Confessions, even by innocent suspects, can be so powerful juries will convict a suspect even in the absence of any independent inculpatory evidence, York Professor Timothy Moore cautioned criminal lawyers at a recent Criminal Lawyers' Association meeting in Toronto. There are several problems with the justice system that put innocent people at risk of being convicted for a crime they never committed, says Moore, chair of the Department of Psychology at Glendon and a professor in the Department of Psychology’s graduate program in the Faculty of Health.
The problem begins when an innocent suspect is first brought to the police station for questioning. Many people believe their innocence will protect them, but research doesn’t back that up, says Moore. In one study in which mock suspects were used, 22 out of 47 innocent suspects waived their right to silence, while 25 exercised that right. But out of 46 guilty participants, only 10 waived their right to silence. Innocent suspects are more likely to think they can talk themselves out of trouble, says Moore. “Unrealistically, they anticipate that they will be able to explain to investigators the error of their ways.”
Left: Timothy Moore
Add to that the vague wording of Canada’s right to silence caution – “You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence.” The caution is worded in such a way that it could be interpreted as an invitation to talk, rather than a warning not to. Moreover, unlike a Miranda warning in the US, the Canadian caution does not explicitly state that anything the suspect says may be used against them in court. The suspect may assume, erroneously, that they have an opportunity to get an exculpatory statement on record. Moore believes that the caution should be modified.
“It is not well understood, especially by suspects with cognitive impairments or those whose first language is not English. The right to silence issue is a flashpoint of controversy right now in the legal system,” he says. It is definitely something Canadians should be worried about and it is different from the US version in several significant ways.
Contrary to US laws, in Canada the police do not have a legal duty to inform a detainee of their right to silence, the right to silence is not described as a “right” to suspects, detainees don’t have a right to have counsel present during questioning, and questioning does not have to stop following an assertion by the detainee of their right to silence.
The interrogation process that often follows the detention of an innocent suspect is also rife with potential problems and risks eliciting a false confession from an innocent person, and possibly contributing to a false conviction, says Moore. The police usually employ the Reid Technique when interrogating suspects – a psychologically manipulative and coercive device that relies on what Moore considers to be two dubious assumptions.
“It is assumed that innocent suspects can be distinguished from their guilty counterparts on the basis of an assortment of behavioural cues.” Using indicators such as facial expressions, eye contact, posture, hand gestures, particular phrases and the like, investigators are confident they can figure out who is lying and who is telling the truth. Uncooperative or guarded suspects can also be seen as guilty.
“Even your unemotionality can be construed as guilt,” says Moore. That can happen during the interrogation or later in front of a jury. “That’s what happened with Steven Truscott, charged with a schoolmate’s rape and murder. His affect was flat and some jurors thought an adolescent murderer should have been more emotive with his denials.” Truscott was found guilty. Forty-eight years later, the guilty verdict was overturned.
“The problem with this symptom analysis approach is that it doesn’t work,” says Moore. “The procedures that investigators use to sort out liars from the truth-tellers have no empirical foundation. The interviewers would be no less accurate if they simply flipped a coin.” There is no litmus test for deception. In one study, prison inmates were recruited to confess to their own crime as well as to that of a fellow inmate’s. College students and police used the videotaped sessions to decide who was telling the truth or not. “The overall accuracy rate did not exceed chance, but the police were more confident in their judgments,” says Moore.
The second false assumption inherent in the Reid Technique is that innocent suspects are impervious to the interrogation devices used. “There is no psychological reason to assume that they would be immune to them, and the numerous DNA-exonerated defendants who had confessed shows that they were clearly susceptible to these practices,” says Moore, who sits on a subcommittee of the Association in Defence of the Wrongly Convicted.
“The risks associated with the current practices are being exposed on a pretty regular basis. It’s not that the adversarial nature of current police interrogation practices don’t work, they do,” says Moore. “They may well extract genuine confessions from guilty parties, who would not otherwise have confessed, but there is a worrying risk they may be extracting guilty admissions from innocent people.”
Mock jury studies have shown that confessions are powerful. It is clear that people trust confessions and have difficulty disregarding them even when there are good reasons to do so. When mock jurors are made aware of the tactics used to extract a confession, for example psychological stress, fear or implied threats, they nevertheless find the confession compelling. “Most people believe that they would never confess to a crime they did not commit and jurors have trouble imagining the conditions under which anyone else would do so.”
“I think we’re a long way from changing the way the police interrogate suspects,” says Moore, although he remains hopeful. “The manner in which police lineups are now carried out has changed, partly because of psychology research conducted over the last couple of decades. The long-term prospects for psychological research to affect legal policies and procedures are promising.”
By Sandra McLean, YFile writer