Richard Leo

“Interrogation-Related Regulatory Decline:” Ego-Depletion, Failures of Self-Regulation and the Decision to Confess

Deborah Davis et al. — Tue, 20 Sep 2011 17:02:55 PDT

As reflected in rulings ranging from Trial Courts to the U.S. Supreme Court, our judiciary commonly views as “voluntary,” and admits into evidence, interrogation-induced confessions obtained under conditions entailing stressors sufficient to severely compromise or eliminate the rational decision making capacities and self-regulation abilities necessary to justify such a view. Such decisions reflect, and sometimes explicitly state, assumptions soundly contradicted by science regarding the capacity of normal suspects lacking mental defect to withstand such stressors as severe fatigue, sleep deprivation, emotional distress-- and aversive interrogation length, tactics and circumstances--and nevertheless resist the powerful pressures of the interrogation to self-incriminate. Notwithstanding excessive length and other severe interrogation-related stressors and tactics demonstrably associated with elicitation of false confessions, judges overwhelmingly admit confessions into evidence and juries overwhelmingly convict. In this review, we introduce the concept of “interrogation-related regulatory decline” (IRRD)—or decline in the self-regulation abilities necessary to resist the forces of influence inherent to interrogation. We review scientific evidence of the unexpected ease with which self-regulation abilities can be significantly compromised, with the hope that this evidence can (1) encourage more evidence-based objectivity, realism, clarity and specificity in the criteria for assessing voluntariness underlying admissibility decisions, (2) promote reforms aimed at prevention of interrogation practices entailing substantial risk of severe interrogation-related regulatory decline, and (3) encourage more scholarly research on acute sources of interrogative suggestibility.

Reply to Samuel R. Gross and Barbara O'Brien

Richard Leo et al. — Mon, 22 Nov 2010 14:48:38 PST

In the current issue of the Ohio State Journal of Criminal Law, Professors Sam Gross and Barbara O’Brien reply to an article we published last year in this same journal, "Studying Wrongful Convictions: Learning From Social Science, 7 Ohio St. J. Crim. L. 7 (2009). We respectfully disagree with some of their assertions, which do not bear directly on the analysis, conclusions or recommendations in our article. We then briefly describe what our article was about.

Interrogating Guilty Suspects: Why Sipowicz Never Has to Admit He is Wrong

George C. Thomas III et al. — Mon, 27 Sep 2010 18:01:45 PDT

On the television police drama NYPD Blue, Andy Sipowicz and his colleagues often use threats of physical violence and psychological interrogation tactics to extract confessions from "guilty suspects." Sipowicz is portrayed as a white knight who serves a nobler ideal than respecting the physical integrity of suspects: obtaining justice for innocent victims. Although the television show is fictional, it has implications regarding real-life interrogation tactics used by the police. In this chapter, the authors analyze scenes from NYPD Blue in which the detectives use physical violence, threats of violence, and negative and positive incentive techniques to induce confessions from suspects. Throughout the chapter, the authors compare the tactics used by Sipowicz to those used by real-life police officers. The chapter ends with a summary of the comparisons between NYPD Blue and real-life police interrogations. The authors assert that while police indeed use every psychological tactic they think will work to extract a confession, the amount of violence used on the television show does not reflect what is known about contemporary interrogation when it comes to physical coercion: violence, assaults, and threats occur far less frequently than the television show suggests.

Beating a Bum Rap

Richard Leo — Mon, 27 Sep 2010 17:45:20 PDT

This essay focuses on the author's experience as an expert witness in the murder trial of Kenneth Cowling and his use of social science research in the courtroom. The author details the value of social science research in the context of police interrogation methods and its use in educating juries about the causes and consequences of false confessions. The essay concludes with a brief discussion of the evidence that led to Cowling's acquittal.

United States Supreme Court Amicus Curiae Brief Filed by Richard A. Leo in Florida v. Powell, 130 S. Ct. 1195

Richard Leo — Mon, 27 Sep 2010 17:27:51 PDT

This amicus brief, filed in Florida v. Powell, 130 S. Ct. 1195 (2010), addresses the question of whether a suspect is adequately informed of his right to the presence of counsel during custodial interrogation when advised only of his "right to talk to a lawyer before answering any of our questions."

