REGULAR ARTICLE Revisiting the False Problem

Viviana Alvarez-Toro, MD, and Cesar A. Lopez-Morales, JD

Despite the existence of important safeguards in our criminal legal system, innocent suspects often succumb to forceful and deceptive interrogation techniques. Among those over-represented members of the false confessor population are minors, people with cognitive and intellectual disabilities, and those with psychiatric disorders. Some of the confessions made by these at-risk populations can hardly be considered voluntary or reliable, but they are generally admitted at , regardless of their prejudicial effect. Forensic psychiatrists should become more involved in the overall process of evaluating confessions, not only testifying in courts, but also assisting policymakers in reforming the interrogation process and influencing the legal process. Thus, forensic psychiatrists may give their expert opinion by providing proper training to interrogators and examining videotaped interrogations. In addition, forensic experts can be instrumental in contributing to three legal solutions that we propose to the problem: a constitutional approach, an approach, and a jury instruction approach. Each of these approaches requires forensic psychiatrists to help judges and jurors understand the coercive nature of the interrogation process and its effect on suspects’ behavior.

J Am Acad Psychiatry Law 46:34–44, 2018

On March 1, 2006, Brendan Dassey, a 16-year-old the conviction.2 The judge found that the investiga- high school student with a below-average IQ and tors coerced Mr. Dassey into confessing through cognitive limitations, confessed to witnessing and constitutionally impermissible promises, rendering participating in the November 2005 rape and mur- the statements involuntary and inadmissible. On ap- der of Teresa Halbach in Wisconsin. He was charged peal, a three-judge panel of the U.S. Court of Appeals as an adult with first-degree intentional homicide, for the Seventh Circuit affirmed the magistrate mutilation of a corpse, and first-degree . judge’s decision. Nevertheless, on December 8, He recanted his confession after claiming he incrim- 2017, the Seventh Circuit sitting en banc reversed the inated himself because the investigators “got into decision and held that although Brendan was a juve- [my] head” after a series of long, stressful, and highly nile who was alone when interrogated, his confession coercive interrogations.1 His confession was admit- was voluntary and admissible because he met with ted into evidence. the interrogators voluntarily and with his mother’s On April 25, 2007, Mr. Dassey was found guilty , understood his constitutional rights, and on all counts and was sentenced later to life in prison. was not subject to any physical coercion. Brendan’s After unsuccessful appeals in the Wisconsin courts, conviction was allowed to stand.3 His lawyers filed a habeas claim in federal court. On The story of Brendan Dassey, up to his conviction August 12, 2016, a federal magistrate judge vacated and sentencing, was well documented in the Netflix documentary series, “.”1 It is un- Dr. Alvarez-Toro is a Resident in the University of Maryland/Shep- clear whether he falsely confessed, but his case ulti- pard Pratt Psychiatry Residency Program, Baltimore, MD. Mr. Lopez- Morales is a Trial Attorney in the U.S. Department of Justice, Wash- mately highlights some of the intrinsic flaws of the crim- ington, DC. A version of this paper was presented at the 46th Annual inal justice system. The of a coerced (and Meeting of the American Academy of Psychiatry and the Law, October perhaps unreliable) confession by a 16-year-old with 22–25, 2015, Ft. Lauderdale, FL. Address correspondence to: Viviana Alvarez-Toro, MD, 701 W. Pratt Street, Room 476 Baltimore, Mary- cognitive limitations reveals a system that focuses al- land 21201. Email: [email protected]. most exclusively on the procedural fairness of police Disclosures of financial or other potential conflicts of interest: None. interrogations and overlooks their substantive fairness.

