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Posted by permission of Dr. Thomas O’Connor. Copyright by T. O’Connor.
“It is our mind which looks for simplicity to avoid effort.” Marcel Louis Brillouin
Whenever a sensational crime occurs involving a celebrity, public official, or well-known person in the public eye, hundreds of people usually come forward to confess to the crime. Not all of these confessions can be true, so most if not all of them must be false. The false confession phenomenon also occurs with unsolved crimes. For example, over two hundred people confessed to the Lindbergh baby (1932) kidnapping, and hundreds of people confessed to the (1947) Black Dahlia murder in Los Angeles. Some people continue to confess to this day about these crimes, and include people who were not even born at the time. So, why do these people confess to crimes they didn’t commit?
Saul Kassin, a psychologist, has probably studied the topic of false confessions more than anybody else, and it can be safely said he has the workings of a typology about the types of people who confess. Kassin’s typology (Wrightsman & Kassin 1993; Kassin & Kiechel 1996; Kassin 1997; Kassin & Fong 1999) is technically about what are called “coerced” types, and there are two main subtypes of those. However, there are a number of other, so-called “compulsive” types, which make up all the weird reasons for confessing to something you didn’t do. Here’s a customized version of this typology:
compulsive type-attention seeker — confesses to gain a piece of the fame, impress others, or to get attention
compulsive type-homeless — confesses as a way to get off the streets
compulsive type-fugitive — confesses to avoid being prosecuted for a crime elsewhere with stiffer penalties
compulsive type-guilty conscience — confesses because believes they are guilty of something
coerced-compliant type — Kassin’s type who pleads guilty to avoid something aversive in their home environment
coerced-internalized type — Kassin’s type who comes to believe in their guilt out of interrogation or persuasion
Besides Kassin, many others (Gudjonsson 1993; Ofshe 1994; Sigurdsson & Gudjonsson 1997; Leo & Ofshe 1998) have studied false confessor types, and to summarize a vast literature, the phenomenon has been looked at from a variety of perspectives. Some relevant factors include gender, youthfulness, stress, trust, suggestibility, low IQ, and fatigue, to name a few. As Ramsland (2002) puts it, most of the research shows that some people can be easily induced to accept responsibility for things they did not do, especially when three conditions are present: (1) the confessor has a pre-existing tendency to internalize guilt; (2) the confessor is confronted with any kind of evidence or suggestive piece of evidence that seems to “fit” the details of their “story” in some way; and (3) the confessor is confronted by a strong authority who uses reinforcement. In most cases, the strong authority is a police officer, and the work of Leo & Ofshe (1998) is usually cited as a landmark piece of scholarly work showing that false confession, as a phenomenon, is quite possibly a phenomenon about police-induced false confession.
One of the services a forensic psychologist might provide with false confessors is to determine if the person is lying or malingering. A forensic psychologist might provide some clinical alternatives to standard law enforcement practices inlie detection. Malingering is an attempt to pretend being mentally ill, and malingering is done for a variety of reasons, which could range from Munchausen by Proxy (compulsive type-attention seeker), to the desire to avoid criminal responsibility for something else (compulsive type-fugitive), or simply involve some person who thinks they’re clever enough to fool authorities. Some psychopaths and pathological liars think they’re good at lying, and may occasionally want to try out their skills. However, most mental health professionals are trained to detect malingering, and the following are some signs of malingering:
exaggerated presentation of information
inconsistencies between parts of the information
noteworthy deliberateness in manner of presentation
display of obvious and stereotypical symptoms
inability to demonstrate a past history of symptoms
A forensic psychologist might check out a person’s past history of psychiatric confinement (if any) and also seek out corroborating information from family or friends. Such “collateral” information is sometimes sufficient to rule in or rule out malingering, but often, a period of observation in a clinical environment is called for. In such an environment, it would be helpful to see if the person talks or acts rationally with someone else, other than the authorities and/or treatment staff. Another sign of malingering is when the person seems more focused on the symptoms, since most people who are truly mentally ill tend to have long histories and want to talk about their efforts at attempting to cope with the symptoms. Other types of mental illness (such as schizophrenia and dissociative identity disorder) tend to have a history of amnesia and other milder symptoms before the “final” symptoms appear. Some psychometric testing instruments exist to detect malingering (and feigning), such as the SIRS (Structured Interview of Reported Symptoms), which is admissible in court and meets the Daubert standard.
