“Investigations vs. Confessions”

Per the text, approximately 81% of suspects in criminal cases waive their Miranda rights. Discuss two (2) factors that contribute to the low number of suspects who exercise their Miranda rights. Take a position on whether or not it is ethical for investigating officers to attempt to obtain a waiver of Miranda rights. What is your rationale?
Review the factors listed in Box 6.4 “The Innocence Project” in Chapter 6 of your textbook that contribute to a false confession during a police interrogation. Research a police department (maybe one in your area) and state one method they use to lessen the instances of false confessions. Remember to consider the factors stated by the Innocence Project.


Chapter 6


In this chapter, you will become familiar with:

The rights of individuals when arrested and subjected to interrogation Strategies police use to elicit confessions The reasons people confess to crimes The frequency of false confessions

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A confession is perhaps the most compelling evidence that can be pre- sented in a criminal trial. A confession, even when subsequently retracted, can infl uence jury verdicts (Kassin & Sukel, 1997). Most jurors view con- fessions as accurate accounts of a defendant ’ s culpability. Indeed, it is likely that the majority of confessions are valid, in that the suspect actually committed a criminal act. However, it is sometimes the case that confes- sions are false. In these cases, a suspect confesses to a crime he or she did not actually commit. In this chapter, we consider the factors that can lead to a false confession.

In order to understand the factors that can contribute to a false confession, one must distinguish between personal and situational risk factors (Kassin & Gudjonsson, 2004). Some individuals are more susceptible to respond to interrogative coercion by being more compliant or more suggestible. Younger suspects, particularly adolescents, or individuals with mental health problems may be more vulnerable to interrogation tactics. Intelligence, drug or alcohol use, and stress are other personal risk factors that may increase the likelihood of a false confession. In contrast, situational risk factors involve the particular techniques used to extract the confession, the time of

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C o p y r i g h t 2 0 1 0 . W i l e y .

A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .

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148 Police Investigations, Interrogations, and Confessions

day the interrogation was conducted, or the length of the interrogation. We review both personal and situational risk factors later in this chapter.

Most people believe that they would never falsely confess to a crime, so they cannot imagine that others would do so. People also tend to believe that confessions stem from individual rather than situational factors. This is known as a fundamental attribution error , which is the tendency to overemphasize dispositional or personality – based explanations for an indi- vidual ’ s behavior while minimizing situational or external causes (Ross, 1977). When applied to confession evidence, this suggests that jurors would interpret a confession as refl ecting the actual guilt of a defendant and discount the possibility of external causes, such as coercion.

Hugo Munsterberg, whose seminal book, On the Witness Stand , is dis- cussed in Chapter 1 of this text, was perhaps the fi rst psychologist to write about the false confession phenomenon. Munsterberg was convinced that a man who had been hanged for murder had falsely confessed to the crime. The press at the time heard of Munsterberg ’ s comments on this case and he became the target of news stories and editorials attacking his view. It is unknown whether this man had actually falsely confessed, but the notion that it is possible that people do falsely confess remained diffi cult to accept until a number of cases surfaced beginning in the 1960s showing that false confessions can and do occur.

Review of Legal Cases

Given the implications of a confession, it is not surprising that there is a considerable amount of case law and research that has addressed the issue of ensuring that a suspect ’ s rights are protected and that a confession is made voluntarily and without coercion. The landmark case of Miranda v. Arizona (1966) held that prior to interrogating a suspect, police must inform individuals of their legal rights. Ernesto Miranda was an indigent defendant who was arrested in Arizona on charges of kidnapping and rape. He was interrogated and signed a confession, and was ultimately found guilty of the charges. He did not have a lawyer present during interroga- tion nor was he asked if he wanted to have an attorney present. In a prior case, the U.S. Supreme Court in Escobedo v. Illinois (1964) recognized a suspect ’ s right to an attorney during police interrogation. In Miranda , the Supreme Court extended this ruling by requiring police to warn suspects prior to interrogation or questioning of several rights, including the right to remain silent, that anything they say can be used against them in a court of law, the right to the presence of an attorney, and the right to free counsel if they cannot afford the cost of an attorney. These warnings are viewed as strengthening an individual ’ s protection against self – incrimination during

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police interrogation. Miranda requires that an interrogation must cease if at any time prior to or during questioning a suspect states a wish to remain silent or to have an attorney present. Once an attorney is requested, the suspect must be given an opportunity to confer with the attorney and to have the attorney present during any subsequent questioning. Miranda ’ s conviction was overturned, but he was subsequently tried without the con- fession evidence. He was convicted and served 11 years in prison.

A suspect may waive his or her rights under Miranda , but this requires that the rights be waived “ voluntarily, knowingly and intelligently before interrogation can commence, otherwise the resulting confession will be inadmissible ” ( Miranda , p. 479), and further that “ any evidence that the accused was threatened, tricked or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive the privilege ” ( Miranda , p. 475). Miranda thus requires fi rst that a suspect understand the nature of the rights that are being waived, and second, that any waiver of those rights is made voluntarily. The Miranda decision has survived a number of challenges, including an attempt by Congress to overturn it, but it has been affi rmed in subsequent cases (see Dickerson v. United States , 2000).

It is perhaps surprising that only about one in fi ve suspects exercise their Miranda rights (Leo, 1996). Police estimate that 81% of suspects waive their rights. Given that interrogation is inherently a stressful and risky situ- ation, the exercise of the right to silence would make a good deal of sense as an avoidance response. So why do so many suspects waive their rights? Costanzo (2004) suggests several reasons, including the fact that detectives deemphasize Miranda warnings, innocent suspects want to show they have nothing to hide, and guilty suspects don ’ t want to appear uncooperative. Costanzo adds that many suspects may not fully appreciate they are waiving their rights. White (2003) writes that police may use a variety of coercive techniques that are questionably legal, but adds that these techniques are dif- fi cult to prove that they resulted in a nonvoluntary waiver of Miranda rights.

Kassin and Norwick (2004) conducted a laboratory experiment to under- stand why most people waive their rights. The study involved 72 participants who were guilty or innocent of a mock theft. Prior to their interrogation, they were given instructions to avoid going to trial or be acquitted at trial. The participants were confronted by either a neutral, sympathetic, or hostile male “ detective ” who sought a waiver of their Miranda rights. Overall, about 58% of all suspects waived their rights, but over 80% of the innocent suspects waived their rights. Kassin and Norwick noted that these participants had a “ na ï ve faith in the power of their own innocence to set them free ” (p. 218), and they conclude that “ Miranda warnings may not adequately protect from police authority the people who may need it most, those falsely accused of crimes they did not commit ” (p. 218).

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150 Police Investigations, Interrogations, and Confessions

The issue of appreciation of rights is central to a valid waiver. Grisso (1981) conceptualizes appreciation of the signifi cance of rights to com- prise three main parts:

One: Suspects must recognize the interrogative nature of police questioning. Two: Suspects must perceive the defense attorney as an advocate for them, and be willing to disclose confi dential information to him or…