34 The Journal of the American Academy of Psychiatry and the Law Alvarez-Toro and Lopez-Morales

In a 2009 article in the Journal, Richard Leo stated unreliable and, hence, inadmissible. The court did that a false confession consists of an admission to a not consider an interrogator’s false “promises of fa- crime that the confessor did not commit and a post- vor” to be objectionable, per se. Instead, it established admission narrative of how and why the crime oc- a “voluntariness” evidentiary rule and excluded a curred.4 One may ask, why would an innocent per- confession on the grounds of reliability.9 son confess to a crime he did not commit, let alone Over a century later, the U.S. Supreme Court held provide a detailed description of it? Many would find in Bram v. United States10 that involuntary confes- it counterintuitive that individuals could act against sions violated the Fifth Amendment against their self-interest in this manner. As a result, many self-incrimination. Bram’s interrogators suggested false confessors are wrongfully convicted. For this that he must have had an accomplice and that con- reason, forensic psychiatrists must explain the fessing would allow him to share the blame instead of unique interplay between coercive interrogations leaving it “on [his] own shoulders.” (Ref. 10, p 539; and human behavior. Ref. 11, p 12) His interrogators implied that incrim- The National Registry of has re- inating someone else would lessen his punishment. ported more than 2,155 wrongfully convicted indi- The Court held that the interrogators’ actions vio- viduals who have been exonerated in the United lated Bram’s constitutional right not to be compelled States since 1989.5 In 2012, the number of exoner- to be a against himself and overturned his ations since 1989 stood at 873. Since then, the Reg- conviction. The Court stated that “a confession, to istry has reported new exonerations at a rate of 200 a be admissible, must be free and voluntary: that is, year.5 According to a report titled “Exonerations in it must not be extracted by any sort of threats or the United States, 1989–2012,” false confessions violence, nor obtained by any direct or implied were present in 15 percent of exonerations and in 25 promises, however slight, nor by the exertion of percent of homicide exonerations.6 any improper influence.”10 According to The , the leading In Brown v. Mississippi,12 three African-American effort in the United States to exonerate falsely con- men confessed to murder after police officers phys- victed felons, false confessions were present in 31 ically abused and tortured them. The Court over- percent of DNA-exonerated cases and 63 percent of turned the convictions. The self-incrimination homicide DNA exonerations between 1989 and clause relied upon in Bram was not applicable to 7 2016. This increase in the DNA-exonerated popu- the State of Mississippi, because the Bill of Rights lation suggests that one of the reasons that false con- had not yet been incorporated into the Fourteenth fessions are not easily disproven is because of the Amendment, which applies to the states. Conse- 5 great weight that the justice system places on them. quently, the Court announced a new voluntariness Because these percentages reflect only the number of test rooted in the Due Process Clause of the Four- exonerated false confessors, it is safe to assume that teenth Amendment. In accordance with Brown, the actual number of false confessions is much courts began to exclude involuntary confessions 4 higher. According to Leo, these reported cases rep- because they violated the defendant’s due process resent the proverbial tip of the iceberg. In many rights, as opposed to the privilege against self- cases, there is no DNA to test, and postconviction incrimination.13 relief is not pursued because of lost or destroyed ev- 7 Despite the development of the voluntariness doc- idence. Although the exonerations have continued trine, many defendants confessed to crimes because to increase steadily in recent years, little has been they were unaware of their constitutional rights. This done to solve the related problems of false confession was the case with Ernesto Miranda, who was char- and conviction. ged with the kidnap and rape of an 18-year-old woman.14 After two hours of interrogation, Miranda A Historical Background of False signed a confession and swore that he was doing so Confessions voluntarily and with full knowledge of his legal Our understanding of involuntary confessions has rights. He was convicted. In the landmark case of evolved with the passage of time. By the end of the Miranda v. Arizona, the Supreme Court overturned 18th century, an English court ruled in Rex v. War- Miranda’s conviction because he was not informed ickshall6 that involuntary confessions were inherently of his constitutional rights, specifically his rights to