WRONGFUL CONVICTION or CONVICTED BUT INNOCENT
The phrase “convicted but innocent,” according to Huff, Rattner & Sagarin (1996), refers to people who have been arrested on criminal charges (most often armed robbery, rape, or murder) who have either pleaded guilty to the charge or have been tried and found guilty, and who, notwithstanding plea or verdict, are in fact innocent. The most common pattern of wrongful conviction involves factors such as eyewitness misidentification, community pressure, and character evidence that the defendant “was in trouble with the law before.” Armed robbery, rape, or murder are only mentioned because they are the kinds of wrongful conviction cases that come to public attention, mostly because of the severity of the sentence involved. Hundreds of people each day are identified by eyewitnesses as the perpetrators of crime.
It is important to understand what the definition of “wrongful conviction” includes and excludes. It includes repeat offenders who may have committed many (or related) crimes, but are innocent of the specific charge for which they have been arrested or convicted. It includes innocent people who, faced with overwhelming evidence against them, such as wrongful identification, perjury, or forged documentation, are greatly tempted to accept the plea bargain that their lawyer so strongly recommends. It excludes people who get “lost in the system”, or held without trial for long periods of time while being detained in a jail, out on bond, or simply awaiting charges (such cases are more properly termed wrongful imprisonment). It excludes those who are factually guilty but are found not guilty by reason of the exclusionary rule, or who have escaped justice because of some loophole, police mishandling of evidence, violation of constitutional rights, or reversal upon appeal. There is a big difference between being “legally innocent” and being completely exonerated because one is “factually innocent.”
SOME FAMOUS CASES OF WRONGFUL CONVICTION
Captain Alfred Dreyfus (1894) – the so-called “Dreyfus affair” in which other army officers, motivated by anti-semitism, manufactured forgeries, fabricated evidence, and used handwriting analysis to wrongfully convict Dreyfus of selling military secrets to the Germans.
The Scottsboro Boys (1927) – an Alabama case involving nine young black males who were riding a freight train with two white females, and the women alleged that they had been raped. Community pressure and racism against blacks resulted in the death penalty for all but the youngest of the boys, but it turned out the girls had only concocted the story to explain why they were riding the train with blacks.
The Lindbergh Baby Kidnapping (1936) – a sensational case in which a German immigrant named Bruno Hauptmann was convicted and executed because Germans at the time in America were convenient scapegoats.
Isidore Zimmerman (1937) – who was a young hotel doorman wrongfully accused of providing guns that were later used in the murder of a police detective. Zimmerman came within 2 hours of his execution before the perjury at the trial was exposed. He won $1 million, but died a broken man 4 months later.
Dr. Sam Sheppard (1954) – the case upon which the TV series and Harrison Ford movie, The Fugitive, is based. Sheppard was a physician convicted of murdering his wife who claimed that a one-armed intruder did it (he was later exonerated and became a professional wrestler).
Randall Dale Adams (1976) – a case immortalized in the movie, The Thin Blue Line and the basis for several other movies, like Kalifornia, which involves a young man from the North traveling south through Texas who is picked up by a killer and gets wrongfully convicted for the killer’s crimes. The innocent man signs a vague “confession” (I can’t remember what happened after …..) and polygraph results intended to clear him are “inconclusive”, so conviction results from pressure for retaliation and animosity against “drifters”.
Ivan the Terrible (1987) – Ivan (John) Demjanjuk was the first trial of a Nazi war criminal held in Israel since the trial of Adolf Eichman (1961). Ivan was picked up as a factory worker in Cleveland and deported from the U.S. as a wanted concentration camp guard. Photographic (through-the-years) evidence and eyewitness testimony of survivors along the lines of “That’s Ivan, no doubt about it” characterized the trial. Demjanjuk was acquitted only on the narrowest of margins.
