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#404 Wrongful Conviction: Junk Science - Coerced Confession Evidence · Wrongful Conviction

0:01
Speaker 1: Hey, folks, Kate Judson here, I'm a lawyer and the
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Speaker 1: executive director of the Center for Integrity and Forensic Sciences.
0:10
Speaker 1: We're back with another episode of Junk Science, a series
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Speaker 1: we first released in twenty twenty. But these stories are
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Speaker 1: just as relevant as ever. Confessions, as you'll hear in
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Speaker 1: this episode, are frequently unreliable, especially under circumstances that include,
0:27
Speaker 1: but aren't limited to, depression, shock, youth, grief, and false
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Speaker 1: claims by law enforcement. And since many confessions take place
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Speaker 1: in the high stress environment of an interrogation room, there's
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Speaker 1: a higher than average likelihood that confessions given to law
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Speaker 1: enforcement will be false or unreliable. With how unreliable confessions
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Speaker 1: can be, it might surprise you to know that they
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Speaker 1: are sometimes used to validate a scientific concept. It works
1:02
Speaker 1: like this, Analysts or experts use a risky type of
1:06
Speaker 1: analysis in a case and then say that because an
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Speaker 1: accused person confessed in the case, the analysis is correct.
1:16
Speaker 1: This approach isn't two independent pieces of proof. It's one
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Speaker 1: mistake compounding another on their own. Confessions need to be
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Speaker 1: treated with skepticism and care, and certainly they should never
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Speaker 1: be the main basis for a scientific concept.
1:41
Speaker 2: Hi, everyone in our feed you've probably heard the podcast
1:44
Speaker 2: Wrongful Conviction, False Confessions hosted by Laura and I Wrider
1:48
Speaker 2: and Steve Drizzen. Would they dive into the stories of
1:51
Speaker 2: innocent people who have been subject to tactics that elicit
1:55
Speaker 2: false confessions. As it turns out, these tactics are actually
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Speaker 2: rooted in junk science, just like bitemark evidence, bloodstain pattern analysis,
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Speaker 2: and so many others that we have covered in this show,
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Speaker 2: we want to make it clear that false confessions are
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Speaker 2: another link in this chain of the junk science epidemic.
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Speaker 2: For some of our more avid listeners, this will be
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Speaker 2: something of a refresher for what you've already heard about
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Speaker 2: how twenty five percent of wrongful convictions are based on
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Speaker 2: false confessions. But in today's episode, we're going to unpack
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Speaker 2: the story not of an individual case, but the story
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Speaker 2: of how the junk science that's behind false confessions is
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Speaker 2: employed in the interrogation room. Here's our show. It's a
2:47
Speaker 2: crisp fall morning, and you're on your way to the
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Speaker 2: first class of the day, psychology one onh one. Just
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Speaker 2: a few weeks ago, you started as a freshman at
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Speaker 2: this small college in Massachusetts and so far, psych is
3:01
Speaker 2: your favorite class. You walk into your classroom and start
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Speaker 2: taking off your jacket while your teacher makes some announcements.
3:08
Speaker 2: He says, the psychology department is conducting an experiment. Participation
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Speaker 2: is completely optional, but anyone who decides to participate will
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Speaker 2: receive extra credit. You're already doing really well in this class,
3:22
Speaker 2: so the extra credit doesn't matter to you that much.
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Speaker 2: But you're curious to see what a psychological experiment will
3:29
Speaker 2: be like, so you sign up. The next week, you
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Speaker 2: show up to the room where the experiment will be conducted.
3:37
Speaker 2: When you get there, there's already another student waiting outside
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Speaker 2: who says she's also here for the experiment. It's not
3:45
Speaker 2: long before a professor comes out into the hall to
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Speaker 2: greet you, and he's well, very professor looking. He wears
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Speaker 2: a tweed jacket and his hair is slightly gray. The
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Speaker 2: professor tells you, in a very authoritative tone, sit in
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Speaker 2: front of the computer. He then motions for the other
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Speaker 2: student to sit in the chair next to you. On
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Speaker 2: the table in front of her, there's a piece of
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Speaker 2: paper with letters printed on it. Then the professor takes
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Speaker 2: his seat across from you.
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Speaker 3: Both.
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Speaker 2: He says welcome, thanks for joining us today. This experiment
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Speaker 2: will test reaction times. One student will read from a
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Speaker 2: list of letters well, the other will type out the
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Speaker 2: letters that she calls out. It's actually a very simple experiment.
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Speaker 2: He pauses for a moment, then looks you in the eye.
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Speaker 2: Just one thing before we begin, be very careful not
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Speaker 2: to hit the alt key. You see, it's right there
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Speaker 2: next to the space bar. The computer program we are
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Speaker 2: using today is a little bit finicky, and hitting that
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Speaker 2: alt key will cause the computer to crash. And if
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Speaker 2: that happens, we'll lose all of our data, and we
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Speaker 2: wouldn't want that to happen. It's not quite the experiment
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Speaker 2: you were expecting, but it sounds like it'll be, I guess,
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Speaker 2: kind of fun. You sit up straight, fingers hovering over
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Speaker 2: the keyboard. The professor says, let's get ready and begin.
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Speaker 2: The student next to you starts reading off letters B, A, J, B, T,
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Speaker 2: S K. The letters come quickly, but you keep up.
