Deception during Interrogation

Police Deception during Interrogation and Its Surprising Influence on Jurors’ Perceptions of Confession Evidence

Police deception raises important ethical and legal questions across a variety of constituents, particularly given several recent and highly publicized miscarriages of justice that resulted from false confessions, such as those involving Marty Tankleff, John Kogut, and the suspects in the Central Park Jogger cases (see Friedman, 2010; Innocence Project, 2010a; Hirschkorn, 2002, 2003, respectively). Inbau and colleagues (2001), authors of the Criminal Interrogations and Confessions manual, train police officers in the careful use of trickery and deception. In an additional volume, Jayne and Buckley (1999) go on to say "the use of trickery and deception is of paramount importance to the success of an interrogation" (p. 443).

The materials that follow review our recent study of jurors' perceptions and decisions in cases involving confessions and police deception during interrogation (Woody & Forrest, 2009) and provide additional updates from our ongoing research program. We briefly review the psychological and legal literature related to police deception in the form of false-evidence ploys, and then discuss our methodology and findings. We conclude with a series of concrete recommendations for litigators.

False-Evidence Ploys

One form of deception is the false-evidence ploy, a claim by police to have non-existent evidence that implicates the suspect (see Leo, 2008). A false-evidence ploy is a common police strategy, with 92% of over 630 police detectives from the United States and Canada reporting that they use false-evidence ploys during interrogation (Kassin, et al., 2007). Many forms of false-evidence ploys exist. Leo (2008) identified testimonial ploys (i.e., a claim to have eyewitness or video evidence), scientific ploys (i.e., a false claim to have DNA, footprint, or other scientific evidence), and demeanor ploys (i.e., a false claim that the suspect's behavior indicates guilt). False-evidence ploys raise particular concerns in the social science community because false-evidence ploys increase the likelihood of false confession in laboratory studies (see Kassin & Kiechel, 1996; Nash & Wade, 2009; Perillo & Kassin, 2010; Redlich & Goodman, 2003; Stewart, Woody, & Pulos, 2010) as well as within interrogations described in archival data (Gudjonsson, 2003; Leo & Ofshe, 1998). A recent review of the false confession literature concluded that false-evidence ploys "have been implicated in the vast majority of documented false confession cases" (Kassin et al., 2010, p. 12).

The U.S. Supreme Court has allowed confessions to be admitted to court after police use false-evidence ploys to induce suspects to confess (e.g., Frazier v. Cupp, 1969). Additionally, other courts have evaluated false-evidence ploys in several cases, and with some exceptions (discussed subsequently) courts ruled that the voluntariness of a confession was not compromised by the use of false-evidence ploys (see e.g., State v. Cobb, 1977 and State v. Jackson, 1983 for discussions of false-evidence ploys including fabricated fingerprints and fabricated bloodstains and eyewitnesses, respectively). Courts

1

have recognized limits, however, due to excessive coercion or due to the form of fabricated evidence. For example, in Lynum v. Illinois (1963) police deceived the suspect by telling her that if she did not confess she would lose government benefits as well as custody of her children; the U.S. Supreme Court rejected the suspect's confession. Additionally, if the fabricated evidence could be mistaken for real evidence by the media, appellate courts, or the trial court (e.g., by being printed on official letterhead), courts have ruled that the confession was inadmissible (see e.g.,  Florida v. Cayward, 1989). These rulings have led legal scholars to argue for a variety of positions related to police deception ranging from eliminating police deception outside of severe circumstances (e.g., Paris, 1997) to avoiding deception prior to Miranda (Mosteller, 2007), to leaving current limits unchanged (e.g., Magid, 2001), to increasing the rigor of the limits on police deception (e.g., Slobogin, 1997, 2007; Thomas, 2Depite the legal questions related to police deception, false-evidence ploys during interrogation are generally legal, and these ploys increase the likelihood of false confession. For any confession, if the suspect recants the confession and then goes to trial, the judge may hold a pre-trial hearing to determine whether the confession can be admitted into the courtroom (Kassin & Gudjonsson. 2004). If the judge admits the confession to trial, the next line of protection for the defendant is the jury.

