Although there is considerable literature on the causes of false confessions and the effects confession evidence has on juror decision-making, little research has examined attorneys’ decision-making in disputed confession cases. As the intervening step between when the confession is elicited and the case is resolved, it is crucial that research examine effects of confession evidence on this population. The current studies investigate defense attorneys’ knowledge and perception of key interrogation and confession issues as well as their decision-making in a disputed confession case. Overall, results show that defense attorneys are knowledgeable about key interrogation and confession issues and are aware of how powerful confession evidence is at trial. Regarding trial strategies, however, defense attorneys focused more on highlighting the lack of non-confession evidence than discounting the confession. Implications for future research and practice are discussed.
I. Introduction
Confessions from perpetrators help solve crimes in an efficient manner, eliminating strain on an overburdened criminal justice system. However, approximately 13% to 30% of all DNA exoneration cases involve confessions from innocent suspects.1 Even though the courts have implemented numerous safeguards to ensure that confessions are voluntary, research shows that, when exposed to standard police interrogation techniques, innocent suspects are vulnerable to confessing to crimes they did not commit.2 Furthermore, once confession cases proceed to trial, confession evidence is so powerful that the defendant stands little chance of being acquitted,3 and even exculpatory DNA evidence is not always powerful enough to surmount confession evidence at trial.4 Although there is considerable literature on the causes of false confessions and on the effects confessions have on mock jurors, no empirical research to date has examined attorneys’—neither prosecution nor defense—knowledge and perceptions of interrogations and confession issues, nor their decision-making in disputed-confession cases. As the intervening step between when the confession is made and the case is tried, it is crucial that researchers examine the effects of confession evidence on these populations. The current study reports relevant defense attorney data taken from a larger study of prosecution and defense attorneys regarding disputed confessions.
II. The Problem of False Confessions
Standard police interrogation procedures can lead people to confess to crimes they did not commit.5 In fact, of the Innocence Project’s 367 documented DNA exonerations, confessions were a contributing cause in 27.8% (n = 102) of cases.6 Although it is impossible to know the precise rate of false confessions, recent estimates suggest that they are a contributing factor in 13% to 30% of all post-conviction DNA exonerations.7 This number, however, only represents the tip of the iceberg of false confessions, as many cases may not have exculpatory DNA evidence, may be dismissed before trial, may be minor crimes that are not heavily scrutinized, or may be juvenile offenses for which records are sealed.8
Researchers have identified two main reasons why people confess to crimes they did not commit: dispositional vulnerabilities and situational pressures.9 Dispositional vulnerabilities include the suspect’s age, mental illness, intellectual impairment, and certain personality characteristics that relate to compliance and suggestibility.10 Situational pressures include the inherent pressure of an interrogation, the length of the interrogation, and a number of specific tactics used by police officers during the interrogation.11
A. Dispositional Vulnerabilities
Under enough pressure anyone is at risk of confessing to a crime they did not commit, but certain groups of people are more vulnerable than others. These groups include juvenile suspects, intellectually disabled suspects, and mentally ill suspects.
1. Suspect Age
An analysis of the first 215 DNA exonerations found that more than one-third of DNA exonerees were between the ages of fourteen and twenty-two when they were arrested, and together spent 947 years in jail for crimes they did not commit.12 Of these 215 DNA exonerations, approximately 25% of innocent defendants made incriminating statements, confessed, or pled guilty, largely as a result of police pressure.13
A review of known false-confession cases has shown juveniles to be particularly susceptible to the pressures of interrogation. A later examination of 340 exonerations showed that 42% of juvenile suspects falsely confessed (compared to 13% percent of adults); and of these juvenile cases, 69% of the youngest juveniles—those aged twelve to fifteen—falsely confessed.14 In sum, age is a significant risk factor for false confession.15
Three key reasons why juveniles are over-represented in false-confession cases are (1) lack of knowledge, (2) lower cognitive ability, and (3) lower psycho-social maturity.16 For example, numerous studies show that suspects under the age of fifteen are unable to fully understand their Miranda rights.17 Similarly, adolescents under the age of sixteen have been shown to have reduced cognitive abilities as compared to adults.18
Cognitive ability, however, is merely one aspect of judgment and decision-making.19 Developmental psychologists argue that while cognitive capacity shapes the process of making a decision, the psycho-social factors—such as impulse control and future planning—affect the outcome of the decision.20 For example, an adolescent who possesses average to above-average intelligence may have the cognitive capability to make a decision, such as the one to waive her Miranda rights, but may also have a tendency to discount the future and weigh short-term rewards more heavily than long-term consequences, especially when the gains are more immediate.21 This can lead a juvenile suspect to favor falsely confessing in order to end an unpleasant interrogation (short-term reward) over the risk of being tried and convicted of a crime (long-term consequence).
2. Mental Impairment
In addition to juveniles, people with intellectual disabilities and mental illnesses are over-represented in false-confession cases.22 Twenty-eight of the 125 proven false-confession cases analyzed by Drizin and Leo involved individuals with intellectual disabilities—a number that is likely an undercount, as intelligence test results were not available in the majority of cases.23 Like juveniles, people with intellectual disabilities show poor comprehension and application of their Miranda rights24 and of the consequences of confession.25 Specifically, people with mental retardation have been shown to think that having an attorney will negatively affect their case26 and that their confession could be easily retracted.27 In addition to poor comprehension of the legal system, people with intellectual disabilities show increased suggestibility28 and compliance with authority figures.29 This increased susceptibility to social pressures, combined with a decreased understanding of the complex legal proceedings going on around them, creates a perfect storm of risk factors for false confession.
Similarly, a study of 1249 offenders with serious mental illness in the United States found that nearly a quarter of respondents reported having falsely confessed to crimes they did not commit.30 People with mental illness often show distorted perception and reality monitoring along with poor judgement and self-control, all of which can increase the risk of false confession.31 Additionally, like those with intellectual disabilities, people with psychotic disorders show decreased understanding of their constitutional rights,32 and people with autism show increased compliance with authority figures.33 Taken together, the research on juveniles, people with intellectual disabilities, and people with mental illness show that, due to reduced cognitive capacities and increased susceptibility to social pressures, the standard police interrogation puts many suspects at risk for false confession.
