Interrogated with Intellectual Disabilities: The Risks of False

2018

Samson J. Schatz, J.D.

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Volume 70 February 2018

Stanford Law Review

NOTE

Interrogated with Intellectual Disabilities:

The Risks of False Confession

Samson J. Schatz



Abstract. False confessions happen. At least 245 people have been exonerated from

convictions in cases featuring confessions that were simply not true. Confessions offer a

narrative that allows law enforcement, and society in general, to neatly resolve cases with

apparent clarity and closure. And yet the pressures officers place on suspects to provide

that closure weigh disproportionately on the vulnerable, including individuals with

intellectual disabilities. These individuals are disadvantaged at every step of the custodial

interrogation, and they face heightened risks of falsely confessing. Moreover, the principal

judicial safeguards against false confessions—assessing a suspect’s Miranda waiver and

determining whether a confession was voluntarily given within the bounds of the

Fourteenth Amendment’s Due Process Clause—provide little protection for the innocent

with intellectual disabilities.

Few pieces of scholarship focus specifically on the heightened risks faced by individuals

with intellectual disabilities throughout the process of police interrogation. This Note

describes the various ways these individuals are disadvantaged. And it offers an additional

data point illustrating the vulnerability of people with intellectual disabilities. This Note

analyzes the 245 individuals (as of June 2, 2017) on the National Registry of Exonerations

who have falsely confessed. Over one-quarter of them display indicia of intellectual

disability. This percentage dwarfs the prevalence of people with intellectual disabilities in

the general population and even exceeds most estimates of the proportion of the prison

population suffering from intellectual disabilities. This Note concludes with several policy

and doctrinal suggestions to better protect individuals with intellectual disabilities from

the risks of false confession.



J.D. Candidate, Stanford Law School, 2018. I am indebted to and in awe of Joan Petersilia.

Thank you to Sam Gross and others at the National Registry of Exonerations for

providing me with data and guidance; to Lawrence Marshall for his instruction in

Wrongful Convictions; to Bernadette Meyler, Barbara Fried, and students in the Stanford

Legal Studies Workshop for helpful comments; to Sandra and Bill Goodglick, Tracy and

Dale Schatz, and Joshua Goodglick for edits; and to Aarian Mara Marshall for her patient

expertise. A special thank you to the uncompensated souls of the Stanford Law Review:

Dennis Martin, Hannah Chartoff, Katie Kelsh, Rachel Neil, Matt Getz, Brian Baran, and

in particular my editing team, Brenna Field, Natalie Peelish, Shelby Hart-Armstrong, and

Viola Hung Li.

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Table of Contents

Introduction ............................................................................................................................................................ 645

I. Confessions and False Confessions .................................................................................................. 647

A. Confessions in the Criminal Justice System .................................................................... 647

B. The Problem of False Confessions ......................................................................................... 651

II. Intellectual Disabilities ........................................................................................................................... 655

III. Interrogating Individuals with Intellectual Disabilities ...................................................... 658

A. Within Custodial Interrogation ............................................................................................. 659

1. Recognizing the suspect’s disability ........................................................................... 659

2. Delivering the Miranda warnings ............................................................................... 660

3. Conducting preadmission interrogation ................................................................. 662

4. Administering postadmission interrogation ........................................................ 667

B. Existing Judicial Safeguards Against False Confessions............................................ 671

1. Review of the Miranda waiver ...................................................................................... 673

2. Review of the confession’s voluntariness ............................................................... 677

IV. Indicia of Intellectual Disability Among Exonerated False Confessors ..................... 680

Conclusion ............................................................................................................................................................... 687

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Introduction

People falsely confess. It is a fact of the criminal justice system proved time

and again. As of June 2, 2017, the National Registry of Exonerations (NRE) had

identified 245 individuals exonerated from convictions in cases featuring false

confessions.

These individuals served an average of twelve years for crimes

they did not commit.

To the average juror—who cannot fathom an innocent

person ever confessing to a crime

—these individuals may not be sympathetic.

But though scholars have struggled to extrapolate an estimate of the frequency

of false confessions in the general criminal justice system, there is a consensus

that these 245 proven false confessions are “only the tip of a much larger

iceberg.”

For individuals with intellectual disabilities, the risks of false confession

are likely even greater. Police interrogation tactics, which are known to elicit

false confessions from typical suspects, pose heightened risks for individuals

with these disabilities. There are few safeguards for these vulnerable suspects in

the confines of custodial interrogation. And the principal means of judicial

oversight are inadequate to protect these suspects from wrongful conviction.

This Note sets out to accomplish several related tasks. It brings together

strands of scholarship from various fields. Few works have focused specifically

on the heightened risks facing individuals with intellectual disabilities in the

context of police interrogations. This Note reviews the exhaustive literature

on confessions, false confessions, and wrongful convictions and passes these

insights through the lens of psychological scholarship on intellectual

1. See Samson J. Schatz, Analysis of False Confessors in the National Registry of

Exonerations (2018), https://perma.cc/XDV3-TEPH [hereinafter Data Supplement] (to

access the data in Excel format, click “View the live page”) (collecting all individuals

listed on the NRE as of June 2, 2017 whose convictions were based, at least in part, on a

false confession); see also Contributing Factors and Type of Crime, N

AT’L REGISTRY

EXONERATIONS, https://perma.cc/HEE7-MR2C (archived Jan. 16, 2018). For each

exoneree, the NRE data included basic demographic and case details. I then researched

each exoneree’s individual files—including NRE notes, case files, and news reports—to

search for various indicia of intellectual disability.

2. Data Supplement, supra note 1.

3. See Saul M. Kassin & Katherine Neumann, On the Power of Confession Evidence: An

Experimental Test of the Fundamental Difference Hypothesis, 21 L

AW & HUM. BEHAV. 469,

482 (1997) (“[P]eople find it difficult to believe that anyone would confess to a crime he

or she did not commit.”).

4. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA

World, 82 N.C.

L. REV. 891, 921 (2004); accord RICHARD A. LEO, POLICE INTERROGATION

AND AMERICAN JUSTICE 247-48 (2008); Saul M. Kassin et al., Police-Induced Confessions:

Risk Factors and Recommendations, 34 L

AW & HUM. BEHAV. 3, 3 (2010). Indeed, while I

performed my analysis as of June 2, 2017, as of the time this Note went to print the

NRE showed 263 exonerations in cases featuring false confessions. See Contributing

Factors and Type of Crime, supra note 1.

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disabilities. In part, this Note follows the model set forth by Barry Feld in Kids,

Cops, and Confessions: Inside the Interrogation Room, which brought similar

strands of scholarship together to study the experiences of youths—another

vulnerable group—in police interrogations.

This Note identifies the heightened risks faced by individuals with

intellectual disabilities at the various steps of a police interrogation. There are

two critical stages: the custodial interrogation itself, where the false confession

occurs and is developed; and the post-hoc judicial assessment of the

interrogation and confession. These two stages can be further dissected into

specific parts. The custodial interrogation consists of (1) the officer’s first

impression of a suspect; (2) the Miranda waiver; (3) the preadmission

interrogation, in which the police employ various strategies to get a suspect to

admit she “did it”; and (4) the postadmission development of a fluid narrative of

guilt. The judicial assessment stage can also be divided between two separate

constitutional doctrines: (1) the court determines whether the Miranda

warning was properly given and the suspect’s rights properly waived; and

(2) the court analyzes whether the confession itself comports with the

requirements of the Fourteenth Amendment’s Due Process Clause.

At each

step, both during and following the interrogation, individuals with intellectual

disabilities are disadvantaged. They face heightened risks of falsely confessing

and having those confessions used against them in court or during plea

negotiations.

Having identified the particular stages throughout the interrogation

process in which individuals with intellectual disabilities are especially

vulnerable, this Note adds one further empirical measure of these risks. It

works with one of the largest datasets of proven false confessors to date

—

245 individuals from the NRE database.

With this compilation, this Note sets

out to make two modest contributions. First, it looks at those who have falsely

confessed in the NRE database and identifies individuals who demonstrate

indicia of intellectual disability. This analysis reveals that individuals

displaying characteristics linked to intellectual disabilities represent more than

5. See generally BARRY C. FELD, KIDS, COPS, AND CONFESSIONS: INSIDE THE INTERROGATION

ROOM (2013).

6. U.S. CONST. amend. XIV, § 1 (“No State shall . . . deprive any person of life, liberty, or

property, without due process of law . . . .”).

7. Cf., e.g., Drizin & Leo, supra note 4, at 951 (analyzing a dataset of 125 proven false

confessors); Brandon L. Garrett, The Substance of False Confessions, 62

STAN. L. REV. 1051,

1059 (2010) (studying 40 exonerees); Richard A. Leo & Richard J. Ofshe, The Consequences

of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of

Psychological Interrogation, 88 J.

CRIM. L. & CRIMINOLOGY 429, 472 & tbl.B1 (1998)

(compiling a dataset of 60 cases).

8. See Data Supplement, supra note 1.

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one-quarter (25.7%) of those who have falsely confessed.

This figure is larger

than estimates of intellectual disabilities in the general population (1-3%) and

even the prison population (anywhere from 4% to 19.5%).

Furthermore, this

Note seeks to provide a rough methodology for identifying indicia of

intellectual disability within the larger NRE database. Hopefully future papers

will continue the project of identifying these indicia and determining the

prevalence of intellectual disabilities in the larger population of exonerees.

Part I discusses the general role that confessions play in the criminal justice

system. I briefly describe the types of false confessions and why they occur.

Part II defines the terminology of intellectual disabilities and reviews why

individuals with intellectual disabilities are particularly vulnerable to police

interrogations. Part III examines how these characteristics expose those

individuals to risks at each stage of the interrogation process. Part IV presents

new evidence supporting the assertion that individuals with intellectual

disabilities face heightened risks of falsely confessing. Finally, I conclude by

surveying possible policy and legal reforms to address these problems.

I. Confessions and False Confessions

A. Confessions in the Criminal Justice System

Confessions are unique and powerful evidence. In his dissent in Colorado v.

Connelly, Justice Brennan recognized that factfinders place “such heavy weight”

on confessions “in their determinations that ‘the introduction of a confession

makes the other aspects of a trial in court superfluous, and the real trial, for all

practical purposes, occurs when the confession is obtained.’”

Research has

proved Justice Brennan’s concerns valid. Actors in the criminal justice

system—law enforcement officers, prosecutors, judges, jurors, and even defense

attorneys—struggle to overcome the presumption that confessions are true and

confessors guilty.

Suspects who confess are treated more harshly at every

9. See id.; infra Part IV. False confessions are by no means a problem only for people with

intellectual disabilities. The vast majority of suspects (nearly 75%) who falsely confess

are not intellectually disabled, though some segment of this majority does include

vulnerable individuals of other categories (e.g., youths and individuals with mental

illnesses). While the exact percentage of individuals showing no obvious sign of

vulnerability is beyond the scope of this Note, a rough calculation shows that 34.7% of

the false confessor population in the NRE database is both twenty-one years old or

older and shows no sign of mental disability or illness.

10. See infra notes 306-08 and accompanying text.

11. 479 U.S. 157, 182 (1986) (Brennan, J., dissenting) (quoting EDWARD W. CLEARY ET AL.,

MCCORMICK’S HANDBOOK OF THE LAW OF EVIDENCE 316 (2d ed. 1972)).

12. See, e.g., Richard A. Leo & Deborah Davis, From False Confession to Wrongful Conviction:

Seven Psychological Processes, 38 J. P

SYCHIATRY & L. 9, 19-24 (2010) (detailing how

footnote continued on next page

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stage of the investigative and trial process.

The vigor with which police

pursue confessions and the persuasiveness of confessions as evidence render

false confessions extremely fateful errors.

Admission of guilt can come in several flavors. When a suspect admits to

all the elements of a crime, the admission constitutes a full confession.

When

the suspect admits to some but not all elements of a crime (if, for example, he

admits to being present during the crime but not participating in it), this is a

partial admission.

Researchers estimate anywhere from 42% to 76% of

suspects give some form of confession or admission.

And most admissions

occur during custodial interrogations.

Most people assume that confessions, “by [their] very nature,” are true.

The existence of a confession in a case tends to strongly bias the perceptions

and factfinding of judges and juries.

Researchers have demonstrated that

mock jurors find confession evidence more incriminating than other types of

evidence.

And even when the jurors viewed the confessions as coerced, they

nevertheless believed them to be true.

These studies indicate that to some

confessions “set[] in motion a seemingly irrefutable presumption of guilt” at all stages

of the investigation and trial).

13. See Richard A. Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY 266, 298-

99, 299 tbl.16 (1996) (analyzing the effect of a suspect’s providing incriminating

statements on likelihood of charging, dismissal, plea bargaining, and conviction, as

well as on severity of sentence).

14. See, e.g., id. at 280 (coding suspects’ responses to interrogation).

15. See GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS AND CONFESSIONS: A

HANDBOOK 154 (Graham Davies & Ray Bull eds., 2003) (discussing “partial and limited

confession[s]”); see also infra Part III.A.4 (discussing the distinction between an

admission and a full confession).

16. GUDJONSSON, supra note 15, at 137 tbl.6.1 (collecting studies). Richard Leo’s

observational study of 182 suspects showed that 42% of suspects fully confessed (24.2%)

or partially admitted (17.6%) to a crime. Leo, supra note 13, at 280 tbl.7.

17. See GUDJONSSON, supra note 15, at 134.

18. Leo & Davis, supra note 12, at 19.

19. See id.

20. See, e.g., Kassin & Neumann, supra note 3, at 476, 479, 481.

21. Saul M. Kassin & Holly Sukel, Coerced Confessions and the Jury: An Experimental Test of

the “Harmless Error” Rule, 21 L

AW & HUM. BEHAV. 27, 42 (1997) (finding that mock jurors

“did not sufficiently discount a defendant’s confession in reaching a verdict—even

when they saw the confession as coerced, even when the judge ruled the confession

inadmissible, and even when participants said that it did not influence their decision-

making”). Both 1997 studies—Kassin and Neumann as well as Kassin and Sukel—were

conducted in reaction to a portion of Chief Justice Rehnquist’s opinion in Arizona v.

Fulminante, 499 U.S. 279 (1991), holding for a majority of the Court that admission of an

involuntary confession into evidence was governed by the harmless error standard, id.

at 312. See Kassin & Sukel, supra, at 29-30; Kassin & Neumann, supra note 3, at 470.

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extent, “[m]ost Americans simply accept confession evidence at face value.”

Judges are no exception: They tend to presume that confessors are guilty, and

they only rarely suppress confession evidence.

Even defense attorneys are affected by the confessions of their clients. For

example, studies show that defense attorneys put greater pressure on clients

who have confessed to accept guilty pleas to lesser charges.

Defense attorneys,

like everyone else, may reflexively presume that clients who confess are guilty.

Or it may be that they realize what the Supreme Court of California

recognized: that a “confession operates as a kind of evidentiary bombshell

which shatters the defense.”

In that case, defense attorneys know that

pleading guilty may simply be the best strategy.