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Speaker 2: You think of this as a game, and you want
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Speaker 2: to win. You're laser focused on the task in front
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Speaker 2: of you. But then the screen suddenly glitches and then
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Speaker 2: it goes black. You sit there, frozen, staring at the
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Speaker 2: blank screen. The professor running the experiment sees the confused
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Speaker 2: look on your face and jumps up from his seat.
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Speaker 2: He looks pissed. He walks over to your side of
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Speaker 2: the table, looks at the blank screen and says, did
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Speaker 2: you hit the alt key?
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Speaker 3: No?
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Speaker 2: I didn't. I don't know why this happened. I'm gonna
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Speaker 2: ask you one more time. The professor says, did you
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Speaker 2: hit the alt key? I said no, I really don't
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Speaker 2: think I did. You're getting flustered, and the professor is
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Speaker 2: clearly angry. What a strange reaction. He stands over you
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Speaker 2: and picks up the keyboard and clicks some keys and
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Speaker 2: nothing happens. You did hit the alt key. I know
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Speaker 2: you did. He turns to the student who is reading
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Speaker 2: the letters and asks her if she saw what happened.
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Speaker 2: She says, hate to say it, but I did see
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Speaker 2: you hit the alt key. The professor storms over to
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Speaker 2: seat and starts writing furiously on his pad of paper.
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Speaker 2: You're confused, and you feel really bad, like you've messed
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Speaker 2: up the whole experiment. You didn't mean to. You thought
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Speaker 2: it was going well. But if the other student said
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Speaker 2: you did it, I mean the computer did crash. You
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Speaker 2: must have hit it by accident. The professor rips off
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Speaker 2: the top page of his writing pad and pushes it
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Speaker 2: toward you. Sign this, he says. You read what the
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Speaker 2: professor has scribbled down. It says, I hit the all
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Speaker 2: key and cause the computer program to crash. Data was lost.
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Speaker 2: I really don't think I hit it, professor, you say.
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Speaker 2: The professor is now fuming. He practically slams the pen
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Speaker 2: down on the table in front of you. Sign it.
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Speaker 2: The leader of this experiment will call you later today.
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Speaker 2: You think this guy's pretty pissed. I'll just talk it
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Speaker 2: through the organizer of the experiment. When he calls, you,
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Speaker 2: pick up the pen and sign the paper. Just then,
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Speaker 2: another student walks into the room. The professor says to her,
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Speaker 2: we'll have to reschedule our appointment. As he leaves the
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Speaker 2: room to get his appointment book, mumbling something angry to himself,
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Speaker 2: the new student in the room raises her eyebrows at you.
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Speaker 2: She whispers, Hey, what happened? She must have heard all
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Speaker 2: the yelling. I hit a key on the computer that
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Speaker 2: I wasn't supposed to, and I guess I crashed the computer,
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Speaker 2: you say. The professor comes back he books a new
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Speaker 2: appointment with the girl who walks in. When she leaves,
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Speaker 2: he sits down and takes a deep breath and says,
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Speaker 2: it's okay. I didn't mean to get so upset. Show
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Speaker 2: me exactly what happened when you hit the old key.
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Speaker 2: You put your hands on the keyboard, and you say, well,
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Speaker 2: when I was going to hit the A button, I
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Speaker 2: hit the alt key with the side of my hand
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Speaker 2: by accident. The professor writes down a note on a
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Speaker 2: pad of paper, then looks up. Okay, great. His demeanor
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Speaker 2: totally changed. He suddenly calm and seems to be even cheery.
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Speaker 2: That's the end of the experiment. Thank you so much
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Speaker 2: for participating, and let me explain everything. He tells you
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Speaker 2: that the experiment was really not for testing reaction times,
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Speaker 2: but to study whether presenting someone with phony evidence and
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Speaker 2: then accusing them can lead that person to admit to
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Speaker 2: doing something that they did not do. Turns out, everyone
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Speaker 2: else that was in that room with you, the student
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Speaker 2: reading out the letters, the one that later asked you
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Speaker 2: what happened, they were all in on the experiment. The
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Speaker 2: professor tells you that you did not, in fact hit
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Speaker 2: the ald key, but you certainly aren't the only person
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Speaker 2: to falsely admit that you did. The story you just
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Speaker 2: heard is based on an experiment that was conducted by
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Speaker 2: psychology professor Saulcaston at Williams College in nineteen ninety six. Now,
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Speaker 2: he did the experiment to better understand why people confess
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Speaker 2: to crimes they did not commit. You might be thinking, well,
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Speaker 2: admitting to hitting an ald key sounds like a sort
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Speaker 2: of low stake scenario. It's nothing like admitting to a
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Speaker 2: rape or a murder, and that's precisely the point. In
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Speaker 2: the low stake scenario of Casson's experiment, it seems like
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Speaker 2: there would be less of a reason to lie. So
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Speaker 2: the experiment actually underscores how a combination of applying pressure
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Speaker 2: and false inculpatory evidence can cause someone to doubt themselves
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Speaker 2: to the point of admitting to something they did not
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Speaker 2: do in a low stress situation. So it logically follows
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Speaker 2: that when the stakes are as high as being accused
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Speaker 2: of something like rape or murder, the stress and vulnerability increases,
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Speaker 2: as does the likelihood that someone will falsely confess. Often,
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Speaker 2: when I tell people about Chorus confessions, they say I
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Speaker 2: would never confess to something I didn't do. But if
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Speaker 2: you were able to relate to the student in this experiment,
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Speaker 2: if you could just imagine yourself second guessing your own
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Speaker 2: actions in that scenario, then it's likely that you too
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Speaker 2: are susceptible to the tactics that are often employed by
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Speaker 2: law enforcement to obtain a confession, regardless of whether you
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Speaker 2: are innocent or guilty. I'm Josh Dubin's civil rights and
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Speaker 2: criminal defense attorney, an innocent ambassador to the Innocence Project
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Speaker 2: in New York. Today, on Wrongful Conviction Junks Science, we
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Speaker 2: examine the psychology behind coerce confessions. Interrogation techniques that detectives
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Speaker 2: use when questioning a suspect are in fact, very efficient
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Speaker 2: and extremely effective. They routinely result in getting people to
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Speaker 2: confess to committing crimes, and that presents a really unique
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Speaker 2: dilemma for detectives investigating those crimes. They know that once
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Speaker 2: they get someone in that windowless room of a police precinct,
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Speaker 2: they will oftentimes be able to get them to confess,
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Speaker 2: which means those detectives better have real evidence, not merely
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Speaker 2: a gut feeling or a hunch, real proof tying a
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Speaker 2: suspect to a crime before subjecting them to the crucible
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Speaker 2: of an interrogation, because while this process is great at
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Speaker 2: getting guilty people to confess to crimes they committed, it
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Speaker 2: is also great for getting innocent people to confess the
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Speaker 2: crimes they did not commit.