B. Situational Pressures
The standard police interrogation not only puts suspects from vulnerable populations at risk of falsely confessing, but it also puts average adults at risk of doing so. While vulnerable populations are over-represented in false-confession cases, there are many documented cases of psychologically normal adults falsely confessing. To understand how this can happen, one must understand the standard police interrogation.
A police interrogation is typically a two-step process.34 Police first conduct a pre-interrogation interview, a non-confrontational process which aims at determining whether a suspect is innocent or guilty. For the suspect, this police-citizen interaction is often the critical moment that determines whether she will be subject to further interrogation.35 Unfortunately, police officers often make mistakes when attempting to establish veracity. In fact, police officers consistently obtain hit rates near chance, and are not more accurate than lay people in detecting deception.36 To this end, innocent suspects are sometimes interrogated for crimes they did not commit and placed in situations that increase their risk of falsely confessing. Once a suspect has been identified as guilty, the interrogation begins. The interrogation is an accusatorial process during which investigators try to elicit a confession from a suspect they already believe to be guilty.37 A false confession is thus the result of incorrect veracity assessments in step one of the interrogation and of the subsequent exposure of innocent suspects to manipulative and psychologically coercive interrogation techniques in step two.38
The effectiveness of these commonly employed interrogation techniques in accomplishing the goal of eliciting confessions is undisputed. Some examples of commonly employed interrogation techniques include custody and isolation, excessive use of time, lying and bluffing about evidence, and the use of themes that minimize the seriousness of the crime and thus imply leniency.39
1. Custody and Isolation
Popular police interrogation manuals (e.g., the Reid Technique) advise isolating the suspect in a small windowless room.40 The goal of this isolation is to create an uncomfortable situation that the suspect is eager to get out of—and the only way to do so is to confess. Although isolation is effective at eliciting true confessions, it can also lead innocent suspects to confess when used in conjunction with other tactics.41
According to surveys of North American police officers, the average police interrogation lasts an average of 1.60 hours,42 and the Reid Technique advises practitioners not to exceed four hours.43 Legally, however, there is no time limit on interrogations.44 Consequently, an analysis of 125 proven false-confession cases found that, for cases in which interrogation time was recorded, the mean interrogation length was 16.3 hours, with 34% lasting six to twelve hours and 39% lasting twelve to twenty-four hours.45 Basic psychological research shows that prolonged periods of isolation are stressful46 and can incentivize people to take actions to remove themselves from the source of the stress,47 even those that go against self-interest like falsely confessing to a crime. In sum, research has shown that as the negative effects of a situation become more extreme, escape motives become central to behavior.48
For example, consider the case of Todd Johnson. On December 19, 1998, at approximately 3:30 AM, the police arrived at Mr. Johnson’s home to investigate the death of his wife.49 Once there, the police had Mr. Johnson sit in the police car until around 7:00 AM, at which point they transported him to the local police station. Once at the police station, investigators began interrogating Mr. Johnson.50 Between 9:15 PM and 10:00 PM on December 19, 1998, Mr. Johnson signed a typed statement, after nearly nineteen hours of a constant police presence and nearly fifteen hours of interrogation.51 This length of time, by all accounts, is extreme, and likely contributed to Mr. Johnson’s false confession.52
Hand-in-hand with lengthy interrogations comes sleep deprivation. Basic psychological research shows that sleep deprivation can impair cognitive function and decision-making ability,53 making it difficult for sleep-deprived suspects to resist the social pressures inherent in a police interrogation. Both laboratory and field studies show reduced cognitive function and increased susceptibility to social influence as a result of sleep deprivation. For example, studies of medical interns,54 motorists,55 and fighter pilots56 all show performance impairments as a result of sleep deprivation.
Recently, laboratory experiments have extended these findings to interrogations specifically. Combining standard laboratory paradigms for studying false confessions with standard sleep research, a group of researchers showed that sleep-deprived participants were significantly more likely to falsely confess (50%) than non-sleep-deprived participants (18%).57 Returning to the case of Todd Johnson, as noted above, the police arrived at Mr. Johnson’s home around 3:30 AM on December 19. By all accounts, Mr. Johnson had been awake since around 9:00 AM on December 18; thus, by the time Mr. Johnson had signed his statement at 10:00 PM on December 19, he had been awake for nearly thirty-seven hours. At this point, there is no question that Mr. Johnson was sleep deprived and at increased risk of falsely confessing.
2. Minimization and False Evidence
In addition to isolating the suspect, there are specific psychologically coercive maneuvers that police use during the interrogation that put innocent suspects at risk of falsely confessing.58 It is important to note that these techniques are all considered non-coercive in the eyes of the law since they do not involve physical force, explicit threats or promises, or deprivations of any kind.59 Furthermore, the courts assume that innocent suspects—from non-vulnerable populations—will not confess when exposed to these legal interrogation techniques. Laboratory research on these techniques, however, shows this not to be the case.60
One way interrogators attempt to convince the suspect that it is in her best interest to confess is to try to change the perceived consequences of confessing (or continuing to deny) without outright promising leniency to or threatening the suspect, commonly referred to “minimization” and “maximization,” respectively.61 Maximization involves the use of scare tactics and is designed to communicate the interrogator’s belief in the suspect’s guilt and that there will be harsher consequences for repeated denials.62 In contrast, minimization is designed to reduce the anxiety associated with confession by normalizing and minimizing the moral seriousness of the offense.63 This tactic, while effective at obtaining true confessions, also puts innocent suspects at risk to make false confessions by implying leniency.64 The use of minimization has been shown to increase the rate of false confessions.65 Importantly, observers do not view the use of minimization tactics during interrogation as coercive.66
Of the permissible interrogation tactics, one of the most controversial is the false-evidence ploy, in which interrogators tell the suspect they have evidence of her guilt (e.g., DNA, blood, an eyewitness, or a failed polygraph) when that evidence does not really exist. Police training manuals, such as the Reid Technique,67 recommend using this tactic under certain circumstances, and police officers report sometimes using it.68 Lying about evidence has been shown to increase false confession rates by making suspects feel trapped or by making suspects doubt their own memory.69
An alternative to the false-evidence ploy is the bluff. Here, police pretend to have evidence in the case but do not claim that it implicates the suspect; for example, the police might say, “We have DNA that we are going to test.” The bluff has been shown to increase the rate of false confessions by paradoxically playing on a suspect’s trust in the power of his innocence to prevail, thereby anticipating future exoneration from the alleged evidence.70 However, because this evidence does not exist, the suspect cannot be exonerated and has now confessed to the crime in question. In sum, police interrogation methods are skillfully designed to elicit confessions through a number of channels, but they are non-diagnostic and can often elicit confessions from innocent suspects as well as guilty suspects.