The case of Danial Williams provides an extreme example of the distortive

effect a confession can have on an individual’s counsel. Danial was arrested and

convicted for rape and murder.

Though DNA evidence excluded him as the

rapist, Williams falsely confessed after more than twelve hours of interroga-

tion.

When Williams asserted his innocence after the interrogation, his

lawyers called him “Denial” to his face—even once at a court hearing.

Williams’s lawyers convinced him to plead guilty, and they never challenged

the admissibility of the confession at the suppression hearing.

Law enforcement officers also intuitively trust confessions.

Police

officers tend to believe that their interrogations cannot yield anything but a

true confession; more often, they worry that too many guilty people escape

punishment.

But beyond the intuitive belief that confessions are true, law enforcement

officers are incentivized to pursue confessions from suspects. For example,

confessions are persuasive evidence even in the absence of, or contrary to,

22. Leo & Davis, supra note 12, at 25.

23. See id. at 24-25.

24. See id. at 23-24 (citing PETER F. NARDULLI ET AL., THE TENOR OF JUSTICE: CRIMINAL

COURTS AND THE GUILTY PLEA PROCESS (1988)).

25. People v. Cahill, 853 P.2d 1037, 1050 (Cal. 1993) (quoting People v. Schader, 401 P.2d 665,

674 (Cal. 1965), overruled on other grounds by Cahill, 853 P.2d 1037).

26. See Leo & Davis, supra note 12, at 10.

27. Id. at 14-15.

28. See id. at 24.

29. Id. at 18, 24. Rhea Williams, Danial’s mother, also described the lawyers’ efforts to

persuade Danial to plead guilty. See Parties’ Joint Stipulations of Fact ¶ 287, Dick v.

Brown, No. 3:10-cv-00505-JAG (E.D. Va. Apr. 6, 2015).

30. FELD, supra note 5, at 235 (“Neither professionals nor laypeople can readily distinguish

between true and false confessions.”).

31. See LEO, supra note 4, at 21.

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other evidence.

Confessions also allow police to “clear” crimes—close the file,

classify it as solved by arrest, and cease chasing down other leads—which is the

metric by which police departments often evaluate and reward their officers.

This yields efficiencies for the department: Once a suspect confesses, the

evidence is considered so damning it will almost always lead to a conviction or,

more often, a guilty plea.

Furthermore, confessions allow police to clear

crimes with an authoritative and seemingly unimpeachable narrative of the

crime. As discussed below, police generally do not just elicit an “I did it”

statement; they work the suspect to develop a “full confession,” a thorough and

logical narrative.

This provides closure for the department, the community,

the media, politicians, and the victims.

These incentives reinforce the vicious loop created by introducing

confessions into the criminal justice system. Because people intuitively believe

confessions, police actively seek them, using psychologically coercive tactics to

elicit admissions.

But also, because police use confessions to close cases neatly,

efficiently, and often, the public might take these cues as suggestive of their

validity. It is this dangerous cycle that the Supreme Court warned against

when it wrote that it had “learned the lesson of history, ancient and modern,

that a system of criminal law enforcement which comes to depend on the

‘confession’ will, in the long run, be less reliable and more subject to abuses

than a system which depends on extrinsic evidence independently secured

through skillful investigation.”

Counterintuitively, however, suspects receive no benefits from confessing.

One might expect that suspects are induced to confess through promises of

leniency or sentencing reductions, but these advantages do not seem to

32. See id. at 29-30; Kassin & Neumann, supra note 3, at 479; see also Sara C. Appleby et al.,

Police-Induced Confessions: An Empirical Analysis of Their Content and Impact, 19 P

SYCHOL.

CRIME & L. 111, 124 (2013) (showing that simple admissions of guilt, even when later

retracted, yielded higher conviction rates as compared to a no-confession control

group).

33. See LEO, supra note 4, at 30.

34. See id.

35. See infra Part III.A.4.

36. See LEO, supra note 4, at 30 (noting that confessions do what “virtually no other type of

evidence can do as authoritatively: provide a narrative account of the crime . . . , thus

providing social closure for victims and others”).

37. See infra Part III.A.3.

38. Escobedo v. Illinois, 378 U.S. 478, 488-89, 492 (1964) (footnote omitted) (recognizing,

before the Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966), that if a suspect

requests to consult with his lawyer during an interrogation, it is unconstitutional for

the police to deny him counsel).

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materialize.

Once a suspect has confessed, prosecutors tend to charge him

with the most severe and greatest number of offenses, request high bail

amounts, and negotiate plea bargains from a strong position of power.

Beyond the prosecutor, a defendant who has confessed will be treated more

harshly at “every stage” of the investigative and trial process.

In general,

“[c]onfession evidence . . . tends to define the case against a defendant, usually

overriding any contradictory information or evidence of innocence.”

B. The Problem of False Confessions

As illustrated above, “[c]onfessions are the most incriminating and persua-

sive evidence of guilt that the state can bring against a defendant.”

Therefore,

Richard Leo—a preeminent scholar of police interrogations and an oft-

consulted expert in false confession cases

—deduces that false confessions are

the “most incriminating and persuasive false evidence of guilt that the state can

bring against an innocent defendant.”

False confessions are dangerous

because—as noted above—people intuitively believe them.

Relatedly, the

public does not believe that innocent people falsely confess.

This disbelief

partially stems from a commonsense question: “Why do the innocent confess

to crimes that carry lengthy prison sentences, life imprisonment or

execution?”

Suspects do not generally premeditate their false confessions,

however. False confessions occur, in part, because (1) police, prosecutors,

judges, jurors, and defendants themselves are not sufficiently aware they can

happen and therefore do not take steps to protect against them; and (2) police

interrogation tactics are designed to elicit confessions.

39. See LEO, supra note 4, at 31 (“[T]he pre-plea bargaining practices of American

interrogation offer the suspect no benefit (no charge or sentence reductions) in

exchange for his admission of guilt.”).

40. See id. at 250.

41. Leo, supra note 13, at 298.

42. Leo & Davis, supra note 12, at 19.

43. LEO, supra note 4, at 248.

44. See Richard A. Leo, U.S.F. SCH. L., https://perma.cc/3UZT-MVRM (archived Dec. 6,

2017).

45. LEO, supra note 4, at 248.

46. See supra text accompanying notes 22-23.

47. See LEO, supra note 4, at 196.

48. Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and

Irrational Action, 74 D

ENV. U. L. REV. 979, 981 (1997). In fact, there is reason to believe

that false confessions, and in general wrongful convictions, are more likely in cases

involving murder or rape because of the intense pressure to solve these crimes. See

Samuel R. Gross et al., Exonerations in the United States: 1989 Through 2003, 95 J. C

RIM. L.

& CRIMINOLOGY 523, 532 (2005) (discussing the “extraordinary pressure to secure

convictions for heinous crimes”).

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Many subscribe to what Leo calls the “myth of psychological interroga-

tion”—the idea that innocent people do not confess to crimes unless they are

brutally tortured or mentally ill.

A survey of jury-eligible individuals

revealed that even when they recognized certain police techniques as coercive,

they did not believe that those techniques could lead to false confessions.

Police officers and prosecutors also do not believe that innocent people

confess.

The sibling of the myth of psychological interrogation is the myth that

jurors, judges, or police officers can determine when someone is lying. The

assumption that people can somewhat accurately judge whether a person is

credible is foundational to the U.S. rules of evidence and essential to the

constitutional preference for in-court testimony. The extensive rules of

hearsay and the Sixth Amendment right to confront witnesses in a criminal

proceeding are based at least in part on the notion that we can tell, in person,

when people are lying or not.

Social scientists, however, have called this

principle into question. Humans make poor lie detectors: Most people are not

able to tell whether an individual is lying or telling the truth much better than

if they were to flip a coin to decide.

A suspect’s innocence may, in fact, make her vulnerable to interrogations

because an innocent suspect may be overconfident in the justice system.

She

may not believe there is any risk of falsely confessing

and may think that

regardless of what she says, “truth and justice will prevail.”

In addition, an

innocent person may be less strategic in her interactions with the police.

For

49. LEO, supra note 4, at 196 (emphasis omitted).

50. Richard A. Leo & Brittany Liu, What Do Potential Jurors Know About Police Interrogation

Techniques and False Confessions?, 27 B

EHAV. SCI. & L. 381, 384, 395 (2009).

51. See LEO, supra note 4, at 197.

52. See U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him . . . .”); F

ED. R. EVID. 802

(prohibiting hearsay subject to certain exceptions); Crawford v. Washington, 541 U.S.

36, 62 (2004) (articulating the modern Sixth Amendment Confrontation Clause

doctrine and defining the purpose of the right to cross-examine witnesses as ferreting

out the truth face-to-face); 5 W

EINSTEIN’S FEDERAL EVIDENCE § 802.02[3] (LexisNexis

2017).

53. Charles F. Bond, Jr. & Bella M. DePaulo, Accuracy of Deception Judgments, 10

ERSONALITY & SOC. PSYCHOL. REV. 214, 219 (2006) (finding a mean percentage of

“correct lie-truth classifications” of approximately 54% in 292 samples).

54. See Saul M. Kassin, False Confessions: Causes, Consequences, and Implications for Reform, 1

OL’Y INSIGHTS FROM BEHAV. & BRAIN SCI. 112, 116 (2014).

55. See id.; cf. LEO, supra note 4, at 197 (“[M]ost people cannot imagine that they themselves

would falsely confess, especially to a serious crime.”).

56. Kassin, supra note 54, at 116.

57. Id.

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653

example, she is more likely to waive her Miranda rights given the belief that

she has nothing to hide.

Indeed, scholars have proved that innocent test subjects do confess. For

example, in the oft-cited keystroke experiment, subjects were accused of

crashing the test computer by hitting a forbidden “Alt” key.

None of the

subjects had actually hit the button, yet 69% of them signed a confession

admitting to hitting the key.

False confessions certainly occur outside research settings too. Around 12%

(245) of the 2040 exonerees identified by the NRE falsely confessed.

The

Innocence Project reports that 101 of the 353 individuals exonerated by

postconviction DNA testing falsely confessed (about 29%).

Other researchers

have documented numerous false confessions that have either not led to

convictions or not resulted in technical “exonerations”

—that is, the

recognition of a convicted person’s factual innocence or nonculpability

through appellate, collateral, or habeas review, executive pardon, or some

other official governmental process.

58. Saul M. Kassin & Rebecca J. Norwick, Why People Waive Their Miranda Rights: The

Power of Innocence, 28 L

AW & HUM. BEHAV. 211, 217-18 (2004).

59. Kassin et al., supra note 4, at 17 (citing Saul M. Kassin & Katherine L. Kiechel, The Social

Psychology of False Confessions: Compliance, Internalization, and Confabulation, 7 P

SYCHOL.

SCI. 125, 125-28 (1996)).

60. Kassin & Kiechel, supra note 59, at 125-27; see also Julia Shaw & Stephen Porter,

Constructing Rich False Memories of Committing Crime, 26 P

SYCHOL. SCI. 291, 292, 296

(2015) (reporting the results of a study in which the researchers convinced 70% of

participants that earlier in life, they had been involved in a criminal event that resulted

in police contact, when that event never actually happened).

61. Data Supplement, supra note 1.

62. Featured Cases, INNOCENCE PROJECT, https://perma.cc/Y8UK-R7Q3 (archived Dec. 28,

2017) (filtering database by “False Confessions or Admissions” under “Contributing

Causes of Conviction”). The Innocence Project and NRE lists are not mutually

exclusive.

63. Leo and Ofshe identified sixty cases of alleged police-coerced false confessions, just over

half of which did not result in conviction. Leo & Ofshe, supra note 7, at 435, 473. Drizin

and Leo compiled a list of 125 false confessors, which includes individuals who were

not convicted and some who were not technically exonerated. See Drizin & Leo, supra

note 4, at 951-52. These lists, too, are not mutually exclusive.

64. See Glossary, NAT’L REGISTRY OF EXONERATIONS, https://perma.cc/T7D8-K85A

(archived Dec. 7, 2017) (defining “exoneration”). This technical definition can be

limiting. For example, though the Norfolk Four were widely recognized as wrongfully

convicted, until recently only one of the four men was officially exonerated. The

remaining three were granted “conditional pardons,” which released them from prison

but maintained their felony convictions and required them to register as sex offenders.

See Wilson v. Flaherty, 689 F.3d 332, 334 (4th Cir. 2012). Thus, their lack of a full

pardon barred them from official “exoneration” status.

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There are reasons to believe that known and documented cases of false

confessions are only the “tip of the iceberg.”

But it is nearly impossible to

determine the frequency of false confessions in the criminal justice system. In

part, this stems from the lack of a universal database of police interrogations.

Another challenge is the relative difficulty of conclusively verifying a

confession as false. This Note focuses on individuals whose confessions were

proved false through legal exoneration, but outside this population,

determinations of falsity are less certain. For that reason, most false confessions

go unreported by the media and are therefore unnoticed by researchers.

This

of course feeds back into the general lack of awareness or disbelief, noted

above, that false confessions actually occur.

Regardless of how often false confessions occur, when they are secured and

introduced at trial, the defendant has a very high chance of being wrongfully

convicted, even when the confession resulted from questionable interrogation

tactics and is not supported by other evidence.

Leo and Ofshe showed that

73% of the thirty defendants they studied who had falsely confessed and whose

cases went to trial were erroneously convicted.

Drizin and Leo calculated a

rate of conviction of more than 80% (85% when incorporating guilty pleas).

These numbers alone highlight the tremendous danger a false confession poses

for a defendant.

“There is no single cause of false confession.”

In particular, police-induced

false confessions result from any number of calculated and practiced steps,

which “usually involve psychological coercion.”

That said, false confessions

do tend to result from longer interrogations.

Observational studies have

shown that most police interrogations are relatively short (less than two

hours).

In contrast, Drizin and Leo calculated that the average length of

interrogation in their population of proven false confessions was 16.3 hours.

65. Richard J. Ofshe & Richard A. Leo, The Social Psychology of Police Interrogation: The

Theory and Classification of True and False Confessions, 16 S

TUD. L. POL’Y & SOC’Y 189, 191

(1997).

66. See GUDJONSSON, supra note 15, at 178; Drizin & Leo, supra note 4, at 921.

67. See Leo & Davis, supra note 12, at 19.

68. Leo & Ofshe, supra note 7, at 483-84, 483 tbl.B3.

69. Drizin & Leo, supra note 4, at 961.

70. See Richard A. Leo, False Confessions: Causes, Consequences, and Implications, 37 J. AM.

ACAD. PSYCHIATRY & L. 332, 333 (2009).

71. See id.; see also infra Part III.A.3 (detailing these psychologically coercive tactics).

72. See GUDJONSSON, supra note 15, at 199.

73. See, e.g., Leo, supra note 13, at 279 & tbl.6.

74. Drizin & Leo, supra note 4, at 948.

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Some suspects are more vulnerable to the conditions of police interrogations

and to the sequential errors that lead to false confessions. In particular, scholars

have identified three vulnerable groups: youth, individuals with psychological

disorders (for example, autism and attention-deficit/hyperactivity disorder), and

individuals with intellectual disabilities.

