DNA Exoneration and False Confessions September 2014 Voiceover: Beat Intro 00:02 This is the Beat, a podcast series that keeps you in the know about the latest community policing topics facing our nation. Dr. Debra Rachel McCullough 00:11 Hello and welcome. My name is Dr. Debra Rachel McCullough and, on behalf of the COPS Office, I would like to introduce you to the topic of False Confessions: Why the Innocent Falsely Confess. This podcast is a two-part podcast. The first part will explore a DNA exoneration case that was based on a false confession and will be told by Mr. Eddie Lowery. The second part will be with Dr. Saul Kassin, who will explain the counterintuitive false confession phenomenon. Saul Kassin is a distinguished professor of psychology at John Jay College of Criminal Justice and Massachusetts Professor of Psychology at Williams College. In the 1980s, he pioneered the scientific study of police interrogations, false confessions, and the consequences of confession evidence in court. He has appeared as an analyst on ABC, CNN, NBC, and CBS, for several high-profile cases, and in the Ken Burns 2012 film, The Central Park Five. Let’s start first with Eddie Lowery. Eddie, could you tell us a little about your case, what you were convicted of, and how many years you spent behind bars for a crime you did not commit? Mr. Eddie Lowery 01:34 Yes. I was convicted of rape, aggravated burglary, and aggravated assault. I was sentenced to 11 to life. I ended up doing 10 years of that. In the beginning, I was brought in for a rape case that I didn’t know anything about. I thought it was because of a car accident I got into that night. When they revealed it to me it was a rape case, I immediately denied everything. A few hours into the first day, they were questioning me about my whereabouts that night. Many hours into the second day, after questioning again me over and over again. Before that, I took a polygraph test. They told me I failed it. I then asked for a lawyer, they refused to give me a lawyer. I asked to call my C.O. because I was in the Army at the time. So I asked to call my company commander. They refused that. So by that time, the second day after many hours, I was worn down. I was crying. I had my head on my arms. I didn’t know exactly how to get out of this situation because I was so naïve about my rights. I thought I had to sit there until they told me I could leave. I’d never been in trouble like this before. I had no idea how this all worked. I thought I just had to sit there and take this battering of questioning and yelling at me and pointing their fingers at me until they finally got what they wanted. Like I said, I was worn out, I was scared, I was broken down, naïve about my rights. I just wanted out of the situation. So I basically told them what they wanted to hear. And so in order to convict me, the detective lied on the witness stand about what I said. They said I calmly and collectedly gave them intimate details that only the perpetrator knew. Actually, during the interrogation, they gave me questions and correct me when I was wrong. If I guessed wrong, they would give me choices to make until I picked the right one, until they felt they had a confession. I went to two jury trials. On the second jury trial, they convicted me of the rape, aggravated burglary, and aggravated assault. My lawyer asked the jury why and how they convicted me. They said they just couldn’t believe that someone would confess to something as horrible as that crime. I immediately after the interrogation told them, I didn’t do this, I didn’t commit this crime. During the phase to get my confession to press, the judge still allowed it because of what the detectives said. I’ve been involved with therapy because I’ve beat myself up over the years why I would confess or take the way out that I did. I really don’t look at it as a confession. I didn’t have the answers to what they wanted. I just repeated back everything that they had said to me until they had a confession. I still didn’t understand why I chose that way out. After going through therapy and things like that, I’ve come to realize that I was already traumatized by authority before getting involved in this case because of my childhood. Knowing the amount of pressure I was in under that interrogation, in my opinion, that’s the easy way out for anyone to say that I thought to confess. But it goes much deeper than that. It’s very complex. I believe that nobody knows my personality during that interrogation; nobody knew my background. No one knows what I went through as a child and what I had to endure when it came to them putting me under that much pressure, just like when I was a child, I wanted to get away from it and I wanted to hide. I didn’t want to be around it. And the easy way out was to tell them what they wanted to hear in order to get out from that situation. I thought I would be able to clear my name later because there would be no evidence to prove that I did this, not a shred of evidence, nothing to put me there because I didn’t do it. But it turned out differently. It’s taken a long time to understand the whole situation and to be comfortable enough with myself to know why this