III. The Power of Confession Evidence
Once a confession case goes to trial, the odds of conviction are very high, as demonstrated by both real-world examples and laboratory research. When false confessors plead “not guilty” and proceed to trial, conviction rates range from 73%71 to 81%.72 Notably, approximately 85% of the convictions occurred when there was little or no corroborating evidence, when the confessions were inconsistent, or when they were contradicted by other evidence.73
Results of controlled laboratory studies confirm the tremendous impact of confession evidence implied by these real-world examples. Confession evidence has been found to increase mock jurors’ conviction rates and probability-of-commission ratings more than both eyewitness testimony and character testimony across a variety of different crimes.74 Jurors even favor confession evidence over exculpatory DNA evidence when the prosecution offers an explanatory theory for the contradictory evidence, as compared to when no explanation is presented.75 Furthermore, the presence of a confession increases mock jurors’ conviction rates and probability-of-commission ratings over a no-confession control group, even when the confession was elicited by high-pressure interrogation tactics or ruled inadmissible by a judge.76 This effect occurred even when participants claimed not to have considered the confession as evidence.77 The presence of a secondary confession—a confession provided by someone other than the suspect (e.g., a jailhouse informant)—has even been shown to increase conviction rates over a no-witness control group.78 Additionally, recanted confessions create perceptions of guilt, even when the mock jurors are told that the confessor suffered from mental illness or that the interrogation induced stress.79 Studies on juvenile defendants have found similar results.80
Similar persuasive and biasing effects have been found for judges. In the only known study looking specifically at judges and their evaluations of confession evidence, 132 judges from three states read a confession case and conducted a harmless-error analysis. Although the judges in the high-pressure condition were able to properly conduct the harmless-error analysis and judge the confession as coerced, their perceptions of guilt were not immune from the biasing effects of the confession. Demonstrating the biasing effect of a confession, the judges in the high-pressure interrogation condition, as compared to the no-confession control group, convicted more often and rated the other case evidence as stronger.81 Thus, it is not just lay people who are swayed by the power of confessions. If judges are biased by confessions, it stands to reason that attorneys will fall prey to similar biases in decision-making.
IV. Perceptions of Interrogations and Confessions
Once a defendant has confessed—and if the defendant disputes the confession—the defendant’s fate is in the hands of attorneys, judges, and juries. Thus, it is important to know what fact finders know and understand about interrogations and confessions. The majority of research in this domain has focused on what lay people—i.e., potential jurors—know about the subject matter. The results suggest that the average juror is relatively uninformed. For example, a survey of potential jurors found that that only 43% of participants knew that police officers could lie to suspects in an interrogation,82 only 55% knew that they could downplay the seriousness of a crime,83 and, importantly, only 12% knew that police officers are not better than lay people at detecting deception.84 Additionally, 81% believed that jurors were not knowledgeable enough about interrogation tactics and confessions to make informed judgments about confession evidence at trial.85
Surveys of the perceived coerciveness of interrogation tactics have shown a similar lack of knowledge. Although potential jurors recognize police interrogation tactics (e.g., implicit promises of leniency, presentations of false evidence, and challenging denials) as coercive, they see them as more likely to elicit true confessions than false ones.86
Very little is known about attorneys’ knowledge and perceptions of interrogations and confessions. One Swedish study examined prosecutors’ and judges’ beliefs about deception. The results showed that prosecutors are relatively uniformed about deception, but that they are more knowledgeable than police officers on some aspects of deception detection, such as verbal versus nonverbal cues to deception.87 Compared to lay people, attorneys’ legal and professional educations presumably make them more knowledgeable about what police officers can and cannot do during an interrogation. There are, however, many aspects of interrogations and confessions (e.g., distinguishing between true and false confession, and suspect vulnerability) that attorneys may not be exposed to in law school or even throughout their legal practice; we therefore anticipate them being no more knowledgeable about these issues than lay people are. Additionally, attorneys and lay people are likely to have similar perceptions of the coerciveness of common interrogation tactics due to a lack of knowledge on the topic and to general biases in cognition.
Regarding other common causes of wrongful convictions, research shows that, compared to prosecutors, defense attorneys are more sensitive to the problems inherent in eyewitness testimony.88 But recent research suggests this gap in eyewitness knowledge may be closing.89 Eyewitness testimony has received a considerable amount of attention in psycho-legal research—more so than confessions evidence—yet, attorneys are still relatively uninformed about the numerous factors that influence eyewitness testimony. This unfamiliarity by attorneys of eyewitness issues would suggest a similar unfamiliarity of confession issues.
V. The Role of Attorney Knowledge and Decision-Making
Compared to jury decision-making, there is limited research on attorney decision-making. This is noteworthy because the majority of cases never make it to trial, with 90% to 95% of all criminal cases in the United States being settled by plea bargain.90 Stated differently, the majority of criminal cases in the United States are resolved outside of a courtroom via negation between attorneys,91 and there is a dearth of knowledge about how attorneys, who are key actors in the criminal justice system, evaluate evidence and make decisions.
