by Christopher Zoukis

In mid-1997, Michelle Moore-Bosko was raped and stabbed to death in her Norfolk, Virginia, apartment. Based on a tip from a friend of the victim, U.S. Navy sailor Danial Williams was brought in for questioning. After more than 11 hours of interrogation, Williams confessed to the murder and implicated several other men in the crime.

Investigators were able to obtain confessions from three of the alleged accomplices. Although they all told wildly different versions of what happened, Eric Wilson, Joe Dick Jr., and Derek Tice were arrested and charged, along with Williams, for the rape and murder of Moore-Bosko. Williams and Dick pleaded guilty in order to avoid the death penalty. Tice was convicted of murder, and Wilson was convicted of rape.

Prosecutors obtained all four convictions solely on the strength of the sailors’ confessions. There was no physical evidence tying any of the men to the crime scene. Instead, the physical evidence that was obtained tended to rule out all four men as suspects. Additionally, investigators learned that another man, serial rapist Omar Ballard, had written a letter to a friend in which he confessed to committing the crime, alone. Tests of DNA found at the scene matched Ballard.

The Innocence Project took on the case of the “Norfolk Four” in 2005. Based on clemency petitions filed on behalf of the men, former Virginia Gov. Tim Kaine granted conditional paroles to Dick, Tice, and Williams in 2009. The governor ordered the release of the three men but did not fully exonerate them (Wilson had already been released after serving eight years for rape).

When a federal judge ruled in 2016 that the four men were, in fact, innocent of the crimes, then-Gov. Terry McAuliffe fully pardoned all of them.

The saga of the Norfolk Four reignited the national debate over a controversial issue in the criminal justice system: false confessions. The issue is controversial because it seems to be common sense that an innocent person would never admit to a crime that he or she did not commit. But in this case, common sense is belied by objective evidence: not only do false confessions happen, they are a frequent cause of wrongful convictions.

What’s more, the false confessions given by defendants who were later exonerated almost certainly represent the tip of the iceberg. In a classic 2004 study, law professor Steven A. Drizin and social scientist Richard A. Leo examined 125 cases involving provably false confessions. Fewer than half of these false confessions involved exoneration. In fact, in most of the cases reviewed in the Drizin study, charges were dropped or never filed because other evidence indisputably established that the suspect was innocent of the crime, despite confessing.

Common sense aside, people do confess to crimes that they did not commit. But how does this happen, and why would someone make such an indisputably poor decision? Social scientists have conducted considerable research on these issues, and the results are in: false confessions are nearly always the result of improper interrogation techniques used by law enforcement officers.

“The primary psychological cause of most false confessions is … the investigator’s use of improper, coercive interrogation techniques,” write Drizin and Leo. “Although the phenomenon of interrogation-induced false confessions is counter-intuitive, it can be easily understood once the techniques, logic, and effect of modern interrogation are methodically analyzed and explained.”

Developments in American Criminal Interrogation Techniques

Law enforcement officers charged with solving crimes and identifying perpetrators have many tools at their disposal. From forensic examination of biological material to gum-shoe detective work, criminal investigators leverage the power of the state to gather evidence of what happened, and who is responsible. Historically, no tool has proven more effective than the interrogation of a suspect.

According to Webster’s, interrogation is “to question formally and systematically.” Up until the mid-20th century, American criminal investigators routinely exceeded this definition when interrogating suspects. Physical violence generally accompanied such questioning, and it even had a name—the “third degree.”

According to the Drizin study, third-degree interrogation techniques involved significant physical violence, such as “beating, punching, kicking, or mauling a suspect,” as well as psychological torture. Some methods of physical torture included the “sweat box” (placing a suspect in a small cell directly adjacent to a scorching hot stove), the “water cure” (dunking a suspect in water, placing a water hose in his mouth, or waterboarding the suspect), and the “electric monkey” (using a large battery to apply a non-lethal shock to a suspect). Psychologically abusive techniques of old included “[the] rubber hose, suffocation, extended incommunicado interrogation, or food and sleep deprivation.”

