False
Confessions: Dr. Michael Welner
25 Jan
 |
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Dr.
Michael Welner
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Here is a press release from Joanna
Fiorentini, case manager for my friend Dr. Michael Welner, Chairman of The Forensic Panel. Fascinating
discussion of false confessions.
Forensic Panel Chair’s Testimony
on False Confessions to NYS Justice Task Force Tackles Myths, Proposes New
Solutions
Dr. Welner Invokes Importance of
Retraction, Videotaping,Miranda Reform and Tort Reform in Reducing Wrongful
Convictions, Aiding Courts
New York – In front of a New York State Justice Task Force
subcommittee on false confessions, forensic psychiatrist Dr. Michael Welner
testified to a stark lack of science informing the understanding of false
confessions, but proposed a number of solutions to ensure the integrity of
justice and protection of the vulnerable from confessing falsely. Speaking
before a group of district attorneys, judges, policymakers, and representatives
from The Innocence Project, Dr. Welner, Chairman of The Forensic Panel, drew
from comprehensive study of the behavioral science literature, his experience
in examining disputed confessions in over ten states and federal courts, and
his research on exonerations to educate subcommittee members about the state of
the science of disputed confessions. The New York State Justice Task Force is a
permanent task force created by the Chief Judge of the State of New York to
examine the causes of wrongful convictions and recommend reforms.
Dr. Welner
demonstrated how poor scientific methodology and an anti-police agenda
among declared scholars in this novel area of scientific interest result
in inflated perceptions of the prevalence of false confessions. These include
false representations by The Innocence Project that the proportion of false
confessions in wrongful conviction cases is 25 percent when that percentage is
in actuality close to 10 percent. Dr. Welner challenged assertions of published
academics such as Gisli Gudjonsson, Saul Kassin, Richard Ofshe, Richard Leo,
and Steven Drizin that confirmed false confessions are “frequent,” a “small but
significant minority” of confessions, and “the tip of the iceberg.” From
studies of observed police interrogation, studies of interrogations in
jurisdictions such as Salt Lake City, surveys of police officers, and the lack
of history of false confessions elicited by correctional psychiatrists and
more, Dr. Welner demonstrated the rarity of false confessions, though their
exact incidence is unknown. “Is it one in a million interrogations? One in ten
million interrogations? One in one hundred thousand? We do not know. But false
confessions are tragic enough,” he asserted. “Embellishment does not serve
justice and takes away from the credibility of a legitimate concern.”
Peter
Neufeld, a co-founder of The Innocence Project, who was in attendance,
countered that since one does not yet know the exact frequency of false
confessions, “it is wrong to speak to their rarity just as it is wrong to say
they happen frequently.” But Neufeld did not deny Dr. Welner’s charge that The
Innocence Project has falsely inflated its numbers of false confessions.
Neufeld additionally revealed, in his response to Dr. Welner, that
The Innocence Project also classifies cases as false confessions even when
their own exonerated clients are adamant that they never confessed – because,
as Neufeld asserted, “some of our clients are not reliable with what they tell
us.”
“The
Innocence Project finds their clients reliable enough to assert that they are
innocent rather than freed by the good fortune of contradictory scientific
evidence,” Dr. Welner observed. “To then say that their clients are not
reliable when they say they never confessed – well, either you trust your clients
or you don’t. Objectivity does not allow forensic science the liberty of
changing a threshold of ‘reliable’ to suit the argument of the moment.”
The Welner
testimony reviewed the available evidence on what makes an individual
vulnerable to a false confession. Suggestibility and compliance, naivete about
the criminal justice system, and memory distrust are risk factors for false
confessions under circumstances in which police questioning exploits these
weaknesses; mental retardation is also a risk factor because of its high
incidence of greater suggestibility, compliance, naivete, and memory distrust,
according to Dr. Welner.
The presence
of a mental illness or personality disorder, age alone, and general cognitive
difficulties do not have support from any systematic research to reflect a
risk. Added Dr. Welner, “Experience in casework teaches me that a sixteen year
old gang member or teenager seeped in a culture that distrusts police, or with
exposure to those in the criminal justice system are less vulnerable than even
adults who are trusting of police prestige and authority. Emphasizing age per
se, without more, as a risk factor is disingenuous and unsupported by
research.” Dr. Welner invoked his case experience assessing Guantanamo detainee
Omar Khadr, and the account of a senior Canadian foreign ministry official who
documented the admitted Al-Qaeda fighter Khadr, at age 17, to employ
“classic interrogation measures.”
At the same
time, added Dr. Welner, he agrees with critics of police that Miranda warnings
are often not understood by defendants, especially younger adolescents. He
proposed adapting Miranda warnings to the developmental capabilities of
adolescents, and training to officers to deliver and record Miranda waivers
with full accounting of the suspect’s understanding.
In his
testimony, Dr. Welner also reinforced that assessment of a disputed confession
must account for the tremendous incentive on any defendant to retract a
confession after arrest. That pressure may originate from recognizing the
impact of one’s confession versus the rest of the evidence, or from pressure
from other inmates, one’s family, or one’s attorney. “If we appreciate
the authority of the police officer – even as an adversary – to elicit a
confession, we as participants in justice cannot responsibily ignore that the
authority of one’s own attorney, especially because of the trusted
relationship, can provoke a retraction of a perfectly
legitimate confession. The key points of understanding
about a disputed confession are the influences to a suspect’s decision to
change from denying a crime to admitting it, and then from admitting a crime to
retracting that admission,” explained Dr. Welner.
