Good cop–bad cop routine produces false positives

Prosecutors often bend the facts to secure convictions against defendants whose guilt they have a strong degree of faith in. But in the penultimate episode of the Netflix documentary “Making a Murderer,” Wisconsin’s Calumet County District Attorney Ken Kratz looks 12 jurors in the face and delivers a whopper of a lie to seal the fate of a 17-year-old homicide defendant.

“Innocent people do not plead guilty to murder,” Kratz says in closing arguments in the 2007 trial of Brendan Dassey. The defendant — who is mentally challenged — was accused of helping his uncle, Steven Avery, rape and murder 25-year-old photographer Teresa Halbach in 2005.

There was no physical or circumstantial evidence tying Dassey to the crime. Instead, the state’s case against him was based solely on a wobbly confession that unfolded over many hours of highly suggestive police interrogation. Videos shown at trial depict a visibly confused Dassey being spoon-fed morsels of information about Halbach’s murder that he’s clearly hearing for the first time. After each bite, he regurgitates the details back to the officers, who nod in approval as he digs his own grave. 

Exactly how many inmates are currently serving time based on false confessions is unknown. But it is now a well-established fact that innocent people do plead guilty to murder. Even the U.S. Supreme Court has acknowledged that there is “mounting empirical evidence” that “a frighteningly high percentage of people confess to crimes they never committed.”

More than a quarter of inmates wrongfully convicted but later exonerated made a false confession or incriminating statement, according to the Innocence Project, a nonprofit committed to exonerating wrongfully convicted people using DNA evidence. A new report finds that  a record 27 inmates exonerated in 2015 were convicted on the basis of false confessions. More than 80 percent of them falsely confessed to murder.

Yet juries are rarely swayed when defendants reassert their innocence, no matter how unlikely the original story appears. Dassey recanted his confession soon after making it, but he was found guilty of first-degree murder and sexual assault. He is now serving a long prison sentence and is not eligible for parole until 2048.

The majority of false confessions occur early in the interrogation period — sometimes before a suspect has been formally detained. They are frequently the function of a nebulous set of theories on the science of interrogation that emerged in the post-war period to replace strong-arm, third-degree methods of police questioning, which were falling out of public favor.

The architect of these theories was a former Chicago police officer, John Reid, and the system he developed — the Reid technique — is now the dominant interrogation method used by law enforcement professionals across the United States (including the investigators who questioned Dassey). In recent years it has come under intense scrutiny by experts who say it embodies a set of practices that have been proved unreliable by modern brain science.

The Reid technique didn’t gain national prominence until the 1970s, but it is informed by psychological principles that were popular in the late 1940s — a time when a frontal lobotomy was still an accepted form of treatment for depression and schizophrenics were placed into insulin-induced comas to ensure compliance.

The technique begins with investigators conducting a short behavior analysis to determine if a suspect is lying. This 30-to-40-minute interview is designed to provide “objective criteria to render an opinion about the suspect’s truthfulness,” according to the John E. Reid and Associates website.

The operative word here is “opinion.” The Reid technique instructs trainees to gauge certain behaviors — including a subject’s posture, level of confidence and how frequently he or she makes eye contact — to tell if a person is being truthful. In one interrogation scenario from the Reid training materials, “displays of etiquette,” such as asking permission to speak and the suggestion that a hypothetical thief be given a second chance by his employer are viewed as signs of deception.

In reality, there are no truly objective criteria for determining whether a person is telling the truth. However, Reid and Associates boasts that its trained interrogators can “correctly identify the truthfulness of a person 85 percent of the time.” This level of accuracy is contradicted by available research. Most studies show that a person’s ability to detect a lie is similar to a coin toss and that age and experience have little effect on that success rate. A 2001 study in The Psychology, Crime and Law journal involving 52 police officers found an average accuracy rate of only 50 percent. While three officers managed to detect a liar 80 percent of the time, three others had just 20 percent accuracy, and one test subject failed to distinguish truth from fiction in every test case.

Critics call the Reid technique guilt-presumptive because it begins from the premise that a suspect is lying and then sets about eliciting a confession. Interrogators are taught a nine-step process to accomplish this goal. Often described colloquially as the good cop, bad cop strategy, it largely involves police alternating between roles of advocate and adversary in an effort to coax a subject into admitting guilt.

Police may use an astounding level of trickery and deceit to achieve that goal. This includes lying about evidence and falsely claiming to have the cooperation of a co-defendant. 

Notably, while Reid’s instruction materials observe that in some cases “the probably innocent suspect turns out to be the guilty party,” they ignore the possibility that the opposite could be true. Questioners are instead told to use every effort to shut down a subject’s claims of innocence once an initial determination of guilt is made.

Cognitive scientists have demonstrated that these tactics increase the likelihood of false confessions, particularly when combined with promises of leniency in exchange for an admission of guilt. These risks are magnified with suspects such as Dassey who are juveniles or are mentally challenged.

Researchers have finally started to take action. In 2014 the American Psychological Association issued a position paper on the interrogation of criminal suspects. Its recommendations included a call on police to recognize the risks of using false evidence to obtain conviction and to videotape all interrogations of suspects. Fewer than half the states mandate videotaping of police interviews.

The association has lobbied for courts to allow defendants to call expert witnesses on false confessions. Most jurisdictions bar expert testimony on the subject because of the erroneous assumption that it offers nothing of empirical value to jurors.

Meanwhile, critics of current interrogation methods have called for a more reliable and collaborative method of interrogating suspects.

“Psychologists need to help police develop a set of techniques to catch criminals and leave innocent suspects unharmed,” psychologist Saul Kassin said in 2006. “We need to build a better mousetrap.”

The good news is we don’t need to start from scratch. Police in the United Kingdom, Norway and New Zealand all now use a nonaccusatory model of interrogation that grants suspects space to tell their stories uninterrupted and focuses on revealing inconsistencies through factual analysis rather than tricking them into admissions of guilt.

Under the preparation and planning, engage and explain, account, closure and evaluate method, developed in the U.K. in 1980s, investigators are prohibited from deceiving suspects during an interview. The Canadian police began using the system last year.

John E. Reid and Associates is outspoken in its defense of the Reid technique and attributes false confessions obtained using the model to police negligence. To its credit, the company has made an effort in recent years to identify and isolate factors that contribute to false admissions of guilt. 

But even if we ignore the science and take the company at its word, there is a strong case to be made for a better mousetrap. At best, the Reid technique’s broad parameters provide too many opportunities for police misconduct. At worst, its default presumption of guilt encourages it.

Admissions of guilt carry enormous weight in the courtroom. That weight is resting on a foundation that has been proved structurally unsound through nearly three-quarters of a century of science. It’s time to heed the call of leading psychologists and ensure that police are putting the discovery of truth before obtaining a conviction when they investigate crimes. The law may allow for police interrogators to run con jobs on suspects they are questioning, but that doesn’t mean they have to. 

As we move forward with reforming our criminal justice system, the federal government should begin incentivizing a transition to less coercive methods of police interrogation so that in the future, innocent people don’t plead guilty to crimes they didn’t commit.