Three Prongs of the Confession Problem: Issues and Proposed Solutions

Deborah Davis et al. — Tue, 03 Aug 2010 16:35:05 PDT

Many cases could not be successfully prosecuted without a confession, and, in the absence of a confession, many would be much more costly to investigate and to develop other evidence sufficient to convict. Responding to this pressure to reliably elicit confessions from their suspects, the police have developed sophisticated psychological techniques to accomplish two goals: to induce suspects to submit to questioning without an attorney, and to induce them to confess. Unfortunately, these methods are sufficiently powerful to induce false as well as true confessions and to render them involuntary. Further, because they are based upon often subtle, yet sophisticated weapons of influence, their coercive power sometimes goes unrecognized by those who must judge their voluntariness or validity. This yields a crucially important yet often unrecognized three-pronged problem with confession evidence—voluntariness, validity, and prejudicial impact. In this chapter, the authors first briefly review the nature of modern interrogation tactics, and then turn to consideration of the three-pronged confession problem, systemic barriers to recognizing and addressing the problem, and some proposed solutions.

Moving Targets: Placing the Good Faith Doctrine in the Context of Fragmented Policing

Hadar Aviram et al. — Tue, 03 Aug 2010 16:21:12 PDT

The debate sparked by Herring v. United States is a microcosm of the quintessential debate about the scope of the Fourth Amendment’s exclusionary rule and ultimately the appropriate breadth of police authority and constitutional review by courts. Offering a new reading of the decision, this article argues that Herring reflects a healthy dosage of real politik and an acknowledgement that American policing is characterized by a fragmented, localized structure with little overview and control, and much reliance on local agencies. Part I presents the authors’ interpretation of Herring as a case hinging upon the question “who made the mistake?” as the decisive element in establishing good faith. The authors rely on the actual holding of Herring in light of its facts, on the Court’s previous decision in Evans, and on the current circuit split with regard to illegal predicate searches to conclude that a narrow and reasonable reading of the Herring doctrine is appropriate. Part II discusses problematic implications, detailing potential abuses and disincentives of not holding one police agency accountable for the mistakes of another. The authors argue that a “moving target” government party to the criminal process is fundamentally unfair to defendants without proper safeguards. Part III offers a solution: a multivariate analysis of the proper deterrence incentives, which will not only provide protection to the citizen tackling “moving targets,” but also clearer and more detailed guidelines for future decisions.

The Gatehouses and Mansions: 50 Years Later

Richard Leo et al. — Wed, 21 Jul 2010 16:34:36 PDT

In 1965, Yale Kamisar authored “Equal Justice in the Gatehouses and Mansions of American Criminal Procedure,” an article that would come to have an enormous impact on the development of criminal procedure and American norms of criminal justice. Today, that article is a seminal work of scholarship, hailed for “playing a significant part in producing some of the [Warren] Court’s most important criminal-procedure decisions” (White 2003-04), including Miranda v. Arizona. The most influential concept Kamisar promoted may have been his recognition of a gap that loomed between the Constitutional rights actualized in mansions (courts) versus gatehouses (police stations). Kamisar passionately detailed how the Constitution and its jurisprudential progeny failed to protect suspects when those rights mattered most: when facing questioning by police. This article discusses where this thesis stands today in light of nearly 50 years of legal developments and social science research.

One-hundred Years of Getting It Wrong? Wrongful Convictions After a Century of Research

Richard Leo — Wed, 26 May 2010 15:35:53 PDT

In this article the authors analyze a century of research on the causes and consequences of wrongful convictions in the American criminal justice system while explaining the many lessons of this body of work. This article chronicles the range of research that has been conducted on wrongful convictions; examines the common sources of error in the criminal justice system and their effects; suggests where additional research and attention are needed; and discusses methodological strategies for improving the quality of research on wrongful convictions. The authors argue that traditional sources of error (eyewitness misidentification, false confessions, perjured testimony, forensic error, tunnel vision, prosecutorial misconduct, ineffective assistance of counsel, etc.) are contributing sources, not exclusive causes, of wrongful conviction. They also argue that the research on wrongful convictions during the last hundred years has uncovered a great deal about how these sources operate and what might prevent their effects. Finally, the authors urge criminal justice professionals and policy-makers to take this research more seriously and apply the lessons learned from a century of research into wrongful convictions.

