CHAPTER 9: POLICE INVESTIGATIONS, INTERROGATIONS, AND CONFESSION

Hugo Munsterberg, whose seminal book On the Witness Stand (1908) is discussed in Chapter 1, was perhaps the first psychologist to write about the false confession phenomenon. Munsterberg was convinced that a man who had been hanged for murder had falsely confessed to the crime. The press at the time heard of Munsterberg’s comments on this case and he became the target of news stories and editorials attacking his view. We don’t know if this man had actually falsely confessed, but the notion that it is possible for people to confess to crimes they didn’t commit remained difficult to accept until a number of cases surfaced, beginning in the 1960s, showing that false confessions can and do occur.

Review of the Law

In this section we refer to “incriminating statements,” rather than “confessions,” because the law described below applies to all incriminating statements, including confessions. We focus on disputed incriminating statements made to people in authority (e.g., the police). Incriminating statements made to people who are not in authority (e.g., friends, co-workers) are not subject to the laws discussed below. And if incriminating statements are not disputed (e.g., if the person who made the statements pleads guilty), they will not come under judicial scrutiny.

Two sources of law that affect police interactions with suspects and the use of incriminating evidence are the Canadian Charter of Rights and Freedoms (the Charter) and the Common Law (CL) rule on voluntariness. Generally, the two bodies of law (Charter and CL) serve different objectives. On one hand, the CL rules on admissibility of incriminating statements developed largely in response to concerns about the reliability of the evidence. On the other hand, the Charter is relatively more concerned with fairness and practices that are acceptable in a free and democratic society. There are other important differences between the Charter and CL (R. v. Singh, 2007).

• Under any alleged Charter violation, the party asserting the violation (usually the accused when the issue is incriminating statements) must prove a violation on a balance of probabilities. And under 24(2) of the Charter, the court may admit the evidence notwithstanding the infringement if admission of the statement would not bring the administration of justice into disrepute.
• At CL, the Crown must prove voluntariness beyond a reasonable doubt. If an incriminating statement is found not to have been voluntary, it must be excluded from evidence at trial.

The two sources of law vary with respect to (a) the objective of the law, (b) the side that bears the burden of proof, (c) the standard of proof, and (d) the consequence of finding a breach. First we discuss the Charter, followed by a discussion of CL rules.

The Canadian Charter of Rights and Freedoms and Police Interactions

The Charter exists, in large part, to protect us from the potentially oppressive power of the state. The group most vulnerable to abuse of state power is persons who are accused/detained by the state. Accordingly, a substantial portion of the Charter is directed at protecting this group.

Two sections of the Charter that are most likely to be invoked to exclude disputed incriminating statements are s. 10(b) and s. 7.1 Section 10(b) states,

“Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” If incriminating statements are elicited from people arrested or detained before they were told their s. 10(b) rights, a Charter infringement is likely to be found and the statements are likely to be excluded from evidence. Note that, in order for Charter s. 10(b) to apply, the person must be arrested or detained. It is clear what “arrested” means, but what is “detained”? If individuals reasonably believe that they have no choice but to remain in the custody of the police officer, they are detained—even if they are, in fact, free to go (R. v. Therens, 1985). Arrested or detained people may waive their right to counsel if they clearly understand the right being waived and the consequences of giving up the right (R. v. Clarkson, 1986).”

In R. v. Pickton, described in Case Study 9.1, s. 8 of the Charter is used to argue for inadmissibility of incriminating statements; the incriminating statements were obtained by surreptitiously recording conversations. The court found the recording to be contrary to Pickton’s reasonable expectation of privacy (protected under s. 8 of the Charter). Admissibility of incriminating statements are not often argued under this section, so we did not include it as a common Charter argument. You should read this section to understand when incriminating statements may be admitted, notwithstanding a Charter breach.

The other Charter section that is often invoked in disputes involving incriminating evidence is s. 7: “Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. In R. v. Hebert (1990), the Supreme Court of Canada held that a detained person’s right to remain silent is a principle of fundamental justice and as such is protected under s. 7 of the Charter.

After detained people retain and are instructed by counsel or waive the right to counsel, they may choose to talk to the police. Even if they choose not to talk to the police (i.e., they assert their right to silence), the police may continue the interrogation. In R. v. Singh (2007), Singh was charged with second-degree murder when a bullet from a gun he fired accidently killed an innocent bystander. After he was arrested and consulted with his lawyer, police interviewed him. Over the course of two interviews, he asserted his right to silence 18 times, yet the police continued the interrogation. Although he did not confess, Singh made incriminating statements that were used at trial to establish him as the shooter. The court found that continued interrogation after asserting his right to silence did not infringe Singh’s s. 7 right. He was not required to respond to interrogation questions, and his ability to decline to respond had not been overridden by police tactics. The incriminating statements were admitted and he was convicted of second-degree murder. The conviction was upheld at the Supreme Court of Canada.

Recall from Chapter 2 that s. 24(2) of the Charter states that evidence obtained as a result of a Charter infringement may be excluded if “admission of the evidence could bring the administration of justice into disrepute.” This means that evidence obtained as a consequence of a Charter breach may be admitted at trial if its admission would not bring the administration of justice into disrepute or if exclusion would bring the administration of justice into disrepute. Case Study 9.1 discusses two cases where evidence was obtained as a result of a Charter breach. In one case the evidence was not admitted and in the other case it was admitted.

Common-Law Rules on Voluntariness

Before incriminating statements can be admitted as evidence at trial, the crown must prove, beyond a reasonable doubt, that the statements were voluntary: not obtained as a result of fear of prejudice or hope of advantage, made with an operating mind, made in an atmosphere that was not oppressive, and not obtained through the use of police tricks that “shock the community.”

