Scaring Suspects to Death
by Edwin Dobb
Amnesty International NOW
magazine, Winter 2002
When police interrogators manipulate suspects
into confessing to crimes they didn't commit, innocent people
end up on death row.
Early this year, a man with slight mental
retardation was freed after serving a year and a half in an Illinois
jail. The 25-year-old's statement that he had killed his mother,
while convincing, was nonetheless fabricated. In July, prosecutors
in Philadelphia dropped murder charges against four young men,
one of whom, defense attorneys insisted, had been coerced into
accepting responsibility for a crime he didn't commit. A month
later, a DNA test proved that a Detroit resident Eddie Joe Lloyd,
could not have raped and killed a teenage girl in 1984. Lloyd
was living in a mental hospital when he approached police and
offered to confess in order to help them find the actual killer.
The 17 years he served before his release were the result of police
trickery and, it would appear, his own fateful gullibility.
Lloyd was the 110th person since 1989
to have his innocence established by post-conviction DNA testing,
according to the Innocence Project of New York's Benjamin N. Cardozo
School of Law, which spearheaded the effort to exonerate Lloyd.
Remarkably, false confessions have played a central role in about
one-fifth of reversals. In other words, in the past few years
more than two dozen demonstrably innocent people admitted guilt
for the most heinous of acts.
What might once have been dismissed as
a regrettable aberration is looking to some legal experts like
an even more regrettable trend and the most compelling example
of what can go wrong in the interrogation room. "We've moved
from force to fraud," says Richard Leo, a University of California,
Irvine criminologist. He is referring to a steady shift-from outright
physical abuse to sophisticated psychological techniques-that
was accelerated by the 1966 Supreme Court decision known as Miranda.
That ground-breaking and controversial
ruling guaranteed that people arrested had the right to remain
silent, to have an attorney present, including a court-appointed
one if needed, and to be given the warning that anything said
during questioning could be used in court. Miranda's protections
were meant, as Chief Justice Earl Warren famously put it, "to
dispel the compulsion inherent in custodial surroundings."
But coercion continues, though in forms
so subtle-and removed from public scrutiny- that they are unrecognizable
as such. Indeed, within the modern interrogation setting, police
routinely compel suspects to incriminate themselves. Certainly,
investigative zeal-especially when combined with sloppiness and
pressure from prosecutors to make arrests- contributes to the
phenomenon of false confession. But so do broadly accepted policies
and procedures that amount to an institutionalized violation of
the Fifth Amendment, which is the constitutional underpinning
for Miranda. And therein lies the real threat to the criminal
justice system and to the human rights of suspects.
As might be expected, certain people-the
uneducated, the poor, the emotionally insecure, the mentally impaired,
the young-are especially susceptible to manipulation in the interrogation
room. In cases involving the death penalty, such vulnerability
is especially dangerous. A sobering example, captured on police
videotape and obtained by lawyers, is the recent harrowing experience
of three teenage boys in Escondido, Calif. Four years ago, after
exhausting rounds of police bullying, threatening, and Iying that
lasted up to 10 hours at a stretch, Joshua Treadway, 15, and Michael
Crowe, 14, admitted to murdering Crowe's sister. Crowe repeatedly
said he was fabricating most of what he said, but the detectives
encouraged him to continue Iying.
Crowe: The only reason I'm trying to
lie here is because you presented me with two paths, one I'm definitely
afraid o£ I'd rather die than go to jail.
Shortly after making this statement, Michael
was charged with murder. Later, he made a sworn statement saying
police had told him that
his parents blamed him for his sister's
death and didn't want to see him again. The boy was apparently
too disoriented, too exhausted to believe otherwise.
Crowe: Like I said, the only way I even
know I did this is that she's dead and that the evidence says
I did it. You could find that someone else did it, and I pray
to God someone else did. I think it's too late for that. I think
I did it.
