After a grueling interrogation during which 14-year-old Michael Crowe was isolated, deceived and manipulated every which way, he finally said something his accusers wanted to hear: "I think I did it."
But Michael didn't do it. He did not brutally stab and murder the sister he loved, as cops had accused him of doing. It was only after the cops got around to testing DNA evidence that they finally conceded they had gotten it all wrong.1
Coerced, involuntary and false confessions turn fair judicial process upside down and in the most extreme cases lead to wrongful conviction and grave injustice.
In this article, our California Criminal Defense Lawyers discuss the law and psychology behind coerced confessions in California. We have a unique perspective on the issue, having worked as police officers and prosecutors before switching sides to represent defendants.2
We know that not everyone who confesses is guilty and we understand the unscrupulous lengths to which some cops go to make a case. Most importantly, we know how to invoke this as a legal defense to keep false and coerced confession away from the jury.
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group for a consultation.
A coerced confession is an involuntary confession that comes from overbearing police conduct instead of a defendant's"rational intellect and free will."3
The incriminating statement is not a product of the suspect's free choice (whether motivated by a guilty conscience or something else). It is manipulated out of the suspect by police tactics ranging from outright physical abuse to insidious psychological gamesmanship designed to bully, intimidate, confuse, cajole and exhaust.4
Not all instances of coercion in California render a"false confession." Sometimes a suspect is coerced into admitting the truth. However, as we explain below, it's not uncommon for a suspect to"cop" to a crime he didn't commit just to placate his interrogators and stop the bullying. Tragically, this practice has led to many a wrongful conviction.
The 1936 case Brown v. Mississippi involved confessions secured through whippings and tree-hangings. The United States Supreme Court made clear that such horrific tactics are constitutionally prohibited:
It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.5
More recently, in a"classic case of coercion," the Ninth Circuit tossed statements made by a suspect after he'd been thrown to the ground by cops and repeatedly kicked in the stomach and groin. The officers in that case also threatened to kill the suspect.6
Because coercive police tactics take place behind closed doors, we may never know how many suspects continue to suffer physical abuse during interrogation.7
In order to constitute a constitutionally prohibited involuntary confession, there must be some form of coercive police conduct at play. But it need not be physical.8
Detectives schooled in the latest psychological interrogation techniques know that a suspect's will can be overborne by mental and emotional ploys like threats of harsher punishment and express or implied promises of leniency, just as a suspect's will can be"beaten into submission" with physical violence.9
Certain suspects - such as juveniles and those with cognitive or developmental disabilities - are particularly susceptible to underhanded psychological tricks.
Let's look at an example from a murder investigation:
Example: Eighteen-year-old Kenneth Ray Neal is taken to the police station in connection with the strangling death of an older man with whom Neal is temporarily staying. The two men met while Neal was living in a group home.
Neal comes from a neglectful and possibly abusive background. He did not finish high school and has relatively low intelligence. There is indication of possible sexual exploitation.
At the station, Detective Martin reads Neal his Miranda rights and Neal asks for a lawyer nine times.
Instead of getting him a lawyer, Detective Martin badgers and manipulates Neal - calling him a liar and threatening that if he does not cooperate the 'system is going to stick it to you as hard as they can.' Detective Martin also uses mental trickery, implying that Neal will get 'closer to home' if he cooperates.
Detective Martin purposely disregards Neal's Miranda rights as part of a strategy to get a statement to impeach Neal at trial.
When Neal doesn't confess, he's placed overnight in a solitary holding cell without food, drink or toilet facilities. He is not allowed access to family, friends or a lawyer.
The next day, in a misguided effort to get help and a letter to his mother, Neal confesses to Detective Martin. He is subsequently convicted of murder.
