Articles Posted in Confessions

I have used the title of a new paper by Prof. Richard Leo.

Of the 1,705 post-conviction DNA and non-DNA exonerations that have occurred from 1989 to the end of 2015, approximately 13 percent of these wrongful convictions were due to false confessions, and virtually all of these occurred in either homicide or rape cases. This chapter discusses why false confessions occur and discusses the ways that law enforcement training can be modified to avoid false confessions. False confessions primarily occur due to a lack of proper training, poor investigative practices, and the use of scientifically invalidated and/or high risk interrogation techniques and strategies. To safeguard against false confessions, the author argues that investigators should receive training on the following topics: 1) the existence, variety, causes and psychology of false confessions; 2) the indicia of reliable and unreliable statements and how to distinguish between them; 3) the need to obtain corroborating evidence to verify suspects’ confessions; and 4) avoidance of inadvertent contamination of interrogations by disclosure of non-public case facts to suspects.

Leo, Richard A., Interrogation and False Confessions in Rape Cases (December 2015). in Robert Hazelwood and Ann Burgess, eds., PRACTICAL ASPECTS OF RAPE INVESTIGATION: A MULTIDISCIPLINARY APPROACH (CRC Press, 5th ed., 2016 Forthcoming); Univ. of San Francisco Law Research Paper . Available at SSRN:

Some points for consideration when seeking to suppress a confession.  General risk factors include:

  • Length of the interrogation.
  • False Evidence. Social science research has shown that false evidence ploys are virtually always present in interrogations leading to false confession, and are substantially likely to increase the risk of eliciting false confessions from innocent suspects.
  • Minimization.
  • Threats and Promises.
  • Individuals who, by their nature and personality, are naive, excessively trusting of authority, highly suggestible and/or highly compliant and who are therefore predisposed to believe that they have no choice but to comply with the demands of authorities or who simply lack the psychological resources to resist the escalating pressures of accusatorial interrogation.
  • Contamination is the leakage or disclosure to a suspect of non-public case facts that are not likely guessed by chance.

I don’t often look at the Naval Justice School site, less robust than it used to be.  But today I did decide to see if there is a new issue of the Naval Law Review.  Sure enough, there’s an article of interest to military justice practitioners. You’ll have to scroll down to page 67, it’s not hyperlinked.

The notorious CDR (judge)(Art. 32 IO) Monahan has this piece.


The Shatzer Court held that a fourteen-day break in custody will end the Edwards presumption that police-initiated custodial interrogation after a suspect invoked his right to counsel is involuntary.  The Shatzer Court also held that when an interrogated suspect who is being held in incarceration due to a prior conviction is released back to the general prison population, this constitutes a break in custody with regard to the termination of the Edwards protection discussed above.  Together, the holdings of the Shatzer case should be applied to revise MRE 305(e)(3)(A), which sets forth the military rule for interrogation of an accused or suspect who requests counsel and who is in custody, could reasonably believe himself or herself to be in custody, or is otherwise deprived of his or her freedom in any way.

(Note: this is the military Vaughters Rule. United States v. Vaughters, 44 M.J. 377, 378 (C.A.A.F. 1996) (custodial interrogation may be reinitiated without counsel being present where a suspect is provided a meaningful opportunity to consult with counsel, and subsequently waives his right to counsel). Note further that in Vaughters CMA said a 19 day lapse was fine.)

In Berghuis v. Thompkins, the Supreme Court held that a suspect who has properly received and understood the Miranda warnings waives the right to remain silent by making an uncoerced statement to the police without invoking the Miranda rights.  Moreover, the Thompkins Court held that the police are not required to obtain a waiver from a suspect of his or her right to remain silent before commencing interrogation.  Applying the holdings of the Thompkins case, MRE 305(c)(4), that states the military rule concerning the exercise of the privilege against self-incrimination and the right to counsel, as well as MRE 305(e), that provides the military rule regarding an accused’s or suspect’s waiver of the rights provided under MRE 301 and MRE 305, should be revised.

Can a failure to file a pretrial motion equal ineffective assistance of counsel?  The BLUF is yes in some cases.  In some instances I have argued IAC on appeal for failing to make a meritorious motion.  The NMCCA has issued an interesting opinion in United States v. Spurling, in which they discuss this important issue.  The opinion appears to be an en banc one although not labeled as such – Sr. Judge Ward writes for a majority of five, with three dissenters in an opinion written by Judge King.  The issue of IAC for failure to raise a pretrial motion is neither novel nor rare.  Many of my appellate clients raise a question about why the defense counsel didn’t fil a particular motion.  I am about to file one in a case (citing United States v. Grostefon) where the client complains that the defense counsel did not file a motion to dismiss certain charges.  A more common issue is a motion to suppress, or speedy trial, or UCI.

  1. Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue:  [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
  2. Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”
  3. Both TDC acknowledge that it was not until after participating in a post-trial debrief with the military judge, who asked whether they had filed a suppression motion, that they recognized the issue.

