By Julia Rankin
Introduction
The issues of wrongful convictions and exonerations have gained popularity in the last few decades. The establishment of the Innocence Project,[1] as well as several media sensations such as Serial[2] and Making a Murderer,[3] have launched discussions of exonerations into the mainstream. After years of studying exonerations, scholars have identified a handful of factors that appear and reappear in wrongful conviction cases. Some of these common factors are eyewitness misidentifications, ineffective legal counsel, police and prosecutorial error and misconduct, unreliable jailhouse informants, faulty forensic science, and false confessions.[4] This paper will specifically examine false confessions, placing particular emphasis on people with mental illness who falsely confess.
One such story is that of Victor Rosario. A jury convicted Victor, a man with mental illness, of murdering eight people based on his false confession to setting a three-story building on fire.[5] In March of 1982, a fire broke out in a building in Lowell, Massachusetts, killing three adults and five children.[6] Upon initial investigation, the responding firefighters concluded that the fire was the result of arson.[7] This conclusion came from the firefighter’s observations that the fire started from more than one location within the building and fire patterns indicating that a flammable liquid started the fire.[8] Law enforcement arrested Victor the next day after they learned that he was treated in the emergency room for deep cuts on his hands.[9] Detectives who were investigating the fire went to interview Victor at his apartment.[10] Victor stated that he was out drinking with a friend, Felix Garcia, and that they were returning to the apartment they shared when they saw a building on fire.[11] Victor broke several windows in an attempt to help, which resulted in the cuts on his hands.[12] After breaking the windows, he could hear children screaming from inside the building but was unable to get inside to help them.[13] Felix corroborated this story when the detectives interviewed him.[14]
Detectives took Victor to the police station and interrogated him.[15] Throughout the interrogation, Victor ended up giving three different statements with varying stories.[16] After the second statement, in which he implicated himself and Felix in committing the arson using a Molotov cocktail, Victor experienced a mental break and started sobbing.[17] For ten to twenty minutes, Victor was on his knees as he said “God, oh, God, oh, God, those kids….”[18]
A jury convicted Victor for the arson and murders.[19] The prosecution’s case relied on expert testimony which stated that the fire was the result of arson.[20] Another expert, a psychiatrist, testified for the prosecution and stated that Victor’s mental breakdown during the interrogation was an “emotional outburst…having to do with the nature of the circumstances, but not a mental illness.”[21] The defense relied on the lack of reliability in Victor’s statement rather than challenging the premise that he committed the crime.[22] Victor’s defense counsel also called an expert psychiatrist to testify.[23] The defense psychiatrist stated that Victor was not able to make a rational or intelligent statement to the police because he was psychotic.[24] The defense psychiatrist also stated that Victor told him, “I am Victor Rosario, the son of God. Jesus Christ is in me.”[25]
In 2014, Victor had a hearing regarding a motion for a new trial.[26] During the hearing, an arson expert, John Lentini, testified that the forensic science used to determine that the fire was the result of arson was outdated and debunked.[27] Lentini and Dr. Craig Beyler, a fire protection engineer, testified against the idea that a Molotov cocktail had started the fire.[28] Instead, Dr. Beyler testified that the building had been on fire for a while before anyone noticed and that the fire developed rapidly when Victor broke a window in an attempt to save the people inside.[29] This testimony, as well as other testimony, helped Victor obtain a ruling for a new trial.[30] However, before a new trial happened, the prosecution dismissed the charges against Victor and he has since been a free man.[31]
This story is just one of many that illustrates why people with mental illness are particularly vulnerable to coercive interrogation techniques, which results in a higher chance of eliciting a false confession from them. This paper analyzes the issues that cause these injustices and argues that Congress should enact legislation requiring federal and local law enforcement agencies to adopt protections for persons with mental illness when they are being interrogated. Section One of this paper explores the current law and practices surrounding law enforcement interrogations. Section Two explains why people with mental illness are particularly vulnerable to giving false confessions. Section Three examines why it is important to ensure that persons with mental illness are allotted protection during interrogations. Section Four of this paper proposes regulatory reform solutions. Finally, Section Five analyzes any foreseen problems with the proposed reforms.
I. Current Laws and Practices
A. The Reid Technique
The Reid Technique is a method of interrogation that was developed in 1947 by Fred Inbau, a law professor, and John Reid, a former detective.[32] The technique was created in hopes that it would be possible to discern when people are lying by observing physiological changes of a person while being questioned.[33] The Reid Technique was originally crafted to be used in interrogations against criminal suspects.[34] However, it has since expanded to being used in school systems and workplaces. In schools, the method has been used to elicit confessions from young students, oftentimes regarding instances of plagiarism and cheating.[35] In the workplace, loss prevention workers have used the method to draw out confessions from employees.[36] Now, the Reid Technique is used throughout the United States and around the world.[37]
The Reid Technique consists of three stages; the fact analysis stage, the behavior analysis interview stage, and the interrogation stage.[38] In the fact analysis stage, the investigator on the case at hand gathers and analyzes the facts related to the case to understand the case.[39] During the behavior analysis interview stage, the interrogator is recommended to use elements of the P.E.A.C.E. model[40] to gather the most information in a short amount of time.[41] The interrogator is also encouraged to ask “non-threatening” questions and observe the person’s behavior to determine if the person will be cooperative during the actual interrogation.[42] Finally, in the interrogation stage, the Reid Technique recommends that the interrogator use nine distinct steps during their interrogation: direct and positive confrontation, theme development, handling denials, overcoming objections, procurement and retention of a suspect’s attention, handling the suspect’s passive mood, presenting an alternative question, having the suspect orally relate various details of the offense, and converting an oral confession into a written confession.[43] Some of these steps, and other aspects of the Reid Technique, will be further discussed in section four of this paper.