Gary Dotson (1989) – an Illinois case involving the first “DNA exoneration”. Dotson had already served 10 of 25 years of a wrongful conviction for rape based on a suggestive police photographic array in which, it turns out, was an entirely fictional description of the rapist by the victim, but Dotson had been in trouble with the law before. First, the victim recanted out of conscience. Then, the Governor of Illinois refused to grant a pardon and decreed the victim’s recantation false. Dotson and his lawyers then obtained DNA testing which proved to be the crucial exculpatory evidence.
EYEWITNESS ERROR AS A CAUSE OF WRONGFUL CONVICTION
Eyewitness misidentifications are a common cause of wrongful convictions, perhaps the most common cause. Most research on the issue says that two kinds of problems can develop — usually called “event memory” and “identification memory.” Event memory is how well the eyewitness can describe the event, and identification memory relates to the ability to recognize someone. Both kinds of memory are strongly affected by questions and procedures that put pressure on eyewitnesses to remember and/or identify. Eyewitness testimony is often the most convincing part of a trial. It adds direct evidence to a prosecution that would otherwise be based on circumstantial evidence. Although we know little about the sources of eyewitness error, a substantial number of eyewitness errors are believed to be “good faith” errors; that is, the eyewitness is simply doing what is expected of them, cooperating with suggestive police investigations and lineups. Other errors are due to prejudice (or perceived community prejudice), and may occur mainly in cross-racial identification cases. Other errors are the result of psychological trauma or shock experienced by the eyewitness, and these may be exacerbated by hypnosis or therapy sessions intended to help the eyewitness remember or calm down. And, in numerous other ways eyewitnesses mislead themselves, it is obvious that our criminal justice system has an imperfect way of handling eyewitness identifications and/or balancing the rights of the accused with the inherent power of eyewitness testimony. Given all these well-known problems with eyewitnesses, it is astonishing that some courts still do not accept expert testimony on eyewitness error.
Several studies have tried to estimate the error rate, but it appears to jump all over the place. An early study by Borchard (1932) reported that eyewitness error contributed to 45% of the wrongful convictions in his sample. Buckhout (1974) regarded it as the most common cause of wrongful conviction. Rattner (1983) reported that more than 52% of the wrongful convictions he studied involved eyewitness error. For capital cases only, Bedau and Radelet (1987) found a 16% error rate. In the process of making an identification from photographic lineups, Loftus (1979) found that 29% were erroneously chosen. Huff, Rattner & Sagarin’s (1996) more recent survey of judges and attorneys found that 60% of judges and 84% of attorneys ranked “accidental eyewitness misidentification” as the most frequent cause of wrongful conviction. In 1999, the APA’s Div. 41 (American Psychology-Law Society) reviewed a number of cases that were later overturned, and found an eyewitness error rate of an astonishing 90%.
WHAT CAN BE DONE?
Better training for police officers, for one thing. the U.S. Attorney General’s office has made the following recommendations: (1) the officer working with the witnesses should not know which person is the suspect; (2) the eyewitness doing a photographic lineup understands that the suspect might or might not be in the lineup; and (3) the witness is absolutely certain they have identified the right person.
Stronger penalties for officers and/or prosecutors who knowingly conceal, fabricate, or otherwise distort evidence is another solution. Ways should also be explored to reduce the community intimidation and bias factor, eliminate plea bargaining in bad faith, and sanction judges who have had their cases overturned.
If not elimination of the death penalty, then maybe a partial abolition, never applying it in cases relying upon eyewitness testimony and circumstantial evidence. This may be related to the “collect DNA at every crime scene” movement because of a societal need not to recognize the possibility of error.
Use of forensic psychologists could go a long way if special pretrial (Daubert) hearings were held in cases involving eyewitness testimony. Information about accuracy, validity, and reliability should come out. The courts should permit the use of expert witnesses on eyewitness testimony as well as issue the appropriate cautionary instructions to juries.