Jurors, Confessions, and False-Evidence Ploys

How do jurors evaluate confession evidence, and how influential is a confession to jurors? According to Kassin and Neumann (1997), jurors rely on confession evidence more than other forms of evidence (italics added). Of greater concern is the finding that even if jurors rated a confession as less voluntary and believed that the confession did not affect their decisions, these jurors were still more likely to convict than jurors who did not read confession evidence (Kassin & Sukel, 1997). Additionally, since Arizona v. Fulminante (1991), jurors carry particular responsibility to evaluate confessions (see Woody, Forrest, & Stewart, in press, for a review). Prior to Arizona v. Fulminante (1991), courts "routinely" reversed convictions when a coerced confession was mistakenly admitted to the trial (Kassin & Sukel, 1997, p. 29; seeChapman et al. v. California, 1967). In Arizona v. Fulminante (1991), however, the U.S. Supreme Court ruled that the mistaken admission of a coerced confession into the trial could comprise a harmless error that does not increase the risk of mistaken conviction and is therefore subject to harmless error analysis. This ruling rests on the assumption that jurors can recognize and reject a coerced confession, even though empirical findings contradict this assumption (Kassin & Sukel, 1997; Kassin & Wrightsman, 1981).

Jurors' perceptions of and decisions about police deception are particularly important because of changes in interview and interrogation protocols across the country. More than ever before, police interrogations are likely to be video-recorded, audio-recorded, transcribed, or all three. Trickery and deception, once hidden within the secretive interrogation process, now becomes clearer, more likely to be viewed by judges and other observers, and more likely to be studied in detail by the jury. These changes taken together raise important concerns about how jurors understand and evaluate interrogation strategies and confession evidence.

2

Our primary research question is whether jurors decide cases differently when police use false-evidence ploys during interrogation. As triers of fact, jurors must evaluate confessions that judges admit into trials, and jurors must evaluate the veracity of a given confession as well as recognize and reject any coerced confession (Arizona v. Fulminante, 1991; see alsoLego v. Twomey, 1972).

Jurors, however, may not know much about police interrogation (Chojnacki, Cicchini & White, 2008; Leo & Liu, 2009) and may accept what Leo (2008) calls the myth of psychological interrogation, the belief that people will not falsely confess in the absence of mental illness, cognitive limitations, or torture (see also Loftus, 2004). Therefore, in a case involving a disputed confession, the defense may introduce an expert to discuss the possibility of false confession as well as other aspects of police interrogation with which jurors are unlikely to be familiar (see Jayne & Buckley, 1999; Kassin & Gudjonsson, 2004; Leo & Liu, 2009). Our secondary research question is whether an expert witness who informs jurors that false confessions happen and that false-evidence ploys raise important concerns regarding false confessions could affect jurors' perceptions and decisions.

Specific Research Questions

First, we examined whether jurors evaluate confession evidence differently as a function of whether the police used false-evidence ploys during the interrogation. We expected jurors to rate interrogations as more deceptive and more coercive when interrogators used false-evidence ploys, and in these conditions we also expected jurors to render fewer guilty verdicts, rate the defendant as less guilty, and recommend shorter sentences1. Second, we expected the presence of an expert witness to help jurors better understand the pressures of the interrogation process as well as the possibility of false confession; therefore, we expected the presence of an expert witness to increase ratings of deceptiveness and coerciveness and to decrease both conviction and sentencing rates. Third, we measured the deceptiveness and coerciveness of different false-evidence ploys. We hypothesized jurors would perceive scientific and testimonial ploys as more deceptive and coercive than demeanor ploys. Finally, we examined the extent to which jurors believe they, themselves, or others would falsely confess and then determined whether these beliefs predict verdicts and sentencing.