Research to date suggests that, like jury decisions,92 evidence strength is the driving factor in attorneys’ plea-bargaining recommendations.93 Regarding confession cases specifically, available evidence shows that prosecutors are less likely to initiate a plea bargain,94 tend to charge the defendant with the highest number and types of offenses,95 and tend to set bail higher96 than in non-confession cases. This observed decrease in prosecutor-initiated plea bargains in confession cases suggests that prosecutors are aware of the power of confession evidence. Specifically, confession evidence is considered the most powerful non-scientific form of evidence;97 thus, in confession cases, even when the confession is disputed—and when other evidence is lacking—prosecutors may be more certain of the case and more willing to proceed to trial based on the persuasive power of the confession. The same available evidence suggests that defense attorneys in confession cases are more likely to suggest that their clients accept a guilty plea to a lesser charge.98 There is also evidence, however, that other factors, such as the defendant’s race99 and prior arrest history,100 as well as attorney over-confidence,101 can affect plea recommendations.
Research regarding attorneys’ trial strategies is even more limited than research on plea decisions. Moreover, the little research there is mostly ignores the factors that lead to wrongful convictions. One study of how eyewitness testimony affects trial strategy showed that, while defense attorneys were more aware than prosecutors of the problems associated with eyewitness testimony, this awareness did not lead to more interventions during trial, such as filing motions to suppress and calling eyewitness experts.102 There is no rigorous empirical research, however, on how criminal attorneys approach disputed-confession cases. Of particular interest for this paper is (1) how attorneys weigh the manner in which the confession was obtained, (2) how attorneys weigh pieces of contradictory evidence in the case, (3) how these factors play into their decisions to go to trial, and (4) what strategies attorneys pursue at trial with this information in mind.
A. Can Attorneys’ Decisions Be Contaminated by Confession Evidence?
In 2010, the Center for Wrongful Convictions identified nineteen cases in which confessors to rape or murder were tried and convicted, despite having been excluded by DNA tests of key biological materials;103 since that time, additional cases have been reported and critiqued.104 For example, in New York’s infamous 1989 Central Park Jogger case, five teenage boys confessed after lengthy and intense interrogations.105 DNA testing of the semen recovered from the victim excluded all five boys before trial,106 yet they were still prosecuted and convicted,107 with the prosecuting attorneys arguing that there was a sixth unidentified accomplice that the boys either could not or would not identify.108 The boys were officially exonerated thirteen years later when the real perpetrator, a serial rapist who was already in prison, confessed—a confession that was supported by DNA.109 Cases like these raise questions about the decisions prosecutors make from the moment they receive a confession case through the conclusion of the trial. Many have attributed prosecutors’ decisions to go to trial despite corroborating evidence, or in the face of exculpatory evidence, to bad intentions or prosecutorial misconduct.110 However, when dealing with disputed-confession cases, perhaps prosecutors are not being malicious, but are simply uninformed and falling prey to the many cognitive biases that a confession sets in motion.
Conversely, in their analysis of 125 proven false confession cases Drizin and Leo documented fourteen false guilty pleas.111 One infamous example of a false guilty plea after a false confession is that of Christopher Ochoa. After confessing to police about his involvement in a 1988 rape and murder of a fellow Pizza Hut employee, Ochoa, in an effort to avoid a death sentence, not only pled guilty, but also testified at trial against his close friend Richard Danzinger—all at the advice of his attorney. Ochoa and Danzinger were exonerated fourteen years later by DNA when the real perpetrator, who was already in prison, confessed—again a confession supported by DNA.112 Research indicates that defense attorneys are more likely to recommend a plea agreement when the incriminating evidence against the defendant is strong.113 When the defendant is innocent, however, it raises the question of whether this is simply a cost-benefit analysis or whether defense attorneys are also falling prey to the cognitive biases that a confession sets in motion, potentially overlooking contradictory or exculpatory evidence and presuming guilt.
A number of social-cognitive factors are likely to contribute to the persuasive power of a confession through mental contamination. Mental contamination is the process whereby a person makes an unwanted judgment as the result of highly adaptive unconscious or uncontrollable mental processes gone awry and, even if she is aware of this, is unable to fully correct her judgment.114 For example, teachers do not necessarily want to give higher grades to more attractive students, and may even try not to, but numerous studies have found a similar halo effect in many domains.115 Although there are a number of automatic mental processes that can contribute to mental contamination, the one most likely at play in the problem of false confessions is called the “initial acceptance of propositions,” which includes both the truth bias and the fundamental attribution error.116
The truth bias is the tendency to believe a proposition, independent of the statement’s actual veracity.117 This effect occurs even when there is no evidence to support the statements118 and even when the statements are clearly labeled as false.119 This happens when people initially accept the statements as true in an effort to comprehend them, but then fail to discount or disbelieve the information—if necessary—once it has been processed.120 The truth bias is likely to be magnified in the case of a confession because of a strong tendency, as noted by many attribution theorists, for people to trust statements against self-interest.121 As a result, people are more likely to believe a suspect’s admissions of guilt than her denials.122 The truth bias suggests that once people hear a confession, they will tend to believe it, even when evidence suggests they should not.
A second way to explain the persuasive nature of a confession is the fundamental attribution error,123 or correspondence bias.124 The fundamental attribution error is the pervasive tendency to underestimate the impact of the situation on a person’s behavior and, consequently, to attribute the behavior to dispositional factors. The fundamental attribution error often stems from an initial quick attribution of personal factors to the actor’s behavior, and then a failure to correct or adjust for situational factors.125
A great deal of research on the fundamental attribution error shows that, for a number of reasons, it is a hard tendency to overcome. This includes the invisibility problem, which states that observers have trouble seeing an actor’s situation as that actor sees it (e.g., a coercive interrogation), impairing their ability to consider how the situation influenced the actor’s decisions.126 A good example of the invisibility problem in the problem of false confessions can be seen in a study by Kassin and McNall on the impact of commonly used interrogation tactics. Results showed that when a popular interrogation technique was used (minimization), outside observers viewed it as non-coercive, viewed the interrogator as friendlier and less eager for a confession, and viewed the situation as less coercive overall. Participants also estimated that relatively few suspects, especially innocent suspects, would confess to the crime.127 These results suggest both jurors and legal professionals may be falling prey to the invisibility problem when assessing an interrogation and the subsequent false confession, making them prone to committing the fundamental attribution error.
