Wednesday, September 2, 2015

Confession Is Good for the Soul, But Not for the Defendant

The Bear is suffering from the distemper.

The Bear never got around to publishing this "True Law" piece. The Bear has the distemper. He will be seeing what other articles might do for plugging the holes until he is feeling better. He asks for prayers from his friends.

Police now have very effective psychological techniques taught by John E. Reid and Associates, Inc. The problem is, it is based on some dubious assumptions, such as interrogators can always tell what a person is thinking by his body language. The biggest problem is counter-intuitive, though: it is hard to accept the idea that innocent people confess to crimes they didn't commit. But once they do, it's all pretty much over for them.

In fact, innocent people do -- rarely -- confess to crimes. How do we know? DNA allows us to reopen many cases and find people who had confessed and been convicted despite their innocence. False confessions are involved in about 25% of mistaken convictions.

The Bear had one case involving a false confession, and it was a death penalty case. His client's co-defendant put the murder weapon in his hands, and he wound up with stolen items from the victim's house. There was no forensic evidence against him like fingerprints or DNA. Worst of all, he had made a tearful videotaped confession. However, nothing he said matched the other evidence in the case until the detective coached him on details through suggestive questioning.

It was a lousy interrogation.

Imagine, then, how the Bear's heart rose to his throat when the jury came out to ask for the videotaped confession during deliberations. Obviously, there was a holdout, and the other eleven jurors were going to beat him over the head with the confession until he voted guilty.

Fortunately, it was the other way around. The jury understood, with the help of expert testimony from Dr. Richard Ofshe, how the young man had come to confess to a murder in which he wasn't even at the scene, they acquitted him of all charges. (There was some other evidence that established an alibi.)

It was the Bear's greatest triumph, his Penge Bungalow Murders, for readers familiar with the delightful old Masterpiece Theater series, Rumpole of the Bailey, based on John Mortimer's stories. (If you want to know who the Bear is, you could do worse than imagining him as Horace Rumpole.)

The Bear went on to become something of an expert on false confessions himself, presenting with Dr. Richard Leo, one of the top two experts in the field in the U.S (along with Dr. Ofshe).

This is why the Bear is against the death penalty. Not even confessions are always reliable, and juries almost never discount a confession. Jurisdictions like Illinois disgracefully refuse to allow expert testimony on the issue. (Unless the defense lawyer is a Bear, apparently.)

How many innocent people have we put to death in modern times? Nobody knows. Certainly not a lot. One, we're pretty sure, in Texas. On the other hand, we do know that Illinois' death row inmates had a 50% exoneration rate when the gold standard of DNA was applied to their cases. (One of the reasons the death penalty was eliminated in Illinois.)

Why would someone confess to a crime they didn't commit? Police interrogations are very lengthy (many hours) and stressful. Some suspects can be convinced they will be better off going along with the police. In fact, one of the major techniques is to minimize the offense and suggest that the punishment can be relatively mild, while threatening a very severe punishment for non-cooperation. Police are taught to make up evidence and lie to suspects -- it's perfectly legal. Some suspects are of a low IQ, or suggestible, or have other disadvantages in an interrogation.

In short, a hopeless, stressed-out person may not act in his rational, best interest.

But, Bear, what about Mirada? Don't these people know they don't have to talk to the police?

Yes, yes they do. But nobody asks for a lawyer, except on TV. They're scared and curious. They want to know what the police have on them -- or think they have on them. They think the police will think they're guilty if they ask for a lawyer. Of course, the joke is, the police already think they're guilty, as they are not in the habit of interrogating people they believe to be innocent.

What could police do better? Scrap the Reid technique. Interrogations can be effective without all the pseudoscience. Videotape interrogations. (Now the law in Illinois homicide investigations.) Continue the interrogation after the "I did it" statement to make sure the suspect knows stuff only the real perpetrator would know. Now that's only  reasonable, isn't it?

What could courts do better? Allow expert testimony on the heavily studied phenomenon of false confessions so juries could determine a confession's reliability in a valid social science and psychological context.

False confessions don't happen in many cases. But the cases they do happen in tend to be serious ones with heavy penalties, even death.

Speaking of confession, when is the last time you went? Fortunately for us, we can never get ourselves into trouble with a good confession!


  1. I wonder, what happened in the past couple days to make the Bear think of false confessions?

    1. Just an old, unpublished article the Bear fished out from under the couch to run while he suffers from the distemper.

  2. hope you're feeling better soon....summer distemper's the worst!...well, 'cept for that summer rabies....stay away from that.

  3. May you feel better soon, Bear. Is there a pattern to recovery from distemper -- ? Or is it seemingly a matter of an unforeseeable shifting of the psychological/spiritual tumbrels that generates a distant sense of awakening -- sometimes sooner, sometimes later?

    It seems as mysterious as it is dreadful, this malady. I hope that you will soon emerge from it, strong and again enjoying the sights, sounds, and scents of the woodland.

    1. Just one of those mysterious things. You can't even say one time is going to be like another. Fortunately, if you have a patient doctor, you can zero in on something that helps. (Unless the side effects make you depressed!) This... I wouldn't even be posting so much as a comment if I was really suffering. I'm definitely sick at the moment, but not too bad. The bad part is I get my care from the VA, and am lucky to get into a doctor every three months, which makes it awkward to react to a very unpredictable malady.


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