Grits for Breakfast has an incredibly useful post providing a structural framework for understanding why false confessions happen, together with some contentions about how to deal with them. 

University of San Francisco academic Richard Leo expounded on his research into police interrogations and the causes of false confessions. (See Grits’ prior discussions of Leo’s work here, here, here, and here.) What follows is a recap from my notes:

False confessions are exceptions, said Leo, not the norm, but they are caused by flaws in policing techniques that make them much more likely to happen. As has been discussed previously on Grits, most police interrogation training in the United States is based on the so-called “Reid method,” which teaches there are three stages to the process of questioning suspects: Behavior analysis, the interview, and the interrogation.

Police tactics that encourage false confessions include erroneous behavior analysis and moving too quickly from the “interview” to the “interrogation” phase.

So why bother spending time gaining an academic understanding of the mechanics of false confessions?  After all, we’re trench lawyers; we know these things happen and we can argue our way out of anything, right?  Wrong.  When we don’t have a clear, firm grasp of how and why people do something that ordinary people consider incomprehensible,

As a group, criminal defense lawyers implicitly accept the idea of false confessions, knowing with certainty that they happen from the wealth of DNA reversals that follow confessions.  But then, we’re the advocates, not the fact-finders, so who cares what we know.  We need to be able to transmit our knowledge to the jury in a way that jurors find comprehensible if we are to be capable of using our knowledge effectively.

How to address this problem, however, is another matter.

While Leo said recording interrogations would be his top recommendation for reducing false confessions, he mentioned several other approaches worth recording here:

• Expanded police training on the causes of false confessions and how to avoid them.
  
• Create a post-confession review team when a confessor falls in an at-risk group
  
• Jury instructions where confessions are the primary evidence.
  
• Allowing expert witnesses in court to dispute confessions.

Those last two on the list are Leo’s least recommended options, he said, because they occur so late in the process the damage has mostly been done. He preferred approaches that might catch or prevent false confessions earlier in the process, long before the defendant ever gets to trial.

It’s certainly true that society would be far better off if people were saved from prosecution by false confession, but it strikes me as quite naive to believe that cops, whose purpose in life is to close cases by jumping to conclusions and then gathering evidence to support their assumptions, are going to have a sudden desire to seek justice rather than scalps.

I’ve expressed similar doubts about the silver bullet of recording interrogations, which I see as the false confession equivalent of Miranda, another bright line rule that will be manipulated through relatively easy and obvious means to provide hi-def evidence against defendants while concealing the “nudge” in the back seat of the cruiser and on the way into the holding cell.  I fear the panaceas that are rife with opportunity for abuse.  They sound so wonderful, but lock us into the nightmare yet to come.

Lacking any stroke of genius as to how to prevent false confessions in the first place, and unwilling to accept reliance on the good faith of police to save us from false confessions, it remains our burden to make sure that bad doesn’t turn to worse by a conviction based upon a false confession.  The best way to do this is to understand what we’re talking about.

Read all of Scott’s posts about Leo and false confessions.  It’s always best to know your enemy.