False Confessions, Explained

“I am going to say it folks: people who have no idea, who weren’t there, who weren’t involved, do not confess, especially to murder. It goes against everything you have ever known and all your common sense. No one confesses to a murder that they did not commit; no one.”(((Prosecutor’s closing argument, Commonwealth v. Willie Veasy, p. 108.)))

As a criminal defense lawyer, I heard many prosecutors make that same argument to juries. And it’s kind of hard to argue with that logic. Yet, we know that people do, in fact, confess to crimes they never committed. Demonstrably false confessions plague wrongful convictions. Since the National Registry of Exonerations began tracking exonerations, consistently 20 percent of all exonerations have involved someone who “confessed” to a crime they didn’t commit.(((https://www.law.umich.edu/special/exoneration/Pages/detaillist.aspx?View={faf6eddb-5a68-4f8f-8a52-2c61f5bf9ea7}&SortField=FC&SortDir=Asc&FilterField1=FC&FilterValue1=8%5FFC (last visited April 28, 2021).))) 

How can that be? And why aren’t false confessions discovered before a wrongful conviction happens?

What is a False Confession?

A false confession is a statement given by a person that incriminates them in a crime they did not commit. Scientists who study this phenomenon group false confessions into three general categories: (1) voluntary; (2) coerced-compliant, and (3) coerced-internalized.(((There are, of course, myriad of cases where a confession was presented at trial that police either concocted wholly or in part. This article is focused on the phenomenon where the suspect admits the words in the purported “confession” were said.)))  Voluntary confessors know what they are stating is untrue; the classic example is when aviator Charles Lindbergh’s baby was kidnapped and hundreds of people claimed responsibility.(((Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 14 (2010).))) These people are often driven by intense feelings of delusion, guilt, or even desire for notoriety. While a fascinating topic, because those who voluntarily confess do so without police action, the focus here is on the coerced confession.

For over a decade I represented a man named Willie Veasy. Veasy was convicted of a murder he had nothing to do with; in fact, at the moment the murder took place, Veasy  was working miles away in a packed restaurant as a dishwasher on a busy Friday night. And yet the most compelling evidence the prosecutor offered at his trial were Veasy’s own words, which seemed to admit to firing the shot that killed John Lewis on January 24, 1992 in Philadelphia. 

Detectives presented a 9-page handwritten document they claimed was contemporaneously recorded and encompassed the entire statement Veasy gave six months after the murder.(((The statement was neither video nor audio recorded. Philadelphia has since changed that policy, adopting a directive in January 2014 that all homicide statements be recorded.))) According to Veasy’s statement, he was playing basketball when a man drove up in a blue four-door car (witnesses said the car was two-door and red or maroon) and he got in the back seat when the man driving asked him to help rob “some dudes” in retaliation for a previous slight. The driver handed Veasy a gun while they drove, and when they arrived where “the dudes” were, the statement says Veasy and the driver both got out of the car (witnesses said only the front passenger got out) and they started shooting (witnesses said the front passenger got out and spoke to a drug dealer and shot him at close range). The bullets hit two men across the street who were running away—the decedent John Lewis and his friend who was with him (witnesses said the single back seat passenger stayed in the car). 

But in reality, at the moment Lewis was shot, Willie Veasy was working at a busy suburban restaurant 5 miles away. The jury saw Veasy’s time card showing he was at work during the entire time of the shooting. But it wasn’t enough. Despite the defense counsel’s argument that Veasy could not possibly be in two places at one time, the jury convicted him for the murder.(((The Commonwealth charged Veasy with first-degree murder and sought the death penalty at trial. The jury deliberated for nearly a week before returning a guilty verdict on second-degree murder thus sparing Veasythe death penalty.))) It would take over 27 years to right the wrong of that verdict.

Veasy is hardly alone. In fact, he is just one of the 336 documented exonerations involving a false confession.(((https://www.law.umich.edu/special/exoneration/Pages/detaillist.aspx?View={FAF6EDDB-5A68-4F8F-8A52-2C61F5BF9EA7}&FilterField1=FC&FilterValue1=8%5FFC (last visited 4/12/2021)))) Which raises the questions: How and why do police push people to confess falsely? And why do courts allow prosecutors to use these statements in court?

