by Douglas Ankney

s of February 2024, the National Registry of Exonerations (“NRE”) at the University of Michigan has registered 3,475 postconviction DNA and non-DNA exonerations since 1989—an average of 100 per year. Of those 3,475 exonerations, 438 (13%) were due to wrongful convictions (mostly for homicide and rape) based on false confessions. Disturbingly, numerous additional false confessions occur in cases that do not go to trial or result in acquittal. Gould, Carrano, Leo, & Hail-Jares, “Predicting Erroneous Convictions,” 99 Iowa Law Review 471 (2014). Most false confessions are never discovered. This brief article examines the known causes of false confessions and presents the experts’ recommendations to eliminate both the false confessions and the wrongful convictions based upon them.

Known Causes

According to legal scholar Richard A. Leo in Chapter 12 of Practical Aspects of Rape Investigation: A Multidisciplinary Approach (4th Edition): “Researchers and practitioners alike have long wondered why the innocent might confess to serious crimes, especially ones that carry lengthy prison sentences or life imprisonment. For more than a century—but especially in the last three decades—social science researchers have undertaken various types of empirical studies (field, observational, laboratory, documentary) to advance scientific knowledge about how interrogation procedures influence suspects’ perceptions, overcome a suspect’s denials, and elicit the decision to confess. Although there now exists a substantial empirical body of research explaining why the innocent sometimes falsely confess when interrogated, this phenomenon remains poorly understood and counterintuitive, numerous studies have shown.” (Internal reference citations omitted.) 

Leo further observed that “[n]o responsible scholar or practitioner suggests that police knowingly seek to obtain false confessions from the innocent or that prosecutors knowingly seek to convict the innocent. Indeed, there is little evidence that intentional abuses of power currently occur with significant frequency. Rather, false confessions now occur primarily due to a lack of proper training, poor investigative practices, and the use of scientifically invalidated and/or high-risk interrogation techniques and strategies.” (But for a contrary view, see “Deliberately Convicting the Innocent: Exonerations Expose the Criminal Justice System’s Callous Indifference Toward Official Misconduct,” cover story for the July 2021 issue of CLN.)

According to Leo, there are times when well-meaning police investigators conclude, based on faulty decision criteria, that an innocent person is likely guilty and, therefore, commence an accusatory interrogation. While Reid and Associates (“Reid”)—the creators and trainers of the dominant police interrogation approach in the U.S.—instruct investigators to have solid evidence before placing a suspect in an interrogation, Reid also “trains investigators to engage in behavioral symptom analysis.” That is, investigators are trained by Reid to evaluate a suspect’s body language and demeanor to gauge whether a suspect is lying (and therefore probably guilty) or truthful (and likely innocent) during pre-interrogation interviewing before determining whether or not to place the suspect in an interrogation. For example, detectives are taught that subjects who “avert their gaze, slouch, shift their body posture, touch their nose, adjust or clean their glasses, chew their fingernails, or stroke the back of the head are likely lying and thus likely guilty. Suspects who are guarded, uncooperative and offer broad denials and qualified responses are also believed to be deceptive and therefore guilty.”

But empirical studies have debunked this pseudoscience. These studies reveal that police investigators, just like lay people, cannot reliably discern truthful persons from liars based upon their analysis of someone’s demeanor and/or body language at levels any greater than random chance. C. Bond and B. DePaulo, “Accuracy of Deception Judgments,” Personality & Social Psychology Review, No. 10 (2006). (Additionally, the cover story for the August 2023 issue of CLN titled “Deceiving Themselves: How Cops’ False Belief in Their Ability to Detect Deception From Nonverbal Cues Leads to Miscarriages of Justice” also discusses this topic in detail.)

The method of behavior analysis taught by Reid “appears to lower pre-interrogation judgment accuracy, while increasing investigators’ self confidence in their assessments.” S. Kassin and C. T. Fong, “‘I’m Innocent!’ Effects of Training on Judgments of Truth and Deception in the Interrogation Room,” Law and Human Behavior, No. 23 (1999). The above research demonstrates “that speculative judgments regarding a suspect’s guilt or innocence based on a subjective assessment of his or her demeanor is a poor substitute for an analysis of real evidence on which to base a decision to interrogate.”

Social scientists have studied interrogations and interrogation techniques in depth and have identified factors that increase the risk of eliciting false confessions. Dividing these factors into two categories, researchers distinguish Situational Risk Factors which include techniques, methods, strategies, and/or the environment of the interrogation from Individual Risk Factors, which are associated with the suspect’s personality traits and characteristics. For ease of understanding, Situational Risk Factors tend to be those in the control of the law enforcement agents conducting the interrogation; whereas, Individual Risk Factors are those traits specific to the individual that influence how he or she responds to the Situational Risk Factors.