B. Miranda Warnings
The Fifth Amendment grants American citizens many protections within the criminal justice system, including the right to not incriminate oneself.[44] The United States Supreme Court solidified the importance of this right when they decided Miranda v. Arizona.[45] As a result of Miranda, procedural safeguards were put in place to protect people while they are in the custody of law enforcement officers.[46] These safeguards include: warnings to the person being interrogated that they have the right to remain silent, that the statements they do say may be used against them as evidence in trial, and that they have the right to a retained or appointed attorney.[47] These warnings have been combined into a statement, known as a Miranda Warning, that must be read to an individual when in law enforcement custody and before interrogation.[48] Miranda Warnings are generally standard, with a few law enforcement offices adding a sentence or two to their script:[49]
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?[50]
After having their Miranda rights read to them, a person may still elect to waive the rights and speak to the police without an attorney present.[51] To waive their rights, a person must do so voluntarily, knowingly, and intelligently.[52]Whether someone has voluntarily, knowingly, and intelligently waived their Miranda rights rests on two things.[53]First, the court must determine whether the person in custody waived their rights voluntarily and not under coercion, intimidation, or deception.[54] Second, the waiver must be made after a law enforcement officer reads the person their rights and when they have a “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.”[55] These two aspects are examined within the “totality of the circumstances surrounding the interrogation” to be properly determined.[56] The presence of a mental illness alone does not mean that a person is incapable of waiving their Miranda rights.[57] Typically, it is treated as a factor to consider, but not a dispositive element.[58]
Once a person has waived their Miranda rights, law enforcement may interrogate them and any statements that the person makes during the interrogation may be used as evidence against them.[59] However, Miranda rights are not just rights that can be waived. Some protections may be invoked before or during an interrogation. A person may invoke their Miranda rights at any point before or during an interrogation.[60] Even if a person complies or volunteers statements to law enforcement, that does not prevent them from invoking their Miranda rights in the middle of an interrogation.[61] To invoke one’s right to remain silent, a person must make a statement, at any time before or during interrogation, that they want to remain silent.[62] To invoke one’s right to an attorney, the person must also be explicit and clear in their request for an attorney. In some jurisdictions, courts have been unreasonably stringent in their expectation of how clear a person’s request must be. The Louisiana Supreme Court refused to hear an appeal of whether a person saying “[i]f y’ all, this is how I feel, if y’ all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog[63] cause this is not what’s up” is a clear request for an attorney.[64] Justice Crichton concurred with the denial and stated that “[T]he defendant’s ambiguous and equivocal reference to a ‘lawyer dog’[65] does not constitute an invocation of counsel….”[66]
If a person invokes their right in this way in the middle of an interrogation, the questioning must stop there.[67] If a person wants to invoke their right to an attorney, they must affirmatively state that they want an attorney.[68] After they have indicated that they want an attorney, the interrogation must cease until an attorney is present.[69] After the attorney is present, there must be a meaningful opportunity to consult with the client before any further questioning occurs.[70] Further, the attorney may be present for the rest of the questioning.[71]
II. Why People With a Mental Illness Are More Susceptible to Giving False Confessions
People with mental illness are more susceptible to giving a false confession, compared to the general population, if they are interrogated by law enforcement. In 2022, the National Registry of Exonerations evaluated 3,060 exoneration cases.[73] One hundred seventy-four of the exonerees had a recorded mental illness or intellectual disability.[74] Of this population, 120 of them (sixty-nine percent) falsely confessed.[75] This percentage is in stark contrast with the 205 out of 2,886 (eight percent) of people with no recorded mental illness or intellectual disability who falsely confessed.[76]
There are many reasons for this vulnerability to a false confession, but this paper will focus on three reasons in particular: people with mental illness are more likely to have interactions with law enforcement; it is common for a person with mental illness to have a greater sensitivity to stress; and people with mental illness are often more susceptible to suggestion by the law enforcement officers that are interrogating them.
A. More Interactions With Law Enforcement
People with mental illness are disproportionately more likely to have interactions with law enforcement than the general population. In 2019, approximately 3,011 out of every 100,000 people (three percent) in the United States were arrested.[77] However, upwards of one in four people (twenty-five percent) with a mental illness have been arrested by law enforcement.[78] This increased likelihood of interaction can happen at any step in a criminal investigation and for several reasons. Part of these interactions is because, after the deinstitutionalization movement,[79] law enforcement officers have increasingly become the first, and sometimes the only, responders to someone in the middle of a mental health crisis.[80] It is estimated that one in five (twenty percent) 911 calls involve someone experiencing a mental health or substance abuse crisis.[81] Because law enforcement officers are oftentimes the first interaction a person with mental illness has with the criminal justice system, they are the ones to decide whether a person experiencing a mental health crisis will be diverted into a mental health treatment program or shuffled further into the criminal justice system. Twelve percent of individuals reportedly had law enforcement involved in their path to mental health services.[82]Oftentimes, this means that people with mental illness are also disproportionately shoved into the criminal justice system.
The increasing criminalization of mental illness in the United States only serves to exacerbate the issue. Approximately thirty-seven percent of incarcerated individuals in state and federal prisons have a history of mental illness.[83] Of that thirty-seven percent, eight percent of incarcerated people with mental illness have an arrest that is directly attributable to the symptoms of their mental illness.[84] Minor offenses are often tied to behavior more prevalent in people with a mental illness, such as causing a disturbance, minor theft, or failure to appear in court.[85]These minor offenses add up and contribute to the vast number of people with mental illness being entangled in police interactions. Because people with mental illness are more likely to have interactions with law enforcement and are sometimes seen as suspects due to symptoms of their mental illness, they have more opportunities to be interrogated and therefore have more opportunities to give false confessions.
B. Sensitivity to Stress and Other Emotions
Depending on their diagnosis, people with mental illness may experience more stress in an interrogation environment than a person without a mental illness. For example, people with Borderline Personality Disorder (BPD) often experience a “marked reactivity of mood,”[86] meaning that they experience intense moods that may seem disproportionate to the situation. They are also observed as being “very sensitive to environmental circumstances.”[87]These two factors, combined with their increased impulsivity,[88] can have disastrous results in an interrogation room. However, people with BPD are not the only ones in a disadvantaged position in the interrogation room.[89]
Heightened emotions, such as those experienced by people with various mental illnesses, affect a person’s ability to navigate an interrogation. The amount of stress a person experiences in an interrogation affects the likelihood that they produce a false confession in many ways. A person’s comprehension of their Miranda rights is inhibited when they are under severe stress, such as the stress often experienced in an interrogation room.[90] When a person does not fully comprehend their Miranda warnings, they may be more likely to waive them or not invoke them, which can cascade into a false confession. Almost half (forty-eight percent) of individuals surveyed, when asked to list reasons why they gave a false confession, listed police pressure, making police pressure the most common reason given.[91] When law enforcement officers place stress on a person with mental illness, the rate at which they conform to the pressure may be higher than that from people who do not have mental illness, due to their increased rate of stress.
C. Susceptibility to Suggestion
Interrogations place people under a particular type of susceptibility known as interrogative susceptibility, which refers to “the extent to which, within a closed interaction, people come to accept messages or information communicated during formal questioning as true, and as of a result of which their subsequent behavioral response is affected.”[92] Gísli Guðjónsson, a forensic psychologist and former detective, developed two scales that are used to measure a person’s susceptibility.[93] Research using these scales has shown that people with mental illness were more vulnerable than the general population to being misled or changing their responses when subjected to certain interrogation tactics such as minimization[94] and maximization[95].[96] Even courts have recognized that people with mental illness are more susceptible to coercive methods used by law enforcement and may change their answers to interrogative questions to make the interrogator happy rather than answer accurately.[97]
III. Reasons for Change
There are many reasons why individuals with a mental illness should have further protection before, during, and after being interrogated by law enforcement. Issues such as the overrepresentation of the mentally ill population in the American criminal justice system, the overcrowding of correctional facilities, lack of trust in the American justice system, and basic human decency, will be detailed in this section.
A. Overrepresentation of Mentally Ill Persons in the Criminal Justice System
The criminal justice system and the mental health system have been linked since the creation of the first psychiatric hospital in the United States, the Public Hospital for Persons of Insane and Disordered Minds in Williamsburg, Virginia, in 1773.[98] Virginia Lieutenant Governor Francis Fauquier stated, in his reasoning on why the hospital needed to be built, that he regularly jailed the mentally ill to protect the public.[99] This reasoning only shows how far back people have mistakenly linked criminality with mental illness.[100] This link has led to an overrepresentation of people with mental illness within the American criminal justice system.
