Photo by Bill Oxford on Unsplash
Katie Basalla, Associate Member, University of Cincinnati Law Review
I. Introduction
When someone confesses to a crime, especially a crime as serious as rape or murder, it may seem as if the case is closed. Why would someone confess to a horrendous act with such grave consequences if he did not actually do it? Shockingly, this happens more than one would think. The Innocence Project[1] indicated that 28% of its overturned wrongful convictions involve a false confession.[2] From an objective standpoint, it is reasonable to think that no rational person would confess to a crime he did not commit. However, a closer look at false confession cases reveals that certain factors and circumstances may lead an innocent person to confess.
The subjective factors relevant to false confession cases typically include the interrogation tactics used by the investigating officers. Many police officers across the country use deceptive interrogation techniques, such as the Reid Technique.[3] When put under intense pressures, an innocent project may confess to a crime. Studying interrogation tactics used in cases of false confessions can help to correct the errors in these tactics. Interrogation techniques should move away from the aggressive, deceptive nature of the Reid Technique, and move towards more reliable practices that focus on consistency and knowledge of the crime’s details.
II. Background
One of the most popular interrogation techniques in the United States is the Reid Technique.[4] This technique uses deceptive tactics and does not accept innocence as an answer.[5] The use of this technique in practice may pressure an innocent suspect to confess. This phenomenon can be seen by studying cases of false confessions. When studying the cases from a more subjective standpoint, it becomes clear that innocent people may confess under immense amounts of pressure. With this in mind, interrogation techniques should move away from intense, deceptive practices and towards more reliable practices that focus on consistency and knowledge of details.
A. The Reid Technique
The Reid Technique trains officers to get a confession from a suspect they believe is guilty, no matter the cost.[6]The nine-step process focuses on a presumption of guilt and uses deceptive tactics to achieve an admission of that guilt.[7] In the first step, the officer tells the suspect that he is absolutely certain of the suspect’s guilt.[8] The second step persuades the suspect into offering an excuse for committing the crime.[9] Steps three and four explain how the officer should reject the suspect’s denials or statements of innocence.[10]
Step five instructs the officer to keep the suspect psychologically engaged and step six teaches the officer how to keep the suspect from being passive.[11] Step seven is known as the alternative question, where the officer offers the suspect two characterizations of the crime.[12] If the suspect admits to the lesser reprehensible one, this can have the functional equivalent to an incriminating statement.[13] This is often where suspects will admit to the “better” alternative to stop the questioning.[14] Steps eight and nine obtain the legally sufficient confession.[15] Step eight instructs the officer to turn the oral confession into a “legally acceptable and substantiated confession that discloses the circumstances and details of the act.”[16] Step nine turns the oral confession into a written one.[17]
The notion that a confession equates to guilt is perpetuated by techniques like the Reid Technique. However, this notion is directly juxtaposed to the science and research regarding the matter. One of the main critiques of the Reid Technique is that it is “too powerful, i.e., [it] can break down the innocent as well as the guilty.”[18] This is because the purpose of the Reid Technique is to put a suspect in a situation where “confession appears to be the only means of escape.”[19] Although the Reid Technique is only performed on suspects that the officers first determined to be guilty after a Behavior Analysis Interview (BAI), officers are not always correct in this determination and this type of guilt determination has been seriously flawed by research.[20] Further, guilt is determined by a jury, not by a BAI. In fact, one of the most famous cases protecting suspects’ rights, Miranda v. Arizona, came about in a large aspect to protect suspects from the psychological coercion the Reid Technique is founded on.[21]
Of the 102 false confession cases the Innocence Project overturned with DNA evidence, that evidence led to the conviction of the true perpetrator 75% of the time.[22] What is more alarming is that these true perpetrators went on to commit “25 murders, 14 rapes, and 9 other violent crimes,”[23] all of which could have been avoided if they were caught the first time. These statistics highlight the weight DNA evidence should be given, even when the evidence seems to contradict a confession.
B. False Confession Cases
The flaws of the Reid Technique are most easily exhibited through case examples. One of the most famous false confession cases is the story of the Central Park Five. The story exhibits how the Reid Technique can be particularly troublesome when used against juveniles.[24] While the publicity surrounding Central Park Five case positively draws attention to the matter, this Article seeks to tell less-known stores.
In 1989, Kevin Bailey and Corey Batchelor were both 19-years old when they were incarcerated for the murder of Lula Mae Woods.[25] Chicago police obtained a confession from the two that implemented them in the murder.[26] But 28 years later, evidence, mostly DNA evidence, exonerated the two.[27] Bailey walked free after serving 28 years for a crime he did not commit; Batchelor, after 15 years.[28] This is all because two were coerced into confessing.
The interrogation lasted multiple hours and resorted to physical abuse to coerce the boys into confessing.[29] Batchelor was interrogated for more than 24 hours straight and ended up confessing after he was “choked, kicked and slammed against the wall by detectives.”[30] Bailey was interrogated for more than 12 hours and he confessed after a detective assaulted him and threatened him. When asked about the interrogations, Batchelor stated that it was “just the good cop, bad cop type of thing” and that he maintained his innocence until the interrogators threatened to kill him.[31] Then, he falsely confessed.[32] The confessions made by the teenagers were both inconsistent with each other and the details of the crime.[33] Nonetheless, these confessions alone convicted them to more than a decade behind bars.