13:06
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14:10
Speaker 2: Coarse confessions have been a part of our criminal justice
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Speaker 2: system for a long time. Take for example, the case
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Speaker 2: of Stephen Born in eighteen nineteen, detectives found three big
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Speaker 2: bones in Stephen's backyard in Vermont. The police alleged that
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Speaker 2: the bones belonged to his brother in law, who had
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Speaker 2: gone missing and was presumed to have been murdered. The
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Speaker 2: police told Stephen, the only way you're going to avoid
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Speaker 2: the death penalty is to confess and stand trial, and
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Speaker 2: so Stephen confessed. He put his fate in the hands
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Speaker 2: of a jury who declared him guilty of murdering his
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Speaker 2: brother in law. Stephen was convicted and sentenced to death.
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Speaker 2: Luckily for him, before his execution date, his brother in
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Speaker 2: law was found alive and well hanging out in New Jersey.
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Speaker 2: And those bones they found the stea Evan's backyard turns
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Speaker 2: out they were animal bones all along. He was lucky
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Speaker 2: to escape the gallows. And still, even after so many
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Speaker 2: false confessions, just like Stephen Bourne's, the confession of a
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Speaker 2: suspect continues to be seen as the gold standard and
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Speaker 2: evidence of a person's guilt. Jurors can never seem to
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Speaker 2: wrap their heads around the fact that someone might confess
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Speaker 2: to a crime they didn't commit, and the tactic for
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Speaker 2: obtaining a confession from a suspect only got better. In
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Speaker 2: nineteen forty seven, a detective named John Reid began to
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Speaker 2: distill the methods and principles of interrogations into a scientific
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Speaker 2: procedure designed to increase the likelihood that a suspect would confess.
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Speaker 2: John Reid was a polygraph expert for the Chicago Police
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Speaker 2: when he began to develop his nine step process, is
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Speaker 2: called the Read technique. He claimed that his technique could
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Speaker 2: diagnose truth interception. The retechnique spread throughout the country and
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Speaker 2: is still popular today. According to the Red and Associate's website,
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Speaker 2: over half a million law enforcement and security officers have
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Speaker 2: attended their training programs. And while John Reid's technique indeed
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Speaker 2: increased the likelihood of securing a confession from crime suspects,
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Speaker 2: not much had been done to understand whether these tactics
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Speaker 2: produced confessions that were actually accurate and truthful. That is
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Speaker 2: until Saul Cassen began conducting his computer crash experiments at
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Speaker 2: Williams College. Doctor Casson's experiment tested for some of the
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Speaker 2: variables that are often used during the reed technique. The
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Speaker 2: first variable is vulnerability. Cassen made his test subjects feel
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Speaker 2: vulnerable by putting them in the mildly stressful set situation
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Speaker 2: of having them type letters at a rapid pace. Another
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Speaker 2: variable was false incriminating evidence. When students in the experiment
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Speaker 2: were told that someone saw them hit the alt key,
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Speaker 2: they were much more likely to sign a confession. In fact,
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Speaker 2: of the students who were asked to type at a
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Speaker 2: fast pace and then we're told that someone saw them
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Speaker 2: hit the alt key, one hundred percent of them confessed.
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Speaker 2: Although none of them actually hit the alt key, they
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Speaker 2: all admitted to the crime when presented with false incriminating evidence.