In Theory, Coerced Confessions Cannot Be Used As Evidence

The only mechanism to prevent the state from entering a statement or confession is by moving to “suppress” the statement or any testimony about it.(((It is also possible, of course, to move to exclude a statement as unreliable but those motions are not typically made and have never to this author’s knowledge been granted with respect to a defendant’s purported confession. ))) A motion to suppress evidence is a pretrial motion where the defense asks the court to prevent the prosecution from presenting evidence secured in violation of the Constitution. Most exonerees who falsely confessed sought to keep the government from using their false statement at trial but were denied.

In the case of a statement, defense lawyers typically allege violations of the Fifth Amendment (the right against coerced self-incrimination) or of the due process clause of the 14th Amendment. Motions under the Fifth Amendment ask the court to find that the statement was obtained without the person’s knowing, intelligent, and voluntary waiver of his rights to remain silent and not incriminate himself.(((Miranda v. Arizona, 384 U.S. 436, 475, (1966) (“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.”) (citing Johnson v. Zerbst, 304 U.S. 45 (1938)). The same rights were extended to juveniles in custody through In Re Gault, 387 U.S. 1 (1967).))) Whether a statement is given involuntarily turns on whether the individual’s will has been “overcome” and the confession was “obtained by compulsion.”(((Miranda, at 462.))) As the Supreme Court observed over one hundred years ago, “[i]n short, the true test of admissibility is that the confession is made freely, voluntarily, and without compulsion or inducement of any sort.” 

Whether a statement is made voluntarily generally hinges on two questions: (1) did the suspect receive his required Miranda warnings; and (2) was there coercion—both as to the decision to waive the right to remain silent and speak with police, and the confession the person ultimately provided? The answer to the first question is usually almost pro forma: officers typically produce a small card or sheet where the suspect answered the Miranda requirements.(((In Veasy’s case, the form required him to write in answers to the following questions: Do you understand that you have a right to keep quiet, and do not have to say anything at all? (answer – Yes); Do you understand that anything you say can and will be used against you? (answer – Yes); Do you want to remain silent? (answer – No); Do you understand that you have a right to talk to a lawyer before we ask you any questions? (answer – Yes); Do  you understand that if you cannot afford to hire a lawyer, and you want one, we will not ask you any questions until a lawyer is appointed for you free of charge? (answer – Yes); Do you want to talk with a lawyer at this time, or to have a lawyer with you while we ask you questions? (answer – No); Are you willing to answer questions of your own free will, without force or fear, and without any threats or promises having been made to you? (answer – Yes).))) The burden then falls on the interrogated person to prove that police obtained that waiver improperly. Once a court determines someone voluntarily waived his right against self-incrimination, the court turns to the due process question: did police coerce the person into providing the statement?

Under this standard, courts have effectively outlawed various police practices in the interrogation room over the past century, most broadly the use of physical force to coerce a suspect into “confessing.” Gruesome depictions of physical abuse are legion: whippings,(((Brown v. Mississippi, 297 U.S. 278 (1936).))) sleep deprivation, physical beatings, cigarette burns,(((People v. Portelli, 15 N.Y.2d 235, (1965).))) and even thinly veiled threats of lynching have all been used by police to obtain confessions.(((Payne v. State of Ark., 356 U.S. 560, 564–65(1958).))) Aside from physical coercion, courts have recognized limited types of mental coercion that could invalidate a confession such as threats of the death penalty, outright promises of leniency, or threats of physical harm.  

In Practice, Police Coercion Happens All The Time

To be sure, Miranda warnings and these other doctrinal rules are insufficient to prevent false confessions. Allegations of physical coercion occur less frequently, but false confessions continue. If not using physical force, and not outright threatening or making blatant false promises, how are police getting innocent people to confess to crimes they did not commit? And why are courts seemingly powerless to stop it from happening?

