By ALAN SHANOFF, Toronto Sun
Last Updated: January 29, 2011 3:36pm
What can we learn from the recent acquittal of Dinesh Kumar?
He is the father who was charged with the second-degree murder of his five-week-old baby in 1992.
He chose to plead guilty to a charge of criminal negligence causing death as part of a plea bargain that included a 90-day sentence to be served on weekends.
Had he been guilty of murder, it would have been the deal of the century. But he wasn’t.
So what could possibly motivate a father to falsely accept criminal responsibility for the death of a child and what can we do to prevent such miscarriages of justice?
Kumar had another child, a one-year-old who had been taken in protective custody following the death of his sibling.
Incredibly, part of the deal was an assurance the child would be returned after Kumar completed serving his sentence.
Think about that for a minute.
Plead guilty in exchange for the return of a child, or plead not guilty and risk losing your child indefinitely.
In order for a confession to be admissible it must be voluntary “in the sense that it has not been obtained … either by fear or prejudice or hope of advantage exercised or held out by a person in authority”.
Suppose Kumar confessed to causing his infant’s death after being threatened with the loss of his one-year-old son.
Surely such a confession would have been deemed involuntary and would have been inadmissible at any trial. So why, then, was it permissible to use the same inducement to extract a guilty plea?
At the same time, isn’t it rather odd that a murder charge with an automatic life sentence upon conviction would be bartered down to a criminal negligence charge with an agreed 90-day sentence?
If the prosecution had sufficient evidence to justify a murder charge, how could it agree to a criminal negligence charge and a 90-day sentence?
And how could it agree to return the one-year-old to a murderer?
So, either the initial charge wasn’t warranted or the prosecution was willing to punish a baby murderer with a slap on the wrist and permit him to regain custody of a toddler.
This doesn’t make much sense to me.
But even if the prosecution’s position was deeply flawed, why wouldn’t the trial judge have inquired into the propriety of the deal?
Shouldn’t the trial judge have made probing inquiries into whether any improper inducements or threats had been made to seal the deal?
Apparently, Kumar also pled guilty because Dr. Charles Smith was the star prosecution witness and it would have been impossible to challenge his expert opinion on the cause of the infant’s death.
We now know Smith had no training in forensic pathology. But shouldn’t that have been known or easily ascertainable in 1992?
In 1991, Justice Patrick Dunn acquitted a babysitter charged with manslaughter in the death of a 16-month-old child.
In the course of giving his reasons for acquittal, Justice Dunn was highly critical of Smith, pointing out that he wasn’t familiar with the scientific literature, failed to conduct a thorough investigation, gave unscientific evidence and was dogmatic in the presentation of his evidence.
So why would Smith have been considered “like a God” — reportedly even by Kumar’s own lawyer — when Kumar made his deal in 1992?
I don’t blame Kumar for having pled guilty.
Who wouldn’t have done the same in order to get his son back, particularly when faced with the incriminating evidence of an apparently God-like expert?
But if we want to prevent innocent people from pleading guilty or confessing to crimes they haven’t committed we need to examine this case carefully and learn from our mistakes.
Coerced or Nonvoluntary Confessions
Hollida Wakefield, M.A.* and Ralph Underwager, Ph.D.
Police may engage in deceptive and coercive interrogations to obtain confessions. When a confession is later retracted, judges and juries must assess the totality of the circumstances surrounding the confession, including the interrogation techniques used and the effects of these tactics on the particular defendant. A suspect who is vulnerable and confused or who is given false evidence by a coercive interrogator may produce a false confession. Expert testimony may be necessary to help jurors understand the circumstances that lead to nonvoluntary confessions. © 1998 John Wiley & Sons, Ltd.
A confession is one of the strongest forms of evidence that can be brought into a court of law. In the United States criminal justice system, prosecutors avidly seek confessions as the most persuasive evidence to win cases. Eliciting a confession and presenting it to the fact finder easily becomes a primary goal of the justice system. A confession has a compelling influence on jurors and they are more likely to convict on the basis of a confession than anything else, including eyewitness identification. This effect persists even when the jury is fully aware that a confession was coerced and likely nonvoluntary (Kassin & McNall, 1991; Kassin & Sukel, 1997; Kassin & Wrightsman, 1985).
However, confessions have also been a source of controversy. Whether the suspect was of sound mind and whether the confession was voluntary or coerced must be considered by judges and juries. Kassin (1997) notes that “a confession is typically excluded if it was elicited by brute force; prolonged isolation; deprivation of food or sleep; threats of harm or punishment; promises of immunity or leniency; or, barring exceptional circumstances, without notifying the suspect of his or her constitutional rights” (p.221).
If it is demonstrated that the police lied, fabricated evidence, or otherwise coerced a confession, the fact finder must consider whether the police lies and deception would have made an innocent person confess. Judges must determine the admissibility of the confession by evaluating whether it was voluntary, but they seldom find police lying so severe that it undermines voluntariness (Young, 1996). The result is that lying, deception, coercion, and fabrication of evidence may be approved and condoned in court rulings even while such practices are criticized. Convictions based on coerced confessions may later be upheld through the appellate process. Huff, Rattner, and Sagarin (1996) observe that a systemic bias exists in the justice system so that lower courts are seldom reversed by higher courts.
When a confession is admitted and later retracted and claimed to have been made under duress, an additional question is whether the jury can understand the pressures that led up to the confession. Milgram’s (1963, 1964) obedience studies suggest that, although most people may believe they personally would never succumb to pressure, their behavior in a coercive environment is to conform. Jury members may be unable to perceive how an innocent person could actually confess to something he did not do. Widespread overconfidence in personal ability to resist coercion may lead jurors to give undue and erroneous weight to a coerced confession. Expert testimony may be necessary to help jurors understand the circumstances that lead to nonvoluntary confessions, but trial courts have not always admitted such testimony.
JUDGES AS GATEKEEPERS
Whether a questionable confession is admitted as evidence before a fact finder is determined by the trial judge. The judge also determines whether expert testimony concerning the circumstances of the confession will be admitted. This is true whether the jurisdiction is operating under the older Frye rule or the more recent U.S. Supreme Court Daubert ruling on the admissibility of scientific evidence. A judge is the gatekeeper and either opens the gate for expert testimony or closes it. The result is that testimony about nonvoluntary confessions may or may not be admitted depending upon the particular judge and his or her interpretation of the law.
The problem with judges as gatekeepers is likely that described by Chief Justice Rehnquist in his dissent to the Daubert ruling:
I defer to no one in my confidence in federal judges; but I am at a loss to know what is meant when it is said that the scientific status of a theory depends upon its “falsifiability” and I suspect some of them will be too (Daubert v. Dow Pharmaceuticals, 1993, pp.3-4).
Saks (1989) sees the law as policy analysis without benefit of data and based on guesswork:
The law, and most of the people who enter the law, had their intellectual upbringing in the humanities. Law students are typically smart people who did not like math. The quantitative, empirical, social and behavioral sciences exist in another world (p.1115).
Judicial capacity as a gatekeeper may be affected by a number of factors including bias, personality dispositions, cognitive capacity, and social or political pressures (D’Amato, 1990; Imwinkelried; 1996; Landsman & Rakos, 1994; Wesley, 1984). For the science of psychology, the gatekeeping task of judges is an example of the fundamental tensions and conflicts between the law and psychology that have been discerned in the past (Meehl, 1989).
