“Everyone has a breaking point. Anyone can be convinced to confess, to lie. And it’s not only that they can but they do it at great risk to their future. It’s deeply fascinating and deeply troubling. The idea that someone would give a false confession is so counterintuitive, it fascinates me intellectually,” says Richard A. Leo, a Professor of Law and Psychology at University of San Francisco’s law school.
Leo is an expert on false confessions, police interrogation practices, psychological coercion, and the wrongful conviction of the innocent. He has written at least six books on these subjects and hundreds of articles and research papers.
“I always knew I was going to be a professor, but I didn’t want to be a kind of ‘professor academic.’ I wanted to develop an area of expertise, apply it in the real world, and bring the research into arenas where it can benefit real people.” He’s done far more than that. Just a few of the false confession cases he’s worked on include exonerees Earl Washington, as well as Jessie Misskelley, Jr., of the West Memphis 3, two of the Central Park jogger defendants, and the Norfolk 4.
Police-induced false confessions are a leading cause of wrongful conviction, according to Leo, but what’s most interesting is, “I don’t believe police maliciously set out to frame innocent people.” Instead, “They get invested in a particular theory. They strongly believe that person’s guilty and that overrides any exculpatory evidence.”
Leo studied the situation in Chicago, “the false conviction capital of the United States. It’s a huge, huge problem. Because they’re so convinced the person’s guilty, they’ll feed them details, psychologically coerce them. But the contamination (i.e., feeding the suspect non-public details that are not easily guessed by chance) is often inadvertent. They’re making a murderer. They’ll ask him several times how the victim was killed, he’s [the suspect] guessing, eventually they just tell him. They don’t realize they’re feeding those details. The contamination is often inadvertent, though egregious. It’s usually just a rush to judgment. But they can and need to do better.”
Compounding the problem is human nature. He says if a person is innocent, and the police ask him or her to come to the station house just to answer a few questions, they don’t think there’s a need to talk to their lawyer. They go in voluntarily, assuming they have the presumption of innocence. They aren’t expecting, or prepared for, the psychological coercion they’ll be subjected to. “A lot of people overestimate the strength of their personalities. And if your nature or personality is compliant, if you’re a people-pleaser or a doormat, what we call an ‘eggshell defendant,’ you’re even more vulnerable. If I hadn’t chosen this career, I think even I, like just about everyone else, could be made to give a false confession. We all have a breaking point.”
While Leo says he “isn’t sure” there’s a way to eliminate the problem, he believes that if there were mandatory electronic videotaping or recording of all interrogations for all crimes, you could put a “big dent” in the number of false confessions, wrongful convictions, and psychological coercion, and vastly improve police interrogation practices. Because, as it stands now, “Police have one version; defendants another. Invariably, the suspect says they threatened me, lied to me. The cops say we didn’t do any of that, he confessed. What was said and done that got the person to falsely confess? Where did these details come from? If you have mandatory electronic recording, the police can review it, but more importantly, prosecutors can review it. It means prosecutors won’t charge suspects just because they made a statement, but will be able to first evaluate what interrogations practices and pressures produced the statement.”
Tracking the number of false confessions would be another corrective. As it stands now, neither the government nor any criminal justice organizations keeps records on the number of interrogations that are conducted by law enforcement. So, “There’s no way to randomly sample them to get a rate at which police interrogate suspects or how often they lead to confessions, much less false confessions.
“I’d like to think the problem is getting better because when the older generation moves out of the criminal justice system — prosecutors who’ve been at it for 30 years — they’re being replaced by younger people who grew up in the 1990s and 2000s reading story after story about DNA exonerations, and people getting off death row. So, if you’re in your 60s, your formative years were in the 1960s and 1970s when everybody assumed false confessions didn’t occur. But the younger people have lived through a different era and were formed by different experiences.”
He says he’s noticed a change when he testifies in court. “In the 25 years I’ve been testifying and working on cases, there’s been a marked difference in prosecutors’ demeanor. They used to be condescending and angry, as if they had to destroy me. Now there’s more professionalism. They acknowledge my expertise in a way that doesn’t try to undermine me.”