Volume 46, Number 1, 2018 35 False Confessions counsel and to remain silent.14 The Court estab- but they are important elements that, when com- lished a new framework requiring a series of warnings bined with the specific forces at play in an interroga- of the suspect’s constitutional rights to be provided at tion, could support a false confession claim. There the outset of a custodial interrogation. In arriving at are certain groups we call at-risk populations that are this framework, the Court shifted its attention away especially vulnerable to interrogations. Forensic ex- from those particularized inquiries that focused on perts should explain the vulnerability of these groups the reliability and trustworthiness of confessions and, in relation to the coercive tactics used. instead, emphasized the procedural fairness of police These at-risk populations include minors, persons interrogations. with cognitive and intellectual disabilities, and those After Miranda, courts rarely have excluded confes- with psychiatric disorders.4,19–21 Minors, who are sions because they violate the Due Process Clause. often questioned without their parents’ knowledge They have rejected the idea of a bright-line rule pro- or presence, comprise over one-third of false confes- scribing threats of violence or promises of leni- sors.22 In a 2009 commentary in the Journal, Robert ency.13,15 Many courts have found deceit, bluffing, Weinstock and Christopher Thompson explained and trickery to be permissible.13,15–17 Threats or that adolescents and juveniles are vulnerable to police promises are now considered in light of the totality of interrogations because of cognitive deficits and psy- the circumstances, such as the use of coercive tactics, chosocial immaturity.20 Adolescents generally have a the suspect’s behavior and state of mind, age, aca- rudimentary understanding of their rights and are demic preparation, experiences with the police, and more likely to be coerced into agreeing with author- place and length of interrogation.13 ity figures.20,23 Similarly, adolescents are more likely to value short-term benefits (i.e., finishing the inter- Interrogation-Induced Confessions and rogation and leaving the detention facility) over At-Risk Populations long-term benefits (i.e., refusing to confess, to have a 20 Scholars, such as Leo in his 2009 article,4 generally better chance of being acquitted). Mental illness is another prominent feature in false refer to three types of false confessions: voluntary, 4,21 compliant, and persuaded. We focus on the last two confession cases. When some of these predispos- categories, which we call interrogation-induced false ing factors are combined, as seen in justice-involved confessions. A compliant false confession occurs youths with mental illnesses, a heightened risk of a false confession is created in the interrogation when the suspect knowingly succumbs to “police co- 24 ercion, stress, or pressure to achieve some instrumen- room. tal benefit” (Ref. 4, p 338) to finish and escape the stressful experience of an interrogation, take advan- The Coercive Nature of the Interrogation tage of a perceived promise of leniency, or avoid a Process feared outcome or punishment. In contrast, a per- Leo identified three “sequential errors” (Ref. 4, suaded false confession occurs when a detective p 333) that often lead to false interrogation-induced causes a suspect to second guess his memory and confessions and wrongful convictions. First, detec- become persuaded, by some rational explanation tives presume the suspect to be guilty (i.e., a misclas- from the detective, that it is more likely than not that sification error). Then, they subject the suspect to a the suspect committed the crime. “guilt-presumptive, accusatory interrogation” (Ref. In a 2010 commentary in the Journal,18 Deborah 4, p 333) that combines coercive elements (i.e., co- Davis and Richard Leo advised forensic experts not ercion error). Finally, detectives secure the confes- to assume that they can support a false confession sion and obtain a postadmission narrative that is claim without explaining the coercive nature of in- jointly constructed by supplying the suspect with terrogations. We agree that the most effective type of previously unknown facts of the crime (i.e., contam- is one that evaluates the process and its ination error). Expert testimony explaining these er- influence on the defendant’s behavior, what Davis rors is crucial to dispel the skepticism surrounding and Leo called situation-based testimony. Experts false confessions. should also be aware of any vulnerabilities of the Most law enforcement agencies in the United defendant. Cognitive deficiencies and psychiatric States are trained to use the .4,25 The disorders are not preconditions for false confessions, goal is to establish guilt by means of the defendant’s

36 The Journal of the American Academy of Psychiatry and the Law Alvarez-Toro and Lopez-Morales behavior early in the interrogation.4,26,27 Reid, a Studies on False Confessions expert, believed that a defendant’s guilt is Several researchers have studied the effects of in- manifested by signs of anxiety through body lan- 27 terrogation techniques in controlled environments. guage. An early interpretation of behavior fuels the For example, in 1996 Kassin and Kiechel30 devel- interrogator to pursue more direct techniques to 28 oped the “ALT key” paradigm in which participants elicit a confession. Although this strategy is effec- had to perform a computer task without hitting the tive in yielding confessions, a worrisome percentage ALT key on the computer keyboard. The participant of them is false, owing in great part to an intrinsic was told that hitting the key would cause the com- flaw in the approach: its main goal is to elicit anxiety puter to malfunction and lose the investigator’s data. while interpreting anxiety as a determinant of guilt.27 Invariably, the computer crashed, and the partici- Related interrogation techniques include maximi- pant was accused of hitting the key. The participant zation and minimization. During maximization, the was asked to sign a confession and a confederate was interrogator conveys the belief that the suspect is 11 told to testify. In cases where confederates agreed that guilty through bluffing and lying. By bluffing, in- terrogators claim that incriminating evidence exists the participant was innocent, 48 percent of partici- without directly implicating the suspect. By lying, pants nonetheless signed a confession. When confed- interrogators lead suspects to believe there is direct erates testified falsely that the participant pressed the evidence against them (i.e., DNA, eyewitnesses, ALT key, 94 percent of participants signed a confes- video recordings) and that there is no point in deny- sion. Internalization of guilt (i.e., belief that it is ing guilt.29 Paradoxically, suspects often confess be- more likely than not that the accused person com- cause they hope their innocence will ultimately be mitted the crime) increased from 12 percent to 55 percent when confederates introduced false evi- proven. Minimization techniques decrease anxiety 29,30 and belittle the severity of the crime through moral dence. increased both the likeli- justification.11 The interrogator often implies leni- hood of false confession and the internalization of guilt. ency, making the innocent suspect more prone to 29 confessing. Perillo and Kassin also used the ALT key para- As Leo points out, “[t]he custodial environment digm and divided the participants into five groups: and physical confinement are intended to isolate and false-witness evidence group, bluff group, false- disempower the suspect” (Ref. 4, p 335). The length witness evidence and bluff group, no-tactics control of the interrogation and the combination of tech- group, and witness-affirmed innocence control niques can result in both compliant and persuaded group. This experimental design targeted false confessions. With respect to compliant confessions, confessions and internalization of guilt when sus- suspects believe it is in their best interest to confess pects were faced with false evidence, bluffing (i.e., because denying the detectives’ accusations will only suggesting that there is incriminating evidence make the situation worse. As Leo states, many sus- without directly implicating the suspect), and ex- pects are “worn down” and “fatigued” (Ref. 4, p 335) culpatory evidence. by the interrogation and believe that they can escape The control group (group 4) yielded 27 percent of this stressful and unpleasant experience by comply- false confessions compared with 36 percent of the ing with the interrogators’ wishes. With respect to innocence control group.29 Both groups displayed persuaded confessions, police officers may convince no internalization of guilt. When false evidence was suspects that no one will believe their innocence and planted (group 1), 79 percent confessed and 14 per- that their guilt has been clearly established. Suspects cent internalized their guilt. In the bluff setting could second-guess their memories and believe that (group 2), 87 percent confessed and 7 percent inter- they committed the crime, a process known as “in- nalized guilt. When both false evidence and bluffing ternalization [of guilt]” (Ref. 30, p 126). were combined (group 3), confessions remained high Without attempting to distinguish between a false at 77 percent and internalization rose to 31 percent. or true confession, forensic psychiatrists can testify as In the bluffing scenario, participants were more to how the vulnerability of at-risk populations affects likely to confess, but less likely to internalize guilt, the relationship between intolerance of distress and because they believed that future exculpatory evi- rational analysis.18 dence would exonerate them.

