An effort to make false confessions much less likely
January 6, 2021 6:08 AM   Subscribe

The exonerated five talk about why they made false confessions and a proposed law against bad police practice. "It’s hard to imagine why anyone would confess to a crime they didn’t commit. But when you’re in that interrogation room, everything changes. During the hours of relentless questioning that we each endured, detectives lied to us repeatedly. They said they had matched our fingerprints to crime scene evidence and told each of us that the others had confessed and implicated us in the attack. They said that if we just admitted to participating in the attack, we could go home. All of these were blatant lies." The proposed law.
posted by Nancy Lebovitz (25 comments total) 26 users marked this as a favorite
 
I have lost any and all ability to be surprised at the corruption and lawlessness of any American police department. While I agree wholeheartedly with the proposed law, I have no faith whatsoever that it will be followed. Any serious police reform would have to involve getting rid of every single person currently employed in law enforcement from top to bottom, with a lifetime ban on them ever being involved in it again, before I’d have any confidence in American police being a force for good rather than for ill.
posted by The Underpants Monster at 6:33 AM on January 6, 2021 [13 favorites]


An overview of lying by American police. There's a lot of it, and it's legal at the state level.

The Underpants Monster: You probably have a point. The only thing that will work for the long haul is convincing the public generally that the police shouldn't lie to get convictions.

"A study conducted in the wake of Mapp v. Ohio is particularly revealing. Mapp established the “exclusionary rule,” which prevents illegally obtained evidence from being introduced in court. Researchers compared legal records of the New York City narcotics bureau before and after this ruling to see whether officers had lied to get around the new rule of evidence. Cases where officers admitted to finding drugs hidden on a defendant’s person dropped from 35% to just 3%, while reports of suspects dropping or throwing drugs onto the ground skyrocketed from 17% to 43%. A survey conducted by researcher Myron Orfield reinforces the finding: 92% of judges, defense attorneys, and prosecutors interviewed said they thought police were lying to avoid the exclusionary rule at least some of the time."

However, I'm hoping that videotaping interrogations-- ideally, recording everything from the moment of arrest-- will help.
posted by Nancy Lebovitz at 6:37 AM on January 6, 2021 [9 favorites]


Please tell me that all police interrogations in the USA have to be (a) recorded and (b) have legal counsel for the defendant present in the room ?
posted by GallonOfAlan at 7:38 AM on January 6, 2021


Please tell me that all police interrogations in the USA have to be (a) recorded and (b) have legal counsel for the defendant present in the room?

Nope. The Supreme Court has said that while you both have a right for an attorney to be provided to you and that you have the right not to speak to law enforcement regarding whether or not you may have committed a crime, both of those rights must be actively asserted, and can be passively waived by a lack of assertion.
posted by tclark at 7:42 AM on January 6, 2021 [6 favorites]


Please tell me that all police interrogations in the USA have to be (a) recorded and (b) have legal counsel for the defendant present in the room ?

Regarding A, the police do a lot of foot-dragging and red-tape with regard to public access to these recordings. They're always available to the prosecution or even made public when the suspect looks bad. But somehow they always have an excuse to not provide them when they're suspicious. This goes double for body-cam footage, which is ironic, because body-cams were sold as being a way for police to be held accountable.

Regarding B, a person has a right to counsel, but must affirmatively assert their right, and furthermore, must declare that they're invoking their right to remain silent. If someone doesn't know their rights, the cops aren't going to do them any favors.
posted by explosion at 7:45 AM on January 6, 2021 [1 favorite]


"But somehow they always have an excuse to not provide them when they're suspicious. This goes double for body-cam footage, which is ironic, because body-cams were sold as being a way for police to be held accountable."

Surprising exactly no-one who has followed the CPD's use of dash cams over the years, in Chicago body cams -- like dash cams before them -- are often miraculously "broken" or have a tendency to "malfunction" (are turned off) right at the moment cops want to beat the shit out of an unarmed suspect.

Sometimes after a bystander's cell phone footage gets released to the media, they miraculously "recover" the video, of course.

