SUPREME COURT OF THE STATE OF NEW YORK APPELLATE...

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT

APP. DIV. DOCKET NO. 2017-00638 THE PEOPLE OF THE STATE OF NEW YORK,

Respondent,

-against-

ANDREW KRIVAK,

(Putnam County Ind. No. 39/1996) On Appeal, by Leave Granted, From Denial of CPL §440.10 Motion

. NOTICE OF MOTION FOR

Defendant-Appellant.

LEA VE TO FILE THE ATTACHED PROPOSED BRIEF AS AMICI CURIAE PURSUANT TO NYCRR § 670.11

PLEASE TAKE NOTICE that, upon the annexed affirmation of Eric R. Breslin, dated

April 4, 2018, THE INNOCENCE NETWORK, THE INNOCENCE PROJECT, THE

EXONERATION INITIATIVE and the OFFICE OF THE APPELLATE DEFENDER will move

this Court, at 9:30 a.m. on Friday, April 20, 2018, or a time to be determined by the Court, for

leave to appear as amici curiae and to file the attached proposed brief in support of Defendant-

Appellant Andrew Krivak.

Dated: April 4, 2018 Newark, New Jersey

Eric R. Breslin, Esq. Melissa S. Geller, Esq. Amanda L. Bassen, Esq. Jovalin Dedaj, Esq. E-mail: [email protected] · DUANE MORRIS LLP

A Delaware Limited Liability Partnership One Riverfront Plaza 103 7 Raymond Blvd., Suite 1800 Newark, NJ 07102-5429

To: Clerk of the Court Supreme Court Appellate Division Second Department 45 Monroe Place Brooklyn, New York 11201

Adele Bernhard, Esq. New York Law School Post-Conviction Innocence Clinic 185 West Broadway, E-819 New York, New York 10013

Hon. Robert Tendy By ADA Larry Glasser

Telephone: + 1 973 424 2000 Fax: + 1 973 424 2001

Office of the Putnam County District Attorney County Office Building 40 Gleneida A venue Carmel, NY 10512

Andrew Krivak, DIN#: 97 A4236 Wende Correctional Facility 3040 Wende Road Alden, New York 14004-1187

Andrew Krivak, DIN#: 97 A4236 Elmira Correctional Facility P.O. Box 500 Elmira, New York 14901-0500

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent,

-against-

ANDREW KRIVAK,


APP. DIV. DOCKETNO. 2017-00638

(Putnam County Ind. No. 39/1996) On Appeal, by Leave Granted, From Denial of CPL §440.10 Motion

AFFIRMATION OF ERIC R. BRESLIN IN SUPPORT OF MOTION FOR LEAVE TO FILE THE ATTACHED PROPOSED BRIEF AS AMICI CURIAE PURSUANT TO NYCRR § 670.11

ERIC R. BRESLIN duly affirms under penalties of perjury as follows:

1. I am an attorney at law admitted to practice in the State of New York and a member of

the law firm Duane Morris, LLP, counsel to The Innocence Network, The Innocence Project,

The Exoneration Initiative, and the Office of the Appellate Defender, (collectively the "Proposed

Amici").

2. I am familiar with the facts and circumstances set forth herein and submit this affirmation

in support of a motion by the Proposed Amici, pursuant to NYCRR § 670.11, for leave to file the

proposed brief, submitted herewith, as amici curiae in Defendant-Appellant's appeal from the

denial of his C.P.L. § 440.10 motion.

3. Attached hereto as Exhibit A is a true and correct copy of the following article: Jessica R.

Meyer & N. Dickson Reppucci, Police Practices and Perceptions Regarding Juvenile

Interrogation and Interrogative Suggestibility, 25 Behav. Sci. & L. 757, 770 (2007).