Fear of Prejudice or Hope of Advantage

If incriminating statements are induced by fear of prejudice or hope of advantage held out by a person in authority, these statements will probably be held to be involuntary and inadmissible. When considering this, the courts will look for evidence of quid pro quo—“you confess and then. . .” or “you confess or else. . .” “Fear of prejudice” would arise from, for example, threats of mistreatment, threats of denial of interim release, and threats of denial of rights to see loved ones. Such threats may sometimes be explicit but more commonly are implicit. In either case, incriminating statements elicited as a result of fear of prejudice will be found to be involuntary, and so, inadmissible. “Hope of advantage” would stem from such things as offers of counselling if the suspect confesses, offers of leniency with respect to a loved one of the accused, and offers of leniency from the courts. “An explicit offer by the police to procure lenient treatment in return for a confession is clearly a very strong inducement, and will warrant exclusion in all but exceptional circumstances” (R. v. Oickle, 2000, para 49).

Operating Mind

Incriminating statements must be made while the person has an operating mind. An operating mind “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment” (R. v. Whittle, 1994, p. 936). For example, the court found the accused did not have an operating mind in cases where the accused was in shock from a recent accident, was intoxicated, or was hypnotized (R. v. Clarkson, 1986; Hovarth v. R., 1979).

Atmosphere of Oppression

If incriminating statements are obtained in an atmosphere of oppression—that is, if there were external pressures that made the statement involuntary (e.g., length of interrogation, location of interrogation, denial of food, water, or medical services)—they will likely be found to be inadmissible. For example, in R. v. Hoilett (1999), the court found that there was an atmosphere of oppression. In that case, the accused was arrested at 11:25 p.m. while under the influence of crack cocaine and alcohol. After he spent two hours in a cell, the police removed his clothing for testing, leaving him naked in a cell with only metal fixtures and no blankets. The accused, too cold to sit, remained standing for one and a half hours until police provided him with ill-fitting clothing. At 3:00 a.m. he was awakened for questioning, at which point the police refused to provide warm clothing or a tissue. Five times during the interview, the police officers noted the accused was having trouble staying awake. The Ontario Court of Appeal held this police conduct was oppressive, rendering the resulting confession involuntary and inadmissible.

Police Trickery

In R. v Oickle (2000), the Supreme Court of Canada articulated a fourth category that could render incriminating statements involuntary: police trickery. This is not trickery that is so egregious as to take over a person’s will (which is covered by the operating mind test) or that amounts to fear of prejudice or hope of advantage. Rather, it is police trickery that is so “appalling as to shock the community” (para 67), such as pretending to be a chaplain or legal aid lawyer or pretending to turn off a tape recorder when taking a statement.

One use of police deception in Canada that has been supported by the courts is the Mr. Big Technique. This is a police sting operation in which undercover police officers befriend suspects and get them involved in minor crimes, for which they are paid. Later, these suspects are interviewed for a more major crime, but are told they must confess to some past crime which can be used as a form of insurance for the criminal gang leaders (Smith, Stinson, & Patry, 2009). This confession is, of course, subsequently used to charge the suspect with the crime. Smith et al. (2009) note that this technique has been used in some 350 cases in Canada. Moore and Keenan (2013) caution that while this technique can produce reliable incriminating evidence, there is also a risk that it can contribute to wrongful convictions. They suggest that its use at trial should be subject to the presence of independent confirmatory evidence.

Arrest Rights

In psychology, much of the relevant research has been on confession evidence (a subset of incriminating statements). It is not clear that theories apply similarly to all incriminating statements, including confessions. For this reason, through this section we will refer to confessions rather than incriminating statements. Some of the research you will read about below was conducted in the United States, and reference is made to “Miranda rights” (from Miranda v. Arizona, 1966). Miranda rights are the right to remain silent and the right to counsel. They are roughly equivalent to our Charter s. 10(b) rights.

Waiving Arrest Rights

It is perhaps surprising that only about one in five suspects exercise their Miranda rights (Leo, 1996). Juveniles also commonly waive their rights (Peterson-Badali, Abramovitch, Koegl, & Ruck, 1999). Given that interrogation is inherently a stressful and risky situation, exercising the right to silence would make a good deal of sense as an avoidance response. So why do so many suspects waive their rights? Costanzo (2004) suggests several reasons, including the fact that detectives deemphasize arrest rights warnings, innocent suspects want to show they have nothing to hide, and guilty suspects don’t want to appear uncooperative. Costanzo adds that many suspects may not fully appreciate they are waiving their rights.

Kassin and Norwick (2004) conducted a laboratory experiment to understand why some people waive their rights. The study involved 72 participants who were guilty or innocent of a mock theft. Prior to their interrogation, they were given instructions to avoid going to trial or to be acquitted at trial. The participants were confronted by either a neutral, sympathetic, or hostile male “detective” who sought a waiver of their Miranda rights. Overall, about 58 percent of the suspects waived their rights, but over 80 percent of the innocent suspects waived their rights. Kassin and Norwick note that these participants had a “naïve faith in the power of their own innocence to set them free” (p. 218), and they conclude that “Miranda warnings may not adequately protect from police authority the people who may need it most, those falsely accused of crimes they did not commit” (p. 218).

As discussed in the section “Assessing Suspects’ Understanding and Appreciation of Arrest Rights” in this chapter, the issue of appreciation of rights is central to a valid waiver. Grisso (1981) conceptualizes appreciation of the significance of rights to include three main parts:

• Suspects must recognize the interrogative nature of police questioning.
• Suspects must perceive defence attorneys as their advocates and be willing to disclose confidential information to them (this is appreciation of the right to counsel).
• Suspects must perceive the right to silence as a right that cannot be revoked, and must perceive that statements made by suspects can be used in court (appreciation of the right to silence).

