Wednesday 25 March 2009

The Dangers of False Confessions

A false confession is an admission of guilt in a crime in which the confessor is not responsible for the crime. False confessions can be induced through coercion or by the mental incompetency of the accused. Even though false confessions might appear to be an exceptional and an unlikely event, they occur on a regular basis in case law, which is one of the reasons why jurisprudence has established a series of rules to detect, and subsequently reject, false confessions obtained by someone in authority.

A ‘person in authority’ means, generally speaking, anyone who has authority or control over the accused (such as an arresting or investigating police officer) or over the proceedings or the prosecution against him. In this definition, there is a clear and reasonable distinction made between power over the proceedings and other forms of control that are unrelated to the prosecution or the proceedings.

The Canadian ‘confessions rule’ was revisited in September 1998 by the Supreme Court of Canada in its decision of the case R v Hodgson. The Ruling is essentially a reaffirmation of the existing law with some elucidation. The Court ruled that a confession made by a man with a knife held to his throat was voluntary and therefore admissible into evidence, as long as the person holding the knife could not be perceived as being part of the prosecution.

In that decision, the Court conceded that "The unfairness of admitting statements coerced by private individuals should be recognized". But the court concluded that it lacks the authority to expand the confessions rule to correct this anomaly thereby leaving the matter to Parliament. The Court also equated undercover police officers with private citizens, but did not engage with or even acknowledge the unfairness of admitting statements coerced by undercover officers –--- indeed, the Court, patently contradicted itself, offering the equivalency of undercover officers and private individuals as the reason why coercion by undercover officers was impossible. This flagrant deception was considered necessary for the Court to avoid making any changes or improvements in the law, as the Court absolutely could not claim to lack the authority to include undercover officers in the definition of ‘persons in authority’. This is precisely because it was that Court that excluded undercover officers from the definition of ‘person in authority’ in 1981, in the case of Rothman v the Queen.

There have been cases since then where undercover officers pretending to be criminals have talked murderers into admitting their crimes to them and the statements have been accepted as evidence against the murderers who foolishly blabbed about their crimes to the undercover officers.

Are all confessions authentic? Do all suspected individuals really give honest confessions out of their own volition, devoid of duress during police interrogation?

Up to 1987, a study revealed that the primary cause for the conviction of 49 of the 350 instances of miscarriages of justice in the United States in the Twentieth century was a false confession generated by coercive questioning by the police. Even in Toronto, the police were torturing suspects to obtain confessions up to the first half of the Twentieth Century.

Lloyd Bostock’s report (1989) that in Great Britain, false confessions ranked second only to mistaken identifications as a cause of wrongful conviction among cases referred to the Court of Appeal.

Interrogation techniques try to suggest to the suspect that he will experience a feeling of moral appeasement if he chooses to confess. Material rewards, like coffee, the cessation of the interrogation and a warm bed are also used to the same effect. In Canada, courts of law have also recognized as valid confessions that were acquired, even though the interrogators lied, by suggesting they had substantial evidence against a given suspect when in fact they didn't. It is then understandable that the high pressure generated may push innocent individuals to produce a confession.

Four centuries ago, a confession was treated as a conviction. The use
of physical torture to extract confessions was common, and all confessions were routinely admitted into evidence without question. But slowly over the centuries, the status of confessions in the legal system shifted from the courts’ limiting the admissibility into evidence of ordinary confessions in the mid-1700s, to totally excluding coerced confessions by the mid to late 1800s. By the 19th century, the courts were cynical of all confessions and tended to dismiss them if the confessions were questionable. But not always.

In the early 1900s, U. S. courts were increasingly faced with cases of Black defendants who were said to have ‘confessed’ to crimes after being physically beaten by the police.

In 1976, I was asked to investigate a case where a janitor (his name was Chambers) of a building in St. Catherines, Ontario had been previously hanged for the murder of a five-year-old girl. The police had questioned the man because someone had seen him talking to the girl on the street. He confessed to her murder and also told the police that he disposed of her body in the building’s furnace.