COERCED CONFESSIONS AND FALSE CONFESSIONS
Coerced or nonvoluntary confessions must be distinguished from false confessions, since not all coerced or nonvoluntary confessions are false and not all false confessions are coerced. Although it is common for defendants to retract confessions made during police interrogations, this will include both true and false confessions. Obviously, some nonvoluntary confessions are true. In this paper, the focus is on coerced and nonvoluntary confessions and is not limited to those that have been demonstrated to be false.
It is sometimes argued that police coercion, including deception and trickery, is necessary to make criminals confess, but such interrogation techniques also risk eliciting false confessions. The extent to which this happens is unknown since no one knows the actual rate of false confessions (Kassin, 1997). Several researchers maintain that enough instances have been documented to suggest that a concern over such a risk is justified (i.e., Ayling, 1984; Brandon & Davies, 1973; Kassin & Wrightsman, 1985; Leo, 1996a, 1996b, 1996c; Leo & Ofshe, 1998). Rattner (1988), in a sample of 205 cases of wrongful convictions, reports that coerced confessions accounted for 8.4%. In a study of 229 inmates in Icelandic prisons, 27 (12%) of the inmates claimed to have made a false confession in the past during police interviewing (Gudjonsson & Sigurdsson, 1994) and the majority of the subjects (78%) were convicted of the offense to which they had allegedly made a false confession1.
Others disagree that there is a significant problem with false confessions. Cassell (in press) believes that there is no empirical evidence that false confessions occur frequently and he maintains that the problem is largely confined to persons who are mentally retarded or have serious mental problems. He states that many reports of wrongful convictions from false confessions are based on media reports and other secondary sources, and that credible evidence shows that the individuals were most likely guilty of the crimes for which they were convicted. He argues that false confessions are not caused by police interrogation techniques in general but rather by using these techniques with narrow, mentally limited populations.
In another article Cassell (1998) estimates the number of false confessions leading to wrongful convictions using data from a variety of sources, primarily Huff et al. (1996). He believes that a reasonable estimate is in the range of 10 to 394 wrongful convictions from false confessions in the United States each year. Cassell stresses that this estimate relies on extensive extrapolations and assumptions and cannot be viewed as a hard number. It must also be remembered that this estimate is not of all nonvoluntary confessions or even of all false confessions, but only pertains to the subset of false confessions that result in wrongful convictions.
Being interrogated by the police is a highly stressful experience, especially when the individual is isolated and not in contact with familiar individuals. Isolation and confinement can cause a wide range of behavioral and physiological disturbances including loss of contact with reality (Gudjonsson & MacKeith, 1982). Foster (1969) notes that police interrogation “can produce a trance-like state of heightened suggestibility” so that “truth and falsehood become hopelessly confused in the suspect’s mind” (pp.690-691).
Stress can also arise from the suspect’s submission to authority. When the interrogator is perceived as being invested with socially legitimate authority, the suspect may obey instructions and suggestions which would ordinarily be rejected. The experiments by Milgram (1963, 1964) on obedience to authority illustrate this. This is apt to be more likely in an individual who generally defers to authority.
If a person has no experience with arrest and interrogation, he is more likely to become upset and stressed by the interrogation. A study in England (Irving, 1980) reported that anxiety and fear were most commonly observed in first-time offenders and those suspected of sex crimes. Observations noted included trembling, shivering, sweating, hyperventilation, frequent urination, and verbal incoherence. A substantial proportion of the suspects were not in a normal mental state during interrogation.
Gudjonsson and MacKeith (1982) note that factors encouraging a suspect to make a genuine confession may be similar to those that cause a person to make a false confession. They state that “non-psychotic individuals ruminating guiltily about such things as sexual deviation may also have an exceptionally low threshold to confession to things that they have not actually done” (p.259). The false confessor may be aware he is not telling the truth or his perceptions may be distorted or he might even be deluded for a brief period of time. The false confession in all of these situations is an interplay between the person’s mental state, basic personality, intelligence, and all of the environmental circumstances of the interrogation.
There are individual differences in the way people react to the stress of an arrest and interrogation. Three types of false confession have been distinguished: (a) voluntary (statements made without external pressure), (b) coerced-compliant (when the suspect confesses to escape an aversive interrogation, secure a promised benefit, or avoid a threatened harm), and (c) coerced-internalized (when suspects actually come to believe they are guilty of the crime (Kassin, 1997; Kassin & Kiechel, 1996; Kassin & Wrightsman, 1985)).
Although the last type of false confession seems less likely, a suspect who is vulnerable and confused (internal factors) and who is given false evidence by a deceptive interrogator (external factors) may confess to the act, internalize the confession, and confabulate details consistent with the newly created belief. A laboratory test of these two factors demonstrated that they can lead to a coerced-internalized false confession (Kassin & Kiechel, 1996). The Paul Ingram case is a well known example of this. Ingram, following months of coercive and misleading interrogation that included hypnosis, not only falsely confessed but recalled false details of crime scenes (Ofshe, 1992). Gudjonsson and LeBegue (1989) also provide a detailed case report of a coerced-internalized false confession.
A distinction must be made between the generation in an interrogative context of a false belief that a person committed a crime and a false memory for the crime. They may not go together (Gudjonsson, 1995). Creating a false belief may be the precursor to developing a false memory. The false memory may develop when there is some process which reinforces the false belief. Gudjonsson (1992) explains internalized coerced confessions by suggesting a memory distrust syndrome. This is thought to be a state of confusion in which people lose confidence in their own recollections of events. Then when the confusion dissipates and the original memory returns, the person retracts and challenges the confession.
A situation we have observed is when the accusation is made by an intimate or a highly regarded person. Although initially the accused knows it is false, he may need to explain how it could happen that the accusation was made. A low tolerance for ambiguity and a high need for closure may cause the person to think about possible explanations. Source monitoring errors may eventually lead to a confusion between what is thought and what happened. Across time the possible scenario becomes more and more real and detailed. For example, in one case, a man began thinking about an ambiguous dream he had. It then progressed through more dreams, more details, and then moved to possible behaviors suggested by the dreams. Finally, he admitted the possibility that he may have done something inappropriate.
THE GUDJONSSON SUGGESTIBILITY SCALES
Research indicates that criminal suspects who make confession statements which they later deny differ from subjects who persistently deny any involvement in the crime of which they are accused. Gudjonsson and his colleagues have developed a scale to assess “interrogative suggestibility” which is intended to be applicable to police interrogations (Gudjonsson 1984a, 1984b, 1991c, 1997; Gudjonsson & Clark, 1986). Interrogative suggestibility is seen as differing from other types of suggestibility and is defined as “the extent to which, within a closed social interaction, people come to accept messages communicated during formal questioning, as a result of which their behavioral response is affected” (Gudjonsson & Clark, 1986, p.84).
The features of interrogative suggestibility are:
1. It involves a questioning procedure which typically takes place within a closed social interaction.
2. The questions are mainly concerned with past experiences, events, and recollections. In contrast, other types of suggestibility are typically concerned with the motor and sensory experiences of the immediate situation.
3. Interrogative suggestibility contains a component of uncertainty, which is related to the ability of the person to process information cognitively.
4. Questioning in a police context commonly involves considerable stress with important consequences for the witness, victim, and suspect (Gudjonsson, 1997, pp.1-2).
The Gudjonsson Suggestibility Scales (GSS 1 and its parallel form, GSS 2) (Gudjonsson, 1997) are intended to help identify people who are particularly susceptible to giving erroneous accounts of events when subjected to questioning. The scale, which is applicable to questioning of witnesses and alleged victims as well as interrogations of criminal suspects, assesses responses to leading questions and to pressure resulting from negative feedback.
