Un-Smelling the Skunk:
False Confession Experts and the
Fight to Change the Narrative
LAURA H. NIRIDER
CENTER ON WRONGFUL CONVICTIONS OF YOUTH
NORTHWESTERN UNIVERSITY SCHOOL OF LAW
3 7 5 E . C H I C A G O A V E . , 8 TH F L O O R
CHICAGO, IL 60611
(312) 503-8576
L-NIRIDER@LAW.NORTHWESTERN.EDU
The Power of Confession Evidence
Consequences of False Confessions:
 Confession evidence can corrupt other evidence.
 Further police investigation is often limited/nonexistent.
 Conviction has historically been all but guaranteed.
81% of false confessors whose cases went to trial
were wrongfully convicted.
“Triers of fact accord confessions such heavy weight
in their determinations that the introduction of a confession
makes the other aspects of a trial in court superfluous.”
--Colorado v. Connelly, 479 U.S. 157, 182 (1986)
False Confession = Skunk?
If you throw a skunk into the jury box,
you can't instruct the jury not to smell it.
-- Dunn v. U.S., 307 F.2d 883 (5th Cir. 1962)
How do you convince a factfinder
to “un-smell the skunk” –
how do you develop a persuasive claim of innocence –
after your client has confessed?
CONSIDER THE VALUE OF EXPERT TESTIMONY.
Two Types of Expertise Relevant to Confessions
“False Confessions”
Expert,
a.k.a.
Police Interrogations
Expert
Forensic
Psychologist
What Can a Forensic Psychologist Say?
Forensic Psychologist Evaluation

Did Defendant truly comprehend Miranda?


Is Defendant highly suggestive or compliant?


Administer Miranda comprehension tests
Administer Gudjonsson Suggestibility Scales
 Measures “shift” and “yield”
 Yield is the degree to which a person will simply agree with
leading questions.
 Shift involves a person slightly modifying their answers when
they see that the interrogator isn't pleased. Sometimes all it
takes is repeating the question multiple times.
Does Defendant suffer from a mental illness or disorder that
may make him or her more vulnerable to police interrogation
tactics?
What Can a Police Interrogation Expert Add ?
Educate factfinder on social science research regarding
police interrogation tactics
1.
2.
3.
Establish that false confessions can happen due to the
pressures of psychological interrogation
Examine the tactics used during this interrogation; ask
whether these tactics have been scientifically associated with
false confessions
Conduct a specific reliability analysis of Defendant’s
statement
Who is a Police Interrogation Expert?
Who should you consult?
 “False confession”/police interrogation expert


Social psychologist/criminologist who has studied or familiarized
himself/herself with research concerning the relationship between
police interrogation tactics and false confessions
Lawyer with special expertise
Consider “unusual” experts:
 Former Washington, D.C. homicide detective Jim
Trainum
 President of Reid & Associates Joseph Buckley
Professor Saul Kassin on False Confessions
http://www.youtube.com/watch?v=7jA9Q9vDYq4
First Contact:
What Should You Ask the Expert to Do?
 Your expert should never evaluate the ultimate issue,
i.e., a confession’s truth or falsity.
 She or he should only evaluate whether indicia of
unreliability exist.
 During your initial conversation, set out ground rules
regarding discovery and the production of written
notes/materials during the expert’s review
 Consider hiring the expert before the suppression
hearing to make the most of his or her opinion on
coercion
What Materials Should You Give the Expert?
What materials should you give an expert?
• Every police report, medical examiner’s report
• Results of forensic testing
• Every statement (transcript, video, audio, written)
• Transcripts from motion to suppress (if it’s already
happened)
• The expert should be informed of all incriminating
evidence
Should the expert interview your client?
Recorded confession versus unrecorded confession
The Expert’s Opinion
What is a Confession?
 Inculpatory statement
 Admission
 Confession with post-admission narrative
What is a False Confession?
 Physically impossible for defendant to have committed crime
 Forensic evidence proves the confession false
 No crime ever occurred
 True perpetrator is reliably identified
Many confessions are unreliable but not false.
The Expert’s Opinion
Known Incidence Rates of False Confessions
 Establish that false confessions happen

Currently 311 DNA exonerations; 20-25% of those convictions
were attributable to false confessions
 Cite to leading registries and studies for known
incidence rates


Drizin/Leo study of false confessions
Nat’l Registry of Exonerations (online)
 Some facts about incidence unknowable
The Expert’s Opinion
Types of False Confessions
 Voluntary