At his trial, he said that he confessed because the police kept beating him. The jury didn’t believe him and neither did the Ontario Court of Appeal or the Supreme Court of Canada. He was subsequently hanged.

During my investigation of the case, I learned from one of the girl’s aunts that the police had told her years after the man was hanged that the wrong man was hanged. They said that the real killer was a man that was finally put in a mental hospital because he was totally insane and that charging him with the murder of the five-year-old girl would be pointless since he would be acquitted of the murder by reason of insanity. The results of my investigation went to parliament and when in my own submission that also went to parliament, I warned of the dangers of executing innocent people. Years later, the former prime minister of Canada, John Diefenbaker told me that my report had some significance in the minds of his fellow parliamentarians. They voted against Capital punishment in Canada.

Sometimes sacrificial false confessions may be used to divert attention from the actual person who committed the crime. For instance, a parent might confess to save their child from jail. People may also confess to a crime, or plead guilty to a crime they did not commit, as a form of plea bargaining to avoid a harsher sentence. In some cases, people have falsely confessed to having committed notorious crimes simply for the attention that they receive from such a confession.

In determining the admissibility of confessions, the courts have regularly considered other factors such as mental abuse in addition to physical force and threats. For example, in the case of Chambers v. Florida (1940),the Supreme Court ruled that five days of prolonged questioning and other factors that fell just short of physical violence elicited concerns that the confessions given by the defendants were in danger of being false.

In criminal trials, a defendant's admission of guilt can trump even the proverbial smoking gun. A confession is the ideal civic solution: The perpetrator takes responsibility, and the public sleeps soundly.

Do all suspected individuals give honest confessions on their own volition, devoid of duress during police interrogation?

Governor George Ryan commuted the sentences of Illinois' 150 death-row inmates to life in prison, due in part to his concern about the role of false confessions in securing wrongful convictions.

Although it is difficult, if not impossible, to estimate the number of false confessions in the United States, a review of one decade's worth of murder cases in a single Illinois county found 247 instances in which the defendants' self-incriminating statements were thrown out by the court or found by a jury to be insufficiently convincing for conviction.

Suspects with low IQs are particularly vulnerable to the pressures of police interrogation: They are less likely to understand the charges against them and the consequences of professing guilt. One of the suspects in the Central Park attack had an IQ of 87; another was aged 16 and only had a second-grade reading level of intelligence.

But intelligence is by no means the decisive factor. Suspects with compliant or suggestible personalities and anxiety disorders may be hard-pressed to withstand an interrogation. A drug addict may not be particularly suggestible but may have a strong desire to get back out on the street and will confess if he is promised freedom. The most common explanation given after the fact is that suspects ‘just wanted to go home’.

More than 70 years ago, more than 200 people confessed to the kidnapping and murder of Charles Lindbergh’s baby. Then in the late 1940s, more than 30 people falsely confessed to the murder and mutilation of Elizabeth Short, an aspiring Hollywood actress whose severed remains were found in a vacant Los Angles lot. The Short case received nationwide attention and became known as the “Black Dahlia” murder, due to descriptions of Ms. Short having always dressed in black. Over the years, 500 or so have confessed to Hollywood's 1947 "Black Dahlia" slaying.

Still another instance of a false confession is the story of SS leader Heinrich Himmler, who lost his pipe while visiting a concentration camp. A search followed, but upon returning to his car the pipe was discovered on his seat. Meanwhile, the camp commandant had told him that six prisoners had already confessed to stealing it.

In more than 25% of DNA exoneration cases, innocent defendants had made incriminating statements, delivered outright confessions or pled guilty.

A variety of factors can contribute to a false confession during a police interrogation. Many cases have included a combination of several of these causes.

They include:
• duress
• coercion
• intoxication
• diminished capacity
• mental impairment
• ignorance of the law
• fear of violence
• the actual infliction of harm
• the threat of a harsh sentence
• Misunderstanding the situation

Confessions obtained from juveniles are often unreliable – children can be easy to manipulate and are not always fully aware of their situation. Children and adults both are often convinced that that they can ‘go home’ as soon as they admit guilt.