Another way in which judgment becomes contaminated is through biased hypothesis testing, a form of confirmation bias by which people seek, interpret, and create information in ways that support their prior beliefs.128 This process can occur in two ways. First, when a perceiver forms an initial impression and then hears ambiguous evidence, they often seek information confirming their hypothesis.129 Secondly, when information that does not confirm the perceiver’s position is brought to their attention, it is either ignored,130 discounted,131 assimilated,132 or recalled in a manner that supports their initial position.133 This process of biased hypothesis testing would suggest that once a confession has been introduced, subsequent evaluations of other evidence may be distorted or discounted, providing further evidence in the mind of the fact finder that the defendant committed the crime.
An analysis of 241 DNA exoneration cases showed that confession cases, compared to eyewitness cases, were more likely to contain multiple evidentiary errors, and, in these cases, the confessions were more likely to be taken first, rather than later in the investigation.134 Although the mechanism of influence is not known in these anecdotal cases, laboratory research has shown how confessions can change other case evidence. When fingerprint experts were re-presented with pairs of fingerprints from a previous case and told either that the suspect had confessed (suggesting guilt) or was in custody at the time of the crime (suggesting innocence), these experts changed their previously correct decisions almost 17% of the time.135 Similarly, Hasel and Kassin found that upon hearing that a suspect had confessed, nearly 61% of eyewitnesses changed their lineup identification choices to the reported confessor, and 50% of initial non-choosers changed their decision and chose the confessor.136 Kukucka and Kassin found a similar pattern of results with handwriting evidence.137 These findings suggest that once people hear that a defendant has confessed, their evaluations of subsequent evidence, even something as powerful as DNA, may be distorted.
Unfortunately, the processes of mental contamination are not easy to avoid. This is primarily because people not only have difficulty detecting mental contamination, but even when they are aware that their biases may be affecting their judgments, people often are not able to recognize the impact of the biases and fully correct their judgments.138 In a disputed-confession case, it is possible that one or more of these biases is affecting an attorney’s decision-making concerning whether to take the case to trial and what strategies they will employ at trial by biasing their evaluations of the interrogation, confession, and other evidence in the case.
VI. Current Studies
The research reviewed shows that, when exposed to standard police interrogation techniques, innocent people are vulnerable to confessing to crimes they did not commit. Moreover, once a confession case goes to trial, research suggests that the impact of a confession is so great that the defendant stands little chance of being acquitted, even if there is little or contradictory other evidence in the case. Furthermore, the research shows that many of the safeguards set up to protect the innocent—including DNA testing of evidence—may not be immune to the powerful effects of a confession. Because attorneys are the intervening step between when the confession is taken and the case verdict is read, it is crucial that both their understanding of interrogations and confessions and their decision-making in disputed-confession cases be examined. Research has indicated that confessions have biasing effects in the judgments of both lay people and judges; it is plausible that attorneys will show the same tendencies. Thus, prosecutors may be more likely to prosecute disputed-confession cases—even in the face of contradictory evidence—while defense attorneys may be more likely to plead out disputed-confession cases when compared to similar non-confession cases. The current studies examine defense attorneys’ knowledge and perceptions of interrogations and confessions, as well as their decision-making in a disputed-confession case.
Study 1 uses a survey of defense attorneys to assess both their knowledge and perceptions about interrogations and confessions, including Miranda comprehension, police officers’ abilities to detect deception, and the ability to distinguish between true and false confessions. In addition, it will assess their perception of the coerciveness of numerous interrogation tactics ranging from minimally coercive (asking the suspect to repeat his statement) to extremely coercive (threatening the suspect with harm) and the likelihood that they elicit both true and false confessions. Study 2 will vary the level of coercion under which the confession was obtained as well as the presence or absence of exculpatory DNA evidence to test if attorneys’ decisions are contaminated by confession evidence, examine what factors influence their decisions to go to trial with a disputed-confession case, and their strategies at trial.
A. Study 1
The first study surveys defense attorneys to assess their knowledge about various aspects of interrogations and confessions such as Miranda comprehension, police officers’ deception detection abilities, and the ability to distinguish between true and false confessions. It also assesses their perceptions of the coerciveness of a wide range of interrogation tactics, ranging from minimally coercive (asking the suspect to repeat his statement) to extremely coercive (threating the suspect with harm), and the likelihood that they elicit both true and false confessions. We predict that, compared to the general population, defense attorneys will be more knowledgeable about police interrogation tactics, but that they will be less informed about aspects outside of their typical legal education, such as Miranda rights comprehension. Finally, we predict that they will underestimate the ability of interrogation tactics to elicit false confessions.
1. Participants
Recruited via email for an online survey of “Perceptions of Police Investigations,” fifty-six defense attorneys completed a survey designed to assess both their perceptions about police interrogations, knowledge of false-confession risk factors, and knowledge of false confessions in general. As a comparison sample, 189 U.S. Citizen community members, recruited from Amazon’s Mechanical Turk, were recruited for a “Legal System Survey.” Participation took approximately thirty minutes; attorney participants were compensated with thirty dollars cash for their time, while community participants were compensated with fifty cents cash for their time.
Attorney participants were predominantly White (82.1%), with an equal gender distribution (51.8% male; 48.2% female). Participants reported an average of 11.70 (SD = 11.79) years of experience (range: 1–45). Participants reported practicing in five states (Florida, Georgia, Massachusetts, New Hampshire, and Vermont), with the majority practicing in Massachusetts (55.36%) and Georgia (33.93%). About half of the sample (53.6%) had served as lead council on at least one disputed-confession case. Table 1 shows the full demographics for the attorney participants:
Community participants were also predominantly White (83.6%), with an equal gender distribution (52.4% male; 47.1% female). Participants ranged in age from 18 to 68 (M = 39.92, SD = 13.75) and lived in 38 different states. Table 2 shows the full demographics for the community participants:
2. Measures
Via Qualtrics.com, participants completed an eighty-item questionnaire designed to assess both their perceptions and knowledge of interrogations and confessions.