Without physical coercion, police have fallen back to rely upon interrogation tactics that lean heavily on psychological measures, and that courts still allow despite empirical research demonstrating their coercive effect. Police are trained as “human lie detectors” in order to distinguish truthful witnesses from deceptive suspects.(((Following a popular interrogation training method known as the Reid Technique, detectives first engage in a “Behavior Analysis Interview,” during which they are looking for signs of deception in the suspect. They ask questions intended to gauge behavior (a favorite being “What do you think should happen to the person who did this?”) and looking for behavior responses they are told correspond to deception (such as looking down, changing posture, slumping in the chair). Although studies have consistently found zero connection between such behavior and lying, detectives gain a false sense of accuracy in their skills which causes them to believe the person before them is lying, which leads them to move to interrogation. See Aldert Vrij, Nonverbal Dominance versus Verbal Accuracy in Lie Detection: A Plea to Change Police Practice, 35 CRIM. Just. & BEHAVIOR 1323 (2008) (noting research showing those who “just pay attention to nonverbal cues are less accurate in discriminating between truths and lies than those who take speech content into account” and “when observers just pay attention to visual cues, they are more inclined to accuse someone, even truth tellers, of lying”).))) There is no evidence that such training actually works, but it nonetheless controls how police conduct interrogations. Following this dubious training, officers engage in questioning techniques aimed not at getting information from the individual about a crime under investigation, but at analyzing the person in front of them to discern their inner motivations. If police decide someone is lying or is refusing to admit to a crime the police believe they committed, the point of interrogation has little to do with finding the truth, and everything to do with securing a confession.

Unlike in other parts of the world, police in the United States are allowed to lie to suspects during an interrogation.(((Frazier v. Cupp, 294 U.S. 731, 739 (1969).))) Often police use a “false evidence ploy” to increase the pressure on a suspect toward confessing—whether they committed the crime or not. This particular tactic has been cited by leading false confession experts as a main driver behind innocent people “confessing” to crimes they never committed.(((See, Saul Kassin, On the Psychology of Confessions: Does Innocence Put Innocents at Risk?, American Psychologist, 60, 215-28 (2005).))) 

When police interrogated Veasy, they told him that multiple witnesses identified him as being the shooter. A lie. Veasy didn’t know that and thought his best option was to “tell them what they wanted to hear.” Likewise, Minneapolis police told 16-year-old Myon Burrell his own mother admitted he was “capable” of shooting someone. That was a lie. But it shook Myon enough to have him question what was happening around him and he was led into a false confession. When 17-year-old Marty Tankleff was interrogated about his parents’ murder in New York, police told him his father used his dying breaths to accuse him of the crime. Utterly fabricated. Courts did not find any of these tactics to be coercive, and therefore upheld them as constitutional.

Another major factor in false confessions is “contamination.” Showing crime scene photos or sharing other evidence is a typical way police contaminate a person’s story, prompting them to incorporate facts about a crime of which they otherwise have no knowledge.(((James Trainum, How the Police Generate False Confessions – An Inside Look at the Interrogation Room, Rowan & Littlefield (2016), pp. 133-35.))) It is how innocent people with no knowledge of a crime learn what happened: police can unintentionally (or intentionally) leak information to the suspect when trying to convince them of the strength of the “evidence” against them.

As shown in the widely viewed Netflix documentary “Making a Murderer,” this is precisely what the police did to 16-year-old Brendan Dassey, who the police suspected of murder. When officers interrogated Brendan (after he waived his Miranda rights) about the murder of a photographer on his uncle’s property, they became visibly frustrated that Brendan would not admit to shooting the victim in the head—a fact unknown outside the investigation. Finally, the detective just asked, “Who shot her in the head?” to which Brendan replied, “he did” (meaning his uncle Steve Avery). When asked why he didn’t mention that earlier, Brendan said he “couldn’t think of it.”(((Dassey v. Dittmann, 201 F.Supp.3d 963, 997 (E.D. Wis. 2016), aff’d, 860 F.3d 933 (7th Cir. 2017), reh’g en banc granted, opinion vacated (Aug. 4, 2017), on reh’g en banc, 877 F.3d 297 (7th Cir. 2017), and rev’d, 877 F.3d 297 (7th Cir. 2017).)))

Another tactic linked to false confessions is minimizing the moral depravity of a criminal act to make it more “acceptable” for someone to confess. The tactic is taught as posing an “alternative question.” The interrogator is trained to ask a question with two possibilities so that either answer is incriminating. For instance, the interrogator may ask, “Did you rape her in the spur of the moment, or did you plan it beforehand?” (the option “I didn’t rape anyone” is not presented). The first option carries a lower moral culpability and researchers believe it also carries an implied promise of leniency.(((Kassin, Police-Induced Confessions, supra, at 18 (“the pragmatic implications of a communication suggests the possibility that suspects infer leniency in treatment from minimizing remarks that depict the crime as spontaneous, accidental, pressured by others, or otherwise excusable–even in the absence of an explicit promise”).))) Indeed, in the notorious wrongful conviction involving five innocent boys convicted of raping a woman in Central Park in the 1980s—known collectively as the Exonerated Five— all of the boys who “confessed” believed they would be allowed to go home for their cooperation.

