After conviction, the fact of a confession that has been ruled admissible and accepted by the jury is almost impossible to dislodge. If a hierarchy of appeals courts considers the “totality of circumstances” sufficient to make it voluntary, then it is deemed reliable. If no other constitutional rights were violated, the only escape through the courts is by finding new evidence, presented within a limited window of time, sufficient to justify a new trial. Otherwise, a pardon or clemency can be sought, but those are rarely granted. An exception came when Governor George Ryan of Illinois, impressed by DNA’s exposure of thirteen erroneous convictions in his state, emptied death row by commuting the sentences of all 156 prisoners awaiting execution.22
As a rule, then, a collection of confused, disjointed answers in an interrogation room is transformed and hardened into invincible truth. The game moves on.
The interrogation industry knows the power of the confession, and so mounts expensive training programs to give questioners tools and techniques to ferret out the “truth” within the limits set by courts. “The first day, we teach how to assess credibility,” said Joseph Buckley, president of John E. Reid & Associates, a leader in the field. Over 200,000 interrogators have attended its programs, where trainers instruct police departments and private corporations in a multistep process that begins with the non-accusatory “Behavior Analysis Interview” of a criminal suspect or an employee under investigation for wrongdoing.
Most striking is the confidence that guilt or innocence can be inferred by asking “two different kinds of questions: investigative and behavior-provoking questions,” Buckley explained. “Let’s say your neighbor is killed one night. Police say, ‘What should we do if we catch the guy?’ Guilty people say, ‘Gee, I don’t know, that’s not my decision.’ ” Asked if the perpetrator should be given a second chance, the guilty often say yes, the innocent typically say no.23
This initial interview is non-accusatory and begins with benign background questions designed to identify a person’s baseline of normal behavior. Does the subject make eye contact? Does he speak slowly or rapidly? How long does he wait before answering a question, and how long are his answers? Then some fifteen questions are posed about the offense, and the interrogator watches for deviations from the norm, which may indicate involvement.
The innocent tend to suggest solutions to the crime and speculate about possible culprits, displaying what trainers call the Sherlock Holmes effect. By contrast, the guilty are usually less eager to explore the possibilities, since they cannot contribute relevant thoughts without implicating themselves. As a result, their self-portrayals of innocence are less compelling.24
The Reid Technique, as the company calls its method, provides an arsenal of probes and tests: Virtually all innocent and most guilty people agree immediately to an interview, says Reid’s online Investigator Tips, but “a suspect who puts off the interview without good reason should be viewed suspiciously.” Language considered “evasive” includes hedging with such terms as “usually,” “generally,” and “as a habit.” Here, too, it’s critical to make comparisons with the person’s normal habit of speech, Buckley notes. Direct quotations suggest a fabricated story—who can remember whole sentences verbatim?—while indirect quotations presented as paraphrasing indicate truthfulness. Bad grammar is distributed among both innocent and guilty.
Specific answers also fall into patterns that can be elicited by the behavior-provoking questions. If a store’s cash deposit is missing from a safe, it’s worth asking employees how they feel about being questioned, according to an article by Buckley and two professors of criminal justice. An innocent clerk might welcome an interview to prove her innocence and help catch the crook, while a guilty employee might deny having feelings about being questioned, saying she’s cooperating just to keep her job.25
Interrogators are advised to check suspects’ honesty by posing questions with known answers. Ask someone with a criminal record whether he’s ever been arrested or questioned by the police. “It is an effective strategy to invite suspects to lie to the investigator,” the Reid tips announce. “Innocent suspects usually volunteer the truth, even if the truth reveals possible motives, access, or propensity.”
Ask “bait questions,” such as “Bill, if we were to review the surveillance video outside the store that day, is there any reason we would see you on the video?” Or, while holding a fingerprint card, “This very recent fingerprint was recovered from a door of the stolen car. Is there any reason this would be your fingerprint?” While the innocent would probably answer categorically, the guilty can be expected to dodge and weave. In the hypothetical case of the missing store deposit, for example, the interviewer might say that many safes have mechanisms to count the number of envelopes dropped into them; if the counter shows one less item than it should, what would be the reason? The innocent might reply that she was sure she inserted her envelope, so the discrepancy couldn’t be from her deposit. The guilty might answer, “Gee, I don’t know very much about mechanical things, maybe it got stuck or something.”26
The body can betray the mind, investigators are told. “A truthful subject will exhibit a variety of different postures throughout the course of an interview,” but “a deceptive subject,” whose lies require so much effort, “may assume an initial posture and never significantly deviate from that posture.” Again, deviations from the norm are the key, including smiles and movements of the head, feet, legs, arms, and hands.
The Reid techniques are also replete with caveats and cautionary notes. Don’t jump to conclusions on the basis of eye contact, they warn. In some cultures, the averted glance is a sign of courtesy and deference, and even a liar may lock the questioner in a steady gaze during a well-rehearsed answer, a stare that usually breaks when an unexpected question is asked—one reason to put fifteen or twenty questions, not just two or three. Place nonthreatening questions first to establish normative behavior. Don’t assume that nervousness or lying is related to the crime; it could be about other wrongdoing, such as unpaid child support or parking tickets.