Situational Risk Factors

Length of Interrogation. Reid specifically recommends in the police interrogation training manual that “police interrogate for no longer than four (4) hours absent ‘exceptional circumstances’ and that ‘most cases require considerably fewer hours.’” F. Inbau, et al., Criminal Interrogation and Confessions (5th ed. 2013). Empirical studies indicate that the overwhelming majority of routine custodial interrogations are under one hour. B. Feld, “Kids, Cops, and Confessions: Inside the Interrogation Room” (2013). However, most interrogations leading to false confessions have a combined time period of custody and interrogation in excess of six hours. S. Drizin and R. Leo, “The Problem of False Confessions in the Post DNA World,” 82 North Carolina Law Review 891 (2004) (“Drizin”).

The combined amount of time in detention and interrogation is a significant risk factor for false confessions since the longer an interrogation lasts, the likelihood increases that the suspect will become too fatigued and/or depleted of the physical and psychological ability necessary to resist the stresses associated with accusatory interrogations. Lengthy interrogations may also lead to sleep deprivation that causes exhaustion and heightens “interrogative suggestibility” by “impairing concentration, memory, situational awareness, response time, the ability to reason and executive functioning.” Z. Krizan and R. Leo, “How Sleep-Related Fatigue Impacts the Evidentiary Value of Statements and Confessions,” The Champion, No. XLVII (2023).

False Evidence. Most suspects in America are unaware that police detectives may legally lie to them by pretending to have incriminating evidence that does not exist. Research has revealed that false evidence ploys are almost always present in interrogations resulting in false confessions and are, therefore, substantially likely to increase the probability of eliciting false confessions from innocent suspects. S. Kassin, et al., “Police-Induced Confessions: Risk Factors and Recommendations,” 34 Law and Human Behavior 3 (2010) (“Kassin”). False evidence ploys, inter alia, confuse some suspects into believing that such evidence exists, leading them to doubt themselves and even to develop false beliefs/memories of committing the crime.

Minimization. Some investigators apply interrogation techniques and strategies that minimize the legal seriousness and consequences of the crime and these techniques are known to increase the risk of false confessions. These strategies imply leniency, reduced punishment, or even no punishment at all for confessing. Conversely, interrogation techniques/strategies that exaggerate the seriousness of the offense and legal consequences are also known to increase the risk of false confessions. These strategies imply harsher treatment, confinement, and punishment unless the suspect confesses.

Threats and Promises. Interrogators sometimes use implied and/or explicit promises of leniency or immunity and other tangible benefits in conjunction with implied and/or explicit threats of harm if the suspect fails to confess. The empirical social science research has repeatedly shown that promises of leniency—as well as threats of harm and punishment—are widely associated with police-induced false confessions in the modern era and are considered to be among the leading causes. Drizin.

Individual Risk Factors

Leo explains “[w]hile the use of high-risk interrogation techniques are often the primary cause of false confessions, certain types or groups of individuals are far more vulnerable to the pressures of interrogation, having their will overborne and/or making a false confession.” Included in this list are:

The Mentally Ill. They are known to confess falsely because they are easily confused, disoriented, delusional, or experiencing a nonrational emotional or mental state.

Juveniles and Individuals with Low IQ/Cognitive Functioning. They are known to confess falsely because they are often unable to understand the nature and seriousness of the situation or perceive the consequences of confessing. Additionally, members of this group often display a strong desire to please others—especially authority figures. Juveniles also tend to lack the knowledge and maturity needed to resist simple police pressures and manipulations. Finally, members of this group are generally “naive, excessively trusting of authority, highly suggestible and/or highly compliant and who are therefore predisposed to believe that they have no choice but to comply with the demands of authorities or who might simply lack the psychological resources to resist the escalating pressures of accusatorial interrogation.” Kassin.

Contamination and False Confessions

Contamination is defined as “the leakage or disclosure to a suspect of nonpublic case facts that are not likely guessed by chance.” R. Ofshe and R. A. Leo, “The Decision to Confess Falsely: Rational Choice and Irrational Action,” 74 Denver University Law Review 979 (1997) (“Ofshe”). The problem with contaminated confessions is that they contain detailed facts of a crime that are known to the police and would be known to the perpetrator(s) but have not been disseminated to the public—giving the impression that the only way the suspect could know these details is if he or she was involved in the crime. Properly speaking, contamination is not a Situational Risk Factor because it is not an approved interrogation technique, i.e., “[p]olice interrogation training manuals universally instruct police not to provide suspects with crime facts that are likely to be known only by the true perpetrator and the police.” F. Inbau, et al., Criminal Interrogation and Confessions (5th ed. 2013). Nevertheless, researchers have discovered that contamination by the police occurs with alarming regularity in cases involving false confessions.