An intelligent waiver of rights suggests that a suspect understands the language used in Miranda warnings. A number of studies indicate that the vocabulary used in some Miranda warnings may exceed the comprehension and reading level of some suspects. For example, Rogers, Hazelwood, Sewell, Harrison, and Shuman (2007) studied 356 different (written) English-language versions of Miranda warnings (that there are so many variations of the Miranda warning is somewhat troubling in itself). They tested each version for reading level and found that they varied from elementary school to college. The majority of the warnings they studied required at least a seventh-grade reading level, with fewer than 1 percent of the warnings readable at a fifth-grade level (about 1 percent required college-level reading ability!). Thus, the reading level of most Miranda warnings may exceed the capability of a substantial number of suspects.

Factors such as mental illness or mental retardation may also affect the accused’s ability to make a knowing and voluntary waiver. Simon Marshall, a young man with mental retardation, wrongly confessed to a string of sexual assaults in Ste-Foy, Quebec (see Case Study 9.3). He spent six years in prison before DNA evidence exonerated him (CBC, 2009). Suspects with anxiety disorders, for example, may make a false confession as a way of escaping from the anxiety of an interrogation (Leo & Ofshe, 1998). Individuals with intellectual deficits may become confused; have a desire to please authority figures, such as detectives; be more suggestible; or not fully appreciate the implications of a confession. Gudjonsson (2003) cites the case of Earl Washington, a mentally retarded man who confessed to murder and rape and was convicted and sentenced to death, despite the fact that he recanted his confession. His case was appealed on the basis that he had not voluntarily confessed and that he did not knowingly and intelligently waive his Miranda rights. He spent 18 years in prison before DNA evidence showed that he could not have committed the crime.

Rogers, Harrison, Hazelwood, and Sewell (2007) estimate that nearly 700,000 individuals with mental disorders are arrested annually in the United States. These authors administered Miranda comprehension measures to a sample of 107 mentally disordered defendants (MDOs) and found that most of the defendants lacked good comprehension on all but the simplest Miranda warnings (those requiring less than a sixth-grade reading level). About one-fourth of the sample had substantial deficits on measures of intellectual ability and general personality adjustment. This study raises serious questions about the ability of many mentally disordered suspects to waive their arrest rights.

Youth Capacity to Understand Arrest Rights

The right to consult with a lawyer upon arrest or detention and the right to remain silent are entrenched in the Canadian Charter of Rights and Freedoms and so apply to youth and adults. The Youth Criminal Justice Act contains additional safeguards for young people. Section 146(2)(b) states that the person in authority must explain their rights to young people in language appropriate to their age and understanding. Section 146(4) states that a waiver of the young person’s right to counsel must normally be audio recorded, video recorded, or in writing.

As we will see, the age of young suspects may require special provisions to ensure their rights are protected. The likelihood of false confessions is higher for youth than for adults. Drizin and Leo (2004), in a study discussed in more detail later in this chapter, reported that 35 percent of their sample of 125 proven false confessions were from youth under the age of 17.

Eastwood, Snook, and Luther (2012) examined 50 versions of youth waiver forms used by Canadian police organizations. They found that the waivers required a high level of reading ability, were lengthy, and used complex sentences. They also sampled high school students’ understanding of these forms and found that the students understood less than half of the rights covered in the waiver. An example of an arrest waiver form used by police for juvenile suspects in Ontario is shown in Insight 9.2. This warning has a Flesch-Kincaid reading grade level of 8, meaning that the average grade 8 student would be able to read this form. This suggests that an average grade 6 or 7 student (age 12 or 13) may have difficulty understanding some parts of this warning. It is also the case that even older youth may have insufficient vocabulary to comprehend the language used in typical warnings. Indeed, research by Viljoen and Roesch (2005) indicates that the average IQ of a sample of youth in detention was 83, with reading levels well below grade 8. Eastwood and colleagues (2012) conclude that considerable work needs to be done to develop waiver forms that ensure that youth understand their rights.

Assessing Suspects’ Understanding and Appreciation of Arrest Rights

A forensic assessment instrument called Miranda Rights Comprehension Instrument was developed specifically to help mental health professionals evaluate whether an individual made a knowing and intelligent waiver of rights at the time of interrogation (Goldstein, Zelle, & Grisso, 2012). The instruments are psychometrically sound, with research indicating adequate validity and high inter-rater reliability (Goldstein et al., 2011). Four subtests measure various aspects of comprehension and understanding of rights. Each of the subtests are scored separately and judged relative to one another to determine the level of understanding and appreciation of interrogation rights, and no total comprehension score is derived. The four subtests are as follows:

• Comprehension of Miranda Rights-II (CMR-II). This test examines understanding of the five primary Miranda warnings by asking examinees to rephrase each of the warnings in their own words. There are five items on this subscale, with each item scored 0, 1, or 2. A score of 2 indicates adequate understanding of the Miranda item in question; a score of 1 indicates that the examinee omitted, distorted, or inadequately expressed some portion of the item while having adequately expressed another portion of it; and a score of 0 is assigned to responses that demonstrate inaccurate understanding or no response. A total of 10 points is possible.
• Comprehension of Miranda Rights–Recognition-II (CMR-R-II). This test assesses examinees’ ability to identify whether various interpretations provided by the examiner are the same or different from the warning that was presented. This allows examinees to demonstrate understanding without having to paraphrase the warning in their own words, thus minimizing reliance on verbal expression. Each of the 15 items is scored as correct or incorrect, so there is a maximum score of 15 on this subscale.
• Function of Rights in Interrogation-II (FRI-II). This test measures perceptions of the functions of the Miranda warnings. Four brief hypothetical situations are presented to the juvenile, with each situation accompanied by a picture stimulus depicting the situation described. There are two interrogation scenes, a lawyer-client consultation scene, and a courtroom scene. The FRI yields three subscale scores: Nature of Interrogation, Right to Counsel, and Right to Silence. There are 15 items on this subscale, with each item scored 0, 1, or 2. A total of 30 points is possible.
• Comprehension of Miranda Vocabulary-II (CMR-V-II). This test assesses the ability to define accurately 16 critical words used in the Miranda warnings. Each word is read and then used in a sentence, and examinees are asked to define the word. There are six items on this subscale, with each item scored 0, 1, or 2. A total of 32 points is possible.

