False Confession: Who’s Responsible?
by Stan B. Walters, CSP “The Lie Guy®”
Recently I was comparing “notes” with a social psychologist who is conducting research on cues to deception. She has been collecting data about the lie cues taught by the numerous interview and interrogation courses and attempting to validate the reliability of those cues. She shared with me a comment made by an instructor in one of these courses that not only did she find disturbing by that I find at least professionally if not ethically appalling. A question was raised in class about the issue of false confessions and how they should be handled. The instructor informed the participants that the interviewer should blame the subject for the false confession.
With the country’s legal system current focus on wrongful convictions and false confessions, how irresponsible could a professional investigator be to blame a false confession on the suspect? The objective of the investigative interviewer should be finding the truth by accurately spotting deception and ultimately obtaining a legal and ethical admission or confession. Such professionals should also be keenly aware of what methods and techniques could induce a highly suggestible subject to make a false confession.
One issue that immediately concerns me about the instructor’s statement is there must be some problem with the human behavior cues that are being taught in this course. We are expected to spot a subject’s apparent deception regarding their involvement in some inappropriate or criminal act by observing and identifying specific verbal and nonverbal cues of deception.
If the cues being taught are reliable discriminators of deception, then why would the interviewer not be able to spot the very same signs that would undoubtedly be generated by a subject who is falsely confessing?
The objective of any investigation is to uncover the real story. Doesn’t the fact that there has been a false confession run completely counter to that objective?
The fact that the investigator has become focused on this subject as being the person that there may in fact have been a faulty or inadequate investigative effort which would include the identification, collection and preservation of evidence and more importantly the interviews of other sources, victims and witnesses. Once again, how has the interviewer missed the cues of omission and embellishment by the victims, witnesses or informants that I assume have already been interviewed during the investigation.
A couple of months ago I wrote an article for this newsletter that was entitled ‘Pre-Conception: An Interrogation Assassin’. My premise in that article was one of if not the most insidious states of mind that an interviewer could have any pre-conception about a person’s credibility and honesty about an issue. With an inaccurate assessment of the subject’s honesty and relying on signs of deception that have been proven to be unreliable and then proceeding without considering that their technique may increase the chances of a false confession is the path to disaster.
If the investigator is prepared to take the credit for solving a case and wants the credit for getting a confession from a subject then he or she is also are responsible for a false confession. Blaming the subject for their false confessions is an absolutely unacceptable excuse.
Our job is to find the truth. A false confession does not serve justice.
“Insuring The Confession Against The Allegation of False Confession”
Stan B. Walters
In the last couple of years there has been a growing public interest and media documentation of cases of wrongful conviction. Many of the more sensational cases overturned and receiving high profile media coverage have been those that where resolved using new DNA technology. In some cases however, one of key points upon which the wrongful conviction turned was a false confession by the suspect.
Despite overwhelming evidence, there are still some investigators, prosecutors and members of the general public who believe that there is no such thing as a false confession and it doesn’t really matter because the subject most likely is guilty of some other undiscovered crime or offense anyway. Unfortunately there will always be people who will never be convinced of the phenomenon but a more important question for us as investigative interviewers is what are the conditions that could possibly exist that create such confessions and what can we do to prevent such possible miscarriages of justice?
Although this e-zine, “The Interview Room” goes out to subscribers in at least five countries outside the United States, I feel that the United States Supreme Court definition of a “confession” could still be used as a reliable standard from which to establish the goals and objectives of our interviews. At the same time, if you are a reader whose work is in the private sector, intelligence community, military or even adult and juvenile probation and parole, the objectives still remain the same but translated to your specific needs. In the case James v. State of Georgia, App. 282, 71, S.E. 2d 568 (1952) the court defined a confession as: “An accused person knowingly makes an acknowledgement that he or she committed or participated in the commission of the criminal act. This acknowledgement must be broad enough to comprehend every essential element necessary to make a case against the defendant.” Does the confession you have obtained contain the critical elements of “causation” and “criminal intent?”
First, the case against a subject can be protected from the fatal flaw of being a labeled a false confession if it contains the subject’s descriptive details of his or her exact actions, behaviors, or participation that “caused” the event to occur – malicious, negligent or otherwise. How the subject specifically entered the house, the point of origin of the fire and materials used, how they accessed the computer system, physically approached the victim, weapon used and in what manner or form, method of egress from the scene, any attempt at displacement, obliteration, or disposal of evidence such as clothing, the murder weapon, etc. Has he or she told you details that the only way they would know those details is if they had been to the scene and committed the offense? At the same time those details should be confirmed by the presence of physical evidence in some form. In addition, are you sure that you as the interviewer, by the way you have conducted your interview, asked of phrased your questions in some form that has inadvertently given the subject such details thereby contaminating the subject’s statement– a common error made in the interview room?
Second what was the subject’s initial “intent” when engaging in their behavior? Your subject’s statement should not only reflect that the subject did something bad or criminal but also that they had “bad intent” when the incident occurred. The outcome may not be what the subject intended, anticipated, or every expected but would the results have been the same without some form of intent on the part of your subject? Does your subject’s statement disclose that their behaviors where malicious by virtue of information they have supplied that their actions were wanton, to what degree was the intent and was it a conscious act on their part? Is it apparent from the physical evidence and your subject’s statement that there was time for deliberation of their part? Were there moments when it is obvious that the subject was at one or more crossroads in the decision making process and at these opportune moments chose a specific course of action? Does the subject’s remarks validate evidence that this act was premeditated in that the subject engaged in behaviors in advance of the event that “facilitated” a specific outcome by arranging, orchestrating, staging or specific planning?
The burden of the existence of false confessions rests on the shoulders of the interviewer. A confession that contains the critical elements of “causation” and “intent” that have be obtained without contamination from the interviewer solidifies the reliability of the confession. An individual without such specific knowledge could not provide such critical information. Justice is ultimately served for the victim, the correct subject, the professional interviewer and ultimately the public’s faith in its criminal justice system.
- Digital / Downloadable Learning
- Principles of Kinesic Interview & Interrogation
- Pocket Guide – Practical Kinesic Interview & Interrogation
- Tools of Influence – TeleSeminar CD
- FACT – CD: Information Recovery Course
- Audio Lecture Series I
- The Truth About Lying: How to Spot a Lie & Protect Yourself From Deception