Unsurprisingly, the third degree was highly effective at producing confessions, both false and legitimate. As the country matured, reformers began to push for more humane interrogation practices. It wasn’t until 1936 that the U.S. Supreme Court first tossed a confession obtained via torture in Brown v. Mississippi, 297 U.S. 278, which marked the beginning of the end of the systemic use of explicit physical violence in the interrogation room.

Modern interrogation techniques focus almost entirely on the use of psychological coercion. Investigators use threats and promises to manipulate suspects. A suspect may be threatened with more charges, the certainty of rape in prison, or the death penalty. Promises often include assurances of leniency and better treatment by the authorities.

Today, the most widely used standardized interrogation system is “The Reid Technique.” The Chicago-based firm John E. Reid & Associates, Inc. trains law-enforcement agencies nationwide using Criminal Interrogations and Confessions (Inbau, Reid, Buckley & Jayne, 2013). Social psychologist Saul M. Kassin broke down the two-step Reid Technique in his article, “Falsified Confessions: Causes, Consequences, and Implications for Reforms.”

In the first phase, the investigator engages a suspect in an interview composed of 15 to 20 questions. The queries are designed to evoke specific behavioral responses that the investigator can (supposedly) use to judge whether the suspect is telling the truth or lying. The suspect’s reactions, which may be verbal or nonverbal (i.e., eye contact, posture, fidgeting, etc.), determine whether the investigator proceeds to the next phase.

Kassin refers to the second phase as the “nine-step interrogation.” During this process, the investigator will use positive and negative incentives by employing “maximization” and “minimization” tactics. Maximization tactics include “making an accusation, interrupting denials, overriding objections, and citing evidence, real or manufactured,” in order to render a suspect hopeless.

Minimization techniques are designed to help the weakening suspect confess, by providing “moral justification and face-saving excuses” for the crime. Investigators may offer sympathy and understanding, and may also provide the suspect “themes” that might help explain away the crime. Such offerings may include “suggesting that a murder was spontaneous, provoked, peer-pressured, or accidental rather than the work of a cold-blooded premeditated killer.”

Throughout the process, the investigator also will trick and deceive the suspect. Lies are a common part of modern interrogations, as is reference to non-existent evidence. Investigators are trained to tell a presumably guilty suspect that eyewitness identification has already been obtained (when it hasn’t), or that physical evidence tying the suspect to the crime has been found (when it wasn’t).

The Reid Technique does not contemplate the physical beating and torture of a suspect, but its use has nonetheless resulted in many false confessions. As Richard A. Leo said in his 2009 article, “False Confessions: Causes, Consequences, and Implications,” training in The Reid Technique leads American police to believe that they are highly accurate lie detectors. Reid & Associates claims that investigators who have completed the training “can learn to discriminate truth and deception accurately 85 percent of the time.” But this is far from the truth.

“The method of behavior analysis taught by the police training firm Reid and Associates has been found empirically to lower judgment accuracy,” writes Leo, “leading [fellow researchers] Kassin and Fong to conclude that ‘the Reid technique may not be effective—and indeed may be counterproductive—as a method of distinguishing truth and deception.”

The problems associated with a self-assured human lie detector-cum-investigator are compounded during the interrogation phase of the Reid process. When an investigator has concluded the initial interview and determined that the suspect is lying, he or she moves on to the interrogation, which is in no way an attempt to determine what actually happened. According to Drizin and Leo, the goal of modern American interrogation is nothing more than to obtain a confession.

“The purpose of interrogation … is not to investigate or evaluate a suspect’s alibi or denials,” write Drizin and Leo. “Nor is the purpose of interrogation necessarily to elicit or determine the truth. Rather, the singular purpose of American police interrogation is to elicit incriminating statements and admissions—ideally a full confession—in order to assist the State in its prosecution of the defendant.”