As discussed in the second part of this paper, people with mental illness are more likely to have interactions with law enforcement and are more likely to be characterized as suspects in investigations. This disproportionality continues after a person with mental illness has been taken into custody. Not only are people with mental illness less likely to make bail, but they are also less likely to receive probation because the factors that are assessed with whether someone is released on parole are often stacked against them.[101] Incarcerated people who had a history of psychiatric hospitalization were thirty times less likely to be granted parole than the incarcerated population who did not have a history of psychiatric hospitalization.[102] While evaluating the risk factors of a candidate who is up for parole, a parole board may see the existence of mental illness in and of itself as a risk that the candidate will recidivate.[103]This is even though there seems to be little to no direct correlation between mental illness and recidivism rates.[104]
Because people with mental illness are disproportionately involved with law enforcement and less likely to receive alternatives to incarceration, they are also overrepresented within prison and jail walls. Approximately thirty-seven percent of incarcerated individuals in state and federal prisons have a history of mental illness, which is double the incidence of mental health issues among the entire adult population.[105] Approximately sixteen percent of people in prisons and jails have a reportable serious mental illness.[106] Some studies have shown that forty percent of people with a serious mental illness have been in prison or jail at some point in their life.[107] This overrepresentation of people with mental illness within every aspect of the criminal justice system cannot continue without intervention.
B. Overcrowding
American prisons and jails are already overflowing with incarcerated people.[108] As the population in American prisons and jails rises, the conditions inside worsen.[109] For instance, with rising global heat[110] and people sharing cells meant for fewer incarcerated people in prison cells,[111] the incarcerated population is in danger of overheating in a place where they have no option to stay.[112] This can be particularly dangerous for incarcerated people with mental illness. This is because overheating is more likely for people who take Serotonin Reuptake Inhibitors[113] (“SSRIs”) – a typical antidepressant treatment.[114] When an individual is taking an SSRI, they are more susceptible to heat-related symptoms such as sweating, thirst, and overheating.[115] It stands to reason that the incarcerated population who take SSRIs is not immune to these dangers.[116] For that reason, and others, there is no reason to add to the incarcerated population with actually innocent people who have a mental illness.
C. The Weight of Confession Evidence
The weight of confession evidence is a heavy one for criminal juries. The weight is heavy enough that it has been acknowledged by the Supreme Court as ranking “high in the scale of incriminating evidence.”[117] Juries are swayed more by a confession, even one obtained through coercive means, than most any other type of evidence.[118]One group of researchers polled 169 adults to gain insight into how people view confessions and how much weight, if any, they give to confessions as an indicator of actual guilt.[119] Sixty-four percent of participants indicated that they agree with the assertion that “[a] confession is a strong indicator of a person’s guilt.”[120] Fifty-one percent indicated that they agree with the statement, “[i]f someone has confessed to a crime, they are probably guilty.”[121] Out of the 169 survey participants, approximately thirty-nine had previously served on a criminal or civil jury.[122] Despite the participants’ confidence in confessions being an indicator of guilt, only three percent strongly disagreed with the statement, “suspects sometimes confess to crimes they did not commit.”[123]
One reason juries may be able to give so much weight to a false confession is that they cannot imagine themselves in a position in which they would falsely confess to a crime.[124] Such a fundamental attribution error[125]allows a person to acknowledge that false confessions can happen without believing that the defendant in front of them may have falsely confessed.[126] This does not prevent people from, at the very least, acknowledging that others may give a false confession. The participants of the aforementioned survey recognized that people with mental illness or people who are “psychologically disturbed” are particularly vulnerable to falsely confessing.[127]
Even when presented with an illegally obtained confession and instructed to ignore a confession by a judge, a jury may not be able to completely disregard a confession.[128] This issue, combined with the weight that juries give confession evidence, is certainly a problem. Although individuals acknowledge the existence of false confessions, there is no way to know whether a person who believes false confessions happen would also know how to determine whether a confession put in front of them is false. The inability of an average jury member to distinguish a false confession from a true one, combined with the weight that that jury member may give a confession, is a strong reason to support reforming interrogation reform in a way that minimizes false confessions.
D. Ensuring Trust and Transparency in the American Justice System
It is not a secret that coercive techniques are used by law enforcement during interrogations.[129] However, public perception of what interrogations look like is skewed. One survey illustrated that people may believe that law enforcement uses threats of harsher punishment, to elicit a confession from a suspect, than they do.[130] More than seventy percent of the survey participants also indicated a belief that long interrogations, lasting several hours, are “likely” or “very likely” to be used.[131] This opinion is starkly contrasted with a survey of police interrogators, who estimated the average length of an interrogation to be 1.60 hours.[132]
It is important to advocate as much transparency within the criminal justice system as justice will allow. Such transparency may help to bridge the gap between public perception and reality by both allowing people to see the inner workings of practices such as criminal interrogations and also by public perception promoting change within those practices. Furthermore, more transparency may strengthen the general public’s trust in law enforcement. In 2020, only twenty-six percent of U.S. adults had a “great deal” of confidence in police officers to act in the public’s best interests.[133] When law enforcement is working within a system that relies on information from the public, raising public trust is essential to bettering the reliability of law enforcement.
E. Basic Human Decency
Simply, it would be wrong to leave the current approach of interrogating people with mental illness in the state it currently is. People are often in a disadvantaged position in many aspects of life.[134] Courts and legislature have taken steps to grant special protections to those with mental illness.[135] Further protections ought to be taken by the legislature to grant people with mental illness special protections within an interrogation room. Not only must many people with mental illness deal with these disadvantages, but they often face discrimination in other aspects of their lives.[136] Changes to systems ought to be made, when they can be made, to reduce hardships faced by those in vulnerable positions.
IV. Proposed Reform
A. Eliminate the Reid Method of Interrogation
There are many reasons why the Reid Technique is not conducive to obtaining the truth from a suspect. The first and foremost reason is that the Reid Technique was created using an outdated and debunked idea that an interrogator can tell if a suspect is lying by observing physiological changes in the suspect.[137] The very basis of the Reid Technique is simply not rooted in reality.[138] Although the Reid Technique relies on the concept that a person can tell when another person is lying by observing them, the average person cannot detect when a person is lying with any greater accuracy than a flip of a coin, even when they can observe the behavior of the person they are analyzing.[139]
Not only is the Reid Technique developed from false assumptions, but it also uses methods that can increase the likelihood of false confessions. The Reid Technique encourages interrogators to approach an interrogation with a criminal suspect from an aggressive position and a position in which the interrogator already believes the suspect is guilty.[140] This presumptive guilt of the person they are interrogating leads to the interrogator to engage in other behaviors that elicit false confessions. For example, leading questions[141] are typically used in presenting an alternative question step in the interrogation stage when the Reid Technique is being utilized.[142] These leading questions, which have a predetermined answer that the interrogator is attempting to elicit from their suspect, may lead a more susceptible person to adopt the wanted answer and result in a false confession. The “overcoming objections” step is another problematic area of the Reid Technique. In this step, the interrogator is encouraged to combat a person’s objections to their guilt. The Reid Technique claims that objections “are heard, almost exclusively, from guilty suspects” but offers nothing to support that notion.[143] Although the authors of the current iteration of the Reid Technique handbook offer a lot of prefaces to the technique, a lot of them are given to improve the intended confession’s likelihood of admissibility in court.[144]
The current handbook for the Reid Technique does warn its readers that the behavior of a person with mental illness should not be analyzed with the same scrutiny as the behavior of a person who does not have a psychiatric history.[145] However, this warning can only help if the interrogator recognizes that the person they are interrogating has a psychiatric history and the interrogator heeds the four-paragraph warning in a book that is over 400 pages long. If the interrogator does neither, then a person with mental illness will be subjected to interrogation methods that should not be used on them. The methods and ideals of the Reid Technique are not conducive to obtaining the truth from suspects. They only serve to elicit confessions, even if they are false. For these reasons, the United States should eliminate the usage of the Reid Technique by law enforcement officers in favor of a method that mitigates false confessions.
