Coerced or Nonvoluntary Confessions
Hollida Wakefield, M.A.* and
Ralph Underwager, Ph.D.
Police may engage in deceptive and coercive interrogations to obtain
confessions. When a confession is later retracted, judges and juries must
assess the totality of the circumstances surrounding the confession,
including the interrogation techniques used and the effects of these
tactics on the particular defendant. A suspect who is vulnerable and
confused or who is given false evidence by a coercive interrogator may
produce a false confession. Expert testimony may be necessary to help
jurors understand the circumstances that lead to nonvoluntary confessions.
© 1998 John Wiley & Sons, Ltd.
A confession is one of the strongest forms of evidence that can be
brought into a court of law. In the United States criminal justice system,
prosecutors avidly seek confessions as the most persuasive evidence to win
cases. Eliciting a confession and presenting it to the fact finder easily
becomes a primary goal of the justice system. A confession has a
compelling influence on jurors and they are more likely to convict on the
basis of a confession than anything else, including eyewitness
identification. This effect persists even when the jury is fully aware
that a confession was coerced and likely nonvoluntary (Kassin & McNall,
1991; Kassin & Sukel, 1997; Kassin & Wrightsman, 1985).
However, confessions have also been a source of controversy. Whether
the suspect was of sound mind and whether the confession was voluntary or
coerced must be considered by judges and juries. Kassin (1997) notes that
"a confession is typically excluded if it was elicited by brute
force; prolonged isolation; deprivation of food or sleep; threats of harm
or punishment; promises of immunity or leniency; or, barring exceptional
circumstances, without notifying the suspect of his or her constitutional
If it is demonstrated that the police lied, fabricated evidence, or
otherwise coerced a confession, the fact finder must consider whether the
police lies and deception would have made an innocent person confess.
Judges must determine the admissibility of the confession by evaluating
whether it was voluntary, but they seldom find police lying so severe that
it undermines voluntariness (Young, 1996). The result is that lying,
deception, coercion, and fabrication of evidence may be approved and
condoned in court rulings even while such practices are criticized. Convictions based on coerced confessions may later be upheld through the
appellate process. Huff, Rattner, and Sagarin (1996) observe that a
systemic bias exists in the justice system so that lower courts are seldom
reversed by higher courts.
When a confession is admitted and later retracted and claimed to have
been made under duress, an additional question is whether the jury can
understand the pressures that led up to the confession. Milgram's (1963,
1964) obedience studies suggest that, although most people may believe
they personally would never succumb to pressure, their behavior in a
coercive environment is to conform. Jury members may be unable to perceive
how an innocent person could actually confess to something he did not do.
Widespread overconfidence in personal ability to resist coercion may lead
jurors to give undue and erroneous weight to a coerced confession. Expert
testimony may be necessary to help jurors understand the circumstances
that lead to nonvoluntary confessions, but trial courts have not always
admitted such testimony.
JUDGES AS GATEKEEPERS
Whether a questionable confession is admitted as evidence before a fact
finder is determined by the trial judge. The judge also determines whether
expert testimony concerning the circumstances of the confession will be
admitted. This is true whether the jurisdiction is operating under the
older Frye rule or the more recent U.S. Supreme Court Daubert ruling on
the admissibility of scientific evidence. A judge is the gatekeeper and
either opens the gate for expert testimony or closes it. The result is
that testimony about nonvoluntary confessions may or may not be admitted
depending upon the particular judge and his or her interpretation of the
The problem with judges as gatekeepers is likely that described by
Chief Justice Rehnquist in his dissent to the Daubert ruling:
I defer to no one in my confidence in federal judges; but I am at a
loss to know what is meant when it is said that the scientific status of a theory depends
upon its "falsifiability" and I suspect some of them will be too
(Daubert v. Dow Pharmaceuticals, 1993, pp.3-4).
Saks (1989) sees the law as policy analysis without benefit of data and
based on guesswork:
The law, and most of the people who enter the law, had their
intellectual upbringing in the humanities. Law students are typically smart people who did not
like math. The quantitative, empirical, social and behavioral sciences exist in
another world (p.1115).
Judicial capacity as a gatekeeper may be affected by a number of
factors including bias, personality dispositions, cognitive capacity, and
social or political pressures (D'Amato, 1990; Imwinkelried; 1996; Landsman
& Rakos, 1994; Wesley, 1984). For the science of psychology, the
gatekeeping task of judges is an example of the fundamental tensions and
conflicts between the law and psychology that have been discerned in the
past (Meehl, 1989).
COERCED CONFESSIONS AND FALSE CONFESSIONS
Coerced or nonvoluntary confessions must be distinguished from false
confessions, since not all coerced or nonvoluntary confessions are false
and not all false confessions are coerced. Although it is common for
defendants to retract confessions made during police interrogations, this
will include both true and false confessions. Obviously, some nonvoluntary
confessions are true. In this paper, the focus is on coerced and
nonvoluntary confessions and is not limited to those that have been
demonstrated to be false.
