August 5, 2020 • 38 mins
The truth lies somewhere in the middle.
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Speaker 1 (00:04):
If you will place your left hand on the Bible
and raise your right hand, and please repeat after me,
I do solemnly swear. Then titled action find the defendant
guilty of the crime. It makes no sense, it doesn't fit.
If it doesn't fit, you must equit. We all took
the same oath of office. We're all bound by that
(00:24):
common commitment to support and defend the Constitution, to bear
true faith and allegiance to the saying that you faithfully
discharge the duties of our office. Do you solemnly swear
or affirm that the testimony you are about to give
will be the truth, the whole truth, and nothing but
the truth. From Tenderfoot TV and I Heart Radio, this
is Sworn. I'm your host, Philip Holloway. One of the
(00:54):
first studies that we did where we planted an entirely
false memory is if I were talking to you, I
would say, Philip, I've talked to your mother, and your
mother told me some things that happened to you when
you were about six years old. I want to see
what you can remember about these childhood experiences. If you
don't remember, just tell me you don't, and then I
(01:15):
present you with three true memories things your mother really
told me did happen to you. And then this completely
made up experience about being lost in a shopping mall
and frightened, crying, ultimately rescued by an elderly person, and
reunited with the family. With a few suggestive interviews, we
(01:40):
got our research subjects about a quarter of them to
remember all are part of this completely made up experience.
And after we published that study, other investigators came along
and planned even more bison or and unusual false memories.
That you were attacked by an animal, that you nearly
drowned and had to be rescued by a lifeguard. That
(02:02):
you committed a crime as a teenager that was serious
enough that the police actually came. So these are some
of the things that people have been led to believe
even though they never actually happened. That was Dr Elizabeth Loftus,
(02:27):
a psychology professor at the University of California, Irvine. You
might remember her from our first episode on eyewitness testimony
and the Malleability of Memory. In this episode, we spoke
to her about implanted memories and the ways in which
police interrogations and interviews could cause a false confession, false
(02:47):
confessions are real, and they are a big problem in
the legal system. And I know a lot of people
can't imagine ever confessing to a crime they did not commit.
But it happens, and as we'll in this episode, there
are a lot of reasons for that, from questioning techniques
to problems with human memory that can cause someone to
(03:08):
admit to or to even fully remember something that they
did not do. Well. These false memories, they can be
very detailed and specific, and people will start to add
details and the color of clothing that people were wearing
or where location was. It really looks and feels like
(03:30):
a real recollection. Other times, what they develop is a
false belief. I'm pretty sure this happened, but I just
don't really have a strong memory of it happening. Both
of these things are possible. This is a study published
just a few years ago out of Canada. With the
power of suggestion. They convinced ordinary people that as a
(03:54):
teenager they committed a crime, and the police actually came
to investigate. These people are trying to figure this out,
and you know, if my mother told you this, it
must have happened. Did I plan for Fiti somewhere? And
what was I with my best friend when we did,
and they pretty much talked themselves into constructing something that
(04:14):
never happened. After the experiment is over, we tell them
what the experiment was all about, we might apologize for
using any deception with them, so presumably they don't continue
for ten years believing they really did it. I wanted
to ask Dr lawsus about how drugs and alcohol might
(04:36):
play a role in an implanted memory. Before an interrogation,
suspects are often asked whether or not they've taken mind
altering substances like drugs or alcohol in order to prevent
a false confection. But I know and fans of Up
and Vanished might know of at least one case here
in Georgia where this has allegedly come into play. Ryan Duke,
(04:59):
the defendant in the murder case involving Tera Grinstead, claims
that he was under the influence of morphine while making
incriminating statements to the police. Oh, that's that's certainly possible.
Especially if he were under the influence of alcohol. His
memory would be somewhat weak compared to begin with. It's
(05:20):
even easier to plant something in somebody's mind when the
memory is weak. To begin with either week to begin
with or week because the passage of time is weakened it.
There is a very famous case of the Paul Ingram case.
He was civilian with the Sheriff's Department in the state
of Washington. His daughter accuses him of involving her in
(05:43):
satanic ritual abuse, and he starts getting interrogated and he
thinks to himself, you know, my daughter wouldn't really like
maybe I did it. Maybe I blacked out or something,
and maybe I did it, and he actually confessed. He
would come to realize that this confession and been kind
of coerced and take it back. But you could see
(06:05):
how it happened in that case. He just thought maybe
I did it, because why would she lie? Well, there
were a number of reasons why she might have told
a false story. There are a lot of things that
go on in a false confession besides faulty memory, and
there are confession experts who testify frequently in cases where
(06:28):
the defense is alleged a coerced and false confession. A
bigger problem in getting people to falsely confess is they
get persuaded that they're better off if they confess to
this little thing and they're gonna be really screwed if
they don't. So if you'll just admit that you accidentally
(06:49):
shook the baby, you'll be able to go home see
your kids. You'll be fine. But if you don't, we're
gonna think you did it on purpose, and you're never
gonna go home and see your kids again. So there
are your choices, and people will confess to accidentally shaking
my baby when they don't really believe they did it.
(07:10):
Three of the wrongfully convicted men we spoke to earlier
this season, Joe Diaz, William Dillon, and Bill Richards, all
had this experience of police telling them that they would
have an easier time if they just confessed to the crime,
all of these being crimes that they did not commit.
They also had the shared experience of being questioned by
(07:34):
the police for hours and hours on end. They took
me down to the police station, interrogating me for a
few hours, wanting to know where I was on certain days,
and if I knew of a certain school and a
certain part of town, and I didn't. But nevertheless, they
interrogating me for a long time. They wouldn't tell me
(07:56):
why they were interrogating it it's been so long, Why
don't recall they've read me my rights? But you know,
I spoke to them. Biggest mistake I ever made in
my life. But again, I was a twenty year old
ignorant individual, had nothing to hide, so I was willing
to talk to them because I hadn't done anything wrong.
So they take me and put me in a room
with a bunch of police officers. It's not like the
(08:19):
television where they put you in a room and there's
two guys come in and talk to you. And this
is like five, six of them. They were all different places,
and they're all talking to me at once about different things,
asking me questions about the murder or something, trying to
ask me about this and what am I doing over here?
And I kept admiralbly denying any involvement. And I didn't
(08:39):
know any answers. I wasn't involved. Eventually, they had gotten
tired and they were ranting, and Raven and I kept
putting up the same thing, and finally I said, Okay,
we'll offer you five years manslaughter. Don't worry about it.
You'll do two years and you'll be on your own.
You'll beat free. I said, I'm not taking any deals.
(08:59):
I didn't have anything to do with it. I'm not
taking no kind of deals. Finally said, okay, we're gonna
put you in an electric chair. You're going to be
arrested for first degree murder, felony murder. I said, you
got the wrong guy. I found my wife at midnight,
so I've been up since about seven that morning, and
they let me go five or six and next afternoon,
(09:20):
so I've been up thirty some hours without sleep, probably
twenty some hours without food, and under intense interrogation, you know,
trying to get me to confess. I came down again
trying to help them. I thought they would actually start
looking for the real killer, which of course was my
mistake because they didn't. So I was actually in the
(09:41):
police station for another fifteen hours of intense interrogation, which
is not what I came down therefore, and they just
finally said, well, if you want to admit you did it,
you're under arrest. I always thought, okay, what if I
did admit it, I've been at all. It was such
a stupid thing to say. That's why you get so
many false confessions. I can tell you have been through
(10:02):
these things. I could see why people just give up
the crap of the same thing lots only alng there's
an edit tape that they claimed this was the interrogation was.