4. We request permission to file the accompanying brief, along with Exhibit A, for the

following reasons:

Statement of Interest of Proposed Amici Curiae

5. The Innocence Network is an affiliate of organizations dedicated to providing pro bono

legal and investigative services to convicted individuals seeking to prove their innocence. The

69 member organizations represent hundreds of people in prison with claims of innocence in all

50 states, the District of Columbia and Puerto Rico, and around the world. The Innocence

Network and its members are also dedicated to improving the accuracy and reliability of the,

criminal justice system, including identifying those who actually committed crimes for which

others were wrongfully convicted. Drawing on the lessons from cases in which the system failed

and convicted innocent persons, the Innocence Network advocates both study and reform

designed to enhance the truth-seeking functions of the criminal justice system to prevent future

wrongful convictions. Because wrongful convictions destroy the lives of the actually innocent

and their loved ones, while allowing the actual perpetrators to remain free, the Innocence

Network's objectives serve as an important check on the awesome power of the state over

criminal defendants while also helping to ensure a safer and more just society.

6. The Innocence Project, a member organization of the Innocence Network, is a nonprofit

legal clinic and resource center created by Barry C. Scheck and Peter J. Neufeld. Founded at the

Benjamin N. Cardozo School of Law in New York in 1992, the Innocence Project provides pro

bono legal services to indigent prisoners. The Innocence Project has a specific focus on

exonerating individuals through the use of DNA evidence. Through the use of DNA testing

pioneered by the Innocence Project, over 350 people in the United States have been exonerated

to date, with the Innocence Project serving as counsel on many of those cases. The Innocence

Project also seeks to prevent future wrongful convictions by researching their causes and

pursuing legislative and administrative reform targeted at enhancing the truth-seeking functions

2

of the criminal justice system, including identifying those who actually committed crimes for

which others were wrongfully convicted.

7. The Exoneration Initiative, also a member organization of the Innocence Network,

provides pro bono legal services to persons wrongfully convicted in New York in cases that lack

DNA evidence. Because fewer than 10% of criminal cases involve DNA evidence available for

testing, the Exoneration Initiative focuses on the other 90+% of cases involving compelling

evidence of actual innocence, including false confessions.

8. The Office of Appellate Defender, New York, is New York City's oldest provider of

appellate representation to indigent persons convicted of felonies. Its Reinvestigation Project,

which reinvestigates cases where there is a high likelihood of wrongful conviction, is also a

member of the Innocence Network. These cases involve convictions based on risky evidence,

including, among other things, false confessions. As one of New York's oldest institutional

indigent defense organizations in New York City, the Office of Appellate Defender has a strong

interest in ensuring that wrongful convictions are overturned on appeal.

9. More than one out of four people wrongfully convicted, but later exonerated by DNA

evidence, made either a false confession or incriminating statement. Thus, the Proposed Amici

have an interest in ensuring that the legal system recognizes the danger of false confessions, and

that it takes proper account of the limitations and weaknesses of relying too heavily on

confession evidence. Submission of the accompanying brief is also consistent with the mission

of the Proposed Amici to prevent future wrongful convictions by improving the truth-seeking

functions of the criminal justice system. Accordingly, the Proposed Amici are particularly well

suited to address the issues surrounding false confessions as presented through Mr. Krivak's

case.

3

10. The accompanying brief by the Proposed Amici raises several issues of critical

importance to the proper administration of justice in the area of false confessions. In particular,

it addresses the importance of the newly-discovered evidence submitted by Mr. Krivak to the

court below on his C.P .L. § 440.10 motion, that is, evidence of third-party guilt, improper police

coercion, and DNA test results from the crime scene, conclusively showing no match to Mr.

Krivak.

11. We submit that this newly discovered evidence necessitates a new trial for Mr. Krivak,

pursuant to C.P.L. § 440.10 (l)(g), particularly in light of the facts surrounding Mr. Krivak's

confession, and the benefit of available research on false confessions, much of which has been

propounded by the Proposed Amici.

12. Because the Proposed Amici believe the brief submitted herewith will be of special

assistance to this Court, we respectfully request that the Proposed Amici be granted leave to

submit the accompanying brief, together with such other and further relief as the Court may

deem to be just and proper.