It is sometimes argued that police coercion, including deception and
trickery, is necessary to make criminals confess, but such interrogation
techniques also risk eliciting false confessions. The extent to which this
happens is unknown since no one knows the actual rate of false confessions
(Kassin, 1997). Several researchers maintain that enough instances have
been documented to suggest that a concern over such a risk is justified
(i.e., Ayling, 1984; Brandon & Davies, 1973; Kassin & Wrightsman,
1985; Leo, 1996a, 1996b, 1996c; Leo & Ofshe, 1998). Rattner (1988), in
a sample of 205 cases of wrongful convictions, reports that coerced
confessions accounted for 8.4%. In a study of 229 inmates in Icelandic
prisons, 27 (12%) of the inmates claimed to have made a false confession
in the past during police interviewing (Gudjonsson & Sigurdsson, 1994)
and the majority of the subjects (78%) were convicted of the offense to which they had allegedly made a false
Others disagree that there is a significant problem with false
confessions. Cassell (in press) believes that there is no empirical
evidence that false confessions occur frequently and he maintains that the
problem is largely confined to persons who are mentally retarded or have
serious mental problems. He states that many reports of wrongful
convictions from false confessions are based on media reports and other
secondary sources, and that credible evidence shows that the individuals
were most likely guilty of the crimes for which they were convicted.
argues that false confessions are not caused by police interrogation
techniques in general but rather by using these techniques with narrow,
mentally limited populations.
In another article Cassell (1998) estimates the number of false
confessions leading to wrongful convictions using data from a variety of
sources, primarily Huff et al. (1996). He believes that a reasonable
estimate is in the range of 10 to 394 wrongful convictions from false
confessions in the United States each year. Cassell stresses that this
estimate relies on extensive extrapolations and assumptions and cannot be
viewed as a hard number. It must also be remembered that this estimate is
not of all nonvoluntary confessions or even of all false confessions, but
only pertains to the subset of false confessions that result in wrongful
Being interrogated by the police is a highly stressful experience,
especially when the individual is isolated and not in contact with
familiar individuals. Isolation and confinement can cause a wide range of
behavioral and physiological disturbances including loss of contact with
reality (Gudjonsson & MacKeith, 1982). Foster (1969) notes that police
interrogation "can produce a trance-like state of heightened
suggestibility" so that "truth and falsehood become hopelessly
confused in the suspect's mind" (pp.690-691).
Stress can also arise from the suspect's submission to authority.
the interrogator is perceived as being invested with socially legitimate
authority, the suspect may obey instructions and suggestions which would
ordinarily be rejected. The experiments by Milgram (1963, 1964) on
obedience to authority illustrate this. This is apt to be more likely in
an individual who generally defers to authority.
If a person has no experience with arrest and interrogation, he is more
likely to become upset and stressed by the interrogation. A study in
England (Irving, 1980) reported that anxiety and fear were most commonly
observed in first-time offenders and those suspected of sex crimes. Observations noted included trembling, shivering, sweating,
hyperventilation, frequent urination, and verbal incoherence. A
substantial proportion of the suspects were not in a normal mental state
Gudjonsson and MacKeith (1982) note that factors encouraging a suspect
to make a genuine confession may be similar to those that cause a person
to make a false confession. They state that "non-psychotic
individuals ruminating guiltily about such things as sexual deviation may
also have an exceptionally low threshold to confession to things that they
have not actually done" (p.259). The false confessor may be aware he
is not telling the truth or his perceptions may be distorted or he might
even be deluded for a brief period of time. The false confession in all of
these situations is an interplay between the person's mental state, basic
personality, intelligence, and all of the environmental circumstances of
There are individual differences in the way people react to the stress
of an arrest and interrogation. Three types of false confession have been
distinguished: (a) voluntary (statements made without external pressure), (b)
coerced-compliant (when the suspect confesses to escape an aversive
interrogation, secure a promised benefit, or avoid a threatened harm), and
(c) coerced-internalized (when suspects actually come to believe they are
guilty of the crime (Kassin, 1997; Kassin & Kiechel, 1996; Kassin
& Wrightsman, 1985)).
Although the last type of false confession seems less likely, a suspect
who is vulnerable and confused (internal factors) and who is given false
evidence by a deceptive interrogator (external factors) may confess to the
act, internalize the confession, and confabulate details consistent with
the newly created belief. A laboratory test of these two factors
demonstrated that they can lead to a coerced-internalized false confession
(Kassin & Kiechel, 1996). The Paul Ingram case is a well known example
of this. Ingram, following months of coercive and misleading interrogation
that included hypnosis, not only falsely confessed but recalled false
details of crime scenes (Ofshe, 1992). Gudjonsson and LeBegue (1989) also
provide a detailed case report of a coerced-internalized false confession.
A distinction must be made between the generation in an interrogative
context of a false belief that a person committed a crime and a false
memory for the crime. They may not go together (Gudjonsson, 1995).
Creating a false belief may be the precursor to developing a false memory.