Occur without prompting or pressure by police
Example: John Mark Carr
 Compliant
 Occur when suspects are induced through police interrogation to confess
– while knowing that he or she is innocent – in order to escape the
stresses of interrogation, avoid punishment, or gain a promised/implied
reward
 Examples: Central Park Five, Dixmoor Five, Norfolk Four
 Internalized/Persuaded
 Occur when suspects who are told during interrogation that there is
incontrovertible evidence of their guilt come to believe that they
committed the crime in question, even though they do not remember
committing it
 Sometimes associated with use of polygraph or voice stress analyzer
 Example: Michael Crowe
The Expert’s Opinion
Three Errors That Lead to False Confessions
 Misclassification
 Coercion
 Contamination
Ways to Evaluate a Confession’s Reliability
 Fit test and contamination screen
 Hallmark of unreliable confession: Suspect unable to
identify correct detail about crime absent
contamination
The Expert’s Opinion
Psychologically Coercive Tactics
 Overview of interrogation techniques generally
 Overview of psychologically coercive inducements

Low-end inducements




Systemic inducements




Interpersonal or moral appeals that are used convince a suspect that he will feel
better if he confesses
“Confessing is the Christian thing to do,” “get it off your chest”
Rarely thought to lead to false confessions
Statements focusing the suspect’s attention on the processes and outcomes of the
criminal justice system, in order to get the suspect to conclude that the system will
process his case more favorably if he confesses
Police will “go to bat for you” in court or will write up his report in a favorable way
Some systemic inducements can be psychologically coercive (depending on
content, how explicit/vaguely stated it is, and content of message)
High-end inducements


Either explicit or implicit statements that directly communicate that a suspect will
receive leniency if his confesses, whereas noncompliance will lead to a harsher
punishment
Nearly all high-end inducements are psychologically coercive
The Expert’s Opinion
Application of the Above Concepts: The Expert’s
Analysis of Your Client’s Statement
 Identification and analysis of inducements
 Application of fit test/contamination screen (chart?)
 Remember, the expert should never conclude that a
confession is false – at most, if appropriate, the
expert should conclude that it is unreliable
 Include quotes, excerpts from interrogation to
illustrate points
 Include video clips where possible
Qualifying the Science: The Daubert Standard
Expert testimony will be admitted if:
 Scientific knowledge that will assist the trier of fact.
 First reliability must be assessed, then its relevance.
 Reliability:




Whether theory can and has been tested
Whether theory has been subjected to peer review/publication
Whether there is a known rate of error
Whether theory enjoys general acceptance within the relevant
scientific, technical, or other specialized community
***IMPORTANT: This is “not an exclusive list”; a trial court
might find other factors relevant. Further, “the Daubert
factors might not even be relevant in a given case.” Miller v.
Eldridge, 146 S.W.3d 909, 918-19 (2004)
Meeting the Daubert Factors
Whether theory can and has been tested:
Has the premise that psychological interrogation can induce
false confessions been tested? Yes, extensively.
• Tested via social science methodologies
• Surveys
• Interviews
• Empirical studies/observations (e.g. Drizin/Leo, Gross)
• Case studies
• Tested in lab studies
• Kassin/Kiechel alt-key study
• Russano cheating study: Minimization increased true
confessions by 35%, but the rate of false confessions tripled
• Convergent validity
Meeting the Daubert Factors
Whether theory has been subjected to peer review and
publication:
Yes, extensively:
• American Psychological Association White Paper (available
online)
• Consensus document of the American Psychology-Law
Society
• 1200-1500 members all received the document and
were invited to review; comments were incorporated
• Association for Psychological Science literature review
• American Psychological Association & Innocence Network
amicus briefs recite literature (available online)
Meeting the Daubert Factors
Whether theory has a known error rate:
Yes, but:
• Lab studies are guided by scientific principles, overseen by IRBs, etc. ,
to ensure scientific reliability. The studies often report an error rate.
• Real-life studies: Unaware of any studies of exonerations that
inadvertently included people who, in fact, were guilty.
• But: Error rate is a poor fit for a social scientific inquiry. This area of
specialized social science does not deal with hard numbers and
Newtonian science, like expert opinions regarding the delayed
reporting of sexual abuse.
Litigators should strive to limit Daubert inquiries into error rates. In the
context of this particular social science, it is a misplaced inquiry that can
cause the science to appear infirm when, in fact, it is not.
Meeting the Daubert Factors
Whether theory has been generally accepted in the scientific
community:
Yes, certainly:
• Most social scientists agree that false confessions happen and
that certain psychological interrogation tactics are risk factors
for false confessions.
• The A.P.A. White Paper is a perfect illustration of this.
• Do not let split appellate court opinions be construed against
acceptance. There are hundreds of cases in which experts
have been admitted in courts/states all over the country.
• Contact Drs. Ofshe, Leo, Kassin, Davis, etc. to see if they
have testified in your state
The APA White Paper
Police-Induced Confessions:
Risk Factors and Recommendations
(Kassin/Drizin/Grisso/Gudjonsson/Leo/Redlich; 2010)
Does a False Confession Expert
Assist the Trier of Fact?
Studies prove juror unfamiliarity with false confessions:
 Richard Leo & Brittany Liu, “What Do Potential Jurors Know About Police Interrogation
Techniques and False Confessions?” Behav. Sci. & the Law (Apr. 2009)
 Mark Costanzo, “Juror Beliefs About Police Interrogations, False Confessions, and Expert
Testimony,” Journal of Empirical Legal Studies (2010)
 Iris Blandon-Gitlin et al., “Jurors Believe Interrogation Tactics Are Not Likely to Elicit False
Confessions: Will Expert Witness Testimony Inform Them Otherwise?” Psych., Crime, & Law
(2009) [actual jurors]
 Linda Henkel, “A Survey of People’s Attitudes and Beliefs about False Confessions,” Behav.
Sci. & Law (2008)
 Danielle Chojnacki, “An Empirical Basis for the Admission of Expert Testimony on False
Confessions,” Ariz. St. Law J. (2007)