Of course, there's over thirty hours interrogation. They have a
two hour tape. But even on that I hear myself
giving them things that I didn't want to say because
I didn't remember or didn't think they were true. But
(10:24):
I surely never said I did anything wrong. These practices,
as Dr Loftus has said, are a big reason that
(10:46):
people will admit to things that they did not do.
We spoke with an interrogation expert to hear more about
how interrogation techniques work and how they might elicit these
false confessions. This Brian Leslie that the purpose of an
expert suching myself, is to first of all educate the
(11:07):
court or the jury of all the facts and what
they're looking at. When I go into court, I have
no stake either way. What I do is I look
at what I've been told to look at. I give
my expert opinions based on that. I'm not the trier
of fact. The trier of fact, whether it's a jury
or judge, will determine what weight to carry into my
(11:31):
testimony as an extent. I'm a forensic course of interrogation
expert in both interrogations and interviews. I've got a police background,
law enforcement for fifteen years, chiefs two years. Most of
what I deal with is homicide, sex abuse cases, terrorist cases.
(11:52):
I asked Brian to explain the difference between a police
interview and a police interrogation. One of the most important
things about an interrogation, which most people missed that point,
is the presumption of guilt, which is a requirement to
go into the interrogation. To establish the presumption of guilt,
(12:12):
investigators or the interviewer prior to doing an interrogation would
have had to have at least proven the case to
a point where there's sufficient evidence to enter into an interrogation.
The difference between an interview and an interrogation just so
very clear. An interview is to fact find. An interrogation
(12:33):
is to solicit confession. So you would use an interview
for the purposes of witnesses victims. You would speak to
individual to basically corroborate physical evidence, any other direct evidence
you might have, and based on that then you would
then decide, Okay, here's the most likely suspect based on
the evidence I have, you would target that suspect. You
(12:56):
would then take that suspect either invite him in to
have an interview, which you'd start off with an interview
and then end up with an interrogation. Prior to going
into an interrogation, you should have already completed your investigation,
have been satisfied that the presumption of guilt was there,
and that's why you're bringing the individual in for an interrogation.
(13:16):
Need mirandize the individual. Then you would conduct the interrogation,
and the interrogation has done in a controlled environment versus
what an interview would be done, not necessarily in a
controlled environment. Standard training and an interrogation is to get
in the individual's personal space, so you would bring the
chair's face to faith. You wouldn't be writing anything down.
(13:37):
You'd be facing the individual at that particular point, and
you would be then asking questions that are more getting
to the point of what you already know is the
answers you've already had the evidence. I also asked Brian
about some of the techniques officers use in order to
get that confession. There's a huge difference between coercive questioning
(13:59):
and miscond. The two are not necessarily the same in
patterns of course of interrogation may force an individual to confess.
For example, in an interrogation room, worseisness may end up
in what's known as minimization, when somebody minimizes the culpability
(14:20):
of an effect. In other words, murders way up here.
What you did is just way down here, but in
fact it may just be right under murder. This type
of comment or this type of narrative will be created
by the interrogator, and eventually the individual will start believing
that there's nothing to worry about. Maybe I'm not going
(14:40):
to be charged with anything. And then eventually the individual
may tap into what's known as vulnerabilities. For example, if
you were a drug user or you're an alcoholic, they
may start tapping into having a conversation at the beginning
where you're building the rapport with the suspect, and you'll
start talking to about the parties they went to and
(15:01):
how many times did they passed out, and eventually that
will start being used against them. What may be suggested
is that after this person has told them that they've
passed out many times, they may suggest that this is
what happened in this case that you just don't remember
because you probably passed out and that's probably what happened.
And eventually, after a period of putting that two of them,
(15:23):
the individual may be suggectively agreeing with that type of
the narrative. There's a fairly lower threshold for an arrest
versus whether or not a person with confess in an
interrogation room on a couple of reasons. For example, if
it's a lengthy interrogation, that could be a reason, whether
he was tired, where there was sleep deprivation, whether he
(15:46):
had been denied food. These types of situations can provoke
a no hope situation where he's constantly every time he
tells the truth, he's being told, well, no, that's a lie.
We have information and we have witnesses that so you
do certain things which potentially are lies to begin with
with the minimization as well as tapping into his vulnerability.
(16:08):
He may then just confess thinking that it's not that
big of a deal. I'll take whatever I can because
they've maximized the penalties. Where they tell the story about
somebody who they just interrogated a week and a half ago,
got fifty five years because he wasn't being honest. So
the individual in the interrogation room. They then decide, well,
(16:31):
I better than give him what he wants and I'll
get a smaller offense, or I'll get a smaller offenses.
(16:54):
Here's Attorney Ashley Merchant, who you also heard in the
last episode. Not only is ash a colleague of mine,
she's also Ryan Duke's lead defense attorney. Actually has educated
herself quite a bit about false confessions in order to
present Ryan Duke's defense. I think what normally happens is
(17:15):
the truth life somewhere in the middle, and I've always
thought that, I've just not always put it in the
context of a false confession. Some of the statistics that
I found are just very disturbing. One out of four
people wrongfully convicted that are later exonerated by DNA made
a false confession or an incriminating statement. That's a huge number.
(17:37):
The more I looked at it, the more I found
how often this stuff happens. It's been something that has
sort of evolved for me to come to the acceptance
that false confessions happen, and I can even say as
a lawyer it was hard for me to accept that,
and I had to really study it and really look
(17:57):
at the statistics, because you just think, why would someone
ever tell the police they did something they didn't do.
I mean, that's just against human nature. Now I'm convinced
that it happens at an alarming regularity. To me, I
had to kind of try and conceptualize how it could
play into my own life. How many people tell their
(18:18):
doctor when they think the doctor wants to hear I
was going to the doctor, and you know, I was like, Okay, well,
maybe I haven't been so good about what I'm eating
or whatever. You know, but you want to tell your
doctor the truth. If the doctor told you need to
lose ten pounds and you go back and you haven't
lost ten pounds, You're like, oh, I've been trying, I've
been trying. You haven't been trying, but you think your
doctor wants to hear that. And then you have to
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think about the position that criminal defendants are in, and
you have to think about the power struggle between law enforcement.
I think about my kids, and I think about how
they are raised to think that law enforcement are the
good guys. I think that a lot of people grow
up with that they want to please law enforcement, They
want to tell them what they want to hear. They
(19:00):
psychologically break down when they're asked the same thing over
and over and over again, because clearly they're not giving
the right answer, or else, why is someone asking me
the same thing twelve times? If you ask me how
I feel, and I see I feel fine, and then
you ask me again, you asked me again. First of all,
I want you to stop asking me, because it's annoying
at that point. But second of all, psychologically, I'm convinced
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that I must be giving the wrong answer because why
are you repeatedly asking me this? A lot of times
criminal defendants are exhausted during these interviews. They're very lengthy.