I now turn to the third of these

vulnerabilities to understand the particular risks faced by this population in the

context of police interrogations.

II. Intellectual Disabilities

Well into the twentieth century, the English and American legal systems

identified individuals with intellectual disabilities as “idiots,” “imbeciles,” and

the “feebleminded.”

Until even more recently—as recently as the second-to-

latest edition of the Diagnostic and Statistical Manual of Mental Disorders—the

medical and legal communities referred to intellectual disability as “[m]ental

[r]etardation.”

While the term “mentally retarded” refers to the same

population as “intellectually disabled,” the medical and legal communities have

moved away from that stigmatizing label.

In this Note, I follow the

convention of medical professionals, educators, and advocacy groups in using

the term “intellectual disability.”

The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition

(DSM-5) defines the term intellectual disability or intellectual developmental

disorder as “a disorder with onset during the developmental period that

75. See Kassin, supra note 54, at 114.

76. See Morgan Cloud et al., Words Without Meaning: The Constitution, Confessions, and

Mentally Retarded Suspects, 69 U.

CHI. L. REV. 495, 507 & n.53 (2002).

77. See AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL

DISORDERS 41 (4th ed. text rev. 2000) [hereinafter DSM-IV-TR]. For the most recent

edition, see A

M. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL

DISORDERS (5th ed. 2013) [hereinafter DSM-5].

78. See Frequently Asked Questions on Intellectual Disability, AM. ASS’N ON INTELL. &

DEVELOPMENTAL DISABILITIES, https://perma.cc/8AY8-MVDR (archived Dec. 6, 2017).

In 2010, Congress followed suit by passing Rosa’s Law, which changed references to

“mental retardation” in federal statutes to “intellectual disability.” See Pub. L. No. 111-

256, § 2, 124 Stat. 2643, 2643-44 (2010) (codified as amended in scattered sections of the

U.S. Code).

79. See DSM-5, supra note 77, at 33. Many sources continue to refer to the population as

“mentally retarded,” and this terminology may appear in quotations or references. The

term, while disfavored, should be understood as interchangeable with “intellectually

disabled.” Furthermore, sometimes the term “developmental disability” is used to refer

to this population. This term is less precise, as it encompasses all severe disabilities

originating before age twenty-two, including intellectual disabilities. See John H.

Noble, Jr. & Ronald W. Conley,

Toward an Epidemiology of Relevant Attributes, in THE

CRIMINAL JUSTICE SYSTEM AND MENTAL RETARDATION: DEFENDANTS AND VICTIMS 17,

22 (Ronald W. Conley et al. eds., 1992).

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includes both intellectual and adaptive functioning deficits in conceptual,

social, and practical domains.”

Deficits in intellectual functioning generally

include challenges in “reasoning, problem solving, planning, abstract thinking,

judgment, academic learning, and learning from experience.”

The deficits are

confirmed by clinical assessment as well as individualized, standardized

intelligence testing, like intelligence quotient (IQ) tests.

Adaptive functioning

deficits result in “failure to meet developmental and sociocultural standards for

personal independence and social responsibility.”

Intellectual disability is

further categorized into four levels of severity: mild, moderate, severe, and

profound.

The majority of people with intellectual disabilities—about 85%—fall

within the category of “mild.”

Mild intellectual disabilities may be difficult to

perceive.

While individuals with mild intellectual disabilities may be able to

work in jobs that do not emphasize conceptual skills, they generally require

support in conducting complex daily living tasks and making decisions

regarding health or law.

Individuals with mild intellectual disabilities tend to

fall in the IQ range of anywhere from 50 to 70.

Approximately 10% of the population with intellectual disabilities falls

into the second classification, “moderate.”

These individuals generally fall

within the IQ range of 35 to 55.

Individuals with moderate intellectual

disabilities can, after extended periods of learning, become independent in

80. DSM-5, supra note 77, at 33.

81. Id.

82. See id. at 33, 37. The American Psychiatric Association has moved away from defining

intellectual disabilities by IQ scores because, in addition to issues of validity, IQ testing

does not assess deficits in adaptive functioning. For example, though an IQ of 70 is

generally viewed as the upper boundary for individuals with intellectual disabilities, a

person with this IQ may have “severe adaptive behavior problems in social judgment,

social understanding, and other areas of adaptive functioning [such] that the person’s

actual functioning is comparable to that of individuals with a lower IQ score.” Id. at 37.

83. Id. at 33.

84. Id.

85. See DSM-IV-TR, supra note 77, at 43.

86. See Cloud et al., supra note 76, at 510.

87. See DSM-5, supra note 77, at 34 tbl.1.

88. DSM-IV-TR, supra note 77, at 42. Though DSM-5 no longer indicates an IQ range for

the different severity levels of intellectual disabilities, I include them here to provide

context for the data discussed in Part IV below, where IQ was sometimes the only

indicator available of the exonerees’ intellectual disabilities. See Data Supplement, supra

note 1.

89. DSM-IV-TR, supra note 77, at 43.

90. Id. at 42.

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personal care and household tasks.

They can also work in jobs that require

“limited conceptual and communication skills,” though these individuals may

need “considerable support” from coworkers and supervisors to “manage social

expectations” and navigate complex tasks like scheduling, commuting,

arranging health benefits, or managing money.

An individual with “severe” intellectual disabilities generally has little

understanding of written language or of concepts involving numbers,

quantity, time, and money.

These individuals generally have very limited

spoken language skills in terms of vocabulary and grammar, and they require

support for all activities of daily living, including eating, dressing, and

bathing.

Approximately 3-4% of individuals with intellectual disabilities fall

into this severity level, and they fall in the IQ range of 20 to 40.

Lastly, individuals with “profound” disability constitute around 1-2% of the

population with intellectual disabilities, falling generally within the IQ range

of below 20 to 25.

These individuals are “dependent on others for all aspects

of daily physical care, health, and safety.”

Though they can participate in

some activities, they have limited understanding of symbolic communication,

and they express themselves largely through nonverbal communication.

People with intellectual disabilities are, first and foremost, people, and

“[a]ny attempt to describe them as a group risks false stereotyping.”

But this

overview of intellectual disability severity levels highlights the fundamental

difficulties faced by law enforcement when interacting with individuals with

intellectual disabilities. The intellectual and adaptive functioning deficits of

most people with intellectual disabilities may be difficult to perceive in an

91. See DSM-5, supra note 77, at 35 tbl.1.

92. See id.

93. Id. at 36 tbl.1.

94. Id.

95. DSM-IV-TR, supra note 77, at 42-43.

96. Id. at 42, 44.

97. DSM-5, supra note 77, at 36 tbl.1.

98. Id.

99. James W. Ellis & Ruth A. Luckasson, Mentally Retarded Criminal Defendants, 53 GEO.

ASH. L. REV. 414, 427 (1985). H. Carl Haywood wrote in his reaction to the 1976 report

by the President’s Committee on Mental Retardation:

It is a typical observation in behavioral research that there is more variability within a group

of mentally retarded persons than between retarded and nonretarded persons. . . . Mentally

retarded persons are not alike, because mental retardation is not an entity. It is a collection of

well over 200 syndromes that have only one element in common: relative inefficiency at

learning by the methods and strategies devised for other people to learn.

H. Carl Haywood, Reaction Comment, in THE MENTALLY RETARDED CITIZEN AND THE

LAW 677, 677 (Michael Kindred et al. eds., 1976).

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initial interaction.

100

A full 95% of these individuals—those with mild and

moderate disabilities—can be hard to identify as disabled.

101

For example, most

of these individuals have the potential to be nearly or fully economically

independent.

102

Therefore, even when officers are sympathetic to the

challenges faced by people with intellectual disabilities, they may have

difficulty determining toward whom to be sympathetic.

Intellectual disability is often confused with mental illness, but there are

important differences between the two. To start, an intellectual disability “is

not an illness.”

103

Whereas people with mental illness suffer “disturbances in

their thought processes and emotions,” individuals with intellectual disabilities

have “limited abilities to learn” and socialize with others.

104

In addition,

“[m]any forms of mental illness are temporary, cyclical, or episodic.”

105

But

intellectual disability is permanent.

106

Furthermore, the treatment required for

each can differ significantly.

107

Though many individuals suffer from both

conditions,

108

it is important to recognize the conditions as separate, as they

can pose different challenges in the criminal justice context.

III. Interrogating Individuals with Intellectual Disabilities

Individuals with intellectual disabilities face heightened risks of falsely

confessing in the context of police interrogations.

109

The risks occur at every

stage: before, during, and after the interrogation. I focus on four steps that lead

to a full confession: the officer’s first impression of the suspect, the Miranda

warnings, the preadmission interrogation, and the postadmission interroga-

tion. After the interrogation is complete and a full confession is secured, the

defendant may already be at a terrific disadvantage: The prosecution now has

100. See Cloud et al., supra note 76, at 511.

101. See id.

102. See id.

103. Ellis & Luckasson, supra note 99, at 423.

104. Id. at 423-24.

105. Id. at 424.

106. Id.

107. Id.

108. See id. at 425.

109. See Kassin et al., supra note 4, at 30 (“There is a strong consensus among psychologists,

legal scholars, and practitioners that juveniles and individuals with cognitive

impairments or psychological disorders are particularly susceptible to false confession

under pressure.”).

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strong leverage to force her to accept a plea deal.

110

If the case does proceed to

trial, however, and the prosecution seeks to use that evidence against the

defendant, the defendant at a suppression hearing can raise two constitutional

doctrines designed to protect her against the use of an unlawful confession:

review of the Miranda waiver and due process analysis of the confession.

A. Within Custodial Interrogation

1. Recognizing the suspect’s disability

Perhaps the most consequential step of the interrogation process for an

individual with intellectual disabilities—and the step that sets intellectual

disabilities apart from other vulnerabilities, such as being a child—is the

interrogator’s failure to recognize the individual’s disability at the outset.

Scholars estimate that three-quarters of offenders later identified to have

intellectual disabilities were not identified as such at the time of arrest.

111

The vast majority of people with intellectual disabilities have a mild or

moderate disability.

112

As noted above, it can be difficult to recognize that these

individuals have intellectual disabilities.

113

Also, individuals with intellectual

disabilities tend to deny or hide their disability or overrepresent their

abilities.

114

Despite the potential advantages of identifying oneself to the

interrogator as an individual with intellectual disabilities, many do not do

so.

115

And many individuals are skilled in hiding their limitations.

116

In part,

the impulse to hide or overrate one’s abilities may stem from a rejection of

labels, such as “mental retardation,” and the stigmas attached to them.

117

Some

individuals, however, may also genuinely misconceive their abilities.

118

110. A full one-quarter of the 245 false confessors in the NRE database pleaded guilty

following their confessions. See Data Supplement, supra note 1 (showing that 25.3% of

the false confessor population pleaded guilty).

111. See JOAN PETERSILIA, DOING JUSTICE?: CRIMINAL OFFENDERS WITH DEVELOPMENTAL

DISABILITIES 6 (2000).

112. Cloud et al., supra note 76, at 511; see supra text accompanying notes 85, 89.

113. Cloud et al., supra note 76, at 511.

114. See id. at 513 (“It is not uncommon for disabled people to overrate their skills.”); Ellis &

Luckasson, supra note 99, at 430-31 (“[M]any . . . individuals [with intellectual disabili-

ties] will go to great lengths to hide their disability.”). It also seems plausible that some

of those with intellectual disabilities are ignorant of their disability, see Cloud et al.,

supra note 76, at 513, either because they do not have the resources to secure a diagnosis

or because they are high functioning and thus avoid medical scrutiny.

115. See Cloud et al., supra note 76, at 512-13.

116. Ellis & Luckasson, supra note 99, at 431 & n.85.

117. See id. at 430.

118. Cloud et al., supra note 76, at 513.

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The leading interrogation manual, Criminal Interrogation and Confessions—

the latest edition of the handbook that sets out the until-recently preeminent

interrogation technique, the Reid Method

119

—briefly acknowledges the need

to adjust some of the normal procedures for individuals with intellectual

disabilities.

120

But even if an officer were to follow this manual verbatim,

adjusting the interrogation process for a suspect with intellectual disabilities

requires knowing that the suspect has intellectual disabilities. Most

interrogators probably have no interest in manipulating the weaknesses of an

individual with intellectual disabilities. And yet if the officer is unaware of the

suspect’s disabilities, the officer may assume that the suspect is of typical

abilities and simply lying.

2. Delivering the Miranda warnings

The now-famous 1966 decision Miranda v. Arizona held that police officers

must alert suspects of certain constitutional rights.

121

This warning—now

memorized by every American who has ever watched television—alerts the

suspect to her right to remain silent, her right to appointed counsel, and that

anything she says may be used against her in court.

122

If the law enforcement

officer fails to properly deliver the Miranda warning or the suspect does not

adequately waive her rights, the resulting interrogation is excluded from

evidence.

123

The rate at which suspects waive their Miranda rights, however, is

staggering: Eighty percent of adult suspects waive their rights.

124

The high rate

of waivers is not an accident; it is the product of concerted police tactics.

125

119. See Eli Hager, The Seismic Change in Police Interrogations, MARSHALL PROJECT (Mar. 7,

2017), https://perma.cc/R99B-85AW.

120. See FRED E. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS 352 (5th ed. 2013)

(“We offer these recommendations with respect to introducing fictitious evidence

during an interrogation: . . . This technique should be avoided when interrogating a

youthful suspect with low social maturity or a suspect with diminished mental

capacity. These suspects may not have the fortitude or confidence to challenge such

evidence and . . . may become confused as to their own possible involvement . . . .”).

121. 384 U.S. 436, 479 (1966).

122. Id. at 478-79; see LEO, supra note 4, at 27.

123. Miranda, 384 U.S. at 479 (“[U]nless and until such warnings and waiver are

demonstrated by the prosecution at trial, no evidence obtained as a result of interroga-

tion can be used against him.”). I discuss the legal standard for review of Miranda

waivers below. See infra Part III.B.1.

124. FELD, supra note 5, at 249-50.

125. See LEO, supra note 4, at 27 (“American police have devised a number of strategies to

obtain (or create the appearance of obtaining) the suspect’s compliance at this stage in

the interrogation process, thereby minimizing the impact of Miranda.” (citation

omitted)).

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Officers often “de-adversarialize” the Miranda process by creating the illusion

that the police and the suspect “share the same interest.”

126

Officers are allowed

to talk with suspects before issuing Miranda warnings, during which time they

can lull suspects into a false sense of security by “build[ing] a relationship and

creat[ing] a favorable climate to confess.”

127

Detectives also emphasize the

routine nature of the Miranda warning, for example, by referring to the

suspect’s familiarity with the rights from television.

128

These tactics may be particularly successful when used on individuals with

intellectual disabilities. A person with intellectual disabilities may be easily

persuaded by the idea that waiving her Miranda rights is in her and the police

officer’s shared best interests. Many individuals with intellectual disabilities are

exceptionally desirous of pleasing authority figures.