The California Supreme Court takes a look at what happened and reverses the conviction on the ground that Detective Martin unconstitutionally coerced the confession from Neal. Of particular concern to the court is Detective Martin's deliberate and repeated violation of Miranda safeguards; Neal's youth, lack of education and low intelligence; Detective Martin's use of threats and promises; and the isolation and deprivation of the overnight holding cell.10
Our legal system protects us from having involuntary or coerced confessions admitted against us at trial. Here are a few big-picture policy considerations behind the protection:
- Our criminal justice system is designed to get at truth through questioning and legal process, not brute force and inquisition.11
- Being coerced into giving a confession is anti-free will and demeans the dignity of the individual.12
- History shows us that we must keep an eye on power structures like law enforcement so they don't trample on the rights of the weakest and most vulnerable among us.13
- Police officers must follow the law like everyone else.14
- A confession is a uniquely powerful piece of evidence - particularly persuasive with jurors - so the system better get it right.15
Confessions (rather false or true) procured through overreaching police conduct deprive us of our right to due process of law and our right against self-incrimination. According to the California Supreme Court:
It is axiomatic that the use in a criminal prosecution of an involuntary confession constitutes a denial of due process of law under both the federal and state Constitutions.16
Involuntary confessions are prohibited by the federal constitution's Due Process Clause and by Article I, Section 15 of the California Constitution.
A coerced confession is inadmissible at trial even if it is true.17 The key concept is whether the confession was secured by coercive police conduct, not whether it is true or false confession.
Involuntary confessions are inadmissible for any purpose, whereas incriminating statements made under circumstances involving Miranda violations can be admitted to impeach the credibility of a defendant.
(A discussion of Miranda warnings and the way Miranda analysis overlaps with and differs from traditional voluntariness analysis is beyond the scope of this article. While these are distinct, if blurred, concepts, it bears noting that if a suspect waives his or her Miranda rights that suspect will likely have a more difficult time making an involuntariness claim.)18
In order for a confession to be admitted at trial, the prosecutor must prove by a preponderance of the evidence that it was voluntarily given.19
If an involuntary confession is erroneously admitted, the standard for reversal is harmless-error-beyond-a-reasonable-doubt (as opposed to reversible error per se).20
To determine whether a confession was voluntary or coerced, a court looks at the"totality of the circumstances" under which the confession was made.21
The court tries to figure out whether the confession was truly voluntary or whether it was the product of overbearing police behavior - whether cops simply went too far.
- did cops beat, physically harm or threaten to harm the suspect in an effort to get the confession?22
- did cops threaten the suspect with a harsher sentence or the death penalty?23
- did detectives threaten to arrest or jail the suspect's family members, or make threats regarding the welfare of the suspect's children?24
- did detectives make any express or implied promises of leniency or reduced sentence?25
- did cops repeatedly deny the suspect his/her right to counsel and to remain silent during the interrogation?26
- did officers isolate the suspect and/or wear the suspect down through deprivation of sleep, water, food and/or toilet facilities27
- was the interrogation unrelenting and unduly lengthy?28
- did detectives exploit a particular weakness of the suspect, such as his/her young age, low IQ and/or precarious mental and emotional state?29
So far we've talked about impermissible police interrogation techniques. Now let's discuss a few permissible ones.
As a society, we generally don't condone lying - whether during a legal process or in our personal and professional relationships.
Yet deception is allowed during a police interrogation so long as the subterfuge does not proximately result in a confession, tend to produce a false confession or constitute overbearing conduct within the larger scheme of things."Lies told by the police to a suspect under questioning can affect the voluntariness of an ensuing confession," the California Supreme Court explained in a 1998 death penalty case, "but they are not per se sufficient to make it involuntary."
In that case, cops falsely told the suspect that his fingerprints had been found on the victim.30
Here is another example:
Example: A murder is committed outside a fast-food restaurant early one morning. Police hone in on suspect Darious Mays, who denies involvement in the shooting. Mays requests a lie detector test.
Cops administer a fake polygraph test and prepare fake test results. When they show the results to Mays and tell him he failed the test, Mays changes his story and admits being present at the shooting.
