“If we measure the justice system only by the number of guilty people who are convicted, then we must consider the Salem witch trials a resounding success, since 100 percent of the witches in Salem were convicted. Rather, I suggest that the founders of our nation wisely added safeguards to decrease that other measure of the justice system — the number of innocents convicted.” – Greg Hampikan, Professor of Criminal Justice and Director of the Idaho Innocence Project, in an article titled “
Salem Witch Trials, Guantanamo Have a Lot in Common”
Today, with the gift of hindsight, the vast majority of Americans condemn the
Salem witch trials for the sham that they were. Yet to this day we still have a very long way to go to learn the central lesson of that disgraceful episode of American history: That our desire to obtain evidence of guilt often overshadows our desire for justice.
A
bit of sarcasm captures the general idea:
Torture works! If it wasn't for Salem's patriotic witch hunters, 19 confessed witches wouldn't have been sent to the gallows. Among the charges the tortured accused confessed to, in vain attempts to avoid the gallows:
Flying through the air on a pole; speaking with the devil and writing in his book; acts of terrorism against the people of Salem. Also, two dogs were executed as accomplices to witchcraft.
We no longer burn witches to death in the United States. But in more subtle ways the desire for revenge often overwhelms the desire for truth and justice.
Torture and false confessionsLong after the Salem Witch Trials were exposed as the shams that they were, torture continued to be used in the United States to obtain confessions. It wasn’t until 1936 that the U.S. Supreme Court came down solidly against this practice, in
Brown v. Mississippi.
In that case, the Supreme court began its ruling by describing the crux of the case:
The question in this case is whether convictions which rest solely upon confessions shown to have been extorted by officers of the State by brutality and violence are consistent with the due process of law required by the Fourteenth Amendment of the Constitution of the United States.
The salient facts of the case:
They hanged him by a rope to the limb of a tree, and, having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and still declining to accede to the demands that he confess… A day or two thereafter, the said deputy, accompanied by another, returned to the home of the said defendant and arrested him… The deputy stopped and again severely whipped the defendant, declaring that he would continue the whipping until he confessed, and the defendant then agreed to confess to such a statement as the deputy would dictate, and he did so…
The trial court was fully advised by the undisputed evidence of the way in which the confessions had been procured. The trial court knew that there was no other evidence upon which conviction and sentence could be based. Yet it proceeded to permit conviction, and to pronounce sentence….
In a unanimous decision,
the court ruled that the due process clause of our 14th Amendment was indeed violated in this case, and the conviction of the defendant by a lower court was reversed.
Yet the use of torture to obtain confessions has not completely ceased in our country. As recently as 2002, torture was used
to extract a confession from Ibn Shaikh al-Libi, and that confession was used to make the false claim that Saddam Hussein provided al Qaeda with weapons of mass destruction. In turn, that false claim was used by George W. Bush to help support his case for war against Iraq.
False confessions in recent times without the use of tortureThe use of torture to obtain confessions in the United States pretty much went out of style during the latter half of the 20th Century, notwithstanding the Bush regime’s reviving its use to obtain confessions to support its decision to invade Iraq. But that did not put an end to the use of coercive methods to obtain false confessions as “evidence” of guilt. Indeed, coercive psychological methods to induce false confessions may be almost as effective as torture, and are very
commonly used today:
In the 1980s and 1990s, research by Saul Kassin, Richard Ofshe and Richard Leo confirmed that the common psychological interrogation techniques can erode a suspect’s resistance to the point that even an innocent person will “conclude that confession is both a rational choice and his best option.” The problem is especially acute in murder cases where tremendous pressure is put on the police to solve the crime, and this, in turn, leads the police to put tremendous pressure on suspects in the interrogation room to get a confession.
A common denominator in police eliciting false confessions is
lying to the accused:
The use of false evidence (including statements such as, "Your fingerprints are on the gun") in interrogation is implicated in almost every false-confession case.
Despite the Supreme Court ruling against torture to obtain confessions, and despite the
Miranda ruling requiring that the accused be read their rights, psychologically coercive methods are
generally deemed to be legal:
In contrast, psychological coercion, under current rules, does not automatically count as coercion; rather, psychological tactics must be proven to be coercive under a "totality of circumstances" test, as the Supreme Court held in
Haynes v. Washington.
The end result is that false confessions remain today a very common cause of convicting innocent people.
A 2005 study of 340 exonerated cases (i.e. cases where guilty verdicts were overturned based on new evidence – usually DNA evidence) in the United States demonstrated that 15% of the convictions were based on false confessions. The “
Innocence Project” notes that in about 25% of DNA exoneration cases, “innocent defendants made incriminating statements, delivered outright confessions, or pled guilty”. And in a study of exonerations between 1989 and 2004, law professor Samuel Gross and his associates concluded in an article titled “
Exonerations in the United States, 1989-2004”:
If we reviewed prison sentences with the same level of care that we devote to death sentences, there would have been over 28,500 non-death-row exonerations in the past 15 years, rather than the 255 that have in fact occurred.
