Unfair

by Adam Benforado

  As Holly’s sister later put it, “Why would you confess? If I’m getting charged with murder, I am not going to fess to something I did not do and then explain the whole night and how I did it and why I did it and everything like that if I didn’t do it.” Innocent people just don’t confess. Indeed, the esteemed father of evidence law, John Henry Wigmore, once declared that false confessions were “scarcely conceivable.” The potency of this assumption overpowers doubt, even when there is exonerating evidence or indications of police coercion.

  We expect people to be consistent; we assume that someone who has signed a confession believes what it says. In a famous study documenting this phenomenon, researchers asked people to evaluate essays written about Fidel Castro. Despite being told that the authors of the essays had been assigned their respective positions, for or against, participants disproportionately believed that the writers of the pro-Castro essays actually held pro-Castro views. They placed too much faith in outward conduct as a window on inner belief and underestimated the power of the situation to shape behavior. The expectation was that—assignment or no assignment—a person’s views on Castro would remain constant: semper fidelis.

  Another reason we find it hard to accept that some confessions are false is that we assume that our system has eliminated the cruel tactics that once led people to admit to crimes they didn’t commit. There is a long history of harsh coercion directed at suspects. As Supreme Court Justice Hugo Black wrote in 1940, “The rack, the thumbscrew, the wheel, solitary confinement, protracted questioning and cross questioning…left their wake of mutilated bodies and shattered minds along the way to the cross, the guillotine, the stake and the hangman’s noose.” Indeed, before the 1930s, it was common to get suspects to confess by subjecting them to what was known as the “third degree”—including significant physical pain. But that has been abandoned in the back room of history.

  Juan Rivera, though, did falsely confess—and he is not alone. False confessions and incriminating statements are the leading contributors to wrongful homicide convictions, present in over 60 percent of the known DNA murder-exoneration cases in the United States. More broadly, they appear to have been a factor in about 25 percent of all post-conviction exonerations.

  These cases tend to confound our expectations: physical coercion is rare, the confessions are often rich in detail, and multiple innocent suspects may confess to acting together. Indeed, in one of the most famous examples—the so-called Central Park Jogger case—five teenagers all admitted to participating in the brutal rape of a woman only to be exonerated by later DNA analysis. While some who falsely confess do come to believe that they committed the crime, most are completely aware that they are innocent. And researchers are beginning to understand how this baffling behavior can come about.

  Front and center is the common approach to questioning suspects. The generally accepted gold standard, the Reid Technique of Interviewing and Interrogation, which has been used to train more than half of the police officers in the United States, not only fails to guard against false confessions but actually appears to encourage them.

  Using the Reid approach, when someone like Juan is brought in for questioning, detectives determine whether he is telling the truth through a nonconfrontational interview, and then, if he appears to be lying and his guilt is “reasonably certain,” they proceed to an aggressive interrogation designed to extract a confession. Unfortunately, as we will explore in detail later, police officers are no better than the rest of us at detecting deceit. And far from correcting officers’ erroneous intuitions about lying, the Reid technique relies heavily on unreliable gut instincts and dubious cues to deception.

  This means that a significant number of the people who end up being subjected to the harsh interrogation phase of questioning under the Reid approach are actually innocent. Indeed, it is innocent people who are more likely to waive their rights to remain silent and to have a lawyer present in the first place. They tend to assume—as we all do—that what they themselves know to be true will also be readily evident to outsiders. Since they didn’t commit the crime in question, there is little risk of talking to the police in an open way; if anything, clamming up or requesting an attorney would imply guilt. But, in reality, once the interrogation phase is under way, innocence is off the table: investigators are advised to repeatedly accuse the suspect of having committed the crime and prevent the suspect from offering denials or alternative explanations. All efforts are directed toward gaining the coveted confession. To this end, the Reid manual heartily embraces lying about the evidence in the government’s possession. If you want to get a hardened criminal to admit to a crime, you can’t just play nice.

  As a result, the environment is one of maximum psychological coercion: the suspect is completely isolated in a windowless room and may be harangued and berated for hours on end. Many who falsely confess later say that they admitted to committing the crime simply to escape the abuse. And experimental evidence suggests that people often downplay the potential long-term consequences of confessing to illegal activities when an admission appears to provide relief from short-term discomfort. When we have an opportunity to end the stress, fatigue, and fear we are feeling in the moment, we find it hard to appreciate the ruinous repercussions that may result from admitting to something that we did not do.

  Police interrogations take full advantage of our cognitive myopia. According to the nine steps of the Reid technique, the investigator is meant to hammer on the suspect’s unquestionable guilt and emphasize the futility of denials in light of the damning evidence, while at the same time offering sympathy and potential justifications that encourage the person to see confessing as more acceptable. The officer might suggest that the crime wasn’t a big deal (“You know, the victim kind of had it coming, if you ask me; I’d probably have done the same thing as you in that situation”) or offer a potential narrative that lessens the moral role of the offender (“You weren’t planning to kill him, I bet, you just needed some money, and it was only when he suddenly started to attack you that the gun went off”).

