First Best Lie

In yet another rehash of how and why false confessions happen, with yet another sanitized view of how it can be addressed, Doug Keene and Rita Handrich at  The Jury Expert go on at length to remind us of what we already know: false confessions happen and they’re best addressed if the stars align, judges allow what they rarely allow and jurors are just as incapable of distinguishing a false confession from a true one as they’ve always been.

One of their key takeaways is that if all the players in the drama were more inclined to believe that false confessions occur, and care, it would go a long way toward eliminating them.  They suggest some fixes, such as banning deceptive interrogation tactics, videotaping, using transcripts (to focus on content rather than “shifty appearance”), shortening interrogation sessions, presuming guilt and educating jurors about false confessions.

Curiously, they omitted the most obvious solution to the false confession problem, have the interrogating officers give the suspect a foot massage while he sips a green tea latte.

While nowhere in this lengthy quasi-academic post is the Reid technique mentioned, the answer boils down to eliminate all the methods that police find effective in getting a suspect to talk (excluding the time-proven rubber hose), and false confessions can be reduced. 

Of course, so would true confessions. So would all confessions. And that is the problem in the first place.  The point of interrogation is to get people to talk, not to get them to tell the truth. As anyone who has ever tried a case would expect, a commentary by Larry Barksdale to the post is far more real and enlightening than the post itself. You have to scroll down to the end to read it, and there’s no independent link to take you straight there.

Barksdale, with “forty years of law enforcement experience,” is an assistant forensics professor at the University of Nebraska, and his thoughts are well-written, clear and has the unmistakable smell of a cop’s perspective. While the main body of the post is tedious and a bit fantastical, Barksdale’s commentary is real and illuminating.  For example:



Assumption 4: Everyone has a price tag.


This is a button to be pushed by the interviewer that goes far beyond money alone. Good citizenship appeals, lessening of culpability, money, revenge, spitefulness, fear of exposure or harm to oneself or significant others, self-promotion, sense of guilt, and wanting to get the interrogation over with are some of the buttons that can be pushed to get information. The utility of button-pushing includes the not guilty as well as the guilty. The duty of the interviewer is to be persistent in pushing those buttons to get the maximum information from every source.


Assumption 5: There are rules to play by.


For example, waterboarding is not permitted by civil law enforcement agencies in the United States. Private and public interviewers are trained in the limits of the rules. These rules are not always clear however, and experienced law enforcement officers know that the rules change on a regular basis. In my 41 years as an active law enforcement officer, the required process for Miranda warnings has changed numerous times. At one time there was not a requirement to read Miranda warnings on misdemeanor arrest situations. Few law enforcement officers read Miranda on traffic citation cases if the offense, such as a speeding violation, did not have a penalty that included incarceration.


However, in 2012, on felony and misdemeanor arrests, when the person is in custody or there is a possible jail sentence, the rule is to read Miranda warnings. Twenty years ago, the requirement was to “read” Miranda when an investigation focused upon a person and that person was in custody. Today, the rule seems to be that Miranda only needs to be read if a person is in custody and only if they are not familiar with Miranda rights. Hence, if you are standing on a street corner “talking” and then let the person go, you do not need to read Miranda rights if you can testify you were “only gathering information and had no immediate plans to arrest the person.”


When I first started in law enforcement in the late 1960s, it was acceptable to put a pencil between a suspect’s fingers and squeeze the fingers to use pain to cause a person to talk. I even recall being told that if a female was resisting arrest or not being cooperative that squeezing and twisting her nipples would make her cooperative. Over the years, I have attended interview and interrogation schools in which several days were spent on developing “lies” that would convince a person that you had information about physical evidence or information from an accomplice or informant.  It is not easy to be a good liar. It takes training and practice for most people, because “good” people are raised to tell the truth.


In 2012, in the United States, civil police practices are such that inflicting physical pain or touching intimate body areas are not allowed and would be criminal behavior by the police. Blatant lies that can be construed as coercing a person are often suppressed in a confession.   A response to this issue is to say something such as “What would you say if I told you we had your fingerprints that matched, and your DNA is on the bathroom door?” An awareness of the rules, a compliance to the rules, and a willingness to test the boundaries of the rules are the mandate of contemporary law enforcement interviewers, in the quest to maximize the gathering of information.

Pretty darn frank stuff. What Barksdale makes clear is that as long as cops play by the rules (no more nipple-twisting), their job isn’t to concern themselves with eliciting false confessions, but with getting people to talk, and talk as much as possible. As he asserts without any shame, “The police are the primary information gatherers.”  They don’t give foot rubs, and it’s their job to use whatever methods the law allows to get people to talk.

But what of Keene’s and Handrich’s concerns?