a. Perception
Perception Items. Perception items focused on three topics to assess participants’ beliefs regarding specific interrogation tactics: (a) their coerciveness (1 = not at all coercive, 7 = extremely coercive); (b) their likelihood to elicit a true confession (1 = not at all likely, 7 = extremely likely); and (c) their likelihood to elicit a false confession (1 = not at all likely, 7 = extremely likely). The perception items were based on questions used in previous juror-perception studies139 and techniques recommended in popular police interrogation manuals,140 and ranged from minimally coercive (e.g., asking the suspect to take a lie detector test) to very coercive (e.g., beating or assaulting the suspect). Within each subsection, items were presented in a random order. Table 3 shows the full list of items and each group of participants’ average ratings of these items:
Perceptions. Defense attorneys rated fifteen out of eighteen tactics as significantly more coercive than did community members.141 Items that were not statistically significant were repeated accusation, repeatedly saying the suspect’s alibi is false, and truthfully telling the suspect that their polygraph results are inconclusive.142
Defense attorneys rated the majority of the tactics as equally likely to elicit both true and false confessions from suspects.143 Unexpectedly, defense attorneys rated both implicit and explicit threats of harm, as well as actual violence, as more likely to elicit false confessions than true confessions.144
Further, defense attorneys rated twelve out of eighteen tactics as significantly more likely to elicit a false confession than did community members.145 These twelve tactics included all of the false evidence ploys, and implicit and explicit promises and threats. Defense attorneys also saw false-evidence ploys and implicit and explicit promises and threats as more likely to elicit true confessions than did community members.146 Table 3 shows all means.
b. Knowledge
Knowledge Items. Knowledge items served to assess participants’ knowledge of important psychological findings related to interrogations and confessions. These topics include: (a) deceptive behaviors; (b) deception detection; (c) suspects’ Miranda comprehension; (d) distinguishing between true and false confessions; and (e) vulnerable individuals. Participants answered two to four questions per category to assess their knowledge. Questions were presented in a random order. Some examples of statements presented include: “Police officers are more skilled than the general public at detecting deception”; “Suspects under age 16 can satisfactorily understand Miranda rights”; and “When watching a videotaped statement given by a defendant, one can distinguish between true and false confessions.” Participants then estimated the role that false confessions play in wrongful convictions by estimating: “Out of 100 cases of wrongful felony convictions, how many, on average, are due in part to a false confession?” Table 4 shows a full list of items and participants’ average ratings of these items147:
Knowledge. Regarding Miranda, a series of independent t-tests showed that defense attorneys were less likely than community members to think the general population, juvenile suspects, and intellectually disabled suspects understood Miranda rights.148 Regarding the risk of false confession, a series of independent t-tests showed that defense attorneys were more likely than community members to think that intellectually disabled and mentally ill suspects were at higher risk of false confession.149 However, defense attorneys and community members were equally likely to think that juveniles were at higher risk of false confession.150
A series of independent t-tests showed that defense attorneys and community members expressed similar confidence in their own ability to distinguish true from false confessions,151 whereas community members were more likely to think that judges and juries could distinguish between true and false confessions than were defense attorneys.152 Similarly, defense attorneys were less likely than community members to think that false confessions lacked vivid details about the crime or that they contained true details that only the true perpetrator could know.153 Table 4 shows all means.
B. Study 2
The second study uses an experimental design to examine what factors influence defense attorneys’ decisions to go to trial and what strategies they employ at trial in disputed-confession cases. We manipulate interrogation pressure and evidence strength to examine defense attorneys’ trial predictions and strategies in disputed-confession cases. We predict that defense attorneys will rate the high-pressure interrogation as more coercive than the low-pressure interrogation, but they will rate the defendants in the low- and high-pressure interrogations equally likely to have committed the crime. We also predict that participants will be equally likely to recommend a plea bargain in high- and low-pressure interrogations. However, we expect evidence strength to moderate this effect, such that when the physical evidence is inconclusive, defense attorneys will be more swayed by the presence of a confession than when it clearly suggests innocence. We also hypothesize that participants will consider confession cases as having stronger evidence of guilt and will predict a lower chance of winning—regardless of the strength of the physical evidence—than denial cases. We make no predictions about participants’ trial strategies, as those questions were primarily exploratory in nature.
1. Participants
Participants were 145 self-identified criminal defense attorneys recruited via email for an online study of “Attorney Decision-Making.” Participants were predominantly White (88.9%), with slightly more male participants (58.1% male, 41.9% female). Participants reported an average of 15.44 (SD = 12.43) years of experience (range: 0.67–54). Participants reported practicing in thirty-four different states, with the majority practicing in South Carolina (13.10%) and Virginia (12.41%). About half of the sample (53.1%) had served as lead counsel on at least one disputed-confession case. Table 5 shows the full demographics154:
2. Procedure and Study Design
All data were collected online via Qualtrics.com. Upon logging into the website, participants consented to participating in a study and indicated what type of attorney they were to ensure eligibility. Participants were instructed that they would read a brief case summary and answer some questions about their trial strategy and their perceptions of the evidence. They were encouraged to take notes, as they would not be able to go back during the study.
This study used an experimental design to test defense attorneys’ decision-making and trial strategies in a disputed-confession case. Participants were randomly assigned to read one of six trial summaries in a 3 (Confessions: Denial, Low Pressure, High Pressure) × 2 (Evidence: Inconclusive, Exculpatory) factorial design. Although trial summaries can create a somewhat artificial experience, the benefits of using an experimental design in which we can control and isolate the effects of the variables in question are key in initial studies of a topic.