You can really talk to somebody about something that's uncomfortable,
I think for maybe forty five minutes or an hour,
and then after that, I mean, I know, for me personally,
it's almost like you gotta you gotta move on to
(19:41):
something else. Sometimes people are taking medicines that could affect that.
You've got a lot of people that when the police
are interrogating you, they may not care about the end result.
They may just want to get out of that room
because they don't really care what happens to them. They're
almost like martyrs. There's so many different things that can
happen that can lead to these false confessions. It's just
(20:02):
really scary to me. A lot of times, it's not
that the police just pick some random person off the
street that has no connection to anything and they get
them to false lead to confess to something. I don't
know that that happens as often as someone may have
had some involvement and they're interrogated. I think that we
get the truth very perverted during the types of questioning,
(20:24):
and there's certain types of questioning that police are encouraged
to do that I think leads to more false confessions.
Citizens don't realize that police are encouraged, you know, not
only allowed, but encouraged to lie to suspects. So they
believe that when a police officer tells them something and
ask them something, that that's truthful. There's a lot of
times things that happened prior to the audio going on.
(20:46):
I mean, we see like recorded confessions now, but there's
a lot of times interaction prior to that. A lot
of the you know, almost grooming I would call it,
that happens before the false confession. This camaraderie that's built
happens before videos ever on. I asked actually to tell
us what types of cases she sees these false confessions
(21:07):
in most frequently, most of the time that I see
these interrogations where the police are using these heavy handed techniques,
it's in the cases that are really circumstantial, really um
a stretch, and they're using that to shore up their
case and they need the confession. It's the cases that
they need the confession because they don't have enough otherwise.
(21:29):
Those are the ones that they look for the confession
and they use all these techniques. That's really where we
see it. What happens is the police go to interrogation
one on one, they take the class, they're taught how
to do it. They're not taught about false confessions. That
war does not come up in their training. They have
an interrogation technique that they were taught by the academy.
(21:51):
They follow that like it's the bible. That technique actually
can lead to false confessions. For their technique, their interrogation
technique to work. They want a confession. I mean, that's
the goal. The goal isn't to get an accurate confession.
It's to get a confession, and so their goal is
not to get necessarily the truth, even though they'd say
it was to get the truth. It's to close the case.
I mean, there's a reason they're reading you, Miranda rights
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and saying it's going to be used against you. They
want something to use against you. They want to make
sure they've got the right person. And I think police
officers innately do want to get the right person. I
think they want to believe they've got the right person.
I think the problem is that to do that and
to sleep at night, they have to just sort of
have blinders onto these false confessions, because they wouldn't be
able to do their job if they if they doubted
(22:34):
every confession they had. I asked actually to detail some
of the interrogation techniques she's learned about during her research
into false confessions. One of those techniques is called the
read technique. The read technique is it's where the officer
tries to establish rapport with the suspect. It's where they're
(22:56):
trying to give them some hope of benefit, and it's
kind of like playing mind game one. I'm almost the
hope of benefit could be something minor. I mean, it
could be giving them a pizza, could be giving them
something to drink. It could be telling them I know
you're really sorry, giving them feedback, positive feedback that the
more they're telling you, the better it is for them.
(23:17):
False promises, you know, promises like I'll put in a
good word for you, or I'll make sure that you
can hug your mom before you go away, or whatever.
You know, just little promises to build a rapport. In
particularly vulnerable populations, it works, and even a non vulnerable
person after so many hours. They tend to believe that
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they use religion a lot of times, that God wants
them to confess their sins and that they'll be absolved
and they'll pray with them and things like that. These
are all psychological tricks. I mean, the officer is not
your friend. They're not praying with you because they care
about you. They're doing this because it elicits a response,
and they want that response. They want that information. So
(24:00):
other things that they do is they'll offer like tidbits
of evidence, whether it's true or not, so that the
suspects think that the police know more than they do.
One thing that we look for is we sort of
take out the different statements that the defendant gives. Did
the defendant offer that evidence up or did the police
officer offer that evidence up? Because it's more likely to
(24:20):
be factually truthful if the defendant offered it without being prompted.
There aren't hard and fast rules. You're not supposed to
like break bones, but I've had broken bones in the
interrogation room. The judge has to make a determination if
a confession can commit. We call it Jackson Denno hearings.
(24:41):
That is the United States Supreme Court case law that
says the interrogation has to meet certain standards to be
in front of a jury, and then the next is
the jury's determination. So what we always say is it
goes to the weight, not the admissibility. So what that
means is the judge is going to let it in,
but then it's up to the jury how much weight
they can if they believe it or not. Actually had
(25:03):
some incredible stories about problematic interrogations and confessions, some of
which I wasn't familiar with. I make it my business
to keep up to speed with the way things work
in the legal system nationwide. But these aren't the sorts
of things that you learn about in law schools. So
defense attorneys have to go out of their way to
educate themselves on specific issues and techniques whenever it applies
(25:26):
to any of their cases or their clients. There's been
a couple of cases that I just want to point
out that have been crazy about these confessions. There was
one out of Louisiana maybe two years ago, the lawyer
dog case. It was just comical. The defendant invokes his
right to counsel and they said, you know, we're gonna
interrogate you. Here's your Miranda rights. Do you want a lawyer?
And he said, I want a lawyer dog. The court
(25:49):
interpreted that as him not requesting a lawyer, but requesting
a dog, a lawyer dog. So they said he did
not invoke his right to counsel because it was all
about the common was it, I want a lawyer comma,
I am calling you dog, And they were like, if
he had said a lawyer pig, then that would have
been you know, I'm like, that is insane because certain people,
I mean, they used dog just when every day slaying.
(26:13):
So he had said I want a lawyer dog, and
they were saying, well, there's no comma. He wanted a
lawyer dog. With quotes around lawyer dog. It was insane.
They did not give him a lawyer no, and he confessed,
and the statement came in because they were saying he
did not clearly invoke his right to counsel. The police
could have thought he wanted a lawyer dog. When I
read it, I was like, you know, I'm a lawyer.
(26:36):
These people are lawyers. Were smart. It's one of those
things when someone's telling you something and it's so unbelievable
to your face, You're like, you're just lying to me.
It's just painful. I had a client who gave a confession,
so he and the mother of his child were both
being charged with the crime. The state government took the
child away. Basically, they were telling him Mom can only
(26:58):
get the child back if you confess, and he was like,
I wanted mom to get the child back because he
was making a sacrifice, saying that he would rather go
to jail and mom be able to have the child
than the child being state customed. I would make that choice,
you know, I would probably falsely confessed to something if
it's going to save my children. So as soon as
the officer left the room, he knew where the camera was.
He went up on the camera and he said, I
(27:19):
just lied. I falsely confessed. I didn't do what they're
accusing me of. I did this so that mom could
get the child back. And so we go to court
and the state moves to admit the confession and to
keep out the self serving statements, and the law requires it,
so they split it up so the jury was able
to see right up until the police left the room,
(27:40):
but the part where he said I lied and this
is why I lied. They're not allowed to hear so
anytime someone says something, it's hearsay, and the law says
that hearsay can come in if it meets certain requirements,
and one of those is that it's reliable. One of
the things that the court has said renders it reliable
is if it's a against your interest, because the law
(28:02):
just inherently believes that you're only gonna lie to protect yourself.