The court decides that this trickery is not particularly coercive or shocking. The detectives had other information showing Mays' guilt (so the trickery did not induce a false confession) plus the subterfuge led to a mere change of story and not a wholesale confession.31
A detective is allowed to strongly urge a suspect to tell the truth and to point out benefits that would"flow naturally" from truthful conduct.
The cop can thus tell a suspect that it would"benefit" him to cooperate because the cop will"bring" those cooperating statements to the district attorney.32
Another deceptive tactic cops use is to"befriend" the suspect.
If you are a suspect being interrogated for a crime, do not deceive yourself that you are in any way a friend of the detective.
Interrogations are predator/prey situations arising out of the most tragic high-stakes circumstances - often when lives have been taken and a life is on the line. The interrogator is not there to have a friendly chat or to help you move past your troubles. The investigator is there to find your greatest weakness, exploit it, and hurl you to a system that is stacked against you.
If the cop tells you that you will"feel better" when you"unburden yourself," what the cop means is that he will feel better when he closes the case.
And while you are in the interrogation room, why not unambiguously exercise your Miranda rights to remain silent and have the benefit of counsel?33
In addition to philosophical concerns, there's a significant practical problem with coerced confessions. They are unreliable and lead to many wrongful convictions in the state of California.
It is a myth that innocent people never confess to crimes. According to one expert, there have been at least 300 proven false confessions in recent decades.34
Brandon Garrett's 2010 Stanford Law Review article focuses on the troubling phenomenon of"confession contamination," the process by which officers feed confession-content to suspects.
The study looked at 250 rape and murder cases that were later reversed after DNA testing proved the defendant was not the perpetrator after all. Forty-two of those defendants had given a false confession. Not only did the defendants say"I did it," most went on to give detailed descriptions of the crimes with information only the police or the perpetrator could know about.35
With results like these, it is clear that things can go seriously wrong during police interrogations.36
The"problems caused by police-induced false confessions are significant, recurrent, and deeply troubling," observed coerced confession experts Richard Leo and Richard Ofshe in 1998.37
Why would an innocent person ever falsely confess to a crime? We need only delve into psychology to find the answer to this perplexing question.
Turns out people are influenced and motivated to act by a number of factors. Some individuals are more susceptible to pressure than others and under certain circumstances people can even come to doubt what they know to be the truth.
That appears to be what happened during the heart-wrenching coercive interrogation of young Michael Crowe.
"'Psychological torture' is not an inapt description," the Ninth Circuit wrote about the conscience-shocking interrogation to which Michael was subjected.38
Three types of confessions
According to the experts, there are three types of false confessions. A voluntary false confession is prompted by a psychiatric disorder or an internally-driven motivation like a quest for notoriety or desire to protect someone else.
The more common compliant false confession might be given by someone who is vulnerable and finally tells the accuser whatever he or she wants to hear just to make the torment stop:
The interrogator's interpersonal style may also be a source of distress: he may be confrontational, insistent, demanding, overbearing, deceptive, hostile, and manipulative. His accusatorial techniques are also designed to induce distress by attacking the suspect's self-confidence, by not permitting him to assert his innocence, and by causing him to feel powerless and trapped. The interrogation may span hours, as often occurs with compliant false confessions, weakening a suspect's resistance, inducing fatigue, and heightening suggestibility. The combined effect of these multiple stressors may overwhelm the suspect's cognitive capacities such that he confesses simply to terminate what has become an intolerably stressful experience.39
Finally, in the case of a persuaded false confession, the suspect may actually come to doubt his or her own memory and become"temporarily persuaded that it is more likely than not that he committed the crime, despite having no memory of it."
You will not necessarily win your case, even if you were coerced into giving a confession. Not every judge sees an involuntary confession in the same way and the district attorney might still prosecute the case based on other evidence.
But you will greatly increase your odds of a successful outcome if you have a skilled attorney in your corner.
Our California Criminal Defense Lawyers are in a unique position to help, given our background in law enforcement and years of trying cases for both the prosecution and the defense in courthouses across California. We know the most effective ways to get the charges dismissed - or at least keep an unconstitutional confession (and evidence that flowed from it) from the jury.
