Interrogated with Intellectual Disabilities: The Risks of False Confession.

• Author: Schatz, Samson J.
• Position: NOTE

False confessions happen. At least 245 people have been exonerated from convictions in cases featuring confessions that were simply not true. Confessions offer a narrative that allows law enforcement, and society in general, to neatly resolve cases with apparent clarity and closure. And yet the pressures officers place on suspects to provide that closure weigh disproportionately on the vulnerable, including individuals with intellectual disabilities. These individuals are disadvantaged at every step of the custodial interrogation, and they face heightened risks of falsely confessing. Moreover, the principal judicial safeguards against false confessions--assessing a suspect's Miranda waiver and determining whether a confession was voluntarily given within the bounds of the Fourteenth Amendment's Due Process Clause--provide little protection for the innocent with intellectual disabilities.

Few pieces of scholarship focus specifically on the heightened risks faced by individuals with intellectual disabilities throughout the process of police interrogation. This Note describes the various ways these individuals are disadvantaged. And it offers an additional data point illustrating the vulnerability of people with intellectual disabilities. This Note analyzes the 245 individuals (as of June 2, 2017) on the National Registry of Exonerations who have falsely confessed. Over one-quarter of them display indicia of intellectual disability. This percentage dwarfs the prevalence of people with intellectual disabilities in the general population and even exceeds most estimates of the proportion of the prison population suffering from intellectual disabilities. This Note concludes with several policy and doctrinal suggestions to better protect individuals with intellectual disabilities from the risks of false confession.

Table of Contents Introduction I. Confessions and False Confessions A. Confessions in the Criminal Justice System B. The Problem of False Confessions II. Intellectual Disabilities III. Interrogating Individuals with Intellectual Disabilities A. Within Custodial Interrogation 1. Recognizing the suspect's disability 2. Delivering the Miranda warnings 3. Conducting preadmission interrogation 4. Administering postadmission interrogation B. Existing Judicial Safeguards Against False Confessions 1. Review of the Miranda waiver 2. Review of the confession's voluntariness IV. Indicia of Intellectual Disability Among Exonerated False Confessors Conclusion Introduction

People falsely confess. It is a fact of the criminal justice system proved time and again. As of June 2, 2017, the National Registry of Exonerations (NRE) had identified 245 individuals exonerated from convictions in cases featuring false confessions. (1) These individuals served an average of twelve years for crimes they did not commit. (2) To the average juror--who cannot fathom an innocent person ever confessing to a crime (3)--these individuals may not be sympathetic. But though scholars have struggled to extrapolate an estimate of the frequency of false confessions in the general criminal justice system, there is a consensus that these 245 proven false confessions are "only the tip of a much larger iceberg." (4)

For individuals with intellectual disabilities, the risks of false confession are likely even greater. Police interrogation tactics, which are known to elicit false confessions from typical suspects, pose heightened risks for individuals with these disabilities. There are few safeguards for these vulnerable suspects in the confines of custodial interrogation. And the principal means of judicial oversight are inadequate to protect these suspects from wrongful conviction.

This Note sets out to accomplish several related tasks. It brings together strands of scholarship from various fields. Few works have focused specifically on the heightened risks facing individuals with intellectual disabilities in the context of police interrogations. This Note reviews the exhaustive literature on confessions, false confessions, and wrongful convictions and passes these insights through the lens of psychological scholarship on intellectual disabilities. In part, this Note follows the model set forth by Barry Feld in Kids, Cops, and Confessions: Inside the Interrogation Room, which brought similar strands of scholarship together to study the experiences of youths--another vulnerable group--in police interrogations. (5)