129

This tendency to please

and seek approval may follow from the necessary reliance on authority figures

for solutions to what an individual with typical abilities would consider

everyday problems.

130

This, in turn, could also lead a suspect with intellectual

disabilities to watch the interrogator closely for social cues on how to react and

indications of what the officer wants to hear.

131

Operating in the background

may be the individual’s difficulty in discerning when she is “in an adversarial

situation.”

132

It may be impossible for an individual with intellectual

disabilities to differentiate between a police officer assisting a person in need

and one serving as an interrogator.

133

As the President’s Panel on Mental

Retardation observed in 1963, “A retarded person may be hard put to

distinguish between the fact and the appearance of friendliness.”

134

Therefore,

a suspect with intellectual disabilities may not “understand that the police

detective who appears to be friendly is really [an] adversary,” and she may have

trouble sensing the adversarial nature of the Miranda warnings.

135

126. See id.

127. See FELD, supra note 5, at 77.

128. See id. at 81; see also, e.g., Doody v. Ryan, 649 F.3d 986, 992 (9th Cir. 2011) (“I’m sure

you’ve heard this thing and you’ve heard it said on t.v. . . . it’s a little more, little less

technical and a little less heavy if you want to put it ah that way.” (emphasis omitted)

(quoting the interrogation transcript)).

129. See Cloud et al., supra note 76, at 511-12; Ellis & Luckasson, supra note 99, at 431-32.

130. See Robert Perske, Thoughts on the Police Interrogation of Individuals with Mental

Retardation, 32 M

ENTAL RETARDATION 377, 377 (1994).

131. Id. at 377-78.

132. Cloud et al., supra note 76, at 512. As noted above, this may be difficult for any innocent

individual. See supra text accompanying notes 54-58.

133. See Cloud et al., supra note 76, at 512.

134. Ellis & Luckasson, supra note 99, at 451 (quoting PRESIDENT’S PANEL ON MENTAL

RETARDATION, REPORT OF THE TASK FORCE ON LAW 33 (1963)).

135. See LEO, supra note 4, at 232.

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Moreover, individuals with intellectual disabilities may also struggle to

grasp abstract legal concepts like “rights” or “waiver.”

136

As discussed in greater

detail below,

137

individuals with intellectual disabilities, even those with mild

or moderate disabilities, are almost categorically incapable of understanding

their Miranda rights.

138

This perfect storm of common characteristics will

result in a suspect struggling to understand the Miranda warning being given,

but hiding that fact, and simply acquiescing to the waiver at the officer’s behest.

3. Conducting preadmission interrogation

Until recently, the Reid Method was the most prevalent interrogation-

training program in the United States.

139

John Reid and Fred Inbau, the

pioneers of this method, were progressives by the political standards of the

1930s, and they are at least partially responsible for the decline in “third degree”

interrogation techniques—tactics that included anything from severe

psychological duress to extreme physical violence and torture—in the United

States.

140

In teaching that physical violence and intense psychological duress

were inappropriate, Reid and Inbau offered an effective alternative for police

to secure confessions.

141

As early as 1966, however, people began to understand that the Reid

Method presented its own dangers of coercion. In Miranda, the Supreme Court

observed, after describing the Reid Method in detail, that “the very fact of

custodial interrogation exacts a heavy toll on individual liberty and trades on

the weakness of individuals.”

142

Following this assertion, the Court

acknowledged the real possibility that these interrogation procedures could

give rise to false confessions.

143

Though the risks of the Reid Method were

recognized in 1966, more than 300,000 interrogators were trained in the

method, and it remained the “most widely used [interrogation] method in

North America”

144

—at least until recently.

136. See Perske, supra note 130, at 377.

137. See infra Part III.B.1.

138. See Cloud et al., supra note 76, at 590.

139. FELD, supra note 5, at 26; supra text accompanying notes 119-20.

140. See Richard A. Leo, The Third Degree and the Origins of Psychological Interrogation in the

United States, in I

NTERROGATIONS, CONFESSIONS, AND ENTRAPMENT 37, 63 (G. Daniel

Lassiter ed., 2004).

141. Id.; see also id. (“[B]oth physical and psychological coercion may produce false

confessions.”).

142. See Miranda v. Arizona, 384 U.S. 436, 455 (1966); see also id. at 448-55 (describing the Reid

Method and noting that it “is psychologically rather than physically oriented”).

143. See id. at 455 n.24.

144. See FELD, supra note 5, at 26.

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In March 2017, Wicklander-Zulawski & Associates, one of the largest

consulting groups providing interrogation and interview training for law

enforcement officers, stopped instructing officers to use the Reid Method.

145

The company cited the growing awareness of false confessions and wrongful

convictions in determining that “the inherent risks and pitfalls of using a

confrontational emotional approach [to interrogation], combined with the

improper use of that method, can lead to horrendous miscarriages of justice.”

146

The implications of Wicklander-Zulawski’s decision for the future of the Reid

Method are unclear,

147

but the growing consensus that the method has

contributed to the phenomenon of false confessions—long recognized by

scholars,

148

briefly noted by the Court in Miranda,

149

and now embraced by

one of the major players in law enforcement interrogations—demands a brief

discussion of how it works. After all, the Reid Method was the pervasive

interrogation technique used during the era in which each of the studied false

confessions discussed below took place.

The Reid Method proceeds in two main phases. During the first, the

Behavioral Symptom Analysis, the interrogator makes his initial assessment of

the suspect’s guilt; he relies on verbal and nonverbal cues to determine whether

the suspect is guilty or innocent.

150

Under the Reid Method, practitioners learn

to read certain behavioral cues to detect deception.

151

Despite the detailed

instructions given by the Reid handbook,

152

psychologists question the

theoretical underpinnings of the methodology. Police interrogators “cannot

reliably distinguish between truthful and false denials of guilt at levels greater

145. See Press Release, Wicklander-Zulawski & Assocs., Inc., Wicklander-Zulawski

Discontinues Reid Method Instruction After More Than 30 Years (Mar. 6, 2017),

https://perma.cc/9YRG-KT3P; Hager, supra note 119. The company claims to have

trained “a majority of U.S. police departments” as well as federal law enforcement

agencies such as the U.S. Army, the Federal Bureau of Investigation, and the Depart-

ment of Homeland Security (including Immigration and Customs Enforcement and

Transportation Security Administration officers). Press Release, supra.

146. See Wicklander-Zulawski & Assocs., WZ Focuses on Non-confrontational Interviewing at

2:11, Y

OUTUBE (Mar. 6, 2017), https://perma.cc/5UHL-TFFT.

147. The company that licenses the method—John E. Reid & Associates—has decried

Wicklander-Zulawski’s announcement as “very misleading and disingenuous.” See

Hager, supra note 119 (quoting Joseph P. Buckley of John E. Reid & Associates).

148. See, e.g., FELD, supra note 5, at 234 (“The psychological processes used in the Reid

Method—isolation, confrontation, and minimization—increase the risks of false

confessions.”).

149. See Miranda v. Arizona, 384 U.S. 436, 455 n.24 (1966).

150. See FELD, supra note 5, at 26.

151. See INBAU ET AL., supra note 120, at 105.

152. See id. at 108-36.

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than chance.”

153

Like most people, they are not much better than flipping a

coin at distinguishing truth from fiction; police can tell the difference only 45-

60% of the time.

154

Anecdotally, Leo describes that in the thousands of

interrogations he has studied, he rarely encounters interrogators who can

point to the specific characteristics of a suspect that lead to an assumption of

guilt.

155

These interrogators, however, tend to believe that they can reliably

infer guilt based on their own intuitive analysis of body language and

demeanor.

156

Unfortunately, these intuitions often lead to misclassification.

If the interrogator concludes that the suspect is guilty, he proceeds to a

sequence of nine steps designed to psychologically pressure the guilty suspect

to confess.

157

Generally, this series of steps operationalizes three interrelated

psychological processes: “isolation, confrontation [or maximization], and

minimization.”

158

First, the suspect is isolated to increase stress, which

incentivizes her to find ways to extricate herself.

159

The method seeks to

influence suspects to “emphasize short-term relief over [the] long-term

consequences” of their actions during the interrogation.

160

The stress from

isolation is further exacerbated when the interrogation takes place over the

course of many hours,

161

which is generally true in interrogations that lead to

false confessions.

162

Second, the interrogator constantly and consistently confronts the suspect,

conveying his absolute certainty that the suspect is guilty.

163

The interrogator

seeks to convey to the suspect that denials are futile and to push the suspect

153. See LEO, supra note 4, at 227; see also Saul M. Kassin & Christina T. Fong, “I’m Innocent!”:

Effects of Training on Judgments of Truth and Deception in the Interrogation Room, 23 L

& HUM. BEHAV. 499, 500-01 (1999) (“[T]his unwavering faith and reliance in the

interrogator’s diagnostic skills is misplaced.”); Aldert Vrij, Why Professionals Fail to

Catch Liars and How They Can Improve, 9 L

EGAL & CRIMINOLOGICAL PSYCHOL. 159, 159

(2004) (“[A]lthough professional lie catchers do not seem to be better lie detectors than

laypersons, they often feel more confident in their ability to detect truths and lies.”).

154. Saul M. Kassin & Gisli H. Gudjonsson, The Psychology of Confessions: A Review of the

Literature and Issues, 5 P

SYCHOL. SCI. PUB. INT. 33, 37 (2004); see also Bond & DePaulo,

supra note 53, at 219.

155. See LEO, supra note 4, at 229.

156. See id.

157. See FELD, supra note 5, at 26.

158. Id. at 234.

159. See Kassin & Gudjonsson, supra note 154, at 43, 53.

160. FELD, supra note 5, at 24.

161. See id. at 239.

162. See supra text accompanying notes 72-74.

163. See Kassin & Gudjonsson, supra note 154, at 43.

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toward hopelessness.

164

In the course of confronting the suspect, the

interrogator may use “trickery, deception, and false evidence.”

165

Third, the interrogator plays a sympathetic role, minimizing the moral

weight of the crime.

166

This tactic “provide[s] the suspect with moral

justification and face-saving excuses for having committed the crime,”

167

leading the suspect to infer that she will be treated leniently if she confesses.

168

In the introduction to the nine steps, the Reid handbook reminds trainees:

“It must be remembered that none of the steps is apt to make an innocent

person confess and that all the steps are legally as well as morally justifiable.”

169

In fact, the manual recognizes the risks of false confessions

170

but downplays

the risk that its own technique will cause them.

171

The manual states: “When a

false confession occurs, it is not the technique that is the genesis, but rather the

introduction of an element, most frequently a threat of harm and/or promise

of leniency, that violates the best practices described in this text.”

172

Despite these contentions, scholars believe that the psychologically

coercive steps of the Reid Method can lead to false confessions.

173

In fact, other

countries have wholesale rejected the Reid Method in favor of less accusatory

and confrontational processes.

174

Police interrogators in the United Kingdom

and elsewhere now practice the PEACE approach, a mnemonic for its five

components: Planning and Preparation, Engage and Explain, Account, Closure,

and Evaluate.

175

The method focuses on obtaining a free narrative from the

suspect, encouraging interviewers to ask open-ended questions, and providing

“meaningful closure” at the end of the interview by summarizing the

164. See FELD, supra note 5, at 25-26.

165. Id. at 236.

166. See Kassin & Gudjonsson, supra note 154, at 43.

167. See FELD, supra note 5, at 26 (quoting Kassin et al., supra note 4, at 12).

168. See Kassin & Gudjonsson, supra note 154, at 43.

169. INBAU ET AL., supra note 120, at 187.

170. See id. at 339 (“There is no question that interrogations have resulted in false confessions

from innocent suspects.”).

171. See id. at 362.

172. Id.

173. See, e.g., Kassin et al., supra note 4, at 27 (stating that “guilt-presumptive and

confrontational” interrogation techniques like the Reid Method “put innocent people

at risk”).

174. See FELD, supra note 5, at 28.

175. Id.

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666

information and answering the suspect’s questions.

176

This method is “widely

assumed” by scholars to be “less likely to elicit false confessions.”

177

Individuals of typical capacity face serious risks in the stress-inducing

environment of a Reid-facilitated interrogation, but individuals with

intellectual disabilities are especially disadvantaged. The Reid handbook itself

recognizes that a suspect with a “mental . . . condition may offer misleading

behaviors.”

178

Though this warning may be well intentioned, it offers little

solace to the individual who successfully hides her disability. Her misleading

behaviors may convey guilt in the mind of the interrogator, triggering the

psychological pressures of the nine steps.

Once the interrogator reaches the nine steps, an individual with intellectu-

al disabilities will be uniquely susceptible to the Reid tactics. For example, she

will likely be less capable of handling the stressful environment and isolation.

People with intellectual disabilities are often easily overwhelmed by stress, and

they often lack the psychological resources to withstand the same levels of

pressure and anxiety as people with typical abilities.

179

A suspect with

intellectual disabilities may be easily manipulated by fake evidence and officers’

trickery.

180

The interrogator’s minimization tactics may also be extremely

effective on an individual who is predisposed to pleasing authority figures.

181

In addition, studies show that people with intellectual disabilities often

“have incomplete or immature concepts of blameworthiness and causation.”

182

This means that some people with intellectual disabilities are unable to

differentiate between guilt and unforeseeable accident.

183

This inability to

differentiate between the two can lead an individual to accept blame for events

for which she is not culpable.

184

An individual with intellectual disabilities

may admit “guilt[] to a crime which he did not commit because he believes that

blame should be assigned to someone and he is unable to understand the concept

of causation and his role in the incident.”

185

176. Id.

177. Gisli H. Gudjonsson & John Pearse, Suspect Interviews and False Confessions, 20 CURRENT

DIRECTIONS PSYCHOL. SCI. 33, 36 (2011); see also Kassin et al., supra note 4, at 28 (finding

that inquisitorial methods “lower[ed] the rate of false confessions without producing a

corresponding decrease in the rate of true confessions”).

178. INBAU ET AL., supra note 120, at 32.

179. See LEO, supra note 4, at 233.

180. See id. at 232.

181. See supra text accompanying notes 129-31.

182. Ellis & Luckasson, supra note 99, at 429.

183. Id. at 429-30; accord Cloud et al., supra note 76, at 512-13.

184. Cloud et al., supra note 76, at 512-13; Ellis & Luckasson, supra note 99, at 429-30.

185. Ellis & Luckasson, supra note 99, at 430 (emphasis added).

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For these reasons, individuals with intellectual disabilities face heightened

risks in the confines of an interrogation run according to the Reid Method.

4. Administering postadmission interrogation

After the interrogator secures an “I did it” from the suspect, she pursues a

full confession.

186

A jury may not find a mere admission convincing, whereas a

rich narrative suggests to the jury that the defendant has intimate knowledge

of the crime.

187

In addition, an admission does not itself prove guilt. Only

through the postadmission narrative can an officer, prosecutor, or factfinder

assess the reliability of the defendant.

188

Interrogators are trained to avoid contamination of the confession by

revealing facts already known to the police.

189

The Reid Method handbook

considers it “highly important” to “let the confessor supply the details of the

occurrence.”