Volume 46, Number 1, 2018 37 False Confessions

In a subsequent experiment, researchers evaluated plain their confidence levels. The overall accuracy diagnosticity, defined as the ratio of true to false con- rate was 54 percent, which is statistically indistin- fessions. Perillo and Kassin29 based their methodol- guishable from chance. Although the investigators ogy on the Russano et al.31 paradigm, which were more confident in their judgment, students ex- consists of a problem-solving task that participants hibited a higher accuracy rate (59%) than the inves- must complete alone and then with a confeder- tigators (48%). The students who listened to the au- ate.29,31 The confederate asks for help, although the diotapes had the highest accuracy rate (64%), participant has been instructed to perform the task whereas investigators watching videotapes were the alone. Those who refused to cheat were excluded, least accurate (42%). This result may be because in- thereby making all group participants guilty.29,31 In vestigators are trained to watch for certain manner- the control setting, the confederate did not ask for isms as indicators of guilt, which can distract from an help, so it was impossible to cheat.29 evaluator’s accuracy. Similarly, investigators are After completing the cheating variation, partici- trained to be suspicious of denials of guilt, which pants were subdivided into a bluff group and a con- predisposes them to confirmation and misclassi- trol group without bluffing.29 In the bluff group, the fication errors.33 investigator said that a hidden camera would be checked to confirm guilt or innocence. All partici- The Effects of False Confessions and the pants were asked to sign a confession and to explain Criminal Justice System the reasons as to why they confessed. In the innocent The studies cited show that accusatorial, rather condition, 27 percent confessed compared with 90 than inquisitorial, practices are preferable. Whereas 29 percent of the guilty group. The bluff condition inquisitorial practices tend to rely on extracting con- also increased the percentage of confessions: 45 per- fessions from a criminal defendant, an accusatorial cent in the control no-bluff condition confessed system requires that guilt be established “by evidence compared with 70 percent in the bluff condition. independently and freely secured,” a standard in- When measuring the interaction of both conditions, voked by Justice William Brennan’s dissenting opin- 87 percent of guilty controls confessed, whereas none ion in Colorado v. Connelly.34 This preference stems of the innocent controls did. Meanwhile, in the bluff from the proposition “that a system of groups, 93 percent of the guilty participants con- enforcement which comes to depend on the ‘confes- fessed, and 50 percent of the innocent participants sion’ will, in the long run, be less reliable and more falsely confessed. Consequently, bluffing, although subject to abuses than a system which depends on efficient in increasing confession rates, sacrifices extrinsic evidence independently secured through diagnosticity. skillful investigation.”35 In another experiment, Narchet et al.32 focused on An is likely to experience a how the interrogators’ can give rise to false higher number of wrongful convictions. Drizin and confessions. The researchers found that interrogators Leo36 conducted a longitudinal review of 125 exon- predisposed to believing that participants are guilty erated defendants in false confession cases. In their yield a higher number of confessions than those in a sample, 81 percent of false confessors who decided to no-bias control condition. Suspects who are pre- go to trial were wrongfully convicted. One likely ex- sumed guilty are subjected to more coercive interro- planation is that an admission “makes the other as- gation techniques and are more likely to confess, pects of a trial in court superfluous, and the real trial, even falsely, confirming the interrogator’s initial bias. for all practical purposes, occurs when the confession Finally, Kassin et al.33 identified a critical compo- is obtained” and “amounts in effect to a waiver of the nent of false confessions: once elicited, police officers right to require the state at trial to meet its heavy cannot tell them apart from true confessions. In their ” (Ref. 37, p 316). study, male inmates were asked to confess to the Heavy reliance on interrogation-induced confes- crime they were arrested for and a crime invented by sions comes at a cost. Interrogations are designed to researchers. These standardized interviews were produce confessions, and once that goal is achieved, video and audio recorded. A group of college stu- there is little incentive to continue investigating. In- dents and one of police investigators were asked to vestigators rarely pursue other leads that could reveal determine whether the individual was guilty and ex- or further (and perhaps more

