The Psychology of False Confessions

Kaitlyn Gerber, 1L 

On November 11, Harvard ACS, alongside 1L Section 2, hosted Dr. Richard Leo, an expert in false confessions, police interrogations, coercion and wrongful convictions. Dr. Leo is currently the Hamill Family of Law and Psychology at the University of San Francisco Law School, and has advised or worked on hundreds of cases involving false confessions, including two of the Central Park joggers, and Jessie Misskelley, Jr. of the West Memphis Three. On Friday, his talk focused on a lesser-studied aspect of criminal justice: why would anyone confess to a crime he or she did not commit, and how do false confessions affect a subsequent trial?

Dr. Leo began with an overview of how false confessions are studied – a tricky concept, considering it may require mimicking coercive circumstances in a laboratory. He noted that some cases have multiple false confessions, where one person implicates another, who then also confesses falsely. In particular, he noted several aggregated studies which have confirmed that since 2004, over 200 confessions have been proven to have been false.

He noted that the consequences of a false confession in the criminal justice system are wide-ranging and dramatic: they cause police to close cases, defense attorneys to presume their client’s guilt, and judges to sentence more severely for the criminal’s failure to show remorse. Prosecutors, meanwhile, are more likely to set higher bail and impose higher charges, while jurors are more likely to convict (even when they know a confession is coerced). The law, he noted, almost never permits appeals based on innocence when the basis of that appeal is a coerced confession.

Knowing that many students would find it surprising (and perhaps counterintuitive) that people may falsely confess to crimes they did not commit, Dr. Leo then outlined his understanding of why people make false confessions. Specifically, he named three errors: misclassification, where police decide someone must be a guilty suspect despite a lack of evidence; coercion in a police interrogation, and contamination, when police feed suspects information not known to the public.

In particular, he noted that coercion usually proceeds when the police convince a suspect that he is caught, and that a confession is the only way out. Dr. Leo also noted that because American police are allowed to lie in interrogations, they often fabricate information (i.e., “we have it on video that you committed the crime”), leading a suspect to feel that he is trapped, and perhaps even convincing the suspect that they actually committed the crime.

Finally, he had several policy suggestions for improvement: namely, mandated electronic recording for police interrogations, as well as improved police training. He also thought there should be legal changes in probable cause requirements for interrogation, as well as regulations for the reliability of confessions evidence (note: with some humor, he acknowledged that most law professors disagree that this would be possible, but he thinks it would definitely help).

Ultimately, Dr. Leo’s talk provided an expert’s view on a problem that is often under-acknowledged in our justice system: the fact that sometimes, despite confessing to a crime and apparently knowing “insider” information, a person might actually be innocent.

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