I totally agree with the authors, Douglas L. Keene and Rita R. Handrich, that people confess to crimes when they did not commit the crime. I accept the reasons put forth as valid explanations of what leads to people confessing to crimes when they did not do the crime. I concur that withholding information that would tend to disprove the validity of a confession is a miscarriage of justice. Inflicting physical pain, deception, psychological abuse, and other acts that fall outside the legal definition as acceptable interview and interrogation behavior have no place in the behavior of the civil police. I wholeheartedly support review, supervision, and punitive personnel actions for law enforcement personnel who violate the rules.


However, the authors also seem to suggest that the primary culpability in cases of false confessions lies with the law enforcement component of the process. I do not agree with this. Outside of intentionally or grossly negligent violation of rules both statutory or administrative, the culpability lies also with the practicing attorneys and the courts.

See what he did there?  The line’s been drawn, the sides have been picked. It’s not the cops’ job to differentiate between true and false confessions, it’s ours. Barksdale doesn’t deny that false confessions happen, or that the rules of the game shouldn’t be enforced, but he similarly realizes (which is where reality smacks the main body of the post upside the head) that it will still result in false confessions.

Why?



Assumption 1: There are no absolutes. 


No one tells the truth because there is no such thing as the truth. The truth is only what is accepted in court as fact. Research in cognition and perception seem to bear this out as phenomena of the human condition. Law Enforcement officers are therefore in the information gathering business. It is their job to get as much information as possible on a given event. In any event, an interviewer gets only the first best story, or, as it is often facetiously called, the “first best lie.”

Facetious or not, this is what every criminal defense lawyer confronts when he’s given notice of his client’s statement, the first best lie.  The cops know it’s true. We know it’s true. And we just keep banging our head against the wall, trying to get people to learn to not to talk.  Despite all advice and admonitions, they just can’t stop themselves, and so the first best lie is what comes out. All the time. 

Most of the ideas offered by the authors of the main post to cleanse the system of false confessions are more grounded in fantasy than reality, the hard, cold truth is that there is no good argument to a jury that they should believe what the defendant says now and accept that he was understandably lying before.

As true as it may be that people falsely admit to crimes they didn’t commit, it’s similarly true that there is no magical way to distinguish the false confession from the true confession.  In the absence of physical evidence to bolster the claim of false confession, it is ultimately left to the lawyer to persuade the jury that day is night. In the real world, this doesn’t work out nearly as well as it should.




7 comments on “First Best Lie

  1. cccc

    The most chilling things we learn from Barksdale are 1) When we ask why cops do what they do, “Because they can” is in fact the right answer. Since “experienced law enforcement officers know that the rules change on a regular basis” as long as they are acting within the current set of rules, they are not to blame for the result. Was is Barksdale’s intention to paint police as being devoid of their own moral compass? Unable to determine right from wrong they need the law to restrain them. A group that would rape, sodomize suspects if only it were legal. 2) Police officers really do see the Constitution as an obstacle that should not so much be obeyed, but circumvented properly. And this “willingness to test the boundaries of the rules are the mandate of contemporary law enforcement interviewers, in the quest to maximize the gathering of information.”

    Frightening stuff.

  2. SHG

    Exactly. Barksdale’s commentary is frighteningly real. Some will find it shocking that he doesn’t see the problems from our perspective, but more likely that he’s shocked at our inability to see his. There really is a huge, perhaps unbridgeable gap, in how we believe the system should work.

  3. Rita Handrich

    Thanks Scott for reading all the way through even though you found it tedious and quasi-academic! There actually IS a direct link to Larry’s posting–it’s right under the title where you will find direct links to every invited commenter’s posting (Saul Kassin, Walter Katz, Karen Franklin and Larry Barksdale). Larry was asked to respond exactly because he would bring a different perspective to the paper.

    The literature is voluminous. The findings disturbing. And we end up disagreeing. I find that totally shocking! What I found is the academic literature made the actual story (filled with despair and uncomfortable realities) seem predictable as it has happened all too often before.

    Research informs practice. Practice informs research. It’s a nice cycle of theory and practice and how they can fit together to help justice happen. Not so simple that justice thing.

  4. SHG

    It’s unfortunate that for all the academic effort, research did so little to inform practice. But then, my perspective is from the practice side, and what may appear to be a good fit from the research perspective may not help “justice happen” nearly as well as those who put in the effort want to believe.

  5. Konrad

    Barksdale certainly has a way of being precise with his words, especially in certain spots:

    “waterboarding is not permitted by civil law enforcement agencies in the United States”

    “in the United States, civil police practices are such that inflicting physical pain”

    “acts that fall outside the legal definition […] have no place in the behavior of the civil police.”

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