Submitted by Charlton Stanley (aka Otteray Scribe), Guest Blogger

“It is better that ten guilty persons escape than that one innocent suffer.”
– Sir William Blackstone KC SL, Commentaries on the Laws of England (1765)

One of the oldest cliché movie scenes of the past half century is the Gestapo agent, wearing a monocle, slapping a riding crop against his gloved hand, saying with a leer, “Ve haf vays of making you talk…..” Unfortunately, that caricature figure has come to life in in recent years, taking the form of rogue psychologists, unscrupulous investigators, and even the Vice President of the United States.

My motivation to write this is because of a phone call a few weeks ago. An old case I worked on back in the 1980s resurfaced with that phone call out of the blue. Of all the cases I ever worked on, the one I got the call about has been the most bothersome. It involved a murder, a coerced confession, a judge with a troubled psychological burden of his own, and a jury that would not believe confessions could be coerced. Plus, a district attorney with a reputation of wanting to win at any cost. Since this case has resurfaced and the new investigation is still under way, I can’t say too much about it now. As details become public, I will be writing more.

Let me start off by saying that most confessions may be legitimate, but since we have no way of knowing how many are false, no solid statistics are possible. The simple fact that so far, over three hundred people have been released from prison due to wrongful convictions is enough to give one pause. It is reasonable, based on the number exonerated so far, to assume there are a lot of them. We just don’t know which ones. Not all those overturned convictions were due to false confessions, but about a fourth of them were. If a defendant does make a false confession, and there is solid DNA evidence showing the defendant to be innocent, juries convict over 80% of the time, despite the physical evidence. One thing I find curious is the fact some prosecutors continue to prosecute cases even after the physical evidence proves they have the wrong person.

When I was a kid, my paternal grandfather and I were very close. I was named after him. He was one of the smartest men I have ever known. His father had been a judge, but my granddad decided to become a salesman instead of going into the practice of law. He was good at sales. His brother, my Uncle Ed, was another man who could sell anything, and ended up with his own insurance agency.

Granddad would tell  stories, and could keep a kid spellbound. He also knew some magic tricks, including some that involved hypnosis. It was part of his ability to sell almost anything to anyone. I am not sure if I picked up those skills because of the early start, or because I have a talent. At any rate, I learned them. Two of the most important things I learned were the power of repetition, and the power of indirect suggestion.

Along the way, I seem to have acquired at least part of his skill at storytelling. My dad was good at it too. As I grew up and became a teenager, I experimented with influencing people to do things unwittingly, but never made a systematic or organized effort to develop those skills. What I did was haphazard, since my interests were in other directions than either psychology or sales. I am embarrassed to tell the story, but in high school I worked as a bagger at a supermarket, along with several other high school buddies. One afternoon, I bet them I could get the janitor to go home early. They jeered at me, telling me I couldn’t. So for the next couple of hours, every time I walked past the guy, I simply asked if he was OK, because he looked like he didn’t feel well. By that time, he asked the manager if he could go home, because he felt ill. Looking back, I am horrified at what I did in my teenage cluelessness regarding the ethics of that situation. The reason I share that story now is twofold. First, it is an illustration of one of the many ways indirect suggestion works. Second, and this is where ethics comes in, just because you know how to do something doesn’t mean you should do it.

It was not until my senior year of college that I realized I probably should have majored in psychology instead of education. Fortunately, there was enough psychology in my education courses to satisfy most of the prerequisites for getting into graduate school in psychology. After starting to graduate school, I discovered the work of Dr. Milton Erickson. Strangely, the university library saw fit to keep all the books and journals about hypnosis in the locked room where rare books were kept, and even graduate students could not go in there without a library employee hovering the whole time. That is not conducive to being able to browse the stacks or sit and read at leisure. The study of hypnosis was definitely not part of the curriculum in the 1950s and 1960s.

Freud had tried to do hypnosis, but from everything I read, was horribly bad at it. Freud pronounced hypnosis of no value, and certainly of no use to psychotherapy. In those days, if Freud said it, it must be so, and thus hypnosis was left to the sole purview of the stage hypnotist and magician.

Since it wasn’t being taught, and not easy to get into that locked area of the university library, I bought my own books on hypnosis. The work of psychiatrist and self-taught hypnotist named Milton Hyland Erickson was just coming into prominence. Erickson’s genius was to reintroduce hypnosis and hypnotherapy back into psychiatric and psychological clinical practice. It was through his efforts that hypnosis overcame Freud’s stigma and once again was respectable in clinical practice.

Dr. Milton H. Erickson was a polio survivor. When he was so sick as a child, he taught himself hypnotic techniques to help manage his pain and near death experience. I was fascinated by Erickson’s work, could relate to him and his life experiences. I read everything I could get my hands on about him. Eventually, I managed to acquire the complete works of Milton H. Erickson, MD, including a number of audiotapes. He was a master of indirect suggestion. One of his techniques involved storytelling. Tell the subject some fascinating story, but connect it to their own inner experience, and pretty soon, being entranced becomes a trance. Other techniques involved confusion, saying or doing something that sounded or felt right, but was off by just a little bit. He was so good, that some of his colleagues would not shake hands with him, because he was famous for being able to induce catalepsy (a form of paralysis) in the process of shaking hands. In his later years, Erickson developed post-polio syndrome and was confined to a wheelchair. He died in 1980.