The scale is based on a short, narrative story, which is read out loud to the subject who is then asked to relate everything that can be recalled about it. After providing both immediate and delayed recall, the subject is asked 20 specific questions, 15 of which are subtly misleading. Next, the subject is clearly and firmly told that he or she has made a number of errors (even if no errors have been made), that it is necessary to ask all of the questions again, and that the subject should try to be more accurate. The extent to which the subject gives in to the misleading questions in the first trial is scored as Yield 1, any change in answers between the first and second trials is scored as Shift, and Yield 1 and Shift are added together to make up the Total Suggestibility score.
Many studies have been done on the GSS and the manual (Gudjonsson, 1997) provides normative data from a number of populations. Intelligence has been found to correlate negatively with GSS suggestibility scores in several studies (Clare & Gudjonsson, 1993; Gudjonsson, 1997; Richardson & Kelly, 1995). Poor assertiveness, evaluative anxiety, state anxiety, and avoidance coping strategies correlate positively (Gudjonsson, 1997). Adolescents do not yield to leading questions more than do adults, but they are more responsive to negative feedback (Gudjonsson & Singh, 1984a); but after age 16, there is no relationship between age and suggestibility (Gudjonsson, 1984a).
Most important for the issue of nonvoluntary confessions, research with the GSS indicates that “resisters” (subjects who persistently denied their involvement in the crime they were charged with) score significantly lower than “false confessors” (subjects who retracted confessions they had previously made during police interrogations) (Gudjonsson, 1984b, 1991a, 1991b). Gudjonsson (1991a) observes that these differences remain when intelligence and memory capacity are controlled for (Gudjonsson, 1991a). The results also suggest that the confessing behavior is linked to the suspects’ ability to cope with pressure, rather than their tendency to give in to leading questions per se. Suggestibility also appears to be related to the suspect’s experience with police interrogations in that it is negatively correlated with previous convictions (Gudjonsson & Singh, 1984b; Sharrock & Gudjonsson, 1993).
Gudjonsson (1991 a) observes that it is almost certain that not all of the “false confessors” in his study were innocent of the crime with which they are charged. However, at least some most likely were and the fact that not all of these people were of low intelligence reinforces the point that people of normal intelligence can and do falsely confess to serious crimes.
Police freely admit deceiving suspects and lying to induce confessions. Police have fabricated evidence, made false claims about witnesses to the crime, and falsely told suspects whatever they thought would succeed in obtaining a confession. They have lied about the suspect’s culpability, assuring him that his behavior was understandable and not really blameworthy, or telling him that if he described what happened, the victim could be helped. They have falsely told suspects that they had physical evidence such as footprints, fingerprints, or semen, that a codefendant had confessed, that the weapon used in the crime was found, that the suspect failed a lie detector, and that there was medical proof of sexual molestation (Heavner, 1984; Hrones, 1996; Skolnick & Leo, 1992; Underwager & Wakefield, 1992; Young, 1996). Lindsay (1991) conducted a series of four experiments which suggest that police deliberately and intentionally construct biased lineups to assure identification of a suspect they believe to be guilty.
Deception is justified by the police as a necessary evil in order to, obtain convictions of guilty persons. Skolnick (1982) notes that police officers move from investigation, through interrogation, to testimony. The system, including the training academies and the courts, permit, if not encourage, deception during the investigation phase. A detective may pose as a consumer, a fellow criminal, a panderer, or use informers and wiretaps. The line between entrapment and acceptable deceit is vague and unclear.
The actual number of cases where police lie is not known, but, because most criminal cases end with guilty pleas, the reported cases represent only a fraction of the actual cases where police lie (Young, 1996). Police deception can result in innocent people being convicted; McCloskey (1989) lists police lies on the witness stand, police pressure to coerce false witnesses, suppression of exculpatory evidence, shoddy police work after a conclusion has been reached about guilt, and falsified forensic science reports as major factors in wrongful convictions.
Miranda v. Arizona, decided by the U. S. Supreme Court in 1966, used quotations from Criminal interrogation and confessions by Inbau and Reid (1962) to show that police used deception and psychologically coercive methods in questioning people. The court concluded that interrogation is now psychologically oriented rather than physical but that the degree of coerciveness inherent in the situation had not diminished.
The court observed that the 16 strategies for interrogation proposed by Inbau and Reid (1962) show three major themes. The first reattributes the implications of the situation by shifting the blame or minimizing the seriousness of the crime. The second attempts to frighten the individual by exaggerating the evidence available, telling the person that the interrogator knows he is guilty, or stressing the consequences. The third makes an emotional appeal through showing sympathy, flattery, and respect, and by appealing to the best interests of the suspect. The court found such practices inherently coercive.
The most recent edition of this manual, which remains the most popular in the country for teaching interrogation methods, presents different themes for interrogators to use in eliciting confessions (Inbau, Reid, & Buckley, 1986). This book remains the most widely used text for training police. For example, in State v. Kelekolio the detective testified that he lied in the interrogation because he had been told to use that technique at a police seminar. When videotapes or audiotapes of police interrogations are available, it is easy to discover the specific techniques followed in the interrogation.
Leo (1996b) notes that American police have become extremely skilled at the practice of manipulation and deception during interrogation. Based on hundreds of hours of research as a participant-observer in three police departments, he concludes that modern interrogation techniques can best be understood as a confidence game based on the manipulation and betrayal of trust. Zimbardo (1967), based on his review of training manuals, believes that the interrogation techniques of the police are sometimes more highly developed, more psychologically sophisticated, and more effective than those that were used by the Chinese Communists in Korea. The result of such sophisticated and psychologically persuasive interrogation techniques is that many people will confess to crimes, even when it is against their best interests.
Leo (1996c) states that one of the most troubling aspects of false confessions resulting from such police interrogations is that the police leaders and trainers deny that their highly manipulative and deceptive interrogation tactics may produce confessions from entirely innocent persons. He observes that, due to the widely held belief among police officers that virtually all suspects are guilty and will confess only if they are, in fact, guilty, the interrogator may elicit a false confession without realizing it. Leo believes that many criminal suspects remain incarcerated for crimes they did not commit as a result of such false confessions.
EXAMPLES OF COERCED CONFESSIONS
Example 1: The Mother
Shortly after a fire killed her severely handicapped child, a mother was asked to come to police headquarters to talk with a detective. The mother knew that her two older children had been questioned by a detective at school that day but she had no idea what they wanted from her. After she reached the police station, she was questioned by a detective for several hours. At the conclusion of the interrogation, she was arrested and charged with murdering the child by starting a fire by deliberately throwing an afghan over a space heater that was next to the child’s crib.
The videotape of the interrogation illustrates the recommended coercive psychological techniques of Inbau et al. (1986) — deception, lying about evidence, and threat. For example, the book suggests asking, “[D]id you ever think about hurting [the victim] even though you did not go through with it?” (p.66). The interrogator is then instructed to follow up with questions about the kind and frequency of such thoughts. Throughout the interrogation, the detective asked variations on this question until the mother eventually acknowledged that it “was possible” she may have thought about it.
The detective claimed that he also had a special needs, severely handicapped child and he assured the mother that he and his wife often thought of hurting their child and even had said that he would be better off dead. Inbau et al. (1986) describe this technique of creating “a perception on the part of the suspect that he is a less reprehensible person, morally speaking, than the bare facts of the case would indicate” (p.97). Inbau et al. instruct the interrogator to “Sympathize with [the] suspect by saying anyone else under similar conditions or circumstances might have done [the] same thing” (p.97). The purpose in repeatedly telling the mother that anybody else, including the detective’s wife, would do the same thing (hope their child was dead and, in fact, kill her) was to elicit a confession.