People with mental disabilities have often falsely confessed because they are tempted to accommodate and agree with authority figures. Further, many law enforcement interrogators are not given any special training on questioning suspects with mental disabilities. An impaired mental state due to mental illness, drugs or alcohol may also elicit false admissions of guilt.

Mentally capable adults also give false confessions due to a variety of factors like the length of interrogation, exhaustion or a belief that they can be released after confessing and prove their innocence later.

Regardless of the age, capacity or state of the confessor, what they often have in common is a decision ---- at some point during the interrogation process ---- that confessing will be more beneficial to them than continuing to maintain their innocence.

Sometimes law enforcement use harsh interrogation tactics with uncooperative suspects. But some police officers, convinced of a suspect's guilt, occasionally use tactics so persuasive that an innocent person feels compelled to confess. Some suspects have confessed to avoid physical harm or discomfort. Others are told they will be convicted with or without a confession, and that their sentence will be more lenient if they confess. Some are told a confession is the only way to avoid the death penalty. A number of innocent people have confessed to murders they didn’t commit as a condition that the prosecutor would not ask for the death penalty.

Confessing to crimes often indicates an inability to appreciate the consequences of a confession, a situation that police cultivate by communicating that a confession will be rewarded with lenient sentencing. Police may also offer mitigating factors—the crime was unintentional; the suspect was provoked.

The circumstances of interrogation are crucial. Everybody has a breaking point. Nobody confesses falsely in an hour. The suspects in the Central Park case each spent between 14 and 30 hours under interrogation before confessing to the crime they hadn’t committed.

The use of false evidence (including statements such as, "Your fingerprints are on the gun") in interrogation is implicated in almost every false-confession case, but American courts have upheld the practice. This is not to say that police always intentionally ensnare the innocent. Detectives are trained to believe they can make accurate judgments about a suspect's truthfulness, though "there's a level of overconfidence in the initial judgment, and they begin the interrogation with a presumption of guilt.

There was a case in Canada where the police showed the suspect an alleged written confession by a confederate in which the confederate admitted that they both committed the crime. The suspect then confessed to his role in the crime. The trouble was that the so-called signed statement was a forgery. The court threw out the defendant’s confession.

A particularly vulnerable defendant may begin to doubt his or her own memory when presented with false evidence. Children and the mentally handicapped, or people whose recollections are clouded by drugs or alcohol, are particularly susceptible. Interrogators may suggest that a suspect has repressed the memory. They then offer false evidence to fill in the gaps. After intense interrogation, these suspects become sufficiently convinced of their own guilt and accept an ‘internalized’ false confession.

Some suspects actually believe that they are guilty when in fact they are not. In 1964, I was asked to investigate a case where a man had previously been charged with beating his sleeping mother to death. When he was arrested, he was so drunk; it took almost seven hours to sober him up enough to question him. The police told him that there was a witness to the murder. Being apprised of that fact, he said that although he didn’t remember killing his mother, he assumed that he had because someone saw him do it so he pleaded guilty of the crime.

Eighteen months later, I was called on the case because a new trial had been ordered. I discovered small specks of blood on the wall that the police had missed during their initial investigation and was able to prove that a left- handed man who also lived in the house had committed the murder and not a right-handed man. The son who had been convicted was a right-handed man. The left-handed man was the witness who testified against the son of the murdered woman. The left-handed man was arrested but he died before his trial and the right-handed man was set free.

In the Central Park jogger case, on April 19, 1989, five teens aged from 14 to 16 were arrested and each confessed on videotape to the crime of attacking and raping a jogger and implicated each other. They later repudiated these confessions and maintained their innocence. The five were: Yusef Salaam, Kevin Richardson, Antron McCray, Raymond Santana and Kharey Wise. In 1989, the police were aware that an unidentified sixth person had left semen on the victim's body. In 2002, Matias Reyes, a convicted murderer and rapist, admitted that he was responsible for the rape and attack of the jogger. The DNA obtained from the crime scene matched Reyes. New York state justice Charles J. Tejada vacated the convictions of five defendants on December 19, 2002. Yusef Salaam meanwhile had served six and a half years in prison.