Dated: Newark, New Jersey April 4, 2018

By:---=---~-------=· h.o.ff----_· ·--..._, _ Eric R. Breslin, Esq. . E-mail:[email protected] Duane Morris LLP

4

A Delaware Limited Liability Partnership One Riverfront Plaza 103 7 Raymond Blvd., Suite 1800 Newark, NJ 07102-5429 Telephone: + 1 973 424 2000 Fax: +1 973 424 2001

EXHIBIT A

Behavioral Sciences and the Law Behav. Sci. Law 25: 757-780 (2007) Published online in Wiley InterScience (www.interscience.wiley.com) DOI: 10.1002/bsl.774

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Police Practices and Perceptions Regarding Juvenile Interrogation and Interrogative Suggestibility

Jessica R. Meyer, Ph.D. *·"I" and N. Dickon Reppucci, Ph.D.+

Recent media coverage has highlighted cases in which young suspects were wrongly convicted because they provided interrogation-induced false confessions. Although youth may be more highly suggestible and easily influenced by authority than adults, police are trained to use the same psychologically coercive and deceptive tactics with youth as with adults. This investigation is the first standard documentation of the reported interrogation practices of law enforcement and police beliefs about the reliability of these techniques and their knowledge of child development. Participants were 332 law enforcement officers who completed surveys about interrogation procedures and developmental issues pertaining to youth. Results indicated that, while police acknowledge some developmental differences between youth and adults, there were indications that (1) how police perceive youth in general and how they perceive and treat them in the interrogation context may be contradictory and (2) their general view is that youth can be dealt with in the same manner as adults. Copyright© 2007 John Wiley & Sons, Ltd.

INTRODUCTION

Obtaining confessions from criminal suspects is a common way in which law enforcement officers incriminate those suspected of committing a crime (Kassin & Gudjonsson, 2004). In a review of the literature on confessions, Kassin and Gudjonsson (2004) report that between 42 and 55% of suspects confess in response to an interrogation. Legal professionals and jurors tend to interpret confessions as

*Correspondence to: Jessica R. Meyer, 102 Gilmer Hall, P. 0. Box 400400, University of Virginia, Charlottesville, VA 22904-4400, U.S.A. twe would like to thank the Baltimore County Police Department, as well as Camille Preston and the Police Executive Research Forum, for their collaborative efforts. We are also grateful to Samantha Harvell for assistance with data collection. +university of Virginia, Charlottesville, VA, U.S.A.

Copyright();";) 2007 John Wiley & Sons, Ltd.

758 J. R. Meyer and N. D. Reppucci

strong, and usually unequivocal, evidence of guilt (Kassin & Sukel, 1997). These statistics vouch for interrogation as a successful method of incriminating guilty criminals, unless instances occur in which innocent suspects provide false confessions that are not recognized by police as flawed. The general assumption is that police do not want to obtain confessions from innocent suspects, and most innocent suspects do not purposefully make self-incriminating statements. However, documented cases exist of false confessions leading to the conviction of innocent suspects. It is difficult to determine precisely how often such faulty convictions transpire because the United States criminal justice system has not developed a standard system for recording instances of wrongful convictions or causes of conviction error. There is no national registry of exonerations and official records do not always indicate whether pardons or dismissals were based on innocence. Some jurisdictions document all identified contributions to wrongful convictions while other jurisdictions only record primary sources of misconviction error. As a result, estimates of the number of wrongful convictions and their causes vary drastically. In 2003 it was determined that approximately 8 percent of inmates on death row in Illinois were innocent (Furman, 2003). In contrast, the vast majority of a sample of judges, attorneys, sheriffs, and police chiefs esti)llated that approximately .1-1 % of U.S. convictions are in error (Huff, Ratner, &' Sagarin, 1996). Estimates of false confessions as the leading cause of error in wrongful convictions range from 14 to 25% (Drizin & Leo, 2004). For example, Scheck, Neufeld, and Dwyer (2000) found that approximately 23% of individuals in the U.S. who were exonerated by DNA evidence provided false confessions before they were wrongfully convicted. Thus, if even the more conservative estimate of occurrences of wrongful convictions (.5 percent, an average of the findings of Huff et al.) is used, of the 2.2 million people incarcerated in the U.S. in 2005, approximately 11,000 are wrongfully convicted, and applying the false confession rate of Scheck et al. of 23% yields more than 2,500 who are likely to have falsely confessed.