190

If and when the interrogator leaks crucial information to the

suspect, it becomes impossible to check the confession for accuracy and

reliability. “The truthfulness of a confession should be questioned . . . when the

suspect is unable to provide any corroboration beyond the statement, ‘I did

it.’”

191

Therefore, officers are trained to ask open questions.

192

To build a sufficient case against the suspect, the confession narrative must

be believable.

193

The interrogator will seek to flesh out certain elements: a

coherent, believable storyline; a motive and explanations for the suspect’s

actions; detailed knowledge about the crime, scene, and victim; and expressions

of emotion in the crime’s aftermath.

194

Guilty suspects may readily provide

these details about their involvement in the crime following their admission of

guilt.

195

They likely do not realize that there is a substantial difference between

what they have already offered—the “I did it”—and what they have yet to

reveal—details of their guilt.

196

Most interrogators—assuming their suspect is

in fact guilty—“make no distinction between preadmission interrogation and

186. See Ofshe & Leo, supra note 48, at 990-91.

187. See Garrett, supra note 7, at 1067.

188. See Ofshe & Leo, supra note 48, at 990-91.

189. See Garrett, supra note 7, at 1066.

190. See id. at 1067 (quoting INBAU ET AL., supra note 120, at 381 (4th ed. 2001)).

191. INBAU ET AL., supra note 120, at 425 (4th ed. 2001).

192. See Garrett, supra note 7, at 1066-67; see also LEO, supra note 4, at 166.

193. See LEO, supra note 4, at 168.

194. See id.

195. See id. at 169.

196. See id.

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668

postadmission interrogation.”

197

The Reid Method interrogator employs the

same isolation, confrontation, and minimization well into the postadmission

construction.

198

But the distinction between preadmission and postadmission for innocent

suspects is incredibly meaningful. Whereas the guilty admitter may naturally

launch into the details of his admitted guilt, false confessors, by definition, do

not have the substance to back up their admissions. For an innocent defendant,

saying “I did it” is a lot simpler than providing details that seem accurate and

match the evidence the police have already collected. And yet the vast majority

of false confessions contain an incredible amount of detail about the crime.

199

Brandon Garrett found that 95% of his sample of false confessions included

“specific details concerning how the crime occurred.”

200

There are only three ways a false confession can contain accurate details

about the crime: The suspect guesses correctly,

201

the suspect learns details

through the media or some other public source,

202

or the police convey those

details.

203

In most cases, falsely accused suspects are unlikely to draw rich detail

from unlucky guesswork or media disclosure alone.

204

In those cases, the police

must communicate substantial detail in the course of eliciting false

confessions.

205

Even if officers do not intentionally contaminate the confession, they

communicate details about the crime to the defendant explicitly and

implicitly.

206

Explicitly, interrogators sometimes express their theory of the

197. Id. at 166.

198. See id.

199. See Garrett, supra note 7, at 1054.

200. See id. To be sure, false confessions may also contain a plethora of untrue details that

are contradicted by other evidence—demonstrating “the limitations of officers’ abilities

to construct a confession narrative”—but these contradictions are often either excused

by police testimony or overshadowed by other facts that seem to be truthfully

corroborated. See id. at 1083.

201. See Ofshe & Leo, supra note 48, at 993 (“Assuming that neither the investigator nor the

media have contaminated the suspect by transferring information about the crime

facts, . . . the likelihood that his answers will be correct should be no better than chance.

The only time an innocent person will contribute correct information is when he

makes an unlucky guess. The likelihood of an unlucky guess diminishes as the number

of possible answers to an investigator’s questions grows large.” (footnote omitted)).

202. See LEO, supra note 4, at 171 (“Suspects may also learn crime facts and details from police

or other third parties (e.g., community gossip, overheard conversations, the media,

etc.).”).

203. See id. at 169, 171.

204. See Garrett, supra note 7, at 1060, 1084-85 (finding that only four of forty subjects in the

sample were not fed details by the police in some way).

205. See id. at 1084-85.

206. See LEO, supra note 4, at 171.

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case, fill in missing details, or correct statements they think are wrong.

207

Implicitly, the police convey information through leading questions or by

directing the suspect to particular conclusions.

208

The interrogation of Brendan Dassey illustrates the error of officer

contamination. Brendan (made famous by Making a Murderer, the true-crime

documentary series on Netflix

209

) was a sixteen-year-old special education

student at the time.

210

The police were so convinced of Brendan’s involvement

in a murder perpetrated by his uncle Steven Avery that they pressed Brendan

over several interviews to confess.

211

The transcript of Brendan’s interroga-

tion

212

reads:

[OFFICER]: What else did he do to her? We know something else was done. Tell

us, and what else did you do? Come on. Something with the head. Brendan?

BRENDAN: Huh? . . .

[OFFICER]: What else did you guys do, come on. . . .

[OFFICER]: We have the evidence Brendan, we just need you ta, ta be honest with

us.

BRENDAN: That he cut off her hair.

[OFFICER]: He cut off her hair? In the house?

BRENDAN: mm huh. . . .

[OFFICER]: OK, what else?

[OFFICER]: What else was done to her head?

BRENDAN: That he punched her.

[OFFICER]: What else? (pause) What else? . . .

207. Id.

208. See id.

209. See Ralph Ellis, Court Upholds Confession by Brendan Dassey of “Making a Murderer,” CNN

(updated Dec. 9, 2017, 1:02 AM ET), https://perma.cc/76FX-WPFB.

210. See Dassey v. Dittmann, 860 F.3d 933, 938-39 (7th Cir.) (“[Brendan’s] IQ had been

measured at various times between 74 and 81 . . . . A psychological expert at trial

described Dassey as highly suggestible, docile, withdrawn, with extreme social anxiety

and social avoidant characteristics, and more suggestible than 95% of the population.”),

rev’d, 877 F.3d 297 (7th Cir. 2017) (en banc).

211. See id. at 939-40.

212. See Interview of Brendan Dassey by the Manitowoc County Sheriff’s Department, at

STATE4597 (2006) [hereinafter Dassey Interrogation] (on file with author). Sections

have been edited out for brevity, and the reporting officers’ names have been bracketed

for simplicity. Dassey has not been exonerated, and his confession has not been proved

false. But cf. Affidavit of Dr. Richard A. Leo, ¶ 51(4), State v. Dassey, No. 2006CF88 (Wis.

Cir. Ct. Manitowoc Cty. 2009) (“These highly suggestive post-admission interrogation

techniques created the risk of eliciting a highly detailed, and thus factually persuasive,

confession from Brendan that may nevertheless (or counterintuitively) be false and/or

unreliable.”). But this does not detract from the illustration of contamination in the

transcript.

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670

[OFFICER]: What did he make you do Brendan? It’s OK, what did he make you

do?

BRENDAN: Cut her.

[OFFICER]: Cut her where?

BRENDAN: On her throat. . . .

[OFFICER]: . . . What else happens to her in her head? . . .

[OFFICER]: Come on Brendan, what else?

(pause)

[OFFICER]: We know, we just need you to tell us.

BRENDAN: That’s all I can remember.

[OFFICER]: All right, I’m just gonna come out and ask you. Who shot her in the

head?

BRENDAN: He did.

[OFFICER]: Then why didn’t you tell us that?

BRENDAN: Cuz I couldn’t think of it.

[OFFICER]: Now you remember it? (Brendan nods “yes[.]”) Tell us about that

then.

213

This transcript illustrates the officers contaminating Brendan’s confession by

inserting the detail about shooting the victim in the head: They had that piece

of evidence and needed the statement to match it. This was not the only detail

the police fed to Brendan that ultimately formed the basis of his “confession.”

214

A panel of the Seventh Circuit upheld the federal district court’s grant of

Brendan’s petition for habeas corpus, in part acknowledging the constitutional

errors in Brendan’s interrogation.

215

But the court recently vacated the panel

opinion and reheard the case en banc, ultimately reversing the district court

and upholding as reasonable the state courts’ finding that Dassey’s confession

was voluntary.

216

As is the case in the preadmission phase,

217

individuals with intellectual

disabilities are at particular risk of manipulation during the postadmission

phase. People with intellectual disabilities tend to be more suggestible—

catering their responses to the cues of others in a social interaction—and

acquiescent—responding affirmatively to questions, regardless of their content

213. Dassey Interrogation, supra note 212, at STATE4655-58; see also Laura H. Nirider et al.,

Combating Contamination in Confession Cases, 79 U. C

HI. L. REV. 837, 851-52 (2012) (book

review).

214. See Dassey, 860 F.3d at 940 (describing the officers’ suggesting body parts to Brendan

that he may have seen in the fire that cremated the victim’s corpse).

215. See id. at 982-83.

216. See Dassey v. Dittmann, 877 F.3d 297, 301, 315 (7th Cir. 2017) (en banc).

217. See supra text accompanying notes 178-85.

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671

or truth.

218

A suggestible suspect may fall prey to an interrogator who signals,

through leading questions or negative feedback to a previous answer, what he

thinks is the truth or the correct answer to the questions being asked.

219

acquiescent person may simply respond affirmatively to questions about

behavior she perceives as desirable.

220

Many individuals with intellectual disabilities also have memory lapses,

especially with regard to facts or events they did not identify as important.

221

These individuals may not be able to recall the truth with sufficient detail to

convince an interrogating officer of their innocence. Lapses or inconsistencies

in memory may be mistaken for lying.

Interacting with weak memory retention and the desire to please authority

figures, suggestibility and acquiescence may lead the individual to respond the

way she thinks the officer wants her to respond. When that happens, it is “easy

to get [people with intellectual disabilities] to agree with and repeat back false

or misleading statements, even incriminating ones.”

222

B. Existing Judicial Safeguards Against False Confessions

Two doctrines of constitutional law police the custodial interrogation of

suspects.

223

First, the court assesses the suspect’s Miranda waiver.

224

Second, the

court determines whether the confession itself was voluntarily given within

the bounds of due process.

225

Many individuals who have delivered false

218. See I.C.H. Clare & G.H. Gudjonsson, Interrogative Suggestibility, Confabulation, and

Acquiescence in People with Mild Learning Disabilities (Mental Handicap): Implications for

Reliability During Police Interrogations, 32 B

RIT. J. CLINICAL PSYCHOL. 295, 296-99, 298 tbl.1

(1993).

219. See GUDJONSSON, supra note 15, at 347, 350.

220. See Cloud et al., supra note 76, at 512.

221. Clare & Gudjonsson, supra note 218, at 296-99; Ellis & Luckasson, supra note 99, at 428-

29; Perske, supra note 130, at 378. Some authors use the term “learning disability,” see,

e.g., Clare & Gudjonsson, supra note 218, at 295; in the United Kingdom, “learning

disability” is the equivalent of “intellectual disability” in the United States, see

UDJONSSON, supra note 15, at 320.

222. LEO, supra note 4, at 232.

223. See Dickerson v. United States, 530 U.S. 428, 433 (2000) (“[O]ur cases recognize[] two

constitutional bases for the requirement that a confession be voluntary to be admitted

into evidence: the Fifth Amendment right against self-incrimination and the Due

Process Clause of the Fourteenth Amendment.”).

224. Miranda warnings are only required in “custodial interrogation” settings—“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”—and therefore do

not cover confessions made outside those settings. See Miranda v. Arizona, 384 U.S. 436,

444 (1966).

225. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973) (holding that a suspect’s

confession was involuntarily given and therefore violates due process if his “will [was]

footnote continued on next page

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confessions never directly benefit from these constitutional protections

because the threatened weight of the confession as evidence may counsel in

favor of pleading guilty before a judge has a chance to review the evidence.

226

Even those who plead guilty, however, are affected indirectly by how strong or

weak a defense attorney perceives these constitutional protections to be.

Historically, only the latter inquiry—the voluntariness of a confession—

existed as a bulwark against abusive and physically coercive interrogations.

227

In Brown v. Mississippi, the Court ruled for the first time that a confession was

unconstitutionally coercive.

228

There, the police elicited confessions from the

defendants through torture.

229

The Court held that the trial court violated the

defendants’ Fourteenth Amendment due process rights by admitting these

confessions into evidence.

230

Over time the Court developed the due process

test into a totality-of-the-circumstances analysis to determine whether a

suspect’s confession was voluntary and thus constitutional.

231

In this analysis,

the Court questioned “whether a defendant’s will was overborne at the time he

confessed.”

232

Though the standard was a “fact-sensitive, case-by-case method

of adjudication,” it seemed to have the effect of disincentivizing the use of

“third degree” tactics in the interrogation room.

233

But by the 1960s, the Court

came to realize that the due process test was insufficient to monitor the new

forms of psychologically coercive interrogation used by police.

234

Miranda—a

case primarily aimed at erecting safeguards for a defendant’s privilege against

overborne and his capacity for self-determination critically impaired” (quoting

Culombe v. Connecticut, 367 U.S. 568, 602 (1961) (opinion of Frankfurter, J.))).

226. I calculated from the NRE sample that 25.3% of the false confessors had pleaded guilty.

See Data Supplement, supra note 1.

227. See J.D.B. v. North Carolina, 564 U.S. 261, 269-70 (2011).

228. 297 U.S. 278, 287 (1936); see Cloud et al., supra note 76, at 518.

229. See Brown, 297 U.S. at 284-85.

230. Id. at 287.

231. The due process test for voluntariness was well articulated in Schneckloth:

In determining whether a defendant’s will was overborne in a particular case, the Court has

assessed the totality of all the surrounding circumstances—both the characteristics of the

accused and the details of the interrogation. Some of the factors taken into account have

included the youth of the accused; his lack of education; or his low intelligence; the lack of any

advice to the accused of his constitutional rights; the length of detention; the repeated and

prolonged nature of the questioning; and the use of physical punishment such as the depriva-

tion of food or sleep.

Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (citations omitted).

232. Reck v. Pate, 367 U.S. 433, 440 (1961).

233. See Cloud et al., supra note 76, at 519. On third degree tactics, see text accompanying

note 140 above.

234. See Cloud et al., supra note 76, at 519-21.

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673

self-incrimination

235

—was, in part, the Court’s response to the insufficiency of

the due process test in these new interrogations.

236

But the voluntariness

inquiry continued to exist in parallel.

237

1. Review of the Miranda waiver

In Miranda, the Supreme Court heard four cases; in each, the defendant was

questioned while in custody, was not alerted to his rights, and gave an

admission that was used against him at trial.

238

As the Court later described: “In

Miranda, we noted that the advent of modern custodial police interrogation

brought with it an increased concern about confessions obtained by

coercion.”

239

In fact, in Miranda, the Court acknowledged that “[i]nterrogation

procedures may even give rise to a false confession.”

240

The due process

voluntariness test was insufficient to protect suspects in the context of

custodial interrogations, which the Court recognized “exact[] a heavy toll on

individual liberty and trade[] on the weakness of individuals.”

241

In particular,

the Court described in detail facets of the Reid Method and how they are

psychologically coercive and manipulative.

242

The Court acknowledged the inadequacy of the due process analysis: “In

these cases, we might not find the defendants’ statements to have been

involuntary in traditional terms.”