Noted federal criminal defense attorney and Criminal Legal News columnist Brandon Sample said interrogation techniques that are not concerned with the truth represent a serious problem in the criminal justice system.

“False confessions are a plague on the criminal ‘justice’ system,” said Sample, who writes about federal sentencing matters at sentencing.net. “The search for the truth by police must not be skewed by zealous interrogation techniques that focus on perceived truths instead of actual reality.”

The dishonest and coercive methods employed by modern interrogators combined with the “singular” purpose of the exercise results in a powerful confession-producing process. In fact, the process works so well that it can, and sometimes does, result in a suspect who is entirely innocent, providing a 100 percent bogus confession.

“Intended for the guilty,” write Drizin and Leo, “modern interrogation techniques are psychologically powerful enough to elicit confessions from the innocent.”

Modern coercive interrogation techniques also are quite legal. The extent of the U.S. Supreme Court’s significant jurisprudence in this area is reflected in its landmark decision Miranda v. Arizona, 384 U.S. 436 (1966), which only requires police investigators to warn suspects that they are not required to participate in an interrogation. In explaining why such a warning is constitutionally required, the Court detailed the modern interrogation process, without actually forbidding any of the practices that the Court clearly found uncomfortable.

The Court observed that officers utilizing “modern” interrogation techniques may lie to suspects about evidence and even advise them that their fingerprints were discovered at the crime scene. In addition, suspects may be told falsely that a codefendant has already confessed and placed the blame on them or that there are eye witnesses who saw and have identified them. At this point, interrogators often tell suspects that they already have more than enough evidence to convict, so the only chance the suspects have to help themselves is to come clean. If they do so, interrogators misleadingly imply that they can avoid the death penalty or a very long prison sentence, but only if they confess right now. The Court acknowledged that these systematic psychological interrogation techniques are effective.

False confessions are a significant problem for the criminal justice system because a confession is uniquely powerful evidence of guilt. According to Drizin and Leo, “false confessions are highly likely to lead to the wrongful conviction of the innocent, perhaps more so than any other type of erroneous evidence.” Quite simply, no matter what we now know about false confessions, the constituents of a criminal prosecution do not believe that an innocent person will admit to a crime that he or she did not commit.

“[W]ith the exception of being falsely captured during the commission of a crime, a false confession is the most incriminating and persuasive false evidence of guilt that the State can bring against a defendant,” write Drizin and Leo.

Anatomy of a False Confession

A false confession is described by social scientists as both a (false) admission, and a “postadmission narrative,” in which the suspect describes how and why a crime (that he or she did not commit) occurred. To understand how and why someone would confess to a crime that he or she did not commit, Kassin explains that “it is necessary to understand the effects of reward and punishment on behavior, human decision making, memory and forgetting, self-regulation, social influences, social perception, childhood and adolescence, personality, and psychopathology.”

The first step on the road to a false confession is taken by the investigator.

In what Leo refers to as the “misclassification error,” an investigator incorrectly decides that an innocent suspect is guilty. This is, in fact, a necessary condition for a false confession because “[i]f police did not erroneously interrogate innocent people, they would never elicit false confessions.”

Police misclassify innocent people for a variety of reasons. Most significantly, the Reid Technique encourages investigators to believe that they can know when a suspect is lying. Alternatively, an innocent person may be targeted because he or she fits a general description of the suspect. Sometimes investigators incorrectly target an individual because that person could have been motivated to commit the crime, as when a wife is murdered and the husband is investigated.

The second mistake leading to a false confession also is taken by the misinformed or misguided investigator. The “coercion error” occurs when an innocent suspect is subjected to the modern investigator’s highly coercive interrogation techniques. The promises and threats made in the often tiny and windowless interrogation room are, according to Leo and fellow sociologist Richard J. Ofshe, “the modern equivalent to the rubber hose.”

The coercion error occurs when an innocent suspect is made to believe that he or she has no choice but to comply with the wishes of the interrogator. In the case of a false confession, there is an obvious error—the confessor didn’t do it. That error is compounded, according to Leo, because “[w]hen a suspect perceives that he has no choice but to comply, his resultant compliance and confession are, by definition, involuntary and the product of coercion.”

