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