Inbau et al. (1986) say “Reduce [the] suspect’s feeling of guilt by minimizing [the] moral seriousness of [the] offense” (p.99). The detective said several times that it was understandable to want a special needs child to be with God, in a better life, and not to suffer any longer. He said repeatedly that he could understand this because he thought this way about his own child.
The detective also threatened to charge the two older children with murder by telling the mother that they were suspects, and that if she did not start the fire, then they must have done it. When the mother later described her reactions to the interrogation, it is clear that at this point she dissociated and responded to this threat with high anxiety, confusion, and stress.
The detective falsely told the mother that they had conclusive physical evidence that the fire started from the space heater (no tests had been done at that point and none were produced at the trial). He also falsely told her at the beginning of the interrogation that there was no intention to charge her. When the interrogation ended hours later she went directly to jail.
The evaluation of the mother indicated that she was most likely dissociating at times during the interrogation. She also had a very high score on the Gudjonsson Suggestibility Scale.
The mother never admitted purposefully to choosing to throw an afghan on the space heater but only that it might have happened inadvertently without her knowledge. Later, she specifically denied that she put it there. She never admitted to wanting the child dead but only to the possibility that part of her may have wanted that to happen. Nevertheless, selected portions of the videotape were presented to the jury as a confession of murder.
Example 2: The Friend
John Doe was a mentally retarded young man who lived at home with his parents. He had never held a job but spent his time doing things with friends and working at odd jobs for his father. He was in special education classes in school and was on social security disability.
Mr. Doe had spent the night on a married friend’s couch after a fishing trip and awakened early the next morning and returned home. After he left, the three-year-old daughter came into the kitchen with her pajama bottoms off. The child’s mother questioned her about this and the child eventually said that Mr. Doe had been in her room. After further questioning, the child allegedly said that Mr. Doe had removed her pajamas and touched her in her genital area.
The authorities were contacted and the child was interviewed several times. Tapes indicate that these interviews were suggestive and leading.
A few days later, a police officer told Mr. Doe to come to the police station for an interview. By this time, the child had been interviewed and the police believed that Mr. Doe had abused her. The Miranda warning was not given because the police officer said that Mr. Doe was not under arrest and was free to leave the interview at any time.
The interrogation of Mr. Doe was not recorded. Later, Mr. Doe said that he had been confused about what was going on and that he felt “shook up and scared”. He said that he denied he had touched the child at first and that he repeated his denials several times but that eventually he agreed to what the officer wanted. He felt he had to do this in order to end the interview. Despite the fact that the officer later maintained he had been free to leave, Mr. Doe said he believed he would be arrested if he tried to go. At the end of the interrogation, the officer wrote out the confession and asked Mr. Doe to sign it.
The psychological testing confirmed Mr. Doe’s mental retardation. He was barely able to read and, in fact, could not read the signed confession out loud accurately. Mr. Doe’s intellectual limitations are essential in understanding his reaction to the interrogation. A retarded person learns early on to try to please others, particularly those in authority. They tend to acquiesce — that is, say yes to yes-no questions — much more than do persons of normal intelligence (Sigelman, Budd, Spanhel, & Schoenrock, 1981). The retarded individual learns to smile, nod, make appropriate short comments that mimic an unexceptional social interaction but which may be incomprehensible to the retarded person.
Mr. Doe’s performance on the Gudjonsson Suggestibility Scale (GSS) is consistent with this. After he answered the first set of 20 questions and was told he had made a number of errors and should try to be more accurate, his entire demeanor changed. He became noticeably anxious and uncomfortable and then changed 9 out of the 20 answers. His score on the GSS was two and one-half standard deviations higher than the mean of the normative sample.
What this means is that Mr. Doe was extremely vulnerable to making a non-voluntary confession in a police interview, even compared to other intellectually disabled persons. He responded to the interrogation by doing and saying what the police officer wanted and he lacked the cognitive capacity to understand the ramifications of agreeing to sign the confession statement that he was unable to read and understand.
Example 3: The Sergeant
The sergeant was accused of sexually abusing an 11-year-old boy with a history of serious psychiatric problems. The boy made the accusation several months after the alleged event while in the hospital. Charges were pursued and the sergeant was interrogated, arrested, and facing a court-martial. The interrogation was not recorded but information on the circumstances of the confession was obtained from the testimony of various people in the Article 39 hearings.
The interrogation took place in a small windowless interview room with the doors locked. The agent, according to his hearing testimony, interrogated the sergeant for over an hour until he confessed. The sergeant did not directly admit to any specific acts, but instead the confession was in the form of agreeing to allegations posed to him by the agent. The interrogation was not taped and the agent did not begin to take notes until after the confession. He acknowledged using the interrogation technique of exploring different themes (Inbau et al., 1986) to make the sergeant confess.
After the confession, the sergeant vacillated back and forth between admitting and recanting the allegations. According to the agent, he started crying and became extremely upset and then withdrawn, quiet, emotional, and hard to talk to, “as if he was mentally not with me anymore”. After the agent dictated a statement to be signed, he observed the sergeant on his knees, praying and crying.
The chaplain was called who observed the sergeant leaning against the shelf and uttering a prayer. A supervising officer was called and the chaplain and the officer described the sergeant as “very distraught”, “highly upset”, and “shell shocked”. The officer took him to the hospital. On the way to the hospital he told the supervising officer that he really did not know what was going on, but that he was sure he was not guilty. He said that the agent had wanted him to sign a statement but he was not sure whether he signed the statement or not. The sergeant met with a psychiatric resident who reported that the sergeant adamantly denied abusing the boy.
While in the hospital, the sergeant called his pastor and asked him to come to the hospital. When the pastor arrived, the sergeant was frantic, pacing back and forth with a wild look in his eyes, and weeping and incoherent. He eventually calmed down enough to tell his pastor what happened. He described the allegations and said that the agent had kept telling him again and again “Let’s get this kid some help”. He said that he lined everything out in the statement except for a part about exposing himself to the boy under the carport. He said that this might have happened accidentally when he was wearing gym shorts with no underpants.
He said he remembered very little about the interrogation. His recollection was that he initially denied the abuse but the agent repeated that he knew it had actually happened and kept saying, “Come on sergeant, Billy is really in bad shape … Billy needs help and you are the key to him getting well”. The sergeant said that he eventually admitted it so the child could get help but that it really did not happen.
The sergeant had no prior history of psychiatric or psychological treatment. He was very active in the United Pentecostal church and reported the gift of the Holy Spirit and speaking in tongues. Psychological testing indicated that he was conforming, conventional, moralistic, immature, naive, and suggestible and had difficulty handling stress and conflict. He was vulnerable to dissociating if placed in an extremely stressful situation.
The descriptions of the sergeant’s behavior during and following the interrogation indicate that he reacted with unusual distress during and after the time the confession was elicited. Persons who have no experience with arrest and interrogation and those suspected of sex crimes are especially likely to become upset and stressed by the interrogation and to therefore not be in a normal mental state (Irving, 1980).
The theme approach used in this interrogation is included in the tactics recommended by Inbau et al. (1986). The agent overwhelmed the sergeant with damaging evidence, asserted a firm belief in his guilt, and then suggested that it would be easier for all concerned if the suspect admitted to his role in the crime. In addition, the personality characteristics of the sergeant are likely to have made him unusually vulnerable to the interrogation techniques designed to elicit a confession.