The false memory may develop when there is some process which reinforces
the false belief. Gudjonsson (1992) explains internalized coerced
confessions by suggesting a memory distrust syndrome. This is thought to
be a state of confusion in which people lose confidence in their own
recollections of events. Then when the confusion dissipates and the
original memory returns, the person retracts and challenges the
A situation we have observed is when the accusation is made by an
intimate or a highly regarded person. Although initially the accused knows
it is false, he may need to explain how it could happen that the
accusation was made. A low tolerance for ambiguity and a high need for
closure may cause the person to think about possible explanations.
monitoring errors may eventually lead to a confusion between what is
thought and what happened. Across time the possible scenario becomes more
and more real and detailed. For example, in one case, a man began thinking
about an ambiguous dream he had. It then progressed through more dreams,
more details, and then moved to possible behaviors suggested by the
dreams. Finally, he admitted the possibility that he may have done
THE GUDJONSSON SUGGESTIBILITY SCALES
Research indicates that criminal suspects who make confession
statements which they later deny differ from subjects who persistently
deny any involvement in the crime of which they are accused. Gudjonsson
and his colleagues have developed a scale to assess "interrogative
suggestibility" which is intended to be applicable to police
interrogations (Gudjonsson 1984a, 1984b, 1991c, 1997; Gudjonsson &
Clark, 1986). Interrogative suggestibility is seen as differing from other
types of suggestibility and is defined as "the extent to which,
within a closed social interaction, people come to accept messages
communicated during formal questioning, as a result of which their
behavioral response is affected" (Gudjonsson & Clark, 1986,
The features of interrogative suggestibility are:
1. It involves a questioning procedure which typically takes place
within a closed social interaction.
2. The questions are mainly concerned with past experiences, events,
and recollections. In contrast, other types of suggestibility are
typically concerned with the motor and sensory experiences of the
3. Interrogative suggestibility contains a component of uncertainty,
which is related to the ability of the person to process information
4. Questioning in a police context commonly involves considerable
stress with important consequences for the witness, victim, and suspect
(Gudjonsson, 1997, pp.1-2).
The Gudjonsson Suggestibility Scales (GSS 1 and its parallel form, GSS
2) (Gudjonsson, 1997) are intended to help identify people who are
particularly susceptible to giving erroneous accounts of events when
subjected to questioning. The scale, which is applicable to questioning of
witnesses and alleged victims as well as interrogations of criminal
suspects, assesses responses to leading questions and to pressure
resulting from negative feedback.
The scale is based on a short, narrative story, which is read out loud
to the subject who is then asked to relate everything that can be recalled
about it. After providing both immediate and delayed recall, the subject
is asked 20 specific questions, 15 of which are subtly misleading. Next,
the subject is clearly and firmly told that he or she has made a number of
errors (even if no errors have been made), that it is necessary to ask all
of the questions again, and that the subject should try to be more accurate.
The extent to which the subject gives in to the
misleading questions in the first trial is scored as Yield 1, any change in
answers between the first and second trials is scored as Shift, and Yield
1 and Shift are added together to make up the Total Suggestibility score.
Many studies have been done on the GSS and the manual (Gudjonsson,
1997) provides normative data from a number of populations. Intelligence
has been found to correlate negatively with GSS suggestibility scores in
several studies (Clare & Gudjonsson, 1993; Gudjonsson, 1997;
Richardson & Kelly, 1995). Poor assertiveness, evaluative anxiety,
state anxiety, and avoidance coping strategies correlate positively
(Gudjonsson, 1997). Adolescents do not yield to leading questions more
than do adults, but they are more responsive to negative feedback
(Gudjonsson & Singh, 1984a); but after age 16, there is no
relationship between age and suggestibility (Gudjonsson, 1984a).
Most important for the issue of nonvoluntary confessions, research with
the GSS indicates that "resisters" (subjects who persistently
denied their involvement in the crime they were charged with) score
significantly lower than "false confessors" (subjects who
retracted confessions they had previously made during police
interrogations) (Gudjonsson, 1984b, 1991a, 1991b). Gudjonsson (1991a)
observes that these differences remain when intelligence and memory
capacity are controlled for (Gudjonsson, 1991a). The results also suggest
that the confessing behavior is linked to the suspects' ability to cope
with pressure, rather than their tendency to give in to leading questions
per se. Suggestibility also appears to be related to the suspect's
experience with police interrogations in that it is negatively correlated
with previous convictions (Gudjonsson & Singh, 1984b; Sharrock &
Gudjonsson (1991 a) observes that it is almost certain that not all of
the "false confessors" in his study were innocent of the crime with which they are charged.
However, at least some most likely were and
the fact that not all of these people were of low intelligence reinforces
the point that people of normal intelligence can and do falsely confess to
Police freely admit deceiving suspects and lying to induce confessions.
Police have fabricated evidence, made false claims about witnesses to the
crime, and falsely told suspects whatever they thought would succeed in
obtaining a confession. They have lied about the suspect's culpability,
assuring him that his behavior was understandable and not really
blameworthy, or telling him that if he described what happened, the victim
could be helped. They have falsely told suspects that they had physical
evidence such as footprints, fingerprints, or semen, that a codefendant
had confessed, that the weapon used in the crime was found, that the
suspect failed a lie detector, and that there was medical proof of sexual
molestation (Heavner, 1984; Hrones, 1996; Skolnick & Leo, 1992;
Underwager & Wakefield, 1992; Young, 1996). Lindsay (1991) conducted a
series of four experiments which suggest that police deliberately and
intentionally construct biased lineups to assure identification of a
suspect they believe to be guilty.