We look forward to the day when coercive interrogations, false confessions and wrongful convictions are a thing of the past.
But until that time comes, our clients can take comfort in the realization that we've seen things from both sides. We know how to beat them at their own game.
Our California Criminal Defense Lawyers Can Help.
If you or a loved one is in need of help false confessions as a legal defense and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
You might also be interested in reading our related articles Police Misconduct and Civil Rights Violations, Prison and Jail Abuse in California, Tasers and Excessive Force, and Section 1983 Actions for Civil Rights Violations.
1Crowe v. County of San Diego (9th Cir. 2010) Case No. 05-55467 at 1572
2Our California Criminal Defense Lawyers have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
3Blackburn v. Alabama, 361 U.S. 199, 208 (1960)
4This article deals with confessions as opposed to admissions, but for"evidentiary purposes, the distinction between 'confession' and 'admission' has little practical significance."
5Brown v. Mississippi, 297 U.S. 278, 286 (1936)
6U.S. v. Jenkins, 938 F.2d 934, 940 (1991)
7Former California Supreme Court Justice Mosk weighed in on this issue in his dissenting opinion in People v. Cahill, infra, a case which scaled back coerced confession protection
8Colorado v. Connelly, 479 U.S. 157, 167 (1986)
9People v. Cahill, 5 Cal.4th 478, 485 (1993)
10People v. Neal, 31 Cal.4th 63, 84 (2003)
11Watts v. Indiana, 338 U.S. 49, 54 (1949)
12People v. Cahill, 5 Cal.4th 478, 608, supra
13Chambers v. Florida, 309 U.S. 227, 237 (1940)
14Collazo v. Estelle, 940 F.2d 411 (1991)
15People v. Cahill, 5 Cal.4th 478, 624, supra
16People v. Jimenez, 21 Cal.3d 595, 602 (1978)
17Rogers v. Richmond, 365 U.S. 534, 540 (1961)
18Dickerson v. United States, 530 U.S. 428, 444 (2000)
19People v. Markham, 49 Cal.3d 63 (1989)
20Arizona v. Fulminante, 499 U.S. 279, infra
21People v. Massie, 19 Cal.4th 550, 576 (1998)
22Brown v. Mississippi, 297 U.S. 278, supra; People v. Neal, 31 Cal.4th 63, supra; Arizona v. Fulminante, 499 U.S. 279 (1991)
23People v. McClary, 20 Cal.3d 218, 229 (1977)
24In re Shawn D., 20 Cal.App.4th 200, 213 (1993)
25People v. McClary, 20 Cal.3d 218, supra; In re Shawn D., 20 Cal.App.4th 200, supra.
26People v. Neal, 31 Cal.4th 63, supra.
27People v. Neal, 31 Cal.4th 63, supra.
28People v. Esqueda, 17 Cal.App.4th 1450, 1485 (1993)
29People v. Neal, 31 Cal.4th 63, supra; People v. Esqueda, 17 Cal.App.4th 1450, 1466, supra
30People v. Musselwhite, 17 Cal.4th 1216, 1240 (1998)
31People v. Mays, 174 Cal.App.4th 156, 229 (2009)
32People v. Ramos, 121 Cal.App.4th 1194, 1203 (2004)
33Berghuis v. Thomkins, 560 U.S. ____ (2010), slip op. at 17
34Richard Leo, False Confessions: Causes, Consequences, and Implications, 37 J. Am. Acad. Psychiatry Law 332 (2009).
35Brandon L. Garrett, The Substance of False Confessions, 62 Stan. Law Rev. 1051 (2010)
36See Leo, supra
37Richard A. Leo and Ricahrd J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. Crim. L. & Criminology 429, 430 (1997-98).
38Crowe v. County of San Diego, Case No. 05-55467, supra, at 1594.
39Richard Leo, False Confessions: Causes, Consequences, and Implications, supra.