It's also interesting how body cams and dash cams have shifted the KINDS of lies cops tell. Audio is typically unavailable (or very difficult to decipher), so instead of "reaching in his pocket for a weapon," the "suspect" will be accused of verbally threatening the police. We can see on the grainy footage that he's shouting something, but how do we know if it's "I'm unarmed! Don't shoot!" or "I'm Bob, not Dan!" or if it's "Come any closer and I'll kill you" or "Yeah I shot those 42 people and I'm looking for #43"?
posted by Eyebrows McGee at 8:01 AM on January 6, 2021 [10 favorites]


both of those rights must be actively asserted, and can be passively waived by a lack of assertion.

The Louisiana Supreme Court determined that a suspect who told the police to "just give me a lawyer, dog" was ambiguous: he might have been asking for a lawyer dog.
posted by BungaDunga at 8:02 AM on January 6, 2021 [16 favorites]


"It’s hard to imagine why anyone would confess to a crime they didn’t commit."

No, it's not. If you're being relentlessly harassed and everyone around you in power is acting like you did it and claiming that you did, and that they have evidence, and you WILL be found guilty and convicted anyway...the lily white innocence in your heart means nothing. God knows innocent people get convicted at times.

On a related note, Matthew Dicks.
posted by jenfullmoon at 8:26 AM on January 6, 2021 [2 favorites]


Which is made worse by the deception discussed above: they also tell you that if you just admit it, you can go home and they'll make sure it goes easy for you, so it's really not a big deal, just say you did it and this will all be over...
posted by star gentle uterus at 8:34 AM on January 6, 2021


It would be interesting if there had been a survey performed over the years of American youth, say ten-year-olds once every five years, asking them if they could recite their Miranda rights and scoring how well they performed.
posted by Fukiyama at 8:51 AM on January 6, 2021 [1 favorite]


Veneration of the police (and military) needs to be a thing of the past. No more cop shows would be a good start.
posted by maxwelton at 8:56 AM on January 6, 2021 [6 favorites]


"Commander Vimes didn't like the phrase 'The innocent have nothing to fear', believing the innocent had everything to fear, mostly from the guilty but in the longer term even more from those who say things like 'The innocent have nothing to fear'."
-Terry Pratchett
posted by ananci at 9:18 AM on January 6, 2021 [23 favorites]


I wouldn't mind no more cop shows, but as long as people watch them, they'll keep making them. There's a reason we don't see 12 primetime hours of Dateline and its clones anymore: CSI and SVU bring in more advertising bucks.

on Preview: Dunno much about Sir Terry Pratchett, but I'm already enjoying The Watch.
posted by phrits at 9:20 AM on January 6, 2021


Yeah, recordings are only gonna help if there are felony destruction of evidence charges when those recordings disappear: Hamilton County TN sheriff's department just skated on a whole bunch of potentially incriminating dash cam evidence that had been subpoenaed in various misconduct lawsuits when their server "crashed".

It's unlikely that a US police department would maintain evidence that might exonerate their victims.
posted by straw at 9:21 AM on January 6, 2021 [6 favorites]


This is an excellent proposed law. The threat of worse treatment that underlies the whole plea bargaining practice is already a borderline (and in many cases outright) corrupt abuse of state power. Adding into that mix the deployment of lies by law enforcement in order to amp up the leverage to coerce false confession is simply immoral.

I’ve occasionally wondered what I’d do if in such a position. The police lie to me that witnesses say they saw me doing something illegal. I know I’m innocent, but I also know that if it goes to trial, the testimony of two witnesses against me, even though they are mistaken, would lead to my conviction. Do I “plea bargain” down to a lesser crime that I also didn’t do, and accept a lesser punishment even though it’s unjustified, in order to avoid the completely life-destroying conviction on the worse indictment?

The idea that any innocent person might be forced into making this very rational decision out of self-preservation, when it was all based on lies by law enforcement, is sickening. Agreed that this proposal should become law in every jurisdiction.
posted by darkstar at 9:29 AM on January 6, 2021 [7 favorites]


IMHO, juvenile confessions should be ruled inadmissible. If you don't have evidence to convict a juvenile outside of their confession then they should go free.

(Perhaps this should even extend to juvenile testimony and adult confessions, but juvenile confessions are a good place to start. It is so easy to browbeat a kid into confessing a crime they never committed.)
posted by splitpeasoup at 9:45 AM on January 6, 2021 [1 favorite]


I’ve occasionally wondered what I’d do if in such a position. The police lie to me that witnesses say they saw me doing something illegal. I know I’m innocent, but I also know that if it goes to trial, the testimony of two witnesses against me, even though they are mistaken, would lead to my conviction

There is a strong class-based imbalance here.