243

Therefore, the Court took the progressive

step of establishing “concrete constitutional guidelines for law enforcement

agencies and courts to follow.”

244

The Court held that prior to a custodial

interrogation, the police must affirmatively advise the suspect

that he has the right to remain silent, that anything he says can be used against

him in a court of law, that he has the right to the presence of an attorney, and that

235. See U.S. CONST. amend. V (“No person shall . . . be compelled in any criminal case to be a

witness against himself . . . .”).

236. See Cloud et al., supra note 76, at 520-21.

237. See infra note 269 and accompanying text.

238. See Miranda v. Arizona, 384 U.S. 436, 445 (1966).

239. Dickerson v. United States, 530 U.S. 428, 434-35 (2000).

240. Miranda, 384 U.S. at 455 n.24.

241. Id. at 455; see also Cloud et al., supra note 76, at 519 n.115 (noting that in custodial

interrogations, “the confession problem had outgrown the voluntariness rule” (quoting

George E. Dix, Federal Constitutional Confession Law: The 1986 and 1987 Supreme Court

Terms, 67 T

EX. L. REV. 231, 235 (1988))).

242. See Miranda, 384 U.S. at 449-55; see also id. at 450 (“To highlight the isolation and

unfamiliar surroundings, the manuals instruct the police to display an air of confidence

in the suspect’s guilt and from outward appearance to maintain only an interest in

confirming certain details.”).

243. See id. at 457.

244. Id. at 441-42.

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674

if he cannot afford an attorney one will be appointed for him prior to any

questioning if he so desires.

245

These warnings were necessary in order to “insure that the statements were

truly the product of free choice.”

246

In other words, without these affirmative

warnings of the defendant’s rights, the Court acknowledged that a confession

may slip through the due process voluntariness test without being truly

voluntary.

A suspect can of course waive these rights—as most do

247

—but she must do

so “voluntarily, knowingly and intelligently.”

248

Courts have understood these

words to represent “two distinct dimensions.”

249

First, the waiver must be

“voluntary in the sense that it was the product of a free and deliberate choice

rather than intimidation, coercion, or deception.”

250

Second, the rights can

only be relinquished if the suspect has “full awareness of both the nature of the

right being abandoned and the consequences of the decision to abandon it.”

251

Courts look to the totality of the circumstances surrounding the interrogation

to determine whether the decision to waive one’s Miranda rights was both an

“uncoerced choice” and made with “the requisite level of comprehension.”

252

Over time, the protections established by the Miranda Court have been

diminished—doctrinally and in practice. After affirming in 2000 that Miranda

was in fact a constitutional holding not subject to congressional overruling,

253

the Court subsequently narrowed the protection’s scope. The Court had long

held that a defendant’s right to exclude statements given under custodial

interrogation without proper Miranda warnings extends only to direct

evidence; such statements may be used to impeach the defendant if she chooses

to testify.

254

But in 2004, the Court limited the right further: Where a

statement given in violation of Miranda leads to the discovery of physical

evidence—for instance, a firearm—that physical evidence will not be excluded,

even if the statement is inadmissible in court.

255

And in 2010, the Court

weakened the protection further by deeming the waiver of Miranda rights

245. Id. at 479.

246. Id. at 457.

247. See supra text accompanying note 124.

248. Miranda, 384 U.S. at 444.

249. Moran v. Burbine, 475 U.S. 412, 421 (1986).

250. Berghuis v. Thompkins, 560 U.S. 370, 382 (2010) (quoting Moran, 475 U.S. at 421).

251. Id. at 382-83 (quoting Moran, 475 U.S. at 421).

252. See, e.g., Moran, 475 U.S. at 421.

253. See Dickerson v. United States, 530 U.S. 428, 432 (2000).

254. See Harris v. New York, 401 U.S. 222, 225-26 (1971).

255. See United States v. Patane, 542 U.S. 630, 637-42 (2004) (opinion of Thomas, J.); id. at 644-

45 (Kennedy, J., concurring in the judgment).

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easier than invoking them. In Berghuis v. Thompkins, the Court held that a

defendant’s remaining silent for hours did not amount to an invocation of his

right to remain silent,

256

but when he started answering questions—without a

“basis . . . to conclude that he did not understand his rights”—that amounted to a

proper waiver of his rights.

257

In light of these doctrinal developments, and due

to the fact that nearly 80% of adult suspects waive their Miranda rights,

258

Miranda’s protections now amount to little more than empty formalism.

As originally conceived, Miranda was a strong step toward safeguarding

suspects’ Fifth Amendment rights against self-incrimination. But the Court’s

holding—that the warnings are required to ensure the confession’s

voluntariness—rests on the assumption that these warnings will be an effective

safeguard for suspects’ rights during custodial interrogations.

259

Unfortunate-

ly, despite the Court’s best intentions, this assumption has been seriously

challenged, and it is especially dubious in the context of individuals with

intellectual disabilities.

260

Courts sometimes recognize that waivers executed by people with

intellectual disabilities require extra scrutiny, but often mental disability is

only one of several factors considered.

261

Judges often assume that Miranda

waivers by people with intellectual disabilities can be knowing if offset by

other factors such as the suspect’s older age, previous experience with the

justice system, or the way the warnings themselves are delivered.

262

256. See 560 U.S. at 381.

257. See id. at 385.

258. See supra text accompanying note 124.

259. See Miranda v. Arizona, 384 U.S. 436, 444 (1966) (“As for the procedural safeguards to be

employed, unless other fully effective means are devised to inform accused persons of

their right of silence and to assure a continuous opportunity to exercise it, the

[warnings] are required.”).

260. See Cloud et al., supra note 76, at 522. It is clear the Court intended Miranda to be

effective for everyone, including those who are intellectually disabled. The Court

specifically mentioned the example of a person “of limited intelligence [who] confessed to

two brutal murders and a rape which he had not committed.” Miranda, 384 U.S. at 455

n.24 (emphasis added). It would be hard to argue that the Court included this example as

evidence of the dangers of modern police interrogation techniques but omitted

individuals with “limited intelligence” from consideration in its holding.

261. Cloud et al., supra note 76, at 527; see, e.g., Byrd v. State, 78 So. 3d 445, 453 (Ala. Crim.

App. 2009) (“A defendant’s low IQ is only one factor that must be considered when

reviewing the totality of the circumstances.”).

262. See Cloud et al., supra note 76, at 531; see also, e.g., Bevel v. State, 983 So. 2d 505, 516 (Fla.

2008) (“Despite his low IQ, the totality of the circumstances, based upon the testimony

presented at the hearing as well as a review of the videotaped confessions, indicates that

[the defendant] knowingly and voluntarily waived his Miranda rights.”); State v.

Carpenter, 633 A.2d 1005, 1008 (N.J. Super. Ct. App. Div. 1993) (“Although defendant is

illiterate, has an I.Q. of 71 and left school at age 18 while attending special education

classes, those factors are not dispositive of whether he understood the meaning of the

footnote continued on next page

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But scholars have demonstrated that the only factor that seems to matter is

the fact of these individuals’ intellectual disability.

263

Cloud et al. conducted a

study of individuals with varying severities of intellectual disability and found

that no individual at any level was able to understand the legal concepts

enshrined in the Miranda warnings.

264

They also determined that most of the

common totality-of-the-circumstances factors judges use to assess the validity

of a waiver—“age, education, prior experience with the criminal justice system,

and prior reception of the Miranda warnings”—do not correlate with greater

comprehension in the intellectually disabled population.

265

In other words,

even if a person with intellectual disabilities has, for example, been arrested

before—a factor that typically increases an individual’s understanding of and

ability to validly waive her Miranda rights

266

—there will be no appreciable

increase in her capacity to understand the nature and implications of the

waived rights. People with intellectual disabilities simply do not understand

their Miranda rights.

267

With these findings, the judicial inquiry into the Miranda waiver of a

suspect with intellectual disabilities is called into serious question. Miranda

may even harm this vulnerable population, if not the greater body of suspects.

Miranda provides formalistic legal cover for coerced confessions that might

otherwise garner more significant due process scrutiny. That said, the Miranda

warnings were created to provide further constitutional protection on top of

the due process voluntariness analysis, which proved insufficient to protect

individuals from psychologically manipulative interrogation tactics.

268

Therefore, the ideal solution for people with intellectual disabilities would be

to legally recognize their per se inability to knowingly waive their Miranda

rights. Under such a rule, if a suspect is diagnosed with intellectual disabilities,

her confession would not be admitted into evidence unless her attorney—or

perhaps a legal guardian—was present for the interrogation. And if it were

Miranda warnings . . . . A defendant’s I.Q. is merely a factor in the totality of the

circumstances to be considered.”).

263. See, e.g., Cloud et al., supra note 76, at 538 (“Regardless of the presence or absence of

these factors, whether taken singly or in combination, if the person was [intellectually

disabled], he did not understand the Miranda warnings.”).

264. See id.

265. See id. at 538, 563-68.

266. See, e.g., State v. Fisher, 556 A.2d 596, 599 (Conn. 1989) (identifying “the defendant’s

extensive experience with the criminal justice system” as tending to prove “that the

waiver and the subsequent statement were voluntarily, knowingly and intelligently

given”).

267. Cloud et al., supra note 76, at 590. For a more comprehensive review of literature

supporting the conclusion that people with intellectual disabilities cannot understand

the legal rights associated with Miranda, see Kassin et al., supra note 4, at 21.

268. See supra notes 239-46 and accompanying text.

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677

somehow determined before the interrogation that the suspect had such

disabilities, the interrogation would halt until such a lawyer or guardian was

present.

2. Review of the confession’s voluntariness

Even if a suspect’s Miranda waiver was made voluntarily, knowingly, and

intelligently, a court may find that the confession itself does not pass the due

process voluntariness standard.

269

In the aftermath of Colorado v. Connelly,

270

however, it is unclear whether this doctrine provides any more protection for

a suspect with intellectual disabilities who has falsely confessed.

In Connelly, the Supreme Court held that finding a confession involuntary

under the Fourteenth Amendment’s Due Process Clause requires proving

coercive conduct by the police.

271

In that case, the defendant approached a

uniformed police officer to say that he was told by God to move from Boston

to Denver to take responsibility for the murder of a young girl.

272

The

defendant suffered from chronic schizophrenia, and he made it clear to the

officer that he had spent time in mental hospitals.

273

Though the Supreme

Court had seemed to consider the mental state of suspects in prior cases,

274

Connelly the Court determined that the defendant’s mental condition was “a

matter to which the United States Constitution does not speak.”

275

The Court

also made clear that the statement’s reliability is not germane to its

constitutionality.

276

The due process voluntariness test thus concerns itself

269. See Dickerson v. United States, 530 U.S. 428, 434 (2000) (“We have never abandoned this

due process jurisprudence, and thus continue to exclude confessions that were obtained

involuntarily.”); Miller v. Fenton, 474 U.S. 104, 110 (1985) (“Indeed, even after holding

that the Fifth Amendment privilege against compulsory self-incrimination applies in

the context of custodial interrogations, and is binding on the States, the Court has

continued to measure confessions against the requirements of due process.” (citations

omitted)).

270. 479 U.S. 157 (1986).

271. See id. at 167.

272. Id. at 160-61.

273. Id.

274. See, e.g., Townsend v. Sain, 372 U.S. 293, 308 n.4 (1963), overruled in other part by

Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992); Blackburn v. Alabama, 361 U.S. 199, 209

(1960).

275. 479 U.S. at 170-71. It appears that the suspect in Connelly suffered from mental illness,

not mental disability. See id. at 160-62. Though there are important differences between

illness and disability, see supra text accompanying notes 103-08, it is unlikely Connelly’s

holding would apply differently in the context of mental disability.

276. Connelly, 479 U.S. at 167 (“A statement rendered by one in the condition of [the

defendant] might be proved to be quite unreliable, but this is a matter to be governed by

footnote continued on next page

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almost exclusively with the police’s conduct.

277

The Connelly Court made clear that a suspect’s mental condition does not

directly affect the due process voluntariness of her confession.

278

The Court seemed

to suggest, however, that the suspect’s mental condition may be indirectly relevant

to the coercive power a police officer can exert over her.

279

The opinion left open

exactly how mental disability would be considered, and federal courts of appeals

“have not answered this question uniformly.”

280

Most courts conduct a two-step

voluntariness inquiry, asking first whether the police activity was objectively

coercive and second whether that coercive behavior overbore the will of the

accused.

281

This test only considers a suspect’s mental disability relevant to the

extent that the police were aware of the condition and exploited it.

282

A minority of the federal courts of appeals, however, takes a more subjec-

tive approach. Those courts consider the suspect’s mental state as lowering the

the evidentiary laws of the forum, and not by the Due Process Clause of the Fourteenth

Amendment.” (citation omitted)).

277. See id.

278. See id. at 170-71.

279. See id. at 164 (acknowledging that “courts have found the mental condition of the

defendant a more significant factor” in the due process analysis “as interrogators have

turned to more subtle forms of psychological persuasion”).

280. Paul T. Hourihan, Note, Earl Washington’s Confession: Mental Retardation and the Law of

Confessions, 81 V

A. L. REV. 1471, 1481 (1995).

281. See, e.g., United States v. Taylor, 752 F.3d 254, 261 (2d Cir. 2014) (Raggi, J., dissenting

from the denial of rehearing en banc) (“[A] defendant’s ‘mental state does not become

part of the calculus for the suppression of evidence unless there is an allegation that

agents . . . engaged in some type of coercion.’” (second alteration in original) (quoting

United States v. Salameh, 152 F.3d 88, 117 (2d Cir. 1998) (per curiam))); Sweet v. Tennis,

386 F. App’x 342, 347 (3d Cir. 2010) (“[T]here is no evidence to suggest that the

detectives who interrogated the petitioners resorted to coercive tactics or exploited the

petitioners’ medical condition in any way.”); Murphy v. Ohio, 551 F.3d 485, 514 (6th Cir.

2009) (“Murphy’s low intelligence alone does not make the officers’ actions in

questioning him coercive. . . . [T]he facts do not suggest that the officers engaged in

improper tactics when questioning Murphy . . . .”); Smith v. Mullin, 379 F.3d 919, 935

(10th Cir. 2004) (“Mr. Smith’s mental impairments are nonetheless relevant to our

scrutiny of his interrogation . . . . Police may not ‘exploit[] this weakness with coercive

tactics.’” (second alteration in original) (quoting Connelly, 479 U.S. at 165)); United

States v. Hall, 969 F.2d 1102, 1107-08, 1108 n.6 (D.C. Cir. 1992) (“[T]he subject’s particular

‘vulnerable subjective state,’ [including low IQ and psychological problems,] would be

relevant only insofar as the police knowingly took advantage of that vulnerability in

eliciting a consent to search.” (citation omitted) (quoting Schneckloth v. Bustamonte,

412 U.S. 218, 229 (1973))); Atkins v. Singletary, 965 F.2d 952, 959 (11th Cir. 1992)

(recognizing that “the mental condition of a defendant . . . can be a significant factor

when discussing involuntariness” but holding that the defendant’s confession was

voluntary because the record demonstrated “no improper or coercive state tactics”).