The third error made by the investigator who procures a false confession is referred to as the “contamination error.” Here, the investigator transforms the suspect’s bare admission into a full confession. This “post admission narrative” is, in the case of a false confession, entirely supplied by the investigator. As Leo explains, “Interrogators help create the false confession by pressuring the suspect to accept a particular account and by suggesting facts of the crime to him, thereby contaminating the suspect’s postadmission narrative.”

The contamination error is a particularly troubling aspect of the process that results in a false confession. It is here that the powerful forces of confirmation bias have thoroughly poisoned the investigator’s objective judgment. As Leo writes, “[t]he innocent suspect’s postadmission narrative should [ ] be replete with errors when he responds to questions for which the answers cannot be easily guessed by chance, unless, of course, the answers are implied, suggested, or explicitly provided to the suspect, which, in fact, does occur, whether advertently or inadvertently, in many false-confession cases.”

Social scientists now recognize three different types of false confession. The “voluntary false confession” is rare. Here, a false confession is offered by an innocent person absent any interrogation at all. Leo explains that this kind of false confession “appear[s] to result from an underlying psychological disturbance or psychiatric disorder.” High-profile crimes often result in a slew of voluntary false confessions, as was the case in the aftermath of the Lindbergh kidnapping, the JonBenét Ramsey murder, and the Nicole Brown Simpson murder.

Given the modern investigator’s tendency to believe most strongly in a confession that he or she elicited, it is unsurprising that voluntary false confessions are generally discounted by law enforcement.

The “compliant false confession” is the most common type of false confession, and it is rarely disbelieved by investigators. This is where the psychological coercion techniques employed by the modern investigator cause a person to confess to a crime that he or she did not commit. Investigators manufacture evidence to convince the suspect that he or she is indisputably caught. Using strategic threats and promises, the suspect is made to believe that a confession will result in leniency, while denial will result in continued harsh treatment, which could ultimately include such unsavory possibilities as prison rape or the death penalty. Leo argues that psychological coercion is uniquely powerful in the interrogation room.

“It is not hard to understand why such threats and promises, in combination with standard interrogation techniques, such as repeated accusations, attacks on suspect’s denials, lies about nonexistent evidence, pressure, and inducements, may cause a suspect to confess knowingly to a crime he did not commit,” Leo writes. “Put simply, the suspect comes to perceive that the benefits of confessing (e.g., release from custody, mitigated punishment) outweigh the costs of denial (e.g., arrest, aggravated punishment).”

“Facing an overbearing interrogator who refuses to take no for an answer,” Leo continues, “[the suspect] may reason that telling the interrogator what he wants to hear is the only way to escape.”

The “persuaded false confession” occurs when an investigator causes the suspect to doubt his own memory and become persuaded that he or she may have committed the crime, despite not remembering having done so. Leo describes three steps that lead to a persuaded false confession. First, the interrogator makes the suspect begin to doubt his or her innocence through the use of deception, manufactured evidence, repeated accusations, and outright lies. Next, the interrogator provides the suspect with explanations for how he or she could have committed the crime but not remembered it (a blackout, multiple personality disorder, stress, repressed memory, etc.). Finally, the interrogator “helps” the suspect construct a detailed postadmission narrative.

Persuaded false confessions occur less frequently than compliant false confessions. They are most often found in high-profile cases, usually involving murder, where investigators are pressured to quickly solve the crime. Suspects who give a persuaded false confession typically recant soon after exiting the interrogation environment.

Police Exploitation of  Vulnerable Populations

The psychologically coercive techniques employed by modern American investigators have the potential to cause even the most intelligent and high-functioning individual to confess to a crime that he or she did not commit. Researchers have found, however, that certain populations are particularly vulnerable to the manipulative and coercive techniques used by interrogators. Because of their unique circumstances, juveniles, the intellectually disabled, and the mentally ill are more likely than the general population to confess to a crime that they did not commit, social scientists have established.