Example 4: The Stepfather
The stepfather, who also had several biological children from three different women, had a history of petty infractions of the law and was unemployed. He was charged with sexually abusing his 8-year-old stepdaughter. He was interrogated by the police and initially denied the allegations but eventually acknowledged sexually abusing the child on several occasions when he was very drunk. He then signed a confession which he later retracted. The interrogation, which lasted two and one-half hours, was not taped.
According to the stepfather, he was arrested at his home by four police officers, handcuffed, and brought to a small interrogation room with a one-way mirror. The handcuffs were removed during questioning. He said that he became very frightened when he realized what he was being questioned for. “I was scared … This was the scariest time in my life.” He was frightened because he knew how serious the charges were and how much trouble this would cause. He was afraid that he would go to prison for the rest of his life.
He initially denied the allegations but then the police officer took a five minute break and returned, saying that their investigation had shown that he had, in fact, had intercourse with his stepdaughter. In the police report, the officer acknowledged he told the stepfather the medical evidence convinced him the stepfather was not being truthful in his denial, that the child would not make up a detailed disclosure such as this, and that the stepfather was ”sick” and needed help.
The stepfather described the officer waving a piece of paper at him while maintaining that they had medical proof of penetration and had found blood and semen on the sheets and the child’s underwear. He said that the officer screamed, “You’re a good f— liar” and “turned red in the face because he was hollering so bad”. He said that the interrogator told him he would get over five counts if he refused to sign a confession but only three if he did. The interrogator kept talking about all of the counts and said that he would go to jail for 160 years. He said, “I’ve been doing this for 13 years and know when someone is lying”. During this period, the stepfather described himself as crying and extremely frightened. He said he finally made the verbal admission and signed the confession because he believed he would be convicted of more counts and be in jail much longer if he did not go along with it.
Psychological testing indicated that the stepfather was of average intelligence but had long-standing and severe personality problems, was easily distracted and confused, and was likely to deteriorate under stress. His total suggestibility score on the Gudjonsson Suggestibility Scale was two standard deviations above the mean. His personality made him especially vulnerable to the type of coercive police interrogation he later reported and which is described in the police officer’s report.
Taping Interrogations of Suspects
Only one of the above examples, that of the mother, was taped. In the third example (the sergeant), the agent acknowledged in his Article 39 testimony that he used the interrogation technique of exploring different themes to encourage the sergeant to “admit to wrongdoing when he otherwise wouldn’t”. In the fourth example, the officer’s report corroborated some, but not all, of what the stepfather claimed took place in the interrogation. But, in the second example (the friend), the police officer insisted that the young mentally retarded man knew he was not under arrest and was free to leave. The young man was only able to provide limited details of what took place in the interrogation.
We believe that videotaping is extremely helpful in dealing with nonvoluntary and retracted confessions. Without a tape the issue is likely to come down to a dispute between the suspect and the police about the nature of the interrogation. Video- or audiotaping provides the only means by which what actually took place can be known for certain. Requiring all interrogations of suspects to be taped is therefore an important way of responding to the possibility of psychologically coerced interrogations and police deception.
Cassell (1997) notes there is virtual unanimity that videotaping interrogations is an effective solution to the problem of false confessions. He argues that videotaping provides an excellent protection for false confessions resulting from inappropriate police questioning since it allows judges and juries to see when the police have coerced an innocent person into admitting to a crime he did not commit (Cassell, 1998). In addition, taping protects the police against false claims of improper questioning.
Leo (1996c) observes that many police stations now routinely tape interrogations of suspects and that the state supreme courts of Minnesota and Alaska have held that statements obtained in the absence of taping are generally inadmissible. He argues:
The use of audio or videotaping inside the interrogation room creates an objective record of police questioning to which all interested and potentially interested parties may appeal — police, suspects, prosecutors, defense attorneys, and juries — in the determination of truth and in judgments of justice and fairness. The use of videotaping is thus the most viable legal intervention for resolving many of the antinomies of crime control and due process inherent in police interrogation of the accused in a democratic society (Leo 1996c, p.682).
VOLUNTARINESS AND ADMISSIBILITY
Confessions have been problematical for the U.S. justice system. Fact finders must evaluate the reliability of a confession, first in terms of its admissibility and, if admitted, in terms of its weight. To do this, they must determine whether the confession was voluntary or was the result of pressure or inducement and whether the defendant was intellectually competent or was anxious, fatigued, mentally retarded, or unusually suggestible. This is a complex and difficult task.
Young (1996) describes how the standards for the admissibility of confessions have shifted back and forth over the years. Early in American jurisprudence, a high standard for admissibility of a confession was set so that the slightest deceptive practice in eliciting a confession rendered it inadmissible. The U.S. Supreme Court first addressed the admissibility of a confession and the test of voluntariness in 1897 in Bram v. United States. In Bram, the Supreme Court analyzed the issues in terms of the Fifth Amendment privilege against self-incrimination and ruled that to be admissible a confession must not be extracted by any sort of threat or violence nor obtained by any direct or implied promises, however slight.
Bram, however, was a federal case and the Supreme Court’s reliance on the Fifth Amendment in this ruling limited it to federal cases. At the beginning of the 20th century state courts generally admitted confessions obtained by lies and deception, reasoning that such tactics were not apt to produce false confessions. During this period, there was a shift as the police began to take over the interrogation process and questioning moved from judicial supervision to the back room (Young, 1996).
Young (1996) speculates that the leniency of state courts in admitting confessions obtained by police interrogation may have been due to their responding to the new role of the police and their hope for more efficient and successful law enforcement. The result was that for many years state police misconduct was unrestrained. In 1931, the Wickersham Commission Report provided numerous examples of state police misconduct in interrogations and warned of the dangers of false confessions.
In 1936, using the Due Process Clause of the Fourteenth Amendment, the U.S. Supreme Court ruled that confessions could not be obtained by physical violence (Brown v. Mississippi) and a few years later reversed a conviction obtained by persistent questioning and “other ingenious form of entrapment” (Chambers v. Florida, 1940) (Young, 1996, pp. 444-445). In the 35 confession cases it decided from 1936 and 1964, the Supreme Court employed the due process voluntariness test to evaluate the admissibility of confessions and it also delineated appropriate and inappropriate interrogation techniques, generally by reducing the amount of psychological pressure that could produce a legally voluntary confession (Leo, 1996c). In these cases, the Supreme Court continued to criticize third degree tactics and, in considering the voluntariness of a confession, looked at the totality of the circumstances, establishing that test as the standard by which it would review police conduct in interrogations (Young, 1996).
The criterion for the admissibility of a confession has thus evolved into the quality of voluntariness. The aim of admitting into evidence only voluntary confessions is to prevent the introduction of unreliable evidence. The Supreme Court has kept the definition of voluntariness vague and imprecise and speaks of a comprehensive analysis of the totality of the relevant circumstances (Kassin & Wrightsman, 1985). But, as currently interpreted, the modern test of voluntariness is so flexible that courts can use it to admit confessions obtained by police lying (Young, 1996).
The result is that judges may exclude confessions where the coercion is blatant and obvious but not exclude confessions where the coercion is subtle and more readily disguised. Typically, confessions are excluded if they are elicited by physical violence or a threat of harm or punishment, promise of leniency, or without notifying suspects of their Miranda rights (Kassin & Sukel, 1997).
However, although some courts have differentiated between false statements and fabricated evidence (Young, 1996), even clear evidence of police lying and fabrication of evidence may be considered acceptable. In State v. Jackson (1983), the interrogating officer put blood and fingerprints on a knife that was similar to the murder weapon and then photographed it so it appeared that a fingerprint identification had been made. In the interrogation, the suspect was shown the knife and the photograph and told that the fingerprint had been identified as his. Despite the use of this clearly fabricated evidence to obtain a confession along with other false statements, the North Carolina Supreme Court ruled that these techniques were constitutional because they were not likely to make an innocent person confess.
