A Lesson in False Confessions
The Texas Criminal Justice Integrity Unit and a proposed Senate bill address the problem of false confessions
More than half of all known false confessions have been provided by "mentally normal" individuals, Leo told the unit, convened last year by Court of Criminal Appeals Judge Barbara Hervey as a means to address problems within the state's much-maligned criminal justice system. As such, Leo said, false confession is not a phenomenon driven primarily by personality; rather, the problem often follows from police interrogation practices.
There are three main types of false confession: voluntary confessions (which happen most often in high-profile cases such as the yogurt shop murders, where at least 50 people confessed to the crime); "compliant" confessions, where an individual knowingly provides a false confession as a way to avoid stress or a "coercive environment" (as was the case with Christopher Ochoa, who confessed to the infamous Pizza Hut murder of Nancy DePriest and spent years in jail before the real killer, Achim Josef Marino, came forward); and "persuaded false confessions," where an individual is led to believe, generally after hours of police interrogation, that he committed a crime. "I know this sounds crazy, but there are many documented DNA cases where this has happened," Leo said. And this is exactly what he says happened with Scott in the yogurt shop case: "I believe [this] with every bone in my body." (As it turns out, Leo has been tapped as an expert for Scott's defense team.)
Persuaded false confessions generally involve lengthy police interrogations that begin with a suspect continually denying involvement in a crime; police often confront the individual with false evidence (saying evidence exists that doesn't), and eventually, said Leo, the "suspect says: 'How can this be? I have no memory of this.'" And often police will hit on the "amnesia explanation" to bridge the chasm. (This is particularly effective with individuals who have had drug or alcohol problems, Leo said, people who know they could black out and not remember things they'd done.) "Michael Scott is a perfect example of this," Leo concluded.
There are generally three reasons that police obtain false confessions, Leo said. They "mistakenly" judge guilt in a person (either by body language or perceived "nervousness," for example), they behave coercively, and/or they make the "contamination error," by providing too much detail to a suspect, which is later parroted back and received as if it were revelatory.
But there are ways to reduce the incidence of false confession, Leo said. The best, he said, is to require police to record all interrogations. "Because it creates an objective, comprehensive, and reviewable record," Leo said. Currently 10 states require recording of police interrogations (some in all felony cases, some only in homicide cases); Texas does not require police to record, but some departments do – including Austin Police. (Much but importantly not all of Scott's confession was recorded.) The practice does not eliminate the issue, but it offers lawyers, judges, and jurors a way to identify potential problems. Dedicating resources to better police training also helps, as does changing rules so that when judges decide whether a confession should be admitted, they emphasize its "reliability" rather than whether or not it was "voluntary," he said. But recording is the most important reform: "It preserves the truth," said Leo. "And to the extent that we're concerned about the truth ... it's the way to go."
State Sen. Rodney Ellis, D-Houston, has filed a bill (Senate Bill 116) that would require police departments to record their interrogations; whether the measure will get any traction remains to be seen.