282. Cf. United States v. Walker, 607 F. App’x 247, 256 (4th Cir. 2015) (“[T]here is no

evidence in the record that the officers sought to exploit Walker’s intoxication in

order to unlawfully obtain incriminating statements from him.”).

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threshold of police coercion required to find the confession involuntary.

283

Police conduct that would be noncoercive for a suspect with typical intellectual

abilities may be deemed coercive, and thus a violation of due process

voluntariness, when used on individuals with lower cognitive abilities or other

mental disorders.

284

For example, in United States v. Preston, the defendant—an

eighteen-year-old with intellectual disabilities and an IQ of 65—was questioned

by two FBI officers right in front of his house.

285

The officers “quickly became

aware of Preston’s mental disability,” but they persisted.

286

About twenty

minutes into the interview, the officers were able to convince the defendant to

acquiesce in the suggestion that he was home on Friday—which he was not, as

both parties agreed by the time of the appeal—and by the end of forty minutes,

he was signing a confession to allegations of child molestation.

287

In an en banc

decision, the Ninth Circuit overruled circuit precedent and rejected the two-

step voluntariness inquiry that requires first finding that the police acted

coercively.

288

Instead, the court held that the defendant’s reduced mental

capacity was directly relevant to due process voluntariness because it rendered

him more vulnerable to forms of psychological coercion.

289

The minority approach is more favorable to suspects with intellectual

disabilities. The standard interrogation tactics police use may be unduly

effective at eliciting confessions from individuals with intellectual disabilities,

even if they are not deemed coercive under the standard due process

voluntariness test. The minority approach to due process voluntariness allows

courts to recognize the subjective risks that individuals with mental disorders

face in these interrogations, forcing police to submit alternative evidence

(other than the suspect’s confession) to prove the defendant’s guilt.

Furthermore, the majority rule—which only incorporates mental disability to

the extent the interrogating officer is aware of the suspect’s handicap—fails to

account for the difficulty in identifying individuals with mild to moderate

intellectual disabilities.

290

283. See, e.g., United States v. Preston, 751 F.3d 1008, 1019-23 (9th Cir. 2014) (en banc).

284. See, e.g., Smith v. Duckworth, 910 F.2d 1492, 1497 (7th Cir. 1990) (“[W]hile a finding of

involuntariness cannot be predicated solely upon Smith’s mental instability, his mental

state is relevant ‘to the extent it made him more susceptible to mentally coercive police

tactics.’” (quoting Andersen v. Thieret, 903 F.2d 526, 530 n.1 (7th Cir. 1990))).

285. See 751 F.3d at 1010, 1012.

286. Id. at 1012.

287. See id. at 1012-15.

288. See id. at 1019.

289. See id. at 1019-20 (overruling Derrick v. Peterson, 924 F.2d 813 (9th Cir. 1991)).

290. See supra text accompanying notes 101-02.

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Connelly also made clear that a confession’s reliability is irrelevant to the

due process inquiry.

291

Even where an admission by a person with mental

disabilities or illness “might be proved to be quite unreliable, . . . this is a matter

to be governed by the evidentiary laws of the forum.”

292

The issue of reliability, however, was of particular concern to Justice

Brennan in his dissent.

293

Because confessions “so strongly tip[] the balance

against the defendant in the adversarial process,” Justice Brennan believed that

courts “must be especially careful about a confession’s reliability.”

294

Where

reliability no longer bears upon the due process inquiry, the postadmission

phase of the interrogation essentially goes unchecked. Once the individual

admits guilt “voluntarily,” the validity and accuracy of the postadmission

narrative is not constitutionally relevant. This is especially unfortunate for

individuals who have given false confessions that could be easily determined by

a neutral judge to be unreliable and therefore in violation of the defendant’s

due process rights. Where an individual with intellectual disabilities is

especially likely to be coaxed into giving a false confession, the absence of a

constitutional reliability inquiry removes a potentially powerful check on that

defendant’s path to wrongful conviction.

IV. Indicia of Intellectual Disability Among Exonerated False Confessors

The NRE maintains a comprehensive database of individuals who have

been officially exonerated.

295

The NRE reports over 2000 exonerations since

1989.

296

The registry tracks numerous characteristics pertaining to each

exoneration, including demographic information (for example, race and age),

conviction information (crime and sentence), and factors contributing to the

conviction (for example, mistaken witness identification, misleading forensic

evidence, jailhouse informants, or false confessions).

297

Of the 2040 officially

291. See Colorado v. Connelly, 479 U.S. 157, 167 (1986).

292. Id. at 167.

293. See id. at 181 (Brennan, J., dissenting) (“Since the Court redefines voluntary confessions

to include confessions by mentally ill individuals, the reliability of these confessions

becomes a central concern.”).

294. Id. at 182.

295. See Our Mission, NAT’L REGISTRY EXONERATIONS, https://perma.cc/R5X4-58ER

(archived Dec. 7, 2017).

296. See NAT’L REGISTRY EXONERATIONS, https://perma.cc/A4QG-HGFF (archived Dec. 30,

2017).

297. See National Registry of Exonerations: Detailed List, NAT’L REGISTRY EXONERATIONS,

https://perma.cc/2NYZ-FXSR (archived Dec. 6, 2017).

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681

recognized wrongful convictions analyzed in this Note,

298

245 (12%) involved a

false confession.

299

But the database contained no detailed tagging of

intellectual disabilities.

300

The goal of this Note’s analysis is twofold. First, using the most compre-

hensive database of proven false confessions, I estimate the occurrence of

intellectual disabilities among those who falsely confess. Second, I lay out a

methodology by which the NRE could begin tracking indicia of intellectual

disability for the greater population of exonerees. This would allow

researchers to study the correlation of intellectual disabilities with other

factors contributing to wrongful convictions.

For each of the 245 exonerees in my study who falsely confessed, I searched

for indicia of intellectual disability through various source documents

including, but not limited to, court orders, petitions for habeas corpus or other

postconviction relief, complaints in postexoneration civil lawsuits, expert

affidavits and testimony, news articles, scholarly articles, and NRE notes.

These indicia included the following list of terms (and reasonable variations

thereof): intellectual disability, cognitive disability, mental handicap, mental

retardation, mental impairment, learning disability, and IQ. This Note’s data

supplement indicates which indicia were present for each identified

individual.

301

It is important to note that this classification is not a diagnosis. I estimated

the exonerees’ intellectual disabilities based on the presence of certain terms

and characteristics in these individuals’ files, case histories, and media reports.

In some cases, the indicia do come from a psychologist’s or psychiatrist’s

analysis, as captured in an affidavit or expert testimony. But in most cases, such

clarity was not available.

This in-depth search revealed that 58 of the 245 people (23.7%) whose

convictions relied, in whole or in part, on false confessions have indicia of

298. See supra note 1.

299. See Data Supplement, supra note 1. The NRE defines a confession as follows:

A confession is a statement made to law enforcement at any point during the proceedings

which was interpreted or presented by law enforcement as an admission of participation in or

presence at the crime, even if the statement was not presented at trial. A statement is not a

confession if it was made to someone other than law enforcement. A statement that is not at

odds with the defense is not a confession. A guilty plea is not a confession.

See Glossary, supra note 64.

300. The NRE tracked a general category of “mental disability” that contained information

pertaining to mental illness, intellectual disabilities, and cognitive disabilities resulting

from trauma. This information is not reported on the NRE website. Telephone

Interview with Samuel R. Gross, Editor, Nat’l Registry of Exonerations (Mar. 9, 2016).

301. See Data Supplement, supra note 1. I considered an IQ of 70 or lower to be an indicator

of intellectual disability. If the IQ was between 70 and 80, I looked for other indicia of

intellectual disability besides just the number.

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682

intellectual disability.

302

A further five individuals display cognitive disabilities

that may be linked to prior episodes of trauma.

303

Though these individuals

may not technically suffer from “developmental disabilities” (because their

disabilities did not arise “during the[ir] developmental period”),

304

they likely

suffer similar risks in the context of police interrogations due to their mental

impairments. In total, then, 63 of 245 individuals (25.7%) display indicia of

intellectual disability.

305

This figure—25.7%—is larger than estimates of the percentage of the

general population and the prison population in the United States that have

intellectual disabilities. Studies estimate that between 1% and 3% of the general

population have intellectual disabilities.

306

Even estimates of the prison

population with intellectual disabilities—which vary widely—are less than

25.7%. Joan Petersilia reported in 2000 that somewhere between 4% and 10% of

302. See id.

303. See id. Bobby Ray Dixon suffered mental impairment and seizures because he was

kicked in the head by a horse as a child. See id. Ronald Jones fell from a fourth-story

porch and consequently began struggling in school and was described as “mentally

retarded.” See id. Damon Thibodeaux was placed in special education classes; his

psychologists said that he suffered from physical and sexual abuse as a child. See id.

Antonio West also suffers from cognitive disabilities due to a head injury as a child. See

id. And Frank Lee Smith was described as “mentally slow” and “special needs” as a result

of a traumatic brain injury as a toddler and again as a teenager; as a toddler, Smith

accompanied his mother to a bar where a fight broke out, and somebody threw a bottle

that split open Smith’s head such “that his brain tissue was exposed.” See Jeff Walsh,

Frank Lee Smith’s Long Hard Life, PBS:

FRONTLINE, https://perma.cc/MW3G-QFRT

(archived Dec. 6, 2017). A sixth individual—Joseph Dick, Jr.—demonstrates disabilities

that may be the result of a head injury as a child, but the circumstances are less certain,

and I have included him as one of the 58 individuals showing general indicia of

intellectual disability. See Data Supplement, supra note 1.

304. See DSM-5, supra note 77, at 33.

305. In addition, two individuals suffer from Fetal Alcohol Syndrome Disorder, which can

cause, among other symptoms, various cognitive disabilities. See Data Supplement,

supra note 1 (Gabriel Baddeley and Danya Christoph); see also Nat’l Org. on Fetal

Alcohol Syndrome, FASD: What Everyone Should Know (n.d.), https://perma.cc

/9EN8-KRN7. Without further information about their cognitive abilities, however,

these individuals are not included in these results.

306. See Intellectual Disability, ARC, https://perma.cc/QF9D-TFWP (archived Dec. 6, 2017); see

also J

ENNIFER BRONSON ET AL., BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,

NCJ 249151, DISABILITIES AMONG PRISON AND JAIL INMATES, 2011-12, at 3 tbl.1 (2015),

https://perma.cc/ML37-EYR4 (estimating that when general population data are

standardized to match the “sex, age, race, and Hispanic origin” characteristics of state

and federal prison populations, 4.8% of that standardized population has cognitive

disabilities); N

AT’L ACADS. OF SCIS, ENG’G & MED., MENTAL DISORDERS AND DISABILITIES

AMONG LOW-INCOME CHILDREN 268 tbl.15-1 (Thomas F. Boat & Joel T. Wu eds., 2015)

(chronicling historical estimates of the prevalence of intellectual disabilities among

children since the 1960s); What Is Intellectual Disability?, S

PECIAL OLYMPICS,

https://perma.cc/J3Y7-TFUV (archived Dec. 6, 2017) (estimating that approximately

6.5 million people in the United States live with intellectual disabilities).

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those in prison or jail suffer from developmental disabilities.

307

The Bureau of

Justice Statistics (BJS) conducted a study of inmates’ self-reported disabilities in

2011-2012, finding that 19.5% of state and federal prisoners report having a

cognitive disability.

308

Neither of these studies presents an apples to apples

comparison with my dataset—developmental and cognitive disabilities are

broader categories, both of which can encompass intellectual disabilities

309

—

but they provide approximate comparison points.

These findings are consistent with previous estimates of false confessors

with intellectual disabilities.

310

Drizin and Leo compiled a dataset of 125

proven false confessions and determined that approximately 22% of the

defendants were “mentally retarded.”

311

Though the dataset analyzed in this

Note and the one compiled by Drizin and Leo overlap somewhat, 65% of Drizin

and Leo’s set were not convicted.

312

For those defendants, the pretrial process

may have failed to weed out their false confessions, but in one way or another,

they were able to avoid conviction.

Turning to the dataset analyzed in this Note, there are several notable

points of comparison between the general population of false confessors and

the subset displaying indicia of intellectual disability. For example, there are

few demographic differences. The group displaying indicia of intellectual

disability skews slightly more male than the 182 false confessors who do not

show such indicia (94% versus 88%).

313

But the racial distribution is not

meaningfully different. In the population of 63 individuals demonstrating

some indicia of intellectual disability, 43% are Caucasian, 49% are black, and 8%

are Hispanic.

314

Clearly, people of color are overrepresented, but not much

307. See PETERSILIA, supra note 111, at 5 (collecting prevalence estimates by state, ranging

from 3% in New York to 27% in South Carolina).

308. BRONSON ET AL., supra note 306, at 3 tbl.1. The study also finds that 30.9% of jail inmates

(as opposed to state or federal prisoners) report having a cognitive disability. Id. at 3

tbl.2. There are myriad reasons to set this outlier aside given the broader definition of

“cognitive” disabilities used by the study, its self-reported nature, and the unique

dynamic at jails—institutions increasingly tasked with compensating for the nation’s

failure to provide adequate services for people with cognitive disabilities or mental

disorders. Cf. Matt Ford, America’s Largest Mental Hospital Is a Jail, A

TLANTIC (June 8,

2015), https://perma.cc/M3MY-9ZT4.

309. See supra note 79 (explaining that intellectual disability is one specific type of

developmental disability). The BJS defines “cognitive disability” as “a broad term used

to describe a variety of medical conditions affecting different types of mental tasks,

such as problem solving, reading comprehension, attention, and remembering.”

RONSON ET AL., supra note 306, at 3.

310. See, e.g., Drizin & Leo, supra note 4, at 920 n.155, 971.

311. Id. at 920 n.155.

312. See id. at 951.

313. See Data Supplement, supra note 1.

314. See id.

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more so than in the false confessor population without indicia of intellectual

disabilities (38% Caucasian, 52% black, 8% Hispanic, and 2% other).

315

In terms

of age, the subset displaying indicia of intellectual disability is representative of

the whole: The approximate average for both is twenty-four years of age.

316

The subset of individuals who display indicia of intellectual disability

differ from the general false confessor population, however, in terms of crime

and sentence. Fifty-one of the 63 individuals in the subset (81%) were convicted

of some form of homicide.

317

This is slightly higher than in the population of

false confessors without indicia of intellectual disabilities, where only 74% of

convictions included homicide.

318

In addition, 36 of the subset’s convictions

(57%) involved sex-related crimes.

319

This is noticeably higher than that of the

group of false confessors without indicia of intellectual disability (31%).

320

The

percentage of exonerees who were convicted of crimes that consisted of both

homicide and sex crimes is also higher in the subset of individuals displaying

indicia of intellectual disability.

321

While 41% of the subset were convicted of

both homicide and sex crimes, only 14% of the larger population of false

confessors included both.