During the 1970s two men, John Grinder and Richard Bandler, collaborated on developing something they called Neuro Linguistic Programming (NLP). It was touted to be a combination of communicating, psychotherapy and personal development. Their theory was that interconnections between neurological processes (neuro), language (linguistic) and behavioral patterns learned through experience (programming) could be used to shape people into achieving specific goals. Their pseudoscientific jargon fit right in with the new age thinking of the time. Erickson was angry with them for hijacking many of his techniques of hypnosis and indirect suggestion, using them in ways he considered unethical and inappropriate. Research has shown the theoretical basis of NLP to be unsupported by science. Nonetheless, the essence of using the power of suggestion remains, even if their explanation of how NLP is supposed to work is pseudoscience. In other words, if you forget the mumbo-jumbo new age jargon, hypnosis can be used for programming someone to do or say something they might not otherwise do or say. One might say that Bandler and Grinder got the programming part right.

This discussion is not really so much about hypnosis, NLP, or other techniques as it is about how people can be induced to confess to crimes they did not commit. About the same time that Erickson began to make a name for himself as a skilled practitioner of indirect suggestion, a man named John E. Reid began developing a technique for interrogating suspects that bears at least a superficial resemblance to the suggestion techniques of Erickson, but is much more aggressive than Erickson would ever dream of. Reid trademarked his “Reid Technique” and began conducting classes for investigators. At the time of this writing, it is used by many law enforcement agencies in the US, including some Federal agencies. Other “interrogation” training instructors claim they either use NLP or some derivation of it. There is a curious connection between these techniques and confessions.

The Reid organization defends their methods, but Provincial Court Judge Mike Dinkel of Alberta, Canada slammed the Reid method of interrogation. In a scathing written opinion dismissing the charges against defendant Christa Lynn Chapple, Judge Dinkel ruled,

“Although there is no law prohibiting the use of the Reid Technique, I find that it has the ability to extinguish the individual’s sacred legal rights to be presumed innocent until proven guilty and to remain silent in the face of police questioning.

“I denounce the use of this technique in the strongest terms possible and find that its use can lead to overwhelmingly oppressive situations that can render false confessions and cause innocent people to be wrongfully imprisoned.”

The Calgary Herald reported the story.

The Innocence Project reports 311 exonerations to date, with the help of incontrovertible DNA evidence. According to the Innocence Project, approximately 25%, of those who were convicted and later exonerated had confessed to the crime they did not commit. Crimes that DNA proved beyond any doubt they did not commit. Eighteen of those innocent people had been sentenced to death. The average time served was 13.6 years. Seven out of every ten were people of color. Ground zero for false confessions seems to be Chicago and Cook County, Illinois, although there have been exonerations in 35 states and the District of Columbia so far.

Dr. Saul Kassin, Distinguished Professor of Psychology at the John Jay College of Criminal Justice, has been researching false confessions for years. Dr. Kassin finds there are three kinds of false confessions:

1.  Voluntary — The person confesses to a crime they did not commit without prompting from the police. These are often attention seekers, who want to be associated with an infamous crime.
2. Compliant — The person confesses to a crime through inducement or the process of the police interrogation.
3. Internalized — The person confesses to a crime because they are highly vulnerable to suggestion and are exposed to suggestive interrogation tactics where they come to believe they actually committed the crime.

Research using hypnotic suggestibility scales shows that about one out of five people fall into the category of being highly suggestible. Another 20% are highly resistant to suggestion. The other three-fifths of the population fall on a continuum somewhere in between. It is safe to say that about 20-25% of the general population will fall into Kassin’s third group of being easily influenced and suggestible. What’s more, the younger the subject, the more vulnerable they are. There is a reason for child protection laws, which apparently protect them from everyone but law enforcement interrogators.

David Drumm (Nal) wrote an excellent guest blog last May about the FBI not recording interviews, entitled Why The FBI Doesn’t Record Interrogations.

If an interview is not recorded, then it cannot be analyzed by experts on coerced confessions, or cross examined on the witness stand. Some jurisdictions are now requiring all interrogations to be recorded. The Innocence Project says that recorded interrogations reduce the number of false confessions. They point to these examples:

• The Supreme Courts of Alaska and Minnesota have declared that, under their state constitutions, defendants are entitled as a matter of due process to have their custodial interrogations recorded.

• In 2003, Illinois became the first state to require by law that all police interrogations of suspects in homicide cases must be recorded.

• Police departments in Broward County (Florida) and Santa Clara County (California), among others, have begun to record interrogations without a law requiring them. Proactive policies like these have been adopted because the practice benefits police and prosecutors as well as innocent suspects.

I have been doing what I do for four decades now, going into my fifth. I have no idea how many defendants I have interviewed, but they run into the thousands. Someone once told me I could get more information out of somebody in six minutes than they could in six hours. After a while one develops a style that works. During that time, I have never coerced anyone, threatened anyone, or browbeat them. I want information and accurate intelligence, not a regurgitation of some preconceived theory, whether my own or somebody else’s. In my opinion, that is the way it should be.

I had heard of this interrogator early in my career as a forensic psychologist, and consciously or unconsciously, modeled my style after several of his techniques. Hanns-Joachim Gottlob Scharff, who held the Luftwaffe rank of Obergefreiter (Senior Lance Corporal) was arguably the best interrogator of WW2. In fact, after the war he was given immigration status to the US where he lectured Air Force intelligence agents on his methods. Unfortunately, somewhere along the way, those lessons were forgotten. It was incumbent on Scharff to get solid accurate information. If prisoners just told him what they thought he wanted to hear, it was not actionable intelligence, but misinformation.

In future installments, we will discuss specific interrogation styles, and why they are effective in eliciting false confessions. In the meantime, here is Dr. Kassin explaining some of what his research has uncovered.