False confessions are a common piece in criminal cases. Let’s unpack why an innocent person might confess to a crime they didn’t commit. When you’re talking to a law enforcement person, whether you’re guilty of something or not, you’re already nervous, and you’re going to absolutely listen to what they say because they are a figure of authority. We’ve all been trained to get in line and do what we’re told from a very early age. Those beliefs do not go away, and are even magnified in certain situations when you’re dealing with a law enforcement officer.

Why do people admit to crimes they don’t commit?

The research shows that the phenomenon has two key factors, dispositional factors and situational factors.

Dispositional factors refer to pre existing elements such as age, personality traits and mental limitations that affect how vulnerable an individual will be to suggestive and coercive interrogation techniques. People with mental limitations who have low IQ, autism spectrum disorder and things of that nature, are disproportionately represented in the number of actual false confessions that have been documented. Youth is also a substantial risk factor for false confessions – research shows that child witnesses are more compliant and suggestible than adult witnesses and are more likely to internalize and actually start to believe fictitious events and generate memories of fictitious events when they’re exposed to leading questions, peer pressure, repetition and other socially influential tactics. Finally, mentally capable adults are not immune to these sorts of coercive tactics. Anybody can be predisposed to be compliant with adult and authority figures.

Situational factors refer to elements of a person’s immediate situation that increase the likelihood that a person might falsely confess. Suspects who feel intimidated or physically threatened by police are susceptible to false confessions, and are in fear of harsh legal consequences. Should they choose not to confess to a crime that they didn’t commit? They’re often threatened by police with severely and excessively harsh outcomes should they choose not to confess and fearing those excessively harsh outcomes, they choose to say that they did something rather than stand by the truth. Situational factors that have also been shown to produce false confessions include compromised reasoning abilities due to stress, exhaustion, hunger, and substance use. The physical setting of the interrogation can be particularly influential – such as isolation or confinement to an unfamiliar setting – and despite efforts at reforms, police officers continue to use intimidation, deprivation, prolonged interrogation, and physical abuse as a ‘means justify the ends’ mentality, which continues to control and dictate the behaviors of police and consistently lead to errors in law enforcement wrongfully accusing individuals. There are even situations of false confessions in high profile cases that have received media attention and are triggered by mental illness. Frequently when you have a case that receives broad media attention and press has put out a call for leads or tips at the request of law enforcement, you will have a flood of individuals come forth confessing to the crime that could have never possibly committed the crime.

Prosecutors will absolutely attempt to use a false confession to support a wrongful conviction – a defense attorney must demand and subpoena all records related to the accused interrogation including the audio and video recording if it’s available. Under Ohio law the vast majority of interrogations are required by statute to be in video recording. A motion to suppress statements is almost always appropriate in cases where there’s a confession or an admission, and it’s a great vehicle to challenge not only the legal admissibility of a confession, but also an avenue to challenge the veracity, the truthfulness and the accuracy of a confession, especially where there has been a later recantation or a retraction of the confession, because suppression is a judicially created tool that will prevent the admission of unreliable evidence. Now, judges stand as gatekeepers, and they can prevent prosecutors from admitting this evidence. The problem is that they frequently refuse to use that power on behalf of the criminally accused.

As of today, 27 states in the District of Columbia require recording of certain interrogations. Likewise, the United States Department of Justice issued a policy in 2014, requiring law enforcement officers to record investigative interrogations of any individual suspected of a crime. For people suspected of homicide and sexual assault, the law explicitly states the failure to record will not be used as a penalty against law enforcement. It is, however, a factor that the court can consider when deciding whether to allow or exclude the admission of a confession in a trial. A survey by the Ohio Innocence Project found that 52% of Ohio’s 253 law enforcement agencies had a recording policy, but only 25 of those 253 agencies required recording. 70% of agencies reported that officers received interrogation training, and 21% of jurisdictions reported that their officers receive no training and interrogation. This creates an absolute inequality under the law depending on which jurisdiction you’re in. Whether you’re in the country or in the city, and what resources your police department has determines whether your rights are protected or violated during an interrogation.

The most important protection against false confessions is to not speak to police without an attorney present in the first place. The second is making sure that you’re educated about your rights by consulting and retaining a qualified criminal defense attorney. The third is to make sure that your attorney explores the use of a psychological expert if the confession is found to be admissible, and therefore going to be admitted to the jury at trial. A properly trained psychological expert can explain to the jury all of the things that we’ve talked about today, why false confessions occur, and why this particular confession is unreliable.