322

Only 2 of the 63 cases including indicia of

315. See id. This demographic also generally tracks estimates of the distribution in the

general exoneree population (39% Caucasian, 47% black, 12% Hispanic, 2% other). See

Samuel R. Gross, What We Think, What We Know and What We Think We Know About

False Convictions, 14 O

HIO ST. J. CRIM. L. 753, 756 (2017) (estimating based on 1900

individuals exonerated from January 1989 through October 2016).

316. See Data Supplement, supra note 1 (24.2 years for the general false confessor population

and 23.8 years for the subset of false confessors with indicia of intellectual disability).

317. See id. Homicide includes murder and manslaughter. See id.

318. See id. These figures are much higher than the homicide rate among the general

population of exonerees; one study estimated that 42% were convicted of homicide. See

Gross, supra note 315, at 757 & tbl.t. Even that number is extraordinarily different from

the rate of homicides in the larger criminal justice system; fewer than 1% of felony

convictions are homicides. See id. at 758. Scholars observe that police-induced false

confessions, in general, tend to correlate with more serious crimes like homicide and

rape, see Garrett, supra note 7, at 1065, likely because these cases tend to be high profile

and law enforcement officials are thus under increased pressure to solve them, see

Gross et al., supra note 48, at 532.

319. Data Supplement, supra note 1. Note that cases involving homicide and cases involving

sex-related crimes are not mutually exclusive. Thus, these percentages do not add to

100%. See id.

320. Id. Again, both figures are higher than the prevalence of sexual assault convictions in

the larger exoneree population (26%). Gross, supra note 315, at 757.

321. See Data Supplement, supra note 1.

322. See id. The small size of the samples in my dataset produced a predictable result: Few of

the comparisons between exonerees with indicia of intellectual disabilities and those

without such indicia are statistically significant. However, the overrepresentation of

individuals with indicia of intellectual disabilities convicted of sex-related crimes, see

supra notes 319-20 and accompanying text, is statistically significant. See Data

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intellectual disability did not involve homicide or sex-related crimes.

323

There are differences in terms of sentencing as well. The population

displaying indicia of intellectual disability has a higher prevalence of the most

severe sentences: death, life in prison without the possibility of parole (LWOP),

and life in prison.

324

Eight of the 63 individuals (13%) were sentenced to death;

ten (16%) were sentenced to LWOP; and thirteen (21%) were sentenced to life in

prison.

325

In comparison, only 7% of the population without indicia of

intellectual disabilities was sentenced to death, 9% to LWOP, and 17% to life in

prison.

326

To be sure, it is difficult to attribute meaning to these differences without a

greater sample size.

327

If further work is done to identify indicia of intellectual

disability among the remaining exonerees (not just those who falsely

confessed), it would be notable if the trend of severe criminal charges and

sentencing continues to correlate with individuals with intellectual disabilities.

It is perhaps noteworthy that none of the eight death penalty sentences

were imposed after 2002, the year the U.S. Supreme Court held in Atkins v.

Virginia that the Constitution prohibits sentencing to death individuals with

intellectual disabilities.

328

The Court, in holding the practice unconstitutional

under the Eighth Amendment, underscored the “special risk of wrongful

execution.”

329

In particular, the Court highlighted the narrative of Earl

Washington Jr., who in the 1980s had “unwittingly confessed to a crime that he

did not commit.”

330

Supplement, supra note 1. So too is the overrepresentation of individuals with those

indicia convicted of both sex- and homicide-related crimes. See id. And the difference in

the percentage of individuals who pleaded guilty in both groups, see infra note 331 and

accompanying text, is also statistically significant. See Data Supplement, supra note 1.

323. See Data Supplement, supra note 1. Ricky Cullipher was wrongfully convicted of

assault, and Antonio West was wrongfully convicted of gun possession or sale. See id.

324. See id.

325. Id.

326. Id. Only 6% of the larger exoneree population was sentenced to death. See Gross, supra

note 315, at 757 tbl.1. This, again, is much lower than that of the 245 false confessors

(9%) and the 63 false confessors with indicia of intellectual disability (13%). See Data

Supplement, supra note 1.

327. See supra note 322.

328. 536 U.S. 304, 321 (2002) (concluding that executing individuals with intellectually

disabilities violates the Eighth Amendment); see U.S.

CONST. amend. VIII (prohibiting

“cruel and unusual punishments”). The exonerees displaying indicia of intellectual

disability most recently sentenced to death were Hubert Geralds, Jr. and Damon

Thibodeaux, both in 1997. See Data Supplement, supra note 1.

329. See Atkins, 536 U.S. at 321.

330. Id. at 320 n.25 (citing Peter Baker, Death-Row Inmate Gets Clemency, WASH. POST (Jan. 15,

1994), https://perma.cc/4FH4-Q3M7).

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Lastly, the subset displaying indicia of intellectual disability also has a

higher rate of pleading guilty than population without those indicia. Whereas

22% of the larger group were convicted on a guilty plea, 35% of the subset with

such indicia pleaded guilty.

331

Both figures are higher than the rate of the

broader exoneree population (17%),

332

lending support to the hypothesis noted

above that a defendant’s confession may yield undue pressure to plead guilty,

even when she is innocent.

333

The number of individuals with intellectual disabilities in the studied

population may very well be higher than the 63 identified here. Individuals

with clear intellectual disabilities are likely to raise the issue at trial, on appeal,

or in postconviction proceedings. Indicia in those cases were more readily

identified. For most of the 245 false confessors, however, detailed information

regarding the person’s acumen was unavailable.

334

There are several plausible

scenarios under which an individual suffering from intellectual disabilities

would not be discoverable as such in this study. First, the individual may never

have been diagnosed or identified as having intellectual disabilities. Second, the

individual may have known of her disability but may have elected not to share

the information with defense counsel. Third, the attorneys representing the

defendant may not have raised the issue of intellectual disability (perhaps

because their legal strategy did not call for such disclosure). Under any of these

scenarios, an intellectual disability would have gone unnoted in the

individual’s record and undiscovered in my review, and thus would not be

represented in the data here.

This study only looks at individuals who have been officially exonerated.

The NRE database is unrepresentative of the greater criminal justice system in

several obvious ways. For example, the vast majority (82%) of documented

exonerations involve violent crimes (including homicides or sexual crimes),

while fewer than 20% of felony convictions nationwide are for violent

crimes.

335

This may be because violent crimes carry longer and harsher

sentences, in turn increasing the incentives and time for innocent defendants

to seek exoneration through postconviction processes.

336

It is also partially

because these violent crimes—especially sex-related crimes, but also homicide—

are more likely to involve the transfer of DNA evidence,

337

which presents the

331. See Data Supplement, supra note 1.

332. See Gross, supra note 315, at 756.

333. See supra text accompanying notes 24-25.

334. Cf. Drizin & Leo, supra note 4, at 971 n.452 (noting a similar likelihood of

underestimation of intellectual disabilities in their dataset).

335. See Gross, supra note 315, at 758.

336. See id. at 766-67; see also Gross et al., supra note 48, at 531-32.

337. See Gross et al., supra note 48, at 529 tbl.1.

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opportunity to conclusively exonerate the wrongfully convicted.

338

Due to

these and other peculiarities of the overall exoneration sample, these results

cannot be extrapolated to estimate a frequency of false confessions or the

tendency of false confessions to occur in cases where defendants have

intellectual disabilities.

The inability to estimate the frequency of false confessions based on these

results does not strip the study of meaning, however. The fact that a full

quarter of the proven false confessions in the NRE database show indicia of

intellectual disability provides further evidence for the hypothesis that

individuals with intellectual disabilities have faced and continue to face

heightened risks of falsely confessing.

Conclusion

That intellectually disabled individuals are “more likely to confess false-

ly”

339

seems intuitive and logical. The hypothesis has been often stated but

rarely examined in detail. Here, I have traced the common characteristics of

individuals with intellectual disabilities through the rich false confession

literature, highlighting the points in the process of custodial interrogations

where individuals with intellectual disabilities may be at greater risk.

Furthermore, I have explored this hypothesis empirically, finding that in fact

around one-quarter of those who have been proved to have falsely confessed in

the NRE dataset display indicia of intellectual disability, a greater percentage

than estimates for those in the general population and even most estimates for

those in prison.

There are numerous ways to better protect individuals with intellectual

disabilities from conviction based on their false confessions. Some of these

proposals are generally applicable to all false confessors; others are geared

toward the specific vulnerabilities of people with intellectual disabilities.

First, police interrogations should be videotaped.

340

Many states have

already passed statutes requiring custodial interrogations to be videotaped, and

many police departments have implemented the policy;

341

scholars almost

unanimously call for national adoption of this policy.

342

The reasons for the

policy are fairly simple: Videotaping interrogations allows for greater

338. See Gross, supra note 315, at 766.

339. LEO, supra note 4, at 232; accord Kassin et al., supra note 4, at 30.

340. See Kassin et al., supra note 4, at 25.

341. See id. at 26; Custodial Interrogation Recording Compendium by State, NAT’L ASS’N CRIM.

DEF. LAWS., https://perma.cc/RP3Z-Y2GZ (archived Dec. 6, 2017).

342. See, e.g., Kassin et al., supra note 4, at 26.

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accountability and more accurate post-interrogation review.

343

A video of the

interrogation allows the judge, in determining voluntariness, and the jury, in

determining guilt, to observe the confession with their own eyes.

344

It also may

deter more egregious interrogator misconduct.

345

Even the latest edition of the

Reid Method handbook acknowledges benefits to taping.

346

Videotaping is a

relatively low-cost improvement with a high potential reward.

347

Second, police should receive special training that addresses the limits of

human lie detection, the risks of false confession, and the added risks faced by

people with intellectual disabilities.

348

For example, police departments could

implement the International Association of Chiefs of Police’s model policy on

“Interactions with People with Intellectual and Developmental Disabilities.”

349

This model policy provides guidelines on common characteristics of

individuals with intellectual disabilities, as well as tips for identifying these

individuals.

350

The model policy specifically directs officers not to employ

common interrogation techniques on individuals officers believe to have

intellectual disabilities because these individuals “are easily manipulated and

may be highly suggestible.”

351

The implementation of model policies

instructing officers on how to identify intellectual disabilities and how to

adjust their normal procedures in these cases could prevent some police-

induced false confessions among this vulnerable population.

Third, individuals with intellectual disabilities should be tutored to invoke

their Miranda rights. The literature gives little attention to the possibility of

teaching individuals with intellectual disabilities—perhaps in special education

curricula or just in the home—how to protect themselves in the confines of a

custodial interrogation. Though these individuals may not comprehend the

full consequences of the legal rights they are invoking, they may only need to

memorize the words to ask for a lawyer or invoke silence for the interrogation

to halt, thus minimizing the chances of a false confession. There may be a

343. Id.

344. Id.

345. See id.

346. See INBAU ET AL., supra note 120, at 50 (noting that the majority of 112 Reid Method-

trained investigators surveyed “reported positive experiences with electronic

recording” of interrogations).

347. See Christopher Slobogin, Toward Taping, 1 OHIO ST. J. CRIM. L. 309, 315 (2003).

348. See Kassin et al., supra note 4, at 30.

349. See Int’l Ass’n of Chiefs of Police, Law Enf’t Pol’y Ctr., Model Policy: Interactions with

Individuals with Intellectual and Developmental Disabilities (2016). It is unclear to

what extent police departments across the country already implement this or similar

training programs.

350. See id. at 1-2.

351. Id. at 4.

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concern that this lesson would conflict with the desire to teach individuals

with intellectual disabilities to seek help from the police in times of need.

Additional research is necessary to determine the best method to teach

individuals with intellectual disabilities not only to seek help when necessary

but also to protect themselves in adversarial interactions with an officer.

Alternatively, a more drastic remedy would be to require the presence of

an attorney in the interrogation of any individual with intellectual

disabilities.

352

This would amount to a per se invocation of one’s Miranda

rights when the individual is determined to be intellectually disabled. To make

this per se invocation meaningful would require an adjustment to the legal

review of Miranda waivers—or legislation imposing such a requirement as a

matter of statutory if not constitutional law. This proposal is similar to the

requirement in the United Kingdom that an interested adult be present in the

interrogation of a juvenile or person with intellectual disabilities.

353

Fourth, in terms of legal review of the confession’s voluntariness, as noted

above, individuals with intellectual disabilities who have falsely confessed

would be better protected were the minority due process rule widely

adopted.

354

Under this rule, courts consider an individual’s mental disability as

relevant to determining the type of police conduct that amounts to coercion

and therefore renders the confession involuntary.

Short of this shift in the majority due process voluntariness rule,

355

trial

court judges could make greater use of their evidentiary discretion to exclude

confessions by individuals with intellectual disabilities or more generally in

cases where there is reason to believe that the confession is unreliable.

356

Though not every state may give judges the discretion to make such

determinations, the Federal Rules of Evidence do so. Under Rule 403, a federal

district judge has discretion to determine whether the possibility of unfair

prejudice posed by the confession of an individual with intellectual disabilities

outweighs the probative value of such evidence—especially when the

confession shows indications of unreliability.

357

These evidentiary rulings

352. See Kassin et al., supra note 4, at 30.

353. See id.

354. See supra notes 283-90 and accompanying text.

355. On the majority rule, see notes 281-82 and accompanying text above.

356. See Colorado v. Connelly, 479 U.S. 157, 167 (1986) (“A statement rendered by [an

individual with intellectual disabilities] might be proved to be quite unreliable, but this

is a matter to be governed by the evidentiary laws of the forum . . . .”). But see Eugene R.

Milhizer, Confessions After Connelly: An Evidentiary Solution for Excluding Unreliable

Confessions, 81 T

EMP. L. REV. 1, 34-37 (2008) (doubting that Rule 403 of the Federal Rules

of Evidence would be an effective tool for curbing the distorting effects confessionary

evidence imposes on a trial).

357. See FED. R. EVID. 403 (“The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair prejudice,

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would force the prosecution to proffer alternative evidence of the defendant’s

guilt and base its case on more than the words the suspect uttered in the

confines of a custodial interrogation. In summary, where the constitutional

doctrine of due process voluntariness does not allow a judge to exclude a

confession due to its unreliability or because it was elicited from an individual

with intellectual disabilities, she may be able to do so under the rules of

evidence.

While further exploring these reforms is necessary, the most important

goal is renewed awareness of the risks faced by individuals with intellectual

disabilities. The integrity of the criminal justice system is called into question

when we fail to protect the most vulnerable citizens from wrongful conviction

based on their own self-incrimination.

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.”); see also, e.g., United States v. Condon, 720 F.3d 748,

750, 755-57 (8th Cir. 2013) (upholding the district court’s decision to exclude a

recording of the defendant’s admission of guilt over a phone call on Rule 403 grounds);

Johnson v. Trigg, 28 F.3d 639, 641 (7th Cir. 1994) (“Of course if the pressure exerted by

the police is so great that it might induce a person to confess to a crime he had not

committed[,] . . . the resulting confession will be highly unreliable and should, like

other highly unreliable evidence, be excluded from the defendant’s trial.” (citing F

ED. R.

EVID. 403)).