Recently, in a number of high-profile cases, defendants who were prosecuted, convicted, and sentenced on the basis of false confessions have been exonerated through DNA evidence. As a historical matter, confession has played a prominent role in religion, in psychotherapy, and in criminal law-where it is a prosecutor's most potent weapon. In recent years, psychologists from the clinical, personality, developmental, cognitive, and social areas have brought their theories and research methods to bear on an analysis of confession evidence, how it is obtained, and what impact it has on judges, juries, and other people. Drawing on individual case studies, archival reports, correlational studies, and laboratory and field experiments, this monograph scrutinizes a sequence of events during which confessions may be obtained from criminal suspects and used as evidence. First, we examine the preinterrogation interview, a process by which police target potential suspects for interrogation by making demeanor-based judgments of whether they are being truthful. Consistent with the literature showing that people are poor lie detectors, research suggests that trained and experienced police investigators are prone to see deception at this stage and to make false-positive errors, disbelieving people who are innocent, with a great deal of confidence. Second, we examine the Miranda warning and waiver, a process by which police apprise suspects of their constitutional rights to silence and to counsel. This important procedural safeguard is in place to protect the accused, but researchers have identified reasons why it may have little impact. One reason is that some suspects do not have the capacity to understand and apply these rights. Another is that police have developed methods of obtaining waivers. Indeed, innocent people in particular tend to waive their rights, naively believing that they have nothing to fear or hide and that their innocence will set them free. Third, we examine the modern police interrogation, a guilt-presumptive process of social influence during which trained police use strong, psychologically oriented techniques involving isolation, confrontation, and minimization of blame to elicit confessions. Fourth, we examine the confession itself, discussing theoretical perspectives and research on why people confess during interrogation. In particular, we focus on the problem of false confessions and their corrupting influence in cases of wrongful convictions. We distinguish among voluntary, compliant, and internalized false confessions. We describe personal risk factors for susceptibility to false confessions, such as dispositional tendencies toward compliance and suggestibility, youth, mental retardation, and psychopathology. We then examine situational factors related to the processes of interrogation and show that three common interrogation tactics-isolation; the presentation of false incriminating evidence; and minimization, which implies leniency will follow-can substantially increase the risk that ordinary people will confess to crimes they did not commit, sometimes internalizing the belief in their own culpability. Fifth, we examine the consequences of confession evidence as evaluated by police and prosecutors, followed by judges and juries in court. Research shows that confession evidence is inherently prejudicial, that juries are influenced by confessions despite evidence of coercion and despite a lack of corroboration, and that the assumption that "I'd know a false confession if I saw one" is an unsubstantiated myth. Finally, we address the role of psychologists as expert witnesses and suggest a number of possible safeguards. In particular, we argue that there is a need to reform interrogation practices that increase the risk of false confessions and recommend a policy of mandatory videotaping of all interviews and interrogations.

https://journals.sagepub.com/doi/pdf/10.1111/j.1529-1006.2004.00016.x

The Psychology of Confessions A Review of the Literature and Issues

Recent DNA exonerations have shed light on the problem that people sometimes confess to crimes they did not commit. Drawing on police practices, laws concerning the admissibility of confession evidence, core principles of psychology, and forensic studies involving multiple methodologies, this White Paper summarizes what is known about police-induced confessions. In this review, we identify suspect characteristics (e.g., adolescence; intellectual disability; mental illness; and certain personality traits), interrogation tactics (e.g., excessive interrogation time; presentations of false evidence; and minimization), and the phenomenology of innocence (e.g., the tendency to waive Miranda rights) that influence confessions as well as their effects on judges and juries. This article concludes with a strong recommendation for the mandatory electronic recording of interrogations and considers other possibilities for the reform of interrogation practices and the protection of vulnerable suspect populations.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1596284_code797450.pdf?abstractid=1483878&type=2

Police-Induced Confessions: Risk Factors and Recommendations

/pdf/police-induced-confessions-risk-factors-and-recommendations-316jdprxc5.pdf

Police-induced confessions: risk factors and recommendations.

The Central Park jogger case and other recent exonerations highlight the problem of wrongful convictions, 15% to 25% of which have contained confessions in evidence. Recent research suggests that actual innocence does not protect people across a sequence of pivotal decisions: (a) In preinterrogation interviews, investigators commit false-positive errors, presuming innocent suspects guilty; (b) naively believing in the transparency of their innocence, innocent suspects waive their rights; (c) despite or because of their denials, innocent suspects elicit highly confrontational interrogations; (d) certain commonly used techniques lead suspects to confess to crimes they did not commit; and (e) police and others cannot distinguish between uncorroborated true and false confessions. It appears that innocence puts innocents at risk, that consideration should be given to reforming current practices, and that a policy of videotaping interrogations is a necessary means of protection.

/pdf/on-the-psychology-of-confessions-does-innocence-put-3xbyft8tbj.pdf

On the psychology of confessions: does innocence put innocents at risk?

By questionnaire, 631 police investigators reported on their interrogation beliefs and practices - the first such survey ever conducted. Overall, participants estimated that they were 77 percent accurate at truth and lie detection, that 81 percent of suspects waive Miranda rights, that the mean length of interrogation is 1.6 hours, and that they elicit self-incriminating statements from 68 percent of suspects, 4.78 percent from innocents. Overall, 81 percent felt that interrogations should be recorded. As for self-reported usage of various interrogation tactics, the most common were to physically isolate suspects, identify contradictions in suspects' accounts, establish rapport, confront suspects with evidence of their guilt, and appeal to self-interests. Results were discussed for their consistency with prior research, policy implications, and methodological shortcomings.

Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs

This article summarizes recent developments in constitutional law relevant to the Miranda warning. We describe the origins of the warning, concerns about the use of the Miranda warning, perspectives on the utility of the warning, and the relevance of the warning. We describe how the warning has changed over time, requirements for administering the warning, and procedures that police use in delivering the warning and obtaining confessions. We review case law relevant to "coerced" Miranda waivers and confessions, changes over time in the court's interpretation of what constitutes "coercion," use of the warning with special populations, and the recent focus in case law on individual factors that might impair Miranda comprehension. We review empirical research on factors associated with deficits in Miranda comprehension. We integrate case law rulings and empirical research into suggested approaches to forensic assessment of Miranda comprehension.

A review and update on the practice of evaluating Miranda comprehension.

Three studies of attorney-client decision making were conducted in a public defender office In studies 1 and 2 a structured interview was used to debrief attorneys regarding clients' participation in their cases Study 1 examined a sample of 200 felony and misdemeanor cases selected prospectively and resolved by any means (925% by plea); study 2 examined 200 felony and misdemeanor cases resolved by trial Study 3 involved debriefing both attroneys and clients regarding perceptions of client participation in 35 recently closed felony cases Attorneys doubted the competence of 8%–15% of clients charged with felonies and 3%–8% of clients charged with misdemeanors In cases involving clients of doubted competence, attorneys often responded by means other than referral to mental health professionals for competence evaluations As compared with clients whose competence was presumed, attorneys tended to view clients whose competence was doubted as less helpful and as less actively involved in their cases, but as actively involved in making key decisions Defendants' perceptions appeared to be roughly consistent with attorneys' perceptions, allaying concerns that attorneys' reports may be distorted in order to conform to expected norms

Client Abilities to Assist Counsel and Make Decisions in Criminal Cases: Findings from Three Studies

This is a study of work environment and work satisfaction among 601 community mental health service providers in the central United States. Aspects of the work environment may limit resources and strategies available to minimize staff burnout and maximize effective service delivery. Three human resource issues related to work satisfaction are reviewed: (a) unique constraints in rural mental health service delivery, (b) the role of paraprofessionals in service delivery, and (c) community-based services for seriously mentally ill individuals. This study demonstrates hypothesized associations between work environment and work satisfaction variables. The results suggest that staff members working with seriously mentally ill individuals are vulnerable to dissatisfaction and stress, and may require special skill and mastery enhancement.

Work satisfaction among community-based mental health service providers: the association between work environment and work satisfaction.

Confessional evidence typically is highly persuasive in criminal trials, especially when it is the primary source of evidence offered by the prosecution. Prior to obtaining a confession from a suspect, police investigators are obliged to provide a Miranda warning if they anticipate the confession will be introduced into evidence at a criminal trial. We describe the origins of the Miranda warning, perspectives on its utility and relevance, and how the warning has changed over time. Recent developments in constitutional law relevant to the Miranda warning and relevant to judicial determinations of the credibility of confessions are summarized. We review historical and recent case law relevant to “coerced” confessions and the credibility or trustworthiness of confessions. We describe changes over time in judicial interpretations of what constitutes coercion and credibility, issues with special populations, and the recent focus in case law on individual factors that might impair Miranda comprehension or that might impair a suspect's capacity to provide a credible or reliable confession. Empirical research on factors associated with impairments in Miranda comprehension and impairments related to the tendency in some individuals to provide false confessions is considered. Case law rulings and empirical research are integrated into suggested practices for the forensic assessment of abilities related to Miranda comprehension and the trustworthiness of confessions.


Keywords:

Crane v. Kentucky;
false confessions;
Grisso instruments;
juvenile comprehension of Miranda rights;
Miranda rights;
validity of confessions

Competence to Confess

The legal construct of competence to stand trial, or “adjudicative competence,” is based on the premise that some mentally disordered defendants have impaired abilities when compared with most defendants and that adjudication should be barred if these competence-related abilities are significantly impaired. Where the line is drawn between sufficient and insufficient abilities has important consequences: as a result of being adjudicated incompetent, defendants may be detained and treated involuntarily and their trials will be delayed. However, no studies have systematically compared the capacities of relevant groups of defendants. In this studv. 84 criminal defendants—42 of whom were hospitalized as incompetent and 42 of whom were regarded as unquestionably competent—were administered three instruments measuring capacity to understand legally relevant information. Incompetent defendants performed more poorly on all measures of understanding. Twenty-eight incompetent defendants were administered the measures a second time, after restoration to competence. Restored defendants improved their performance on all measures of understanding and their performance was similar to that of normal, competent defendants.

http://jaapl.org/content/jaapl/24/2/187.full.pdf

Lois B. Oberlander

Papers

A review and update on the practice of evaluating Miranda comprehension.

Client Abilities to Assist Counsel and Make Decisions in Criminal Cases: Findings from Three Studies

Work satisfaction among community-based mental health service providers: the association between work environment and work satisfaction.

Competence to Confess

Mentally Ill and Non-Mentally Ill Defendants’ Abilities to Understand Information Relevant to Adjudication: A Preliminary Study