After eliminating the Reid Technique style of interrogation, something will need to take its place. It is important to implement guidelines that law enforcement can follow to conduct interrogations. Having a guideline in place will make it easier to regulate interrogations across jurisdictions and will hopefully reduce rouge agents conducting immoral interrogations. The interrogation method that should replace the Reid Technique is the P.E.A.C.E. model of investigative interviewing.
A group of experienced police officers, with the input of psychologists, academics, and lawyers developed the P.E.A.C.E. model in the 1990s after the Court of Appeals of England and Wales found that many confessions coming through lower courts were not made voluntarily.[146] To combat involuntary confessions, the P.E.A.C.E. model is centered around active listening, conversation management, and other scientifically proven techniques.[147] Instead of working towards a confession, such as what the Reid Technique is designed to do, the P.E.A.C.E. model is designed to gather accurate and reliable information.[148] The P.E.A.C.E. model encourages the interviewer to treat the interviewee with courtesy, respect, and kindness to build a relationship and trust.[149] This relationship building is emphasized during the Engage and Explain stage of the interview and can reveal vulnerabilities that the interviewee may have, such as a mental illness.[150] The P.E.A.C.E. model has already made a tremendous difference in investigative interviewing across the world.[151] Because the P.E.A.C.E. model makes efforts to focus on accuracy rather than obtaining a result, no matter the outcome, and because it increases the likelihood of the interviewer seeing the vulnerabilities in the interviewee, the model should be adopted in the United States.
B. Strengthen Understandings About Miranda Rights
Although the current iteration of Miranda warnings does a decent job at explaining the four major rights that are protected by the Constitution, it does not do a sufficient job at explaining what those rights mean or how a person invokes their rights. The current iteration does not explain that, to invoke one’s right to remain silent, one must verbalize that they are invoking their right.[152] Yet they can implicitly waive that same right by speaking with the police.[153] To people with no legal training and who are undergoing the stress of an interrogation, this would be counterintuitive; they have to speak to indicate that they will not speak, but if they speak in another context, they have waived that right. Someone with no legal training cannot be expected to inherently know that this is how to invoke their right to remain silent; they are not told this when they are given their Miranda warning. Yet, if they do not know this, there may be dire legal consequences.
Not only do Miranda warnings fail to cover the practicalities of a person’s actual Miranda rights, but they also do not make it clear that the person understands their rights. After a law enforcement officer reads a person’s Mirandarights to them, they merely ask whether the person understood what they were read.[154] With the current Mirandawarning, there is no objective measure to determine whether the person understands their rights as read to them. The only thing to indicate that the person understands their rights is if they tell the law enforcement officer that they understand them. However, many people with mental illness suffer from lower self-esteem.[155] Lower self-esteem may contribute to a person saying that they understand the Miranda warning even though they do not understand it because they do not want law enforcement officers looking down at them or believing that they are incapable of understanding.
There has been a push to overhaul the current standard for Miranda warnings in favor of a complete and more explanatory version. Advocates have primarily placed this focus on changing Miranda warnings for children.[156] The proposed reform for Miranda warnings for adults with mental illness should be similar to the reform proposed for juveniles, not because the two groups are similar in terms of mental capacity, but because both groups have been treated as protected groups in many places in the law. To make Miranda warnings easier to understand, they should be given using this script:
You have the right to not talk to me. This means that you do not have to talk with me and you do not have to answer my questions. If you do not want to talk to me, say “I want to remain silent.” If you do talk to me, anything you tell me may be used in court against you in trial. You have the right to have a lawyer with you who represents you. A lawyer is someone who helps you understand the law. If you do not have a lawyer and you do not have enough money to pay for one, we will help you get one. If you want a lawyer, say, “I want a lawyer.” What would you like to do?
After this script has been read to the person whom law enforcement wants to interrogate, they must ask the person to explain each Miranda right back to the officer. If the person cannot explain one of their rights to the officer, the officer must either take the time to reexplain the right to the person, or the officer must contact an attorney to consult with the person with mental illness and be present for the interrogation.[157] This simplified Miranda warning combined with the process of having the person in custody explain their rights to a law enforcement officer should ensure that people with mental illness fully understand their Miranda rights.
C. Mandatory Crisis Intervention Training for all Law Enforcement Officers
It has always been pertinent for law enforcement to gain a better understanding of the communities that they serve. When law enforcement cannot recognize symptoms of mental illness there is a significant chance of encounters with the mentally ill population becoming deadly.[158] To mitigate these unnecessary injuries and deaths, all law enforcement officers in the United States ought to go through mandatory crisis intervention training.[159] This training will better prepare law enforcement for their inevitable interactions with people with mental illness and reduce the chances of danger for the parties involved.
In recent years, there has been more of a push for law enforcement officers to receive crisis intervention training. So much so, that many police departments in the United States have been supplying it or even mandating it for their officers.[160] Crisis intervention training has been linked to law enforcement officers arresting fewer people who are experiencing a mental health crisis.[161] Instead, the officers were more likely to use negotiation tactics and divert people to treatment facilities.[162] All law enforcement jurisdictions should follow the lead of places like Michigan[163] and implement crisis intervention training for their law enforcement officers. Unlike Michigan, however, such training should be mandatory and not optional.[164]
D. Including Mental Health Professionals in Interrogations
Police officers are not mental health professionals. Many officers have a difficult time discerning what vulnerabilities,[165] if any, a suspect that they are interrogating may have.[166] Many cities have begun experimenting with co-deploying mental health professionals alongside law enforcement officers when they respond to certain calls,[167] including a professional who is trained in identifying, responding to, and advocating for people with mental illness. This approach may be a great help in identifying people who need to be given extra protection during interrogation and possibly divert those people into a pipeline for mental health treatment rather than incarceration.
The mental health professional’s purpose, before and during the interrogation, would be to identify whether the person being interrogated has a mental illness. If they do have a mental illness, then all adopted reforms that are suggested in this paper are attached and need to be implemented. If the person already had their Miranda rights read to them, and it was not a simplified version, then the simplified Miranda warning must be read to them before the interview can continue. The mental health professional should also work to divert the person into a mental health treatment program when deemed necessary.
V. Implimentation Challenges
A. Challenges of the P.E.A.C.E. Model
There are many issues facing the adoption of the P.E.A.C.E. interrogation model in the United States. A lack of resources in some jurisdictions may make it difficult to ensure those departments receive the proper training in the P.E.A.C.E. model. There may also be challenges in training current law enforcement officers out of the practices that they have already been trained in and have been using for decades. There may even be resistance from law enforcement officers who do not want to forego the Reid Technique. These challenges are certainly not the only ones, but they are among the ones that are the hardest to work around in the current criminal justice system in the United States.
It may be difficult to train current law enforcement officers in the P.E.A.C.E. model due to the lack of resources in various jurisdictions. Training new and old officers would require either sending hundreds of trainers across the United States or offering multiple large trainings where departments can send their officers. Although the first option may be easier for local law enforcement departments because they will not be short-staffed while their officers are traveling to be trained and it would not require traveling expenses from the departments and officers, it would result in a much slower adoption of the P.E.A.C.E. model. It would certainly take time for a handful of people to go from department to department and train them only a few at a time. However, that seems like a better option than the second one, which would require departments to be short-staffed while some of their officers leave to undergo training in the P.E.A.C.E. model.