But no forensic evidence linked Michael
and his two friends to the murder. And incredibly, a more likely
suspect had been identified before the teenagers were questioned.
Then in January , DNA evidence all but proved that the real perpetrator
was a mentally ill transient with an extensive criminal history
well known to the Escondido police. Almost 12 months after the
murder, the teenagers were released, but three innocent families,
including that of the murder victim, had been terribly damaged.
Miranda was designed to prevent the kind
of interrogation that produced Crowe's confession. And indeed,
36 years ago, when the decision was handed down, those on the
front lines of law enforcement had vigorously argued that the
ruling would handcuff them and result in far fewer confessions
and thus convictions. Today, those who once complained have come
to embrace Miranda. Why the change of heart?
The answer lies behind the long-locked
doors of the interrogation room. What the Warren Court did not
foresee was how its decision would lead to new, questionable interrogation
methods. Most people know the "good cop-bad cop" routine
popular with police drama writers (and less so with police themselves).
Less familiar are a number of more refined
approaches that are amply evident in law enforcement training
manuals. None is more revealing nor more influential than the
latest edition of a book Earl Warren drew on for his conclusions-Criminal
Interrogation and Confessions by Fred Inbau and John Reid. And
thanks to social psychologist Richard Of she of the University
of California, Berkeley, and criminologist Leo, studies of actual
police practice-including the eponymous Reid technique-also now
exist. By analyzing hundreds of interrogations, videotape recordings,
and transcripts, Ofshe and Leo have drawn aside the curtain that
customarily obscures the interrogation room, exposing the often
mesmerizing, sometimes disturbing theater that unfolds therein.
And make no mistake, it is theater. Those
who developed the Reid Technique characterize their brand of interrogation
as "the undoing of deception," on the assumption that
all suspects employ subterfuge. But what the manual promotes is
a more encompassing and, at times, insidious form of deceit: It
teaches police to create a make-believe world of ever-increasing
disorientation and discomfort from which the suspect's only hope
of escape is to admit guilt. As befits a stage, the interrogator
mounts a performance, and the greater the "histrionic skill,"
as another manual puts it, the more likely a confession. The initial
step is always the same: misrepresenting the nature of questioning.
As Inbau and Reid baldly advises, "Avoid creating the impression
that you are an investigator seeking a confession or conviction."
In other words, do precisely what the Warren Court had thought
it was curtailing-convince suspects that they are not facing an
adversary but instead someone who is looking out for their interests.
Small wonder that once law enforcement
personnel understood the disjunction between the ruling's intent
and its effect, they made Miranda their own. Rather than hamper
police or force an overhaul of the interrogation process, the
controversial decision legitimized it. Now, as long as suspects
could be persuaded to waive their rights-and most do-interrogators
could proceed largely as before. Nor is it surprising that interrogators
started to deliberately manipulate the way the warnings are given.
In a study of an urban police station in California, Leo found
that most detectives employed psychological tactics such as small
talk and friendly gestures to build rapport and condition the
suspect to respond favorably. They downplayed Miranda rights,
camouflaging the warnings within casual conversation, dismissing
them as a mere formality, or jokingly referring to television
shows. Police also used the particularly compelling device of
persuading suspects that only by waiving their rights-usually
to tell their own side of the story-could they help themselves.
Once the interrogator obtains a waiver,
the drama officially begins. It can be divided into three basic
elements: The first-call it the helping hand ploy-extends the
ruse that what is transpiring is simply a problem-solving exercise
carried out in a spirit of cooperation and for the benefit of
the suspect. Detectives show sympathy and frequently make promises.
Although courts have held that explicit pledges of leniency are
coercive, the routinely admit confessions made in response to
indirect suggestions aimed at raising a suspects' expectations
or making them fearful.
Dante Parker was one of three men accused
of murdering nine people at a Buddhist temple in Phoenix in 1991.
