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Civil Liabilities Associated With False Confessions Nov - Dec 2009 (click here for normal version)

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Civil Liabilities Associated With False Confessions

Training in the field of interrogation teaches investigators not only how to conduct effective interrogations, but also the legal aspects of obtaining admissible confessions. Typically, when an investigator crosses the line and engages in illegal procedures during an interrogation, the consequence may be a suppressed confession. Investigators, however, need to be aware of another possible consequence, which is a substantial monetary award from a civil suit. Consider the following two recent cases:

Fox v. Will County: Fox was interrogated as a suspect in his daughter's murder and confessed. DNA later eliminated Fox as a suspect, therefore proving the confession to be false. During the civil suit, Fox claimed that his request for an attorney was ignored, that the investigator engaged in illegal interrogation tactics, including threats of harm and offering promises of leniency. The investigator denied engaging in these illegal tactics but, since the interrogation was not electronically recorded, there was no evidence to support his testimony. The jury found for the plaintiff and awarded Fox 15.5 million dollars. (The case is currently being appealed.)

Washington v. Virginia State Police: A mentally retarded suspect named Earl Washington confessed to rape and murder, was convicted and sentenced to death. While on death row he was exonerated through DNA and freed from prison. Washington's confession contained a number of crime details only the guilty person should have known. Partially because of this, the plaintiff argued that the interrogation was improperly conducted because the investigator must have provided Washington with these crime details. The jury awarded Washington 2.5 million dollars.

These cases are familiar to us because we testified at both trials - not on behalf of the law enforcement agency, but for the plaintiff who had filed the lawsuit. Furthermore, these are not isolated incidents. We are aware of several other ongoing lawsuits involving a known false confession obtained through alleged improper interrogation techniques. Over the last 20 years we have written about other successful lawsuits alleging illegal interrogation techniques, generally involving violation of a suspect's constitutional rights (interrogating after Miranda rights were invoked, failure to stop an interrogation after the suspect asked for an attorney, etc.)

Civil suits that are focused on the conduct of the investigators have been successful for two basic reasons. First, the plaintiff clearly suffered damages (a verified false confession contributed to a conviction and wrongful incarceration). Second, the investigator utilized interrogation techniques that were clearly illegal or known to increase the risk of a false confession. The illegal interrogation techniques cited are not minor infractions or obscure legal procedures. They address fundamental and well-established legal precedence that have applied to interrogations for many years.

These civil suits should serve as a wake-up call to law enforcement and government agencies to ask the question, "Are our investigators conducting legal interrogations?" The following is an overview of legal guidelines for conducting interrogations. If these basic procedures are not followed, the agency may be at risk for false confessions that could lead to a civil suit.

Suspects at Higher Risk for False Confessions (Additional caution must be exercised when interrogating these suspects)

Juveniles (suspects under the age of 15 especially when they have had little exposure to the criminal justice system)
Low Intelligence (A suspect with an IQ below 65 e.g., a 20-year-old suspect functioning at the level of a 13-year-old)
Mentally Impaired (Thought or perceptual disorders, severe depression or anxiety disorders)

Miranda Rights (The waiver must be knowing and voluntary)

The suspect must be truthfully advised of the issue under investigation
The suspect should not be significantly impaired as a result of alcohol or drugs
For suspects with lower intelligence or suspects who have a language barrier, document the suspect's understanding of each right by asking, "What does that mean to you?"

Coercion (A confession must be obtained in the absence of physical force)

The suspect cannot be subjected to physical pain or discomfort, e.g., slapped, punched, shaken, bright lights, extremely high or low temperatures, etc.

Compulsion (Specifically threatening the suspect with adverse consequences if he does not confess)

Threatening the suspect with physical harm
Threatening to place the suspect's children in foster care
Threatening to charge the suspect with a more serious crime
Threatening to discontinue public aid, deport suspect, etc.

Duress (Potentially creating an unbearable environment where the suspect's only escape is to confess.)

Interrogations lasting longer than four hours if the suspect is still maintaining his innocence.
Multiple interrogators conducting the interrogation, especially as a tag team.
Depriving the suspect of sleep, food, medications

Trickery and Deceit (The investigator's use of trickery and deceit cannot shock the conscience of the court or community)

The investigator cannot give the suspect false legal advice, "This is your last chance to tell the truth."
The investigator cannot create evidence against the suspect e.g., type up a fictitious crime lab report indicating the suspect's DNA was found at the crime scene.

Faulty Memory (A coerced-internalized confession occurs when the investigator convinces an innocent person that he must be guilty of committing a crime)

When interrogating a suspect who claims to have memory loss during the period of the crime (intoxication, amnesia, head trauma, etc.) the investigator:

Should not try to convince the suspect that he committed the crime
Should not lie to the suspect about having incriminating evidence
Should make certain the suspect's confession contains valid corroboration

Corroboration

Dependent: Information purposefully withheld from the suspect and the public. This is information only the guilty suspect should know and it is obviously improper to reveal dependent corroboration to a suspect during an interrogation.

Independent: Information not known until the confession that is later verified as true by the investigator. Once this information is learned it needs to be confirmed as true. If it does not check out, there may be a problem with the confession.

As acknowledged leaders in the field of interrogation, John Reid and Associates has done whatever we can to educate investigators on legal aspects of conducting interrogations. We address them during our seminars, we write about them in our textbooks and provide legal updates on our website. However, knowledge is useless unless it is applied. To avoid civil suits, the investigator must be certain the confession is trustworthy. The most certain means to accomplish this is through dependent and independent corroboration. Second, the investigator must not engage in any illegal interrogation procedures.

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Permission is hereby granted to those who wish to share or copy this article. In those instances, the following Credit Statement must be included "This Investigator Tip was developed by John E. Reid and Associates Inc. 800-255-5747 / www.reid.com." Inquiries regarding Investigator Tips should be directed to Janet Finnerty jfinnerty@reid.com.