38 The Journal of the American Academy of Psychiatry and the Law Alvarez-Toro and Lopez-Morales reliable) incriminating evidence. The confession of- It is no surprise, then, that “[s]ince Miranda, the ten becomes the “smoking gun” against the defen- Supreme Court has only rarely reversed convictions dant, forcing him to plead guilty or pursue exculpa- on involuntariness grounds.”39 False confessions are tory evidence. To the extent that exculpatory often obtained in full compliance with Miranda. In- evidence exists, it is generally weighed against the nocent suspects often believe they will convince the suspect’s confession, which many presume to be ac- police of their innocence if they waive their rights curate. As Kassin stated in the television documen- and show they have nothing to hide. The solution tary The Central Park Five, “Once that confession is in focusing on the procedural fairness of the interro- taken and once that confession is in the air, it cor- gation process, which was the intent of the Miranda rupts everything else. And confessions will trump framework, and on the reliability and trustworthi- DNA, confessions will change ’ testimony, ness of the confessions themselves. confessions are irresistibly persuasive and almost the effects can’t be reversed.”38 Recommendations for Addressing the Certainly, we are not saying that confessions False Confession Problem should be discouraged altogether. Truthful confes- sions enhance trustworthiness of the system by con- Practical or De Facto Solutions tributing to the of innocent people and We recommend that interrogations (not just con- the prevention of wrongful convictions. Law profes- fessions) be videotaped to preserve an objective and sor and former federal judge Paul Cassell has stated reviewable record for judges, jurors, and forensic ex- that “truthful confessions protect the innocent by perts.36 Experts can use these videotaped interroga- helping the criminal justice system separate a guilty tions to analyze the interaction between the coercive suspect from the possibly innocent ones, while the tactics and the suspect’s behavior and vulnerabilities. failure to obtain a truthful confession creates a risk of Transparency protects defendants from police mis- ” (Ref. 39, p 498). Cassell draws a distinction conduct and shields police from false allegations. between false and lost confessions. In the first cate- Empirical evidence also highlights the need to gory, innocents are at risk of being wrongfully modify the interrogation process, particularly with convicted as a result of an untruthful confession. at-risk populations. A suspect’s presumption of In the second category, failure to obtain a truthful innocence can hardly be reconciled with the guilt- confession from a guilty party puts innocents at presumptive, accusatory nature of most interro- risk of being wrongfully convicted. A reduction in gations. Interrogators should identify whether addi- the number of false and lost confessions inevitably tional precautions should be taken. Great strides results in a reduction of wrongful convictions and have been made in Broward County, FL, where po- false acquittals. lice interrogators receive specialized training to iden- Although it is perhaps the most relevant safeguard tify vulnerable individuals and tailor interrogations against involuntary confessions, the Miranda frame- to their particular needs.36 Interrogators must notify work does little, if anything, to regulate the interro- their supervisors, explain carefully to the suspect his gations themselves. Once the rights are waived, Mi- constitutional rights, and avoid, to the greatest extent randa becomes “virtually worthless as a safeguard possible, asking leading questions. Before any cogni- against the specific interrogation practices that were tively limited individual is charged with a crime, elic- characterized as abusive in the Miranda decision . . .” ited statements undergo a postconfession analysis by (Ref. 39, p 540). a supervisor or a panel of specialists to assess volun- The effect of Miranda has been to “insulate the tariness and reliability.36 These measures, if ex- resulting confessions from claims that they were co- panded nationwide, would offer an added layer of erced or involuntary” (Ref. 40, p 744). Courts have protection to vulnerable innocent suspects. moved away from individualized and particularized By adopting these measures, the government is inquiries into the admissibility of confessions and more likely to rely on admissible confessions, in- toward a generalized and highly technical approach crease the probability of a conviction, and avoid the that focuses almost exclusively on whether the police related waste of taxpayer funds. It was recently re- warned suspects of their rights and whether the sus- ported that wrongful convictions cost California pects knowingly and voluntarily waived such rights. nearly $220 million from 1989 through 2012: spe-