happened and why I took that way out. Debra 05:47 Eddie, how many years did you spend behind bars for this crime that you did not commit? Eddie 05:55 I spent 10 years behind bars. Then I was going to the parole board and telling them I did not commit this crime. And then they would pass me for not accepting responsibility for this crime. Eventually, for many years, I had to take a sex offender course and go back in there and admit that I did this in order to get a certificate to take to the parole board to show that I completed this program that they wanted me to take. If I didn’t get that sex offenders program, I was never going to get out of prison. So I finally did all the requirements that the parole board was asking me. After the 10 years I spent in there, I was only on parole. I wasn’t exonerated. I spent another 11 years after I got out, finding someone that would take my case and believing in me. Finally, I was exonerated in 2003 with DNA testing. And that was with the Innocence Project, Barry Scheck and a local lawyer that I had, his name is Barry Clark. Debra 06:52 And what has the impact of this wrongful conviction had on your life and your family? Eddie 07:00 Well, the impact has been devastating on my natural family, like my mom and dad, brothers and sisters. My mom passed away. I saw her twice after I got out of prison before she passed away. My dad passed away before I was exonerated. They were the anchors of our family. This is where my brothers and my sisters and everybody would come and so we all could get together. Now that they are gone, we all went our separate ways. I’ve also had two other brothers and two sisters pass away. I had to wait for all that to settle before I could connect with my family. So I lost a lot. I had a three-year old daughter when all this happened. She’s grown up and has kids. We’re still trying to put things back together in our relationship. So it’s been very devastating on myself and my family. I had to register as a sex offender for 11 years while I went through my case and tried to get exonerated. So I was on the internet as a sex offender. I didn’t have any friends. I kept myself from getting involved with people because I didn’t want them to find out that I was registered as a sex offender. It was very difficult to just to get through every day. Debra 08:14 Thank you so much, Eddie, for that description and for sharing your experience with us. Is there anything else you’d like to share with us about something you might have learned after your experience with false confession? Eddie 08:25 Yes. When I speak somewhere, I always tell, especially because this happened to me when I was young, I tell the younger people I speak to, know your rights. Don’t be afraid to call your parents. For the older people, I always say watch the situation that you are in. Don’t put yourself in a situation where something like this can happen to you; where someone could say something falsely say something about you or things like that. I also believe, very strongly, that there should be videotaping in all interrogation rooms during the process of any felony. As far as I’m concerned, even misdemeanors. Anytime they are interrogating you, they should be videotaping this. If they had videotaped my interrogation, this would have never happened to me. I would have been set free at that time. Debra 09:22 Thank you so much. Dr. Kassin, why do people falsely confess to crimes they didn’t commit? Dr. Saul Kassin 09:30 I think Eddie just told us pretty much all of the reasons. I think he was very articulate in describing some of the dilemmas that face a person in the interrogation room which, again, as he said, is very, very hard for anybody to understand if they haven’t been through it personally. Basically, to answer your question, there is no one way or reason that people confess. There are different storylines. But basically, there are different ways in which people confess to crimes they did not commit and for different reasons. The most common reason, as I think Eddie described very well, is to escape the stress of the situation, to get out of a bad situation. He used the word worn down, “I was worn down.” Part of the problem of what happened in his interrogation is that it sounds as if he was interrogated for several hours over the course of two days. In addition, it sounds like he was—not only was he confronted with evidence, he was administered a polygraph and provided the feedback that he failed it. Now that’s a tactic. It’s a tactic often used and often found in false confession cases. Whereby police say we can administer a polygraph, it will get at the truth. It is infallible. Often it is referred to as science or medical evidence. Then the big blow comes to the suspect when told that, in fact, he failed the polygraph. That makes people feel trapped by the weight of evidence. So the main reason people confess to crimes they did not commit is, under the stress of the interrogation, they want it to stop. They believe that as a function of the kind of interrogation techniques that are used, that it is more in their best interest to confess than to continue denial. Over the course of many, many hours, it becomes clear