There are few areas in all of the law, much less in the area of criminal justice, more compelling than that of criminal exonerations. Over the last year alone many Texans have been gripped with the exoneration saga of Michael Morton. What makes the story of Mr. Morton even more compelling is that it involves not only blatant governmental misconduct, but exoneration due to advancements in DNA testing. DNA testing has had an indelibly positive impact on almost every aspect of criminal law. There have been 301 post-conviction DNA exonerations in the United States, with the first DNA exoneration having taken place in 1989. Exonerations have been won in 36 states and in Texas, 84 people have had their convictions overturned since 1989. Most astounding is that in 27% of national exoneration cases, false confessions and incriminating statements led to an individual’s wrongful conviction. Moreover, 28 individuals not only confessed to a crime that they didn’t commit, but subsequently pled guilty in open court to a crime they didn’t commit. How can that happen?

The common-sense notion is that no one would confess to a crime he or she did not commit. As counter-intuitive as it may seem however, false confessions occur regularly, as the above-referenced statistics indicate. If approximately 27% of the total number of exoneration cases involved a false confession and if 10% of the two million men and women imprisoned in the United States are innocent, as estimated by the Department of Justice, then we can extrapolate that as many as 50,000 of their convictions involved false confessions. False confessions destroy lives and keep the true perpetrators of terrible crimes from being brought to justice.

How do false confessions happen?

We need only look at the techniques police are trained to use on suspects to understand how confessions can be coerced. An interesting read is the textbook “Criminal Interrogation and Confession" which is known in the law enforcement community as the interrogator’s bible. Its’ fundamental tenant being, isolate the suspect. Experts agree that the principal psychological factor contributing to a successful interrogation is privacy alone with the suspect away from his or her home. A person is more apt to maintain confidence and remain aware of their rights within the walls of their own home. Moreover, the likelihood that friends and family are nearby lends moral support. However, at the station, an investigator possess all the advantages.

In the article "True Crimes, False Confessions", false confession experts offer a nine-step process showing how, after isolating the suspect, interrogators:

  1. "confront the suspect with unwavering assertions of guilt.
  2. develop 'themes' that psychologically justify or excuse the crime.
  3. interrupt all efforts at denial and defense.
  4. overcome the suspect's factual, moral and emotional objections.
  5. ensure that the passive suspect does not withdraw.
  6. show sympathy and understanding and urges the suspect to cooperate.
  7. offer a face-saving alternative construal of the alleged guilty act.
  8. get the suspect to recount the details of his or her crime.
  9. convert the latter statement into a full written or oral confession."

These tactics are designed to destroy the suspect’s confidence that he will emerge from the interrogation without being harmed and to make the suspect believe that he is powerless to bring an end to the interrogation unless he confesses. In " Why Do People Confess to Crimes They Did Not Commit?" Prof. Steven Drizin explains how the tactics yield a confession, true or false:

"Once the suspect is on the brink of hopelessness, the interrogator engages in tactics designed to persuade the suspect that the benefits of confessing outweigh the costs of continued resistance and denial. Here, the interrogator makes offers to the suspect, ranging from low-end inducements like appeals to the suspect's conscience ("the truth will set you free") or religious beliefs ("God will forgive you"), to suggestions that the confession will be treated more favorably by those in the system with the power to determine his fate ("judges react more favorably to remorseful defendants"), to the more coercive inducements which expressly or by implication promise leniency or threaten harm. Most people are surprised to learn that it is perfectly legal for police to lie to suspects.

Anyone being interviewed in a police investigation is susceptible, with juveniles and those with lower IQs being the most vulnerable. A study conducted by Professor Drizin revealed that juveniles were disproportionately represented among the false confessors, and the majority of juvenile false confessors were between the ages of 14 and 17, the age range in which many alleged juvenile offenders are tried as adults. Like juveniles, Mentally Handicapped people who falsely confessed, did so in an effort to please authoritative figures and/or because they mistakenly believed that is what they were supposed to do.

In the well documented West Memphis 3 Case in Arkansas ( www.Freewestmemphis3.org) Jessie Misskelley, Jr., 16 years old and mentally disabled with an IQ of 67 at the time of the murders, was convicted of a triple murder based solely on a confession that, like most false statements, failed to match crime scene evidence. In his so-called confession, he made incriminating statements that placed him with the three murdered children at 9:00 am on the day of the murders. The problem with this statement was that the victims were actually in school during that time. The West Memphis police, unhappy with Jessie's statement, continued to suggest Jessie admit to his involvement at times more closely associated with the estimated time of death. He finally agreed to the prompting of his interrogators and changed his story to suggest that he and his co-defendants were with the children in the evening. The fact that Misskelley and his friends had strong alibis for their whereabouts that evening did not matter to the police. Misskelley's false confession was also used to convict Jason Baldwin, sentenced to life without parole, and Damien Echols, who is currently on death row in Arkansas.

In addition to custodial interview tactics, law enforcement personal also engage in two distinct investigation tactics that incite false confessions. The first of these is the “two step" interrogation technique, and the second is the “knock and talk" procedure. The essence of the “two step" interrogation technique is to question the suspect first, without the benefit of Miranda warnings, and then administer Miranda warnings and resume questioning designed to have the suspect repeat the answers previously given. This is a deliberative technique designed to circumvent Miranda. The Supreme Court has, by the narrowest of margins, condemned this type of interrogation tactic because it is designed solely “to get a confession the suspect would not make if he understood his rights at the outset." Missouri v. Seibert, 124 S.Ct. 2601 (2004). A second common tactic is the “knock and talk" technique. In this technique officers seek to blatantly intimidate a suspect by catching him by surprise, overwhelming the individual with their presence and engaging in overt acts causing a reasonable person to feel they are not free to leave. Courts have held this is a “reasonable investigative tool when the officers seek to gain an occupant’s consent to search or when officers reasonably suspect criminal activity. United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001).

Sadly, but not surprisingly, a recent survey conducted by the American Bar Association indicated that 68% of those polled felt the possibility a person would confess to a crime they didn’t commit is “not very often", while another 28% believed that a person would never confess to a crime they didn’t commit. What then is the answer? A glimmer of hope exists in the number of states and police jurisdictions that are now requiring all custodial interrogations to be electronically recorded in their entirety in order to prevent coercion and to provide an accurate record of the proceedings. If we are to ever make a dent in preventing the number of wrongful convictions due to insidiously procured false confessions, requiring transparency in the course of all police interrogations is a promising start.