Given statistics that verify that false confessions may contribute to wrongful convictions, police interrogators should carefully evaluate the validity of confessions. However, police are trained to use psychologically manipulative interrogation tactics that may elicit unreliable reports from suspects (Gudjonsson, 2003; Kassin, 1997; Leo, 1992), and are not trained about how these tactics sometimes lead the innocent to falsely confess (Drizin & Leo, 2004). Leo (1996) found that, of a wide range of sociological and legal variables, only the use of a higher number of interrogation tactics and greater amount of time spent in interrogations related to a higher likelihood of obtaining confessions, suggesting that the effort and energy expended by law enforcement is one of the most important factors in explaining whether or not a confession is obtained during interrogation.

Most of the assertions that psychologically coercive and manipulative police interrogation tactics are frequently employed. and may lead to false confessions arise from what scholars have gleaned from interrogation training manuals, a few transcripts of interrogation-induced false confessions that have been made available to the public (Drizin & Colgan, 2004), and one researcher's initial examination of 182 actual interrogations, mainly from one police department (Leo, 1996). No effort in the academic community has been made to provide law enforcement with the opportunity to talk about their perceptions of the likelihood of false confessions or the types of interrogation strategy they use and what they believe about their

Copyright (\;) 2007 John Wiley & Sons, Ltd. Behav. Sci. Law 25: 757-780 (2007) DOI: 10.1002/bsl

Juvenile interrogations 759

effectiveness. As one law professor has recently written, "we know little more about actual police interrogation practices than we did at the time of Miranda" (Kamisar, 2003). In order to advance understanding of the interrogation process and its role in the elicitation of false confessions, it is critical that scholars incorporate multi-method designs that consider more than initial examination of training manuals and the limited number of available transcripts/videos. Thus, one goal of the present study is to use the perspectives of law enforcement personnel to provide the first standard documentation of reported interrogation practices and their beliefs about the efficacy of these strategies.

In particular, this project documents the reported interrogation strategies of police officers and their beliefs about the reliability of these techniques used with young suspects (who may be especially vulnerable to the pressures of interrogation and the possibility of false confessions, Drizin & Leo, 2004). In fact, false confession rates appear to be higher in samples of juveniles; in a descriptive study of 328 exoneration cases 44% of the juvenile exonerees falsely confessed compared with 13% of the adults, and among the youngest juveniles (aged 12-15 years) 75% falsely confessed (Gross, Jacoby, Matheson, Montgomery, & Patil, 2005). Research results strongly suggest that youth are more likely to provide unreliable reports (including false confessions) during suggestive questioning than adults (Ceci, 1994; Dunn, 1995; Leo, 1994; Loftus, 1979; Redlich & Goodman, 2003; Richardson, Gudjonsson, & Kelly, 1995). These statistics expose a pressing concern regarding the welfare of youth and raise the question of whether consideration is given to the increased suggestibility of youth and its impact on the reliability of their confessions. While research has begun to address false confessions by adult suspects, occurrences of false confessions by youth have largely been ignored. Thus, in addition to documenting the reported interrogation practices of police, this project aims to document law enforcement beliefs about the differences between youth and adults concerning susceptibility to suggestive questioning and general developmental capacities. Before proceeding to the results of this investigation, we provide background for the project goals by outlining case law related to interrogation procedures with adult and youth suspects, various interrogation practices taught to police and the social science literature relating to the efficacy of such techniques.

Police Interrogation Practices

Case law has attempted to establish protections for citizens during criminal interrogations, yet it only places minimal restrictions on law enforcement officers. The Miranda v. Arizona (1966) decision required police to read suspects their rights when in custodial interrogation and prohibited them from using direct threats, promises, or physical abuse. However, these guidelines do not prevent police from using subtler, more sophisticated tactics, such as trickery, coercion, and deceit (Leo, 1996).

Although the United States Supreme Court has recognized youthful immaturity (Roper v. Simmons, 2005) and vulnerability in psychologically coercive interrogations and dealings with the police (Gallegos v. Colorado, 1962; Haley v. Ohio, 1948; In re Gault, 1967), the justice system has never provided specific instructions or restrictions regarding the handling of youth under 18 in interrogations (Dawson, 1990). Fare v Michael C (1979) required that juvenile waivers of rights should be judged by "totality of circumstances" (whether they are made "knowingly, intelligently, and voluntarily"),

Copyright (g 2007 John Wiley & Sons, Ltd. Behav. Sci. Law 25: 757-780 (2007) DOI: 10.1002/bsl


but these judgments are highly subjective and require determinations by circumstances of cases rather than by application of a specific set of rules.