that if I continue to deny this, I’m not getting anywhere, I’m not getting out of here. Eddie was alone, he was isolated, and he had no family, no friends, no means of social support, and no lawyer. His only way out of that bad situation was to confess. Now, he also described something else that you hear often from innocent people induced to confess. He knew he was innocent. Innocence puts innocent people at risk. What I mean by that is, just as he said, I figured after all of this, I will give them what they want to hear, get out of the situation, and, I think this is exactly what he said, I thought I would be cleared, that the evidence would clear my name later. Innocent people think exactly that. In the end, under stress, they do what’s expedient. They do what gets them out of a bad situation. As for future consequences, they bank on the fact that they did nothing wrong, that they have nothing to fear, that they have nothing to hide, and that when police continue in their investigation, they will see there is no evidence and, therefore, will not have to pay the consequence for that false confession. Those are the ingredients: the stress, the promises, the threats, the sense that confession is more in your best interest compared to denial and then the reassurance in the back of your mind that, in fact, you are innocent, and the investigation ultimately will show that. Debra 13:09 You talked a little about this and I’m going to ask this question in case you have anything else to add. Are there certain types of people who are particularly vulnerable to providing a false confession? Saul 13:22 Two points are important on that question. One is yes, some people are more vulnerable than others. Young people, younger than 21 years old, by and large are disproportionally found to these false confessions cases. Adolescents, for a variety of reasons, are more malleable, more subject to influence, more vulnerable in the interrogation setting. So are people with intellectual difficulties and people with mental health problems. The really important point—and none of that, I suspect, comes as a surprise to anybody—but the really important point is that everybody is vulnerable. In the interrogation room, everybody is a child. Everybody is naïve. Everybody lacks information. Everybody is anxious. In the context of an interrogation, I would argue that everybody has a breaking point. It may be different. It comes in different ways and different times, but everybody has a breaking point. And that’s why when you look over the DNA exoneration cases, roughly 30 percent of which contain false confessions in evidence, you find the false confessors are men, they are women, they are people of different ages, people of different colors. When you look more broadly outside of the Innocence Project database, you find that it happens in virtually all countries of the world and historically, it always has. Debra 14:46 And when the question is asked, can mentally capable adults provide a false confession, it sounds like what you’re saying is yes. Saul 14:55 Absolutely. Everybody has a breaking point. Again, in the end, you have to be able to transport yourself into the shoes of a person who has been interrogated for hours on end and they are alone. The only source of information that they have comes through the police detectives who are interrogating them. It is not…not uncommon, and it is illegal in the United States, for police interrogators to lie to suspects about evidence. I don’t know the status of the polygraph examination that Eddie took, but there are many cases on record—so I would not be surprised—in which the polygraph examination that the suspect was told he failed, in fact when you look at the charts, he passed. Giving the negative feedback that you lied to me on that exam, that you were found to be deceptive, that’s a ploy. That’s a ploy designed to leverage a confession. So he talked in a couple of ways about being naïve. One of the ways in which people are naïve is that, if they didn’t do anything wrong, they waive their rights. Eddie bemoaned at the fact that he didn’t and advises people to make sure they do become apprised of their rights and know their rights and use their rights. It’s not that easy. I say that because innocent people who did nothing wrong, and when I say they did nothing wrong I mean in their mind they have nothing to hide. They have nothing to fear. As far as they’re concerned, they’re being questioned but that’s just a temporary situation. In their minds, they have nothing to hide and nothing to fear. When you ask an innocent person who ultimately has confessed, someone like Eddie, and ultimately exonerated, you ask them, “Why did you waive your rights? Why didn’t you get a lawyer?” They look at you with a puzzled look. “Because, I didn’t need a lawyer,” is the simple answer. “I didn’t do anything wrong.” I would argue that, think over any situation in your life in which someone accused you of something you didn’t do. It doesn’t have to be in a criminal justice setting. It can be a parent, a teacher, a coach, a boyfriend, a girlfriend. Think of a single time when somebody accused you of doing something bad that you didn’t do. You