The Drizin study found that juveniles were overrepresented in the sample of 125 false confessions reviewed. A full 32 percent of all identified false confessions came from juveniles. Out of the 40 juveniles identified, 22 were younger than age 15 when they provided a false confession.

Kassin’s review of experimental data found that juvenile participants in laboratory experiments also were highly likely to confess to a “crime” that they did not commit. In one experiment, 72 percent of the 15- to 16-year-old subjects admitted to pressing a computer key that they did not press after interrogation.

It is not difficult to understand why juveniles are uniquely vulnerable to the psychological coercion used by modern investigators. Neuroscientists and developmental scientists have established that the still-forming brain of a youth renders him compliant, immature, trusting of authority, easily manipulated and highly suggestible. According to Leo, juveniles “lack the cognitive capacity and judgment to understand the nature or gravity of an interrogation or the long-term consequences of their responses to police questions.”

The intellectually disabled share similar characteristics and also are disproportionately represented in false confession studies. They tend to be eager to please and quick to cede to the demands of an authority figure. These individuals also tend to be less able to withstand stress and more likely to avoid conflict if possible.

“The [intellectually] disabled answer affirmatively when they perceive a response to be desirable and negatively when they perceive it to be undesirable,” writes Leo. “They literally tell the person who is questioning them what they believe the questioner wants to hear.”

Mentally ill suspects subjected to interrogation also are more likely to provide a false confession. Under pressure, the mentally ill are highly vulnerable and may not be able to understand that a false confession is, in fact, a statement against their own best interest.

“The mentally ill possess a range of psychiatric symptoms that make them more likely to agree with, suggest, or confabulate false and misleading information and provide it to detectives during interrogations,” writes Leo. “These symptoms include faulty reality monitoring, distorted perceptions and beliefs, an inability to distinguish fact from fantasy, proneness to feelings of guilt, heightened anxiety, mood disturbances, and a lack of self control.”

The Power of the Confession

There is a reason that investigators are willing to expend significant resources and employ arguably improper methods in the interrogation room. A confession, however it is obtained and regardless of its veracity, is highly incriminating. In the words of former U.S. Supreme Court Justice William Brennan, “no other class of evidence is so profoundly prejudicial.”

A confession, once obtained, is nearly impossible to walk back. This is because investigators hold strongly to what social scientists describe as the “myth of psychological interrogation:” that an innocent person will not falsely confess to a crime absent physical torture or mental illness.

Once a confession is in the bag, investigators typically close the case and make no further efforts at following other leads. This is usually the case, according to Leo, “even if the confession is internally inconsistent, contradicted by external evidence, or the result of coercive interrogation.”

This strong belief in the confession extends to prosecutors and judges. Even in the case of contrary evidence, including DNA, prosecutors often refuse to believe that a confession could be false. Instead, they crank up the charges and call off the plea bargaining. Judges rarely discount even suspicious confessions and sentence defendants who confessed more harshly.

Confession evidence, in fact, tends to corrupt the entire investigation. If the case is not closed, a confession may lead to what social scientists call “forensic confirmation biases.” Here, the confession colors all future investigation. Eye witnesses are more likely to identify a suspect in a lineup after they’ve been told that there was a confession. The existence of a confession even influences whether fingerprint analysts find a match between two samples and how DNA is interpreted.

“To sum up,” writes Kassin in his 2014 journal article, “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.”

All of this is to say nothing of the impact that a confession has on jurors. The California Supreme Court has noted that “the confession operates as a kind of evidentiary bombshell which shatters the defense.” Confessions shatter jurors, too. According to Leo, a jury will treat a confession as more probative than any other type of evidence.

The myth of psychological interrogation is so strong that a confession increases the likelihood of conviction even when the jury is instructed to disregard the confession as inadmissible, and even when the jury reported that the confession didn’t influence their verdict.