Research has shown that younger children are more likely to have reduced capacity to understand their rights as measured by these four subtests. In one study, Viljoen and Roesch (2005) administered an earlier version of this instrument to 152 male and female defendants, aged 11 to 17, in a detention centre.

They found that age significantly predicted overall comprehension of rights, with younger adolescents demonstrating more impaired comprehension than older adolescents. Roesch, McLachlan, and Viljoen (2007) comment that, coupled with the anxiety that may be present under questioning by police, it is possible that many youth, especially younger ones, do not adequately understand their rights. Youth with mental health issues or other impairments may be at particular risk. McLachlan, Roesch, Viljoen, and Douglas (in press) studied justice-involved Canadian youth with fetal alcohol spectrum disorder (FASD), and found that the vast majority of young offenders with FASD (90 percent) showed impairment in at least one psycholegal ability; rates of impairment were significantly higher than those for the comparison group.

Given these findings, what can be done to protect the rights of youth? One suggestion is to require the presence of an adult before a youth can waive rights. This could be an attorney or other interested adult as a substitute for parents. The expectation that parents will help ensure their child’s understanding and will protect the rights of their child may not always be realized in practice. Parents may place coercive pressures on youth to talk to the police because they are upset or angry with their child. They also may advise their children to waive their right to an attorney, encourage them to cooperate, and even adopt an adversarial attitude toward their own children. In their study of youth in pretrial detention, Viljoen, Klaver, and Roesch (2005) found 89 percent of youth indicated their parents wanted them to confess or tell the truth, 11 percent indicated that their parents wanted them to deny the offence, and none reported that their parents advised them to remain silent.

Interrogation Techniques

In 1930, police detectives interrogated Tony Colletti, an 18-year-old man whose wife had been murdered. Although he denied any involvement, police suspected he had killed his wife. Leo (2004) describes his interrogation:

At the station house during the next 26 hours, Colletti was questioned continuously in relays, lied to, threatened, yelled at, cursed, deprived of food and water, made to stand for hours, forced to stay awake, slapped, slugged with bare fists, stripped naked, and beaten with a rubber hose until he no longer denied killing his wife and finally agreed to sign a confession acknowledging guilt. (pp. 37–38)

Colletti later recanted the confession, claiming it was made under duress. It is not known whether he did kill his wife, because he hanged himself in jail prior to his trial. Leo (2004) notes that the techniques used to extract his confession, known in the popular culture as the third degree, were widely used by police in the 1920s and 1930s. The practice declined in the 1940s, and by the 1950s a new approach began to emerge. Indeed, techniques used in the “third degree” would almost certainly be declared oppressive today, and any incriminating statements elicited would be ruled inadmissible. Modern interrogation techniques no longer use such strong-arm tactics but rely instead on a more psychological approach that may involve deceptive techniques, including the presentation of false evidence.

Police officers and detectives receive extensive training on interviewing suspects. The most common training approach is the Reid Technique. This approach was first introduced by Inbau and Reid in 1962; it has since been revised and developed in several editions, with the most recent one authored by Inbau, Reid, Buckley, and Jayne in 2004.

Inbau and colleagues provide a detailed procedure for interrogating suspects, including advice about how to set up an interrogation room. The room should have minimal furniture (straight-backed chairs and a table), with nothing on the walls. One-way mirrors are common, to allow for observation from another room. The Reid Technique begins with a non-adversarial interview designed to detect deception. The police officer will ask the suspect questions, such as, “What do you think should happen to the person who did this?” According to the Reid Technique, different behavioural responses will be present in innocent and guilty persons. For example, gaze aversion, rigid posture, and fidgeting are thought to be more likely present for guilty suspects (Kassin, Appleby, & Torkildson Perillo, 2010). If the police officer determines that the suspect is lying when he denies involvement in the crime, an interrogation will begin. This involves nine sequential steps. These nine steps were used in the February 7, 2010, interrogation of Russell Williams, as discussed in Case Study 9.2. The Williams interrogation illustrates how the techniques can be applied in particular circumstances. It also illustrates that the Reid Technique can lead to accurate confessions.

1. 1. Begin by confronting suspects with their guilt. The interrogator states this confidently, even in the absence of clear evidence. The accusation of guilt may be repeated several times. The interrogator observes the reactions of the suspect, looking for signs of deception.
   2. Develop psychological “themes” that justify or excuse the crime. The interrogator displays understanding and sympathy as a means of obtaining the suspect’s trust. The themes suggested by the interrogator are designed to minimize guilt or provide possible excuses for committing the crime. “In this way the suspect can accept physical responsibility for the crime while at the same time either minimizing the seriousness of it or the internal blame for it” (Gudjonsson, 2003, p. 13).
   3. Interrupt all statements of denial. “Repeated denials by the suspect are seen as being very undesirable because they give the suspect a psychological advantage” (Gudjonsson, 2003, p. 17). Inbau and colleagues argue that there are differences in denials by guilty and innocent suspects. “Innocent suspects’ denials are said to be more spontaneous, forceful, and direct, whereas denials of guilty suspects are more defensive, qualified, and hesitant” (Gudjonsson, p. 17).
   4. Overcome the suspect’s factual, moral, and emotional objections to the charges.
   5. Ensure that the increasingly passive suspect does not tune out. The interrogator may do this by moving closer to the suspect, maintaining eye contact, and touching the suspect.
   6. Show sympathy and understanding and urge the suspect to tell the truth.
   7. Offer the suspect a face-saving alternative explanation for the guilty action. The interrogator presents two possible alternatives to explain the crime, with one alternative serving a face-saving function while the other represents a more callous or repulsive motivation. Both implicate the suspect, but one is seen as a more positive explanation for the crime. Gudjonsson comments, “It is a highly coercive procedure where suspects are pressured to choose between two incriminating alternatives when neither may be applicable” (p. 19).
   8. Get the suspect to recount the details of the crime. This step follows from step 7, in which the suspect has accepted one of the alternative explanations. Once this occurs, the suspect is then asked to orally provide details.
   9. Convert that statement into a full written confession. The suspect signs the confession.