Some examplesThe Central Park jogger rape caseOne of the most famous examples of the role of false confessions in producing a guilty verdict is the
Central Park jogger rape case. A white woman jogger was raped and viciously beaten and left for dead. Five black teenagers, aged 14-16, were arrested and interrogated for this crime, and false confessions or incriminating statements were elicited from all five of them. There was no physical evidence linking the boys to the crime, and the confessions were mutually contradictory. Yet so much credence is given in our culture to the value of confessions that their confessions alone served to convict them, and they all subsequently served several years of jail time:
A defendant's confession is considered by judges and juries to be compelling and unequivocal evidence. Indeed, the power of a confession is so strong, according to
McCormick's treatise on evidence, as to make other aspects of the trial superfluous. As demonstrated in this case, a confession can even override strong physical evidence to the contrary.
But why would they confess to a crime that they didn’t commit? Psychologists Carol Tavris (my cousin) and Elliot Aronson discuss this issue in their book, “
Mistakes were made (But not by me) – Why we Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts”:
Of the cases in which length of interrogation could be determined, more than 80% of the false confessors had been grilled for more than six hours straight, half for more than twelve hours, and some almost nonstop for two days.
That was what happened to the teenagers arrested on the night the Central Park Jogger was attacked… When social scientists and legal scholars were able to examine the videotapes… their statements turned out to be full of contradictions, factual errors, guesses, and information planted by the interrogator’s biased questions…
After long hours of interrogation, wanting nothing more than to be allowed to go home, the exhausted suspect accepts the explanation the interrogators offer as the only one possible, the only one that makes sense. And confesses. Usually, the moment the pressure is over and the target gets a night’s sleep, he or she immediately retracts the confession. It will be too late.
Many years later the true perpetrator was found when he confessed to the crime and the DNA in his semen was found to match that found in the victim’s vagina at the time of the crime.
The Richard Danziger case – The importance of videotaping police interrogationsIn 1988 a young woman was tied up, raped, and shot in the head. Richard Danziger and his roommate, Chris Ochoa, were interrogated by police in connection with the crime. Though Danziger maintained his innocence, Ochoa “confessed”, implicated Danziger, and pled guilty. Based on that evidence alone,
Danziger was convicted of the crime, though his semen did not match that found at the scene of the crime.
Eight years later another man, who was serving a life sentence in a Texas prison for other crimes, confessed to the crime. He sent letters of confession, indicating a detailed knowledge of the crime, to then-Governor George W. Bush. The letters went unanswered. Eventually the case was made public, and Ochoa and Danziger were able to get the police to conduct DNA testing, which exonerated them.
The publicity surrounding this case brought to light an important point about the pursuance of justice in these kinds of cases. Three of the convicting jurors were horrified to learn about the false confession, and they coauthored an article titled “
Jurors regret convicting an innocent man”, in which they argued for the need for interrogations to be taped and shown to jurors:
This shocking discovery left us confused, angry and wondering how this tragic error could have ever happened. ...
We were horrified to learn after Danziger’s exoneration that Ochoa’s interrogation was characterized by lies about inculpatory evidence and threats that if he did not confess and testify against Danziger, he would receive the death penalty. None of this came to light during the trial, however, because there was no record of the interrogation procedure. Had we been given the opportunity to see the context of Ochoa’s confession, including the coercive tactics that were used for hours against him, we would have at least had something to deliberate about. We did the best we could with the evidence provided to us; unfortunately, that evidence was dangerously incomplete, undocumented and untrue....
Troy DavisThe now 21-year old case of Troy Davis is a little different than the two described above because what the police obtained through coercion were not confessions. Rather, they coerced eye witness testimony. But the methods were very similar to the coerced confessions described above.
In the early hours of August 19, 1989, a fight broke out near a Burger King restaurant in Savannah, Georgia, between a homeless man, Larry Young, and another man, who struck Mr. Young with his pistol. A 27-year old police officer, Mark Allen MacPhail, attempted to break up the fight, but was shot dead by the man with the gun, who then fled the scene.
About two years later, Troy Davis was convicted of the murder of Mark MacPhail and sentenced to death. The evidence against him consisted of seven eye-witnesses to the murder and two witnesses who claimed that Davis later confessed the murder to them. There was no other evidence, as the murder weapon was never found.
However, of the nine witnesses, seven subsequently recanted their testimony in written affidavits. One of the two who has not recanted his story has subsequently been identified as the murderer by new evidence.
I discuss the case in more detail in
this post. Here I’ll just quote from an official statement of Darrell Collins,
recanting his previous testimony in which he implicated Troy Davis in the murder:
The police put me in a small room and some detectives came in and started yelling at me, telling me that I knew that Troy Davis…killed that officer by the Burger King. I told them that… I didn’t see Troy do nothing. They got real mad when I said this and started getting in my face. They were telling me that I was an accessory to murder and that I would pay like Troy was gonna pay if I didn’t tell them what they wanted to hear. They told me that I would go to jail for a long time and I would be lucky if I ever got out… I was only sixteen and was so scared of going to jail…
I told them that it was Red and not Troy who was messing with that man, but they didn’t want to hear that… After a couple of hours of the detectives yelling at me and threatening me, I finally broke down and told them what they wanted to hear. They would tell me things that they said had happened and I would repeat whatever they said.