Exoneration data further illustrate the power of a confession. According to the Innocence Project, 23 percent of the first 225 exonerations involved a confession. The National Registry of Exonerations reported that 227 out of the 1,810 exonerations recorded as of June 7, 2016, involved (false) confessions given after the suspect was given the Miranda warning. Every one of these exonerees was convicted beyond a reasonable doubt of a crime that they did not commit. The reason? A false confession.

‘A Profound Miscarriage of Justice’

False confessions represent a significant and insidious problem in the criminal justice system. Outside of high-profile cases, such as the Norfolk Four and the Central Park Five, very few cases involving false confessions are publicized. Drizin and Leo attempted to remedy the situation by profiling 125 cases involving false confessions. Some of the situations examined by the report authors provide quality insight into how and why false confessions happen.

Out of 125 proven false confessions, 40 were given by suspects younger than 18. Seven of the false confessions were obtained from children under the age of 13. Two of the confessors were under eight years old.

Those two boys, who were seven and eight years old, respectively, were arrested in connection with the 1998 rape and murder of 11-year-old Chicago resident Ryan Harris. Ryan was found in tall weeds near where she was last seen, beaten badly about the head and gagged with her underpants. Despite evidence of sexual assault, Chicago police theorized that the two boys had bashed the older girl in the head with a brick and dragged her into the weeds in an apparent attempt to steal her bike.

During the boys’ interrogation, the Chicago Sun-Times reported that officers fed them happy meals and held their hands “because they were all friends.” The 7-year-old reportedly admitted to investigators that the boys had taken Ryan’s shorts off and “softly” rubbed leaves around her eyes and mouth. The 8-year-old said he then got on his bike and rode home to watch cartoons.

Despite the absurdity of these “confessions,” Chicago police charged the boys with Ryan’s murder. After arraignment, a judge remanded them to a psychiatric hospital. Several days later, the boys were deemed not a danger to others and were released to their parents—after police fitted them with specially made child-sized ankle monitors.

It took Chicago investigators three weeks to figure out that their theory was bunk. Forensic tests revealed the presence of semen on Ryan’s underwear, and the boys were cleared of all charges. As a clear indication of both the power and problem posed by false confessions, the confessions of the two children were just too much for Chicago Police Superintendent Terry Hillard and Cook County State’s Attorney Richard Devine to disregard. Even after DNA tests matched the semen to Floyd M. Durr, a neighborhood adult who was already charged with sexually assaulting three other young girls, the two law enforcement officials obstinately refused to admit that the boys were innocent.

Drizin and Leo’s data set included a smaller, but still significant, population of intellectually disabled or mentally ill false confessors. The case of Jerry Frank Townsend, a Florida resident with a very low IQ, provides an excellent illustration of how the use of modern interrogation techniques on the intellectually disabled can lead to a false confession and subsequent miscarriage of justice.

A string of sexual assaults in the Miami area culminated in the broad daylight rape of a woman on a public sidewalk in 1979. Townsend, who was working a low-level job opening boxes at an equipment store, was spotted a block away from the incident and identified by the victim and two witnesses. The victim refused treatment and also refused to testify against Townsend. There was no physical evidence tying Townsend to any of the crimes.

Nevertheless, after four days of interrogation, Townsend had implicated himself in about 20 homicides in Fort Lauderdale, Miami, Tampa, and San Francisco. No physical evidence linked Townsend to any of these murders, and investigators already had evidence that conclusively established that he could not have committed many of the crimes to which he confessed.

Townsend’s confessions were so implausible that one expert called them “worthless.” He had key details completely wrong in almost every case. In one case he was six years off on the date of the murder. In another, he described strangling and cutting the throats of three women on one day and shooting them the next.

But Townsend was still charged with three first-degree murders. A judge allowed prosecutors to introduce evidence from two other murders in order to establish a pattern. Based almost entirely on his confessions, Townsend was convicted and sentenced to life in prison. He also pleaded guilty to two other murders and a rape, after prosecutors threatened him with the death penalty.