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Speaker 2: On top of that, sixty five percent of students who
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Speaker 2: were presented with false incriminating evidence actually believed in their
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Speaker 2: own guilt. This was measured by how many of the
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Speaker 2: students said, I hit the key when that third student,
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Speaker 2: remember the one that enters the room for their quote
17:54
Speaker 2: unquote appointment, A seemingly more neutral party comes into the
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Speaker 2: room and says, hey, what happened. Finally, thirty five percent
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Speaker 2: of the students actually internalize their guilt to such a
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Speaker 2: degree that they made up details about it by saying,
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Speaker 2: for example, oh, I hit the alt key with the
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Speaker 2: side of my hand. The fact is that none of
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Speaker 2: these students had hit the alt key, yet under these
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Speaker 2: controlled conditions, they confess to something they didn't do. Inducing
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Speaker 2: vulnerability and presenting false, incriminating evidence are the cornerstones of
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Speaker 2: the red technique. What doctor Casson's experiment shows is that
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Speaker 2: interrogation techniques like John Reid's are a recipe for causing
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Speaker 2: innocent people to admit to things that they did not do.
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Speaker 4: You can flip a coin and be as accurate in
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Speaker 4: determining whether somebody is telling the truth or not as
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Speaker 4: a trained police officer, and trained police officers are no
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Speaker 4: more effective at that than your average person. And in fact,
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Speaker 4: there have been numerous psychological studies and nothing correlates to
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Speaker 4: being able to do that to any degree of scientific validity.
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Speaker 4: And that's really where the junk science of this technique
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Speaker 4: comes in, because the reality is you can't tell whether
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Speaker 4: or not somebody is lying by verbal and nonverbal behavior.
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Speaker 2: So with us today we have the amazing David Rudolph
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Speaker 2: David is a phenomenal, phenomenal criminal defense attorney, civil rights attorney,
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Speaker 2: criminal justice reform advocate. The list goes on and on.
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Speaker 2: He is a friend of mine, a personal hero of mine,
19:46
Speaker 2: and many of you have probably seen him in the
19:49
Speaker 2: Netflix series The Staircase, which followed the trials of his client,
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Speaker 2: Michael Peterson, who was accused of murdering his wife. Now,
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Speaker 2: David has worked on countless wrongful conviction cases and cases
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Speaker 2: in which people have found themselves sitting in an interrogation
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Speaker 2: room getting broken down by detectives. And he is someone
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Speaker 2: who has studied corese confessions and really dug into how
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Speaker 2: the psychological techniques used by these interrogators can result in
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Speaker 2: a wrongful conviction. So, David, I want to dive right
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Speaker 2: into the red technique. What is it and how is
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Speaker 2: it different than say, standard police interview.
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Speaker 4: When you're trying to elicit information, what you're really doing
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Speaker 4: is interviewing, not interrogating. You're asking open ended questions, You're
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Speaker 4: following up on things, not for the purpose of confronting
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Speaker 4: the person, but rather for the purpose of finding out
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Speaker 4: what actually happened, and that's not designed to get a confession.
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Speaker 4: The retechnique is simply a protocol for how to interrogate someone,
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Speaker 4: and this is important who you already believe is guilty.
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Speaker 4: You don't use the retechnique in order to elicit information.
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Speaker 4: You only use the retechnique in order to secure admissions
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Speaker 4: and then ultimately a confession.
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Speaker 2: Okay, so let's talk about that for a second, because
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Speaker 2: you said something interesting, and that is that the interrogator
21:25
Speaker 2: will actually use this technique on the person they believe
21:29
Speaker 2: to be the guilty suspect. They might not have any
21:33
Speaker 2: physical evidence to prove that, but they have a hunch,
21:36
Speaker 2: or they're zeroing in on someone because of tunnel vision,
21:39
Speaker 2: whatever the case may be. They think this is their guy,
21:43
Speaker 2: and they bring that person in for questioning. And they're
21:47
Speaker 2: not simply trying to find out the truth, right, They're
21:50
Speaker 2: sole objective when they employ this technique is to get
21:54
Speaker 2: a confession.
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Speaker 4: Absolutely. It's intuition plus arrogance. You know that. That's my
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Speaker 4: recipe for how this all starts. You have a police
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Speaker 4: officer who's done one hundred five hundred one thousand investigations
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Speaker 4: and they know who they like for the crime. You know,
22:12
Speaker 4: if it's a wife who's dead, they like the husband
22:14
Speaker 4: immediately if the husband has a mistress, well that's the clincher.
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Speaker 4: So there's all these sort of preconceptions, and then the
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Speaker 4: arrogance is that they know because they've done it so
22:27
Speaker 4: many times. And you know, part of what we ought
22:29
Speaker 4: to recognize here is that when you're doing that, you're
22:32
Speaker 4: obviously already thinking the person's guilty, and so confirmation bias
22:36
Speaker 4: is going to start leaking in. And this is especially
22:39
Speaker 4: true and it's ironic where there's not much other evidence.
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Speaker 4: Picture this situation. So there's a vicious crime, just an
22:49
Speaker 4: awful uproar in the community, and this police officer believes,
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Speaker 4: legitimately believes that this other person is the purp, but
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Speaker 4: there's no evidence. The pressure to get that person to
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Speaker 4: confess becomes enormous because if you don't, then there's no case.
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Speaker 4: And so ironically enough, there's much more pressure to get
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Speaker 4: a false confession when there's no evidence. So that means
23:18
Speaker 4: there's much more pressure to get a false confession when
23:21
Speaker 4: the person is innocent.
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Speaker 2: So David walk us through this technique. Let's say you
23:27
Speaker 2: have a husband suspected of killing his wife. Police ask
23:33
Speaker 2: them to come down to the station. What's the first
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Speaker 2: thing that happens.