Selling Confession: Setting the Stage with the "Sympathetic Detective with a Time-Limited Offer"

Richard Leo et al. — Wed, 28 Apr 2010 13:55:33 PDT

The effectiveness of an interrogation tactic dubbed the “sympathetic detective with a time limited offer” was tested. Participants read two versions of an interrogation transcript, with and without the tactic. Those who read the sympathetic detective version believed the detective had greater authority to determine whether and with what to charge the suspect, more beneficent intentions toward the suspect, and viewed confession as more wise. However, regression analyses indicated that for innocent suspects, only perceptions of the strength of evidence against the suspect and the detective’s beneficence and authority predicted the perceived wisdom of false confession. Interrogation tactics were generally effective, as indicated by participant recommendations of confession (versus invoking Miranda, denial, or continuing to talk without admitting guilt) for both innocent (16.7%) and guilty (74.4%) suspects; and reasons offered for participants’ recommendations for confession versus other choices generally conformed to those reported by real-life confessors and interrogation scholars.

Commentary: Overcoming Judicial Preferences for Person- Versus Situation-Based Analyses of Interrogation-Induced Confessions

Deborah Davis et al. — Wed, 14 Apr 2010 19:02:32 PDT

This article identifies some fundamentally mistaken assumptions underlying admissibility decisions favoring disposition-related expert testimony regarding individual vulnerability to false confession over situation-based testimony describing how the context or nature of interrogation can promote false confessions. The authors argue that it is important to understand both the forces of influence within police interrogations and the individual differences that enhance vulnerability to these forces. Most false confessions occur in the context of interrogation and in response to the sources of distress and persuasive tactics of the interrogation. For this reason, this article suggests that experts asked to evaluate an interrogation-induced confession should be able to answer the following questions during their testimony: 1) What are the sources of distress facing the suspect during interrogation and how strong are they‘; 2) What has happened during the interrogation that might promote the suspect's misperception that confession will be inconsequential or in his or her best interest‘; and 3) How are distress, distress intolerance, and rational analyses of the net consequences of confession interrelated‘ Without testimony from experts who can clearly explain interrogation practices that produce distress, impair rational judgment, and cause suspects to believe that confessing will be inconsequential, judges and juries are unlikely to recognize false confession among any but the obviously impaired.

The Third Degree and the Origins of Psychological Interrogation in the United States

Richard Leo — Mon, 05 Apr 2010 16:46:04 PDT

This chapter describes and analyzes third degree interrogation in nineteenth- and early twentieth-century America. The chapter begins with a detailed description and analysis of the various kinds and types of third degree interrogation, describing both the physical and psychological components of the third degree. Next, the chapter discusses how the ideology and practice of so-called "scientific" lie detection and psychological interrogation came to replace the third degree following the Wickersham Commission's Report in the 1930s. Although the third degree is, for the most part, a relic of the distant past, its demise represents a crucial turning point in the history of American police investigation. To fully understand the evolution, character, and logic of contemporary psychological interrogation practices, it is essential to take a closer look at the history and logic of third degree interrogation in the United States. This chapter argues that modern psychological interrogation grew out of the third degree and, in many ways, has been a response to the excesses, criticisms, and contradictions of third degree interrogation.

Miranda, Confessions, and Justice: Lessons for Japan?