False confessions are generated in cell blocks as well as interrogation rooms, a fact not lost on detectives under fire for the Central Park jogger case. One month after those convictions were vacated, a chagrined New York City Police Department issued its own revisionist theory: The inmate who claims he alone attacked the jogger may have falsely confessed due to threats from other inmates or the desire to transfer to another prison. That theory is obviously hogwash since Reyes' DNA was found at the scene.

In 1988 Nancy DePriest was raped and murdered at the Pizza Hut she worked at in Austin, Texas. A coworker, Chris Ochoa, pled guilty to the murder. His friend, Richard Danziger, was convicted of the rape. Ochoa confessed to the murder and implicated his friend, Danziger, in the rape. It was later discovered that the confession was coerced and the real guilty party was arrested. The forensic evidence that linked Danziger to the crime scene was a single pubic hair found in the restaurant that was consistent with his type of pubic hair. There was semen evidence collected, but DNA analysis was not performed. Both men received life sentences. Years later Achim Marino wrote letters while in prison claiming he was the murderer. The DNA was finally tested and matched Marino. Chris Ochoa and Richard Danziger were exonerated and released from prison in 2001 after 12 years of incarceration.

Cook County, Illinois prosecutors were required to videotape murder confessions, but not interrogations, starting in August 1999. Corethian Bell, who has a diagnosis of mental retardation, said he confessed to the murder of his mother, Netta Bell, because police hit him so hard he was knocked off his chair and because he grew tired and hopeless after being in police custody for more than 50 hours. He said he thought that if he confessed, the interrogations would stop; then he could explain himself to a judge and be set free. With a confession on tape, he was then prosecuted and sent to jail. When the DNA at the crime scene was tested, it matched a serial rapist, who was already in prison for three other violent sexual assaults, all in the same neighborhood as the Netta Bell murder.

Following more than four hours of intensely coercive questioning regarding the murder and sexual mutilation of three eight-year-old boys, Jessie Misskelley, of West Memphis, Arkansas, gave a statement that, although incorrect in every major detail, resulted in the conviction of himself, Jason Baldwin, and Damien Echols (collectively known as The West Memphis Three). Two were sent to prison for life and Echols has been on death row since 1994. However, according to the DNA Status Report filed on July 17, 2004, none of the genetic material recovered at the scene of the crimes was attributable to Mr. Echols, Echols co-defendants, Jason Baldwin or defendant Jessie Misskelley.

Simon Marshall was a Canadian rape suspect who was imprisoned for 5 years before genetic evidence found him innocent. Mental retardation was a factor in his confession. This case lead to the creation of the Marshall Commission; a royal commission created to look into the wrongful conviction of another Canadian man for murder.

Stephen Downing spent 27 years in prison before it was established that he was innocent. The main piece of evidence used against him was a confession he signed, but only after an 8-hour interrogation which left him confused, and his poor literacy skills meant he didn't fully understand what he was signing.

Jeffrey Mark Deskovic, was convicted in 1990 at age 16, of raping, beating and strangling a high school classmate, even though jurors were told the DNA evidence in the case did not point to him. He was incarcerated for 15 years. He confessed to the crime after hours of an interrogation without being given an opportunity to seek legal counsel.

Michael Crowe confessed to the murder of his younger sister Stephanie Crowe in 1998. Michael, 14 at the time, was targeted by police when he seemed "distant and preoccupied" after Stephanie's body was discovered and the rest of the family grieved. After two days of intense questioning, Michael admitted to killing Stephanie. The confession was videotaped by police, and appeared to be coerced, at times Michael saying things to the effect of, "I'm only saying this because it's what you want to hear." Two of Michael's friends, Josh Treadway and Aaron Hauser, were questioned and confessed after many hours of interrogation. The charges were dropped after DNA testing linked a neighborhood transient to her blood. A TV movie was made out of the story called The Interrogation of Michael Crowe in 2002.

