“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.
Confession Motivation: Gain versus Pain
by Stan B. Walters, CSP
“The Lie Guy®”
For each of us, the only reason we change our minds about a decision that we have already made is when someone or something convinces us to abandon our first decision and a new or different point of view. In our mind in some measurable way, we see the new position we have taken as being more rewarding or satisfying than the old. We have made the change after we have been motivated by our perception of “gain” or “pain.” The same evaluation process is being made in the mind of our interview or interrogation subject while we are persuading them to change their current position and begin to cooperate with us and comply with our requests for information or even confession. If you can understand the “gain” or “pain” motivation of your subject and demonstrate to your subject a big distinction between the two, you’ll have a better chance at gaining compliance, cooperation and confession.
In the Gain vs. Gain scenario, you subject has already concluded that he has much more to gain by remaining consistent with the position he has already assumed. First you have two hurdles to overcome, your subject’s commitment to staying consistent with his decision and second demonstrating to him or her the position you want them to choose will provide them even more to gain than they may realize. In this case you’ll need to acknowledge that you subject does have some things to gain by sticking with their decision and point out that the new point of view may also have those very same rewards. That it itself however, is not enough to move your subject. You’ll have emphasize the advantages your subject has overlooked or has undervalued in terms of their importance to him and his “gain” objective.
In the second scenario which is Pain vs. Pain, there is the possibility that your interviewee has seen no gain for them at all by accepting your conclusions and you’ll have a long road of persuasion ahead of you. It that case you’ll need to demonstrate to the subject that they have overlooked some pain issues with their point of view and to accept your proposition. Your recommended position may also afford the subject some “pain” but not nearly as much as what they had not anticipated if they decided to “stand” by his initial choice. In most cases, carefully listening to your subject and their reasons for rejecting your proposal, you’ll hear the gain-pain issue or issues that is driving your subject’s resistance. You’ll need to focus on those issues because their are important to your subject but may not be that important to you.
The final scenario is usually the easiest to deal with and that’s the Pain vs. Gain format. In this case, it is much easier to convince your subject to abandon their choice to resist your recommendations to solve the issue. They already see themselves has having to deal with some level of “pain” as a result of their behavior and all you have to do is show them the “light” and get them to look forward and see to “gains” they can make by reevaluating their current pain-filled situation. In many cases, just pointing out what may be obvious “gain” to you is all that is needed because your subject is “blinded” by their current state and has missed the benefits of changing they judgment about the possible outcomes of cooperation.
In any of the three scenarios above, the interviewer has to realize that their subject is motivated by “their” perception of Gain vs Pain. The evaluation by the subject as to what they define as gain or pain may not even be close to what you as the interviewer think is worth gaining or avoiding. Once the interviewer recognizes their subject’s gain or pain motivation he can key in on those issues. The greater the distinction you can make between Gain – Gain, Gain – Pain, and Pain – Pain, the more likely and the more quickly you’ll get the subject to come to the conclusion to abandon their current preferred decision and accept the interviewer’s recommendation.
- 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