There may be resistance from current law enforcement who do not wish to leave their current practices behind in favor of learning new ones. If law enforcement officers push back and are resistant to changing their interrogation methods, that does not mean that the change should not happen. Many states have already made changes to their interrogation methods.[168] Change is oftentimes necessary to make problems better, but it may be hard to combat certain pushback from officers. For instance, newer officers who were trained in the P.E.A.C.E. model may be pressured by their older and more experienced colleagues into continuing practices from the Reid Technique. Although this type of pushback may slow down the absolute adoption of the P.E.A.C.E. model, it seems unlikely that it would halt the adoption entirely. So long as new officers are continuously trained in the P.E.A.C.E. model and the model is reinforced through regular training in more established officers, this problem can be overcome.
B. Effectiveness of Crisis Intervention Training
A prominent critique of crisis intervention training is that it is currently debatable whether the training is effective and to what extent it is effective.[169] For example, although law enforcement officers perceive themselves as less likely to use unnecessary force after receiving crisis intervention training,[170] that perception may not match reality.[171] If it turns out crisis intervention training is not effective, there may be an issue with training law enforcement using this method. The officers may become more confident that they can determine who has a mental illness and that they can interact with a person with a mental illness. This confidence may then make the officers act with misplaced confidence towards those with mental illness without questioning the situation in front of them.
One solution to this is to continue to study crisis intervention training and conclusively determine whether it is effective in preparing law enforcement for their interactions with people with mental illness. If these studies determine that they are ineffective, then crisis intervention training needs to be revamped so that it is effective. It must be possible to train law enforcement properly to identify and interact with people with mental illness; it may just take more work than is currently being done.
C. Including Mental Health Professionals in Interrogations
If a mental health professional is going to be in the interrogation room, there lies a difficulty in determining how it is determined whether that professional needs to be there. On one hand, relying on law enforcement to know when a mental health professional needs to be present for an interrogation would not be reliable enough. As established in Section Four of this paper, law enforcement officers are not often competent in determining whether the person they are talking to has a mental illness or similar vulnerability. On the other hand, many jurisdictions would not have the resources to always have a mental health professional available for every interview.
A solution to this problem might be to carve out a unique right for people with mental illness to have a mental health professional present in a custodial interrogation and make this right known to them through their Miranda warning. This version of the Miranda warning would be read to anyone, regardless of whether the law enforcement officer believed the person needed it. However, this may again be a problem with a lack of resources if people who do not need a mental health professional request one.
Further, if Miranda warnings are not changed to increase a person’s ability to understand them, then the same issue would exist as it does now. Individuals suffering from mental illness would disproportionately require assistance understanding how to invoke this right and would not get the help that a mental health professional would provide. It then may raise an issue where law enforcement officers become more confident that the person in front of them does not have a mental health issue because they did not invoke their right to a mental health professional.
Conclusion
The issue of mental health in the US is a hot one, and it is only getting worse. The deinstitutionalization movement, combined with several other factors, created an issue in which the American criminal justice system acts as a de facto mental healthcare system. While this issue itself needs to be remedied, steps must be taken along the way to make conditions for people with mental illness better within the American criminal justice system. The reforms suggested in this paper will not eradicate false confessions from people with mental illness, but they will help. Not only will these reforms help place safeguards that will make it less likely for law enforcement to trick people with mental illness into giving false confessions, but they will also force law enforcement to engage with any preconceived notions they may have concerning people with mental illness. It is also worth noting that some of these reforms will not only help people with mental illness, but they will also provide safeguards for people in other vulnerable groups and the general population when they are being interrogated. Regardless of whether all or some of these suggested reforms are adopted, it is important to start working towards benchmarks that will make it difficult for law enforcement to coerce false confessions out of mentally ill people.
[1] History of Impact, Innocence Project, https://history.innocenceproject.org/ (last visited Nov. 3, 2023) (The Innocence Project was created in 1992, through the Benjamin N. Cardozo School of Law, as a clinic that worked toward freeing wrongfully convicted people through post-conviction DNA testing).
[2] About Season One, Serial, https://serialpodcast.org/season-one/about (last visited Nov. 3, 2023); Daniel Victor, Timeline: The Adnan Syed Case, N.Y. Times (Oct. 5, 2023), https://www.nytimes.com/article/adnan-syed-serial-timeline-serial.html (Serial is a podcast first produced in 2014. The first season covers the story of Adnan Syed, who was convicted of the murder of his ex-girlfriend. The story gained national attention and led to the overturning of his conviction. As of the writing of this paper, Adnan Syed’s conviction has been reinstated and continues to be litigated in Maryland Courts).
[3] Bruce Vielmetti, Netflix Series Brings Worldwide Spotlight to Steven Avery Case, Milwaukee J. Sentinel (Dec. 25, 2015), https://archive.jsonline.com/news/crime/netflix-series-brings-worldwide-spotlight-to-steven-avery-case-b99639845z1-363521841.html/#:~:text=On%20Dec.,they%20started%20following%20the%20case (Making a Murderer is a Netflix docuseries that covers the story of Steven Avery, who was convicted and exonerated of sexual assault and attempted murder, and Brendan Dassey, a minor with an intellectual disability who was convicted as an accessory to the crime).
[4] See, e.g., Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions go Wrong 8-11 (2011) (discussing factors that have been commonly seen while examining wrongful convictions); The Issues, Innocence Project, https://innocenceproject.org/the-issues/ (last visited Nov. 3, 2023) (This is a non-exhaustive list).
[5] Victor Rosario, The Nat’l Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5196 (last visited Nov. 3, 2023).
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Preface, Fred e. Inbau, John E. Reid, Joseph P. Buckley & Brian C. Jayne, Criminal Interrogation and Confessions, vii (Sean Connelly et al. eds., 5th ed. 2013).
[33] Id.
[34] See id. at vii-ix.
[35] E.g., Douglas Starr, Why are Educators Learning How to Interrogate Their Students?, Tʜᴇ Nᴇᴡ Yᴏʀᴋᴇʀ(Mar. 25, 2016); Alexa Van Brunt, Adult Interrogation Tactics in Schools Turn Principals Into Police Officers, The Guardian (Mar. 19, 2015, 7:15 AM).
[36] Saul Kassin, Duped: Why Innocent People Confess and Why We Believe Their Confessions 45 (1st ed. 2020) (ebook).
[37] Inbau, supra note 32, at iiiv.
[38] James Orlando, Interrogation Techniques, Office of Legislative Research: Research Report (last visited Mar. 13, 2024), https://www.cga.ct.gov/2014/rpt/2014-R-0071.htm#:~:text=The%20Reid%20Technique%20involves%20three,analysis%2C%20interviewing%2C%20and%20interrogation.
[39] Id. at 9-10.
[40]Mary Schollum, Bringing PEACE to the United States: A Framework for Investigative Interviewing, The Police Chief, Nov., 2017 at 32 (P.E.A.C.E. is an acronym that stands for Planning and Preparation, Engage and Explain, Account, Closure, and Evaluation. These are the five stages of an investigative interview under the P.E.A.C.E. model).
[41] Inbau, supra note 32, at 153.
[42] Id. at 154.
[43] Id. at 187-190 (discussing the nine steps).