Overview of Method

All participants (N = 387) read a trial summary which established the following conditions: First, the murdered victim had been an associate of the defendant. Second, although police did not have any actual scientific, testimonial, or demeanor evidence against the defendant, the police initiated the interrogation. Third, the defendant confessed. We randomly assigned participants to one of two false-evidence ploy conditions (present or absent) and one of two expert conditions (present or absent). Participants in the ploy-present condition read an interrogation transcript that depicted a demeanor, testimonial, or scientific false-evidence ploy. The first author and colleagues developed the 15-page interrogation transcript from a 385 page transcript of an actual

3

interrogation (see Stastny et al., 2006). Participants then rendered verdicts with those participants convicting the defendant also recommending sentences. Jurors' instructions regarding the definition of the crime, the presumption of innocence, the definition of reasonable doubt, and sentencing guidelines conformed to Colorado law (Criminal Code, 18 CO. Rev. Stat. §§ 3-103, 2004; Criminal Code, 18 CO. Rev. Stat. §§ 1-402, 2004; Criminal Code, 18 CO. Rev. Stat. §§ 1.3-401, 2004, respectively). All participants answered a series of posttest questions regarding the degrees of deception and coercion involved in the interrogation techniques.

The Effects of False-Evidence Ploys

Not all participants correctly identified the false-evidence ploy or control condition in their interrogation transcript; therefore, the analyses described here included data from the 361 participants who correctly identified the false-evidence ploy in their version of the interrogation transcript. As expected, mock jurors reading interrogation transcripts including false-evidence ploys rated their interrogations as more coercive and more deceptive than did jurors who did not read about false-evidence ploys. There were nonsignificant trends such that participants who read a false-evidence ploy appeared slightly less likely to convict the defendant and rated his guilt slightly lower than did participants who did not read about a false-evidence ploy. False-evidence ploys did, however, influence jurors' recommended sentences. Compared to participants in the control condition, mock jurors exposed to false-evidence ploys recommended lighter sentences. Although jurors do not usually recommend sentences, this outcome suggests jurors viewed the defendant exposed to police deception as less deserving of punishment, even though the crime, the evidence, and the presence of the confession were identical across all conditions.

We found few differences between ploy types. Although participants rated scientific and testimonial ploys as more deceptive than demeanor ploys, ratings of coercion did not differ. Additionally, jurors recommended longer sentences for defendants who confessed after a demeanor false-evidence ploy. Jurors reading interrogation transcripts with demeanor false-evidence ploys rated their interrogations as less deceptive; it follows they would also recommend longer sentences for convicted suspects exposed to this interrogation technique.

The Effects of Expert Testimony

Regardless of false-evidence ploy condition, expert testimony influenced jurors' perceptions of confession evidence. Similar to courtroom expert testimony, participants assigned to the expert testimony condition read that false confessions occur and that scholars have particular concerns regarding false-evidence ploys and the potential for false confessions as well as general information concerning the three types of false- evidence ploys discussed previously. Although the expert testimony did not refer specifically to the current defendant, mock jurors exposed to the expert testimony convicted less often, considered their defendants less guilty, and rated their interrogations as more deceptive and coercive (see also Blandon-Gitlin, Sperry, & Leo, 2010). These

4

findings suggest that experts may influence trial outcomes in cases involving false- evidence ploys because many jurors perceive themselves as naive when it comes to police interrogation (Leo, 2001; 2008; Leo & Liu, 2009).

The Myth of Psychological Interrogation

Leo (2001; 2008) has suggested three reasons why jurors find false confessions difficult to understand in the absence of mental limitations or physical coercion. First, although few jurors understand the degree to which police interrogation is a manipulative form of persuasion, many acknowledge they know less than they should when asked to consider interrogation and confession evidence (Henkel, Coffman & Dailey, 2009). Second, observers find it hard to believe that suspects would go against their own self-interest by confessing to something they did not do (Henkel et al., 2009; Leo, 2008; Leo & Liu, 2009). Third, because those same observers "know" they would never falsely confess, they apply the same logic to their peers. Typically, college students and potential jurors state neither they nor others would falsely confess to crimes not committed (Leo, 2008; Sauer & Wilkens, 1999). Consistent with previous research, more of our participants suggested that false confessions were possible for others (87%) than for themselves (32%). In contrast with previous work, more participants in our study than in previous studies admitted that they could possibly confess to a crime they did not commit in the absence of physical coercion. In the study described here, these differences did not predict jurors' decisions. Our more recent and more thorough investigation of these questions, however, involved a larger sample of participants and demonstrated that a predictor of verdict and sentencing in similar trials is whether or not the juror believes others may falsely confess in the absence of coercion (Woody, et al., 2010). Jurors who believe that others may falsely confess are less likely to convict a confessing defendant than were jurors who do not believe that others may falsely confess. Whether or not the juror believes that he or she would falsely confess was also a significant but less powerful predictor, such that jurors who believe they may confess were less likely than other jurors to convict a confessing defendant (Woody et al., 2010).