So how is this admitted “failure” to be reviewed. The court states the standard as a need to show a reasonable probability the motion would be a success, and this must be a substantial chance, not a mere probability. United States v. Jameson, 65 M.J. 160 (C.A.A.F. 2007); United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001).  Without this finding, there is no IAC even if there is an error, because there is no prejudice.  However, the dissenters, expressed through Judge King would set aside the findings and sentence on the IAC issue. The court then goes into the ongoing issue of when is a person acting within a official capacity. Finding no substantial likelihood of success on the motion the court finds no harmful and prejudicial error.  There has been some discussion already on the requirement to advise a person of their Article 31, UCMJ, right to silence.

Expect to see Spurling at CAAF, potentially as a trailer.

Spurling wins something on the inappropriate sentence – a set aside of the BCD.

Do you have to raise every single motion?  No.

Do you have to raise every single motion the client asks you to?  No.

I wonder what the MJ would have done if the counsel had asked for a post-trial session to litigate the motion at that time, if for no other reason than to make a record for appeal?  We know the MJ can hold such a hearing.


Prosecutors ask CID, NCIS, OSI, CGIS agents all the time why they didn’t believe the accused in the interrogation.  The answer often is a variant of, “he was nervous.”

Yeah, right.

First they are told and usually escorted to the LE office.  The escort won’t tell them why or what’s going on.  They then have to wait the appropriate time in the waiting area to heighten the tension.  I was reminded of this by a post from fourth amendment blog.

Continuing defendant’s open container stop for a beer can because he was nervous was unreasonable. “[L]ights and sirens at three o’clock in the morning could make a saint nervous without shedding any light at all on whether there was alcohol in the can.” United States v. Hemingway, 2013 U.S. Dist. LEXIS 34517 (D. D.C. March 13, 2013).*

I think the same applies to law enforcement interrogations.  A blog starts out:

Talking with police officers is usually one of the more stressful encounters we have in our lives, and one that we typically avoid at all costs. Even when we’ve committed no crime, it can be nerve racking, but when we’re guilty it’s much worse.

Of course there are other “indicia” offered as to why they disbelieved the accused.  But, cautions those guru’s of interrogation (The Reid):

In conclusion, because laughter and humor relieve anxiety, it is common for both truthful and deceptive suspects to engage in these behaviors during an interview. The mere presence of laughter or attempted humor during an interview should not be considered a behavior symptom of deception.

The Reid also points out that:

Furthermore, when accused of wrong-doing, the tendency to deny opportunity, access, motive and propensity occurs within both innocent and guilty suspects.

You can read more about interrogations at The Reid.  Why is it valuable for a defense counsel to read The Reid.  Well of course it’s an aid in understanding how law enforcement may have coerced a confession, or got it wrong.  But, it’s also an invaluable guide in how you interview your own client and witnesses.  I’m not saying you become an investigator or accusatory toward your client or witnesses.  The idea of interrogation techniques is to get information.  I know law enforcement is only looking for the confession, but you have a broader purpose.

The Reid’s final caution today is:

Some research has attempted to identify specific cues associated uniquely with lying (nature of eye contact, micro tremors in the voice, unique facial expressions, etc.). These efforts have not produced accuracies much above chance levels. . . . Not all innocent or guilty suspects respond exactly the same way when questioned about a crime. . . .  In conclusion, many laboratory studies investigating the validity of behavior symptom analysis are flawed because they attempt to identify specific behaviors that reveal truth or deception; indeed, there are no behaviors unique to truth or deception.

Of course that leads to my favorite law enforcement response – confirmation bias.

Eyewitness Memory for People and Events (Chapter 25)

Gary L. Wells

Iowa State University, Department of Psychology

Elizabeth F. Loftus

University of California, Irvine – Department of Psychology and Social Behavior
January 16, 2013
Handbook of Psychology, Vol. 11, 2013, Forensic Psychology, Chapter 25, R.K. Otto and & I.B. Weiner (Eds), Hoboken, NJ: John Wiley & Sons, Inc.
UC Irvine School of Law Research Paper No. 2013-88

This chapter begins with a summary of the case of Thomas Brewster, who was tried for murder based in large part on eyewitness testimony. Ultimately DNA came to Brewster’s rescue, and he was freed before the trial ended. Analyses of taped interviews in the case help reveal how the interviewing process itself may have tainted the eyewitness testimony. The chapter continues with discussions of new psychological research on memory for complex events. This work shows how the details of events can be changed when witnesses are exposed to post-event information that is misleading. And with enough suggestion, entire events can be planted into the mind of ordinary healthy adults. The final section discusses new findings concerning eyewitness memory for people. This includes eyewitness identification of previously seen strangers, and new findings on procedures that can reduce mistaken identifications.

SCOTUSBlog has this of potential interest.

The petition of the day is:

New Mexico v. Herring

Issue:  Whether Berghuis v. Thompkins requires advice that a suspect has the right to stop talking at any time in order to establish an implied waiver of Miranda rights.

This case illustrates, again if anything did, the value of video and audio recorded interrogations.  Oooops.  I meant suspect interviews.  Interrogation is of course a loaded word, so investigators are cautioned to use the less accusatory and loaded terminology.  Just more of the psychology of getting confessions.