[44] U.S. Const. amend. V (“No person shall… be compelled in any criminal case to be a witness against himself.”).
[45] Miranda v. Arizona, 384 U.S. 436, 444 (1966) (“…the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”).
[46] Id.
[47] Id.
[48] Id.
[49] What Are Your Miranda Rights?, MirandaWarning.org, http://www.mirandawarning.org/whatareyourmirandarights.html (last visited Nov. 7, 2023) (“Some police departments in Indiana, New Jersey, Nevada, Oklahoma, and Alaska add the following sentence: ‘We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court’.”) [hereinafter, Miranda Rights] (This website was created and is maintained in collaboration between Electric Lemonade, various non-profits, and attorneys across the United States. The purpose of the website is to provide free legal information and inform the general public of their Miranda rights).
[50] Id. (This is an example of a standard Miranda Warning).
[51] Miranda v. Arizona, 384 U.S. 436, 444 (1966).
[52] Id.
[53] Moran v. Burbine, 475 U.S. 412, 421 (1986).
[54] Id.
[55] Id.
[56] Id.
[57] See, e.g., People v. Braggs, 810 N.E.2d 472, 486 (Ill. 2004); State v. Gann, 823 N.E.2d 383, 392 (Mass. 2005).
[58] See, e.g., Id.
[59] Miranda v. Arizona, 384 U.S. 436, 444 (1966).
[60] See id. at 445.
[61] Id.
[62] Id.
[63] Dog, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/dog. (last visited Dec. 20, 2023) (Here, “dog” was used by the person informally to refer to another person, which is a common use of the word).
[64] State v. Demesme, 228 So. 3d 1206, 1207 (La. 2017).
[65] Id. (Justice Crichton conflates the use of “dog” with a different common use of the word, which is to describe the four-legged animal).
[66] Demesme, 228 So. 3d st 1207.
[67] Id.; Phila. Police Dep’t, Directive 5.23 6 (2020) (detailing policies surrounding the rights of individuals during interviews and interrogations).
[68] Miranda Rights, supra note 49.
[69] Id.
[70] Id.
[71] Id.
[72] While researching for this paper, it was difficult to find sources that did not conflate people with mental illness and people with neurodevelopmental disorders. Further, it was difficult to find resources that separated people with different mental illnesses, such as those with a personality disorder from those with anxiety disorders or psychotic disorders. While this paper discusses people with mental illness as one group, that is the product of the limited research done on different people with different mental illnesses and it is important to remember that not all mental illnesses are the same nor will they manifest the same.
[73] False Confessions, The Nat’ll Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Documents/Age%20and%20Mental%20Status%20FINAL%20CHART.pdf (last visited Nov. 3, 2023) (summarizing collected data on false confessions).
[74] Id. (The report does not make a distinction in the percentages between those with mental illness and those with neurodevelopmental disorders, despite them being vastly different conditions).
[75] Id.
[76] Id.
[77] Fed. Bureau of Investigations, Uniform Crime Report 2 (2019), https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/persons-arrested.pdf (This number includes the arrests of people with mental illness; this author was unable to find a source that contained a percentage of people without a mental illness who have been arrested).
[78] James D. Livingston, Contact Between Police and People with Mental Disorders: A Review of Rates, 67 Psychiatric Services 850 (2016).
[79] Deinstitutionalization, Bʀɪᴛᴀɴɴɪᴄᴀ.ᴄᴏᴍ, https://www.britannica.com/topic/deinstitutionalization (last visited Nov. 15, 2023) (The deinstitutionalization movement was a social movement prevalent in the 1950s and 1960s that was aimed towards severely mentally ill patients from state institutions and closing the same institutions).
[80] H. Richard Lamb, et al.,, The Police and Mental Health, 53 Psychiatric Services 1266 (2002).
[81] Eric Westervelt, Mental Health And Police Violence: How Crisis Intervention Teams Are Failing, NPR (Sept. 18, 2020).
[82] Id. at 851.
[83] Alisa Roth, Insane: America’s Criminal Treatment of Mental Illness 107 (1st ed. 2018) (ebook).
[84] Seth Prins et al., Criminogenic Factors, Psychotic Symptoms, and Incident Arrests Among People With Serious Mental Illnesses Under Intensive Outpatient Treatment, 39(2) L. Hum. Behav. 177, 179 (2015).
[85] Public Safety Canada, Criminalization of Mental Illness 1 (2005).
[86] American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders, 663 (5th ed. 2013).
[87] Id.
[88] Id.
[89] See id. at 59 (detailing that people with Attention-Deficit/Hyperactivity Disorder also often experience higher levels of impulsivity); Id. at 281 (detailing that people with Acute Stress Disorder can experience an altered sense of reality).
[90] Melanie Mogavero, An Exploratory Examination of Intellectual Disability and Mental Illness Associated With Alleged False Confessions, 38 Behav. Sci. Law 299, 301 (2020).
[91] Allison D. Redlich, et al., Self-Reported False Confessions and False Guilty Pleas among Offenders with Mental Illness, 34 L. Hum. Behav. 78, 85 (2010).
[92] Gísli Guðjónsson, The Psychology of False Confessions: Forty Years of Science and Practice 84 (1986).
[93] Gísli Guðjónsson, A New Scale of Interrogative Suggestibility, 5 Personality & Individual Differences 303, 310-13 (discussing the development and meaning of the scales).
[94] Allyson Horgon, et al., Minimization and maximization techniques: assessing the perceived consequences of confessing and confession diagnosticity, 18 Psych., Crime & L 65, 66 (2012). Minimization techniques include tactics such as feigning sympathy, offering a moral justification for the crime, or shifting blame onto another person.
[95] Id. Maximization techniques include tactics such as presenting false evidence to a person in an interrogation.
[96] See, Gisli H Gudjonsson, The Psychology of Interrogations and Confessions: A Handbook 316-318 (2003).
[97] Braggs, 209 Ill. 2d at 514.
[98] Deanna Pan, TIMELINE: Deinstitutionalization And Its Consequences, Mother Jones (Apr. 29, 2013), https://www.motherjones.com/politics/2013/04/timeline-mental-health-america/.
[99] Roth, supra note 83, at 73.
[100] See e.g., Alexandra Sifferlin, Most Violent Crimes Are Wrongly Linked to Mental Illness, Time (June 6, 2016, 4:00 PM), https://time.com/4358295/violent-crimes-mental-illness/; Sue Abderholden, Please Stop Conflating Mental Illness and Violence, Minn. Reformer (Oct. 5, 2023, 6:00 AM), https://minnesotareformer.com/2023/10/05/please-stop-conflating-mental-illness-and-violence/; Dean Burnett, Stop Blaming Mental Illness for Violent Crimes, The Guardian (Jun. 21, 2016, 6:43 AM), https://www.theguardian.com/science/brain-flapping/2016/jun/21/stop-blaming-mental-illness-for-violent-crimes.
[101] Id. at 11 and 91; Jason Matejkowski, Exploring The Moderating Effects of Mental Illness on Parole Release Decisions, 75 Fed. Probation 25, 26 (2011).
[102] Id.
[103] Id. (Other parole boards may see the existence of a mental illness and believe it makes the existence of other risk factors more likely).