ADMISSIBILITY OF EXPERT TESTIMONY
ON COERCED CONFESSIONS
The effect of the more subtle coercive interrogation methods on jurors is extremely powerful. Although jurors may discount confessions when it is evident they were obtained by blatant coercion, when it appears to be the more subtle interrogation techniques that elicit a confession jurors accept it and discount any coercion (Kassin & McNall, 1991). In a laboratory experiment, Kassin and Sukel (1997) demonstrated that, even when a confession was recognized as coerced, when it was stricken from the record, and when mock jurors said it had no influence, the confession increased the conviction rate.
In Arizona v. Fulminante (1991), the U.S. Supreme Court found that Fulminante’s confession that he had murdered his stepdaughter was coerced and that it was “prejudicial error” to admit it. But the court also ruled that in certain circumstances, such as when a confession is cumulative or when there is sufficient corroborating evidence, a wrongly admitted coerced confession may constitute ”harmless error.” That is, the court said that admission of a nonvoluntary confession is a “trial error” similar to the erroneous admission of other types of evidence. The Fulminante opinion therefore places great faith in the ability of a jury to properly evaluate a confession and the evidence about how it was obtained (Kassin & Sukel, 1997).
When a coerced confession is admitted into evidence, the jury will be required to evaluate the testimony about the circumstances surrounding the confession. Unfortunately, research indicates that jurors may have difficulty correctly performing this task (Kassin & Sukel, 1997). It can be extremely helpful to have testimony from an expert concerning the social psychology of interrogation tactics, the circumstances surrounding false or coerced confessions, interrogation tactics used in the particular case, and the characteristics of the defendant that may have made him or her unusually susceptible to a coercive interrogation. This type of testimony makes it possible for the finder of fact to properly evaluate the confession.
In United States v. Hall (1996), the Seventh Circuit Court of Appeals reversed Hall’s kidnapping conviction on the grounds that expert testimony relating to the police interviews of the defendant and the defendant’s susceptibility to giving false confession was erroneously excluded. One of the experts was social psychologist Richard Ofshe, a recognized expert in coercive police interrogation techniques and coerced confessions. The court held that the district court’s “failure to undertake full Daubert inquiry regarding admissibility, as scientific evidence, of psychologist’s testimony on false confessions was not harmless” (p.1338) and it said that the district court had erred in excluding the evidence related to the police interview techniques because “it saw no potential usefulness in the evidence, because it was within the jury’s knowledge” (p.1341). The court stated:
This ruling overlooked the utility of valid social science. Even though the jury may have had beliefs about the subject, the question is whether those beliefs were correct. Properly conducted social science research often shows that commonly held beliefs are in error. Dr. Ofshe’s testimony, assuming its scientific validity, would have let the jury know that a phenomenon known as false confessions exists, how to recognize it, and how to decide whether it fit the facts of the case being tried (p.1345).
The court noted that:
[O]nce the trial judge decided that Hall’s confession was voluntary, the jury was entitled “to hear the relevant evidence on the issue of voluntariness and [the trial judge was to] instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances” (p.1344).
The court addressed the fact that some of the knowledge to which the experts would have testified was within the jurors’ experience, since the district court had concluded that the expert testimony would usurp the jury’s role:
If the expert testimony would be helpful and relevant with respect to an issue in the case, the trial court is not compelled to exclude the expert just because the testimony may, to a greater or lesser degree, cover matters that are within the average juror’s comprehension (p.1342).
In its ruling, the court summarized the approach a judge must take under Daubert when faced with a proffer of expert scientific testimony and stated that “we cannot be confident that the district court applied the Daubert framework” (p.1342). The court concluded that the failure of the district court to conduct a full Daubert inquiry was not harmless error, since Dr. Ofshe’s proffered testimony went to the heart of Hall’s defense. It also concluded that the other psychologist should have been permitted to testify about Hall’s susceptibility to interrogation techniques and his propensity to give a false confession.
Following the Seventh Circuit ruling remanding a new trial, a Daubert hearing was held in the district court (United States v. Hall, 1997) to determine the admissibility of Dr. Ofshe’s expert testimony. At this hearing, the district court judge determined that the proffered testimony relating to false and coerced confessions was properly understood to be scientific knowledge. The basis for this determination was the testimony that there is a large body of scientific research dealing with coercion, false confessions, and interrogation methods.
Psychological coercion appears to be common in the interrogations of suspects. The structure and nature of law enforcement is a powerful influence that may produce police misbehavior. An indeterminate number of nonvoluntary confessions may be attributed to the coercive nature of police interrogation during which deceptive and deceitful practices may be used. A psychologist who relates to the justice system needs to understand the extent, nature, and impact of these practices. However, in order to have testimony about this scientific knowledge admitted, the psychologist must be prepared to deal with efforts to preclude such testimony. The gatekeeping function of judges must be understood and responded to with a careful, valid, and reliable presentation of the relevant scientific research.
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didn’t harm my baby
by EMINE SANER, Evening Standard
o Harris knows how close she came to losing her children. She looks
on happily as her two eldest sons race around in excitement. Because
of the snow, there is no school today where they live in
Hertfordshire and Sam, nine, and Ryan, seven, are jumping up and down
and looking out of the window.
Her youngest son, Connor, two, is gurgling contentedly on the floor,
playing with his toys. Jo knows how lucky she is to still have them
around her because, when Connor was just four months old, she was
accused of shaking her little boy so violently that she could have
In April 2002, Jo, now 29, a full-time mum, put Connor to bed while
she had a bath. When she came out some 20 minutes later, she went in
to check on him and found, to her horror, that he had stopped
breathing. He was blue and lifeless.
“I just freaked out,” she says. “I was in a complete panic. I picked
him up and shook him very gently and he started breathing again, but
he still wasn’t normal, his breaths were really shallow.”
She called her husband, Dale, who works for a haulage firm and was at
a nearby friend’s house, and they rushed Connor to the local
“The doctors examined him and said he was stable,” says Jo. “They did
some blood tests and I told them I had shaken him to get him
breathing again. They didn’t say anything, they seemed fine about it.
He was kept in for a couple of days but they couldn’t seem to find
anything wrong. They just said he had some sort of virus.”
Swelling on baby’s head
The Harrises took their son home but Jo noticed that Connor still
wasn’t quite right. “He was sleeping more than usual and not feeding
well. About a week later, I noticed a swelling on the top of his
head. I took him straight back to hospital.”
Jo spent a fraught night by her baby’s bedside, fearing the worst.
The next morning, one of the doctors said Connor needed to have a
brain scan. “The doctor came back and told me the scan showed blood
clots on Connor’s brain,” says Jo. “She asked if he’d had a bad birth
or been in a car accident.
“When I told her he hadn’t, she said the only other explanation was
shaken baby syndrome, which I had never heard of before.
“She said he had signs of being shaken violently on a regular basis.
I told her I’d shaken him the week before, but it had only been very
gently and only the once.
“By this point I was in tears. It hadn’t really sunk in that I was
being accused. All I could think about was Connor and what would
happen to him. I thought he was going to die.”
Doctors contacted social services
The doctor told Jo that Connor would need another brain scan and,
because of her suspicion of shaken baby syndrome, of which some 200
cases are reported every year, that she had contacted social
“I couldn’t believe it,” says Jo. “I asked her if she thought I’d
harmed my baby and she said she couldn’t say. I phoned my husband in
tears and he rushed over. When he got to the hospital he demanded to
see a doctor and was told that I had shaken our baby.”