Deception is justified by the police as a necessary evil in order to,
obtain convictions of guilty persons. Skolnick (1982) notes that police
officers move from investigation, through interrogation, to testimony.
including the training academies and the courts, permit, if not encourage,
deception during the investigation phase. A detective may pose as a
consumer, a fellow criminal, a panderer, or use informers and wiretaps.
The line between entrapment and acceptable deceit is vague and unclear.
The actual number of cases where police lie is not known, but, because
most criminal cases end with guilty pleas, the reported cases represent
only a fraction of the actual cases where police lie (Young, 1996). Police
deception can result in innocent people being convicted; McCloskey (1989)
lists police lies on the witness stand, police pressure to coerce false
witnesses, suppression of exculpatory evidence, shoddy police work after a
conclusion has been reached about guilt, and falsified forensic science
reports as major factors in wrongful convictions.
Miranda v. Arizona, decided by the U. S. Supreme Court in 1966, used
quotations from Criminal interrogation and confessions by Inbau and Reid
(1962) to show that police used deception and psychologically coercive
methods in questioning people. The court concluded that interrogation is
now psychologically oriented rather than physical but that the degree of
coerciveness inherent in the situation had not diminished.
The court observed that the 16 strategies for interrogation proposed by
Inbau and Reid (1962) show three major themes. The first reattributes the
implications of the situation by shifting the blame or minimizing the
seriousness of the crime. The second attempts to frighten the individual
by exaggerating the evidence available, telling the person that the
interrogator knows he is guilty, or stressing the consequences. The third
makes an emotional appeal through showing sympathy, flattery, and respect,
and by appealing to the best interests of the suspect. The court found
such practices inherently coercive.
The most recent edition of this manual, which remains the most popular
in the country for teaching interrogation methods, presents different
themes for interrogators to use in eliciting confessions (Inbau, Reid,
& Buckley, 1986). This book remains the most widely used text for
training police. For example, in State v. Kelekolio the detective testified
that he lied in the interrogation because he had been told to use that
technique at a police seminar. When videotapes or audiotapes of police
interrogations are available, it is easy to discover the specific
techniques followed in the interrogation.
Leo (1996b) notes that American police have become extremely skilled
at the practice of manipulation and deception during interrogation. Based
on hundreds of hours of research as a participant-observer in three police
departments, he concludes that modern interrogation techniques can best be
understood as a confidence game based on the manipulation and betrayal of
trust. Zimbardo (1967), based on his review of training manuals, believes
that the interrogation techniques of the police are sometimes more highly
developed, more psychologically sophisticated, and more effective than
those that were used by the Chinese Communists in Korea. The result of such sophisticated and psychologically persuasive
interrogation techniques is that many people will confess to crimes, even when it is
against their best interests.
Leo (1996c) states that one of the most troubling aspects of false
confessions resulting from such police interrogations is that the police
leaders and trainers deny that their highly manipulative and deceptive
interrogation tactics may produce confessions from entirely innocent persons.
He observes that, due to
the widely held belief among police officers that virtually all suspects
are guilty and will confess only if they are, in fact, guilty, the
interrogator may elicit a false confession without realizing it. Leo
believes that many criminal suspects remain incarcerated for crimes they
did not commit as a result of such false confessions.
EXAMPLES OF COERCED CONFESSIONS
Example 1: The Mother
Shortly after a fire killed her severely handicapped child, a mother
was asked to come to police headquarters to talk with a detective. The
mother knew that her two older children had been questioned by a detective
at school that day but she had no idea what they wanted from her. After
she reached the police station, she was questioned by a detective for
several hours. At the conclusion of the interrogation, she was arrested
and charged with murdering the child by starting a fire by deliberately
throwing an afghan over a space heater that was next to the child's crib.
The videotape of the interrogation illustrates the recommended coercive
psychological techniques of Inbau et al. (1986) deception, lying about
evidence, and threat. For example, the book suggests asking, "[D]id
you ever think about hurting [the victim] even though you did not go
through with it?" (p.66). The interrogator is then instructed to
follow up with questions about the kind and frequency of such thoughts.
Throughout the interrogation, the detective asked variations on this
question until the mother eventually acknowledged that it "was
possible" she may have thought about it.
The detective claimed that he also had a special needs, severely
handicapped child and he assured the mother that he and his wife often
thought of hurting their child and even had said that he would be better
off dead. Inbau et al. (1986) describe this technique of creating "a
perception on the part of the suspect that he is a less reprehensible
person, morally speaking, than the bare facts of the case would
indicate" (p.97). Inbau et al. instruct the interrogator to
"Sympathize with [the] suspect by saying anyone else under similar
conditions or circumstances might have done [the] same thing" (p.97).
The purpose in repeatedly telling the mother that anybody else, including
the detective's wife, would do the same thing (hope their child was dead
and, in fact, kill her) was to elicit a confession.
Inbau et al. (1986) say "Reduce [the] suspect's feeling of guilt
by minimizing [the] moral seriousness of [the] offense" (p.99).
detective said several times that it was understandable to want a special
needs child to be with God, in a better life, and not to suffer any
longer. He said repeatedly that he could understand this because he
thought this way about his own child.
