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How The Police Generate False Confessions, by James L. Trainum

Review of “How The Police Generate False Confessions,” by James L. Trainum

There is an old adage that confession is good for the soul. But what if the confession is false and the result of coercion and the stakes are your life? In his book, “How the Police Generate False Confessions: An Inside Look at the Interrogation Room“, James L. Trainum tells us just how that can happen. He follows the case of the Norfolk Four, and in particular the case of Danial Willams, throughout the book as he guides us through the investigative process that is commonly used by police and prosecutors in the US. The case was also featured in a Frontline documentary in 2010 called “Why Would Anyone Confess to a Crime They Didn’t Commit?”

The reason is because of the investigative techniques used in trying to close the case, which doesn’t necessarily mean solving the crime. Trainum is now a consultant but was a police officer and detective for many years and said that by using the techniques generally employed by police, he also caused a false confession. There is no standardized investigative method in the US. There may be training or it may be on the job or some combination. Typically you receive a lot more firearms training than you do investigative training. Court decisions and cultural changes have taken out the “third-degree”, though “enhanced interrogation” and torture still finds its way in at varying levels and has been reinforced in pop culture in television series such as 24 and Hawaii Five-O. It makes for marketable drama but is lousy for finding accurate information and evidence. Shane O’Mara published his work, “Why Torture Doesn’t Work: The Neuroscience of Interrogation” last year that laid out the evidence. That can be a hard sell, though, with pop culture driving home the storyline that it does work and enables the “hero” to get to the bottom of the case in roughly 48 minutes of air time.

Trainum says that just as many police mourned the loss of the third-degree and felt it would make their jobs impossible, they felt the same after the Miranda ruling. Police quickly evolved to find creative ways to get around that decision, though, and again you can see that in books such as “Homicide: A Year on the Killing Streets” by David Simon (which is an excellent book) and pretty much any current police procedural program.

One source of training that Trainum discusses throughout the book is The Reid Insititue. Reid provides training on interviewing and interrogation. One problem that seems to typically occur in investigations is that the focus is on closing the case quickly which leads to investigators in good conscience making a quick decision as to guilt or innocence and moving from the interviewing and gathering evidence stage straight to the interrogation phase. The sole goal of the interrogation phase is to get a confession of guilt. Methods include lying to the person, sometimes procedurally questionable line ups, tag teaming during the interrogation so the questioners are fresh but the suspect is continually worn down, jail house snitches, deal making, and when the physical evidence doesn’t match the hypothesis of guilt, rather than looking for a different suspect who is the actual guilty one, the hypothesis is changed. That is what happened in the Norfolk Four case when the DNA did not match Williams. Rather than looking at another person (who had been named by a witness early on and who later was found to be the actual perpetrator), the police decided that there must have been accomplices. I suppose it is difficult for anyone to admit they may have been mistaken. People do get wedded to their theory. Years ago, I was trained to investigate client rights allegations of abuse, and one of the techniques taught was having the person be able to save face. It would be nice if investigators and prosecutors could admit they were wrong and have some way to save face. I also remember one person who was receiving the training had a big smile when he said substance abuse counselors would be great at these types of investigations. I thought of that as I read this book. I never felt comfortable with the old style denial busting heavy confrontation of traditional substance abuse counseling.   The person had to admit they were an addict, and confess that they had a problem. Otherwise they would never get better. Talk about a Catch-22. If you go along, you are labeled an addict. If you say you are not, you are in denial and the confrontation goes on. It is the same style here. Whether the allegation is true or not, sometimes people just get worn down and confess and are not always aware of the consequences.

Trainum does an excellent job of showing just what can go wrong with our current system. He even mentioned a case from Vermont in which a person confessed to murder and was condemned to death even though a body was not found. Fortunately, the person supposedly murdered was found alive before the execution. You can read about that case and other similar ones in “Wilkie Collins’s The Dead Alive: The Novel, The Case, and Wrongful Convictions “by Rob Warden of Northwestern’s Center on Wrongful Convictions. This book is also a worthwhile read and reviews many cases of wrongful convictions, including a death penalty case in Virginia in which the person was put to death – the case of Joseph O’Dell. A case was brought by the Roman Catholic Diocese of Richmond afterwards to re-examine the DNA evidence and the court ordered the evidence destroyed. According to Warden, the “prosecution argued that if the requested testing turned out to be exculpatory, ‘it would be shouted from the rooftops that the Commonwealth of Virginia executed an innocent man.'” Warden also mentions the case of Roger Coleman who was executed. When DNA testing had advanced enough to be able to tell whether the now executed man was innocent, the court did not allow the testing. Whether you agree with the death penalty or not, one thing that cannot be argued is that the dead who turn out to be innocent cannot be brought back from the grave, and the guilty are still out there. The death penalty is also a good tool to get a confession, including a false confession. “Do as we say and confess, and we let you live. Go to trial, and we will seek the death penalty. This is a time limited offer. Choose now.”