“[T]here is now [empirical] evidence that a significant proportion of jurors do generally assume
that suspects who confess to crimes are guilty.”
Public polling by D.C. and Missouri public defender offices reaffirms this conclusion.
Does a False Confession Expert
Assist the Trier of Fact?
Issues beyond the ken of most jurors:



Psychological interrogation tactics, not physical, are responsible for most
proven false confessions
Not only the mentally ill, young, or intellectually disabled falsely confess
Certain techniques may increase the risk of false confessions as
shown in actual cases of false confessions, laboratory studies, etc.


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Russano study: Important!
Most documented false confessions occur in murder cases
Confession evidence can corrupt other forms of evidence, including
supposedly objective science like fingerprint analysis
There are commonly accepted ways of assessing the reliability of
confession evidence that are shared by social scientists and law
enforcement experts alike
Prevalence and sources of contamination (38 of 40 first DNA exons)
Helpful Caselaw
U.S. v. Hall, 93 F.3d 1337 (7th Cir. 1996)
 Reversing a defendant’s conviction based on exclusion of false
confession expert testimony
 The testimony “would have let the jury know that a
phenomenon known as false confessions exists, how to
recognize it, and how to decide whether it fits the facts of the
case being tried”
 “It would have been up to the jury, of course, tod ecide how
much weight to attach to [the expert’s] theory, and to decide
whether they believed his explanation of Hall’s behavior or
the more commonplace explanation that the confession was
true. But the jury here may have been deprived of critical
information it should have had in evaluating Hall’s case.”
 Admitting expert under Daubert while recognizing poor
match between Daubert factors and social science
Helpful Caselaw
Caine v. Burge (N.D. Ill. 2013)
 Admitting expert under Daubert
 Excluding false confession experts “overlook[s] the
utility of valid social science,” notwithstanding the
awkward fit between social science and Daubert
 Many objections to the admission of the expert’s
testimony can be explored and challenged during
cross-examination
Not-So-Helpful (But Distinguishable) Caselaw
Tunstull v. Commonwealth, 337 S.W.3d 576, 588 (KY 2011)
 Affirmed trial court’s decision to deny funding for a false confession expert
where the defense theory was that the defendant falsely confessed to
robbery to protect his cousin, whom he loved like a brother.
 The trial court “explained that lying to cover for another person was not a
false confession of the type for which expert testimony was necessary, as
opposed to the types of situations where it is alleged, for example, that
police used interrogation techniques which overcame a person’s free will or
made him believe that he did something he did not do. The court explained
that it is the latter type situations that cause great concern to the court and
give rise to the need for an expert….”
 “We agree with the trial court that the jury was fully equipped to evaluate
Appellant’s claim, and that there was no reasonable and necessity for an
expert…There was no allegation in this case, that, for example, Appellant’s
confession was unreliable due to a mental condition, that his will had been
overcome, or that police made him believe he did something he did not do.”