The detective also threatened to charge the two older children with
murder by telling the mother that they were suspects, and that if she did
not start the fire, then they must have done it. When the mother later
described her reactions to the interrogation, it is clear that at this
point she dissociated and responded to this threat with high anxiety,
confusion, and stress.
The detective falsely told the mother that they had conclusive physical
evidence that the fire started from the space heater (no tests had been
done at that point and none were produced at the trial). He also falsely told her at the
beginning of the interrogation that there was no intention to charge her.
When the interrogation ended hours later she went directly to jail.
The evaluation of the mother indicated that she was most likely
dissociating at times during the interrogation. She also had a very high
score on the Gudjonsson Suggestibility Scale.
The mother never admitted purposefully to choosing to throw an afghan
on the space heater but only that it might have happened inadvertently
without her knowledge. Later, she specifically denied that she put it
there. She never admitted to wanting the child dead but only to the
possibility that part of her may have wanted that to happen. Nevertheless,
selected portions of the videotape were presented to the jury as a
confession of murder.
Example 2: The Friend
John Doe was a mentally retarded young man who lived at home with his
parents. He had never held a job but spent his time doing things with
friends and working at odd jobs for his father. He was in special
education classes in school and was on social security disability.
Mr. Doe had spent the night on a married friend's couch after a fishing
trip and awakened early the next morning and returned home. After he left,
the three-year-old daughter came into the kitchen with her pajama bottoms
off. The child's mother questioned her about this and the child eventually
said that Mr. Doe had been in her room. After further questioning, the
child allegedly said that Mr. Doe had removed her pajamas and touched her
in her genital area.
The authorities were contacted and the child was interviewed several
times. Tapes indicate that these interviews were suggestive and leading.
A few days later, a police officer told Mr. Doe to come to the police
station for an interview. By this time, the child had been interviewed and
the police believed that Mr. Doe had abused her. The Miranda warning was
not given because the police officer said that Mr. Doe was not under
arrest and was free to leave the interview at any time.
The interrogation of Mr. Doe was not recorded. Later, Mr. Doe said that
he had been confused about what was going on and that he felt "shook
up and scared". He said that he denied he had touched the child at
first and that he repeated his denials several times but that eventually
he agreed to what the officer wanted. He felt he had to do this in order
to end the interview. Despite the fact that the officer later maintained
he had been free to leave, Mr. Doe said he believed he would be arrested
if he tried to go. At the end of the interrogation, the officer wrote out
the confession and asked Mr. Doe to sign it.
The psychological testing confirmed Mr. Doe's mental retardation.
was barely able to read and, in fact, could not read the signed confession
out loud accurately. Mr. Doe's intellectual limitations are essential in
understanding his reaction to the interrogation. A retarded person learns
early on to try to please others, particularly those in authority. They
tend to acquiesce that is, say yes to yes-no questions much more than do
persons of normal intelligence (Sigelman, Budd, Spanhel, & Schoenrock,
1981). The retarded individual learns to smile, nod, make appropriate short comments that mimic an unexceptional social
interaction but which may be incomprehensible to the retarded person.
Mr. Doe's performance on the Gudjonsson Suggestibility Scale (GSS) is
consistent with this. After he answered the first set of 20 questions and
was told he had made a number of errors and should try to be more
accurate, his entire demeanor changed. He became noticeably anxious and
uncomfortable and then changed 9 out of the 20 answers. His score on the
GSS was two and one-half standard deviations higher than the mean of the
What this means is that Mr. Doe was extremely vulnerable to making a
non-voluntary confession in a police interview, even compared to other
intellectually disabled persons. He responded to the interrogation by
doing and saying what the police officer wanted and he lacked the
cognitive capacity to understand the ramifications of agreeing to sign the
confession statement that he was unable to read and understand.
Example 3: The Sergeant
The sergeant was accused of sexually abusing an 11-year-old boy with a
history of serious psychiatric problems. The boy made the accusation
several months after the alleged event while in the hospital. Charges were
pursued and the sergeant was interrogated, arrested, and facing a
court-martial. The interrogation was not recorded but information on the
circumstances of the confession was obtained from the testimony of various
people in the Article 39 hearings.
The interrogation took place in a small windowless interview room with
the doors locked. The agent, according to his hearing testimony,
interrogated the sergeant for over an hour until he confessed. The
sergeant did not directly admit to any specific acts, but instead the
confession was in the form of agreeing to allegations posed to him by the
agent. The interrogation was not taped and the agent did not begin to take
notes until after the confession. He acknowledged using the interrogation
technique of exploring different themes (Inbau et al., 1986) to make the
After the confession, the sergeant vacillated back and forth between
admitting and recanting the allegations. According to the agent, he
started crying and became extremely upset and then withdrawn, quiet,
emotional, and hard to talk to, "as if he was mentally not with me
anymore". After the agent dictated a statement to be signed, he
observed the sergeant on his knees, praying and crying.
The chaplain was called who observed the sergeant leaning against the
shelf and uttering a prayer. A supervising officer was called and the
chaplain and the officer described the sergeant as "very
distraught", "highly upset", and "shell shocked".
