Psychological Police Interrogation Methods: Pseudoscience in the Interrogation Room Obscures Justice in the Courtroom

• Author: Major Peter Kageleiry, Jr.
• Pages: 04

MILITARY LAW REVIEW

Volume 193 Fall 2007

PSYCHOLOGICAL POLICE INTERROGATION METHODS: PSEUDOSCIENCE IN THE INTERROGATION ROOM

OBSCURES JUSTICE IN THE COURTROOM

MAJOR PETER KAGELEIRY, JR.*

Interrogation . . . takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation room.1

[I]nterrogations . . . must be conducted under conditions of privacy . . . . They also frequently require the use of psychological tactics and techniques that could well be classified as "unethical," if evaluated in terms of ordinary, everyday social behavior.2

1. Introduction

   Forty years after Miranda v. Arizona, there is still "a gap in our knowledge as to what in fact goes on in the interrogation room."3 Most people are unaware that police routinely employ unethical and "pseudoscientific"4 psychological interrogation methods in order to obtain confessions5 from criminal suspects.6 Most people, including many judges and lawyers, are also unaware that these interrogation methods obscure the search for justice in the courtroom.7 This article examines the modern psychological interrogation process that too often produces inaccurate, misleading, and even false admissions and confessions.8

   Thanks to the work of such groups as the Innocence Project,9 we now know that false confessions are a leading cause of wrongful convictions.10 False confessions were a significant contributing factor in more than twenty-five percent of the 208 wrongful convictions thus far uncovered by the Innocence Project.11 Furthermore, these and other proven false confessions represent "the mere tip of a much larger iceberg."12 Most wrongful convictions and a concomitant number of false confessions are never exposed.13 Even with growing evidence of the false confession problem, most people continue to believe that a person would never "confess" to a crime he did not commit.14 Expert assistance and expert testimony is therefore necessary to educate lawyers, judges, and panel members on the interrogation process and to

   explain the counter-intuitive notion that under certain circumstances, people do confess to crimes they did not commit.15

   The military justice system has traditionally looked upon the use of so-called false confession experts with skepticism.16 For example, in United States v. Bresnahan, a three-to-two majority of the United States Court of Appeals for the Armed Forces (CAAF) upheld a military judge's ruling that there was no necessity17 for expert assistance in that case.18 The military judge denied the defense request for expert assistance even after the defense counsel demonstrated that the interrogator had employed psychological interrogation methods against the accused.19

   The majority holding in Bresnahan arises from a stubborn skepticism toward the use of false confession experts20 and is an example of the need to inform judges of the pseudoscience underlying modern

   psychological interrogation methods and the unreliable courtroom evidence those methods produce.21

   The CAAF should adopt a more enlightened view of police interrogation methods.22 A more informed justice system would recognize the underlying necessity for expert assistance when law enforcement obtains a confession through the use of psychological interrogation methods.23 The CAAF majority should adopt a position similar to the "colorable showing" test suggested by the dissent in Bresnahan.24 Once the defense has made a "colorable showing" that police interrogators used psychological interrogation methods against an accused, the court should acknowledge the necessity for expert assistance and direct the Government to appoint the expert.25

   Section II of this article reviews the growing literature on proven false confessions and identifies an important role for experts in educating judges, lawyers, and panel members. In the past, skeptics have questioned the empirical basis for expert testimony in this area.26 The skeptics, however, can no longer ignore or dismiss the growing number of proven false confessions and the resulting wrongful convictions.27

   Recent studies of the false confession problem demonstrate that false confession theory is reliable and that expert assistance is often necessary to analyze and explain psychological interrogation methods.28

   Section III describes the pseudoscientific psychological interrogation methods routinely employed by police interrogators.29 Fred E. Inbau and John E. Reid were among the earliest and most influential proponents of psychological police interrogation methods.30 Inbau and Reid's colleagues at the Reid Institute31 continue to teach these interrogation methods and provide updates to their influential manual Criminal Interrogation and Confessions.32 Military law enforcement interrogators routinely employ the "pseudoscientific" psychological interrogation methods developed and promoted by Inbau and Reid.33 As explained in detail in Section III, these psychological methods often begin with an interrogator's erroneous prejudgment of guilt and too often result in the production of misleading, inaccurate, and even false admissions and confessions that obscure the search for justice in the courtroom.34

   Section III concludes by explaining how a more rational military justice system would encourage the use of expert consultants and expert witnesses to educate military judges, lawyers, and panel members on the pseudoscience underlying psychological interrogation methods.

