by Joseph P. Buckley, The Crime Report

In the 1967 edition of their book, Criminal Interrogation and Confessions, John Reid and Fred Inbau expressed concern about the possibility of false confessions from individuals with a “mental illness.”

Over a half-century later, there’s still reason to be concerned.

The knowledge that potentially false confessions may occur as the result of coercive behavior, such as threats and promises, has been known to investigators for many decades. Undoubtedly the awareness heightened with the development of DNA exonerations.

According to the Innocence Project, between 1989 and 2020 there have been 367 DNA exonerations, of which approximately 100 cases (28 percent) involved false confessions.

In almost half of these cases the subjects were under 18 years old or mentally impaired at the time of their arrest.

According to the National Registry of Exonerations, of the exonerees with reported mental illness or intellectual disability, 72 percent had confessed. Some 40 percent of the exonerees who were under 18 years old at the time of the crime falsely confessed.

While the overwhelming majority of confessions are true and accurate, individuals who are mentally impaired and juveniles should clearly be considered more susceptible to false confessions than the population at large.

With very few exceptions, false confessions are caused by the investigator engaging in coercive or inappropriate behavior. A careful examination of the first 250 DNA exoneration cases illustrates the point.

As pointed out by Deborah Davis and Richard Leo, in a 2012 article for the New England Law Review, “Many, and perhaps most, of the interrogations in the (DNA exoneration) cases…. crossed the line of proper interrogation techniques through the use of explicit threats and promises, feeding suspects crime facts, and/or other coercive practices.”

This assessment was confirmed by J.Pete Blair, who reviewed over 100 false confession cases in his study “A Test of the Unusual False Confession Perspective: Using Cases of Proven False Confessions” (Criminal Law Bulletin, Vol. 1, Number 2).

He reported that the study of DNA exoneration “failed to find a single false confession of a cognitively normal individual that did not also include the use of coercive tactics by the interrogator.”

Those tactics, he said, included:

• the use of physical force;

• denial of food, sleep or the bathroom;

• explicit threats of punishment;

• explicit promises of leniency; and

• extremely lengthy interrogations.

Below are some examples of how coercive behavior has worked in practice, from the updated version of the Reid-Inbau book, as well from our website, where we document numerous cases in which the courts have ruled confessions to be inadmissible because the subject was physically beaten or abused, or he was threatened with physical harm if he did not confess.

In one case, an 18-year-old father was being interrogated about the suspicious death of his 6-month-old child, he was told by the investigator, “You don’t get punished in this justice system for telling the truth. You get punished by…. doing something intentional and showing no remorse. Those people are called killers. And what do you think happens to baby killers in prison? What do you think is going to happen? You’re eighteen.” A second investigator stated, “It’s mandatory life.”

The subject was also told, “And your life won’t be long as a baby killer in prison. Check the history papers. Stay online when you get a chance in the county jail. See what happens to baby killers in jail.”, and, “When you get convicted of this and you go over for sentencing in front of that judge, every judge wants to send a baby killer to prison forever.”

The court found that these “baby killer” statements were threats of physical violence that case law has reasonably found to be indicative of improper coercion.

Threat of Inevitable Consequences

Another coercive tactic involves telling a suspect that if he did not confess, his children will be taken away from him, or that “if you don’t cooperate and tell us that you did this, I’m going to make sure that you never see your wife or kids again.”

In one case the investigators threatened to have federal authorities charge the suspect with a crime for having his mother’s gun in his room. They implied that he would not see his infant son grow up. They also threatened him by saying his mother would lose her Section 8 housing and end up in the street with all of his younger siblings if he did not admit to committing the armed robbery.

The courts have consistently found that advising a suspect of the potential penalties he may face based on the type of crime that he committed is not coercive.

However, promising the suspect a benefit for confessing, such as receiving a shorter sentence, getting counseling instead of going to jail, or being able to go home and not getting arrested, can nullify a confession,

In another example from our website, a man who allegedly abused a 7-year-old child was told by the investigator that the case would go away and would not proceed if he met the victim halfway and apologized to her.

The subject was told he could put the case “in a drawer” if he admitted to some “inappropriate sexual stuff.”

Denial of Rights or Physical Needs

In a number of instances we identified, the subject was denied their rights. They were in custody but when they asked for an attorney that request was ignored

Or they advised the investigator that they did not want to talk anymore, but the interrogation continued. In some juvenile interrogations they were denied the opportunity to see a parent or guardian in violation of the law.

In a recent custodial interrogation, the subject made what the court viewed as an unambiguous invocation of his right to an attorney (and the court found that the interrogation should have been terminated) when he stated, “If I’m going to answer questions, I’m going to need a lawyer here.”

Seconds later, he restated his request: “I want to talk to you, but I just need my lawyer.” And after an investigator asks, “here’s what you’re telling us—you do want your lawyer?” Defendant once more affirms his request: “I want to talk, yeah. But I need my lawyer present.” The interrogation continued without a lawyer present.

In many false confessions cases, the interrogation process lasted an excessively long period of time. One study of 44 false confession cases noted that the average length of interrogation was 16.3 hours.

Several individuals who gave false confessions subsequently stated that they confessed just to end the process, just to be able to go home.

Here’s one example:

Over the course of almost two days the police detained the suspect, a man of limited intelligence and little education, who was unaccompanied by a friend or an attorney, for about 30 hours and questioned him almost continuously for about 17 of those hours. The investigators persisted in telling the suspect that he was guilty, “hollering and screaming” at him…despite being aware of his mental limitations and despite his repeated denials. At one point the suspect feared for his life and signed an incriminating statement.