Not every false confession goes to this extreme. Use of intense interrogation tactics can lead to false confessions even if they do not escalate to physical abuse. The story of Christopher Tapp illustrates how officers can use deceptive interrogation techniques to obtain a confession, even when the other physical evidence in a case may point elsewhere.
In 2017, Christopher Tapp was released from custody after serving 19 years for a rape and murder he confessed to, but did not commit.[34] Back in 1997, Tapp was originally interviewed when the police suspected his friend, Benjamin Hobbs, to have been involved in the crime.[35] Tapp originally stated that neither he nor his friends had anything to do with this crime.[36] However, the officers “falsely told Tapp that Hobbs had already placed Tapp at the crime scene, and that they could help Tapp if he cooperated.”[37] As the interviews went on, and the pressure by the officers increased, so did Tapp’s involvement in this case.[38] Tapp entered into an agreement with the prosecutors that if Tapp gave an honest account of the events, he would only be charged with aiding and abetting an aggravated battery.[39]
Officers then threw out the immunity agreement and attempted to pin this murder on Tapp, despite the fact that the DNA found at the crime scene did not match Tapp, Hobbs, or their third friend Sargis.[40] Before taking his fifth polygraph test, police told Tapp that he could get a lighter sentence if he explained that he acted in fear for this life (the alternate option of the Reid Technique).[41] During the polygraph, Tapp said that Hobbs murdered the victim, but he joined Hobbs in stabbing her, but only because Hobbs had threated to kill him.[42]
Tapp was charged with first-degree murder and rape. Hobbs was never charged with anything relating to this crime.[43] Although the interviews with Tapp were recorded, not all of them were presented at trial.[44] Specially, three of the seven recordings of Tapp’s polygraph videotapes that showed coercion and deception were not presented.[45] DNA testing of the semen found at the crime scene eventually linked a man named Brian Dripps to the crime.[46] Dripps eventually confessed to the crime and admitted that he acted alone and did not know Tapp.[47] Tapp’s conviction was fully vacated in 2019.[48]
C. Alternative Interrogation Techniques
As an attempt to limit the effect of false confessions, interrogations of felony suspects have become more routinely recorded and courts have allowed experts to testify about interrogations and confessions.[49] However, these fixes do not address the problems that lead to false confessions. Although the newest Reid Technique manual, published in 2011, addresses some of these growing concerns, the very heart of the Reid Technique facilities that notion that a confession equals guilt.[50] Rather than tweak the Reid Technique, interrogations should follow different techniques that focus on consistency and knowledge of details.
Alternative models of interrogations are out there, such as the PEACE model (Preparation and Planning; Engage and Explain; Account; Closure; and Evaluation) or the HIG model (High-Value Detainee Interrogation Group).[51] The PEACE model rejects the deceptive nature of the Reid Technique and relies on obtaining multiple stories from a suspect and finding the discrepancies.[52] The HIG technique is similar, but it focuses even more on the “cognitive load,” the notion that if a suspect is lying he will have more discrepancies in his story than a suspect who is telling the truth.[53] The heart of this type of interrogating is focused on asking open-ended questions and being an active listener.[54] The officers are trained to look for repetition of the suspect’s narrative and to only give information known to the officers with a “vague source and low specificity” as to open the door for the suspect to provide more details.[55]
These models focus on the officers building a rapport with the suspect and giving many opportunities for the suspect to give statements.[56] These techniques create an open dialogue and present the opportunity for officers to elicit multiple statements from a suspect and compare them to both each other and the objective facts of the case.[57] Research has shown that these types of interrogations are more effective at obtaining reliable confessions than the deceptive tactics used in Reid.[58]
III. Moving away from Reid
The abuse in the Batchelor/Bailey case is an extreme example, but it highlights the extremes that interrogators may go to obtain a confession. While not every false confession goes to this extreme, it shows that path that the Reid Technique opens. Fear. Intimidation. Flex of power. These doors allow for officers to push a person to his breaking point. Tapp’s story shows how these techniques can even break down a person without signs of physical abuse. While it might be easy to say that you would never confess to a crime you did not commit, the purpose behind the Reid Technique is to break the suspect down from his original, reasonable mindset. After hours of interrogation, often without food or sleep, a once rational person might lose all sense of reason. With no sign of a light at the end of the tunnel, a beaten down person may feel no choice but to just say what the officers want to hear to end it all.
While this is a serious issue, it does not change the fact that many guilty people are still hesitant to confess to a crime and officers need to be able to solve crimes. On its face, the Reid Technique seems like a sensible way to achieve this goal. If a person is unwilling to confess to a horrendous crime, why not make them? Adhering to the philosophy that an innocent person would not do such a thing, the appeal of the Reid Technique makes sense. However, now that it is clear that under certain circumstances, such as the ones created by the Reid Technique, an innocent person might confess, a new approach must be sought.