So if you're saying something that harms you that's that's
against your interest, then that must be true. But if
you said something that is self serving that assists to you,
like I didn't do it, that then is hearsaying and
it's not reliable. What normally I do as I say,
(28:24):
tell me what happened, and so they'll tell me what happened,
and then I'll compare that and almost cross examine them
and say, well, you know, you told the police this.
So you just told me that this happened. But you
told the police that happened. Why why did you tell
the police that? Because that plays into the factors you
know whether or not it is a false confession. And
I also want to know are they lying to me
(28:45):
or are they lying to the police. Unfortunately, it's not
unheard of that defense lawyers get lied to. But part
of what I do to see through it is I
ask them in an appropriate way about the discrepancies. And
unlike the police, I'm not interrogating them, I'm asking them
to explain for me. I'm interviewing them as a witness
(29:05):
and a client, and I'm not trying to put words
in their mouth. I'm not trying to suggest answers. I'm
not repeatedly asking them the same question. But I will
compare and say, you know, but you told the police
that you were having an affair with this person, and
you're telling me you weren't. Which one is the truth
and why? And I'll let them explain it, and then
(29:27):
that will lead me to my defense and how we
can show that it was a false confession. And then
a lot of times I'll ask them, what really did happen?
You lied? And then we try and go and prove
what it is that they said. What things can we
pull out that support the actual true story, not the
false confession, not the version they told the police. When
(29:50):
I get brought into a criminal case, one of the
first things that I want to know is what my
client may have said to the police and what the
police may have said to them. We should require the
state to actually prove charges. I know the law in
Georgia says that a confessional loan is not enough to
(30:10):
sustain a conviction, but that's for a jury to determine
the fact of the matter. Is as jurors, when they
hear a confession, they just automatically assume guilt and assume
that whatever is said is true. We as citizens have
to question that. But then beyond that, we also have
to push for legislation, legislation that police aren't able to
(30:32):
use these types of techniques on vulnerable populations. Maybe have
legislation or policy changes that say, anybody who suffers from
mental illness, anybody who is has some type of a disorder,
educational disorder, children, people who are particularly vulnerable, those vulnerable populations,
they should not be subject to the read technique because
it's more likely to induce a false confession. All police
(30:55):
interactions should be recorded. I think it's very important that
pre interview, even if it's just to establish rapport, they
don't usually record those. Anytime you have an interaction with
the police, it should be recorded. I mean, I would
want that for my own protection. So I think that
we need to advocate for laws that require these heepings.
(31:18):
As we discussed in the last episode, the general rule
is that it is never in your best interests to
speak with police. Joe William and Bill All told us
that speaking with police was one of their biggest regrets.
For the most part, even if you're innocent, merely speaking
to the police can connect you to a crime that
(31:39):
you did not commit. A criminal lawyer properly doing their
job will rarely have their clients speak with police. This
is something that's done in court with judges and juries.
The thing to keep in mind is that law enforcement
are allowed and in some circumstances encouraged to lie in
(32:00):
the interrogation process. They can withhold information, they can make
up completely new facts. They can tell suspects that they
have more information than they actually do, and this, as
they are trained, is a helpful tool in the interrogation process.
It can also result in confusion and false confessions. And
(32:22):
like Ashley said, police can sometimes be an intimidating authority figure.
We naturally will want to say and do things for
them that elicit a perceived positive result from them so
that we can get them on our side. But that
dynamic is established merely as a technique to elicit a confession.
(32:42):
And while we in the criminal justice system hope that
that confession will be true and accurate, that's not always
the case. The last thing I want to touch on
before we move on our Miranda rights. You all know
that you have the right to remain silent. Bit. We've
seen it movies, we see it on TV shows, we
(33:02):
see police reading suspects that speech all the time. In
order for Miranda warnings to apply, two things must exist. First,
the person must be in custody and secondly, it has
to be an interrogation. Both of those things custody and
interrogation must be present before Miranda warnings are required. Whether
(33:27):
or not someone is in custody is sometimes a subjective determination.
Just because someone is not free to leave doesn't necessarily
mean they are legally in custody. And similarly, it's a
subjective question about whether or not someone is being interrogated.
Merely speaking with someone is not necessarily interrogating them under
(33:49):
the law. As Brian mentioned, an interview can turn into
an interrogation without a distinct change. Custody is also a
subjective term. Sometimes a suspect may feel like they aren't
able to leave a police station without technically being in custody.
In that case, police don't necessarily need to read you
(34:12):
your Miranda warnings or to remind you, for example, that
you have a right to remain silent. But it is
important to remember you always have the right to remain silent,
no matter whether you're in custody or not, whether you're
under arrest or not, or whether or not you're being interrogated.
You have the right to remain silent. It's also true
(34:34):
that police don't automatically have to read someone there Miranda
warnings when they're arrested. I think in the overwhelming majority
of arrest that take place in America, Miranda warnings are
not read. And that's perfectly fine, and it's perfectly legal.
An arrest can occur without Miranda warnings being given, and
(34:55):
it does not invalidate the arrest. That's a very common
misc conception. It merely means that any custodial statements that
were a product of an interrogation cannot be used in court.
As always, we want to hear from you. You can
leave us a voicemail about this or any of our
topics were discussing this season by calling four zero four
(35:19):
four one zero zero four four one. That's four zero
four four zero zero four four one next time on
sworn A friend of mine, Jennifer Thompson, she nationally known.
She's written a book. She was a survivor who was
(35:40):
attacked and picked the wrong guy, and now she has
started her own foundation, healing Justice. The circles that she
holds revolved around restorative justice. And believe me, I've spent
I don't know how much money on therapist, but it
wasn't until I sat in a restorative justice circle and
I saw the magic in it. Because I could now
sit in a circle in the air as they call it,
(36:01):
with other exonorees who have been to what I've been through,
and we sat there and we shed tears for a
whole weekend. I walked away a million pounds. Lighter Sworn
is a production of Tenderfoot TV and I Heart Radio.
Our lead producer is Christina Dana. Executive producers are Payne
(36:24):
Lindsay and Donald Albright for Tenderfoot TV, Matt Frederick and
Alex Williams for I Heart Radio, and myself Philip Holloway.
Additional production by Trevor Young, Mason Lindsay, Mike Rooney, Jamie
Albright and Halle Beadall Original music and sound designed by
Makeup and Vanity Set. Our theme song is Blood in
(36:45):
the Water by Layup. Show art and design is by
Trevor Eisler, editing by Christina Dana, mixing and mastering by
Mike Rooney and Cooper Skinner. Special thanks to the team
at I Heart Radio from U t a or In
Rosenbound and Grace Royer, Ryan Nord and Matthew Papa from
(37:07):
the Nord Group, back Media and Marketing and Station sixteen.
I'd also like to extend a very personal and special
thanks to all of our contributors and guests who have
helped to make all of these episodes possible. You can
find Sworn on Facebook, Twitter, and Instagram at Sworn podcast
and follow me your host, Philip Holloway on Twitter at
(37:30):
phil Holloway e s Q. Our website is sworn podcast
dot com, and you can check out other Tenderfoot TV
podcasts at www dot tenderfoot dot tv. If you have
questions or comments, you can email us at Sworn at
tenderfoot dot tv or leave us a voicemail at four
(37:52):
zero four for one zero zero four four one. As always,
thanks for listening
If you will place your left hand on the Bible
and raise your right hand, and please repeat after me,
I do solemnly swear. Then titled action find the defendant
guilty of the crime. It makes no sense, it doesn't fit.