Many false confession cases include details about the crime that only the guilty person should know. However, a careful analysis in many of these cases found that these details were revealed to the subject by the investigator (oftentimes inadvertently) during the questioning, or were revealed in photographs that the investigators showed the subject.

The disclosure of crime details to the subject contaminates the confession. It is difficult, if not impossible, to determine if the subject had independent knowledge of these details or was just repeating what he was told.

Best Practices

In numerous false confession casesthe subjects had severe mental limitations, a very low IQ, or in several cases were found to be extremely psychologically susceptible to suggestions of their guilt.

In those instances where it is readily apparent that the subject has a significant mental limitation, the investigator should not engage in active persuasion but rather engage in a logical sequence of questions.

The key factor in instances where there is a concern about the subject’s mental or psychological capacity is to establish in the confession that the subject offered corroborating information that the police did not know, such as the location of the murder weapon, the bloody clothes or the stolen jewelry

For example, in one case a 19-year-old defendant with an IQ of 55 and the intellectual functioning of a nine- year-old was being questioned about committing a robbery. According to the court “It was clear from the beginning of the interview that [the suspect] had mental handicaps.”

When the investigators asked him to read a sign out loud, he began sounding out the words, but could not read the word “monitored.” He told the officers, “I am slow in the head,” “I lose memory real fast,” and “Can you bring me to memory?”

The court found that the investigators “took advantage of his intellectual deficiencies to intimidate, coerce or trick him into signing a waiver of his Miranda rights and falsely confessing to the robbery.”

Applying Science to Confession Testimony

In anticipation of testifying on a case in which the defense claims that the defendant gave a false or coerced confession, it is important to know the type of arguments that they may make in order to try to establish this point.

Social psychologists oftentimes describe the interrogation as a guilt presumptive process.

It is accurate to say that investigators interrogate individuals that they believe, based on the available investigative evidence, committed the crime, but the alternative, to interrogate people you do not believe committed the crime, would be absurd.

The problem with this description of the interrogation process offered by social psychologists is that the behaviors they refer to we teach investigators not to do.

We teach never to engage in making threats of harm or inevitable consequences or promises of leniency.

In 1969 the Supreme Court ruled in Frazier v. Cupp that misrepresenting evidence to a suspect (in this case falsely telling the suspect that his accomplice had confessed) “is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible.

These cases must be decided by viewing the “totality of circumstances….”

Numerous court decisions have upheld the investigator’s capacity to verbally misrepresent evidence during an interrogation.

However, we urge caution. We suggest the following:

• Introducing fictitious evidence during an interrogation should be a last-resort effort, it represents a risk that the guilty suspect may detect the investigator’s bluff, resulting in a significant loss of credibility and sincerity;

• Introducing fictitious evidence should not be used for the suspect who acknowledges that he may have committed the crime even though he has no specific recollections of doing;

• Introducing fictitious evidence should be avoided when interrogating a youthful suspect with low social maturity or a suspect with diminished mental capacity. These suspects may not have the fortitude or confidence to challenge such evidence and, depending on the nature of the crime, may become confused as to their own possible involvement if the police tell them evidence clearly indicates they committed the crime.

It should also be noted that misrepresenting evidence in an otherwise proper interrogation does not cause innocent people to confess.

But the “aggravating circumstances” within the interrogation can create an environment conducive to a false statement.

Consider the Supreme Court’s opinion in U.S. v. Graham, in which the Court pointed out that there are a number of cases in which statements elicited from a defendant in response to police deception were found to be involuntary.

The Court added that, “these cases all involve significant aggravating circumstances… such as, subjecting the accused to an exhaustingly long interrogation, the application of physical force or the threat to do so, or the making of a promise that induces a confession.” (author emphasis.)

In other words, it is not the misrepresentation of evidence that is the genesis of a coerced or even false confession, but the “aggravating circumstances” such as an exhaustingly long interrogation, the application or threat of physical force, or a false promise of a lower sentence during the interrogation.

Don’t Interrogate Kids Like Adults

When questioning juveniles and individuals with significant mental or psychological disabilities, the investigator has to exercise special caution. Due to immaturity and the corresponding lack of values and sense of responsibility, the behavior symptoms displayed by a youthful suspect may be unreliable.

Generally speaking, a person under the age of 10 should not be subjected to active persuasion techniques such as themes and alternative questions. At this age, the child is susceptible to suggestion and is motivated to please a person in authority.

The interaction between the investigator and child should be limited to a question and answer session which is centered on factual information and simple logic.

The best way to avoid false confessions is to conduct interrogations in accordance with the guidelines established by the courts, adhering to 15 Core Principles and Best Practices.

Here are five on our list. (You can find the others in our web page www.reid.com, our YouTube page The Reid Technique Tips, and our book, Criminal Interrogation and Confessions.)

• Do not make any promises of leniency

• Do not threaten the subject with any physical harm or inevitable consequences

• Do not deny the subject any of their rights

• Do not deny the subject the opportunity to satisfy their physical needs

• Withhold information about the details of the crime from the subject so that if the subject confesses the disclosure of that information can be used to confirm the authenticity of the statement.

And one last point: following the confession, the investigator should investigate the confession details in an effort to establish the authenticity of the subject’s statement, as well as attempt to establish the suspect’s activities before and after the commission of the crime.

Joseph P. Buckley is president of John E. Reid and Associates. The original version of this article appeared December 15, 2021 at TheCrimeReport.org. It is reprinted with permission.