Thirteen men and women, ranging in age from their early 50s to mid-70s, were arrested and indicted in Japan for buying votes in an election. Six confessed to buying votes with liquor, cash and catered parties. All were acquitted in 2007 in a local district court, which found that the confessions had been entirely fabricated. The presiding judge said the defendants had "made confessions in despair while going through marathon questioning."

Robert Hubert confessed to starting the Great Fire of London by throwing a fire bomb through a bakery window. It was proven during his trial that he had not been in the country until two days after the start of the fire, he was never at any point near the bakery in question, the bakery didn't actually have windows, and he was crippled and unable to throw a bomb. Despite this, Hubert was found guilty and executed by hanging.

Laverne Pavlinac confessed that she and her boyfriend murdered a woman in Oregon in 1990. They were convicted, then released five years later when Keith Hunter Jesperson confessed to a series of murders. She had become obsessed with details of the crime. Her boyfriend confessed to avoid the death penalty. She later said she confessed to get out of an abusive relationship.

John Mark Karr confessed to the murder of JonBenét Ramsey. He had become obsessed with the details of her murder and was extradited from Thailand. His story did not match details of the case, and his DNA did not match that found at the crime scene. His wife and brother said he was home in another state at the time of the murder, and had never been to Colorado.

Eddie Joe Lloyd was convicted of the 1984 murder of a 16-year-old girl in Detroit after he wrote to police with suggestions on how to solve various recent crimes. During several interviews, police fed details of the crime to Lloyd, who was mentally ill, and convinced him that by confessing he was helping them “smoke out” the real killer. Lloyd eventually signed a confession and gave a tape-recorded statement. The jury deliberated less than an hour before convicting him and the judge said at sentencing that execution, which had been outlawed in Michigan, would have been the “only justifiable sentence” if it were available. In 2002, DNA testing proved that Lloyd was innocent and he was exonerated.

Others may lie for more practical reasons. In 1965, when handyman Albert DeSalvo told police he was the Boston Strangler, he confessed to having brutally murdered 13 women. Some experts now suspect that DeSalvo, who at the time was in custody on lesser charges, hoped the lavish claims would bolster his rep in prison and save him from execution via an insanity plea.

Convicted arsonist Ottis Elwood Toole twice confessed to abducting Adam Walsh, 6, whose 1981 disappearance inspired his father John's advocacy for missing children. But Toole also twice recanted. Some believe he wanted to cash in on book and film deals. This man also confessed to murdering more than a hundred other victims but other than the murder of his sweetheart, there didn’t appear to be any evidence that he murdered all the others.

Romeo Phillion of Ontario, a former drifter (now age 66) impulsively confessed to the murder of a fireman in a stairwell in Ottawa, Ontario more than 36 years ago, a murder later claimed he hadn’t committed. He spent 31 years in prison. He said that he had reasons for confessing, even if they were a bit bizarre. He had hoped that his drag queen lover would receive at least part of a $2,500 reward for information leading to the killer's arrest. Phillion recanted almost instantly and believed the mess could be straightened out, but that proved to be wishful thinking on his part.

Trying to recant a confession is like trying to un-ring a bell. Later he was faced with a greater problem. When he applied for parole, he was turned down because he kept denying that he committed the murder. It is generally the policy of parole boards to deny parole to prisoners who refuse to admit their crime before the board. To the board members hearing the application, such a prisoner hasn’t reformed. The prisoner is caught in a no-win predicament. If he admits to the crime in order to get released, he no longer has a chance to claim he was innocent of the crime. As it is, Fillion did get a second chance. His case is being heard by the Ontario Court of Appeal.

Dr. Michael Welner, a forensic psychiatrist based in New York City who is known for creating "The Depravity Scale," which attempts to provide a measurement of evil, to help courts decide if certain crimes warrant enhanced punishment was a witness at the hearing. He testified at Phillion’s hearing that false confessions do occur but are rare, with no jurisdiction recording more than one or two in every ten years.