Dennis Urbano represented Townsend on the rape charges and said the intellectually disabled man was capable of confessing to anything.

“We tried it out,” Urbano said. “[W]e could get him to confess to anything.”

Urbano also said investigators considered Townsend manna from heaven and used improper interrogation techniques to take advantage of the opportunity his suggestibility represented.

“Police led [him] through the confessions after spending hours talking to him about the cases,” Urbano said. “They wanted to clean out the old case files on him.”

Townsend spent 22 years in prison before all of his convictions were thrown out, and he was released. DNA evidence cleared Townsend and implicated Eddie Lee Mosley, a man known to Miami-area authorities as “The Rape Man.” Mosley was thought to be involved in 41 rapes and 17 rape murders in the South Florida area, many of which occurred after Townsend was convicted. The Miami-Dade judge who vacated three of Townsend’s convictions called the situation an “enormous tragedy.”

Steven Drizin’s efforts to shine a light on the problem of false confessions have continued well beyond the publication of the 2004 report that he co-authored. He has since founded the Center on Wrongful Convictions of Youth. And he has not limited his involvement in the debate over false confessions to academia. He represents Brendan Dassey, one of two men profiled in the hit Netflix series Making a Murderer.

Dassey and his uncle, Steven Avery, were arrested for the murder of 25-year-old Teresa Halbach. Dassey, who was 16 at the time, confessed to participating in the murder with his uncle. Investigators feigned fatherly concern during the interrogation of the borderline intellectually disabled teenager. At one point during the interrogation, Wisconsin Department of Justice Special Agent Tom Fassbender said to Dassey, “Yeah, we’re cops, we’re investigators and stuff like that, but not right now. I’m a father that has a kid your age, too. I want to be here for you. There’s nothing I’d like more than to come over and give you a hug.”

When Dassey wasn’t giving investigators the story they wanted, they fed him facts that supported their theory of the case. The New York Times reported on this cringe-worthy exchange:

Investigator Mark Wiegert, who knew that Halbach had been shot in the head: “Something else was done. Something with the head.”

Dassey’s first try: His uncle had cut her hair.

Dassey’s second try: His uncle punched her in the head.

Dassey’s third try: His uncle had told him to cut Halbach’s throat.

Wiegert, who had apparently had enough: “All right. I’m just going to come out and ask you. Who shot her in the head?”

Dassey: “He did” (referring to his uncle).

Brendan Dassey was ultimately convicted of the murder, as was his uncle. No physical evidence implicated Dassey in the crime, but his videotaped confession was played to the jury. Dassey appealed, and a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit reversed his conviction due to the highly suspicious confession. Unfortunately for Dassey, the entire Seventh Circuit agreed to take up the case and reversed the panel. Judge Ilana Diamond Rovner issued a stinging dissent to the en banc court’s decision to deny Dassey relief.

“His confession was not voluntary and his conviction should not stand, and yet an impaired teenager has been sentenced to life in prison,” wrote Judge Rovner. “I view this as a profound miscarriage of justice.”

Former U.S. Solicitor General Seth Waxman joined Drizin in petitioning the U.S. Supreme Court to hear Dassey’s case.

“Put simply,” wrote Waxman in the petition, “the interrogators took advantage of Dassey’s youth and mental limitations to convince him they were on his side, ignored his manifest inability to correctly answer many of their questions about the crimes, fed him facts so he could say what they wanted to hear, and promised that he would be set free if he did so. The resulting confession was more theirs than his.”

The Supreme Court recently declined to hear Dassey’s petition, which was supported by over 60 current and former prosecutors, including officials from the Department of Justice. Dassey remains in prison.

Toward the Prevention of False Confessions

Empirical research has conclusively established that modern interrogation techniques can lead an innocent person to falsely confess to a crime that he or she did not commit. The cost of a false confession to the wrongfully convicted, the victim of the crime, and to the criminal justice system as a whole, is high. Social scientists and criminal justice reform advocates have proposed a variety of solutions to the false confession problem.