can’t help yourself. You must defend yourself. The idea that Miranda is this great safeguard that enables the accused to stop this process of interrogation, it doesn’t work like that. Research shows that innocent people don’t avail themselves of Miranda. Believing that truth and justice will prevail, believing they have nothing to fear, believing that they have nothing to hide, innocent people waive their rights routinely. So Miranda doesn’t work. That’s why I think that one of the most important things that Eddie said about all of this and lessons to be learned is Miranda is not your safeguard. Recording of interrogations: that is the necessary safeguard. Debra 18:06 Are there any interrogation techniques that are proven to reduce false confessions at no cost to accurate confessions? Saul 18:15 It’s not so much a technique. In Europe, there is a range of new techniques being developed under the rubric of what’s called investigative interviewing. These are non-confrontational techniques designed to get suspects to feel comfortable enough to give an accurate accounting of what they have done. I think it’s a little too early to tell, as an empirical matter, whether that works as well or better than what we have here. But American-style interrogations are highly confrontational. The only way that that can be managed is not so much by micromanaging the tactics. Although, I would say, that the one technique that American police use that puts innocent people at risk—and this is documented in basic psychology and laboratory experiments and in so many cases, like Eddie’s, of false confessions— is lying about evidence. When police lie to someone about evidence that has the effect of making them feel trapped, making them feel confused, making them wonder if they even understand what reality is. There are cases in which innocent people not only agree to confess, they actually come to believe in their own guilt. Now, Eddie doesn’t describe that happening. The most common type of false confession is the case where the innocent person, fully knowing he is innocent, buckles, capitulates, and hands the confession just to stop the situation. But there are cases where innocent people, because they’ve been lied to about the evidence, actually get confused. They wonder if it’s possible they may have done something, without their own awareness, without their own knowledge. They wonder if they blacked out. All of this suggests that lying about evidence is a problem. But if there is one single change, one single reform to interrogation that I think will give the system the most bang for the buck, I would agree with Eddie, it’s the recording of interrogations. I say that for three reasons. Three reasons are it’s a win/win/win. It’s a win for the suspect because, as I think Eddie was suggesting, when there is a camera on, and that camera is there to enforce a certain degree of accountability, in all likelihood, the harshest, most deceptive interrogation tactics, detectives will probably be more reluctant to use those in the presence of camera. So in all likelihood, the camera alone may serve as a deterrent for false confessions. Two, it is in the interest of police. Which is why surveys show that wherever videotaping requirements are adopted, police—while they are reluctant at first and not supportive at first—ultimately, they uniformly embrace the practice. They realize that when a suspect later claims he was coerced, they can now go back over the record and prove what had happened. So the videotape serves as a means of protecting police from false allegations of coercion. Finally, and I think this is the most important use of the videotape, is it enables judges and juries to see the process. Not just the final statement but how that statement came about. It enables the judge to answer the question, how much pressure was put on this suspect and how voluntary was the statement. It then enables the jury to ask the question, how did that suspect seem to know the facts about the crime if he’s not the criminal. Eddie had suggested that he was fed details. If he had been fed details—which makes, of course, the confession incredibly persuasive—if that had happened on tape, the jury would have seen where those details came from. So basically, by having a video recording of the process, it will make the judge and the jury more accurate fact finders. It would make for a more just system. Debra 22:33 Are there any other reforms that are available to the police to address the false confession phenomenon? Saul 22:43 There are limits to interrogation techniques that should be discussed. The average interrogation lasts about 30 minutes to an hour. If you’d like to encompass roughly 95% of all interrogations, they are achieved within two to four hours. It sounded to me from Eddie’s description that his interrogation lasted several hours. That fact is one of the hallmarks of false confessions. They don’t happen in 30 minutes. They don’t happen in an hour. They happen over the course of long periods of time where the suspect may be deprived of food. They may be deprived of sleep. They certainly haven’t had contact with anybody they know that is familiar, that can provide support. So