Kassin and McNall (1991) observe that the strategies used by interrogators following the Reid Technique fell into two general categories. In maximization, the interrogator uses “scare tactics” designed to intimidate a suspect into a confession. This intimidation is achieved by emphasizing or even overstating the seriousness of the offence and the magnitude of the charges. Detectives might also make false or exaggerated claims about the evidence (e.g., by staging an eyewitness identification or a rigged lie-detector test, by claiming to have fingerprints or other types of forensic evidence, or by citing admissions that were supposedly made by an accomplice). In minimization, interrogators provide a false sense of security by offering face-saving excuses or moral justification, blaming a victim or accomplice, or playing down the seriousness of the charges. Contrasting the two types of interrogation categories, Costanzo (2004) comments that “maximization implies a threat of severe punishment and minimization implies a promise of leniency” (p. 39). Interrogations using the maximization and minimization techniques often use a good cop/bad cop tactic, in which two interrogators take opposing approaches, with one being more aggressive and using maximization techniques, while the other shows more support and sympathy for the suspect, relying on minimization techniques.

Kassin and McNall (1991) conducted several laboratory studies to examine how potential jurors perceived these interrogation approaches. They used transcripts from an actual interrogation in which these techniques were used and asked participants about their expectations for the sentence that might be received. Kassin (1997) concludes that these studies indicated that “(a) the use of maximization raised sentencing expectations, leading participants to expect a harsher sentence . . . and (b) minimization lowered sentencing expectations, which led participants to anticipate leniency” (p. 224). Gudjonsson (2003) comments that the Kassin and McNall studies “are important because they show that the techniques advocated by Inbau and his colleagues are inherently coercive in that they communicate implicit threats and promises to suspects” (p. 21).

Detecting Deception

One of the assumptions made in the Reid Technique is that detectives can distinguish between truthful and untruthful suspects. Psychological research suggests there is little support for the assumption that investigators can rely on verbal and non-verbal cues to make accurate judgments about whether a suspect is lying or telling the truth (Meissner & Kassin, 2004); however, police investigators are generally more confident in their ability to detect deception (Leo & Drizin, 2010).

Kassin and colleagues (2007) surveyed 574 investigators from 16 police departments in five U.S. states and 57 customs officials from two Canadian provinces. The researchers asked a series of questions about the interrogation process. In response to a question about their ability to detect lies, 77 percent of the subjects said they could detect truthful and dishonest suspects. Kassin and colleagues comment that this figure far exceeds research findings on accuracy, and other research by Kassin (Kassin, Meissner, & Norwick, 2005) has shown that although police are more confident about their judgments of accuracy, they are actually no more accurate than lay people in detecting lies. Indeed, even with training, accuracy is only slightly better than chance.

Kassin’s research is consistent with one of the first studies done on the ability to detect lying in interview situations. Ekman and O’Sullivan (1991) asked seven groups of participants to view videotaped interviews of 10 university-aged women. The seven groups were (1) Secret Service agents,

(2) federal polygraphers, (3) robbery investigators, (4) judges, (5) psychiatrists, (6) a group of students who had taken a university extension course on deceit, and (7) undergraduate psychology students. The participants were told that half of the women in the interviews were lying when they responded to questions about a film they had seen, and participants were asked to decide if each woman was lying or telling the truth. Were any of the groups accurate in detecting deception? Only one group, Secret Service agents, performed better than chance. Ekman and O’Sullivan comment that many of the Secret Service agents had been assigned to protection work, guarding important government officials from potential attack. They speculate that this type of work may increase reliance on non-verbal cues (e.g., through scanning crowds), so that the Secret Service agents in their study paid greater attention to non-verbal behaviour. However, a study by Mann, Vrij, and Bull (2004), which used videotapes of actual suspects, found that police officers in England were able to detect truth or lies at a rate better than chance (65 percent), with more-experienced officers performing better than less-experienced ones. Even this more-positive finding indicates that detectives are frequently wrong in their judgments of suspects. This is particularly concerning given that it is the suspect’s behaviour during a non-accusatorial interview that is the basis on which the investigator decides that the suspect is being deceptive and the nine-step interrogation should commence.

The ability to make correct judgments of a suspect’s credibility could be enhanced through the use of the Strategic Use of Evidence (SUE) technique (Granhag, Strömwall, & Hartwig. 2007). Based on social cognitive theories of self-regulatory behavior, SUE posits that there are differences in how liars and truth tellers respond to interview questions. Research suggests that guilty suspects are more likely to make statements that contradict known facts, particularly when evidence is withheld from the suspect (Hartwig, Granhag, & Luke, in press). There is also evidence which shows that requiring suspects to report their stories in reverse order can improve the ability of interrogators to detect deception (Vrij et al., 2008).

A presumption of guilt can affect how the interrogation proceeds. Kassin, Goldstein, and Savitsky (2003) found that student interrogators in a controlled laboratory study who presumed guilt asked more guilt-presumptive questions, used a greater number of interrogation techniques, exerted more pressure on suspects to confess, and made innocent suspects sound more defensive and guilty to observers.

The presumption of guilt can also lead to what has been referred to as investigative bias. Investigators will develop a theory about a crime, presume a suspect is guilty, and conduct the interrogation with the goal of obtaining a confession that fits that theory of the crime (Meissner & Kassin, 2004). The presumption of guilt is also related to the advocacy of more aggressive interrogation tactics. Kassin and colleagues (2007) questioned 631 police investigators about the tactics they use in interrogations. As can be seen in Table 9.1, almost all investigators use multiple coercive tactics. This approach may, as Kassin (2005) has commented, put innocent individuals at greater risk of making a false confession.