Courts, however, do not recognize these techniques as “coercive.” Even with experts testifying about the coerciveness of these techniques, courts consistently refuse to keep these statements from the jury.(((See, e.g., McIntosh v. State, 829 N.E.2d 531, 540 (Ind. Ct. App. 2005).))) Other questions, such as whether the statement has internal reliability, are left for the jury to work out.((( See Colorado v. Connelly, 479 U.S. 157, 167 (1986) (“A statement rendered by one in the condition of respondent might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary laws of the forum, see, e.g., Fed.Rule Evid. 601, and not by the Due Process Clause of the Fourteenth Amendment. “The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.””) (citing Lisenba v. California, 314 U.S. 219, 236 (1941))))) Had reliability been a precursor to admissibility in  Veasy’s case, the jury would not have had his “confession” to consider and he would likely have been spared 28 years of wrongful imprisonment.

What Can Be Done?

Efforts to reform police interrogation tactics are increasing. A predominant suggestion is for police to be required to audio and video record the entire interaction with someone. According to the Innocence Project, more than 25 states and the District of Columbia require recordings of custodial interrogations. Some of these requirements, like Alaska’s, are by court action, but most are through legislation. Even some federal agencies—the FBI, the Drug Enforcement Agency (DEA), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)—are required to record all custodial interrogations of individuals suspected of any federal crime.(((https://innocenceproject.org/false-confessions-recording-interrogations/))) 

New York is considering legislation that would go further, and prohibit police from “knowingly communicating false facts about evidence” to someone during an interrogation; in other words, no more lying.(((SB 324, available at https://legislation.nysenate.gov/pdf/bills/2021/s324. ))) Some courts have also started to push back on police deception. In 2019, the Hawaii Supreme Court ruled that lying to people about their results from a polygraph test is inherently coercive, and that any statements given in response must be excluded from evidence. Lying about lie detector tests—telling people that they failed when in fact they passed—is a police tactic to trick people into thinking the evidence against them is stronger than it is. It can even make innocent people question their own certainty and consider the possibility that they may be guilty. It is, as researcher Saul Kassin writes, why innocence puts innocents at risk for falsely confessing.(((Saul M. Kassin, On the Psychology of Confessions: Does Innocence Put Innocents at Risk?, 60 AM. PSYCHOL. 215, 216, 223 (2005) (describing how innocent individuals may place more trust that law enforcement will ultimately clear them and as a result, place themselves at risk of falsely confessing).)))

“Extensive scientific literature and numerous documented cases have demonstrated the coercive nature of falsified polygraph test results,” the Hawaii Supreme Court wrote. “They can change a suspect’s beliefs, pressure a suspect to confess, and even cause the suspect to believe they committed the crime when they did not.” That is, the court said, “false polygraph results may psychologically prime an innocent suspect to make a confession.”

Other courts could follow this lead, and recognize how police deception of all kinds is often coercive and therefore unconstitutional.

And the police themselves are increasingly looking for ways to interrogate that avoid coercion and are geared toward good-faith fact-finding over securing confessions. In response to the state terrorism of “enhanced interrogation” techniques and torture by the George W. Bush Administration, President Obama authorized the Department of Defense to fund research in psychology and the behavioral sciences to understand what works and what doesn’t in interrogations. This effort, known as the High Value Detainee Interrogation Group (HIG), has produced hundreds of studies examining the science of interrogations. The Los Angeles Police Department has trained some of its officers in tactics developed by HIG-funded research centered on cognitive interviewing. Similarly, a detective in Tempe, Arizona has collaborated with researchers to develop a completely science-based interview curriculum that moves away from traditional confrontational and accusatory methods and toward non-coercive information-gathering techniques supported by field validation studies. But with over 6,000 law enforcement agencies in the U.S., there is a lot of work left to do.

Even moderate reforms, such as videotaping the interrogation, would have allowed Veasy’s jury to see what happened in the interrogation room and judge for themselves whether it was a true confession. Had police engaged in an investigative interview rather than a coercive one, he wouldn’t have been in that defendant’s chair at all.

False confessions are a problem of enormous consequence; ending them is an ethical and moral imperative. Reducing the risk of false confession and preventing injustices begin with the police to be sure, but responsibility for truly stopping them lies with all the stakeholders in the criminal legal system.