The psychology of an interrogation room is still frightening during the initial run. But I can afford a lawyer and make bail. And while the police can lie to me, once formal court proceedings begin my lawyer can actually see what evidence they have. Huh, no witnesses after all? I'm not scared now. And even if they do have mistaken witnesses, they'd still be more willing to offer me that deal they claimed was a "one time offer" to someone who can fight vigorously.

And then knowing all that means I'm more likely to stick to the truth during interrogation.
posted by mark k at 10:03 AM on January 6, 2021 [6 favorites]


Perhaps this should even extend to juvenile testimony

It seems to me that disallowing juvenile testimony in, eg. child abuse cases would be a net negative.

The issue is not that kids' confessions or testimony are necessarily untrustworthy in all cases, but rather one of abuse/imbalance of power. The imbalance of power leading to abuse of power by police in the case of coerced confessions can be exacerbated in many situations, including (often) when the accused is a juvenile.
posted by eviemath at 10:15 AM on January 6, 2021 [2 favorites]


When you watch police interviews like on YouTube, all of them basically come down to "you want to talk to me, I can help you". It's like watching someone shoot fish in a barrel. Everything they do comes down to convince you to not let you near a lawyer who is basically going to force them to put all their cards on the table or walk the suspect back out of the room.

People who think they can talk their way out of things don't get that they can't speak in hypotheticals like a lawyer can to determine your options. You can't be in the middle of an interview and say the legal equivalent of "assuming I killed the guy, how are you going to prove it?". Your lawyer can. They can argue in the hypothetical without prejudicing you in court.

Everyone should have a lawyer next to them for an interrogation. The police should have to prove it.
posted by Your Childhood Pet Rock at 1:05 PM on January 6, 2021 [2 favorites]


The Louisiana Supreme Court determined that a suspect who told the police to "just give me a lawyer, dog" was ambiguous: he might have been asking for a lawyer dog.

The determination should have read that everyone, without having to ask, should have a lawyer dog with them at all times. A big lawyer dog with a spiked collar and shiny white teeth. No more Chihuahuas in the public defender's office.
or your choice of gorilla, ferrets in a three piece suit--whatever
it's either pitiful attempts at humor or weeping this evening
posted by BlueHorse at 6:21 PM on January 6, 2021 [6 favorites]


I invoke my right to a lawyer cat. A big, one-eared, twenty-pound feral tom from the back alley.
posted by The Underpants Monster at 6:38 PM on January 6, 2021 [1 favorite]


Lawyer cat.
posted by Fiasco da Gama at 8:42 PM on January 6, 2021 [1 favorite]


I’ve occasionally wondered what I’d do if in such a position.

Assume every word they say to you is a lie. Demand a lawyer, insist on your right to remain silent, and then actually remain silent until you have a lawyer. (And possibly after that. Tell your lawyer--privately--that you have no obligation to say anything and that you have no intention of plea bargaining.)

I would love to see the laws changed to make it illegal for cops to lie to people in the course of their job - whether it's to get a confession or not. Until we get to that point, the only sensible way to deal with being arrested is to shut up entirely. There is no amount of talking to cops that helps a defendant.
posted by ErisLordFreedom at 6:37 PM on January 7, 2021 [4 favorites]


I used to wonder how people could possibly confess to crimes they didn't do, until I saw Detective Frank Pembleton at work. A great piece of acting from one of the best cop shows ever made (so, yeah, not all cop shows...)

Recent article about the show: Largely forgotten ’90s drama ‘Homicide’ told painful truths about policing
posted by Bron at 2:12 PM on January 8, 2021 [1 favorite]


In the case of Amanda Knox, who was accused of the murder of her flatmate Meredith Kercher, the strategies used by the Italian police to extract a confession included (according to Knox and her supporters):

* Persuading her not to use her right to a lawyer by telling her it would make things worse for her.
* Interrogating her in shifts around the clock for days until she was too tired to resist.
* Physically abusing her when she resisted their demands for her to "remember" what happened.
* Asking her to imagine hypothetical scenarios and then feeding these back to her as what she needed to "remember".

I think many, even most, people would break eventually under sustained sleep deprivation and psychological pressure like this.
posted by cyanistes at 7:26 AM on January 10, 2021 [1 favorite]


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