Costs of False-Evidence Ploys

The false-evidence ploys result in primary and secondary costs to society. The obvious primary costs of false confession apply most directly to falsely-confessing and therefore mistakenly-convicted defendants, who may spend years or decades in prison for crimes they did not commit. For example, after his false confession Jeff Deskovic spent 16 years in prison for a 1989 sexual assault and homicide, despite the introduction into the trial of DNA evidence that did not implicate him (Innocence Project, 2010b). Only the admission of the actual perpetrator led to Deskovic's freedom. Another primary cost is to the community that faces risk from a perpetrator who remains free as law enforcement officers cease to search for the actual criminal after a suspect falsely confesses. Tragically, the perpetrator who committed the crime for which Deskovic was mistakenly convicted committed another murder in 1994, a murder that could have been prevented had the actual perpetrator been arrested and convicted in 1989 (Innocence Project, 2010b).

5

Secondary costs of false-evidence ploys affect society and the legal system in many ways. First, deception upsets the individual who has been deceived, and deceived suspects may respond with their own deception or even aggression (see Bok, 1999; Slobogin, 1997). Second, Skolnick and Leo (1992) argue that acceptance of police deception during interrogation may make it easier for police to lie in other situations such as in court, to judges, or to internal affairs investigators. Third, as noted previously, false evidence could appear real to media, trial judges, or appellate judges who could make errors based on the belief that the fabricated evidence is real (see Florida v. Cayward, 1989). Fourth, police deception may affect observers' views of the justice system as a whole as well as observers' views of the judges, attorneys, and police officers who accept and further legitimize police deception (Paris, 1997).

Recommendations

Our improved understanding of jurors' perceptions of and decisions about cases involving police deception during interrogation suggests a series of practical recommendations for litigators. What factors should attorneys consider when going to trial in the cases involving confessions and police deception during interrogation?

1.  Defense attorneys should attempt to introduce an expert witness in the area of false confessions to educate jurors about the little-known, manipulative, and potentially deceptive nature of police interrogation. Rather than focusing primarily on the defendant, we recommend that defense attorneys focus instead on how interrogation strategies in general and false-evidence ploys in particular have been shown to influence voluntariness and even elicit false confessions in laboratory studies and archival cases.

2.  If the interrogation includes police deception in general or false-evidence ploys in specific, defense attorneys should interview the police officers who interrogated the defendant. Defense attorneys should assess the extent to which these deceptive techniques are considered typical in that officer's working climate and the degree to which deception is involved, if at all, in the particular case.

3.  If audio or video evidence of the interrogation has not been suppressed and the interrogators used false-evidence ploys, defense attorneys should identify and discuss each ploy for the jury.

4.  In addition to explicit false-evidence ploys, as discussed in this paper, in which investigators explicitly claim to have nonexistent evidence, we also encourage defense attorneys to seriously evaluate implicit false-evidence ploys, called bait questions by Inbau et al. (2001) and Jayne and Buckley (1999). Inbau et al. (2001) state that an implicit false-evidence ploy "is nonaccusatory in nature but at the same time presents to the subject a plausible probability of the existence of some evidence implicating him in the crime" (p. 193). For example, if a suspect has denied that he or she was near the crime scene, an investigator might ask whether the suspect would appear on a hidden camera at the scene without directly claiming that such a recording exists or has been evaluated by

6

police. In an implicit false-evidence ploy there is not an explicit lie about evidence, and legal scholars and social scientists have only recently begun to examine these deceptive interrogation tactics (Gohara, 2006, Forrest, Woody & Hille, 2010; Perillo & Kassin, 2010). Explicit and implicit claims of evidence are legally distinct. For example, Inbau et al. (2001) and Jayne and Buckley (1999) extensively discuss and defend the legality of explicit false-evidence ploys, but neither examines the legality of implicit false-evidence ploys. Despite these distinctions, both explicit and implicit false-evidence ploys induce false confessions at similar rates (Perillo & Kassin, 2010), and jurors cannot distinguish between them (Forrest et al., 2010). In other words, even if investigators used a seemingly less deceptive implicit false-evidence ploy, defense attorneys should have the same concerns that they would have regarding an explicit false-evidence ploy.