********”The traumatic experience of two years ago came flooding back
to Jo this week when Lord Goldsmith, the Attorney-General, announced
that dozens of parents jailed for shaken baby syndrome are to have
their cases reviewed.
The ruling came after Angela Cannings was acquitted of killing two of
her children. She had been convicted largely on the evidence of
discredited paediatrician professor Sir Roy Meadow. “******
Thousands of cases – of infanticide, or where children were removed
from their families – are to be re-examined.
From the moment the finger of suspicion was pointed at Jo, she wasn’t
allowed to be alone with her baby.
“One of the doctors told me that if I even tried to take Connor out
of the room, he would call the police. There was one very kind nurse
but the rest of the staff just made me feel guilty.”
The second scan seemed to confirm the presence of blood clots; worse,
when Connor was X-rayed, he was found to have a suspected broken
wrist and fractured ribs.
“When the hospital told me I just broke down,” says Jo. “I knew I
hadn’t hurt him but I started to think someone else had. I went
through everyone I had left him with in my mind.
“I never doubted my husband. I demanded a second opinion and the
scans and X-ray were sent to Great Ormond Street hospital.”
When Connor had been in hospital for two days, a social worker and a
child protection officer arrived to tell Jo and her husband that they
weren’t allowed to take him home.
Instead, he had to be placed with a member of the family or a close
friend. “I was crying and saying, ‘He’s mine, you can’t do this’ over
and over again.”
Baby handed to sisterin-law
After he had been in hospital for four days, the doctors, who were
still waiting for the results from Great Ormond Street, said Connor
was stable enough to be discharged.
Weeping, Jo handed him over to her sister-in-law, a lawyer, who lived
nearby. “She doesn’t have any children and she had no idea how to
look after a baby,” says Jo.
“I gave her long lists of instructions, his cot, bottles, baby
monitor. I made sure he had his favourite green blanket and dummy.”
Jo’s eldest son, Sam, suffers from attention-deficit hyperactivity
disorder – diagnosed a month before Connor’s birth – and because this
makes him boisterous, Jo couldn’t help wondering if he could have
hurt his younger brother.
“It did go through my mind,” she says. “But I had always been careful
not to leave Connor alone with Sam.” The effect on the children was
severe. “I sat them down and explained that I had been accused of
hurting Connor. Sam said, ‘Tell them I did it and then he can come
home’ and Ryan said, ‘You’ve never hurt any of us’.
“My husband was a big support. He never asked me if I had hurt Connor
and I don’t think he suspected me, but when doctors and the social
worker were saying it had to be the only explanation, I would have
understood if he had.”
Accusation impossible to deal with
For Jo, being accused of harming her child was almost impossible to
deal with. “I felt that I was having a breakdown,” she says. “Losing
Connor was hell. I couldn’t sleep, I would just read medical
textbooks every night to see if I could find any other explanation
for his injuries.
“Most of the time, though, I just sat and cried. The idea that I
could have hurt my baby so was alien to me. I was all ready to take
Sam and Ryan to my sister-in-law’s house to get Connor and just drive
anywhere. I thought that if I was found guilty, all three boys would
be taken away.”
Later that week, Jo and her husband had to go to the police
station. “They questioned each of us for two hours. They kept asking
me if I’d shaken Connor. I told the truth – that I had, but only
gently, because he wasn’t breathing – but I felt like a criminal. It
was so traumatic. I was in tears for the whole time.”
Jo and her husband were allowed to visit Connor, but not to be alone
with him. “He was waking up in the middle of the night for feeds and
I simply couldn’t get to him. It was so hard to leave him there.”
Just over a week after Connor had been placed with her sister-in-law,
Jo went along for her routine visit. Her husband was already
there. “He opened the door and he had a huge smile on his face,” she
“He said the hospital had just called and they had the results back
from Great Ormond Street – there were no blood clots, no broken
bones – and that the hospital had made a mistake. We were allowed to
take him home.”
Stigma and emotional strain remain
But the stigma and the emotional strain of being falsely accused -
the family have never had an apology from the child protection unit,
and a mooted inquiry has never materialised – still haunts them.
“I am so over-protective of Connor,” says Jo. “He didn’t start
walking until late because I would wrap cushions around him so he
wouldn’t hurt himself when he fell. I watch him constantly.
“On the one hand, I keep wanting to take him to the doctor in case
there’s something wrong, but on the other I’m scared of doing that.
“He fell down some steps a few months ago and I had to think twice
about taking him to hospital -I know that what happened is still on
his record, so if anything happens to him, I would feel under
The Harrises’ children, too, still suffer. “Even now, if I say Connor
has to go to the doctor, my older boys get upset because they think
he’s not going to come back.
“I can’t get rid of the stigma of being accused of hurting my child.
Just two weeks ago, Ryan came home from school in tears because a boy
had said I was a babybeater.” Jo had read about Angela Cannings’s
case, and wrote to her in prison. “I wanted to show my support.
Writing to her reminded me of how lucky I was.
“She would write to me about how awful it was to be in prison when
she hadn’t done anything, that all she wanted was to be at home with
“I know that the doctors at the hospital had my son’s interests at
heart, but I want people to realise that medical experts can, and do,
To contact the Five Percenters, the campaign group which supports
parents who have been wrongly accused of SBS, call 020 7639 0942 or
Shaken Baby Syndrome
Do Confessions by Alleged Perpetrators
Validate the Concept?
The concept that a certain constellation of findings develops immediately after a baby is shaken, with no impact to the head, is based solely on confessions or admissions by alleged perpetrators. The reliability of confessions in the setting of interrogation by law-enforcement officials is questionable. A review
of the literature reveals very few cases of admissions of pure shaking. Methodologic flaws preclude any definitive conclusions about causation from these cases.
The Origins of the Shaken Baby Syndrome
The shaken baby syndrome (SBS) is embedded in the collective minds of the public, law enforcement, prosecuting attorneys, child-protection personnel, and physicians. The concept was largely derived from the papers of Caffey, a radiologist specializing in pediatric cases. He had for years suggested that the multiple limb fractures he observed in babies were the result of abuse. It was not until Kempe and his associates at the University of Colorado Medical Center in Denver published their seminal article in 1962 that the theories of Caffey and others began to gain acceptance. A sensational case of a child-care nurse who admitted to shaking and killing three babies in her care attracted Caffey’s attention, and he apparently thought that her admission explained what he had been seeing for years but had been unable to explain.
Caffey now theorized that multiple fractures of the lower extremities and other bones as well as subdural hemorrhages in apparently abused babies were caused by the flailing legs and a head flopping back and forth with shaking. This mechanism, without any scientific evidence to support it, made intuitive sense to him and others, and thus was born whiplash-shaking and later the shaken baby syndrome.
SBS has been embraced by the American Academy of Pediatrics and other organizations. They support the concept that manual shaking of a baby causes a constellation of rapidly evolving processes (subdural hemorrhages, retinal hemorrhages, brain swelling, metaphyseal long-bone fractures, respiratory
failure, and often death) in the apparent absence of signs of external injury, and that these things collectively cannot occur in any other context than abuse.
Conservatively, more than 100 case reports and small series in support of Caffey’s theories have appeared in the literature from the early 1970s to 2001. A number of them provided perpetrator admissions of shaking that seemed to validate the concept of shaking as a cause of the syndrome. However, a literature that challenges the mechanism of injury, the components of SBS, and even the existence of the syndrome itself has also developed. These challenges are in the form of biomechanical analyses, criticism of case-analysis methodology, analysis of admissions of alleged perpetrators, and a consideration of alternate explanations. It is safe to say that there is a deep divide between proponents of the SBS and its critics.
