REGULAR ARTICLE Revisiting the False Confession 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 trial, 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 police interrogators and examining videotaped interrogations. In addition, forensic experts can be instrumental in contributing to three legal solutions that we propose to the false confession problem: a constitutional approach, an evidence law 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 sexual assault. 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 consent, 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, “Making a Murderer.”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 admission 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 privilege 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 Exonerations 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 witness 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 Innocence Project, 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.