Snook, Eastwood, Stinson, Tedeschini, and House (2010) comment that although the Reid Technique is widely used in Canada, there is virtually no research showing that it is more effective at eliciting confessions than alternative techniques. It is noteworthy, however, that interrogators don’t always use all nine components. King and Snook (2009) found that, on average, interrogators use only about one-third of the model, but interrogations that produced confessions tended to use a higher proportion of the core Reid components.

Concerns about the Reid Technique have prompted calls for alternative interviewing approaches (Moore & Fitzsimmons, 2011). One alternative, the PEACE model, is the standard practice in Great Britain (Milne & Bull, 1999). PEACE is an acronym for Preparation and Planning, Engage and Explain, Account, Closure, and Evaluation. A key component of PEACE is that it does not attempt to persuade a non-compliant suspect to confess, even if the interviewer thinks the suspect is guilty. This is in direct contrast to the Reid Technique. Snook and colleagues identified three benefits of this model: it does not rely on coercive or manipulative strategies; it results in the same percentage of suspect interviews that end in a confession (about 50 percent) as the Reid Technique; it uses a cognitive interview, an empirically based approach that has been shown to enhance the recall of correct details.

False Confessions

False confessions occur when individuals confess to a crime they did not commit or exaggerate involvement in a crime they did commit. As discussed in this chapter, there are many documented cases of false confessions that have resulted in a conviction. Case Study 9.3 summarizes one of these cases.

Kassin and McNall (1991) estimate a relatively small rate of fewer than 60 alleged false confessions occur annually in the United States, while others have set the rate much higher, perhaps over 600 (Huff, Rattner, & Sagarin, 1986). The rate is difficult to assess accurately because, for example, it is unknown what percentage of recanted confessions are valid. Obviously, some guilty suspects may come to regret their confession and subsequently claim it was coerced. The only hard evidence for a false confession is the conviction of another person who actually committed the crime or DNA testing exonerating the individual who has falsely confessed. Of course, this will underestimate the number of false confessions given by innocent individuals who confessed, were convicted, and never had their confessions proven to be false.

Research on False Confessions

Edwin Borchard (1932) was one of the first to identify cases in which innocent individuals were convicted. His work, although largely descriptive in nature, established that individuals can be falsely convicted and led researchers to begin focusing on the reasons for false convictions, as well as looking into what can be done to prevent these outcomes.

It wasn’t until the 1980s that researchers began to conduct empirical studies of wrongful convictions. Bedau and Radelet (1987) found that 49 of 350 cases (14 percent) of wrongful conviction in potentially capital cases in the United States from 1900 to 1987 were attributed to false confessions. False confessions resulting in convictions represent a high cost, in terms of both loss of liberty for individuals wrongly convicted and the cost of imprisonment. Drizin and Leo (2004) analyzed 125 cases of proven interrogation-induced false confessions. First, they found that 81 percent of the cases involved charges of murder, with convictions resulting in lengthy sentences or even the death penalty. One shocking finding was that the average length of interrogation was 16.3 hours, a figure many times higher than the less-than-two-hour average interrogation in over 90 percent of all cases in which suspects are interrogated. Drizin and Leo’s study also shows the high financial cost associated with false confessions. Only 44 of the 125 cases resulted in a conviction, because many cases were either never charged or did not result in successful prosecution. Of the 44 cases, 18 (41 percent) individuals were sentenced to more than 20 years or life in prison, and 9 (20 percent) were sentenced to death. Many of the individuals who were not convicted nevertheless spent considerable time in jail while awaiting trial; 24 percent of those never convicted spent more than a year in jail.

In addition to understanding false confessions by looking at actual cases, it is possible to study this issue in the laboratory setting. Kassin and Kiechel (1996) used a creative approach to determine whether experimenters could use police interrogation techniques to get participants in an experiment to confess to a crime they did not commit. They were also interested in examining whether participants would make up details about the crime and whether they could come to believe that they actually committed the crime. The experimental paradigm involved bringing participants into a lab ostensibly for a reaction-time study. The 75 participants were seated at a keyboard across a table from a confederate who read a list of letters. The participants were instructed to type the letters but to avoid hitting the ALT key; they were told that hitting this key would crash the computer, and all the data would be lost. Although no one actually hit the ALT key, the computer crashed after 60 seconds. The participants had been randomly assigned to one of four groups in a 2 (high versus low vulnerability) × 2 (presence versus absence of a false incriminating witness) factorial design. Vulnerability was simulated by reading the letters at a slow or a fast pace (43 versus 67 letters per minute), and the confederate for half of the participants said she saw the participant hit the ALT key. Once the computer crashed, the experimenter appeared upset and accused the participant of crashing the computer. All participants initially denied the accusation. Upon further questioning, and, in some cases, the introduction of the false incriminating witness, the participants were asked to sign a confession.

The results of this study support the notion that participants will confess to a crime they did not commit. The researchers reported that 69 percent of the participants signed the confession, 28 percent evidenced internalized guilt (that is, they believed they had pressed the ALT key), and 9 percent confabulated details to support their false beliefs. The results also showed different effects by condition. In the low vulnerability/no witness group, only 35 percent signed the confession, no one exhibited internalization or confabulated details. However, in the high vulnerability/witness group, all participants signed the confession, 65 percent came to believe they were guilty, and 35 percent made up details. The researchers note that these results support the hypothesis that people can be induced to confess, to internalize guilt even when innocent, and that the risk of giving a false confession is increased when false evidence is produced.