Richard Leo — Tue, 16 Mar 2010 16:43:57 PDT

This chapter explores whether a Miranda-like warning and waiver regime could be successfully implemented in Japan. The chapter reviews the social science and legal scholarship on Miranda's impact on American interrogation practices and suspect behavior, concluding that most American suspects continue to waive their rights and law enforcement personnel continue to obtain a high number of confessions and convictions. Next, the chapter discusses the contemporary law and practice of interrogation in Japan. In Japan, interrogation appears to be routinely psychologically coercive and virtually all defendants make either partial admissions or full confessions to alleged offenses. Confessions are regarded as superior to all other forms of evidence within the Japanese criminal justice system and often as necessary for charging and convictions. Japanese courts rarely suppress confession statements, even if obtained under highly questionable circumstances, and the exclusionary rule operates as a weak, if not ineffectual, control on investigators' behaviors. Furthermore, Japanese police and prosecutors believe confessions are necessary for suspects to accept moral responsibility for their offenses, to repent, and to begin the process of rehabilitation and reintegration. Because of Japan's enabling rules of criminal procedure, current practices of Japanese police and prosecutors, and Japanese popular beliefs and cultural expectations, a Miranda-like warning and waiver regime would be difficult to implement in Japan. To succeed, Miranda warnings would have to be linked to a massive reform of criminal procedure rules and the Japanese criminal justice system would have to undergo a dramatic transformation. Nonetheless, other criminal justice policy reforms in Japan are worthy of consideration, such as mandatory videotaping of all custodial interrogations in their entirety. Without intruding on the prerogative of interrogators to question suspects or lessening the willingness of suspects to speak to police, tape recording would improve the quality of interrogation, save time and resources, and lead to more effective and efficient case processing.

Police-Induced Confessions, Risk Factors, and Recommendations: Looking Ahead

Saul M. Kassin et al. — Mon, 01 Mar 2010 10:21:43 PST

Reviewing the literature on police-induced confessions, we identified suspect characteristics and interrogation tactics that influence confessions and their effects on juries. We concluded with a call for the mandatory electronic recording of interrogations and a consideration of other possible reforms. The preceding commentaries make important substantive points that can lead us forward—on the effects of videotaping of interrogations on case dispositions; on the study of non-custodial methods, such as the controversial Mr. Big technique; and on an analysis of why confessions, once withdrawn, elicit such intractable responses compared to statements given by child and adult victims. Toward these ends, we hope that this issue provides a platform for future research aimed at improving the diagnostic value of confession evidence.

The Three Errors: Pathways to False Confession and Wrongful Conviction

Richard A. Leo et al. — Tue, 26 Jan 2010 15:47:35 PST

Research has demonstrated that false confessors whose cases are not dismissed before trial are often convicted despite their innocence. In order to prevent such wrongful convictions, criminal justice officials must better understand the role that false confessions play in creating and perpetuating miscarriages of justice. This chapter examines police-induced false confessions and analyzes three sequential errors that occur in the social production of every false confession: investigators first misclassify an innocent person as guilty; they next subject him to a guilt-presumptive, accusatory interrogation that invariably involves lies about evidence and often the repeated use of implicit and/or explicit promises and threats as well; and once they have elicited a false admission, they pressure the suspect to provide a post-admission narrative that they jointly shape, often supplying the innocent suspect with the (public and nonpublic) facts of the crime. We refer to these as the misclassification error, the coercion error, and the contamination error. Additionally, at least three other processes - "misleading specialized knowledge," "tunnel vision," and "confirmation bias" -- usually pave the way to a wrongful conviction by convincing all of the criminal justice actors to ignore the possibility that the confession is false. We analyze these processes in this chapter and conclude with recommendations designed to reduce false confessions and prevent false confessions from leading to wrongful convictions.

Interrogation through Pragmatic Implication: Sticking to the Letter of the Law While Violating its Intent

Deborah Davis et al. — Thu, 21 Jan 2010 13:31:56 PST

In response to increasing evidence that police interrogation procedures can and do elicit false confessions from innocent suspects, American Courts have offered guidelines intended to protect suspects from coercive interrogations and to ensure the voluntariness and reliability of any confessions obtained. However, faced with legal prohibitions against police promotion of suspect confessions through use of physical coercion or explicit incentives for confession, American police interrogation tactics have evolved to rely on the use of pragmatic implication to nevertheless convey strong incentives for suspects to confess guilt—practices that have essentially diluted or circumvented the intended protections and that have continued to elicit false as well as true confessions. This chapter outlines the sequence of common American police interrogation procedures, with emphasis on specific wording and tactics making use of pragmatic implication—in violation of the intent of the law-- to convey promises of leniency for confession or harsher treatment in response to continued denial.