Since courts have provided few guidelines about acceptable interrogation techniques with youth (Dawson, 1990), police executives have developed training programs to teach officers criminal interviewing skills. In reality, this has meant that police are trained to apply procedures they use with adults to interrogations with youth. In fact, Redlich, Silverman, Chen, and Steiner (2004) interviewed 35 individuals about their interactions with police as suspects (approximately 18 were questioned by police when they were juveniles) and found that police used many of the same interrogation techniques with youth and adults. These strategies are mainly taken from the Reid Technique, developed by Inbau, Reid, Buckley, and Jayne_ (2001), which is the most widely implemented police interrogation training in the United States. Over 300,000 professionals in law enforcement have been trained to use the Reid Technique over the previous three decades (http://www.reid.com/ success_reid/r_success.html). Reid Training associates advertise that "When asked which vendors they rely on most for building their own skills and that of staff, a whopping 80% of security pros cited John E. Reid and Associates" (http:// www.reid.com/r_about.html). It is worth noting that the first author attended a full four-day Reid Interviewing and Interrogation training program, which taught police to incorporate two components into criminal questioning procedures: the Behavioral Analysis Interview and the Interrogation.

Reid Technique: The Behavioral Analysis Interview (BAI)

Inbau et al. (2001) and Reid and Inbau (2000) instruct police to begin all criminal questioning with a BAI to determine whether the interviewee is being truthful or deceptive and whether he/she is the prime suspect in the case. The BAI is a form of behavior symptom analysis used for the detection of deception and typically involves asking the interviewee a set of 15 questions to analyze non-verbal and verbal responses. Deceptive non-verbal behaviors include gaze aversion, unnatural body postures, and self-manipulations such as touching and scratching (Reid & Inbau, 2000). Deceptive verbal behaviors include liberal responses to the question "What should happen to the person who did this?" (e.g., "He/she should be given counseling so he/she does not murder anyone again"), non-contracted denials such as "No I did not", qualifying phrases such as "I swear'', lack of confidence, and delays in response. Unfortunately, as discussed in an empirical review below, many of these verbal and non-verbal behaviors have little discriminant function in the identification of liars versus truth-tellers (Vrij, 2000). Yet, Reid and Inbau (2000) instruct police to analyze the respondent's set of responses for determination of truthfulness or deception. If the respondent is thought to be deceptive, he/she becomes a suspect and police begin the interrogation. This is a critical moment for the suspect, for the interrogation is typically a more adversarial, coercive procedure in which police are instructed to be relentless in their pursuit of a confession.

Reid Technique: The Interrogation

Once the interrogation begins, police are instructed to use coercive and deceptive techniques to obtain a confession (Reid & Inbau, 2000) by presenting false evidence,

Copyright (Q 2007 John Wiley & Sons, Ltd. Behav. Sci. Law 25; 757-780 (2007) DOI: 10.1002/bsl

Juvenile interrogations 7 61

preventing the suspect from speaking unless he/she is making a confession, tricking the suspect into a confession by offering an understanding and sympathetic attitude, and minimizing the moral seriousness of the crime. Police are also taught to "repeat, repeat, repeat" (Reid & Inbau, 2000, p. 60). Although police are not encouraged to engage in extensive interviewing for legal purposes, Reid and Inbau (2000) suggest that time is not limited and sometimes it is appropriate to wear the suspect down. In fact, an examination of proven false confession cases in which length of interrogation was available revealed that the mean duration was 16.3 hours (Drizin & Leo, 2004). Leading and suggestive questioning are also taught as a means to fabricate stories of how and why the crime may have happened. Reid and Inbau (2000) teach police, "do not ask for reasons, suggest them" (p. 60). They also teach interviewers to condition the suspect to respond in the affirmative before they ask for a confession, by asking repeated questions the suspect will agree with, such as "You've been cooperative?". In addition, police are instructed to use trickery by asking alternative questions with two choices where either choice is an admission of guilt, such as "Did he attack you, or did you become angry first?" (Reid & Inbau, 2000, p. 73).