5.  Prosecutors should advise police detectives about the potential trial outcomes that stem from deception during interrogation. Not only do false-evidence ploys increase the likelihood of false confessions in experimental studies as well as in the archival data, false-evidence ploys may also lead a jury to perceive the interrogation as more deceptive and coercive. Police deception only marginally decreased the likelihood of conviction in this study, but these changes in jurors' perceptions of deception and coercion raise important concerns. If police interrogators know that deception may reduce the chance of a conviction and lead to shorter sentences for confessing defendants, interrogators may choose to avoid deception during interrogation to reduce these risks. We have an ongoing study to evaluate whether judges are subject to these biases in sentencing.

6.  When appropriate, voir dire should include questions concerning false confessions and the degrees to which jurors see themselves and others as capable of making a false confession. As we found, jurors who believe that false confession is possible for others or for themselves are less likely to convict than are jurors who believe the myth of psychological interrogation (Woody et al., 2010).

7.  Although the study discussed here assessed jurors' perceptions and decisions, we recommend that judges use caution when deciding whether to admit disputed confessions into trial, particularly when a confession follows police deception. We raise these concerns here due to potential effects on jurors, but we strongly recommend that judges consider the experimental and archival evidence that demonstrates that false confession becomes more likely when interrogators use false-evidence ploys (Stewart, Woody, & Pulos, 2010).

Conclusions

Unfortunately, due to the limited effects of the presence of false-evidence ploys on verdicts, jurors do not provide a safety net that prevents false-evidence ploys and potential false confessions from leading to mistaken convictions. Despite the larger potential for false confessions in the presence of false-evidence ploys, jurors were only marginally less likely to convict a defendant who confessed after a false-evidence ploy. Our results suggest that jurors are not likely to act as effective gatekeepers who prevent

7

confessions in response to false-evidence ploys from increasing the likelihood of mistaken convictions.

Without a careful consideration of how false-evidence ploys influence suspects and decision-makers, convictions based on such techniques accompanied by long sentences become the worst deception of all. Despite judicial decisions that assume jurors can appropriately recognize and reject coerced confessions (e.g., Arizona v. Fulminante, 1991; Lego v. Twomey, 1972), jurors do not appear able to rise to these legal expectations. Beyond all of the previous recommendations, we argue that litigators should be aware of the limitations of jurors and of the disconnections between legal expectations and jurors' actual abilities. The myth of psychological interrogation remains powerful, and it can bring devastating consequences to a falsely confessing defendant. Beyond jurors, we recommend education for police investigators, particularly about the connections of false-evidence ploys and false confessions and about differences in jurors' perceptions of the interrogation as a function of false-evidence ploys. In court, assessment of the actual interrogation techniques including false-evidence ploys if relevant, inclusion of expert testimony related to interrogation techniques, and education for the jury provide the beginnings of additional safeguards. Across all of the findings in this study and in our ongoing research, we hope to provide litigators with additional tools to help jurors render more accurate decisions about trial defendants.

Krista D. Forrest, Ph.D.  is a Professor of Psychology at the University of Nebraska, Kearney. An award-winning teacher in the areas of General Psychology, Human Development, and Group Dynamics, she supervises several students in her Undergraduate Psychology and Law Lab. Current areas of research include prototypes for police interrogation, systematic investigation of interrogation techniques and their influence on confession, and jurors' evaluations of police interrogation and confession evidence.

William Douglas Woody, Ph.D.  is a Professor of Psychological Sciences at the University of Northern Colorado. He is an award-winning teacher of psychology who also serves as a research mentor for graduate students as well as advanced undergraduates. His primary research areas are in psychology and law, particularly jury decision making, interrogation, and confession, as well as the history of psychology and the teaching of psychology.

8