Still, anyone reading the multiple tips and methods would assume that lies run in only one direction, concealing guilt. The training scarcely aims at revealing false confessions; false denials are the targets. And once the interrogator brands the suspect’s denial a lie, the label sticks and leads to the next step—the accusatory interrogation—which assumes that a confession is true and a denial is false. Denial is equated with deception.
Many psychologists scoff at the techniques, ridiculing police who think they hold special powers to divine truth from falsehood, “a folk psychology of human lie-detection that is based on myth, superstition, and pseudoscience,” write Drizin and Leo, “more akin to the witchfinding techniques of the 1690s than to the methods of modern science.”
In fact, researchers have found that human beings detect lies at little more than chance rates. Reid counters that lab experiments are unlike real settings where the consequences are serious and suspects give off clearer signals.
Some experiments are illuminating nonetheless. In one, police officers were taken in by videos of relatives pleading for the return of missing family members, and failed to spot the deception: the relatives had murdered the missing. In another, college students trained on how to detect lies were less accurate but more certain than untrained students when shown videos of actual interrogations and denials. “The training procedure itself biased observers toward seeing deception, and hence guilt,” the researchers concluded. Other studies revealed cops as more likely than laymen to disbelieve people, and inclined more frequently than college students to think a false confession was true. The police officers, too, were highly confident of their judgments, although “professional lie catchers” were correct only 45 to 60 percent of the time.27
One detective was quoted as saying, “You can tell if a suspect is lying by whether he is moving his lips.”28
A devastating application of “folk psychology” set t
he stage for Martin Tankleff’s false and fleeting confession to slaughtering his parents in their upscale Long Island home. The case demonstrated that you don’t have to be a poor black kid to have your rights trampled.
Marty was seventeen. On the first morning of his senior year in high school, he woke up early, noticed lights on abnormally throughout the house, and found his mother, Arlene, lying in bed, beaten, her throat slashed. His father, Seymour, sat slumped at his desk, bloody, unconscious, gagging, and barely alive. Marty called 911, followed the operator’s instructions to apply pressure with a towel to a gushing neck wound, and was covered with his father’s blood when police arrived.
Something peculiar struck the lead homicide detective, K. James McCready. The boy seemed unemotional. He sat placidly on a retaining wall beside the driveway, rinsed his bloody hands in a puddle, and then waited quietly in a patrol car as instructed, according to McCready’s fourteen-page report. Marty gave the police the name of a likely murderer: Jerry Steuerman, who owed his father a substantial debt involving a bagel business. Tension between the two had been growing, and Steuerman had been the last to leave a late-night poker game at the house. But McCready looked in a different direction—the boy’s strange calm seemed suspicious.
“I told him that I didn’t think that he was very upset about the death of his parents,” McCready wrote in his report, “and he said that he was all cried out by the time the Police arrived at his house.”29
“The police are not psychologists,” countered the psychologist Saul Kassin, an expert on confessions. “Psychologists who study reactions to trauma know that some people fly into a state of hysteria, but other people shut down, go numb, and appear emotionless. That doesn’t make them killers.”30
McCready demonstrated no understanding of trauma’s multiple effects, so Marty’s emotional shutdown looked uncaring, enough to convince the detective within an hour that he had found his murderer. That determination, which satisfied the standard police interview’s first goal of assessing credibility, initiated a cascade of questioning aimed at breaking through to the boy’s guilt.
At the station house, the two went round and round about when Marty got up, when he put on which clothes, which light switches he turned on in what order, how he got blood on his shoulder or his leg, and “when I saw that I wasn’t getting anywhere with the questioning,” McCready said, “I came up with an idea. I tricked him, yes I did.” The detective walked to an adjacent room within hearing distance and dialed an extension on the next desk. “I picked up the phone in my usual way. I said, ‘Homicide, McCready,’ ” then “I made up a conversation with myself. I said, ‘Yeah, John … You’re kidding! He came out.…’ ”
He went back to Marty and told a legally approved lie about his father. “I made believe that an officer at the hospital called, they’d pumped him full of Adrenalin, he’d come out of his coma, and that he had said, Marty, you did it.”31 In fact, Seymour Tankleff never regained consciousness and died a month later.
The cruel fabrication shook the teenager deeply. Still stained with the blood of his father, he was now shaken by his father’s supposed accusation. “My father never lied to me,” he said later, explaining what happened to him in those moments of interrogation. Initially, according to the police report, “Marty said if he said that, it was because he was the last person his father saw.” He offered to take a lie detector test but wasn’t given one. Had he been tested, the police would have been entitled to do what they often do—lie about its results to convince him that he’d failed.
“I was always brought up to trust law enforcement,” Marty explained. “I was brought up that cops don’t lie. My father was the police commissioner of Belle Terre. We lived in a very good neighborhood, and when the cops turned around and said your father said you did it, I started to doubt myself. I knew that my father would never lie to me. I knew in my heart and my soul I wasn’t responsible for this, but when the cops start telling you we know you did it, you start to doubt yourself.”32
The Supreme Court has tacitly approved police lies during interrogations, and lower courts have developed a body of case law that defines the boundaries of deception, which the Reid Technique is careful to delineate in its training literature. In 1969, the Court let stand a confession given after police falsely told a suspect that his companion had confessed.33 Since then, trainers have taught police officers how to lie to suspects, but carefully enough to fall within the patchwork of approvals created by state and federal courts.