Reid Technique: Application to Juveniles

During the four-day, 32-hour training that the first author attended, the Reid instructors almost exclusively focused on the use of such techniques with adult suspects. Only 10 minutes of instruction were dedicated to youth and this was to advocate the use of the same strategies with youth as with adults. Police were taught that the "principles discussed with respect to adult suspects are just as applicable for use with the young ones" (Inbau et al., 2001, p. 298). Such instruction even included encouragement of the use of adult language with youth. In addition, the Reid instructors never discussed developmental issues that may affect the reliability of deceptive and coercive interrogation techniques used with youth.

Police Manuals

Although the Reid Technique is the most popular interrogation training, less common educational provisions similarly neglect to provide guidelines for handling youth. The Police Juvenile Procedures Manual, sponsored by the Office of Juvenile Justice and Delinquency Prevention (1983), does not specify interrogation procedures for youth beyond directions for how to provide Miranda warnings. The American Police Chiefs, Sheriffs and Command Officers !vianual and Directory (Arenberg & Hosford, 1981) provides minimal instructions for handling youth interrogations and encourages the use of coercion and behavioral analysis for the detection of deception.

Reliability of Interviewing and Interrogation Tactics

A small amount of police literature, primarily published by Reid and Associates, suggests that police interviewing and interrogation tactics are effective in

Copyright <g 2007 John Wiley & Sons, Ltd. Behav. Sci. Law 25: 757-780 (2007) DOI: 10.1002/bsl


incriminating guilty suspects (http://www.reid.com/success_reid/r_success .html). However, a vast amount of social science literature indicates these tactics may not be appropriate, especially for use with young suspects (for a review see Kassin & Gudjonsson, 2004). The main concerns are (1) the influence of adult language, confusing questioning and trickery on the ability of young suspects to comprehend police questioning and thus respond reliably, (2) the fallibility. of deception detection using the behavior of young suspects, and (3) the influence of suggestive, leading, and repeated questioning on the reliability of reports from young suspects.

Comprehension Literature

Research has demonstrated that questions which include multiple parts, negatives, double negatives, and difficult vocabulary often lead to inaccurate reports by minors of all ages (Perry et al., 1995; Saywitz, Jaenicke, & Camparo, 1990; Walker, 1994). In an examination of developmental differences in individual's conceptualizations of the judicial system, adolescents aged 13-18 who understood basic legal terminology still had difficulty understanding more technical legal concepts and terminology (Warren-Leubecker, Tate, Hinton, & Ozbek, 1989). Children under 10 years of age had difficulty understanding common legal terms (Saywitz et al., 1990) and juveniles under 14 years of age could not meet the standards for adequate comprehension of their Miranda rights that are required of adults (Grisso, 1981). The alternative questioning tactic (asking two questions in a choice-format, where an affirmative answer to either is indicative of guilt) is also problematic when used with young suspects, given that children are likely to choose between the forced-choice answers presented by police even when none are correct (Lyon, 1999). The results of these studies raise questions as to whether young children and adolescents can be expected to comprehend and reliably respond to police questioning.

Deception Literature

According to Reid and Associates, investigators trained in their Behavior Analysis Interview (BAI) can distinguish truth and deception at an 85% level of accuracy (http://www.reid.com/services/r_behavior.htrnl). Research by others of police officers and control groups of individuals who observe interviews and make decisions about the truthfulness of the interviewee has generally failed to support this claim (DePaulo & Pfeifer, 1986; Kassin, Meissner, & Norwick, 2005; Meissner & Kassin, 2002), and even suggests that "typical" deceptive behavior does not exist (Vrij, 2001). Numerous studies have shown the police accuracy rate to be between 45 and 60% (Vrij, 2001), and over 40 studies have shown that, in comparison to police officers, college students have a similar or higher accuracy rate when detecting deceit (DePaulo & Pfeifer, 1986; Kassin & Fong, 1999; Kassin et al., 2005; for a complete review see Kassin & Gudjonsson, 2004, and Vrij, 2000). Even more discouraging are research results that training police and college students in the Reid Technique actually decreases their accuracy in detection deception (Kassin & Fong, 1999; Meissner & Kassin, 2002). ·