Investigators misled Parker by implying he could gain favor by
confessing to a less serious version of the crime. They then threatened
to send deputies to arrest his brothers, against whom they had
no evidence of criminal behavior, and to humiliate them in front
of their children. Parker relented and confessed. But two months
later, standard police work led to the apprehension of the actual
killers and Parker was freed.
Additionally, investigators commonly fabricate
evidence, a technique designed to destroy a suspect's confidence.
The courts have been slow to establish boundaries for such deception,
in effect giving police carte blanche. They can lie about statements
from a witness or accomplice or about the presence of blood or
other evidence, and to pretend that tests given by Computer Voice
Stress Analyzers or other so-called lie-detecting machines are
acceptable in court.
And last, whether in response to the helping
hand ploy or evidence fabrication, or both, and usually after
prolonged, withering questioning, a time may arrive when the suspect
actually welcomes the opportunity to construct a story that minimizes
the crime or his involvement in it. Such mitigating narratives
may assume several forms but the cleverest and, according to police
training manuals, most effective turn on ethical misrepresentation.
"We offer the suspect psychological justification for the
commission of the crime," current Reid and Associates president
Joseph Buckley says in a training videotape. "We offer him
a moral excuse that will minimize or justify in his own mind [the
alleged act]." Buckley goes on to explain that if an interrogator
is to have any hope of eliciting a confession, he must squelch
denials and deflect objections. And one of the best ways to accomplish
that, he argues, is by proposing a story that presents the suspect
in a favorable light, suggesting, say, that an obviously deliberate
assault was in fact inadvertent or that his rape victim was "asking
for it," or that low wages and miserable working conditions
made embezzlement inevitable. The culmination of the mitigating
narrative arrives when suspects believe they have to choose between
a "good reason or a bad reason" for the crime. "We
make it easy," Buckley explains in the tape, "for [the
suspect] to accept the good reason and make that first admission
of guilt." The reason, of course, doesn't count. Only the
Consider the case of Edgar Garrett of
Goshen, Ind., who was suspected in 1995 of his daughter's murder,
despite the absence of direct evidence linking him to the crime.
Garrett's interrogators lied egregiously, saying that several
witnesses saw him with his daughter shortly before she disappeared.
They also said that a polygraph test had proved his guilt. Then
one of the detectives put it to the accused, who sometimes drank
heavily, that he could have experienced a blackout. He reminded
the suspect that he had once struck his daughter while in an alcoholic
haze. Garrett's confidence in his memory began to falter and,
though increasingly upset and confused, he ceased insisting that
he had not seen the girl shortly before she disappeared.
Garrett: I just don't remember if I went
out, if I did talk to Michelle....l can't remember fighting with
Michelle on Sunday.
Detective: You did. Not only did you fight
but you thumped her. You didn't mean to hurt her.
Garrett: What did I thump her with?
Detective: I don't know.
Garrett: I don't know either.
Detective: But you thumped her.
Garrett: Well, I killed my own daughter?
When Garrett renewed his insistence that
he didn't remember attacking his daughter, the interrogator once
again raised the possibility of alcohol-induced amnesia. Garrett
struggled with that grim prospect.
Detective: Okay, then what happened next?
Garrett: I must have left her there.
Garrett: And must have went home.
Detective: All right. What did you do
with the stick?
Garrett: It's in the house. I must have
took it back to the house.
After 14 hours of such cynical manipulation,
Garrett signed a statement that he had killed his daughter and
was charged with capital murder. In the months that followed,
however, evidence turned up showing that Michelle was slain with
a knife, not "thumped" with a stick, and that Garrett
could not have been anywhere near the crime scene. He was eventually
While it is true that relatively few wrongful
convictions-8 to 14 percent, in Leo's estimation-are due to false
confession, with the bulk caused by false testimony and mistaken
eyewitness accounts and identifications, confession is disproportionately
influential. Studies of jury behavior show that how a statement
is elicited and whether it has been retracted are far less persuasive
than the fact that someone actually uttered the words, "l
did it." The confession, Richard Of she says, "is universally
treated as damning and compelling evidence of guilt."