“Almost every interrogation involves some level of at least implied deceit,” says one of the Reid tips. The duplicity begins with the cop declaring that there’s no doubt that the suspect did the crime, backed up by references to physical evidence that doesn’t exist. The tactic of pretending to have evidence but not actually fabricating it appears in a list of Reid’s “suggestions.” When false evidence is manufactured to fool suspects, judges have suppressed resulting confessions out of concern that the counterfeit may find its way into a trial. But it’s OK to lie about having it. So when Florida police got a murder confession after typing up a lab report with phony DNA results, a state court overturned the conviction.34 If the cop had just brandished the real forensic test and misrepresented it, however, or had waved any piece of paper, called it a report, and told the suspect that his DNA matched, that would probably have passed judicial muster.
The technique has risks, Buckley cautions. If you say falsely that a witness saw the suspect dash out of a building just before a fire, and the subject actually “stayed in the alley as a lookout while his partner went into the building,” Buckley explains, “the investigator loses all of his credibility with the subject. That is why in the baiting technique we never say that we have the evidence.”
Yet the online Reid material instructs interrogators on how to draw the line between pretending and fabricating: A suspect can be shown a card bearing a latent fingerprint and be told, “This is your fingerprint. We found it inside that stolen car, so don’t insult my intelligence by telling me you weren’t inside the car. We know you were.” That’s legal if the cop puts his own print on the card but not if he fakes it with the suspect’s print.
Or the officer may brandish a DVD labeled with the date of the crime, tell the suspect that it’s a surveillance video from a store, and say, “I reviewed it this morning, and it shows you going into the store just before the robbery. It’s as clear as day; there’s no doubt it is you.” But he may not fabricate a video showing the suspect.35 “Again, while this may be legal to do, it is very risky,” Buckley remarked. “Consequently, we rarely do it.”
The risk worrying Buckley is the loss of rapport between subject and questioner. But there is another risk—that of generating false confessions with these methods. It is occasionally mentioned in the training tips, which caution against lying unless denials are weak. Interrogators are advised against using the tactics on mentally impaired suspects who are eager to please and may believe the investigators more than their own recollections.36
This can also happen to mentally healthy adults, a fact ignored by training guidelines, which seem more pragmatic than ethical—probably a reflection of the police culture. Anything legal is moral, it seems. Anything the judge accepts is acceptable. That eases restraints considerably, since courts examine “the totality of circumstances” to determine whether a confession is voluntary. The Reid instructions warn interrogators that “the trickery or deceit employed must not shock the conscience of the court or community,” but consciences seem hard to shock these days. The term “shock the conscience” derives from a 1952 Supreme Court case overturning a conviction after police burst into a couple’s bedroom looking for drugs, saw the man swallow two pills, pried open his mouth to try to wrench them out, then took him to the hospital, where he was forcibly given medicine that made him vomit.37 It’s a wonder that no judges’ consciences were shocked by Detective McCready’s callous concoction that a dying father had pointed the finger
of accusation at a stunned and grieving son.
“You can imagine Marty at this point kind of like a boxer who’s dazed and weak in the knees about to go down,” said Kassin, the psychologist. “They lower the boom and McCready goes out and stages a phone call.… In doing that, he cites to Marty the person in his life he trusts the most.”38
“He then asked if he could have blacked out and done it,” McCready wrote in his report. Here was an opening to fill the doubt with the mist of a false memory, an expedient way to create detailed confessions out of the thin air of vulnerability. The detective seemed to lead the speculation until Marty guessed that he might have been possessed, and McCready fashioned a narrative that the boy never signed or videotaped. The questioning ended when a sergeant interrupted to say that an attorney—Marty’s uncle—had called to request that the session cease.
In experiments, adults who are told convincing fictions have become susceptible to memories of things that never happened—that they had once been lost as children in a mall, had nearly drowned, had been attacked by an animal, or had suffered an accident at a wedding. They may summon up recollections as vivid and imaginary as the details in a dream. A classic study demonstrated the vitality of false beliefs when college students were instructed to avoid hitting a certain key as they typed; an observer stood nearby, watching. When the computer crashed, the students were convinced by fake evidence—a phony printout of their keystrokes and the observer’s false testimony—that they had caused the breakdown by hitting the forbidden key. They confessed and believed their confessions to be true, even to the point of providing details of how they pressed the key.39
Therefore, psychologists are not surprised that isolating some people in a process that distorts reality, that subjugates them to an authority figure’s suggestion, can induce doubts about their own recollections. The phenomenon is called “memory distrust syndrome” and thrives in the setting of an interrogation.40 Such “illusions of memory,” described in a 1908 study of a Salem woman’s confession to being a witch, may induce the suspect to imagine that a second personality has split off from her real self and committed the crime.41 Marty Tankleff alluded to the notion as he pondered the possibility of his guilt.
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 10