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Speaker 4: What you do in the retechnique is first you isolate
23:40
Speaker 4: the person. You put the person in an uncomfortable position,
23:44
Speaker 4: You shut them off from any support system, and you
23:49
Speaker 4: make them anxious so that they're more susceptible to the
23:53
Speaker 4: other techniques that are going to follow, and so the
23:57
Speaker 4: person is feeling vulnerable. When you feel vulnerable, you're much
24:02
Speaker 4: more likely to give in to pressure, particularly if you're
24:07
Speaker 4: all alone in a strange place, surrounded by imposing authority
24:12
Speaker 4: figures who have guns. I don't think there's very many
24:16
Speaker 4: people who wouldn't feel a bit of panic at that situation,
24:22
Speaker 4: just psychological panic. So it's a whole notion of creating
24:27
Speaker 4: a situation where you are uncomfortable that you want to
24:30
Speaker 4: get out of, and then creating a situation where the
24:34
Speaker 4: only way out is to say what those bullies want
24:38
Speaker 4: you to say.
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Speaker 2: You know, I'm imagining the guy in our hypothetical who
24:51
Speaker 2: is probably just overcome with grief from having just lost
24:57
Speaker 2: his wife, and then the last place he wants to
25:01
Speaker 2: be is where he ends up, you know, in some
25:04
Speaker 2: dank room at a police station, and it's you know,
25:09
Speaker 2: got no windows, it's always got those uncomfortable chairs and
25:14
Speaker 2: they leave them to cool as heels right, and he
25:18
Speaker 2: sits there by himself for a while, and then the
25:21
Speaker 2: detectives come in and the questions start, and tell our
25:26
Speaker 2: listeners what techniques the interrogators use to sort of capitalize
25:32
Speaker 2: on his vulnerability.
25:34
Speaker 4: What you do during the interview phase is you ask
25:37
Speaker 4: a series of questions, some of which are called behavior
25:41
Speaker 4: provoking questions, and there are questions that are designed, at
25:45
Speaker 4: least in the officer's mind, to provoke responses that they
25:49
Speaker 4: can then use to determine whether the person is telling
25:53
Speaker 4: the truth or not. So, you know, it might be
25:55
Speaker 4: questions like why would somebody be saying that you were
25:58
Speaker 4: at the crime scene if you really weren't, Or what
26:02
Speaker 4: do you think should happen to the person who did this?
26:06
Speaker 4: You know, when you ask a husband, why would your
26:10
Speaker 4: own friends be saying that they think that you might
26:14
Speaker 4: have done this? And you're thinking to yourself, well, you know,
26:19
Speaker 4: maybe some of my friends saw that time when you know,
26:23
Speaker 4: my wife and I got into an argument over the
26:25
Speaker 4: car or whatever it is. And so you're just trying
26:29
Speaker 4: to come up with some explanation because the officer is
26:33
Speaker 4: asking you for one, and you minimize it because it
26:36
Speaker 4: wasn't a big deal, and so you talk about it,
26:39
Speaker 4: and then all of a sudden, that then becomes the
26:42
Speaker 4: takeoff point. Well, that wasn't the only time that you
26:45
Speaker 4: had an argument, wasn't. No, it wasn't the only time
26:48
Speaker 4: we had an argument. Well, let's talk about some of
26:50
Speaker 4: the other times you had arguments. And the idea is
26:54
Speaker 4: that if you ask enough of these behavior inducing questions, you,
26:58
Speaker 4: as a trained police officer, sir, looking at verbal and
27:02
Speaker 4: nonverbal cues, you know, hesitation, how their eyes are looking,
27:07
Speaker 4: that you can tell if they're lying or not.
27:10
Speaker 2: A lot of us have this notion that investigators have
27:13
Speaker 2: this heightened ability to tell if someone is lying or not,
27:16
Speaker 2: and that's just not the case. We know that there's
27:19
Speaker 2: no science to back up that an officer can tell
27:22
Speaker 2: if you are or are not telling the truth. But
27:25
Speaker 2: that doesn't help the person sitting in that interrogation chair.
27:29
Speaker 4: Any answer you give is subject to confirmation, bias, and interpretation.
27:34
Speaker 4: And that's why this whole thing is junk science. There's
27:39
Speaker 4: no logic to it, there's no basis for it. It's simply,
27:44
Speaker 4: let me ask a couple of hard questions and see
27:46
Speaker 4: if the person is getting nervous or more nervous.
27:49
Speaker 2: Okay, So now the cop is certain, at least in
27:53
Speaker 2: his or her mind, that the person in front of
27:55
Speaker 2: them committed the crime, even though there's no proof to
27:59
Speaker 2: back that job. So what's the next step.
28:03
Speaker 4: Now? The goal is to get the confession, especially as
28:08
Speaker 4: I said earlier, when there's no other evidence. So the
28:12
Speaker 4: tone of the whole conversation changes. It now turns sharp,
28:16
Speaker 4: and all of a sudden, the officer says, listen, you know,
28:20
Speaker 4: we've been talking for a while and I just have
28:23
Speaker 4: to tell you. We know you're guilty. The person says, well, no,
28:25
Speaker 4: I'm not, and the officer says, well, don't bother lying
28:30
Speaker 4: to me about it. So the person says, no, I
28:33
Speaker 4: didn't do it. Well, then can you explain why your
28:36
Speaker 4: DNA is on the knife? The officer says, you know,
28:41
Speaker 4: maybe it was so horrible that you've blotted it out
28:44
Speaker 4: of your memory. You know, maybe that's why you don't
28:47
Speaker 4: remember it. But but how do you explain that that
28:49
Speaker 4: DNA is on that knife? And there is no DNA
28:53
Speaker 4: on the knife? But the officer is now alying to
28:57
Speaker 4: the person in order to end use the person to
29:02
Speaker 4: be sort of incredulous about his own guilt or innocence.