Another laboratory study provides some evidence that age is a factor in explaining false confessions. Goldstein, Condie, Kalbeitzer, Osman, and Geier (2003) examined a sample of 57 adolescent boys, ranging in age from 13 to 18, drawn from a residential, post-adjudication, juvenile justice facility. They administered the Perceptions of Coercion during Holding and Interrogation Procedures (P-CHIP), a measure that assesses the participants’ self-reported likelihood of offering false confessions when various police interrogation techniques were applied to a hypothetical situation. The participants read a vignette describing a police interrogation of an adolescent falsely accused of stealing a watch and kicking a boy. Twenty-six police behaviours systematically added to the interrogation were based on the Reid Technique (e.g., police told the child if he confessed, they would allow him to leave; police told the child if he did not confess at that moment, he would spend the rest of his life in prison; police told the child if he did not confess, his parents would be very disappointed in him). Following the description of each of the 26 police behaviours, participants were asked the likelihood (on a 6-point scale) they would offer a false confession if they were in that situation. This study found that age was the most important risk factor for self-reported likelihood of offering a false confession, as most participants 15 years or younger had substantially higher rates of false confessions. Overall, 25 percent said they would definitely give a false confession in at least one scenario. Goldstein and colleagues conclude that police should be particularly cautious about ensuring the validity of waivers made by youth, especially those younger than 16 years.

While laboratory studies provide valuable information, it is not clear whether the results reported by Kassin and Keichel or Goldstein and colleagues can be generalized to actual interrogation situations. The consequences of confessing in a laboratory setting are trivial compared to the real-life consequences of confessing to police in a criminal investigation. Nevertheless, studies such as these generate intriguing questions about the manner in which confessions are elicited.

Types of False Confessions

There are three types of false confessions.

A voluntary false confession occurs when an innocent person confesses without being prompted by the police. Cases in which there is considerable media attention often draw voluntary false confessions. For example, John Mark Karr was detained in Thailand and returned to the United States after he had voluntarily confessed to the still-unsolved murder of JonBenét Ramsay, a young girl who had been murdered in her home in a case that received widespread publicity. Evidence later showed that he could not have been her killer. The motivation for this type of false confession may be to gain fame or notoriety. A desire to protect friends or relatives is another motivation for a voluntary false confession.

A coerced-compliant false confession occurs when innocent suspects who wish to escape from the stress of the interrogation, avoid a threat of harm or punishment, or gain a promised or implied reward (e.g., being allowed to sleep, eat, or make a phone call), confess to a crime they did not commit. The Central Park jogger case is an example of a coerced-compliant false confession, because the boys were interrogated over lengthy periods, were deprived of sleep, and thought they would be allowed to go home if they confessed.

A coerced-internalized false confession results from highly suggestive interrogations. As Kassin (1997) notes, suspects who are coerced, tired, and highly suggestible actually come to believe that they committed the crime, and confess. The case of Peter Reilly (see Case Study 9.5) is an example of this type of false confession. Kassin comments that two factors account for this type of false confession. One is an internal factor, involving, for example, a vulnerable suspect with a malleable memory due to youth, interpersonal trust, naiveté, suggestibility, lack of intelligence, stress, fatigue, and/or alcohol or substance use. The second is an external factor, involving the presentation of false evidence, such as the false polygraph feedback provided to Peter Reilly.

Kassin and Gudjonsson (2004) summarize the case of 14-year-old Michael Crowe as an example of a coerced-internalized false confession:

At first, Michael vehemently denied that he had stabbed his sister Stephanie. Eventually, however, he conceded that he was a killer: “I’m not sure how I did it. All I know is I did it” (see Drizin & Colgan, 2004, p. 141). This admission followed three interrogation sessions during which Michael was told that his hair was found in Stephanie’s grasp, that her blood was in his bedroom, that all means of entry to the house were locked, and that he had failed a lie test—all claims that were false. Failing to recall the stabbing, Michael was persuaded that he had a split personality, that “good Michael” had blocked out the incident, and that he should try to imagine how “bad Michael” had killed Stephanie . . . the charges . . . were later dropped when a local vagrant seen in the area that night was found with Stephanie’s blood on his clothing. (p. 50)

The Role of Compliance and Suggestibility in False Confessions

Two psychological constructs are important in understanding false confessions. The first is compliance, which is the tendency to go along with people in authority. The second is suspect’s suggestibility, which is the tendency to internalize information communicated during questioning. Compliance is a factor in coerced-compliant false confessions, while suggestibility is related to coerced-internalized confessions.

The distinction between compliance and suggestibility is an important one. Compliant suspects will confess to crimes, even ones they didn’t commit, in an effort to please an interrogator or avoid conflict or confrontation. Suggestible suspects might confess to crimes because they have come to believe or internalize information communicated during the interrogation process. Gisli Gudjonsson, a British researcher, has developed scales to measure both of these constructs.

The Gudjonsson Compliance Scale (GCS) contains 20 true/false statements that measure two types of interview behaviour (Gudjonsson, 2003). The first type of interview behaviour measured is the tendency to comply with requests and obey instructions for instrumental gain, such as the termination of the interrogation, release from custody, avoidance of conflict, or eagerness to please the interviewer. The second type of interview behaviour measured is susceptibility to pressure from others to commit an offence. Examples of statements are “I tend to give in to people who insist that they are right,” “I try hard to please others,” and “I generally believe in doing as I am told.” Research on the GCS suggests that this is a promising measure of compliance. Gudjonsson reports that the GCS is correlated with other measures with which it is theoretically related, such as social desirability and social conformity. In a naturalistic study, Gudjonsson found that the GCS discriminated between false confessors and those suspects who resisted police pressure to confess.