Scheck, Neufeld, and Dwyer (2001) of the Innocence Project have made the following recommendations:
DNA Testing — pass statutes modeled after New York and Illinois
Videotaping — all police ID practices, especially confessions
Snitch Committees — to vet the informant’s testimony before being used
Crime Lab Reviews — to ensure quality control
Eliminate Junk or Sloppy Science — anything w/o controls or error rates
Investigate Misconduct — by prosecutors and police
Increase Public Defender salaries — and standards, investigative resources
Victim Assistance — for those who were wrongfully convicted
Moratorium on Death Penalty — and other death penalty reforms
Innocence Projects — at law schools and around the country
A SUMMARY OF ESTIMATOR AND SYSTEM VARIABLES IN EYEWITNESS TESTIMONY
Estimator Variables (factors over which the justice system exerts little or no control):
Age of witness – children and the elderly tend to be less accurate than adults
Level of confidence – this is not strongly correlated with accuracy of identification
Facial distinctiveness – faces rated highly attractive or highly unattractive are recognized better than other faces
Suspect disguise or changed appearance – this leads to less accuracy in identification
Target salience – it is harder to identify a perpetrator if many people were present at the crime scene
Exposure duration – it is harder to identify a perpetrator if the viewing time is short
Weapon presence – witnesses tend to focus attention on the weapon
Crime seriousness – people tend to be less accurate in identification tests if the the crime is thought to be less serious
Stress and arousal – moderate arousal tends to lead to better acquisition of information
Cross-gender bias – people are more accurate when they identify someone of their own gender
Cross-racial bias – people are more accurate when they identify someone of their own race
Time delay – memory declines over time
Changes in experiential context – it is sometimes difficult to recognize someone if he or she is seen in a different place
Post-event information – this can distort a person’s memory, and can also be a system variable since this information can come from an interview
System Variables (factors that are under the control of the justice system):
Lineup instruction – if a witness expects the perpetrator to be present in the lineup, he or she may feel obligated to pick someone, even if the perpetrator is not there. The witness should be told that the culprit is not present is a legitimate answer
Foil bias – the suspect should not stand out from the innocent distractors (foils, fillers) in a lineup. The people should wear similar clothing, etc.
Investigator bias – the investigator may unintentionally let the witness know which person in the lineup is the suspect
Presentation bias – a sequential presentation of people in a lineup is better than presenting all people simultaneously
ADDITIONAL DATA (Source: Scheck et. al 2001)
Factors Leading to Wrongful Conviction:
81% of time – Mistaken Identification by eyewitnesses
51% of time – Serology Errors (ABO, protein blood typing)
50% of time – Police Misconduct
45% of time – Prosecutorial Misconduct
35% of time – Forensic Hair Comparison Errors
34% of time – Junk/Sloppy Science admitted at trial
32% of time – Bad Lawyering
22% of time – False Confessions
20% of time – Deliberately False witness testimony
19% of time – Deliberately False snitching by informants
7% of time – Other Forensic Science errors
1% of time – DNA testing errors
Race and Mistaken Identification:
44% of time – Caucasian misidentifying African American
25% of time – Caucasian misidentifying Caucasian
21% of time – African American misidentifying African American
4% of time – Latino misidentifying Latino
3% of time – Caucasian misidentifying Latino
1% of time – Latino misidentifying African American
SOURCES OF DISTORTION AND ERROR IN MEMORY
Almost everyone remembers their grades in high school as being higher than they actually were. Almost everyone fabricates a story passed on to them. In the first case, autobiographical memory is distorted. In the second case, recollection is distorted. Both are examples of cognitive error. When mistakes are made with memory on the witness stand, all three are involved: cognitive error, autobiographical distortion, and recollective distortion. Accuracy is the opposite of distortion, and the central theme of eyewitness psychology. Recall is the opposite of error, and the central theme of law. Memory, of course, is all about duration, or time. This essay attempts to spell out some of the complex, and often surprising, relationships between all these factors.