He joined
other police critics and defense advocates who called for interrogations to be
videotaped entirely. Dr. Welner went even further, however, and called for
videotapes to be installed in police cars, in police stations, and in holding
cells to capture as much of the interaction between suspects and police, and
suspects and other influences, as possible. Dr. Welner also underscored the
importance of taping telephone conversations that the suspect has after arrest,
in order to capture his account of his experiences at the time of his arrest
and the influence of others who might compel him to retract.
Finally, Dr.
Welner implored the court to compel defense attorneys who challenge confessions
to produce for the court’s private review the notes of their discussions with
the defendant about the circumstances of their decision to confess at the
time that the court receives a defense motion to suppress the confession
statements. “If we want to identify coerced confessions, or false confessions,
as well as frivolous complaints of police abuse, courts should require all
parties to put their cards on the table and afford full transparency to the
judge and the case record,” challenged Dr. Welner. A judge who is charged with
decisions on the admissibility of a confession can review this evidence without
self-incriminating disclosure to the prosecution.
Citing his
own research on documented cases of false confessions, Dr. Welner cautioned the
judges and lawmakers in attendance of the need to scrutinize confessions
elicited by false claims of a failed polygraph, and false claims of
statements by third parties and other suspects, as well as threats of the death
penalty. However, Dr. Welner said that he did not endorse a ban on the use of
ploys of false evidence. “If we are videotaping interviews in their entirety,
we will have a full accounting of what went on in the interrogation room,” he
noted. Those interrogations in which vulnerabilities and police interrogation
approaches yielded false confessions will be exposed. On the other hand,
creative police interrogation that elicits true confessions because of the
ethical persistence and cleverness of the interrogator will not be discouraged.
Dr. Welner
compared consideration of false confessions by expert witnesses to insanity
defenses. For the latter, when a defendant puts one’s mental state at issue,
the court affords both defense and prosecution the opportunity to interview and
examine the defendant. Likewise, when expert witnesses are consulted by defense
to challenge the vulnerability of a suspect in confession, both sides should
have the opportunity to examine the suspect on the salient topic of his mental
state and diagnosis at the time of his decision to confess – and to retract –
and to probe psychosocial background and risk factors that make the suspect
more vulnerable and less vulnerable. And just as mental health promotes
videotaping for police interrogation, courts should mandate videotaping
interviews by expert witnesses as a precondition to experts testifying at
a disputed confession proceeding.
Dr. Welner
has consulted to both prosecution and defense on disputed confessions and has
declined to testify on behalf of both sides as well. His testimony has been
used, in previous proceedings, to exclude Dr. Gudjonsson, Dr. Kassin, and Dr.
Ofshe. According to Dr. Welner, courts who give an unregulated open door to
expert witness testimony on police-induced false confession enable broad
generalizations about police practice that have no relevance to the case
itself. He added that such experts invoke expertise in the ability to use
“logical analysis,” “narrative analysis,” and other seeming techniques to
“analyze” confessions when no such methodology exists. “It is a sham that has
been nevertheless published in peer reviewed journals,” notes Dr. Welner,
comparing the coterie of colleagues suggesting commonplace false confessions to
the recovered memory controversy and how enthusiastic psychologists once
professed to be able to identify repressed experiences of abuse and published
extensively on their own recommended methodologies. That trend in the 1990’s
collapsed in humiliation for the behavioral sciences when innocent families
were disintegrated by false allegations of sexual abuse elicited by false
memory “experts” and their acolytes. At the same time, Dr. Welner praised Drs.
Gudjonsson, Kassin, Leo, and Ofshe for calling attention to false confessions.
“Rare though they are, false confessions must not be ignored,
and sometimes are.”
The
subcommittee specifically asked Dr. Welner how, in today’s budgets, the policy
reforms proposed by Dr. Welner could be implemented. Dr. Welner had a
straightforward response – tort reform. Dr. Welner cited his experience in
examining the previously exonerated, who file claims for millions and even tens
of millions of dollars. “How much does a person need once his freedom has been
restored? When one exoneree tells me he needs four million dollars, I have to
ask why we could not direct even half of those monies, two million, to pay for
upgrades in recording? We have to decide what our priorities are as a nation.
Is it to use a limited amount of money to bring wealth to the aggrieved? Or
should it be that we make sure that people who were wronged have what they
need, and we focus more of our resources on optimizing a system so it does not
happen again?”
Dr. Welner
added that when he attempted to study the false confession sample from
exoneration cases, prosecutors’ offices were reluctant to share information
with him because of exposure to civil litigation by those they had
incarcerated. “Without that information, we cannot learn what we must to
prevent miscarriages of justice. Until we take the fear that forces people to
cover themselves, we won’t get the information we need. If South Africa could
use amnesty to reintegrate its society, we can create a modified financial
amnesty to encourage police to be fully forthcoming.”
Dr. Welner
challenged the New York Justice Task Force and legislatures in other
states to act boldly, with concessions from police, prosecutors, and defense
attorneys, to advance the law in preventing miscarriage of justice.
“Videotaping interrogations alone will not reduce miscarriages of justice,” he
asserted, citing the experience of England, where interrogation reforms have
been praised but have failed to lower the rate of disputed confessions.
“The subcommittee can act with an appreciation for the bigger picture and enact
the reforms I have proposed. Everyone wants justice; we may disagree how to get
there, but we will only get there from accountability at each corner of the
justice system.”
To access the Power Point
presentation of Dr. Welner’s testimony, Wrongful Convictions – Confessions:
Myths, Facts, and Solutions, please click
here.
For Further Information:
Joanna Fiorentini
The Forensic Panel
Tel: 212.535.9286
Email: jfiorentini@forensicpanel.com
Email: jfiorentini@forensicpanel.com
INTERNET SOURCE: https://writersforensicsblog.wordpress.com/2011/01/25/false-confessions-dr-michael-welner/
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