Posted on November 17th, 2012

During the 2012 TLR Symposium held on November 9, 2012, Dr. Richard J. Ofshe, Professor of Sociology at the University of California-Berkeley, presented his article “Overcoming False Confessions and Coerced Statements in the Dawning Age of Interrogation Recordation.” Dr. Ofshe, one of the leading scholars in the field of false confessions and interrogations, believes that changes in the law and criminal procedure—such as the increased use of recording police interrogations—will continue to transform how coercion and false confessions are used in criminal investigations.

“For the times they are a-changin”

Dr. Ofshe began by referencing the lyrics of Bob Dylan to describe how he views the changes currently taking place in the field of interrogations: “there’s a battle outside and it is ragin’, it’ll soon shake your windows and rattle your walls, for the times they are a-changin.” When he began his research around 1985, Dr. Ofshe noted that Alaska was the only state that recorded police interrogations. Today, however, sixteen states, the District of Columbia, and approximately 640 separate police agencies require the recording of interrogations. He believes that these changes will eventually allow appellate courts to actually look at what goes on in interrogations and make the kinds of decisions that judges—removed far enough from the politics of day-to-day trials—must make as part of their principal responsibility to law and justice.

Interrogations as a Source of Research

Dr. Ofshe had not considered how important the study of interrogations was until he was asked to be an expert witness in a criminal case nearly twenty-five years ago. After spending nearly 300 hours learning about interrogations in preparation for the trial, he realized that interrogation methods had evolved in darkness since the development of the widely-used third-degree method; police had been able to keep what happened in the interrogation room a “dirty little secret” for the greater part of the twentieth century. This experience led him to devote his time to studying cases involving innocent people who had been coerced into false confessions.

Dr. Ofshe described how in the early days of his research, he developed procedures and methods for de-briefing people who had undergone interrogations that were not recorded. After listening to their accounts, he would make a request to interview the interrogator, which was routinely denied, and then try to deconstruct the record. Now that most of the interrogations that he sees are recorded, he is able to better dissect the interrogation.

The Two Steps to Interrogation

These early efforts led him to publish the paper, “The Decision to Confess Falsely: Rational Choice and Irrational Action,” with Professor Richard Leo in 1997. Based on their empirical observations of transcripts of interrogations they had been collecting for years, they identified two essential steps followed in interrogations. The first step involved convincing the suspect that his or her situation was hopeless by using “evidence ploys.” In the second step, the interrogator shifted their focus towards encouraging the suspect to confess. They used a variety of tactics, ranging from the unobjectionable to clearly suppressive.

Teaching Judges How to Detect Coercion

Dr. Ofshe stressed that it is difficult to detect coercion in an interrogation, even for judges. One of his goals has been to present judges with tools so they can better understand what exactly happened in the interrogation. Dr. Ofshe discussed recent cases that show the promise of positive change in this area. He argued that these cases demonstrate how appellate courts are getting the records of interrogations and analyzing them in the same way he would analyze them, often finding techniques advocated by Reid & Associates to be coercive. Dr. Ofshe specifically mentioned a 2003 California case, a 2011 Florida case, and a 2012 Massachusetts case (Commonwealth v. Baye, 462 Mass. 246 (2012)) in which the courts suggested that it was coercion for interrogators to communicate a promise and force suspects to choose between two options that ultimately diminish the suspect’s free will.

To illustrate his points, Dr. Ofshe explained how cases involving the deaths of babies allegedly shaken to death often result in false confessions. He focused on the ongoing case involving Adrian Thomas in New York and showed footage of his actual interrogation from the soon-to-be-released documentary Scenes of a Crime. In his closing, Dr. Ofshe re-emphasized how critical it is that video recording be utilized in police interrogations if we want to reform the system.

Erica H. Dressler
Temple University School of Law, J.D. Candidate 2014