Volume 46, Number 1, 2018 39 False Confessions cifically, $80 million in incarceration costs, $68 mil- tics.9,43 This focus is different from the constitu- lion in lawsuit settlements, and $68 million on tional test, which is ultimately concerned with state and appeals.41 action (i.e., ). Finally, Weinstock and Thompson20 recommen- We agree with Professor Mark Godsey and other ded that adolescents be interrogated with an attorney legal scholars who have advocated for an admissibil- present. Unlike parents, attorneys can better apprise ity determination based on compulsion and rooted juveniles of their rights and the legal consequences of in the self-incrimination clause.43 Godsey proposes waiving them. This recommendation can be ex- an objective penalties test, which allows for the sup- tended to other vulnerable suspects, such as those pression of any confession elicited through the im- with psychiatric disorders and cognitive limitations. position of a penalty to provoke speech or punish Someone may argue that requiring the presence of an silence. This approach considers whether the inter- attorney would reward suspects who validly waived rogator imposed sanctions on the suspect’s exercise their rights and confessed to wrongdoing. This posi- of the right to remain silent by changing his baseline tion misunderstands the coercive nature of interro- condition or status quo to his detriment. The objec- gations and fails to consider the predisposing charac- tive penalties test is consistent with the Constitu- teristics of vulnerable suspects. For this reason, tion’s focus on police misconduct. We will not ex- forensic experts need to “contextualize . . . the defen- plore the legal merits of this test, because that would dant’s behavior and motivations” and help judges require a prolonged analysis of the relevant case law and juries understand the factors affecting the reli- and the historical developments of confession law. ability of interrogation-induced confessions (Ref. 42, However, there are some criticisms that forensic ex- p 79). perts and legal practitioners should acknowledge. Theoretical or De Jure Solutions One is that a stricter constitutional rule, such as the objective penalties test or a categorical prohibi- It is important to devise a workable framework tion on the use of maximization and minimization that supplements Miranda. We consider three alter- techniques, would be unnecessarily burdensome on natives that can be implemented independently or law enforcement officials. These critics would rather together and require different contributions from fo- maintain a flexible constitutional rule, such as the rensic experts: the constitutional, evidentiary, and totality-of-the-circumstances test, and rely on cross- jury instruction approaches. The constitutional and examinations at trial to cast doubt on the reliability evidentiary approaches require an admissibility de- of confessions. We think that flexibility in this termination at the pretrial stage. The jury instruction instance does not protect adequately a defendant’s approach requires a credibility determination at trial. right to remain silent and does not provide guid- Constitutional Approach ance to police officers on what is appropriate dur- The U.S. Supreme Court has identified two ing an interrogation. Moreover, relying on cross- constitutional rights supporting the voluntariness examinations as a solution to the false confession doctrine: the right in any criminal case not to be problem overlooks the undue weight that jurors compelled to be a witness against oneself (the priv- place on confessions and ignores the fact that over ilege against self-incrimination) and the right not to 95 percent of felony convictions result from guilty be deprived of liberty without due process of pleas before trial.6 law.10,12,13,43 Whatever is left of the traditional vol- Another criticism is that a constitutional rule untariness doctrine is exclusively based now on the based on compulsion, such as Godsey’s objective Due Process Clause.13 penalties test, does not automatically ban all coer- The modern view is that confessions are analyzed cive tactics and does not consider psychological under a totality-of-the-circumstances test. We think pressure an impermissible penalty.43 We think, an objective rule based on the self-incrimination however, that coercive techniques that do not re- clause is needed. As mentioned earlier, the voluntari- sult in compulsion (i.e., penalizing the suspect’s ness doctrine has its origin in the English case of Rex right to remain silent) are best evaluated outside v. Warickshall.8,9 This doctrine was an evidentiary the confines of the Constitution and in a setting in rule that focused on reliability and was indifferent which experts can provide valuable testimony be- toward the lawfulness of coercive interrogation tac- fore a judge or jury. In addition, the Due Process