It is not only the increased likelihood
of conviction that makes police-induced false confession one of
the most dangerous of judicial errors. At every step of the criminal
process, especially when a violent crime is involved, a person
who has officially admitted guilt, if only briefly, is likely
to receive harsher treatment. Making bail will be more difficult,
which, according to Leo, significantly reduces the chance of acquittal.
Prosecutors will bring more serious charges, and in greater number,
against those who make admissions, whereas defense attorneys,
particularly those who remain unaware of Miranda manipulations
and the dynamics of false confession-and there still are many-will
tend to advise their clients to admit guilt and accept a plea
bargain. Then, following a conviction, which is not only more
likely but more likely to be for the most serious charges leveled,
the suspect can expect to receive stiffer punishment.
Amnesty International, the Innocence Project,
and others are pushing hard for reforms. Currently only Alaska
and Minnesota require the videotaping of every interrogation,
~ ~ thereby removing the curtain of secrecy that has long obscured
the interrogation drama. But more fundamentally, police, prosecutors,
and judges must acknowledge that modern psychological tactics
are so powerful that they elicit confessions not only from the
guilty but from the innocent as well. Lasting institutional change
will require a transformation in the way police are trained and
supervised. Ofshe and Leo have proposed teaching detectives how
to spot the telltale signs of a false confession (for example,
the use of such qualifiers as "probably" and "l
must have"). The researchers also advocate barring excessively
manipulative deceptions-especially implied threats, which they
consider the contemporary equivalent of the rubber hose.
Another significant reform would be training
police to assess the "post-admission narrative," which
gives interrogators the opportunity to corroborate or impeach
a confession by testing the suspect's knowledge of details only
the perpetrator would know.
Why would anyone resist this simple and
sensible way to assess the viability of a confession? Because
it necessitates a massive shift in orientation-away from the exclusive
pursuit of "l did it" statements, which one police captain
told Leo is "the next best thing to sex." During questioning,
the police would have to entertain alternative theories of a crime,
thereby remaining alert to evidence of innocence as well as to
guilt. In other words, they would be forced to cease playing inquisitor
on the interrogation stage and instead perform a role much talked
about but rarely seen there: that of truth seeker.
Public support for reform seems to be
growing as more and more cases surface that resemble the false
convictions of the Escondido, California teenagers. Shortly after
the charges against them were dropped, Leo, who served as an expert
witness for the defense, appeared with an Escondido police officer
on a local radio talk show. In this conservative area where the
notion that innocent people might admit to violent crimes had
been unthinkable, and where support for law enforcement traditionally
runs high, it was the police officer who found himself on the
defensive. Try as he might to convince listeners that no one in
his department intentionally seeks false confessions (which surely
is true), caller after caller expressed doubt. Responses to a
detailed expose of the case published in the San Diego Union-Tribune
were similar. The events that took place in the interrogation
room of the Escondido Police Department had sent tremors throughout
the community, creating anger, confusion, and fear-damage that
would not be repaired quickly.
"What kind of society have we created,"
asked one indignant letter writer, "in which those charged
with finding the truth are dedicated to Iying, distortions, and
other self-aggrandizing tactics in order to obtain convictions?"
That is indeed the crux of the matter.
Today especially, when community-oriented policing is being introduced
everywhere, it seems not only ethically dubious but self-defeating
to engage in practices that at best undermine trust and cooperation
between citizens and law enforcement officials and at worst kill
innocent people and foster cynicism toward legal institutions.
Remedying the policies and procedures that tend to produce false
confessions would not only protect the accused from coercion,
finally fulfilling the promise of the Miranda decision; it would
help to ensure the integrity of the criminal justice system. We
should expect no less of a democratic society dedicated to fair
Edwin Dobb is a contributing editor of
Harper's Magazine and a visiting lecturer at the U.C. Berkeley
Graduate School of Journalism.