I testified against Troy at his trial. I remember that I told the jury that Troy hit the man that Red was arguing with. That is not true. I never saw Troy do anything to the man. I said this at the trial because I was still scared that the police would throw me in jail for being an accessory to murder if I told the truth about what happened.
Yet 21 years later, Troy Davis remains in prison, on death row.
Why?Carol Tavris and Elliot Aronson discuss the psychology behind police use of coercive methods to obtain confessions. They describe a conversation between an innocent man who spent more than two decades in prison for murder before being exonerated and his lawyer:
“But don’t they want the truth?” (asked the innocent man). “Yes (His lawyer answered), and they are convinced they have found it. They believe the truth is you are guilty. And now they will do whatever it takes to convict you.” …
Tavris and Aronson describe the psychology that explains how this mind set leads to coercive techniques to obtain false confessions, and how the legal blurs into the illegal:
Doing whatever it takes to convict leads to ignoring or discounting evidence that would require officers to change their minds about a suspect. In extreme cases, it can tempt individual officers and even entire departments to cross the line from legal to illegal actions. The… Los Angeles Police Department set up an anti-gang unit in which dozens of officers were eventually charged with making false arrests, giving perjured testimony, and framing innocent people; nearly one hundred convictions hat had been attained using these illegal methods were eventually overturned…
Corrupt officers like these… are led down the (slippery) slope of the pyramid by the culture of the police department and by their own loyalty to its goals… Once officers believe that lying is defensible and even an essential aspect of the job… dissonant feelings of hypocrisy no longer arise. The officer learns to rationalize lying as a moral act… Thus, his self-concept as a decent, moral person is not substantially compromised….
The most common justification for lying and planting evidence is that the end justifies the means… Another said, “If we’re going to catch these guys, fuck the Constitution”. When one officer was arrested on charges of perjury, he asked in disbelief, “What’s wrong with that? They’re guilty”…
The problem is that once they have decided on a likely suspect, they don’t think it’s possible that he or she is innocent. And then they behave in ways to confirm that initial judgment, justifying the techniques they use in the belief that only guilty people will be vulnerable to them.
Coercive techniques to obtain false confessions are a systemic problemTavris and Aronson cite the
9-Step Reid Technique, whose authors claim has “trained more than 300,000 law-enforcement workers in the most effective ways of eliciting confessions”. The manual states:
It is our clear position that merely introducing fictitious evidence during an interrogation would not cause an innocent person to confess. It is absurd to believe that a suspect who knows he did not commit a crime would place greater weight and credibility on alleged evidence than his own knowledge of his innocence. Under this circumstance, the natural human reaction would be one of anger and mistrust toward the investigator. The net effect would be the suspect’s further resolution to maintain his innocence.
Tavris and Aronson comment on that assertion:
Wrong. The “natural human reaction” is usually not anger and mistrust but confusion and hopelessness – dissonance – because most innocent suspects trust the investigator not to lie to them.… And interrogation is designed to get a suspect to admit guilt. The manual states this explicitly: “An interrogation is conducted only when the investigator is reasonably certain of the suspect’s guilt.”
One can think of this is as a two-step process. First, the police officer determines that that suspect is guilty. And then, he does everything he can to elicit a confession. But there are two major fallacies at work here. First is the fact that, though they may be trained to believe that they can determine a suspect’s guilt or innocence, a study titled “
I’d Know a False Confession If I Saw One: A Comparative Study of Police Officers and College Students” showed otherwise. In that study, police officers and college students were asked to distinguish between true and false confessions from watching a videotape of confessions of known truth or falsity. The study showed that the college students were more accurate in the judgments than police officers, though the police officers maintained significantly more confidence in their judgments than the college students.
Police officers may be little different than most other people in this regard. Tavris and Aronson make a similar point about prosecutors – and people in general. What this illustrates is the general human tendency to look for certainty where it doesn’t exist, and the great aversion that most people have to being shown to be wrong.
The tragedy is that this general human tendency in the hands of those who are responsible for meting out justice too often results in the conviction of innocent people. More generally, the phenomenon of coerced false confessions signifies a tragic problem with society itself – the tendency to think emotionally rather than rationally in situations that urgently call for rational scientific thinking. This is explained by Tavris and Aronson’s summation of the problem with the Reid manual:
The manual is written in an authoritative tone as if it were the voice of God revealing indisputable truths, but in fact it fails to teach its readers a core principle of scientific thinking: the importance of examining and ruling out other possible explanations for a person’s behavior before deciding which one is the most likely.
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