40 The Journal of the American Academy of Psychiatry and the Law Alvarez-Toro and Lopez-Morales

Clause is available to proscribe egregious interro- The exclusion of unreliable confessions will incen- gation methods that “shock the conscience.”44 tivize detectives to continue investigating other as- Therefore, only those techniques that compel in- pects of the case, such as witness testimony and phys- criminating statements (i.e., self-incrimination ical evidence. The flexibility of Rule 403 could clause) or shock the conscience by “employing ex- nonetheless be a double-edged sword. It allows treme psychological pressure or outrageous tricks” judges to make an informed decision regarding the (i.e., contrary to the Due Process Clause) should confession’s reliability based on the testimony of fo- be prohibited as a matter of constitutional law rensic experts, but too much flexibility allows judges (Ref. 43, p 539). to err on the side of admitting the confession to avoid a juryless minitrial at the pretrial stage. However, Evidentiary Approach given the overwhelming number of guilty pleas and This approach requires judges to analyze the entire the dispositive effect of confessions, a judge’s failure interrogation and weigh relevant factors to deter- to exclude unreliable statements can be overly preju- mine whether the confession is too unreliable to be dicial to the defendant. admitted into evidence. Relevant factors include the We also propose a new rule of evidence (at the length and place of interrogation, the interrogator’s federal and state level) establishing a burden-shifting conduct, the suspect’s state of mind and behavior, framework at the pretrial stage where courts may and whether the suspect is a member of an at-risk hold enhanced evidentiary hearings to rule on the population. This analysis often requires forensic ex- exclusion of confessions. First, defendants must perts to testify at an evidentiary hearing to assist show by a preponderance of the evidence (i.e., more judges in their admissibility determination. likely than not) that, at the time of the confession, A criticism of this approach is that it may impinge they were members of a protected class: juveniles, on the jury’s fact-finding role. However, judges fre- individuals with cognitive and intellectual disabili- quently evaluate the and reliability of evi- ties, or persons with psychiatric disorders. In the case dence. One example is the Daubert standard, codi- of cognitive limitations and psychiatric disorders, de- fied in Federal Rule of Evidence 702, to determine fendants must evidence, such as expert testi- the admissibility of expert testimony.45,46 This type mony, that their specific condition or illness is of the of reliability inquiry is part of the judge’s gatekeeping kind that makes them vulnerable to giving a false function of excluding prejudicial evidence. confession. This type of testimony resembles what One solution under this approach is to expand the Davis and Leo18 call disposition-based testimony use of Federal Rule of Evidence 403 and its equiva- and what Watson et al.21 call the medical model. lent state counterparts. Rule 403 provides: “The Second, defendants must establish that they were court may exclude relevant evidence if its probative subject to coercive interrogation tactics (i.e., maximi- value is substantially outweighed by a danger of one zation and minimization). The drafters of this evi- or more of the following: unfair prejudice, confusing dentiary rule can provide either an exhaustive list of the issues, misleading the jury, undue delay, wast- tactics or leave it to the judge’s discretion. Forensic ing time, or needlessly presenting cumulative evi- clinicians can testify about the defendant’s suscepti- dence.”47 Empirical evidence suggests that jurors of- bility to the interrogation techniques used. If the ten presume guilt when there is a confession, even in defendants prove they are members of a protected light of overwhelming exculpatory evidence. To class subjected to coercive techniques likely to pro- avoid this prejudicial impact, judges can exclude un- duce unreliable confessions, then a rebuttable pre- reliable confessions because their probative value is sumption is established that the interrogation- substantially outweighed by unfair prejudice. Rule induced confession is unreliable and inadmissible. 403 can be applied as well to unreliable confessions To rebut this presumption, the prosecution must obtained in the absence of police misconduct, such as put forth evidence that corroborates the confession’s in Colorado v. Connelly, where a defendant with men- reliability and trustworthiness. The government tal illness (later declared incompetent to stand trial) must show that there are circumstantial guarantees approached a police officer, waived his constitutional of trustworthiness supporting the confession, which rights, and confessed to murder because God ordered is the evidentiary standard used for the residual ex- him to.48 ception to (Federal Rule of Evidence 807).49