  Empirical evidence suggests that both of these approaches—commonly referred to as minimization and maximization—can contribute to false confessions. And the effects are not small: in one study, when minimization was used with students accused of cheating (“I’m sure you didn’t realize what a big deal it was”), the rate of false confessions tripled. When the interrogator added a subtle suggestion of leniency in exchange for confessing (“Things could probably be settled pretty quickly [with a signed confession]”), the rate increased sevenfold.

  Despite these serious concerns, judges have been reluctant to reform interrogation practices. While the Supreme Court has formally prohibited confessions obtained through violence or threats, as well as those gained through direct or implied promises, lower courts have regularly turned a blind eye to many coercive practices. Further, the justices have explicitly sanctioned interrogator tricks, like pretending to possess fingerprint evidence and lying to a suspect about the results of a polygraph test, which encourage innocent people to confess to crimes that they did not commit.

  In one of the most tragic cases, seventeen-year-old Martin Tankleff awoke one morning to find his mother stabbed to death and his father badly cut and clinging to life. Investigators suspected that Martin was the perpetrator, and so, during questioning, one of them pretended—within earshot of Martin—to talk on the phone with an officer at the hospital where Martin’s dad had been taken. After the fake conversation, he told Martin that his father had come out of his coma and said “Marty” had done it. The father, in fact, never came to and died shortly thereafter, but Martin admitted to the killing and served seventeen years in prison before he was exonerated.

  What’s worse is that Martin’s false confession was predictable. His case involved two of the basic elements we know lead to disaster: a suspect particularly susceptible to coercion and a grueling interrogation. A disproportionate number of verified false
confessions have come after unusually lengthy interrogations—lasting twelve hours, on average—with suspects who were under eighteen or suffering from mental illness or disability.

  The interrogation of Juan Rivera fits the pattern perfectly. At the time of his arrest for Holly Staker’s rape and murder, Juan was nineteen years old, had an IQ of 79 (well below the average of 100), and read at a third-grade level. Among other mental illnesses, he suffered from major depressive disorder and had made several suicide attempts. Despite these warning signs—disclosed to the police early in the process—officials proceeded to engage in a long, high-pressure interrogation.

  It took four days of questioning and polygraph tests, but eventually Juan began to backtrack on his initial account of the night of Holly’s death, in which he said he’d been at a party near the scene of the crime and seen someone there acting suspiciously. There are many reasons that a suspect like Juan might not be truthful when first questioned by detectives: among other things, he might fear that the truth does not sound believable, or he might suppose that a little lie will allow him to avoid more intensive and unpleasant treatment. But the police, as they often do, took the inconsistencies in Juan’s story as a clear sign of guilt and decided to switch to aggressively seeking a confession. Although the polygraphs administered at Reid & Associates, the company that developed the Reid technique, had been inconclusive, the detectives had the polygrapher lie, directly accusing Rivera of raping and murdering Holly.

  Rivera immediately became upset and denied involvement in the crime, but the detectives took him back to the Lake County Jail and continued to push for a confession. At around midnight, more than twelve hours after the day’s questioning had begun, Rivera broke down sobbing—crying so hard that he completely soaked his clothes. He wasn’t able to get the words out, but when the sergeant laid into him once again—“Juan, you were in that apartment with Holly Staker, weren’t you?”—Juan nodded.

  Over the next few hours Juan would provide the police with a full confession. By 3 a.m., the officers had what they needed and went to type it up. Rivera, left on his own, began to slam his head against the wall. Moved to a padded cell, he fell into an acute psychotic state. The nurse on duty described him as incoherent (in her words, he “sounded like the people who talk in tongues” and was “not in touch with the reality of what was going on around him”). When she checked back a couple of hours later, he had pulled out pieces of his hair and scalp and was curled in a fetal position.

  Returning in the early morning, the detectives crouched down on the floor where Juan was lying (still handcuffed and shackled), read him their summary account of his confession, and had him sign at the bottom.

  The document, though, was so inconsistent and riddled with factual errors (for example, Juan described Holly as wearing a nightgown) that the State’s Attorney’s Office told the detectives it was unacceptable. The interrogation had to continue. The two detectives, however, were too exhausted to go on, so two new detectives stepped in.

  These interrogators focused on “clarifying” the problematic and inconsistent parts of Juan’s first confession. After a few more hours, they got the improved version they wanted, but, unsurprisingly, a number of their inquiries had been highly suggestive. Questions like “She had a multi-colored shirt on, right, Juan?” provide insight into how so many false confessions come to contain specific details about the victim and crime scene. Information that only the real perpetrator could know is often inadvertently (and sometimes deliberately) revealed to a suspect over the course of an investigation. Juan Rivera discussed the crime with no fewer than ten law enforcement personnel over the four days he was interrogated, and on the second day the detectives took him on a “ride along” to the crime scene. Moreover, at least fifteen of the fifty-four purportedly “unique” facts in Juan’s confession had appeared in local newspapers. Lamentably, these are just the types of details that end up being highlighted as strong proof that a confession is genuine.