time, some degree of flexible time limit should be set. Everybody has a breaking point. Nobody can endure hours upon hours of interrogation. Understand that hours of interrogation means, by definition, that you have a suspect sitting there issuing denial after denial and being called a liar. There is no way out. That’s what gets communicated by time. There is no way out. Your only way out is to change what you say. So time is important. As far as specific tactics, again, I would argue that lying certainly puts innocent people at risk. Most important, rather than micromanage the use of certain tactics, I think so long as there is a recording of the entire process from start to finish. As soon as the suspect is brought in, the camera goes on and the conversation begins. So long as that’s the case, so long as the judge and the jury can determine later exactly what happened and how that statement came about, I think that is by far and away, the most important next step for reform. Debra 24:40 And do these proposed changes to police practice offer any protections for law enforcement? Saul 24:48 You asked if these proposed changes to police practice offer any protections to law enforcement. I’d say that given what I’m talking about is the recording of interrogations, I think that is the single most important form of reform. This is an interesting question. Historically, law enforcement has been opposed to recording its interrogations—in the same way I should add, that they used to oppose having to read suspects their Miranda rights. They were more than happy to record confessions for judges and juries to see at trial. But they didn’t want to record the process that produced those confessions. Some of that opposition was based on pragmatic concerns: what would the recording requirement cost, where would the tapes be stored, what would happen in the case of the failure to record, would that evidence be admissible? Some of the opposition was strategic. It had to do with the concern that videotaping, simply the act of videotaping, would inhibit the interrogator, inhibit the suspect from talking, judges and juries wouldn’t like what they saw in terms of the interrogation techniques they used. So historically, again, law enforcement opposed the recording of interrogations. It turns out none of this has panned out. Right now, I believe the current number is 17 states plus the District of Columbia require the recording of full interrogations in felony cases or in some category of felony cases. In other states, hundreds of jurisdictions have moved to this policy voluntarily. Most of this reform probably has occurred over the past 10 years or so. In that time, hundreds of police detectives have been interviewed. The results of these interviews could not have been clearer. They indicate overwhelming support, almost to a person, cops who tape who once didn’t tape now embrace the practice. None of those worst fears ever in fact materialized. In addition, to make sure the process of interrogation is on camera, just so that you can deter false confessions and the judges and juries can see how this evidence was collected, there are two other collateral benefits that police who have embraced the practice in these surveys, have cited for recording. One, it turns out that they spend less time in court having to defend their practices against allegations of coercion. When a defendant says I was coerced into making that confession, well, the proof is on the tape. Two, it turns out that the tapes themselves have proved valuable. Sometimes they show that the suspect actually knew something about the crime that only a perpetrator could have known. It might have been something the suspect said or did during the interrogation that the detectives missed at the time. Now, they can go back and review the tape and present that tape even if it results in denial in court. So it turns out the tapes themselves are valuable. So to those police departments that continue to find reasons to resist, I would say this. I would say that this is not some abstract theory. There are no unknowns. Video recording is real. It’s current practice and it works. Debra 28:23 Thank you, Dr. Kassin. On behalf of the COPS Office, I would like to thank both you and Eddie for your time and your expertise today and helping us understand a little more about the issue of false confessions and why the innocent falsely confess. Thank you both very much. Saul 28:45 Thank you. Eddie 28:46 Thank you. Voiceover: Beat Exit 28:48 The Beat was brought to you by the United States Department of Justice, COPS Office. The COPS Office helps to keep our nation’s communities safe by giving grants to law enforcement agencies, developing community policing publications, developing partnerships, and solving problems. Voiceover: Disclaimer 29:04 The opinions contained herein are those of the authors and do not necessarily represent the official position or polices of the U.S. Department of Justice. References to specific agencies, companies, products, or services should not be considered an endorsement by the authors or the U.S. Department of Justice. Rather, the references are illustrations to supplement discussion of the issues.