The officer took him to the hospital. On the way to the hospital he told
the supervising officer that he really did not know what was going on, but
that he was sure he was not guilty. He said that the agent had wanted him
to sign a statement but he was not sure whether he signed the statement or
not. The sergeant met with a psychiatric resident who reported that the
sergeant adamantly denied abusing the boy.
While in the hospital, the sergeant called his pastor and asked him to
come to the hospital. When the pastor arrived, the sergeant was frantic,
pacing back and forth with a wild look in his eyes, and weeping and incoherent.
eventually calmed down enough to tell his pastor what happened. He
described the allegations and said that the agent had kept telling him
again and again "Let's get this kid some help". He said that he
lined everything out in the statement except for a part about exposing
himself to the boy under the carport. He said that this might have
happened accidentally when he was wearing gym shorts with no underpants.
He said he remembered very little about the interrogation. His
recollection was that he initially denied the abuse but the agent repeated
that he knew it had actually happened and kept saying, "Come on
sergeant, Billy is really in bad shape ... Billy needs help and you are
the key to him getting well". The sergeant said that he eventually
admitted it so the child could get help but that it really did not happen.
The sergeant had no prior history of psychiatric or psychological
treatment. He was very active in the United Pentecostal church and
reported the gift of the Holy Spirit and speaking in tongues. Psychological testing indicated that he was conforming, conventional,
moralistic, immature, naive, and suggestible and had difficulty handling
stress and conflict. He was vulnerable to dissociating if placed in an
extremely stressful situation.
The descriptions of the sergeant's behavior during and following the
interrogation indicate that he reacted with unusual distress during and
after the time the confession was elicited. Persons who have no experience
with arrest and interrogation and those suspected of sex crimes are
especially likely to become upset and stressed by the interrogation and to
therefore not be in a normal mental state (Irving, 1980).
The theme approach used in this interrogation is included in the
tactics recommended by Inbau et al. (1986). The agent overwhelmed the
sergeant with damaging evidence, asserted a firm belief in his guilt, and
then suggested that it would be easier for all concerned if the suspect
admitted to his role in the crime. In addition, the personality
characteristics of the sergeant are likely to have made him unusually
vulnerable to the interrogation techniques designed to elicit a
Example 4: The Stepfather
The stepfather, who also had several biological children from three
different women, had a history of petty infractions of the law and was
unemployed. He was charged with sexually abusing his 8-year-old
stepdaughter. He was interrogated by the police and initially denied the
allegations but eventually acknowledged sexually abusing the child on
several occasions when he was very drunk. He then signed a confession
which he later retracted. The interrogation, which lasted two and one-half
hours, was not taped.
According to the stepfather, he was arrested at his home by four police
officers, handcuffed, and brought to a small interrogation room with a
one-way mirror. The handcuffs were removed during questioning.
that he became very frightened when he realized what he was being
questioned for. "I was scared ... This was the scariest time in my
life." He was frightened because he knew how serious the charges were
and how much trouble this would cause. He was afraid that he would go to
prison for the rest of his life.
He initially denied the allegations but then the police officer took a
five minute break and returned, saying that their investigation had shown
that he had, in fact, had intercourse with his stepdaughter. In the police
report, the officer acknowledged he told the stepfather the medical
evidence convinced him the stepfather was not being truthful in his
denial, that the child would not make up a detailed disclosure such as
this, and that the stepfather was ''sick'' and needed help.
The stepfather described the officer waving a piece of paper at him
while maintaining that they had medical proof of penetration and had found
blood and semen on the sheets and the child's underwear. He said that the
officer screamed, "You're a good f liar" and "turned red
in the face because he was hollering so bad". He said that the
interrogator told him he would get over five counts if he refused to sign
a confession but only three if he did. The interrogator kept talking about
all of the counts and said that he would go to jail for 160 years. He
said, "I've been doing this for 13 years and know when someone is
lying". During this period, the stepfather described himself as
crying and extremely frightened. He said he finally made the verbal
admission and signed the confession because he believed he would be
convicted of more counts and be in jail much longer if he did not go along
Psychological testing indicated that the stepfather was of average
intelligence but had long-standing and severe personality problems, was
easily distracted and confused, and was likely to deteriorate under
stress. His total suggestibility score on the Gudjonsson Suggestibility
Scale was two standard deviations above the mean. His personality made him
especially vulnerable to the type of coercive police interrogation he
later reported and which is described in the police officer's report.
Taping Interrogations of Suspects
Only one of the above examples, that of the mother, was taped. In the
third example (the sergeant), the agent acknowledged in his Article 39
testimony that he used the interrogation technique of exploring different
themes to encourage the sergeant to "admit to wrongdoing when he
otherwise wouldn't". In the fourth example, the officer's report
corroborated some, but not all, of what the stepfather claimed took place
in the interrogation. But, in the second example (the friend), the police
officer insisted that the young mentally retarded man knew he was not
under arrest and was free to leave. The young man was only able to provide
limited details of what took place in the interrogation.
We believe that videotaping is extremely helpful in dealing with
nonvoluntary and retracted confessions. Without a tape the issue is likely
to come down to a dispute between the suspect and the police about the
nature of the interrogation. Video- or audiotaping provides the only means
by which what actually took place can be known for certain. Requiring all
interrogations of suspects to be taped is therefore an important way of
responding to the possibility of psychologically coerced interrogations
and police deception.