Copyright (g) 2007 John Wiley & Sons, Ltd. Behav. Sci. Law 25: 757-780 (2007) DOI: 10.1002/bsl


In regard to the specific indicators of deception that Reid and Inbau (2000) identify, research generally fails to support the discriminative function of these behaviors in the identification ofliars versus truth-tellers. For example, gaze aversion has not been found to be a reliable indicator of deception (deTurk, 1991; Vrij, 2000; Vrij, Edward, Roberts, & Bull, 2000). Similarly, identification of response latency and pauses fails to improve accuracy in detection of deception (de Turk, 1991). Body movements such as hand gestures, foot and leg movements, and manipulations such as scratching body parts are generally of little value in reliably detecting deception (deTurk, 1991; Vrij et al., 2000).

Behavioral symptom analysis may be particularly inaccurate with young suspects. Although no literature has examined the accuracy of deception detection in youth, it appears that youth in general demonstrate many of the behaviors that Reid and Inbau (2000) label deceptive. First, it is likely that children and adolescents slouch more in their seats; medical scholars have widely accepted that youth slouch more than adults (http://www-nrd.nhtsa.dot.gov/pdf/nrd-50/ciren/networkreport/ CNMC.pdf) and research has indicated that elements of postural control are still developing after 10 years of age (Nolan, Grigorenko, & Thorstensson, 2005). Second, children of various ages make less eye contact than adults (Ashear & Snortum, 1971; Levine & Sutton-Smith, 1973); yet, Reid andlnbau (2000) consider lack of eye contact to be a deceptive behavior independent of age. Third, it is likely that youth demonstrate more delays in response if interrogators use legal language that is difficult for them to comprehend. Indeed, response latency is a reliable measure of comprehension difficulties in children (Roberts, 1983).

Suggestibility and Psychosocial Immaturity Literature

Social scientists indicate that many of the Reid techniques may affect the reliability of youth's reports. Evidence suggests that children are more suggestible than adults, may easily be influenced by questioning from authority figures, and may provide inaccurate reports when questioned in a leading, repeated, and suggestive fashion (Ceci, 1994; Ceci & Bruck, 1993; Dunn, 1995; Loftus, 1979). Most of these suggestibility studies have been designed because of the concern over false reports of abuse by children; thus, results of suggestibility studies of children in investigative contexts cannot be directly extended to juveniles in interrogative contexts (Owen-Kostelnik, Reppucci, & Meyer, 2006). Forensic interviews involving potential child victims, in contrast to interrogations of child suspects, (a) do not involve children being accused of wrongdoing, (b) primarily involve children being interviewed about the actions of third parties, (c) do not involve an adversarial relationship with the interviewer/interrogator (although not all interrogations, especially pre-interrogation BAis, are adversarial in nature, and children may be more likely to be swayed when questioned by figures of authority like police, Tobey and Goodman, 1992), (d) do not involve a Miranda reading, and (e) typically involve younger children (although the age at which juveniles are being interrogated is becoming younger and younger; Feld, 1999). However, specifically in regard to age, Bruck and Ced (2004) argue that new research is revealing that older children and adolescents are also suggestible. For example, studies have failed to find differences between younger and older children (Bruck & London, 2003), and in

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some cases older children were more suggestible than younger children (Finnila, Mahlberga, Santtilaa, & Niemib, 2003; Zaragoza, Payment, Kichler, Stines, & Drivdahl, 2001).,