If it doesn't fit, you must equit. We all took
the same oath of office. We're all bound by that
(00:24):
common commitment to support and defend the Constitution, to bear
true faith and allegiance to the saying that you faithfully
discharge the duties of our office. Do you solemnly swear
or affirm that the testimony you are about to give
will be the truth, the whole truth, and nothing but
the truth. From Tenderfoot TV and I Heart Radio, this
is Sworn. I'm your host, Philip Holloway. One of the
(00:54):
first studies that we did where we planted an entirely
false memory is if I were talking to you, I
would say, Philip, I've talked to your mother, and your
mother told me some things that happened to you when
you were about six years old. I want to see
what you can remember about these childhood experiences. If you
don't remember, just tell me you don't, and then I
(01:15):
present you with three true memories things your mother really
told me did happen to you. And then this completely
made up experience about being lost in a shopping mall
and frightened, crying, ultimately rescued by an elderly person, and
reunited with the family. With a few suggestive interviews, we
(01:40):
got our research subjects about a quarter of them to
remember all are part of this completely made up experience.
And after we published that study, other investigators came along
and planned even more bison or and unusual false memories.
That you were attacked by an animal, that you nearly
drowned and had to be rescued by a lifeguard. That
(02:02):
you committed a crime as a teenager that was serious
enough that the police actually came. So these are some
of the things that people have been led to believe
even though they never actually happened. That was Dr Elizabeth Loftus,
(02:27):
a psychology professor at the University of California, Irvine. You
might remember her from our first episode on eyewitness testimony
and the Malleability of Memory. In this episode, we spoke
to her about implanted memories and the ways in which
police interrogations and interviews could cause a false confession, false
(02:47):
confessions are real, and they are a big problem in
the legal system. And I know a lot of people
can't imagine ever confessing to a crime they did not commit.
But it happens, and as we'll in this episode, there
are a lot of reasons for that, from questioning techniques
to problems with human memory that can cause someone to
(03:08):
admit to or to even fully remember something that they
did not do. Well. These false memories, they can be
very detailed and specific, and people will start to add
details and the color of clothing that people were wearing
or where location was. It really looks and feels like
(03:30):
a real recollection. Other times, what they develop is a
false belief. I'm pretty sure this happened, but I just
don't really have a strong memory of it happening. Both
of these things are possible. This is a study published
just a few years ago out of Canada. With the
power of suggestion. They convinced ordinary people that as a
(03:54):
teenager they committed a crime, and the police actually came
to investigate. These people are trying to figure this out,
and you know, if my mother told you this, it
must have happened. Did I plan for Fiti somewhere? And
what was I with my best friend when we did,
and they pretty much talked themselves into constructing something that
(04:14):
never happened. After the experiment is over, we tell them
what the experiment was all about, we might apologize for
using any deception with them, so presumably they don't continue
for ten years believing they really did it. I wanted
to ask Dr lawsus about how drugs and alcohol might
(04:36):
play a role in an implanted memory. Before an interrogation,
suspects are often asked whether or not they've taken mind
altering substances like drugs or alcohol in order to prevent
a false confection. But I know and fans of Up
and Vanished might know of at least one case here
in Georgia where this has allegedly come into play. Ryan Duke,
(04:59):
the defendant in the murder case involving Tera Grinstead, claims
that he was under the influence of morphine while making
incriminating statements to the police. Oh, that's that's certainly possible.
Especially if he were under the influence of alcohol. His
memory would be somewhat weak compared to begin with. It's
(05:20):
even easier to plant something in somebody's mind when the
memory is weak. To begin with either week to begin
with or week because the passage of time is weakened it.
There is a very famous case of the Paul Ingram case.
He was civilian with the Sheriff's Department in the state
of Washington. His daughter accuses him of involving her in
(05:43):
satanic ritual abuse, and he starts getting interrogated and he
thinks to himself, you know, my daughter wouldn't really like
maybe I did it. Maybe I blacked out or something,
and maybe I did it, and he actually confessed. He
would come to realize that this confession and been kind
of coerced and take it back. But you could see
(06:05):
how it happened in that case. He just thought maybe
I did it, because why would she lie? Well, there
were a number of reasons why she might have told
a false story. There are a lot of things that
go on in a false confession besides faulty memory, and
there are confession experts who testify frequently in cases where
(06:28):
the defense is alleged a coerced and false confession. A
bigger problem in getting people to falsely confess is they
get persuaded that they're better off if they confess to
this little thing and they're gonna be really screwed if
they don't. So if you'll just admit that you accidentally
(06:49):
shook the baby, you'll be able to go home see
your kids. You'll be fine. But if you don't, we're
gonna think you did it on purpose, and you're never
gonna go home and see your kids again. So there
are your choices, and people will confess to accidentally shaking
my baby when they don't really believe they did it.
(07:10):
Three of the wrongfully convicted men we spoke to earlier
this season, Joe Diaz, William Dillon, and Bill Richards, all
had this experience of police telling them that they would
have an easier time if they just confessed to the crime,
all of these being crimes that they did not commit.
They also had the shared experience of being questioned by
(07:34):
the police for hours and hours on end. They took
me down to the police station, interrogating me for a
few hours, wanting to know where I was on certain days,
and if I knew of a certain school and a
certain part of town, and I didn't. But nevertheless, they
interrogating me for a long time. They wouldn't tell me
(07:56):
why they were interrogating it it's been so long, Why
don't recall they've read me my rights? But you know,
I spoke to them. Biggest mistake I ever made in
my life. But again, I was a twenty year old
ignorant individual, had nothing to hide, so I was willing
to talk to them because I hadn't done anything wrong.
So they take me and put me in a room
with a bunch of police officers. It's not like the
(08:19):
television where they put you in a room and there's
two guys come in and talk to you. And this
is like five, six of them. They were all different places,
and they're all talking to me at once about different things,
asking me questions about the murder or something, trying to
ask me about this and what am I doing over here?
And I kept admiralbly denying any involvement. And I didn't
(08:39):
know any answers. I wasn't involved. Eventually, they had gotten
tired and they were ranting, and Raven and I kept
putting up the same thing, and finally I said, Okay,
we'll offer you five years manslaughter. Don't worry about it.
You'll do two years and you'll be on your own.
You'll beat free. I said, I'm not taking any deals.
(08:59):
I didn't have anything to do with it. I'm not
taking no kind of deals. Finally said, okay, we're gonna
put you in an electric chair. You're going to be
arrested for first degree murder, felony murder. I said, you
got the wrong guy. I found my wife at midnight,
so I've been up since about seven that morning, and
they let me go five or six and next afternoon,
(09:20):
so I've been up thirty some hours without sleep, probably
twenty some hours without food, and under intense interrogation, you know,
trying to get me to confess. I came down again
trying to help them. I thought they would actually start
looking for the real killer, which of course was my
mistake because they didn't. So I was actually in the
(09:41):
police station for another fifteen hours of intense interrogation, which
is not what I came down therefore, and they just
finally said, well, if you want to admit you did it,
you're under arrest. I always thought, okay, what if I
did admit it, I've been at all. It was such
a stupid thing to say. That's why you get so
many false confessions. I can tell you have been through
(10:02):
these things. I could see why people just give up
the crap of the same thing lots only alng there's
an edit tape that they claimed this was the interrogation was.