This Note identifies the heightened risks faced by individuals with intellectual disabilities at the various steps of a police interrogation. There are two critical stages: the custodial interrogation itself, where the false confession occurs and is developed; and the post-hoc judicial assessment of the interrogation and confession. These two stages can be further dissected into specific parts. The custodial interrogation consists of (1) the officer's first impression of a suspect; (2) the Miranda waiver; (3) the preadmission interrogation, in which the police employ various strategies to get a suspect to admit she "did it"; and (4) the postadmission development of a fluid narrative of guilt. The judicial assessment stage can also be divided between two separate constitutional doctrines: (1) the court determines whether the Miranda warning was properly given and the suspect's rights properly waived; and (2) the court analyzes whether the confession itself comports with the requirements of the Fourteenth Amendment's Due Process Clause. (6) At each step, both during and following the interrogation, individuals with intellectual disabilities are disadvantaged. They face heightened risks of falsely confessing and having those confessions used against them in court or during plea negotiations.

Having identified the particular stages throughout the interrogation process in which individuals with intellectual disabilities are especially vulnerable, this Note adds one further empirical measure of these risks. It works with one of the largest datasets of proven false confessors to date (7)--245 individuals from the NRE database. (8) With this compilation, this Note sets out to make two modest contributions. First, it looks at those who have falsely confessed in the NRE database and identifies individuals who demonstrate indicia of intellectual disability. This analysis reveals that individuals displaying characteristics linked to intellectual disabilities represent more than one-quarter (25.7%) of those who have falsely confessed. (9) This figure is larger than estimates of intellectual disabilities in the general population (1-3%) and even the prison population (anywhere from 4% to 19.5%). (10) Furthermore, this Note seeks to provide a rough methodology for identifying indicia of intellectual disability within the larger NRE database. Hopefully future papers will continue the project of identifying these indicia and determining the prevalence of intellectual disabilities in the larger population of exonerees.

Part I discusses the general role that confessions play in the criminal justice system. I briefly describe the types of false confessions and why they occur. Part II defines the terminology of intellectual disabilities and reviews why individuals with intellectual disabilities are particularly vulnerable to police interrogations. Part III examines how these characteristics expose those individuals to risks at each stage of the interrogation process. Part IV presents new evidence supporting the assertion that individuals with intellectual disabilities face heightened risks of falsely confessing. Finally, I conclude by surveying possible policy and legal reforms to address these problems.

1. Confessions and False Confessions

   1. Confessions in the Criminal Justice System

      Confessions are unique and powerful evidence. In his dissent in Colorado v. Connelly, Justice Brennan recognized that factfinders place "such heavy weight" on confessions "in their determinations that 'the introduction of a confession makes the other aspects of a trial in court superfluous, and the real trial, for all practical purposes, occurs when the confession is obtained.'" (11) Research has proved Justice Brennan's concerns valid. Actors in the criminal justice system--law enforcement officers, prosecutors, judges, jurors, and even defense attorneys--struggle to overcome the presumption that confessions are true and confessors guilty. (12) Suspects who confess are treated more harshly at every stage of the investigative and trial process. (13) The vigor with which police pursue confessions and the persuasiveness of confessions as evidence render false confessions extremely fateful errors.

      Admission of guilt can come in several flavors. When a suspect admits to all the elements of a crime, the admission constitutes a full confession. (14) When the suspect admits to some but not all elements of a crime (if, for example, he admits to being present during the crime but not participating in it), this is a partial admission. (15) Researchers estimate anywhere from 42% to 76% of suspects give some form of confession or admission. (16) And most admissions occur during custodial interrogations. (17)

      Most people assume that confessions, "by [their] very nature," are true. (18) The existence of a confession in a case tends to strongly bias the perceptions and factfinding of judges and juries. (19) Researchers have demonstrated that mock jurors find confession evidence more incriminating than other types of evidence. (20) And even when the jurors viewed the confessions as coerced, they nevertheless believed them to be true. (21) These studies indicate that to some extent, "[m]ost Americans simply accept confession evidence at face value." (22) Judges are no exception: They tend to presume that confessors are guilty, and they only rarely suppress confession evidence. (23)

      Even defense attorneys are affected by the confessions of their clients. For example, studies show that...