[104] See Kwanele Shishane, et al., Mental Health Disorders and Recidivism Among Incarcerated Adult Offenders in a Correctional Facility in South Africa: A Cluster Analysis, PLOS One (2023) (“Offenders with untreated mental illness have a higher recidivism rate and a greater number of criminogenic risk factors than those without mental illness.”); E. Fuller Torrey, M.D., et al., More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States (2010) (“…most mentally ill persons leaving jails and prisons receive little, if any, psychiatric aftercare. Consequently the recidivism rate is thought to be higher than it is for other released prisoners.”). But see Amy B. Wilson, Examining the Impact of Mental Illness and Substance Use on Recidivism in a County Jail, 34 Int’l J. of L. & Psychiatry 264-268 (2011) (“Serious mental illness alone does not explain greater jail recidivism”); Kristen M. Zgoba, et al., Criminal Recidivism in Inmates with Mental Illness and Substance Use Disorders, 48 J. of the Am. Acad. of Psychiatry & The L. Online 1, 5 (2020) (“Released inmates diagnosed with mental illness who do not abuse substances were at no greater risk of recidivism than inmates who had neither of these problems.”) (This link has been debated and reported on differently between academics. This author recommends that further research be done into this topic, so that a clear result may be reached as to whether a person’s mental health has a direct link to their chances of recidivating into the criminal justice system after their release from incarceration).
[105] Mental Health Treatment While Incarcerated, NAMI, https://www.nami.org/Advocacy/Policy-Priorities/Improving-Health/Mental-Health-Treatment-While-Incarcerated#:~:text=Behaviors%20related%20to%20their%20symptoms,health%20treatment%20in%20incarcerated%20settings (last visited Oct. 23, 2023).
[106] See E. Fuller Torrey, M.D., et al., More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States(2010).
[107] Id.
[108] See, e.g., Ivana Hrynkiw & Ramsey Achibald, Alabama’s Billion-Dollar Prison Plan Does Not End the Overcrowding, Real-Time Ala.News (Apr. 7, 2023, 7:00 AM), https://www.al.com/news/2023/04/alabamas-billion-dollar-prison-plan-does-not-end-the-overcrowding.html; Lauren Soulek, Overcrowding in the South Dakota State Prisons, Keloland (Apr. 14, 2023, 5:16 PM), https://www.keloland.com/news/investigates/overcrowding-in-the-south-dakota-state-prisons/.
[109] See, e.g., Keri Blakinger, Why So Many Jails Are in a ‘State of Complete Meltdown,’ The Marshall Project, https://www.themarshallproject.org/2022/11/04/why-so-many-jails-are-in-a-state-of-complete-meltdown.; Amy Miller, Overcrowding in Nebraska’s Prisons Is Causing a Medical and Mental Health Care Crisis, ACLU (Aug. 16, 2017), https://www.aclu.org/news/prisoners-rights/overcrowding-nebraskas-prisons-causing.
[110] Andrew Freedman, July’s “Startling” Heat Puts Climate Change in Focus, Axios (Aug. 4, 2023), https://www.axios.com/2023/08/04/heat-wave-july-climate.
[111] Dan McCarthy, ‘We’re Stacked on Top of Each Other’: Oregon Inmates Fear Coronavirus Spread in Prisons, KATU (Apr. 10, 2020, 1:45 PM), https://katu.com/news/local/oregon-inmates-and-family-members-describe-coronavirus-concerns.
[112] Ed Pilkington, ‘People Are Dying’: Texas Prisoners Say Heatwave Turns Cells Into Ovens, The Guardian (Jul. 31, 2023, 6:00 AM), https://www.theguardian.com/us-news/2023/jul/31/texas-prison-heatwave-temperatures-cells.
[113] Nancy Schimelpfening, Common Antidepressant Medications: What You Should Know About SSRIs and Other Common Antidepressants, verywellmind (Apr. 18, 2023), https://www.verywellmind.com/most-common-antidepressants-1066939 (An individual is typically prescribed an SSRI for mental illnesses such as anxiety or depression. SSRIs are amongst the most commonly prescribed medications for a person with a mental illness).
[114] See Marlene Cimons, Risks for Some Medications Rise as Temperatures Climb, Wash. Post (Jun. 27, 2020, 12:00 PM), https://www.washingtonpost.com/health/risks-for-some-medications-rise-as-temperatures-climb/2020/06/25/0ba887e4-ae90-11ea-856d-5054296735e5_story.html; Deborah Serani, Heat Intolerance and Psychiatric Medications, Psychology Today (Jul. 27, 2021), https://www.psychologytoday.com/us/blog/two-takes-depression/202107/heat-intolerance-and-psychiatric-medications.
[115] Serani, supra note 116.
[116] Cimons, supra note 116 (“Few studies have examined the dangerous interaction between drugs and heat, and experts say more are needed.”) (This author recommends that specific research be done on the incarcerated population who take SSRIs, and their chances of experiencing such medical dangers. Very few studies have been done on the general public regarding such dangers, and this author was not able to find studies done on the incarcerated population specifically).
[117] Miranda v. Arizona, 384 U.S. 436, 442 (1966) (“While the admissions or confessions of the prisoner…have always ranked high in the scale of incriminating evidence….”).
[118] Linda A. Henkel, Kimberly A. J. Coffman & Elizabeth M. Dailey B.A., A Survey of People’s Attitudes and Beliefs about False Confessions, 26 Behavioral Sciences & the Law 555, 556 (2008) (In the study conducted by this cited authority, physical evidence such as DNA and fingerprints was the only type of evidence that was surveyed as more persuasive than a confession).
[119] Id. at 558.
[120] Id.
[121] Id.
[122] Id.
[123] Id. at 563.
[124] Id.
[125] A fundamental attribution error refers to a person’s capability of holding another person accountable to a standard that they do not hold themselves to.
[126] Henkel, supra note 120, at 578.
[127] Id. at 570.
[128] Id. at 580.
[129] See, e.g., Daniel Wu, Louisiana Police Held Detainees in ‘Torture Warehouse,’ Lawsuits Say, Wash. Post. (Sept. 20, 2023, 1:52 AM); Radley Balko, After Killing John Crawford, Ohio Police Then Berated His Grieving Girlfriend,Wash. Post. (Dec. 17, 2014, 1:30 PM).
[130] Henkel, supra note 120.
[131] Id.
[132] Saul M. Kassin et al., Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs, 31 L. & Hum. Behav. 381, 392 (2007).
[133]Pew Research Center, Do Americans Trust the Police?, YouTube (Jan. 5, 2022), https://www.youtube.com/watch?v=Jj9vD7cKUhE&list=PLZ9z-Af5ISaswq9yoHM32olz4-AITb1Dl (This data may be affected by other events in 2020, such as the murder of George Floyd. Other similar polls were conducted in 2020, but this author was unable to find a more recent poll).
[134] See, e.g., Christina Mangurian, et. al., Diabetes and Cardiovascular Care Among People with Severe Mental Illness: A Literature Review, 31 J. Gen. Internal Med. 1083 (2016) (Concluding that people with mental illness live, on average, twenty-five years less than the general population.); Cathryn Rodway et al., Patients With Mental Illness as Victims of Homicide: A National Consecutive Case Series, 1 The Lancet Psychiatry 129 (2014) (Concluding that, in England and Wales, people with mental illness are more likely to be victims of homicide than the general population).
[135] E.g., Atkins v. Virginia, 536 U.S. 304 (2002) (granting protections for people with mental illness against the death penalty).