One technique often used is lying by the police and prosecutors to suspects in order to obtain a confession. Trainum points out that in the US, “we justify the use of lying to suspects by saying that they are on a ‘lower moral plain’ than the rest of us. This is a dangerous mentality that has been used to justify all sorts of abuses, including but not limited to the use of third-degree tactics. Lying not only increases the risk of false or unreliable confessions and statements, it damages the reputation of law enforcement in the eyes of the public.” So even before a person is charged, he or she is considered to be of a “lower moral plain.” With stereotyping and profiling, some people are automatically put into that category without having done anything. Perhaps those who like to point out that all lives matter could take into consideration that engrained cultural prejudices (conscious and unconscious) can produce situations in which some of our lives are treated as less than equal in mattering and as being worthy of justice. Some folks, whether because of race or gender or economic status or beliefs, are automatically classed as being in that “lower moral plain” because of history and culture and the time in which we live. Fortunately there is training to help counter unconscious biases in the use of force by officers. Hopefully training also includes addressing judgments and biases in the techniques of questioning and mitigating quick decisions on guilt. The justice system is not the only part of our culture with unconscious biases. We all have them. You can check out your own attitudes at Project Implicit. Project Implicit is a “non-profit organization and international collaboration between researchers who are interested in implicit social cognition – thoughts and feelings outside of conscious awareness and control. The goal of the organization is to educate the public about hidden biases and to provide a ‘virtual laboratory’ for collecting data on the Internet.” You can also examine your beliefs at Understanding Prejudice. You will become more informed by the information on the site.

Trainum’s goal is to see that the right people are convicted. That can be very difficult to do in highly charged emotional circumstances. We can be so repelled by the viciousness of a crime that we want justice and vengeance as soon as possible. Tunnel vision takes over.

Trainum does discuss a way of investigating that is very different than the US model. The investigative mindset in the UK is Assume nothing; Believe nothing; and Challenge everything. It is the UK model he recommends and which he describes using the acronym PEACE.

  • P – Planning and Preparation
  • E – Engage and Explain
  • A – Account Clarification and Challenge
  • C – Closure
  • E – Evaluation.

Trainum does of good job of explaining the model and the rationale for it. He provides US objections and the UK response to each of the parts. PEACE is a model of seeking the truth and of accountability. It is a model of critical thinking and evaluation. It has oversight and maintaining a trail of the investigation including videotaping of interviews. Investigators and prosecutors do not lie and manipulate. The oversight also allows investigators to change theories and save face. Our current model can not only contaminant the memories of the suspect but also of the witnesses. This model seeks to rectify that problem. A detailed outline of the model can be found here. All members of the criminal justice system that are looking to seek the truth in cases and find justice by arresting and prosecuting the correct perpetrator would do well to consider looking at Trainum’s arguments and his rationale for change. It would do us all good to read this book to see just how justice can work, or sometimes not work. Trainum opens the book with a scenario showing how easily a person can quickly become a suspect and almost immediately be subject to an interrogation with the sole purpose of getting a confession. As for the Norfolk Four, according to Trainum they are out of prison but have not been able to get a full pardon despite the evidence and the subsequent legal and ethical issues of the investigator who got the confessions. “One has been released from prison, having served his full term. The others are out, granted conditional parole by a governor who, though admitting the existence of the evidence pointing to their innocence, does not feel that he can grant a full exoneration because they ‘confessed.’ It is true – the power of a confession can trump all reason.” Trainum devotes chapter 12 of the book to recommended safeguards and reforms. His closing paragraph is powerful:

“Change and reform begins with you. As evidenced in the 2015 public responses to police shootings of unarmed African American men, the criminal justice system (and law enforcement agencies in particular) will respond to adverse public opinion. One good thing remains: As resistant as law enforcement agencies are to change, deep down, most individual investigators want to get it right. They need the right tools, the right training, and the right mindset. With your voice, and the reforms suggested in chapter 12, they can get it. Then we can all sleep better.”

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