29:08
Speaker 4: And so there are cases where people actually become convinced
29:12
Speaker 4: people are innocent, become convinced that, yeah, maybe I actually
29:18
Speaker 4: did this, or yeah I did this, and the person
29:21
Speaker 4: knows they didn't. But yet if they're told that they did,
29:26
Speaker 4: at some point they become convinced that they must have
29:31
Speaker 4: done it. Why else would this person be saying that?
29:34
Speaker 2: And I think the most important point here is that
29:37
Speaker 2: a lot of people think that the police can't lie
29:41
Speaker 2: to them.
29:42
Speaker 4: And in fact, in most countries they can't. In the
29:45
Speaker 4: Great Britain, the cops cannot lie to you about the evidence.
29:49
Speaker 4: But our Supreme Court has said, oh no, it's fine
29:52
Speaker 4: for you to lie to a suspect about the evidence,
29:54
Speaker 4: because after all, he or she knows if he's innocent,
29:57
Speaker 4: that it can't be true. That ignores the psychology of it.
30:02
Speaker 4: The truth of the matter is that cops are allowed
30:05
Speaker 4: to lie during interrogations everywhere in the United States, because
30:09
Speaker 4: the United States Supreme Court has said that's not a
30:12
Speaker 4: violation of due process, and it's outrageous. Why should they
30:17
Speaker 4: be able to lie to you about something as serious
30:21
Speaker 4: as a crime. And the evidence of a crime. I'm
30:24
Speaker 4: not aware of any other English speaking country where that's okay.
30:29
Speaker 4: It's not okay in Canada, it's not okay in Great Britain,
30:32
Speaker 4: it's not okay in Australia or New Zealand. We are
30:35
Speaker 4: the only country I'm aware of where that's permissible. And
30:40
Speaker 4: that's a big, big problem that needs to be corrected.
30:45
Speaker 2: I mean, look, I try to put myself in these
30:49
Speaker 2: people's shoes all the time, and I think about what
30:52
Speaker 2: it would be like if an officer said to me
30:56
Speaker 2: that my friend claimed that I murdered someone when I didn't,
31:01
Speaker 2: and that there's DNA evidence against me. I mean, I
31:05
Speaker 2: would feel just totally screwed, you know, scared alone. And
31:11
Speaker 2: you know, after these interrogators confront the suspect, they say
31:15
Speaker 2: we have this evidence. They might even tell them that
31:18
Speaker 2: they have witnesses that have identified them at the scene.
31:21
Speaker 2: They give all of this false, incriminating evidence. This is
31:26
Speaker 2: constant psychological pressure being applied to a suspect, and it
31:31
Speaker 2: is increasing their vulnerability. Okay, the suspect gets more and
31:36
Speaker 2: more scared, more upset, and the detective starts talking about
31:42
Speaker 2: the serious consequences and the suspect is starting to get
31:47
Speaker 2: convinced that, you know, they're going to go to prison
31:51
Speaker 2: for something they didn't do, so tell us what typically
31:55
Speaker 2: happens next.
31:56
Speaker 4: What happens is the police go into minimization, moral justifications
32:02
Speaker 4: excuses for the potential behavior. So they say things like, well,
32:07
Speaker 4: you know, we can understand how this might have happened.
32:10
Speaker 4: I mean, you know, you may have been provoked, maybe
32:14
Speaker 4: this was in self defense. From the minimization, they go
32:18
Speaker 4: to two other techniques, and I'll call them active encouragement
32:23
Speaker 4: and alternative theories. So active encouragement is they're trying to
32:28
Speaker 4: sort of say, you know, we're just trying to help
32:31
Speaker 4: you here. It's going to look a lot better for
32:34
Speaker 4: you if you explain that this was just because your
32:38
Speaker 4: uncle made you do it than if the DA and
32:42
Speaker 4: the jury thinks you did this because you're a monster.
32:45
Speaker 4: You're telling them that he's going to you're going to
32:47
Speaker 4: be charged based on this evidence, and now you're providing
32:51
Speaker 4: this lifeline if you will. I've had situations where people
32:55
Speaker 4: have been told if you don't confess, you're going to
32:58
Speaker 4: get life. If you do confess, we'll treat you as
33:02
Speaker 4: a juvenile offender.
33:04
Speaker 2: So what's happening here is that the person is told
33:08
Speaker 2: you don't really have any good or attractive options. Right.
33:12
Speaker 2: They're often told, as you said, you're going to get
33:15
Speaker 2: life in prison or even the death sentence if you
33:18
Speaker 2: don't confess, and the interrogators tell them that confessing will
33:23
Speaker 2: at least get them the better of two horrible options. Right,
33:26
Speaker 2: You'll get life instead of the death penalty. It doesn't
33:29
Speaker 2: really leave the innocent person with much of a choice,
33:32
Speaker 2: does it.