Strategies for Preventing False Confessions and Their Consequences

Deborah Davis et al. — Sat, 16 Jan 2010 08:03:04 PST

Researchers have amply documented that contemporary methods of psychological interrogation can, and sometimes do, lead innocent individuals to confess falsely to serious crimes. The consequences of these false confessions can be disastrous for innocent individuals. This chapter reviews the primary causes of false confession and resultant miscarriages of justice that are subject to the influence of law enforcement and the courts. We first review the major identifiable causes of false confession, offering suggestions for ways to minimize or avoid them. We offer four primary strategies for prevention of false confessions: (i) interrogation only of those for whom there is sufficient probable cause to support guilt; (ii) educating law enforcement concerning the potential for and causes of false confessions; (iii) avoiding practices known to promote false confession; and (iv) greater training and sensitivity to the psychological vulnerabilities that render some suspects unusually susceptible to influence. Finally, we outline strategies for recognizing false confessions when they do occur, and thereby for minimizing their consequences.

Psychological and Cultural Aspects of Interrogations and False Confessions: Using Research to Inform Legal Decision-Making

Richard A. Leo et al. — Fri, 15 Jan 2010 13:43:51 PST

False confessions are a major cause of wrongful convictions. In many countries, physical abuse and torture are still used to extract confessions from criminal suspects. Cultural orientations such as collectivism and power distance may influence the tendency to confess, and a suspect's past experience in a country that uses physical abuse during interrogations may render suspects fearful and more prone to falsely confess. After looking at interrogations outside the United States, we examine the issue of why false confessions sometime occur in the U.S. legal system. We prove an overview of the stages of a typical interrogation and provide a psychological analysis of the array of tactics used by police interrogators. Finally, we describe several reforms that hold the potential to dramatically reduce the risk of false confessions.

Police Interrogation and Coercion in Domestic American History: Lessons for the War on Terror

Richard Leo et al. — Fri, 08 Jan 2010 08:07:56 PST

The use of torture during interrogations conducted by U.S. special forces, military police, CIA agents, the FBI, and private contractors during the War on Terror has been widely documented. While many chroniclers of the use of torture have characterized its use as a dramatic break from the past, the use of torture by American interrogators and the tacit sanctioning by U.S. officials are not new. The routine use of torture by American domestic police during the early part of the twentieth century has been largely ignored by scholars who study contemporary uses of torture in the international context. This chapter discusses the history of the "third degree" to shed more light on the current torture debate. We note that there are numerous parallels between third degree techniques employed by American domestic interrogators in the early twentieth century and coercive techniques used by American military interrogators more recently. This domestic history of torture suggests important lessons for better understanding the dynamics and consequences of military torture and highlights possible pathways to reform. Abandoning abusive interrogation practices in favor of more professional approaches can strengthen institutional legitimacy, restore faith in our systems of justice, improve morale, and result in more reliable intelligence.

Studying Wrongful Convictions: Learning From Social Science

Richard A. Leo et al. — Tue, 05 Jan 2010 14:53:18 PST

There has been an explosion of legal scholarship on wrongful convictions in the last decade, reflecting a growing concern about the problem of actual innocence in the criminal justice system. Yet criminal law and procedure scholars have engaged in relatively little dialogue or collaboration on this topic with criminologists. In this article, we use the empirical study of wrongful convictions to illustrate what criminological approaches—or, more broadly, social science methods—can teach legal scholars. After briefly examining the history of wrongful conviction scholarship, we discuss the limits of the (primarily) narrative methodology of legal scholarship on wrongful convictions. We argue that social scientific methods allow for more precise and accurate depictions of the multifactorial and complex nature of causation in wrongful conviction cases. In the main body of this article, we discuss and illustrate several social science approaches to the study of wrongful conviction: aggregated case studies, matched comparison samples, and path analysis. We argue these methods would help criminal law and procedure scholars to better understand the causes, characteristics, and consequences of wrongful convictions than a purely narrative approach. Finally, we offer concluding thoughts about improving the dialogue between criminal law and criminology on the subject of wrongful conviction.