  While a more rigorous interrogation protocol might have made a difference for Juan, he would still have had to contend with investigators’ assumption of guilt. As we’ve seen, once people form an initial impression of someone, they find it hard to change course. This can be problematic when it comes to police questioning, given that the whole reason a suspect is brought in for an interview is that the investigators have a hunch that he was involved in the crime.

  Beginning the process with a theory of guilt leaves investigators predisposed to view the suspect’s ambiguous behavior as demonstrating deceit and to be overconfident in that assessment. This, in turn, can lead them to switch to the hard-nosed interrogation phase prematurely and to chart a more aggressive course once there. One study found that mock interrogators could be encouraged to ask more biased questions, take a more unyielding stance, and lie to a suspect about nonexistent evidence against him, simply by being led to believe at the outset that the suspect was responsible for the crime. The results were stark: participants who started off with a guilt mindset were more than 20 percent more likely to confirm guilt than those who started off with an innocence mindset.

  We can see these psychological forces at work in Juan’s case. As is common in false confessions, Juan provided many facts to the police that contradicted what was known about the crime (he described changing the diaper of a baby in the room, although the baby was not in diapers) or what was plausible (he described eleven-year-old Holly as coming at him with a knife in a rage after he refused to continue having sex with her). Yet these clear discrepancies did not prompt police or prosecutors to doubt his guilt; they simply meant that the detectives had to go back and clean things up in a later round of questioning.

  And once a confession is extracted, everyone—investigators, lawyers, jurors, and judges—starts to view the whole case through the lens of guilt, so other evidence can become more compelling than it actually is. This is confirmation bias on a grand scale. A hazy eyewitness identification suddenly appears reliable. A jailhouse informant angling for a deal suddenly seems credible. In turn, your defense attorney may not work as hard to fight for your innocence, the trial judge may be tougher on you, and the prosecution may stake out a stronger position with respect to a plea bargain. Perhaps most important, a confession can cause detectives to stop investigating. In one particularly egregious case, a lab technician discovered that the suspect’s blood type did not appear to match the crime-scene evidence and requested that the samples be sent to the FBI for DNA testing. He was turned down, however, on the grounds that the police already had a confession.

  Even when a DNA sample tested before trial excludes the suspect, he may still be unable to break free from the shackles of his confession. In eight of the first 250 DNA exoneration cases, a suspect confessed to a crime that pretrial lab results showed he did not commit, and in all eight of these cases, police, prosecutors, judges, and jurors ignored what the DNA said. The only reason these men were eventually freed was that the biological evidence from the crime scene was finally matched to someone else. As remarkable as it is, Juan Rivera’s case is not unique.

  And Juan is not the only person who could have been steered into falsely confessing to Holly Staker’s rape and murder. Hard-nosed interrogations are particularly common when there is an absence of other clear evidence and immense pressure to solve a serious crime. Failing to gain a confession may result in an investigator not closing a major case, disappointing the family of the victim and the broader community, and damaging his own reputation as well as that of the police department. By the time Juan was brought in for questioning, the case was growing cold, and one can’t help but think of all the other potential suspects—mentioned in initial police reports—who might have stepped into Juan’s shoes: The high school student with a picture of Holly hidden in his wallet? The guy who decided to brag to his friends about how many times he had stabbed her? The man around the corner who had a conviction for sexually assaulting his eleven-year-old stepdaughter? One of
the other sex offenders, drifters, or addicts living within blocks of Holly’s house? They were all treading water at the outer edges of the whirlpool. Juan was simply caught in the vortex first.

  Juan’s story has a happy ending. In December 2011, the Illinois Court of Appeals overturned his conviction. But it would be foolish to see the case as a triumph of our judicial system. It is, instead, a story of terrible failure. When Juan Rivera was freed in January 2012, he had spent half his life in prison for a crime he did not commit—nineteen lost years in the Stateville Correctional Center that he will never get back. He finally made it out, but it took the tireless efforts of lawyers with the Center on Wrongful Convictions at Northwestern University, a Stanford law professor, and a team of bright, dedicated students all working without pay. It took Juan keeping faith that the truth would emerge and maintaining his innocence even as he was repeatedly asked to plead guilty in exchange for a reduced sentence. It took newspaper articles, radio interviews, and television coverage. It took three full trials, three dozen jurors, and three appeals. It took nineteen years. And all that time the real killer was roaming free—and roams free to this day. In a deeply troubling twist, in June 2014 this mystery man’s DNA profile was matched to a murder committed nearly a decade after Holly was attacked.

  Juan felt the sting of injustice every morning he awoke in his cell, but the unfairness of his case burned beyond the walls of Stateville Correctional Center. It deprived the Stakers of the closure they sought. It scarred the Riveras and the town of Waukegan.