33:33
Speaker 4: To top it all off, Josh, if you're innocent and
33:38
Speaker 4: all you want to do is get out of that room,
33:41
Speaker 4: you know, you've now been in there for two hours,
33:43
Speaker 4: three hours, four hours, they haven't accepted any of your denials,
33:48
Speaker 4: and now you just wanted to stop. And what you
33:52
Speaker 4: think to yourself, if you're innocent, is if I just
33:56
Speaker 4: agree with what they're saying. If I just agree with
33:59
Speaker 4: what they're saying, this is going to stop. And when
34:02
Speaker 4: I get out of here, you know, I can explain
34:05
Speaker 4: why this happened, and I and everyone's going to understand
34:08
Speaker 4: that I'm innocent because that's what the evidence is going
34:10
Speaker 4: to show. Uh. And you know, it just becomes the
34:14
Speaker 4: path of least resistance. The other piece you need to
34:18
Speaker 4: understand is it's not just a person saying I'm guilty,
34:21
Speaker 4: because that's just the first step.
34:23
Speaker 2: Right, because a jury's got to be able to believe it.
34:26
Speaker 2: The confession has to sound convincing. You know.
34:30
Speaker 4: If all it was was the person said, yeah, I
34:32
Speaker 4: did it, I don't think a jury's going to give
34:34
Speaker 4: that a whole lot of weight. But when the person's
34:38
Speaker 4: confession includes details that only the perpetrator could know, well,
34:44
Speaker 4: the perpetrator and the police. Once it has those details,
34:49
Speaker 4: it becomes persuasive evidence. It's not just why would an
34:53
Speaker 4: innocent person confess? It's how would an innocent person know
34:57
Speaker 4: these things? And that's where the power comes in, you know.
35:01
Speaker 4: It's the details about where the attack occurred, how it occurred,
35:06
Speaker 4: what weapon was used, how long it took, what time
35:10
Speaker 4: it occurred. All of these are fed into the person,
35:13
Speaker 4: you know, with leading questions. So do you remember it
35:17
Speaker 4: was about nine pm when you finally entered the house,
35:20
Speaker 4: you know? And when you went into the house, do
35:23
Speaker 4: you remember that the first place you went was into
35:25
Speaker 4: the kitchen and that's where you found the knife. Right,
35:30
Speaker 4: So there's all these leading questions that if you're innocent,
35:35
Speaker 4: and you're trying to get out of there. You're accepting
35:38
Speaker 4: you don't even have to say it, you just say
35:41
Speaker 4: yeah or mm hm, and those then get incorporated into
35:47
Speaker 4: a written statement. And you've already gone so far as
35:50
Speaker 4: to say all this, so you figure, what the hell,
35:52
Speaker 4: I'll sign it, and then your life is over.
35:55
Speaker 2: So, David, what can we do here? The system keeps
35:59
Speaker 2: on on churning out false confessions? How do we get
36:03
Speaker 2: this to stop?
36:05
Speaker 4: Stop using this particular technique. It's an enormously effective technique
36:10
Speaker 4: to get guilty people to confess. We can all agree
36:14
Speaker 4: on that. The problem is it's also an enormously effective
36:18
Speaker 4: technique to get innocent people to confess.
36:22
Speaker 2: I think certain law enforcement officials in this country might
36:26
Speaker 2: resist that because they'll think, well, if we don't use this,
36:29
Speaker 2: then we are losing this critical tool for getting suspects
36:34
Speaker 2: to confess. And if we don't have this, then we're
36:38
Speaker 2: not going to be able to convict someone who committed
36:41
Speaker 2: a crime. But that's not really the case, right because
36:45
Speaker 2: there are other more reliable techniques out there. So tell
36:49
Speaker 2: us about some other ways that detectives can obtain a
36:54
Speaker 2: confession that doesn't employ or doesn't include employing the re technique.
37:01
Speaker 4: In Great Britain, they use a completely different method, and
37:05
Speaker 4: it's called the piece method Peacee And you don't try
37:10
Speaker 4: to force the conversation in any particular way. You're simply
37:15
Speaker 4: conducting a really thorough interrogation or interview that has been
37:19
Speaker 4: planned out in advance. You know exactly what you're going
37:22
Speaker 4: to ask, you know what you want to talk about,
37:25
Speaker 4: you know what you want to ask questions about, you
37:27
Speaker 4: know what evidence there is, and so you can judge
37:30
Speaker 4: the validity of what the person's saying by the actual evidence,
37:33
Speaker 4: not by false evidence. And it's a completely different technique
37:39
Speaker 4: and it is not something that results in the kinds
37:43
Speaker 4: of false confessions that you see in the United States.
37:47
Speaker 4: If there's other evidence, then you don't necessarily need the confession.
37:54
Speaker 4: All you may need are some inconsistencies in the person's
37:58
Speaker 4: statement to sort of nail the case down. And if
38:02
Speaker 4: there is no other evidence, why would you try to
38:06
Speaker 4: get a confession where the confession may very well not
38:10
Speaker 4: be accurate.
38:12
Speaker 2: Now, another part of the problem here that we touched
38:15
Speaker 2: on a bit is not just the false confession, but
38:18
Speaker 2: also how convincing it ends up being. When it is
38:23
Speaker 2: presented to a jury. Is there any insight into what
38:27
Speaker 2: other countries do in that regard?