3. Study Materials
a. Case Summary
In each condition, participants read the same one-page case summary, entitled People v. James Wilson. The summary described the discovery of the victim, Mary Summers, who was raped and bludgeoned to death in her apartment; her jewelry and credit cards were also missing. Witnesses reported seeing a neighbor, the defendant James Wilson, arguing with the victim several times in the weeks prior to the incident in question. In all conditions, the police arrested Mr. Wilson and took him to the station for questioning, where they noted that Wilson had a history of heavy drinking and could not account for his whereabouts on the night in question.
b. Confession Manipulation
By random assignment, participants read one of three accounts of the interrogation. In the two confession conditions, the defendant provided a written confession, modeled after a typical narrative confession155 that included a motive, crime details, and an apology. In the denial condition, Wilson strongly denied—in writing—that he had anything to do with the crime, stating he was at a party on the night in question. In the low-pressure condition, the defendant confessed after thirty minutes of interrogation. After confessing, he recanted his confession, claiming he was innocent. A videotape of the interrogation confirmed that the interrogating detectives did not threaten or mistreat the defendant. In the high-pressure condition, the defendant was interrogated for fifteen hours in a windowless room. After confessing, the defendant recanted his confession, saying that he only confessed because the interrogating detective repeatedly yelled at him and threatened him with the death penalty while repeatedly unholstering his gun. A videotape of the interrogation corroborated the defendant’s story.
c. Evidence Manipulation
By random assignment, participants read one of two results of DNA testing. In the inconclusive condition, investigators tried to preform DNA testing on semen recovered from the victim, but no semen was present, only spermicide suggesting that the perpetrator used a condom. In the exculpatory condition, investigators performed DNA testing on the semen recovered from the victim, but the DNA profile did not match that of the defendant. In all conditions, participants read that hairs found in the victim’s grasp were tested against the defendant’s hair, but the test results were inconclusive, and that a search of Wilson’s apartment did not find either the jewelry or Summer’s credit cards.
4. Measures
After reading the case summary, participants answered a series of questions to assess their perceptions of the evidence and their trial strategy.
a. Perceptions of the Case
First, participants indicated whether or not they would try to negotiate a plea deal for the defendant and why. Overall, participants would try to negotiate a plea bargain 40% of the time. Neither confession, evidence strength, nor the interaction term were significant predictors of whether the participants would negotiate a plea bargain156:
For participants who said they would not try to negotiate a plea deal, the majority cited a lack of evidence (70%); only 17% said they would not try to negotiate a plea because the confession was coerced. For those that would try to negotiate a plea, the majority said they wanted to present their client with options (70%); only 11% said they would try to negotiate a plea because of the confession. In sum, defense attorneys endorsed negotiating a plea bargain equally across cases, regardless of interrogation pressure or evidence strength, with very few indicating the confession as their reason for doing so (or not).
Next, on a scale of 0% to 100%, participants rated the likelihood that the defendant committed the crime. Participants rated the defendant in the low-pressure (M = 29.66, SD = 24.16) and high-pressure (M = 27.16, SD = 21.69) conditions equally likely to have committed the crime (p = .822). Likelihood ratings for the denial condition (M = 18.72, SD = 14.83) were significantly lower than the low-pressure condition (p = .027), but not significantly different from the high-pressure condition (p = .129).157 Participants rated the defendant as more likely to have committed the crime in the inconclusive condition (M = 30.94, SD = 22.64) than in the exculpatory condition (M = 20.50, SD = 18.62).158 There was not a significant confession by evidence-strength interaction.159 In sum, even though they did not affect the likelihood of negotiating a plea, both interrogation pressure and evidence strength affected defense attorneys’ perceptions of guilt.
Finally, on a scale of 0% to 100%, participants rated their likelihood of winning the case at trial. Participants predicted a lower likelihood of winning in both the low-pressure (M = 55.41, SD = 22.96) and high pressure (M = 61.42, SD = 20.47) cases than in the denial case (M = 74.07, SD = 18.13).160 The two confession cases did not differ from each other (p = .336).161 Evidence strength did not affect predicted likelihood of winning,162 nor was there a significant confession by evidence-strength interaction for likelihood of winning163:
In sum, defense attorneys are aware that the presence of a confession decreases their likelihood of winning, even when elicited by coercive tactics.
b. Trial Strategy
Participants were asked to imagine the defendant elected to take the case to trial and to describe their general trial strategy in their own words. In the confession conditions, the three most frequent strategies suggested were to argue a general lack of evidence (29%), argue a lack of physical evidence (28%164), and to dispute the confession (24%). Table 6 shows a detailed breakdown of strategies:
Notably, interrogation pressure did not affect the frequency with which participants suggested strategies.165 The presence of exculpatory DNA evidence, however, did affect the frequency with which participants suggested arguing a lack of physical evidence.166
Additionally, participants in the confession conditions were asked how they would address the defendant’s claim that he gave a false confession. In both the high- and low-pressure interrogation conditions, the most frequently suggested strategy was to argue a lack of evidence (42.5%). The second most common response—in both the high- and low-pressure interrogation conditions—was no response (34.5%). Across both confession conditions, only 18% of participants suggested hiring a confession expert. Table 7 shows a breakdown of strategies by interrogation pressure:
In sum, for general trial strategy and confession-specific strategies, defense attorneys routinely failed to suggest using confession-specific interventions in court.
c. Perceptions of the Confession
Finally, participants in the confession conditions evaluated the interrogation of the defendant and his confession. First, participants indicated whether they thought the confession was voluntary or not voluntary. Overall, 84% of participants rated the defendant’s confession as not voluntary; more granularly, 78% of participants in the low-pressure condition and 90.9% of participants in the high-pressure condition said the confession was not-voluntary. This difference was not statistically significant.167 Evidence strength also did not affect voluntariness ratings.168 In sum, defense attorneys viewed confessions as not voluntary regardless of interrogation pressure or evidence strength.
Next, on a scale of 1 to 10 (1 = not at all, 10 = very), participants rated their confidence in their voluntariness rating. The two measures were then combined to create a scaled measure of voluntariness (‑10 = not voluntary, 10 = voluntary). Participants in the high-pressure condition (M = ‑7.20, SD = 4.30) were more confident that the confession was not voluntary than participants in the low-pressure condition (M = ‑4.76, SD = 5.85).169 Evidence strength did not affect scaled confidence ratings,170 nor was there an interrogation-pressure by evidence-strength interaction.171 In sum, although their dichotomous voluntary judgments did not differ, the more sensitive measure—scaled voluntary confidence—showed distinctions in voluntariness ratings.
Then, on a 1 to 10 scale (1 = not at all, 10 = very), participants evaluated the coerciveness of the interrogation. The high-pressure condition (M = 9.02, SD = 1.51) was rated as significantly more coercive than the low-pressure condition (M = 7.18, SD = 1.97, p < .001); the low-pressure condition was rated significantly more coercive than the denial condition (M = 4.56, SD = 2.02, p < .001).172 Evidence strength had no effect on coerciveness ratings,173 nor was there a significant interrogation-pressure by evidence-strength interaction174:
In sum, defense attorneys were able to accurately distinguish low- and high-pressure interrogations.
