence: Redefining Coercion and Reforming Police Interrogation Techniques in the American Criminal Justice System, 97 Tex. L. Rev. 1031, 1051 (2019).

[2] See Saul M. Kassin, On the Psychology of Confessions: Does Innocence Put Innocents at Risk? 60 Am. Psych. 215, 223 (2005).

[3] See French, supra note 1, at 1045. See also Dassey v. Dittmann, 877 F.3d 297, 332 (7th Cir. 2017) (Rovner, J., Dissenting) (stating, “Innocent people do in fact confess, and they do so with shocking regularity.”).

[4] See Elizabeth Vulaj, From the Central Park 5 to the Exonerated 5: Can it Happen Again?, N.Y. St. B.J. 24 (Aug. 2019). See also Aisha Harris, The Central Park Five: ‘We Were Just Baby Boys’, N.Y. Times (May 30, 2019), https://www.nytimes.com/2019/05/30/arts/television/when-they-see-us.html.

[5] See Roger Myers, A New Remedy for North Ireland: The Case for United Nations Peacekeeping Intervention in an Internal Conflict, N.Y. L. Sch. J. Int’l & Comp. L. 1, 42 (1990). See also Gareth Pierce, The Birmingham Six: Have We Learned from Our Disgraceful Past?, The Guardian (Mar. 11, 2011), https://www.theguardian.com/theguardian/2011/mar/12/gareth-peirce-birmingham-six.

[6] See Simon Cox, The Reykjavik Confessions, BBC (May 2014) https://www.bbc.co.uk/news/resources/idt-sh/the_reykjavik_confessions.

[7] See Rocco Parascandola, Proposed N.Y. Legislation Would Ban Police Tactic of Lying to Suspects to Get a Confession, N.Y. Daily News (Mar. 8, 2021), https://www.nydailynews.com/new-york/nyc-crime/ny-ny-bill-ban-police-lying-interrogation-20210308-jxcppdatdvcgtkneng2uxirp6i-story.html (stating that, “[P]sychologists say it’s been clear for years that a completely innocent person, when lied to by police, will confess, sometimes because they’ve become so confused and disoriented, other times because they’re convinced [they’re] about to be framed and figure a confession will minimize the damage.”); See also Gisli H. Gudjonsson, The Science-Based Pathways to Understanding False Confessions and Wrongful Convictions, Frontiers in Psych. (Feb. 22, 2021), https://www.frontiersin.org/articles/10.3389/fpsyg.2021.633936/full (stating, “A series of studies into the motivation behind false confessions show that avoiding custody is a commonly reported factor in Iceland, but not in the United Kingdom or the USA.”).

[8] See Allan Fong, Interrogations and False Confessions: How the Innocent Are Made Guilty, 30 S. Cal. Rev. L. & Soc. Just. 363, 388 (2021).

[9] See Mary Schollum, Bringing PEACE to the United States: A Framework for Investigative Interviewing, Police Chief, 30 (Nov. 2017), https://www.fis-international.com/assets/Uploads/resources/Schollum-PEACE.pdf (citing the Birmingham Six and the Guildford Four); See also Saul M. Kassin, et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 L. and Hum. Behav., 3, 27 (2010).

[10] See Kassin, supra note 9, at 28 (PEACE is an acronym for “Preparation and Planning, “Engage and Explain,” “Account,” “Closure,” and “Evaluate.”); See also Andy Griffiths, How the UK Police Interview Suspects, Innocence Project (Dec. 21, 2012), https://innocenceproject.org/how-the-uk-police-interview-suspects/ (“I’m confident that you can come into my police force and any other police force in the UK and ask any officer ‘What is the point of an interview?’ and they will not say ‘a confession.’”).

[11] Schollum, supra note 9, at 32.

[12] See Slobogin, An Empirically Based Comparison of American and European Regulatory Approaches to Police Investigation, 22 Mich. J. Int’l L. 423, 443 (2001).

[13] Griffiths, supra note 10.

[14] Dylan J. French, The Cutting Edge of Confession Evidence: Redefining Coercion and Reforming Police Interrogation Techniques in the American Criminal Justice System, 97 Tex. L. Rev. 1031, 1046 (2019).

[15] Fong, supra note 8, at 373-74.

[16] Id. at 382.

[17] See Fikes v. State of Ala., 352 U.S. 191, 77 US 281, 285 (1957). See also Fong, supra note 8, at 371 (“As set forth in Fikes v. Alabama, the voluntariness rule affords courts discretion to look at the “totality of circumstances” in determining whether interrogation methods were so coercive as to produce an involuntary confession.”).

[18] See Kassin, supra note 9, at 13 (noting that while the court allowed a confession despite deceptive interrogation tactics in Frazier v. Cupp, subsequent courts have placed some limits on deceptive tactics); See also Jacqueline Ross, Do Rules of Evidence Apply (Only) in the Courtroom? Deceptive Interrogation in the United States and Germany, 28 Oxford J. Legal Stud. 443, 451-52 (2008) (indicating that the Miranda court allowed for the use of deceptive tactics and also citing other cases where courts have not allowed specific forms of deception).

[19] Rocco Parascandola, Proposed N.Y. Legislation Would Ban Police Tactic of Lying to Suspects to Get a Confession, N.Y. Daily News (Mar. 8, 2021), https://www.nydailynews.com/new-york/nyc-crime/ny-ny-bill-ban-police-lying-interrogation-20210308-jxcppdatdvcgtkneng2uxirp6i-story.html (quoting Claude O’Shea, a retired Bronx homicide detective).

[20] See French, supra note 14, at 1044.

[21] See Robert A. Nash and Kimberley A. Wade, Psychological Insights, 173 Crim. L. & J. Weekly 677, 678 (Oct. 2009).

[22] French, supra note 14, at 1044.  See also Nash, supra note 21.

[23] Kassin, supra note 9, at 22.

[24] See id. at 23.

[25] See French, supra note 14, at 1047, 1054.

[26] Id.

[27] See Innocence Staff, Oregon Deception Bill is Signed into Law, Banning Police from Lying to Youth During Interrogations, Innocence Project (June 16, 2021), https://innocenceproject.org/deception-bill-passes-oregon-legislature-banning-police-from-lying-to-youth-during-interrogations/; See also Innocence Staff, Illinois Becomes the First State to Ban Police from Lying to Juveniles During Interrogations, Innocence Project (July 15, 2021), https://innocenceproject.org/illinois-first-state-to-ban-police-lying/.