A study of the first 250 postconviction DNA exonerations of innocent prisoners within the American criminal justice system revealed that contamination was present in 95% of those exonerations. B. Garrett, “Convicting the Innocent” (2011). A follow-up study showed that more recent DNA exonerated false confessions were contaminated 91% of the time. B. Garrett, “Contaminated Confessions Revisited,” 101 Virginia Law Review 395 (2015).

Varieties of False Confessions

There are three general, conceptually distinct types of false confessions, viz., voluntary, coerced-compliant, and coerced-internalized.

Voluntary False Confessions. A voluntary false confession is offered in the absence of police interrogation or in response to slight police pressure and may be volunteered because the person has “a morbid desire for notoriety, the need to atone for real or imagined acts, a need for attention or fame, the desire to protect or assist the actual offender, an inability to distinguish between fantasy and reality, or a pathological need for acceptance of self-punishment.”

Coerced-Compliant False Confessions. A coerced-compliant false confession, also known as a stress-compliant false confession, occurs “when the pressure, stress, and/or coercion of custodial questioning overwhelms the suspect and he comes to believe the only way to end the experience is by confessing.” Ofshe.

The three potential sources of stress during an interrogation are: (1) environment—placing the suspect in separated, unfamiliar surroundings where the pace, intensity, and length of the interrogation are controlled by the police, (2) interrogator’s interpersonal style—alternatively confrontational, demanding, and insistent, and (3) interrogator’s techniques/strategies—includes attacking the suspect’s self-confidence by rejecting/ignoring protestations of innocence, causing the suspect to intuit that making a false confession is the only means of ending an otherwise intolerable interrogation.

Coerced-Internalized False Confessions. Coerced internalized false confessions, also known as persuaded false confessions, “occur when an innocent suspect comes to doubt the reliability of his memory and becomes temporarily persuaded that it is more likely than not that he committed the crime, despite having no memory of doing so. In rare cases, a persuaded false confessor may develop actual false memories of having committed the crime.” T. Wells and R. A. Leo, “The Wrong Guys: Murder, False Confessions, and the Norfolk Four” (2008). The language in these confessions tends to reflect the uncertain, hypothetical nature of the suspect’s confession, i.e., the suspect states he or she “must have” or “probably” committed the crime in light of the “facts” as presented by the interrogator.

Consequences of False Confessions

The NRE clearly establishes that false confessions occur with troubling frequency and lead to wrongful convictions. Individuals who confess, including those who do so falsely, are treated more harshly within the criminal justice system in that:

1)  confessions generally induce law enforcement to believe the case is closed,

2)  prosecutors tend to make confessions the focal point of their cases and are less inclined to make favorable plea offers,

3)  defense attorneys are more likely to pressure defendants who have confessed to plead guilty due to the strong likelihood of conviction at trial, and

4)  triers of fact consistently consider confessions to be strong evidence of guilt.

For all of those reasons, it is absolutely imperative that police and prosecutors determine whether a confession is false prior to trial.

Reducing the Risk of False Confessions

One of the most important procedural safeguards in reducing the possibility of false confessions is a comprehensive training program for interrogators within law enforcement. At a bare minimum, investigators and interrogators must be trained in the following areas:

1)  The existence, variety, causes, and psychology of false confessions—if investigators are taught the logic, principles, and effects of psychological interrogation methods, they will not only become more knowledgeable about false confessions but they will also become more effective in obtaining truthful ones.

2)  The indicia of reliable and unreliable statements and how to distinguish between them—it has long been a generally accepted principle in law enforcement that valid confessions are supported by logic and evidence. The proper way to assess the reliability of a confession is by analyzing the suspect’s post-admission narrative (detailed discussion of the crime after an admission has been given) against the underlying crime facts to be determined whether it reveals guilty knowledge and is, in fact, corroborated by existing evidence.

3)  Officers cannot reliably intuit whether a suspect is innocent or guilty based on their uncorroborated suspicions—police must base their opinions about an individual’s guilt on much more reliable and conclusive evidence and should ensure that they have done all within their power to corroborate the confession. True confessions most often provide information that leads to corroborating evidence, whereas false confessions, absent contamination, by their nature cannot do so.

4)  Investigators must be trained to avoid inadvertent contamination or feeding of nonpublic case facts to suspects during interrogation. Professional investigators are aware that false confessions sometimes happen, and that confessions must always be independently verified and corroborated. A confession that cannot withstand objective evaluation should not be accepted.

Investigators can reduce the number of false confessions and wrongful convictions by embracing the following maxim: “Confession is not the end of the investigation.” F. Inbau and J. Reid, Criminal Interrogation and Confessions (1st ed. 1962).  

Source: R. A. Leo, Practical Aspects of Rape Investigation, Ch. 12

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