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The government may present, for example, extrinsic We recommend the same be done with confession evidence (circumstantial or direct) linking the defen- evidence. Jurors should understand how different dant to the alleged offense. Only after the trial court factors and circumstances, such as the place, stress, finds by a preponderance of the evidence that there and length of the interrogation; the use of coercive are sufficient indicators of reliability corroborating techniques; and the mental health/age/cognitive ca- the confession, should the statements be admitted pacity of the defendant, can affect the confession’s into evidence. If the government is unable to over- reliability. The jury instructions should be tailored to come the rebuttable presumption, then the state- the facts of each criminal case and explain that false ments must be excluded. confessions are not unique to at-risk populations. The establishment of a rebuttable presumption States can draft their own model instructions and under this approach should deter police officers from modify them to reflect new research. These instruc- employing coercive techniques against at-risk popu- tions should be developed with the collaboration of lations and from relying exclusively on interrogation- behavioral experts, psychiatrists, judges, prosecutors, induced confessions. The deterrent effect of this ap- attorneys, law school professors, and other proach requires that officers be properly trained to legal practitioners. The federal courts of appeals may identify members of a protected class and consider also include similar instructions as part of their model criminal jury instructions. the reliability of statements made during an interro- One criticism is that jurors may be less likely to gation. This approach, which is based in part on convict because they can interpret these instructions Justice Brennan’s powerful dissent in Connelly,is 51 to mean that confessions are unreliable, per se. This consistent with our system’s distrust of inquisitorial unintended effect can be mitigated by carefully draft- practices and its preference for accusatorial prac- 34 ing neutral instructions. The instructions will pro- tices. This kind of rule would be more effective in vide incentive to investigators to build stronger cases preventing the conviction of a “mentally ill defen- by relying on different types of evidence, not just dant based solely upon an inherently unreliable con- confessions. fession.”34 Finally, since evidentiary rules can vary across states, this approach would allow states to act as laboratories of democracy and devise creative so- Conclusion lutions to reduce the number of both false and lost To overcome the mistaken belief that individuals confessions. do not falsely confess, we must understand the coer- cive nature of the interrogation process. We have Jury Instruction Approach identified three legal approaches that promote this Another solution is the development of a special understanding and that can be implemented either set of jury instructions to educate jurors about con- independently or together. fession evidence. This type of solution is not unprec- Justice Brennan once said: edented. In August 2011, the Supreme Court of If our free society is to endure, and I know it will, those who New Jersey issued a unanimous decision in State v. govern must recognize that the Framers of the Constitution Henderson50 that expanded the state’s jury instruc- limited their power to preserve human dignity and the air of freedom which is our proudest heritage. The task of pro- tions concerning eyewitness identification evidence tecting these principles does not rest solely with nine Su- in criminal cases. The court provided an extensive preme Court Justices, or even with the cadre of state and review of current scientific evidence on the reliability federal judges. We all share the burden [Ref. 52, p 20]. of eyewitness testimony. The court concluded that The forensic community should become more in- the existing jury instructions on eyewitness identifi- volved in highlighting the intrinsic flaws of the inter- cation evidence did not protect criminal defendants rogation process and the circumstances giving rise to adequately, deter police misconduct, or educate ju- false confessions. The role of forensic experts should rors as to how to evaluate identification evidence. not be limited to testimony in individual cases. The court tasked different groups with drafting Whether it is by discussing the topic in academic new model instructions explaining how different settings, assisting policymakers to reform the inter- factors can affect human memory and lead to rogation process, participating in the development of misidentifications. evidentiary rules and jury instructions, or filing amici

42 The Journal of the American Academy of Psychiatry and the Law Alvarez-Toro and Lopez-Morales curiae briefs to influence important legal decisions, 20. Weinstock R, Thompson C: Commentary: ethics-related impli- cations and neurobiological correlates of false confessions in juve- forensic psychiatrists can play a privileged role in niles. J Am Acad Psychiatry Law 37:344–8, 2009 transforming our criminal justice system. 21. Watson C, Weiss KJ, Pouncey C: False confessions, expert testi- If the Constitution is truly about protecting the mony, and admissibility. J Am Acad Psychiatry Law 38:174–86, innocent,53 then the false confession problem is one 2010 22. Redlich AD: The susceptibility of juveniles to false confessions that can no longer be neglected in a country commit- and false guilty pleas. Rutgers L Rev 62:943–57, 2010 ted to the rule of law. 23. False Confessions or Admissions. Available at: https://www. innocenceproject.org/causes/false-confessions-admissions/. 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45. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 able at: http://www.npr.org/sections/health-shots/2016/01/26/ (1993) 464300484/a-judges-guidance-makes-jurors-suspicious-of-any- 46. Fed. R. Evid. 702 eyewitness. Accessed January 17, 2018 47. Fed. R. Evid. 403 52. Brennan WJ: My life on the court, in Reason and Passion: Justice 48. Colorado v. Connelly, 479 U.S. 157–171 (1986) Brennan’s Enduring Influence. Edited by Rosenkranz EJ, 49. Fed. R. Evid. 807 Schwartz B. New York: W. W. Norton & Company, Inc., 1997, 50. State v. Henderson (N.J. 2011) pp 17–21 51. Greenfieldboyce N: A judge’s guidance makes jurors suspici- 53. Amar AR: The Constitution and : First Prin- ous of any eyewitness. NPR News. January 26, 2016. Avail ciples. New Haven, CT: Yale University Press, 1997

44 The Journal of the American Academy of Psychiatry and the Law