A variety of factors affect accuracy and recall. The most controversial set of factors is between accuracy and confidence. Next would be the meaning of shifts from past to present tense in verbal representations of recall. Besides the inherent problems of being able to talk about something,affect or emotion affect memory in complex ways. Recollective distortion occurs most frequently during the emotional high points in a narrative. Likewise, the more emotional one is in reminiscing over their earlier years, the more autobiographical distortion can be expected. It is commonly believed that life events accompanied by strong negative affect or emotion are remembered with greater difficulty than events accompanied by less intensity, or valence, of the affect. There seems to be a curvilinear, or Yerkes-Dodson relationship between emotion and recall. People sometimes develop so-called “recovered memories” about negative things, but they are less willing, when faced with the truth, to change their false beliefs about negative things than they are about positive things, which are more easily distorted or fabricated, unless they are extreme fabrications. The processes of emotion and memory may be so idiosyncratic that generalizations are precluded.
Memory is assisted by imagery. Imagery can consist of sight (visual), sound (auditory), or bodily sensation (somatic). Imagery of a visual nature is particularly helpful with autobiographical memory, but if a strong emotion is involved, somatic imagery is prevalent. False events can be easily placed in memory by imagery, such as repeatedly showing someone a fake picture of themselves as a child, or by “brainwashing” a person by repeatedly inundating them with strong sensory information. This is because rehearsal is one of the most powerful aspects of remembering. Forced manipulation of rehearsal reduces confidence, but the memory remains just as strong as if it were self-generated.
Memories are affected by trauma in unusual ways. Trauma is a more narrower term than stress, referring to catastrophic events or events of short duration and high intensity. Here, what matters is the attention aspect of remembering, whether a person’s attention habits are driven by a locus of internal control or a locus of external control. It also depends upon how severe the trauma is, of course. Generally, a person with an internal locus of control is going to forget more details about an event than a person with an external locus of control. Self-centered people don’t pay much attention to what goes on around them.
Gender, age, and ethnicity differences exist with memory. Gender differences appear early on, with mothers socializing girls to remember things more emotionally. At young ages, memory is very suggestible. Ethnic factors tend to work in favor of remembering intra-ethnic details, leaving cross-ethnic memory widely susceptible to distortion. In general, women prove superior to men in recalling things like weight, height, and hair color, and people between the ages of 18 and 29 tend to fall in the age group making the best identifications of other people.
How memories are elicited, prompted, or interviewed out of a person play a large role in distortion and error, mostly through the mechanism of suggestion, and secondly via the mechanism of contamination. Probably the only way to produce a complete and accurate recollection is to let the person, at the outset, provide an unstructured narrative account of the events in question, in their own words, to get out all the vividness and detail. Innovations in cognitive interviewing methodology also hold promise, but there is always the danger of confirmatory bias on the part of interviewers.
Last but not least, stress can have important effects on memory, but there is controversy in both the child and adult memory literature regarding whether stress hinders or facilitates memory of an event. Numerous researchers have found no relation between stress and memory. Some have found young children remember better from high stress conditions, and that older children remember less from high stress conditions. The Yerkes-Dodson (1908) U-shaped curve was based on the relation between stress and memory where the highest level of recall was for events of moderate stress. It is extremely difficult to calibrate stress, however, and a lot depends upon a person’s anxiety levels. Stressful autobiographical memories may also be influenced by emotion. So-called stressful “flashbulb memories”, such as when a President was assassinated, a Space Shuttle exploded, or some Wartime event, also tend to be moderated by friends, family, school, and the media. If someone is under stress, their attention tends to focus on the cause and/or effects of the stress. Therefore, in most cases, it seems reasonable to say that most of the time stress serves as a distracter, that is, unless the event to-be-remembered is somehow tied into the focus the person has. People who are stressed by violence and crime, for example, should therefore make good eyewitnesses when they actually observe violence or crime. Likewise, people who have a military background and are gun aficionados are more likely to make good eyewitnesses to violent crime. There is thus little reason to believe in the Yerkes-Dodson “law” since it has been extensively critiqued (Christianson 1992), and its application to eyewitness performance may be unwarranted in some cases. Some conditions of stress seem to produce external loci of control and a type of focus which actually make for better, not worse, accuracy and recall.