Across the board, the first suggestion calls for mandatory electronic recording of the interrogation process, from beginning to end. Kassin highlights two benefits that would follow the audio and video recording of a suspect’s interrogation. First, it would promote accountability among police investigators and should thereby, “deter their use of particularly coercive interrogation techniques.” Electronic recording also would provide judges, lawyers, and juries an “actual factual record” from which to draw conclusions as to voluntariness and credibility.

As of 2018, 18 states, the District of Columbia, and the FBI require the videotaping of interrogations, from start to finish. Peter Neufeld, co-founder of the Innocence Project, lauded these developments.

“It’s a vast improvement,” Neufeld said. “When police know they’re being videotaped, they’re going to behave.”

Videotaping the interrogation process is not a panacea, however. Brendan Dassey’s interrogation was captured on video, and despite many powerful indicators that he provided a false confession, he’s still in prison. As such, experts also advocate for the use of expert testimony at trial.

Historically, courts have been unwilling to allow expert testimony as to the veracity of a suspect’s confession. The thinking is that such testimony invades the province of the jury—the designated finder of facts. But Kassin and others suggest that the inherent biases relating to confessions call for expert testimony.

“[T]he American Psychological Association (APA) has concluded from existing research that judges and juries have difficulty assessing confession evidence, that the phenomenon of false confession is counterintuitive, that the science concerning risk factors is reliable, and that psychological experts would assist the triers of fact,” Kassin writes.

Empirical researchers and social scientists also advocate for police training on issues relating to false confessions. Such training would help investigators recognize particularly vulnerable suspects. Ideally, training would also limit the amount of improper coercion that is used in a given interrogation.

Leo notes in his 2009 article that reforms he and other experts propose are likely to come slowly to the American criminal justice system. This is because “American law enforcement … remains steeped in the use of investigative methods and interrogation techniques that continue to … produce false confessions, and the American public continues to believe in the myth of psychological interrogation.”

“Until the misconception that innocent suspects do not confess in response to psychological interrogation is dispelled,” writes Leo, “police detectives will continue to elicit false confessions that lead to wrongful convictions.”

If the case of the Norfolk Four is any indication, we have a long way to go. The four wrongfully convicted men have been exonerated by judges and fully pardoned by the governor, but Carol Moore, the mother of the victim, cannot let the confessions go.

“It’s hard to believe that, hearing the confessions and knowing the details of this case, these men were not involved with the murder of our daughter,” said Moore. “The governor and the judicial system who worked so hard to free these killers will have it on their conscience if any of them commit another violent crime.” 

 Sources: law.umich.edu, abajournal.com, pbs.org, http://journal.sagepub.com, innocenceproject.org, nytimes.com, http://jaapl.org, seattletimes.com, cnn.com, https://courses2.cit.cornell.edu, theguardian.com, cbc.ca, www.hkcfa.hk, https://cases.justia.com, https://scc-csc.lexum.com, washingtonpost.com, cbsnews.com, falseconfessions.org

Additional Sources: “The Problem of False Confessions in the Post-DNA World” by Steven A. Drizin and Richard A. Leo, North Carolina Law Review (2004); “False Confessions: Causes, Consequences, and Implications” by Richard A. Leo, Journal of the American Academy of Psychiatry and Law Online (September, 2009); “False Confessions: Causes, Consequences, and Implications for Reform” by Saul M. Kassin, Policy Insights from the Behavioral and Brain Sciences (2014); personal interview with Brandon Sample, Law Offices of Brandon Sample (July 20, 2018)

Christopher Zoukis, the author of Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), College for Convicts (McFarland & Co., 2014), and the forthcoming Directory of Federal Prisons (Middle Street Publishing, 2019), is a contributing writer to Prison Legal News, Criminal Legal News, Huffington Post, New York Daily News, and the New York Journal of Books. He can be found online at prisonerresource.com.

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