When available, DNA evidence should be given more weight than confessions. DNA evidence can be a direct link to a true perpetrator in a case, such as the Christopher Tapp case illustrates.[59] However, lack of DNA evidence does not mean that investigators are out of luck. Confessions can be reliable. But interrogators need to take affirmative steps to ensure the reliability of a confession. This can be done by moving away from intense investigation techniques, such as the Reid Technique, and towards techniques that focus on more reliable aspects. Interrogations should focus more on consistency and knowledge of the facts of the crime, as suggested by the HIG and the PEACE models.
IV. Conclusion
The ability of police officers to effectively conduct their jobs is crucial to the criminal justice process. The Reid Technique’s appeal, and the appeal of similar techniques, is clear to see. Following the logic of believing that only a guilty person would confess, it makes sense why putting immense amount of pressure on a person to confess would seem logical. However, as the cases of Batchelor/Bailey and Tap illustrate, innocent people do confess. This revelation undermines the reasoning behind techniques such as Reid. Thus, a new technique must be adopted.
Interrogation techniques such as the HIG or the PEACE models allow officers to obtain reliable confessions from suspects, while protecting against false confessions. Despite the rise of DNA evidence and expert testimony regarding wrongful confessions, humans still tend to believe that no innocent person would confess to a crime he did not commit. The hurdle of mitigating the effect of false confessions is too high. The focus should not be on the effects of a false confessions, but rather altering the process to stop creating false confessions to begin with.
[1] “The Innocence Project, founded in 1992 by Peter Neufeld and Barry Scheck at Cardozo School of Law (New York), exonerates the wrongly convicted through DNA testing and reforms the criminal justice system to prevent future injustice.” Innocence Project, https://www.innocenceproject.org/about/.
[2] DNA Exonerations in the United States, Innocence Project, https://www.innocenceproject.org/dna-exonerations-in-the-united-states/?gclid=CjwKCAjwp-X0BRAFEiwAheRui-SeMX2gmrrlD5643fS9OQh6Zae_FEkeiNNw7QCp_WhS1dPdTh2XiBoCBUEQAvD_BwE (last visited Apr. 18, 2020).
[3] See, Alan Hirsch, Going to the Source: The “New” Reid Method and False Confessions, 11 Ohio St. J. Crim. L. 803 (2014).
[4] Ariel Spierer, The Right to Remain a Child: The Impermissibility of the Reid Technique in Juvenile Interrogations, 92 N.Y.U.L. Rev. 1719, 1725 (2017).
[5] Id.
[6] Id. at 1720.
[7] Id. at 1727.
[8] Id. at 1728.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id. at 1729.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Alan Hirsch, supra note 3 at 805.
[19] Id. at 806.
[20] Spierer, supra note 4, at 1726-28.
[21] See Miranda v. Arizona, 384 U.S. 436, 457 (1966). “It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity.” Id.
[22] DNA Exonerations in the United States, supra note 2.
[23] Id.
[24] For more information, see Ken Burns, The Central Park Five, PBS (Nov. 23, 2012), https://www.pbs.org/kenburns/the-central-park-five. On April 19th, 1989, Raymond Santana, Kevin Richardson, Antron McCray, Yusef Salaam, and Korey Wise were part of a group of around 25 teenagers that were causing trouble in Central Park. The cops picked up some of the boys for “unlawful assembly” and called their families to come get them from the precinct. The boys were about to be let go when the police discovered a female body in the park that had been brutally raped and beaten. They immediately targeted this group of boys, between the ages of 14 and 16, as responsible. After hours of intense interrogation, five of them falsely confessed and were charged for the rape and attempted murder of the jogger. They were never considered innocent until 13 years later when Matias Reyes was found to be the true perpetrator. Id.
[25] Kevin Bailey, Innocence Project, https://www.innocenceproject.org/cases/kevin-bailey/ (last visited Apr. 18, 2020).
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Megan Crepeau, Charges dropped in 1989 murder investigated by Chicago cops tied to Jon Burge, The Chicago Tribune (Jan. 30, 2018), https://www.chicagotribune.com/news/breaking/ct-met-murder-charges-dropped-jon-burge-20180129-story.html.
[32] Id.
[33] Id.
[34] Christopher Tapp, Innocence Project, https://www.innocenceproject.org/cases/christopher-tapp/ (last visited Apr. 18, 2020).
[35] Id.
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] Id.
[44] Id.
[45] Id.
[46] Id.
[47] Id.
[48] Id.
[49] Hirsch, supra note 18, at 803.
[50] Id. at 804-05.
[51]Mark Godsey, Blind Injustice 205 (University of California Press 2017).
[52] Christopher Slobogin, Manipulation of Suspects and Unrecorded Questioning: After Fifty Years of Miranda Jurisprudence, Still Two (or Maybe Three) Burning Issues, 97 B.U.L. Rev. 1157, 1162 (2014).
[53] Id. at 1163.
[54] HIG Interrogation and Best Practice Report, fbi, (Aug. 26, 2016) https://www.fbi.gov/file-repository/hig-report-august-2016.pdf/view.
[55] Id.
[56] Godsey, supra note 51.
[57] Id.
[58] Id.
[59] Christopher Tapp, supra note 34.