Of course, there's over thirty hours interrogation. They have a
two hour tape. But even on that I hear myself
giving them things that I didn't want to say because
I didn't remember or didn't think they were true. But
(10:24):
I surely never said I did anything wrong. These practices,
as Dr Loftus has said, are a big reason that
(10:46):
people will admit to things that they did not do.
We spoke with an interrogation expert to hear more about
how interrogation techniques work and how they might elicit these
false confessions. This Brian Leslie that the purpose of an
expert suching myself, is to first of all educate the
(11:07):
court or the jury of all the facts and what
they're looking at. When I go into court, I have
no stake either way. What I do is I look
at what I've been told to look at. I give
my expert opinions based on that. I'm not the trier
of fact. The trier of fact, whether it's a jury
or judge, will determine what weight to carry into my
(11:31):
testimony as an extent. I'm a forensic course of interrogation
expert in both interrogations and interviews. I've got a police background,
law enforcement for fifteen years, chiefs two years. Most of
what I deal with is homicide, sex abuse cases, terrorist cases.
(11:52):
I asked Brian to explain the difference between a police
interview and a police interrogation. One of the most important
things about an interrogation, which most people missed that point,
is the presumption of guilt, which is a requirement to
go into the interrogation. To establish the presumption of guilt,
(12:12):
investigators or the interviewer prior to doing an interrogation would
have had to have at least proven the case to
a point where there's sufficient evidence to enter into an interrogation.
The difference between an interview and an interrogation just so
very clear. An interview is to fact find. An interrogation
(12:33):
is to solicit confession. So you would use an interview
for the purposes of witnesses victims. You would speak to
individual to basically corroborate physical evidence, any other direct evidence
you might have, and based on that then you would
then decide, Okay, here's the most likely suspect based on
the evidence I have, you would target that suspect. You
(12:56):
would then take that suspect either invite him in to
have an interview, which you'd start off with an interview
and then end up with an interrogation. Prior to going
into an interrogation, you should have already completed your investigation,
have been satisfied that the presumption of guilt was there,
and that's why you're bringing the individual in for an interrogation.
(13:16):
Need mirandize the individual. Then you would conduct the interrogation,
and the interrogation has done in a controlled environment versus
what an interview would be done, not necessarily in a
controlled environment. Standard training and an interrogation is to get
in the individual's personal space, so you would bring the
chair's face to faith. You wouldn't be writing anything down.
(13:37):
You'd be facing the individual at that particular point, and
you would be then asking questions that are more getting
to the point of what you already know is the
answers you've already had the evidence. I also asked Brian
about some of the techniques officers use in order to
get that confession. There's a huge difference between coercive questioning
(13:59):
and miscond. The two are not necessarily the same in
patterns of course of interrogation may force an individual to confess.
For example, in an interrogation room, worseisness may end up
in what's known as minimization, when somebody minimizes the culpability
(14:20):
of an effect. In other words, murders way up here.
What you did is just way down here, but in
fact it may just be right under murder. This type
of comment or this type of narrative will be created
by the interrogator, and eventually the individual will start believing
that there's nothing to worry about. Maybe I'm not going
(14:40):
to be charged with anything. And then eventually the individual
may tap into what's known as vulnerabilities. For example, if
you were a drug user or you're an alcoholic, they
may start tapping into having a conversation at the beginning
where you're building the rapport with the suspect, and you'll
start talking to about the parties they went to and
(15:01):
how many times did they passed out, and eventually that
will start being used against them. What may be suggested
is that after this person has told them that they've
passed out many times, they may suggest that this is
what happened in this case that you just don't remember
because you probably passed out and that's probably what happened.
And eventually, after a period of putting that two of them,
(15:23):
the individual may be suggectively agreeing with that type of
the narrative. There's a fairly lower threshold for an arrest
versus whether or not a person with confess in an
interrogation room on a couple of reasons. For example, if
it's a lengthy interrogation, that could be a reason, whether
he was tired, where there was sleep deprivation, whether he
(15:46):
had been denied food. These types of situations can provoke
a no hope situation where he's constantly every time he
tells the truth, he's being told, well, no, that's a lie.
We have information and we have witnesses that so you
do certain things which potentially are lies to begin with
with the minimization as well as tapping into his vulnerability.
(16:08):
He may then just confess thinking that it's not that
big of a deal. I'll take whatever I can because
they've maximized the penalties. Where they tell the story about
somebody who they just interrogated a week and a half ago,
got fifty five years because he wasn't being honest. So
the individual in the interrogation room. They then decide, well,
(16:31):
I better than give him what he wants and I'll
get a smaller offense, or I'll get a smaller offenses.
(16:54):
Here's Attorney Ashley Merchant, who you also heard in the
last episode. Not only is ash a colleague of mine,
she's also Ryan Duke's lead defense attorney. Actually has educated
herself quite a bit about false confessions in order to
present Ryan Duke's defense. I think what normally happens is
(17:15):
the truth life somewhere in the middle, and I've always
thought that, I've just not always put it in the
context of a false confession. Some of the statistics that
I found are just very disturbing. One out of four
people wrongfully convicted that are later exonerated by DNA made
a false confession or an incriminating statement. That's a huge number.
(17:37):
The more I looked at it, the more I found
how often this stuff happens. It's been something that has
sort of evolved for me to come to the acceptance
that false confessions happen, and I can even say as
a lawyer it was hard for me to accept that,
and I had to really study it and really look
(17:57):
at the statistics, because you just think, why would someone
ever tell the police they did something they didn't do.
I mean, that's just against human nature. Now I'm convinced
that it happens at an alarming regularity. To me, I
had to kind of try and conceptualize how it could
play into my own life. How many people tell their
(18:18):
doctor when they think the doctor wants to hear I
was going to the doctor, and you know, I was like, Okay, well,
maybe I haven't been so good about what I'm eating
or whatever. You know, but you want to tell your
doctor the truth. If the doctor told you need to
lose ten pounds and you go back and you haven't
lost ten pounds, You're like, oh, I've been trying, I've
been trying. You haven't been trying, but you think your
doctor wants to hear that. And then you have to
(18:39):
think about the position that criminal defendants are in, and
you have to think about the power struggle between law enforcement.
I think about my kids, and I think about how
they are raised to think that law enforcement are the
good guys. I think that a lot of people grow
up with that they want to please law enforcement, They
want to tell them what they want to hear. They
(19:00):
psychologically break down when they're asked the same thing over
and over and over again, because clearly they're not giving
the right answer, or else, why is someone asking me
the same thing twelve times? If you ask me how
I feel, and I see I feel fine, and then
you ask me again, you asked me again. First of all,
I want you to stop asking me, because it's annoying
at that point. But second of all, psychologically, I'm convinced
(19:21):
that I must be giving the wrong answer because why
are you repeatedly asking me this? A lot of times
criminal defendants are exhausted during these interviews. They're very lengthy.
You can really talk to somebody about something that's uncomfortable,
I think for maybe forty five minutes or an hour,
and then after that, I mean, I know, for me personally,
it's almost like you gotta you gotta move on to
(19:41):
something else. Sometimes people are taking medicines that could affect that.