Finally, participants were asked to predict how likely jurors would be to rate the confession as voluntary and how likely jurors would be to believe the confession, both on 1-to-10 scales (1 = not at all, 10 = very). Regarding voluntariness, participants in the low-pressure condition (M = 6.56, SD = 2.23) predicted jurors would be more likely to say the confession was voluntary than participants in the high-pressure condition (M = 5.11, SD = 2.12).175 Evidence strength did not affect voluntariness predictions,176 nor was there a interrogation-pressure by evidence-strength interaction.177 Regarding believability, neither interrogation pressure,178 evidence strength,179 nor the interrogation-pressure by evidence-strength interaction180 affected participants’ predictions of jurors’ believing the confession. In sum, defense attorneys expected jurors to be equally likely to believe the defendants’ confession regardless of interrogation pressure or evidence strength.
VII. Conclusions
A. Summary of Results
In his 2012 article Why Confessions Trump Innocence, prominent confessions researcher Saul Kassin hypothesized that the presence of a confession may lead defense counsel to feel pessimistic, maybe even helpless, inadvertently reducing the quality of the defense provided to the defendant and increasing the rate of guilty pleas in confession cases.181 This hypothesis was based on anecdotal evidence and limited archival data. For example, an analysis of the first 273 DNA exonerations showed that false-confession cases were more likely to involve bad defense lawyering (9.09%) than non-confession cases (3.38%).182 Additionally, analysis of Innocence Project cases showed that false-confession cases were four times more likely to lead to a guilty plea than non-confession cases.183 The current studies sought to test these hypotheses empirically by examining defense attorneys’ knowledge of false-confessions issues and their trial strategies in potential false-confession cases.
Overall, results suggest that defense attorneys are more knowledgeable about false confessions than community members and that the presence of a confession does not increase their likelihood of trying to negotiate a plea bargain for their client. Results also showed that defense attorneys are aware of the power of confession evidence, predicting a lower chance of winning confession cases compared to the denial case. When asked about their trial strategies, however, the results painted a different picture. As far as their general trial strategy, even in the presence of a confession, defense attorneys reported being more likely to focus on the lack of evidence or lack of physical evidence; only approximately one-fourth of participants suggested they would try to discount the confession. Similarly, when asked specifically how they would address the confession, participants again said they would focus on the lack of evidence (42.5%) or simply did not answer the question (34.5%). Only 18% of participants suggested calling a confession expert. These results support initial findings from evaluations of attorneys’ strategies in eyewitness cases.184
B. Limitations
The current studies are limited in two ways. First, attorney participants were recruited via email, likely creating a response bias. Although we made no mention of interrogations and confessions in recruitment materials, the kinds of people who respond to email surveys are inherently different than those who do not.185 Thus, these studies should be replicated with a more representative sample of attorneys for generalizability. Second, in Study 2, the materials are brief and create an artificial situation in which participants were limited in their access to case information. It is well documented, however, that many attorneys have limited time with their clients before their first arraignment186 or only receive discovery from prosecutors a few days before trial.187 Nevertheless, replicating these studies by giving participants access to more extensive information is warranted. Given that this is the first study of defense attorneys’ decision-making in disputed-confession cases, we believe that, in spite of these limitations, the data make a valuable contribution to the literature.
C. Future Research
Unfortunately, we do not have data on why participants are more focused on a general lack of evidence than confession-specific interventions. Perhaps defense attorneys are concerned that focusing attention on the confession will make it harder for jurors to discount. Or, perhaps, defense attorneys are concerned that focusing attention on the confession will cause prosecutors to redouble their efforts to prove the confession is true. Future research should examine not only defense attorneys’ trial strategies in a variety of potential wrongful-conviction cases, but their motives behind their strategies. Additionally, future research should examine the effectiveness of these strategies (e.g., focusing on lack of evidence versus confession interventions, or both) to provide defense attorneys with evidence-based approaches to securing their innocent client’s acquittal. Research shows that the presence of a confession tends to lead to corroboration inflation (i.e., the tendency for a confession to make ambiguous evidence look more incriminating), thus it may be necessary for defense attorneys to focus on both the problems with the confession and the problems with the other evidence. Finally, because prosecutors hold the majority of the power in the criminal justice system, research should also examine prosecutors’ knowledge of confession issues and trial strategies in disputed-confession cases to better understand what factors affect their decisions to drop, plead, or try a disputed-confession case.
D. Recommendations for Practice
False confessions are a major contributing factor in wrongful-conviction cases. Consequently, researchers have devoted a significant amount of resources towards understanding why people confess to crimes they did not commit as well as why people so readily believe confessions, even when it is not logically appropriate to do so, such as when the crime-scene DNA does not match the confessor. The results of this body of research are clear: the standard police interrogation is inherently coercive, even for psychologically health adults, and, due to the persuasive power of confession evidence, once a suspect confesses, she is almost certain to be convicted. Psycho-legal researchers regularly proposed two safeguards to limit the number of false confessors wrongfully convicted: videotaping interrogations from beginning to end188 and using expert testimony in court.189 Early studies on the effectiveness of these safeguards are promising.190 Given the tremendous power that confession evidence has over triers of fact, however, more interventions are likely needed; hence our focus on attorneys’ knowledge of false confessions and trial strategies in disputed-confession cases. Attorneys are the key intervening step between confession and conviction; thus, it is crucial that we increase efforts to educate both defense attorneys and prosecutors about key interrogation and confession issues. Moreover, it is paramount for psychologists and criminal attorneys to come together to create evidence-based practices for reducing wrongful convictions191 by testing the effectiveness of key confession interventions in pre-trial hearings and at trial. Finally, one reason why research on attorney decision-making lags behinds research on jury decision-making is difficulty in recruiting attorney participants relative to community participants.192 Thus, is it also import that psycho-legal researchers and practicing attorneys work together to not only identify key research questions regarding attorney decision-making, but also identify strategies for obtaining attorney participants.