Cassell (1997) notes there is virtual unanimity that videotaping
interrogations is an effective solution to the problem of false
confessions. He argues that videotaping provides an excellent protection
for false confessions resulting from inappropriate police questioning
since it allows judges and juries to see when the police have coerced an innocent person into admitting to a crime he did not commit
(Cassell, 1998). In addition, taping protects the police against false
claims of improper questioning.
Leo (1996c) observes that many police stations now routinely tape
interrogations of suspects and that the state supreme courts of Minnesota
and Alaska have held that statements obtained in the absence of taping are
generally inadmissible. He argues:
The use of audio or videotaping inside the interrogation room creates
an objective record of police questioning to which all interested and
potentially interested parties may appeal police, suspects, prosecutors,
defense attorneys, and juries in the determination of truth and in
judgments of justice and fairness. The
use of videotaping is thus the most viable legal intervention for resolving
many of the antinomies of crime control and due process inherent in police
interrogation of the accused in a democratic society (Leo 1996c, p.682).
VOLUNTARINESS AND ADMISSIBILITY
Confessions have been problematical for the U.S. justice system. Fact
finders must evaluate the reliability of a confession, first in terms of
its admissibility and, if admitted, in terms of its weight. To do this,
they must determine whether the confession was voluntary or was the result
of pressure or inducement and whether the defendant was intellectually
competent or was anxious, fatigued, mentally retarded, or unusually
suggestible. This is a complex and difficult task.
Young (1996) describes how the standards for the admissibility of
confessions have shifted back and forth over the years. Early in American
jurisprudence, a high standard for admissibility of a confession was set
so that the slightest deceptive practice in eliciting a confession
rendered it inadmissible. The U.S. Supreme Court first addressed the
admissibility of a confession and the test of voluntariness in 1897 in
Bram v. United States. In Bram, the Supreme Court analyzed the issues in
terms of the Fifth Amendment privilege against self-incrimination and
ruled that to be admissible a confession must not be extracted by any sort
of threat or violence nor obtained by any direct or implied promises,
Bram, however, was a federal case and the Supreme Court's reliance on
the Fifth Amendment in this ruling limited it to federal cases. At the
beginning of the 20th century state courts generally admitted confessions
obtained by lies and deception, reasoning that such tactics were not apt
to produce false confessions. During this period, there was a shift as the
police began to take over the interrogation process and questioning moved
from judicial supervision to the back room (Young, 1996).
Young (1996) speculates that the leniency of state courts in admitting
confessions obtained by police interrogation may have been due to their
responding to the new role of the police and their hope for more efficient
and successful law enforcement. The result was that for many years state
police misconduct was unrestrained. In 1931, the Wickersham Commission
Report provided numerous examples of state police misconduct in
interrogations and warned of the dangers of false confessions.
In 1936, using the Due Process Clause of the Fourteenth Amendment, the
U.S. Supreme Court ruled that confessions could not be obtained by
physical violence (Brown v. Mississippi) and a few years later reversed a conviction
obtained by persistent questioning and "other ingenious form of
entrapment" (Chambers v. Florida, 1940) (Young, 1996, pp.
the 35 confession cases it decided from 1936 and 1964, the Supreme Court
employed the due process voluntariness test to evaluate the admissibility
of confessions and it also delineated appropriate and inappropriate
interrogation techniques, generally by reducing the amount of
psychological pressure that could produce a legally voluntary confession
(Leo, 1996c). In these cases, the Supreme Court continued to criticize
third degree tactics and, in considering the voluntariness of a
confession, looked at the totality of the circumstances, establishing that
test as the standard by which it would review police conduct in
interrogations (Young, 1996).
The criterion for the admissibility of a confession has thus evolved
into the quality of voluntariness. The aim of admitting into evidence only
voluntary confessions is to prevent the introduction of unreliable
evidence. The Supreme Court has kept the definition of voluntariness vague
and imprecise and speaks of a comprehensive analysis of the totality of
the relevant circumstances (Kassin & Wrightsman, 1985). But, as
currently interpreted, the modern test of voluntariness is so flexible
that courts can use it to admit confessions obtained by police lying
The result is that judges may exclude confessions where the coercion is
blatant and obvious but not exclude confessions where the coercion is
subtle and more readily disguised. Typically, confessions are excluded if
they are elicited by physical violence or a threat of harm or punishment,
promise of leniency, or without notifying suspects of their Miranda rights
(Kassin & Sukel, 1997).
However, although some courts have differentiated between false
statements and fabricated evidence (Young, 1996), even clear evidence of
police lying and fabrication of evidence may be considered acceptable.
State v. Jackson (1983), the interrogating officer put blood and
fingerprints on a knife that was similar to the murder weapon and then
photographed it so it appeared that a fingerprint identification had been
made. In the interrogation, the suspect was shown the knife and the
photograph and told that the fingerprint had been identified as his.
Despite the use of this clearly fabricated evidence to obtain a confession
along with other false statements, the North Carolina Supreme Court ruled
that these techniques were constitutional because they were not likely to
make an innocent person confess.