Gudjonsson’s Suggestibility Scales (GSS) measure interrogative suggestibility, tapping into two distinct forms of suggestibility: the extent to which people yield to misleading questions, and the extent to which people shift their answers after receiving negative feedback (Gudjonsson, 2003). The scales are designed to measure “individual differences in the degree to which they may yield to suggestions by police officers” (Grisso, 2003, p. 164), and whether an individual’s confession may have been distorted or false (Gudjonsson, 2003). The measure is presented as a memory test, and it employs one of two narrative paragraphs describing a fictitious story that is played on audiotape. After listening to the story, individuals are asked to recall as many details from the story as they can, both immediately and again after a 50-minute delay. The second portion of the GSS asks participants 20 specific questions about the content of the story, 15 of which are misleading. Regardless of actual performance on these questions, participants are provided with negative feedback from the examiner, who informs them that they have made a number of errors. They are then sternly asked to respond to the same set of questions again and to try and provide more accurate answers. The extent to which individuals give in to the misleading questions is scored as a yield, and any change in the person’s answers from the previous trial is noted as a shift. The yield and shift scores are then added together for a Total Suggestibility score.

Research shows that children are more suggestible than adolescents and adults, as measured by the GSS (Gudjonsson, 2003), and that suggestibility decreases steadily as age increases (Warren, Hulse-Trotter, & Tubbs, 1991). Gudjonsson (2003) has suggested that interrogative suggestibility is possibly related to the likelihood of false confession. Most of the research on this possibility has been conducted in labs. In one such study, Redlich and Goodman (2003) demonstrated that younger and more suggestible adolescent participants were more likely than young adults to falsely take responsibility for crashing a computer in an experimental paradigm. Interestingly, they found that while participants’ GSS shift scores were unrelated to confession, those who were more likely to yield to misleading questions were also more likely to agree with an experimenter’s request to (falsely) sign a confession form.

Suggestibility may also be a factor in understanding arrest rights. Redlich, Silverman, and Steiner (2003) investigated the relationship between Miranda rights comprehension and suggestibility in a sample of 18 juveniles (14 to 17 years old) and 17 young adults (18 to 25 years old) recruited from various community settings. They found that higher suggestibility in terms of yielding to misleading questions (GSS yield) significantly predicted increased comprehension and overall scores of Miranda rights understanding. Further, they found that higher suggestibility in terms of shifting answers after receiving negative feedback (GSS shift) was associated with lower comprehension. One implication of this research is that those individuals who are more susceptible to waiving arrest rights may also be at an increased risk for false confessions. In a sample of Canadian adolescents, McLachlan, Roesch, and Douglas (2011) found that more highly suggestible youth (those with both yield and shift tendencies) were less likely to understand or appreciate their rights.

A confession, whether true or false, creates a seemingly irrefutable presumption of guilt. The confessor is far more likely to be incarcerated prior to trial, to be charged with the maximum number of offences, to be pressured to plead guilty, not to be offered a plea bargain, and to be convicted. All other evidence in the case is more likely to be interpreted in a way that is consistent with the confessor’s guilt (e.g., more confident eyewitness), and evidence of innocence is more likely to be ignored. It is likely that the investigation of alternative suspects will terminate and the focus will be on the confessor. In short, a confession is toxic and will affect the process from the point of obtaining a confession to incarceration.

Recommendations for Reducing False Confessions

False confessions do occur. So what can be done to reduce them? The Innocence Project has recommended specific changes in the practice of suspect interrogations, including the mandatory video recording of interrogations, which has been shown to decrease the number of false confessions and increase the reliability of confessions as evidence. The Project recommends that the entire custodial interrogation be recorded. In Canada, although not mandated by federal law, police routinely video-record interrogations. This is also the practice in over 500 jurisdictions in the United States, although it is important to keep in mind that sometimes only the actual confession is recorded, not the interviews that may have taken place prior to the confession (Smith, Stinson, & Patry, 2012). Recording allows a later assessment of the accuracy of a confession. The Innocence Project notes that in some false confession cases, police may inadvertently communicate details of the crime. When a suspect later recounts these details, the police take the knowledge as evidence of guilt. The Project also notes that threats or promises may be made to the suspect off camera, before the camera is turned on for a false confession. Recording the entire interrogation would prevent this from happening. To avoid contaminating a confession with facts provided to the suspect, Leo and Ofshe (1998) recommend that investigators evaluate the suspect’s post-admission narrative to determine the extent to which the details provided in the statement are consistent with known facts in the case. Investigators should not provide a suspect with details of the crime during the course of an interrogation (including evidentiary materials, crime scene photographs, or visits to the crime scene).

A model for police interrogation has been developed in England and Wales (Bull & Milne, 2004). As noted earlier in this chapter, the PEACE model explicitly prohibits coercive interrogation techniques. The approach includes extensive training of police officers in non-coercive interview techniques aimed at obtaining accurate information from a suspect. Interviewers are instructed to keep an open mind about the innocence or guilt of the suspect and to treat all suspects fairly. Vulnerable suspects are to be treated with special consideration.

Another safeguard is to allow expert testimony in court that explains current research on false confessions. This type of testimony would not focus on the validity of a particular confession but, rather, on the research into interviewing and interrogation, as well as the factors that may increase the risk of a false confession.

Summary

This chapter provides a review of the arrest and interrogation process. The process begins with an arrest, at which time suspects are read their arrest rights. The majority of suspects waive those rights, despite the risks involved in submitting to an interrogation. Particular attention was paid to issues surrounding the waiver of rights by youth and mentally disordered suspects, as research shows that many individuals in these groups may not fully understand their rights and may be more susceptible to making false confessions. Police strategies for soliciting a confession were reviewed, including the commonly used Reid Technique. A confession is perhaps the most compelling evidence that can be presented in a criminal trial, and police are motivated to obtain a confession once they believe a suspect is guilty. Although they no longer rely on the heavy-handed tactics used in the past, police are now trained in a variety of sophisticated psychological strategies designed to convince a suspect to confess. Many do, although some of these confessions turn out to be untrue. Reasons for false confessions were reviewed, and strategies for reducing the risk of false confessions were presented.

Key Terms

coerced-compliant false confession

coerced-internalized false confession

compliance

false confessions

fundamental attribution error

investigative bias

maximization

minimization

Reid Technique

Suspect’s suggestibility

voluntary false confession

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The Innocence Project: www.innocenceproject.org. The Reid Technique: www.reid.com.