Individuals with Disabilities and the Issue of False Confessions - Part II

Posted by Chris Morales on Fri, Oct 11, 2013 @ 10:20 AM

Sign Language Interpreting

Sign language interpreting is not easy, especially when legal terminology is involved. The vocabulary of American Sign Language (ASL) primary covers everyday words referring to basic life processes including body functions, foods, emotions, and sexual behaviors. ASL does not have signs for most legal terms, technical words, or academic terminology. Educated deaf people can get around this problem by having a sign language interpreter finger-spell these terms on their hands. However, as indicated earlier, most prelingually deaf people only read at a third grade, eighth month level. Thus, using the manual alphabet (finger-spelling) to spell pout the words will not lead to comprehension.

Looked at objectively this means that many deaf defendants should be regarded as linguistically incompetent to stand trial. Linguistic Incompetence means the dead defendant does not have the language skills both in English and signing, nor does he have the background and conceptual knowledge about legal concepts to be able to work with his attorney and participate in his trial. However, due to lack of knowledge by attorneys and judges of the low reading and language level so many deaf defendants, this information is rarely used in cases involving such defendants. When this knowledge is used, however, it has been very effective in providing a fair trial.

Memory, Comprehension, And the Miranda Waiver

The Miranda waiver is often administered shortly after a suspect has been apprehended. This obviously stressful time does not help an individual’s comprehension and memory of the waiver. Research indicates that hearing defendants with less than a 12th grade education recall only 55.8 percent of it, even when cued before being tested. The majority of criminal defendants have significantly less than a 12th grade education. By the time interrogation begins, which is often a day to six weeks or more after the arrest was made, many defendants have forgotten what little they understood of the waiver in the first place.

For death defendants, recall is even worse than for the hearing. Research shows that verbal material presented acoustically is better remembered than that presented in print. This is important because interviews with 631 police investigators showed that 67 percent of the warnings they gave were delivered orally, 29 percent in writing and four percent were taped.

Based on the data and information already mentioned, it is obvious that to give Miranda orally to most dead defenders is relatively meaningless. In essence, this means if it was given orally, then it was not given at all. Thus, the data gathered after the Miranda warning is given to a deaf defendant orally should not be admissible in the defendant’s case. In addition, deaf and other vulnerable populations may be highly susceptible to giving false confessions due to their memory problems.

Both verbally memory recall problems and the susceptibility of persons to concede to leading questions and interrogative pressure present major risk factors when defendants are questioned by the police. Verbal memory recall - both immediate and delayed - and “interrogative suggestibility” have been objectively measured with a forensic tool developed by Gisli Gudjonsson called the Gudjonsson Suggestibility Scale (GSS) that use stories to recall protocols to measure verbal memory. The participant’s answers to the misleading items are counted and suggestibility score is calculated. Such a forensic tool could be of use to lawyers who suspect their clients are “highly suggestible” and may have been forced into a false confession.

LaVigne and Rybroek have provided extensive evidence that the linguistic problems deaf defendants have with the Miranda waiver also exist to a significant extent in many juvenile and adult hearing defendants. Thus, these data are of great potential value to criminal defense attorneys as they apply to a population far greater than just people who are deaf.

False Confessions

False confessions are surprisingly common and often involve the uneducated, those of low intelligence, individuals with cognitive and learning disabilities, youth and deaf defendants lacking good English language skills, and individuals without adequate information about their legal rights. Defense attorneys who have cases in which they think the defendants may have falsely confessed usually check carefully on what transpired during interrogation and in the period following arrest. It is also important to check factors such as the IQ, educational level, and the mental health of the suspected false confessor.

In the past, police often used methods such as brutality, prolonged isolation, deprivation of food or sleep, threats of harm or punishment, promises of immunity or leniency and sometimes failed to notify suspects of their constitutional rights. Today these techniques of interrogation are outlawed. Instead, they have been replaced by sophisticated and more subtle techniques of police interrogation that may rely heavily on using dress, location and the power and manipulation of language. These subtle psychological and language practices have been developed and books have been written on the topic. One such book recommends the interrogator dress in civilian clothes and that questioning take place in a small room Sign Language Interpreting Sign lately bare, far removed from familiar sights and sounds and without people, telephones, ornaments or other distraction. This interrogation manual goes on to suggest that the room should be furnished with tow or three armless straight backed chairs and a desk. All light switches, thermostats, and other control devices should be kept out of reach. The interrogator should invade the suspect’s personal space. If possible, the room should have one -way mirror to enable a fellow detective to observe the process. This setting is designed to create an environment that promotes the suspect’s feeling of isolation and lack of control.

The object of these sophisticated techniques is to obtain a confession. Despite all of this information, there is still no solid prof of their effectiveness. Even trained professionals such as psychologists, judges, police investigators, psychiatrists, polygraphers, and forensic linguists are still prone to error in analyzing the confessions obtained by these methods.

Confessions that result from explicit threats and promises are usually not accepted by judges. Judges do sometimes accepted by judges. Judges do sometimes accept implicit promises and threats that often yield evidence, which can lead to convictions.

As such, false confessions are a dilemma to the legal system. For example, no one even knows how many occur. However, they are second only to mistaken identity as a cause of wrongful convictions. In approximately 25 percent of the wrongful convictions overturned with DNA evidence, defendants made false confessions, admissions, or statements to law enforcement officials.

The results of false confessions are disturbing. For example, a study of 125 cases of proven false confessions found that when charges were not dropped prior to trial, 86 percent of the suspects who falsely confessed were convicted. The researchers concluded that “modern police interrogation practices that now rely primarily on psychological techniques can and do caus e innocent victims to confess.”

The Morales Law Firm would like to thank The National Association of Criminal Defense Lawyers Champion for sharing this article with us.

Part III Posted on - 10/14/13

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Tags: trial, defendants, criminal, false confession, Miranda Waiver