A Review of the Confessional Literature
Several recent studies have attempted to correlate confessions of perpetrators with injuries typically found in cases deemed to be SBS. These studies have been regarded by many as strong support for the theory of SBS. Of prime concern in these papers, however, is the basic issue of the value of a supposed confession in determining a mechanism for injury. With any confession or admission, there is the issue of veracity. Accused individuals are well known to fabricate historical information, augment certain aspects of what they might have done, say what they think an interrogator wants to hear, or omit important facts, presumably to give a better impression than might otherwise be the case.
Furthermore, though it is difficult to fathom why, accused individuals may confess to things they didn’t do. The issue of duress in its many forms in such cases is a valid one. One scenario in alleged SBS cases is that an interrogator (policeman, child-abuse professional, or child-protection professional) may employ subterfuge to secure an admission of shaking. Deceit is not uncommon, as when the interrogator may communicate to the accused that if you could tell us exactly what happened and if you shook the baby, we could do something for the baby and maybe save its life. There are, of course, no specific treatments in such cases other than those already being given to the baby, and this type of suggestion is disingenuous at best.
There may be other instances in which the results of interrogations and supposed statements by an accused are not what the accused said at all. Thus it is virtually impossible to determine what in an admission or confession is true and complete, false, fabricated, or tainted.To base an injury causation study on such information does not meet the accepted standards of analysis or interpretation because of insoluble issues of bias. This does not say that admissions/confessions are useless, only that validity and helpfulness depend on the context and the use being made of the information.
In a recent report of Biron and Shelton, the authors concluded that shaking alone can produce serious neurological impairment or death. They based their study on 52 cases collected in Queensland, Australia, over a 10-year period (1993-2003). The population analyzed was defined as those children under the age of 2 years who were judged to be homicides or assaults.Ateam of child-protection personnel, pediatricians, welfare, and law-enforcement professionals evaluated the cases. Transcripts and tape-recorded interviews with witnesses and perpetrators were reviewed, as were autopsy reports when they were available. The authors classified those babies as having been injured by shake only by the presence of subdural and/or subarachnoid hemorrhage, retinal hemorrhages, and absence of medical (skull or scalp) injury or witness evidence of impact. The remaining cases were classified as impact only, as determined by skull or scalp injury, perpetrator or witness evidence of an impact without associated shaking, and the absence of retinal hemorrhages.
Shake impact cases were identified if they had combinations of the above. Cases with insufficient evidence were called indeterminate.Twenty of 52 babies died. The authors concluded that of the 52 cases, 13 were shaken only (five deaths), 3 had head impact only (one death), and 25 had evidence of both shaking and impact (ten deaths), with 11 cases judged indeterminate as to cause (four deaths). In five of the 13 shaken only cases recorded, perpetrator confessions were obtained; these five cases and two more were presented in detail.
The authors cited a number of papers that have questioned, from various perspectives including biomechanics, the validity of the concept of SBS but appear not to have been sufficiently impressed to take these criticisms to heart before making their conclusions. The authors did not cite an important paper by Donohoe, which discussed in detail methodological issues in studies like theirs and basically concluded that the existing literature on SBS does not meet sufficiently rigorous standards to conclude that shaking alone causes intracranial injury.
The Biron and Shelton paper has many serious flaws that include selection bias, observer bias, lack of controls, failure to evaluate causal possibilities beyond shaking, and circular reasoning, to name a few. The assertion that retinal hemorrhages are a discriminator for shaking has been challenged in the literature for years, as have other selection criteria. The paper is little different from most of the literature based on case series that try to support the concepts of SBS in that the principles and methods of science were not adhered to and the data presented do not justify the conclusions reached. These same problems apply to most of the literature that makes use of confessions as a justification that shaking alone causes intracranial injuries.
Another recent case analysis, encompassing more than 30 years of published case reports of presumably abused babies, approached the admissions issue from another perspective. Plunkett found 54 instances, in 324 cases with individual case data, of an admission by someone that he had shaken the injured baby in some fashion. In the 270 remaining cases, no record of any admission was reported.
The study found that the reported information in admissions varied widely in the amount of precise information provided and in the context of the shaking: for example, attempts to revive, shaking after a violent event such as strangulation/smothering or throwing the baby to the floor had occurred, and incidental shaking or bouncing during play. It was found that in 11 cases shaking had apparently occurred without evidence of impact. In 12 cases, only shaking was admitted, but head impact was found nonetheless. In 18 cases, admissions of shaking were documented, but there was no information, pro or con, about head impact injury, so these cases could not be analyzed.
An additional 13 cases, those of Hadley et al., in which admissions of shaking may have occurred, were not included in the analysis because of ambiguous statements in the article regarding what constituted an admission of shaking, or even whether it occurred at all.
It is significant that in the 11 shaken and possibly not head impacted babies, all but three survived, thus one cannot be sure that no head impact had occurred in the eight survivors. In the three who died, apparently none had head impacts at autopsy. Thus, these may be the only cases that might qualify as pure and might have sustained their injuries by shaking alone. It should be obvious that with a case population this small, few robust conclusions about causality can be reached.
Time of Onset of Symptoms and Signs
A common theme that emerges from the confessional literature is the alleged immediacy of the appearance of symptoms after a reported shaking episode as reported by the perpetrator. A common allegation of some child-abuse experts is that all or virtually all shaken babies become ill immediately after having been shaken. Therefore, the individual present when the child decompensates is responsible. The published case literature does not support this contention. In the Leestma study, of the 11 babies who might qualify as pure shaken babies only four had information about a possible interval between shaking and the appearance of symptoms. None of these babies showed immediate symptoms and were reported to have developed symptoms a day or more after shaking.
Considering all 54 admitted shaken babies, only 12 case reports gave information about the time of onset of the symptoms. Only two cases showed immediate symptoms, and all the rest showed delays from hours to days or longer after the supposed shaking episode. One should bear in mind that most of these babies had impact injuries to the head. Even in this circumstance, where an obvious head impact occurred, symptoms did not always appear immediately. Others have also reported these observations.
It should be apparent that from virtually every perspective many flaws exist in the theory that shaking is causative. No case studies have ever been undertaken to probe even a partial list of possible confounding variables/phenomena, such as the presence of intracranial cysts or fluid collections, hydrocephalus, congenital and inherited diseases, infection, coagulation disorders and venous thrombosis, recent immunizations, medications, birth-related brain injuries, or recent or remote head trauma. Until and unless these and probably many more factors are evaluated, it is inappropriate to select one mechanism only and ignore the rest of the potential causes.
The confessions or admissions of a perpetrator are at best tenuous support for the shaking mechanism for infantile head injury. A critical appraisal of any literature that proposes a causal mechanism of shaking for brain injury must include an evaluation of case selection methodology, population or sample size, possible case control issues, data analysis methods, and whether the conclusions reached are justified by the data presented.
Another vital issue, often overlooked, is a critical evaluation of literature cited. Unless the reader is very well informed on the issues and is intimately familiar with the literature, this component of an informed appraisal of an article almost never gets done, and the reader may accept the conclusions uncritically.
Jan E. Leestma, M.D., M.M
is board certified in anatomic and
neuropathology, and is a consultant in neuropathology at Childrens
Memorial Hospital of Northwestern University Medical Center, Chicago.
Potential Conflict of Interest:
Dr. Leestma has been engaged to provide
expert testimony in various criminal and civil cases, including some
involving alleged SBS. Contact: firstname.lastname@example.org.
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