ADMISSIBILITY OF EXPERT TESTIMONY
ON COERCED CONFESSIONS
The effect of the more subtle coercive interrogation methods on jurors
is extremely powerful. Although jurors may discount confessions when it is
evident they were obtained by blatant coercion, when it appears to be the
more subtle interrogation techniques that elicit a confession jurors
accept it and discount any coercion (Kassin & McNall, 1991). In a
laboratory experiment, Kassin and Sukel (1997) demonstrated that, even
when a confession was recognized as coerced, when it was stricken from the
record, and when mock jurors said it had no influence, the confession
increased the conviction rate.
In Arizona v. Fulminante (1991), the U.S. Supreme Court found that
Fulminante's confession that he had murdered his stepdaughter was coerced
and that it was "prejudicial error" to admit it. But the court
also ruled that in certain circumstances, such as when a confession is
cumulative or when there is sufficient corroborating evidence, a wrongly
admitted coerced confession may constitute ''harmless error." That is, the court said that admission of a nonvoluntary confession is
a "trial error" similar to the erroneous admission of other types of
evidence. The Fulminante opinion therefore places great faith in the
ability of a jury to properly evaluate a confession and the evidence about
how it was obtained (Kassin & Sukel, 1997).
When a coerced confession is admitted into evidence, the jury will be
required to evaluate the testimony about the circumstances surrounding the
confession. Unfortunately, research indicates that jurors may have
difficulty correctly performing this task (Kassin & Sukel, 1997).
can be extremely helpful to have testimony from an expert concerning the
social psychology of interrogation tactics, the circumstances surrounding
false or coerced confessions, interrogation tactics used in the particular
case, and the characteristics of the defendant that may have made him or
her unusually susceptible to a coercive interrogation. This type of
testimony makes it possible for the finder of fact to properly evaluate
In United States v. Hall (1996), the Seventh Circuit Court of Appeals
reversed Hall's kidnapping conviction on the grounds that expert testimony
relating to the police interviews of the defendant and the defendant's
susceptibility to giving false confession was erroneously excluded. One of
the experts was social psychologist Richard Ofshe, a recognized expert in
coercive police interrogation techniques and coerced confessions. The
court held that the district court's "failure to undertake full
Daubert inquiry regarding admissibility, as scientific evidence, of
psychologist's testimony on false confessions was not harmless"
(p.1338) and it said that the district court had erred in excluding the
evidence related to the police interview techniques because "it saw
no potential usefulness in the evidence, because it was within the jury's
knowledge" (p.1341). The court stated:
This ruling overlooked the utility of valid social science. Even though
the jury may have had beliefs about the subject, the question is whether
those beliefs were correct. Properly conducted social science research
often shows that commonly held beliefs are in error. Dr. Ofshe's
testimony, assuming its scientific validity, would have let the jury know
that a phenomenon known as false confessions exists, how to recognize it,
and how to decide whether it fit the facts of the case being tried
The court noted that:
[O]nce the trial judge decided that Hall's confession was voluntary,
the jury was entitled "to hear the relevant evidence on the issue of
voluntariness and [the trial judge was to] instruct the jury to give such
weight to the confession as the jury feels it deserves under all the
The court addressed the fact that some of the knowledge to which the
experts would have testified was within the jurors' experience, since the
district court had concluded that the expert testimony would usurp the
If the expert testimony would be helpful and relevant with respect to
an issue in the case, the trial court is not compelled to exclude the
expert just because the testimony may, to a greater or lesser degree,
cover matters that are within the average juror's comprehension (p.1342).
In its ruling, the court summarized the approach a judge must take
under Daubert when faced with a proffer of expert scientific testimony and
stated that "we cannot be confident that the district court applied
the Daubert framework" (p.1342). The court concluded that the failure
of the district court to conduct a full Daubert inquiry was not harmless
error, since Dr. Ofshe's proffered testimony went to the heart of Hall's
defense. It also concluded that the other psychologist should have been
permitted to testify about Hall's susceptibility to interrogation
techniques and his propensity to give a false confession.
Following the Seventh Circuit ruling remanding a new trial, a Daubert
hearing was held in the district court (United States v. Hall, 1997) to
determine the admissibility of Dr. Ofshe's expert testimony. At this
hearing, the district court judge determined that the proffered testimony
relating to false and coerced confessions was properly understood to be
scientific knowledge. The basis for this determination was the testimony
that there is a large body of scientific research dealing with coercion,
false confessions, and interrogation methods.
Psychological coercion appears to be common in the interrogations of
suspects. The structure and nature of law enforcement is a powerful
influence that may produce police misbehavior. An indeterminate number of
nonvoluntary confessions may be attributed to the coercive nature of
police interrogation during which deceptive and deceitful practices may be
used. A psychologist who relates to the justice system needs to understand
the extent, nature, and impact of these practices. However, in order to
have testimony about this scientific knowledge admitted, the psychologist
must be prepared to deal with efforts to preclude such testimony. The
gatekeeping function of judges must be understood and responded to with a
careful, valid, and reliable presentation of the relevant scientific
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1 Cassell (1998) reevaluates this data and argues that the actual
frequency of false confessions is about 0.6%. [Back]
Correspondence to: Hollida Wakefield,
Institute for Psychological Therapies
, 5263 130th Street East
, Northfield, MN 55057-4880