2. False Confession: A Counter-intuitive Yet Undeniable Phenomenon

   As psychological methods of interrogation have evolved over the years, they have become increasingly sophisticated, relying on more subtle forms of manipulation, deception, and coercion. As a result, it is no longer as apparent how or why police interrogation techniques might lead the innocent to confess falsely- particularly to crimes that carry the possibility of lengthy

   prison sentences or execution. . . . Indeed, in the era of psychological interrogation, the phenomenon of false confession has become counter-intuitive.35

   "Intuition" leads most people to believe that a suspect would not confess to a crime he did not commit unless subjected to physical torture.36 Physical torture, however, is rare in the modern police interrogation room.37 Police interrogators have replaced "the third degree"38 with more "sophisticated" psychological interrogation methods.39 Even after these police reforms, however, false confessions have not disappeared and in fact are still a "leading cause" of wrongful conviction.40 Expert testimony is needed to bridge the gap between what uninformed "intuition" tells us about false confessions and the reality that psychological interrogation methods can and do cause people to confess falsely.41

   A. Evidence of False Confessions in the Age of Psychological Interrogation

   "Until recent years, false confessions . . . and, more generally, wrongful convictions were widely assumed by the legal profession and general public alike to be only regrettable anomalies in an otherwise well

   functioning criminal justice system."42 Recently, however, the false confession phenomenon has garnered much concern in the news media.43

   Undeniable evidence that wrongful convictions occur as a result of false confessions has emerged thanks to the work of such organizations as the Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University.44 Since 1992, the Innocence Project has exonerated 208 wrongfully convicted people after they had served many years in prison.45 These wrongful convictions were exposed "[a]s a result of technological advances in forensic DNA typing . . . ."46 False confessions were a significant contributing factor in more than twenty-five percent of those 208 wrongful convictions.47 In other words, in more than twenty-five percent of those 208 wrongful convictions, suspects confessed to serious crimes we now know with scientific certainty they did not commit.48

   In a significant number of cases, false confessions derail the search for justice.49 In 2004, Professors Steven A. Drizin and Richard A. Leo compiled and analyzed wrongful conviction studies: "These studies report

   that the number of false confessions range from 8-25% of the total of miscarriages of justice studied, thus establishing the problem of false confessions as a leading cause of the wrongful convictions of the innocent in America."50 Drizin and Leo's conclusions are consistent with the conclusions of other experts.51

   In 2005, in the most comprehensive single study of wrongful convictions thus far published, Professor Samuel R. Gross of the University of Michigan Law School led a group that examined 340 post-conviction exonerations from around the United States.52 The Gross study included only those cases in which the criminal justice system took official action to declare a person innocent after they had been convicted.53 In fifty-one, or fifteen percent, of these proven wrongful conviction cases, "the defendants confessed to crimes they had not

   committed."54 The skeptics can no longer deny that the false confession phenomenon is real and that it undermines the search for justice.55

   B. The Tip of the Iceberg

   The proven cases of wrongful conviction are "the mere tip of a much larger iceberg."56 Thomas P. Sullivan, former U.S. Attorney, explains:

   There is every reason to act. Courts recently have determined that a great many innocent persons have been sentenced to death. But for every case resulting in a death sentence, there are far many more defendants sentenced to prison for life or a term of years. Accordingly, we must face the likelihood that there are a vast number of persons now in our prisons who are innocent of the crimes for which they were convicted. The protections against conviction of the innocent adopted for capital cases ought to be implemented as well in all felony cases throughout the country.57

   The...