FACTS An officer in Midvale, Utah was doing some paperwork in his patrol car when he was approached by man, later identified as Nitokalisi Fonua (hereinafter, “Nick”). Nick “looked suspicious,” mainly because he was “jittery, looking around and appeared to be very nervous.” Nick’s suspicion rating jumped dramatically when, for no apparent reason, he informed the officer he had stolen a white GMC Blazer, which he had parked nearby. Naturally, the officer asked Nick if he would show him the Blazer, and Nick said sure. When they located the Blazer, the officer walked over and looked inside. The first thing he saw was a sawed-off shotgun on the back seat. Then he noticed some markings on the shotgun, “markings that looked gang-related.” Nick told the officer that the key to the Blazer was inside his motel room at the Days Inn. Also in the room, he said, were his “cousins,” meaning “people he knows from the streets.” The officer asked Nick “if we could obtain the keys to the vehicle so we could turn those back over to the owner.” Nick said the keys “were in the room somewhere” and that he “didn’t care” if the officer went in and retrieved them. Nick also gave the officer his key to the room. When backup arrived at the motel, officers knocked on the door which was opened by a man named Vake. There were two other occupants: a woman and Kimoana, the defendant. By this time, the officers were aware that Kimoana—not Nick—had rented the room. The first thing the officers saw as the door opened was the woman pointing “an unidentified black object” at the wall. Concerned for their safety, they ordered the occupants to “show their hands.” Then they pat searched them. Finding no weapons (the “unidentified black object” was a television remote control), they holstered their guns. Although the officers already had Nick’s consent to search the room, they sought and obtained consent from Vake. During the search, they found a “long-barreled revolver” under a mattress. As the result, Kimoana was convicted of being a felon in possession of a firearm.

United States V. _____

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?

The Supreme Court's Miranda decision rested upon the unverified assumptions that suspects who received the now-famous warnings not only would possess information ensuring that subsequent waivers were "knowing and intelligent," but also would possess the tools necessary to resist the pressures inherent in custodial interrogation, thus ensuring that confessions were "voluntary." The flaws in these assumptions are exposed when they are applied to mentally retarded people. The authors of this Article tested a sample of mentally retarded individuals to determine if they could understand the Miranda warnings, then compared these results to those obtained for a control group of nondisabled people. The results show that, in contrast to the nondisabled controls, mentally retarded people simply do not understand the warnings. They do not understand the context in which interrogation occurs, the legal consequences of confessing, the meaning of the sentences comprising the warnings, or even the warnings' individual words. For mentally retarded people, the Miranda warnings are words without meaning.

Words without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects

/pdf/words-without-meaning-the-constitution-confessions-and-18dilo52aq.pdf

Words Without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects

Although many clients and lawyers now condemn hourly billing, there is heavy irony about this. Starting in the 1950s, both groups demanded the switch from fixed-fee billing to hourly billing. This paper explains why. Our economic model shows that societal changes, particularly the expansion of pretrial discovery in the 1938 Federal Rules of Civil Procedure, led inevitably to hourly billing. Hourly billing both efficiently shifted new risks away from lawyers and made legal services cheaper than under fixed fee billing. Our model suggests that, if litigation costs are relatively certain, then the efficient contract is a fixed-fee contract. Although such a contract imposes a cost risk on attorneys, the contract reduces moral hazard, that is, the incentive for an attorney to waste time. If instead cost uncertainty increases greatly and lawyers are more risk averse than their clients, then it becomes efficient to switch to hourly billing. Hourly billing will reduce risk for the attorney. If cost uncertainty is large enough, then the savings from risk reapportionment, which the lawyer and the client can share, will more than offset the cost of the waste from hourly billing's moral hazard. Before 1938, the standard fee arrangement was a fixed fee. Broadened discovery then increased the uncertainty of litigation costs, especially as states copied the Federal Rules over the next two decades. Starting in the mid-1950s, as our model predicts, litigators, spurred by their institutional clients, switched to hourly billing. By the late 1960s, society's increasing complexity had increased cost uncertainty for transactional lawyers. As our model predicts, the bar soon also shifted to hourly billing for transactional work. Many personal injury cases continue to be litigated under contingency agreements in part because, as the model shows, clients in these cases are often more risk averse than other clients. The model suggests why clients and lawyers have recently experimented with forms of fixed-fee billing. Because the conditions that made hourly billing efficient may now have changed, economic pressures are now building for a return to forms of fixed-fee billing.

Time and Money: Discovery Leads to Hourly Billing

The reasons for judicial mistrust of the drug courier profile are numerous and, I believe, compelling. Because many of the profile characteristics (e.g. nervousness, arrival from a source city, little or no luggage, cash purchase of ticket) are equally applicable to innocent persons, use of the profile by reviewing courts could lead to approval of wholesale seizures of innocent citizens by police. The accuracy of the profile has never been empirically validated, and profile characteristics appear to vary wildly from airport to airport and case to case, giving the profile a shifting, chameleon-like quality. One DEA agent candidly admitted that the profile consists of anything that happens to be suspicious in a particular case. Little wonder then, that the courts are reluctant to ascribe legal significance to the ever-changing profile characteristics, or to accept as binding a profile which was developed by the very law enforcement officials whose actions the courts are charged to review.

Search and Seizure by the Numbers: The Drug Courier Profile and Judicial Review of Investigative Formulas

In this article, Professor Morgan Cloud proposes a surprising remedy for a Fourth Amendment jurisprudence he criticizes as lacking a unifying theory and failing to preserve the rights guaranteed by the Amendment. Professor Cloud's solution is a return to the theories espoused by the Supreme Court during the infamous Lochner era of the early twentieth century. He calls for a merging of the formalist and pragmatist theories of that period into an interpretive theory of the Fourth Amendment and suggests a rededication to the Amendment's Warrant Clause. Such a theory avoids the pitfalls of literalism and judicially determined social policy, while protecting the basic purposes of the Amendment to protect individual liberty, privacy, and property and to prevent unjustified government intrusions.

Morgan Cloud

Papers

Words without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects

Words Without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects

Time and Money: Discovery Leads to Hourly Billing

Search and Seizure by the Numbers: The Drug Courier Profile and Judicial Review of Investigative Formulas

The Fourth Amendment during the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory