Q: Dr. Welner, you recently presented before the New York State Justice Task Force subcommittee on false confessions, and have testified in many federal and state courts as well. Can you tell us about your background, and where your expertise in the area of false confessions comes from?
A: Nearly all of the folks who have been active in this area have been inspired by concern about wrongful convictions or an inherent suspicion of police interrogation procedure. My path has been quite different. I am customarily consulted on complex litigation, including frontier issues. These include plausible but unfounded insanity claims, elusive competency questions, the mitigation mirages presented to prosecutors, and inscrutable but legitimate psychiatric defenses and sentencing input for defense attorneys. The first false confession I ever saw was as a Bellevue Hospital corrections psychiatrist, and it wasn’t even the defense attorney who was suggesting a false confession, it was my own realization as the treating doctor of a man with a psychotic mixed bipolar mania. What a wild case! I later became acquainted with the polemics of Leo and Ofshe as publisher of The Forensic Echo, as we were covering higher court decisions and articles on emerging topics in the mental health literature.
In 2001, Jim Ronca from the Burlington County (NJ) Prosecutor’s Office asked me to give him a read on the state of the science for a planned Frye hearing in State vs. Free. Dr. Saul Kassin, one of the most visible writers on false confessions, had written an opinion on the defendant’s confession deeming it “probably unreliable,” and Ronca couldn’t persuade the trial judge to exclude his testimony. An appellate court, however, gave him the opportunity for a Daubert hearing. So I inhaled and inhabited the topic – and came to appreciate how shallow the scientific body was. I agreed to testify for Ronca, Kassin got excluded, and as the case was reported, I came to be sought ought by those confronting Ofshe, Leo, Gudjonsson and by defense attorneys as well.
At this point, I have been engaged from a variety of angles, from competency to waive Miranda to challenges of police misconduct, from civilian courts to the battlefield with al-Qaeda, involving both juveniles and adults.
Q: Do you feel that public perception of the False Confession phenomena is skewed?
A: No and yes. I don’t believe a jury from the general public truly appreciates that false confessions can happen unless that jury has been presented considerable physical and alibi evidence to suggest innocence. On the other hand, psychology opinion-shapers and most of the mainstream press have so much antagonism to the police in bigger cities and in college towns where academia misleads the next generation of study, that the mental health professional community’s mindset is definitely skewed. The Kool Aid is served.
Poor scientific methodology and an anti-police agenda among declared scholars in this novel area of scientific interest inflate perceptions of the prevalence of false confessions and presumptions about its causes. These include false representations by The Innocence Project that the proportion of false confessions in their 250 wrongful conviction cases is 25 percent when that percentage is in actuality approximately 10 percent. Some coterie of the police critics publish figures that include people who plead guilty to crimes they never committed and count them as false confessions; others include incriminating false third party statements as false confessions. Or, they double count number from multiple studies. In any case, the percentage of false confessions when compared to the millions of convictions nationwide, thought hard to quantify, is probably infinitesimal, as I will discuss more fully later.
Q: You’ve challenged the work of many of the experts that testify frequently in this area-can you tell us more about that?
A: That’s an interesting way to put it. Let me say that there is not really work by many experts, just a small amount of relevant research and theory that is regurgitated in updated academic publications and dressed up with irrelevant college student research and moldy social science dogma. But I have challenged assertions of published academics colleagues such as Gisli Gudjonsson, Saul Kassin, Richard Ofshe, and Richard Leo and the next generation of aspiring expert witnesses who have digested the propaganda that they publish in scientific journals without studying it critically. The assertions include claims that false confessions are "frequent," a "small but significant minority" of confessions, "the tip of the iceberg," and even more exaggerated than that.
The John Reid law enforcement training academy is another target of decidedly unscientific presumption. Testimony also invokes the ills of certain interrogation techniques without the scientific foundation to do so, and mental health professionals who haven’t spent so much as one day in police work pontificate about what police do and how they think. Some of the testimony is astonishing.
Studies of observed police interrogation, studies of interrogations in jurisdictions such as Salt Lake City, surveys of police officers, and the lack of history of false confessions elicited by correctional psychiatrists and more, demonstrate the rarity of false confessions though their exact incidence is unknown. Is it one in a million interrogations? One in ten million interrogations? One in ten thousand? We do not know. But false confessions are tragic enough. Embellishment does not serve justice and takes away from the credibility of a legitimate concern.
I have been involved in cases of undisputable false confessions and know the phenomenon with that intimacy. And, there have been other cases in which prosecutors called me and I asked not to be called as a witness after closer study. But the coterie of police critics who shriek about false confessions in epidemic language do present an array of points, some broad and others sly, that engender great distortion in the court. Limiting their overreach in Daubert and Frye hearings is a necessary gatekeeping.
Q: Is there any way to determine how frequently false confessions occur?
A: The available evidence from the above date points is that false confessions are rare. How rare is unclear. There is no evidence to demonstrate that false confessions are anything more than rare events. When they happen, however, they can have explosive impact on the local justice system, and ignoring the phenomenon when it happens has broader consequences to all involved.
Q: Are there factors that consistently make individuals more susceptible to false confessions?
A: Suggestibility and compliance, naivete about the criminal justice system, and memory distrust are risk factors for false confessions under circumstances in which police questioning exploits these weaknesses; mental retardation is also a risk factor because of its high incidence of greater suggestibility, compliance, naivete, and memory distrust.
The presence of a mental illness or personality disorder, age alone, and general cognitive difficulties, however, do not have support from any systematic research to reflect a risk. Experience in casework has taught me that a sixteen-year-old gang member or teenager seeped in a culture that distrusts police, or with exposure to those in the criminal justice system are less vulnerable than even adults who are trusting of police prestige and authority. Emphasizing age per se, without more, as a risk factor is disingenuous and unsupported by research.
That said, when an uninvolved person volunteers a statement incriminating himself or others, that false statement can be rolled into other interrogations to create false confessions from other suspects. Moreover, threats of the death penalty can prompt false confessions, as can interrogations that invoke false polygraph failures. Beware of these approaches if they have instigated confessions in your cases.
Q: What are some of the factors need to be taken into account when assessing a disputed confession?
A: Key are the influences to a suspect’s decision to change from denying a crime to admitting it, and then from admitting a crime to retracting that admission.
At some point a suspect no longer denies guilt. Ask yourself why? What were the influences within the interrogation that prompted the switch? They may not at all be influences to be ashamed of, and may be the byproduct of an excellent interrogation, whether friendly or aggressive. By the same token, unsavory qualities of interrogation may be embarrassing to the police authority, but if they were not instrumental in moving a suspect from denial to acceptance, they are not relevant to the psychiatric or legal question posed. Rather, they become stink bombs that distract.
Assessment of a disputed confession must also account for the tremendous incentive on any defendant to retract a confession after arrest. That pressure may originate from recognizing the impact of one’s confession versus the rest of the evidence, or from pressure from other inmates, one’s family, or one’s attorney. If we appreciate the authority of the police officer - even as an adversary - to elicit a confession, we as participants in justice cannot responsibly ignore that the authority of one's own attorney, especially because of the trusted relationship, can provoke a retraction of a perfectly legitimate confession.
Q: What are your suggestions to the Courts on how to properly evaluate the validity of a defendant’s confession?
A: If we want to identify coerced confessions, or false confessions, as well as frivolous complaints of police abuse, courts should require all parties to put their cards on the table and afford full transparency to the judge and the case record. I agree with police critics who feel interrogations should be videotaped; I would go even further and suggest that video cameras should be recording the suspect police interaction in police cars and in administrative areas of the police station. So much happens pre-camera and off-camera that evidence is the best cure for unscrupulous argument to fill in the ambiguity with a false narrative.
At the same time, court to compel defense attorneys who challenge confessions to produce for the court’s private review, the notes of attorneys’ discussions with the defendant about the circumstances of their decision to confess at the time that the court receives a defense motion to suppress the confession statements. A judge charged with decisions on the admissibility of a confession can review this evidence without self-incriminating disclosure to the prosecution and flag when a case needs closer attention vs. when a case is being derailed. But courts have to know how statements came to be retracted. It would save a lot of time and theater.
I also caution judges and lawmakers of the need to scrutinize confessions elicited by false claims of a failed polygraph, and false claims of statements by third parties and other suspects, as well as threats of the death penalty. On the other hand, there should be no discouragement of creative police interrogations that elicit true confessions because of the mere tenacity and cleverness of the interrogator. I do not, however, endorse a ban on the use of ploys of false evidence, such as the presentation of a seemingly full box of evidence against the defendant or other trickery. There should be no discouragement of creative police interrogations that elicit true confessions because of the mere tenacity and cleverness of interrogation.
It is one thing to outwit an elusive suspect. It is another to present that trick in such a way where he has no choice to confess – even if it is to confess falsely. If we are videotaping interviews in their entirety, we will have a full accounting of what went on in the interrogation room, exposing those interrogations in which vulnerabilities and police interrogation approaches yielded false confessions.
I also believe courts should respond to planned testimony on false confessions in the same way courts do to planned testimony by expert witnesses on legal insanity. For the latter, when a defendant puts one’s mental state at issue, the court affords both defense and prosecution the opportunity to interview and examine the defendant. Likewise, when expert witnesses are presented by defense to challenge the confession, both sides should have the opportunity to examine the suspect on the salient topic of his mental state and diagnosis at the time of his decision to confess - and to subsequently retract. Experts should probe to elicit a complete psychosocial background that encapsulates those risk factors that make the suspect more or less vulnerable. And just as mental health promotes videotaping for police interrogation, courts should mandate videotaping interviews by expert witnesses as a precondition to experts testifying at a disputed confession proceeding.
I challenge the New York Justice Task Force and legislatures in other states to act boldly, with concessions from police, prosecutors, and defense attorneys, to advance the law in preventing miscarriage of justice. This includes another key component of the issue, tort reform.
In my professional experience, police and prosecution agencies are reflexively defensive in the face of challenges to their interrogations and the fidelity of their evidence. Agencies and the involved persons fear the repercussions of civil litigation.
I am a firm believer that if honest disclosure were protected from civil liability except in extreme cases, and the piling on antagonistic media organs evolved into something more constructive, police officers, prosecutors, and even forensic scientists would be more willing to admit mistakes. Under such circumstances of tort reform, we would learn far more about why false confessions and miscarriages of justice occur. Were I to be a lawmaker or governor, I would be very much committed to tort reform for these and other broader benefits. Everyone wants justice; we may disagree how to get there, but we will only get there from accountability at each corner of the justice system.