[136] See, e.g., Louis Krauss, City of Anoka Program Discriminated Against Tenants With Mental Illness, DOJ Report Finds, StarTribune(Nov. 9, 2023, 6:21 PM), https://www.startribune.com/city-of-anoka-minnesota-discriminated-against-tenants-mental-illness-justice-department-report-finds/600318647/; Jenifer B. McKim, Prisoners With Mental Disabilities Claim Discrimination by Massachusetts Parole Board, GBH News (Aug. 3, 2023, Updated Aug. 7, 2023), https://www.wgbh.org/news/local/2023-08-03/prisoners-with-mental-disabilities-claim-discrimination-by-massachusetts-parole-board.
[137] Inbau, supra note 32, at vii.
[138] E.g., Martina Vicianova, Historical Techniques of Lie Detection, 11 Eur. J. of Psych. 522, 525-6 (2015) (discussing the inaccuracy of polygraph tests which rely on measuring physiological changes);
[139] Charles Bond, Jr. & Bella DePaulo, Accuracy of Deception Judgments, 10 Personality & Soc. Psych. Rev. 214, 219 (2006).
[140] Inbau, supra note 139.
[141] Leading questions are questions that encourage a certain answer from the person being questioned.
[142] Inbau, supra note 32, at 299.
[143] Id. at 276.
[144] E.g., id. at 75 (“When a suspect voluntarily submits to an interview, it is our recommendation to advise the suspect that he is not in custody and is free to leave at any time. Although such a statement is not legally required, it can prove beneficial in court if a defense attorney attempts to argue that the interview was custodial and therefore Miranda rights should have been issued and waived.”); Id. at 169 (“For court purposes, it is not recommended that the investigator categorize a suspect’s response to behavior-provoking questions as truthful or deceptive at the time each question is asked.”).
[145] Id. at 145-146.
[146] Id. at 30.
[147] Id.
[148] Id. at 32.
[149] Id. at 33.
[150] Id.
[151] Id. (The P.E.A.C.E. method has been adopted in multiple countries including Australia and Norway. Others, such as Vietnam, Singapore, and the Republic of Ireland have adopted or are considering adopting the method in part).
[152] See Miranda Rights, supra note 49; Berghuis v. Thompkins, 560 U.S. 370, 381 (2010) (“If an accused makes a statement concerning the right to counsel ‘that is ambiguous or equivocal’ or makes no statement, the police are not required to end the interrogation or ask questions to clarify whether the accused wants to invoke [their] Miranda rights.”).
[153] North Carolina v. Butler, 441 U.S. 369, 379 (“…Miranda requires the police to obtain some kind of waiver — whether express or implied….”).
[154] See Miranda Rights, supra note 49.
[155] Peter Silverstone & Mahnaz Salsali, Low Self-Esteem and Psychiatric Patients: Part I – The
Relationship Between Low Self-Esteem and Psychiatric Diagnosis, 2 Annals of Gen. Hospital Psychiatry 1, 3 (2003).
[156] See, e.g., Paula Wissel, Teenage Brains Don’t Understand Miranda Warnings, Say Juvenile Justice Reformers, KNKX Public Radio(Aug. 6, 2020, 10:00 AM), https://www.knkx.org/news/2020-08-06/teenage-brains-dont-understand-miranda-warnings-say-juvenile-justice-reformers; Sarah Martinson, Prosecutors Push For National Reform On Youth Interrogation, Law 360 (Feb. 6, 2022, 8:02 PM), https://www.law360.com/articles/1461825/prosecutors-push-for-national-reform-on-youth-interrogation, Logan Seacrest, Pennsylvania’s Juvenile Justice Reform Moment Is Here, RStreet (Sept. 26, 2023), https://www.rstreet.org/commentary/pennsylvanias-juvenile-justice-reform-moment-is-here/.
[157] Alternatively, and ideally, the officer could also contact a social worker or other mental health professional as suggested in this paper.
[158] See Dorris A. Fuller, H. Richard Lamb, Michael Biasotti & John Snook, Treatment Advocacy Center, Overlooked in the Undercounted: The Role of Mental Illness in Fatal Law Enforcement Encounters 1 (2015), https://www.treatmentadvocacycenter.org/storage/documents/overlooked-in-the-undercounted.pdf.
[159] Crisis intervention training refers to the training of first responders which centers curriculum aimed at reducing severe injury and death in their interactions with people with mental illness.
[160] E.g., Annie Elming, Mental Health Training for Nebraska First Responders Held at CenterPointe, KLKNTV (Aug. 1, 2023, 7:04 PM), https://www.klkntv.com/mental-health-training-for-nebraska-first-responders-held-at-centerpointe/; Dylan Goetz, University of Michigan-FlintPolice Undergo Mental Health De-Escalation Training Program, m Live (Jul. 24, 2023, 7:52 AM), https://www.mlive.com/news/flint/2023/07/university-of-michigan-flint-police-undergo-mental-health-de-escalation-training-program.html; Cody Taylor, Madison Police Department Adapts to Mental Health Crisis, Spectrum News (Aug. 2, 2023, 9:01 AM), https://spectrumnews1.com/wi/milwaukee/news/2023/07/25/madison-police-mental-health-#:~:text=The%20problem%20is%20most%20police,Enforcement%2DMental%20Health%20Learning%20site.
[161] Michael T. Compton et al., The Police-Based Crisis Intervention Team (CIT) Model: II. Effects on Level of Force and Resolution, Referral, and Arrest, 65 Psychiatric Services 523, 528 (2014).
[162] Id.
[163] Erin Bowling, Michigan Police Officers Train for Mental Health Crisis Response, De-Escalation, WILX (Mar. 10, 2023, 6:53 PM), https://www.wilx.com/2023/03/10/michigan-police-officers-train-mental-health-crisis-response-de-escalation/.
[164] Id.
[165] Here, vulnerabilities include mental health disorders as well as intellectual disabilities.
[166] Mogavero, supra note 90, at 304.
[167] Helena A. Addison,et al.,, Resident Perspectives on Police Involvement in the Response to Mental Health Crisis, 8 J. of Cmty. Safety & Well-Being 112 (2023).
[168] E.g., Alison Cross, CT Passes Bill Targeting Police Interrogation Practices, Including Bar on Offering False Facts, Promises to Juveniles, Hartford Courant (Jun. 1, 2023), https://www.courant.com/2023/06/01/bill-targeting-deceptive-and-coercive-interrogation-passes-ct-legislature/ (Most of the recent changes made to interrogations have been targeted at banning law enforcement from being able to lie to minors in an interrogation).
[169] See Sema A. Taheri, Do Crisis Intervention Teams Reduce Arrests and Improve Officer Safety? A Systematic Review and Meta-Analysis, 27 Crim. Just. Pol’y Rev. 76, 90-91 (2014) (stating that the current research shows no benefits or harms linked to crisis intervention training and discussing that the reason may be the limitations of the research) (The link right now is merely suggested, as stated in section four of this paper and not entirely confirmed because current literature reviews on the topic are limited due to the lack of studies that have been completed. It is the recommendation of this author for more studies to be done on the possible link between crisis intervention training on police and the potential benefits).
[170] Michael T. Compton, et al., Use of Force Preferences and Perceived Effectiveness of Actions Among Crisis Intervention Team (CIT) Police Officers and Non-CIT Officers in an Escalating Psychiatric Crisis Involving a Subject With Schizophrenia, 37 Schizophrenia Bulletin737, 741 (2009).
[171] Id. (“…CIT training did not have a prominent effect on use of force….”).