His testimony paints a different picture from the assessment offered by the U.S.-based Innocence Project, which says 25 per cent of 218 wrongful convictions uncovered through DNA evidence in recent years involved false confessions, making them the second leading cause of miscarriages of justice.

Gisli Gudjonsson who is considered an authority on false confessions; is a forensic psychologist at King's College in London, England. He said that Phillion's confession bears the hallmarks of the phenomenon. He said that Phillion, is a highly suggestible person who likely blurted out the confession because he wanted to send police on a wild goose chase. Quite frankly, I find that reasoning hard to believe. There have been no other recorded cases of people uttering false confessions to send police on wild goose chases.

It is true that people commonly confess to crimes they did commit because they believe police have evidence against them.

Frequently regarded as the most unequivocal evidence of guilt, when a defendant confesses or pleads guilty, it relieves doubts in the minds of judges and jurors more than any other evidence. The trouble is that it is not really the best evidence that can be submitted in court. It is just as fallible as eyewitness testimony. You can never really be sure that it is valid.

The best thing that a suspect can do is keep his mouth shut during the interrogation. No one is under any legal obligation to speak a word in an interrogation room. Very recently, a 17-year-old suspect in Ireland, who is accused of shooting a police officer in the back of the head, refused to say a word during the many hours of interrogation. I don’t know if he is guilty or not but one thing you can be sure of, he won’t be convicted because of a confession. However, keeping silent doesn’t always work either.

Many years ago, a man broke into a home in Toronto in an attempt to kidnap the daughter of a very rich man. He was caught. Not only did he not speak a word at his interrogation or at his trial, he even pretended that he was in a coma. Every day at his trial he was brought into the courtroom in a wheelchair. Despite his efforts at trying to distance himself from the reality of his situation, he was convicted and sentenced to many years in prison. Of course, his voice and mobility came back miraculously when he realized that up to then, nothing had worked in his favour.

I believe that confessions given to the police when the suspect’s lawyer isn’t present during the interrogation, should not be used as evidence at trial. Of course, this creates another problem. Lawyers often refuse to attend the interrogations because whatever they hear from the mouths of their clients during the police questioning of their clients, they can be subpoenaed as witnesses if their clients later recant their statements.

In Canada, we have what is called, a ‘voir dire’ a hearing within a trial to determine the authenticity of a confession. It is at that hearing that the defendant must prove that his confession was obtained illegally. If he is successful, then his confession cannot be entered as evidence at his trial.

If the police conduct their investigations thoroughly, there is no need to seek a confession from the suspect. Unfortunately, asking the police officers to conduct criminal investigations thoroughly is akin to asking a child to wash behind his ears. You get the same negative results. There are exceptions obviously but it is the failure on the part of some police investigators in securing evidence and witnesses that result in coerced confessions being extracted from innocent persons. As a result, many innocent people are imprisoned for many years and the taxpayers are stuck with billions of dollars unnecessarily wasted.

With respect to sloppy police work, a case in point was the famous baby killing case involving an innocent nurse in Toronto called Nelles. She was even accused of murdering a baby in the Sick Children's Hospital in Toronto while she was vacationing in Vancouver, thousands of kilometers away. Those stupid charges were eventually thrown out before they even got to trial. How many billions of dollars are going to be wasted along with the lives of innocent persons wrongful convicted because of sloppy police work? Will much of the loss be as a result of false confessions being seriously considered in court?

UPDATE: Forty-one-year-old Anthony Caravella of Florida was found guilty in the 1983 attack in Florida and sentenced to life in prison. Caravella, who is mentally retarded, was 15 at the time. Prosecutors had sought the death penalty for Caravella, who was accused of raping, strangling and stabbing 58-year-old Ada Cox Jankowski. She was found dead near an elementary school. New DNA tests in September 2009 have excluded him as the murderer and rapist of the woman. He said that he confessed to the crime, because the police beat him to coerce the admission.

1 comment:

A4Thought said...

Interesting synthesis...

On another matter, have you taken the Depravity Scale @ The research is very thought provoking and draws controversy very similar to the disputed confession topic.