38:29
Speaker 4: You know, in the United States, a jury has to
38:32
Speaker 4: come back with either guilty or not guilty, and not
38:35
Speaker 4: guilty sort of implies innocence. In Scotland, there's a verdict
38:41
Speaker 4: called not proven, and I think the verdicts in every
38:47
Speaker 4: country should be either proven or not proven, because if
38:51
Speaker 4: that was the verdict, the presumption of innocence becomes less
38:57
Speaker 4: important in a sense, because the focus is on did
39:01
Speaker 4: the state prove its case right?
39:04
Speaker 2: Because a journam might be thinking shit, if I say
39:07
Speaker 2: not guilty, What I'm really saying is that the person
39:11
Speaker 2: absolutely didn't do it. And what I really want to
39:13
Speaker 2: say is that who knows. The person may have done it,
39:17
Speaker 2: but the prosecution just did improve their case. So if
39:21
Speaker 2: you include this other sort of line item or this
39:24
Speaker 2: notion that they have in Scotland not proven on the
39:28
Speaker 2: verdict form, it would actually be a way to protect
39:32
Speaker 2: the presumption of innocence exactly.
39:35
Speaker 4: I think that that would go a long way towards
39:39
Speaker 4: focusing juror's attention on the actual question.
39:43
Speaker 2: These seem to be really big changes that are going
39:46
Speaker 2: to take a lot of time and effort to accomplish.
39:49
Speaker 2: We like to be able to provide our listeners with
39:52
Speaker 2: some insight into what they can be doing to help
39:55
Speaker 2: change the system. So what would you tell our listeners
39:59
Speaker 2: they can be doing to help effectuate change, especially when
40:03
Speaker 2: it comes to wrongful confessions or coerce confessions.
40:09
Speaker 4: Please go sit on juris to talk to your fellow
40:13
Speaker 4: jurors and talk to your friends and neighbors and co
40:16
Speaker 4: workers about these issues. When you hear somebody's confess to
40:21
Speaker 4: a crime, go and talk with other people and explain
40:26
Speaker 4: that it may not be what it seems, because that's
40:29
Speaker 4: how this changes. It changes from the bottom up, not
40:32
Speaker 4: from the top down.
40:35
Speaker 2: What I want for all of you to take away
40:37
Speaker 2: from today's episode is some practical advice. Now you might
40:42
Speaker 2: be thinking I'll never be in this situation. This would
40:45
Speaker 2: never happen to me. I'm sure that most people that
40:49
Speaker 2: have ended up being interrogated by the police thought the
40:52
Speaker 2: exact same thing. It's not going to happen to me
40:57
Speaker 2: until it does. Unfortunately, your innocence is not a safeguard
41:03
Speaker 2: against being incarcerated. As we discussed in this episode, innocent
41:09
Speaker 2: people are often more likely to falsely confess than the
41:12
Speaker 2: actual perpetrator of a crime for a few reasons. First,
41:17
Speaker 2: they think that because they're innocent, they don't need a lawyer.
41:21
Speaker 2: They'll just go in there, speak to the cops, tell
41:24
Speaker 2: them the truth, and that'll be that. The problem is
41:29
Speaker 2: that interrogators who are following the read technique don't take
41:33
Speaker 2: the words you say at face value. Instead, they look
41:37
Speaker 2: behind the words and look for reasons why those words
41:41
Speaker 2: support your guilt. Remember, most of the time, they have
41:44
Speaker 2: decided that you were probably involved before you even get
41:48
Speaker 2: in that room. That is why you are being interrogated
41:51
Speaker 2: in the first place. Another reason why many innocent people
41:55
Speaker 2: confess is because none of us are immune from the
41:59
Speaker 2: effects of the psychological warfare administered under conditions that are
42:03
Speaker 2: simply the perfect storm for vulnerability. And believe me, it
42:08
Speaker 2: happens to the toughest among us I have seen it.
42:11
Speaker 2: It is simply too difficult to withstand that type of
42:14
Speaker 2: pressure until the day comes when we are able to
42:19
Speaker 2: enact the type of reform that David talked about, things
42:22
Speaker 2: like preventing law enforcement from lying to suspects about the
42:26
Speaker 2: existence of evidence tying them to the crime. The reality
42:30
Speaker 2: is that we all need to protect ourselves. Preventing false
42:34
Speaker 2: confessions starts with an understanding of the tactics investigators use.
42:40
Speaker 2: You are now armed with that knowledge, and it should
42:43
Speaker 2: always end with if God forbid you ever find yourself
42:47
Speaker 2: being interrogated. Is my name is Christopher Ochoa, John Restivo,
42:55
Speaker 2: Sante Trible, Clementia Geary, and I want to lawyer and
43:01
Speaker 2: you don't answer a single question after that. Next week
43:11
Speaker 2: we'll explore the junk signs of roadside drug testing with
43:15
Speaker 2: Greg Glaud. Wrongful Conviction Junk Science is a production of
43:20
Speaker 2: Lava for Good Podcasts and association with Signal Company Number One.
43:24
Speaker 2: Thanks to our executive producer Jason Flamm and the team
43:27
Speaker 2: at Signal Company Number One executive producer Kevin Wartis and
43:31
Speaker 2: senior producers Kara Kornhaber and Britz Spangler. Our music was
43:36
Speaker 2: composed by Jay Ralph. You can follow me on Instagram
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Speaker 2: at dubin Josh. Follow the Wrongful Conviction podcast on Facebook
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Speaker 2: wrong Conviction