You've got a lot of people that when the police
are interrogating you, they may not care about the end result.
They may just want to get out of that room
because they don't really care what happens to them. They're
almost like martyrs. There's so many different things that can
happen that can lead to these false confessions. It's just
(20:02):
really scary to me. A lot of times, it's not
that the police just pick some random person off the
street that has no connection to anything and they get
them to false lead to confess to something. I don't
know that that happens as often as someone may have
had some involvement and they're interrogated. I think that we
get the truth very perverted during the types of questioning,
(20:24):
and there's certain types of questioning that police are encouraged
to do that I think leads to more false confessions.
Citizens don't realize that police are encouraged, you know, not
only allowed, but encouraged to lie to suspects. So they
believe that when a police officer tells them something and
ask them something, that that's truthful. There's a lot of
times things that happened prior to the audio going on.
(20:46):
I mean, we see like recorded confessions now, but there's
a lot of times interaction prior to that. A lot
of the you know, almost grooming I would call it,
that happens before the false confession. This camaraderie that's built
happens before videos ever on. I asked actually to tell
us what types of cases she sees these false confessions
(21:07):
in most frequently, most of the time that I see
these interrogations where the police are using these heavy handed techniques,
it's in the cases that are really circumstantial, really um
a stretch, and they're using that to shore up their
case and they need the confession. It's the cases that
they need the confession because they don't have enough otherwise.
(21:29):
Those are the ones that they look for the confession
and they use all these techniques. That's really where we
see it. What happens is the police go to interrogation
one on one, they take the class, they're taught how
to do it. They're not taught about false confessions. That
war does not come up in their training. They have
an interrogation technique that they were taught by the academy.
(21:51):
They follow that like it's the bible. That technique actually
can lead to false confessions. For their technique, their interrogation
technique to work. They want a confession. I mean, that's
the goal. The goal isn't to get an accurate confession.
It's to get a confession, and so their goal is
not to get necessarily the truth, even though they'd say
it was to get the truth. It's to close the case.
I mean, there's a reason they're reading you, Miranda rights
(22:11):
and saying it's going to be used against you. They
want something to use against you. They want to make
sure they've got the right person. And I think police
officers innately do want to get the right person. I
think they want to believe they've got the right person.
I think the problem is that to do that and
to sleep at night, they have to just sort of
have blinders onto these false confessions, because they wouldn't be
able to do their job if they if they doubted
(22:34):
every confession they had. I asked actually to detail some
of the interrogation techniques she's learned about during her research
into false confessions. One of those techniques is called the
read technique. The read technique is it's where the officer
tries to establish rapport with the suspect. It's where they're
(22:56):
trying to give them some hope of benefit, and it's
kind of like playing mind game one. I'm almost the
hope of benefit could be something minor. I mean, it
could be giving them a pizza, could be giving them
something to drink. It could be telling them I know
you're really sorry, giving them feedback, positive feedback that the
more they're telling you, the better it is for them.
(23:17):
False promises, you know, promises like I'll put in a
good word for you, or I'll make sure that you
can hug your mom before you go away, or whatever.
You know, just little promises to build a rapport. In
particularly vulnerable populations, it works, and even a non vulnerable
person after so many hours. They tend to believe that
(23:37):
they use religion a lot of times, that God wants
them to confess their sins and that they'll be absolved
and they'll pray with them and things like that. These
are all psychological tricks. I mean, the officer is not
your friend. They're not praying with you because they care
about you. They're doing this because it elicits a response,
and they want that response. They want that information. So
(24:00):
other things that they do is they'll offer like tidbits
of evidence, whether it's true or not, so that the
suspects think that the police know more than they do.
One thing that we look for is we sort of
take out the different statements that the defendant gives. Did
the defendant offer that evidence up or did the police
officer offer that evidence up? Because it's more likely to
(24:20):
be factually truthful if the defendant offered it without being prompted.
There aren't hard and fast rules. You're not supposed to
like break bones, but I've had broken bones in the
interrogation room. The judge has to make a determination if
a confession can commit. We call it Jackson Denno hearings.
(24:41):
That is the United States Supreme Court case law that
says the interrogation has to meet certain standards to be
in front of a jury, and then the next is
the jury's determination. So what we always say is it
goes to the weight, not the admissibility. So what that
means is the judge is going to let it in,
but then it's up to the jury how much weight
they can if they believe it or not. Actually had
(25:03):
some incredible stories about problematic interrogations and confessions, some of
which I wasn't familiar with. I make it my business
to keep up to speed with the way things work
in the legal system nationwide. But these aren't the sorts
of things that you learn about in law schools. So
defense attorneys have to go out of their way to
educate themselves on specific issues and techniques whenever it applies
(25:26):
to any of their cases or their clients. There's been
a couple of cases that I just want to point
out that have been crazy about these confessions. There was
one out of Louisiana maybe two years ago, the lawyer
dog case. It was just comical. The defendant invokes his
right to counsel and they said, you know, we're gonna
interrogate you. Here's your Miranda rights. Do you want a lawyer?
And he said, I want a lawyer dog. The court
(25:49):
interpreted that as him not requesting a lawyer, but requesting
a dog, a lawyer dog. So they said he did
not invoke his right to counsel because it was all
about the common was it, I want a lawyer comma,
I am calling you dog, And they were like, if
he had said a lawyer pig, then that would have
been you know, I'm like, that is insane because certain people,
I mean, they used dog just when every day slaying.
(26:13):
So he had said I want a lawyer dog, and
they were saying, well, there's no comma. He wanted a
lawyer dog. With quotes around lawyer dog. It was insane.
They did not give him a lawyer no, and he confessed,
and the statement came in because they were saying he
did not clearly invoke his right to counsel. The police
could have thought he wanted a lawyer dog. When I
read it, I was like, you know, I'm a lawyer.
(26:36):
These people are lawyers. Were smart. It's one of those
things when someone's telling you something and it's so unbelievable
to your face, You're like, you're just lying to me.
It's just painful. I had a client who gave a confession,
so he and the mother of his child were both
being charged with the crime. The state government took the
child away. Basically, they were telling him Mom can only
(26:58):
get the child back if you confess, and he was like,
I wanted mom to get the child back because he
was making a sacrifice, saying that he would rather go
to jail and mom be able to have the child
than the child being state customed. I would make that choice,
you know, I would probably falsely confessed to something if
it's going to save my children. So as soon as
the officer left the room, he knew where the camera was.
He went up on the camera and he said, I
(27:19):
just lied. I falsely confessed. I didn't do what they're
accusing me of. I did this so that mom could
get the child back. And so we go to court
and the state moves to admit the confession and to
keep out the self serving statements, and the law requires it,
so they split it up so the jury was able
to see right up until the police left the room,
(27:40):
but the part where he said I lied and this
is why I lied. They're not allowed to hear so
anytime someone says something, it's hearsay, and the law says
that hearsay can come in if it meets certain requirements,
and one of those is that it's reliable. One of
the things that the court has said renders it reliable
is if it's a against your interest, because the law
(28:02):
just inherently believes that you're only gonna lie to protect yourself.