POLICE PROCEDURE
How the police handle an eyewitness to crime is a complicated affair, and one that is surrounded by controversy and numerous legal concerns. When police interview an eyewitness, police must walk the line between extracting as much useful information as possible and NOT leading the witness. There are many problem areas.
It starts with the 911 call to a dispatcher. The dispatcher, most of all, should avoid any closed-ended questions. For example, they should not ask if the perpetrator is black, or has a beard. These are OK if the victim calling is fairly unresponsive, but dispatchers should only ask open-ended questions, like “Tell me about the perpetrator” or “What happened?” Dispatchers can also probe for more details when the caller uses vague words, such as “he was dressed kind of shabby” which is a case when it is OK for the dispatcher to ask “What exactly do you mean by shabby?”
First responders to the scene should follow the same procedure of rigorously avoiding any closed-ended questions. It is also important for police to separate the witnesses from one another, and prohibit them from talking to one another.
When first interviewing a witness, it is important to establish police-witness rapport. Some talk about other things, like the weather and so forth, is a good start. Comfortable witnesses provide more information than uncomfortable witnesses. It is also extremely important for the interviewing police officer to observe and take note of any physical and mental conditions that the interviewee may have. For example, if the person being interviewed is intoxicated, on medication, or in shock, this probably means that they’re not going to be a useful witness or that what the police obtain from them is going to be challenged in court. It doesn’t mean that such witnesses can be dismissed or forgotten about. It just means that extra care is required in taking their stories, and again, good rapport is important.
Police interviewing of witnesses at the crime scene is usually done in what might be regarded as stages. There is the Hollywood movie image of an officer listening to a story and writing things down in a notepad. That is certainly the first stage. More important, however, is telling the witness that if they remember anything, no matter how trivial, they should tell the officer right away, and the officer should stand aside for awhile, leaving the witness alone. That stage tends to produce the most important evidence. A witness would, for example, remember seeing the perpetrator drink from a soda pop can, and the perp threw it in the garbage can over there. This would reveal valuable fingerprint evidence.
Witnesses should be told by the police to avoid watching the news on TV or reading newspaper stories about the crime. Some witnesses will do this anyway, but it is the responsibility of the police to tell them not to do anything that might taint their memory.
Follow-up investigators will take other steps to obtain more detailed, and accurate information. These police personnel should review all the information in advance, and then tailor the follow-up interview to obtain the most critical pieces of information relating to the key elements of the crime necessary for successful prosecution and conviction. However, they should not be too eager to obtain these critical pieces of information. If the witness doesn’t have it in them, there’s no sense pushing them for what they don’t know. That’s why it’s important to review information in advance. Like a victimologist, the follow-up investigator must determine what the witness could have seen.
A follow-up interview is always done at a place of comfort to the witness. It is not a good idea to call witnesses down to the police station, or interview them at their place of work. There are too many distractions in such places. During such visits, often in the witness’s home, the witness will feel so comfortable that they ask police all sorts of privileged information about the case and police procedures. These topics of conversation should be avoided. The witness had to be “handled” in much the same way as an informant. Anything over-friendly and anything un-friendly will probably result in a legal challenge that the witness was influenced by police procedure and style. Above all, the witness should NEVER be allowed to guess simply to please the interviewer.
Police should also never use the phrase “mug book” when showing photographs of potential perpetrators. Such photographs should be referred to as a “collection of photographs.” No one photo should stand out, and all the photos should be in uniform format. When witnesses ask (and they always will) if the people in the photographs have all been arrested for crimes, the police officer should not comment on this, or allow the witness to keep thinking about all the horrible crimes that the people in the photos might have done. That’s a worst-case scenario for producing prejudiced perceptual memory.
Even if a witness is unable to identify anyone in photos or a lineup, they should be told that the police will still investigate the case. No implications must be made that the testimony of this witness is essential or critical. This would put undue pressure on the witness.
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