So if you're saying something that harms you that's that's
against your interest, then that must be true. But if
you said something that is self serving that assists to you,
like I didn't do it, that then is hearsaying and
it's not reliable. What normally I do as I say,
(28:24):
tell me what happened, and so they'll tell me what happened,
and then I'll compare that and almost cross examine them
and say, well, you know, you told the police this.
So you just told me that this happened. But you
told the police that happened. Why why did you tell
the police that? Because that plays into the factors you
know whether or not it is a false confession. And
I also want to know are they lying to me
(28:45):
or are they lying to the police. Unfortunately, it's not
unheard of that defense lawyers get lied to. But part
of what I do to see through it is I
ask them in an appropriate way about the discrepancies. And
unlike the police, I'm not interrogating them, I'm asking them
to explain for me. I'm interviewing them as a witness
(29:05):
and a client, and I'm not trying to put words
in their mouth. I'm not trying to suggest answers. I'm
not repeatedly asking them the same question. But I will
compare and say, you know, but you told the police
that you were having an affair with this person, and
you're telling me you weren't. Which one is the truth
and why? And I'll let them explain it, and then
(29:27):
that will lead me to my defense and how we
can show that it was a false confession. And then
a lot of times I'll ask them, what really did happen?
You lied? And then we try and go and prove
what it is that they said. What things can we
pull out that support the actual true story, not the
false confession, not the version they told the police. When
(29:50):
I get brought into a criminal case, one of the
first things that I want to know is what my
client may have said to the police and what the
police may have said to them. We should require the
state to actually prove charges. I know the law in
Georgia says that a confessional loan is not enough to
(30:10):
sustain a conviction, but that's for a jury to determine
the fact of the matter. Is as jurors, when they
hear a confession, they just automatically assume guilt and assume
that whatever is said is true. We as citizens have
to question that. But then beyond that, we also have
to push for legislation, legislation that police aren't able to
(30:32):
use these types of techniques on vulnerable populations. Maybe have
legislation or policy changes that say, anybody who suffers from
mental illness, anybody who is has some type of a disorder,
educational disorder, children, people who are particularly vulnerable, those vulnerable populations,
they should not be subject to the read technique because
it's more likely to induce a false confession. All police
(30:55):
interactions should be recorded. I think it's very important that
pre interview, even if it's just to establish rapport, they
don't usually record those. Anytime you have an interaction with
the police, it should be recorded. I mean, I would
want that for my own protection. So I think that
we need to advocate for laws that require these heepings.
(31:18):
As we discussed in the last episode, the general rule
is that it is never in your best interests to
speak with police. Joe William and Bill All told us
that speaking with police was one of their biggest regrets.
For the most part, even if you're innocent, merely speaking
to the police can connect you to a crime that
(31:39):
you did not commit. A criminal lawyer properly doing their
job will rarely have their clients speak with police. This
is something that's done in court with judges and juries.
The thing to keep in mind is that law enforcement
are allowed and in some circumstances encouraged to lie in
(32:00):
the interrogation process. They can withhold information, they can make
up completely new facts. They can tell suspects that they
have more information than they actually do, and this, as
they are trained, is a helpful tool in the interrogation process.
It can also result in confusion and false confessions. And
(32:22):
like Ashley said, police can sometimes be an intimidating authority figure.
We naturally will want to say and do things for
them that elicit a perceived positive result from them so
that we can get them on our side. But that
dynamic is established merely as a technique to elicit a confession.
(32:42):
And while we in the criminal justice system hope that
that confession will be true and accurate, that's not always
the case. The last thing I want to touch on
before we move on our Miranda rights. You all know
that you have the right to remain silent. Bit. We've
seen it movies, we see it on TV shows, we
(33:02):
see police reading suspects that speech all the time. In
order for Miranda warnings to apply, two things must exist. First,
the person must be in custody and secondly, it has
to be an interrogation. Both of those things custody and
interrogation must be present before Miranda warnings are required. Whether
(33:27):
or not someone is in custody is sometimes a subjective determination.
Just because someone is not free to leave doesn't necessarily
mean they are legally in custody. And similarly, it's a
subjective question about whether or not someone is being interrogated.
Merely speaking with someone is not necessarily interrogating them under
(33:49):
the law. As Brian mentioned, an interview can turn into
an interrogation without a distinct change. Custody is also a
subjective term. Sometimes a suspect may feel like they aren't
able to leave a police station without technically being in custody.
In that case, police don't necessarily need to read you
(34:12):
your Miranda warnings or to remind you, for example, that
you have a right to remain silent. But it is
important to remember you always have the right to remain silent,
no matter whether you're in custody or not, whether you're
under arrest or not, or whether or not you're being interrogated.
You have the right to remain silent. It's also true
(34:34):
that police don't automatically have to read someone there Miranda
warnings when they're arrested. I think in the overwhelming majority
of arrest that take place in America, Miranda warnings are
not read. And that's perfectly fine, and it's perfectly legal.
An arrest can occur without Miranda warnings being given, and
(34:55):
it does not invalidate the arrest. That's a very common
misc conception. It merely means that any custodial statements that
were a product of an interrogation cannot be used in court.
As always, we want to hear from you. You can
leave us a voicemail about this or any of our
topics were discussing this season by calling four zero four
(35:19):
four one zero zero four four one. That's four zero
four four zero zero four four one next time on
sworn A friend of mine, Jennifer Thompson, she nationally known.
She's written a book. She was a survivor who was
(35:40):
attacked and picked the wrong guy, and now she has
started her own foundation, healing Justice. The circles that she
holds revolved around restorative justice. And believe me, I've spent
I don't know how much money on therapist, but it
wasn't until I sat in a restorative justice circle and
I saw the magic in it. Because I could now
sit in a circle in the air as they call it,
(36:01):
with other exonorees who have been to what I've been through,
and we sat there and we shed tears for a
whole weekend. I walked away a million pounds. Lighter Sworn
is a production of Tenderfoot TV and I Heart Radio.
Our lead producer is Christina Dana. Executive producers are Payne
(36:24):
Lindsay and Donald Albright for Tenderfoot TV, Matt Frederick and
Alex Williams for I Heart Radio, and myself Philip Holloway.
Additional production by Trevor Young, Mason Lindsay, Mike Rooney, Jamie
Albright and Halle Beadall Original music and sound designed by
Makeup and Vanity Set. Our theme song is Blood in
(36:45):
the Water by Layup. Show art and design is by
Trevor Eisler, editing by Christina Dana, mixing and mastering by
Mike Rooney and Cooper Skinner. Special thanks to the team
at I Heart Radio from U t a or In
Rosenbound and Grace Royer, Ryan Nord and Matthew Papa from
(37:07):
the Nord Group, back Media and Marketing and Station sixteen.
I'd also like to extend a very personal and special
thanks to all of our contributors and guests who have
helped to make all of these episodes possible. You can
find Sworn on Facebook, Twitter, and Instagram at Sworn podcast
and follow me your host, Philip Holloway on Twitter at
(37:30):
phil Holloway e s Q. Our website is sworn podcast
dot com, and you can check out other Tenderfoot TV
podcasts at www dot tenderfoot dot tv. If you have
questions or comments, you can email us at Sworn at
tenderfoot dot tv or leave us a voicemail at four
(37:52):
zero four for one zero zero four four one. As always,
thanks for listening
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