Given the differences between forensic interviews of child victims and interrogations of suspects, it is also important to consider the suggestibility literature specifically involving the interrogative process. For example, other research indicates that juvenile suspects are more vulnerable than adult suspects to interrogative pressure. Specifically, interrogative suggestibility, defined as "the tendency of an individual's account of events to be altered by misleading information and interpersonal pressure within interviews" (Singh & Gudjonsson, 1992, p. 155), is negatively related to age, and positively related to likelihood of false confession (Gudjonsson, 2003). Psychologically coercive strategies that conui.bute to interrogative suggestibility play on young suspects' eagerness to please (Gudjonsson, 2003; Ofshe, 1989), firm trust of people in authority (Ofshe, 1989), lack of self-confidence (Ofshe, 1989), increased desire to protect friends/relatives and to impress peers, and increased desire to leave the interrogation sooner (Ceci & Bruck, 1993; Drizin & Leo, 2004; Grisso, 1981; Gudjonsson, 2003; Hall, 1980; Sigurdsson & Gudjonsson, 1994). Many of these reactions may be a result of diminished developmental capacities (Fried & Reppucci, 2001; Scott, Reppucci, & Woolard, 1995) or diminished psychosocial maturity (responsibility, perspective-taking abilities, and temperance) (Steinberg & Cauffman, 1996). Many diminished developmental capacities of youth were recently recognized by the United States Supreme Court in Roper v. Simmons (2005), whereby the Supreme Court forbad the execution of offenders who were under the age of 18 when their crimes were committed. The Supreme Court characterized these developmental differences as "susceptibility to immature and irresponsible behavior" (p. 2) and "vulnerability and comparative lack of control over their immediate surroundings" (p. 2).

Interrogation tactics that fail to consider youthful interrogative suggestibility and psychosocial immaturity, and thus decrease the reliability of young suspects' reports, include presentation of false evidence and minimization tactics (minimizing the seriousness of the crime) (Kassin, 1997; Redlich & Goodman, 2003; Russano, .Nleissner, Narchet, & Kassin, 2005), and repeated and leading questioning by unfamiliar authority figures (Ceci, 1994; Ceci & Bruck, 1993; Dunn, 1995; Leo, 1994; Quas, Schaaf, Alexander, & Goodman, 2000; Tobey & Goodman, 1992). For instance, Tobey and Goodman (1992) found that when children were questioned by either a neutral interviewer or a police officer, the children in the police condition gave fewer accurate statements and more inaccurate statements than children in the neutral condition. Likewise, although the stereotypic rebellious adolescent might not be associated with an increased tendency to comply with authority, within the legal context, adolescent suspects often demonstrate such a tendency (Grisso et al., 2003).

A review of individual differences and suggestibility (Bruck & Melnyk, 2004) indicates that the factors that heighten the risk of false confessions from youth could be exacerbated amongst minorities from low SES backgrounds who, according to demographic statistics on arrest rates (Walker, 2004), are more likely than other people to be suspected of committing a crime. Specifically, children from lower SES backgrounds are more suggestible than children from higher SES backgrounds, and after accounting for SES African-American children are more suggestible than

Copyright (<) 2007 John Wiley & Sons, Ltd. Behav. Sci. Law 25: 757-780 (2007) DOI: 10.1002/bsl


Caucasian children. Similarly, Richardson et al. (1995) suggests that adolescent suspects with lower intellectual abilities are more suggestible.

The Current Study

Many of the social science findings contraindicate what Reid instructors teach law enforcement officers. As such, it is crucial to understand what law enforcement officers actually believe about the complex network of factors affecting the validity of youthful confessions, as well as what interrogation strategies they reportedly use with youth suspects. As discussed above, Leo's (1996) initial examination of 182 interrogations suggests that police use psychologically coercive interrogation techniques that are "Reid-like", although Leo did not report the effect of suspect age on the use of techniques. It is not expected that strategy use would depend on suspect age, given that police training manuals do not mention the diminished developmental capacities of youth and how these limited capacities may affect the reliability of their reports, nor do they advocate for the use of different interrogation tactics with youth and adults (Inbau ei al., 2001). Likewise, preliminary retrospective data from a small sample of criminal suspects suggests that police use the same interrogation techniques with youth and adults (Redlich et al., 2004). Thus, the main hypotheses were that police would (1) lack accurate knowledge about child development and how diminished developmental capacities (i.e., suggestibility, psychosocial immaturity, and impaired comprehension) may affect the reliability of confessions by youth, (2) lack knowledge about empirical studies that demonstrate the unreliability of Reid techniques with suspects of all ages, and (3) indicate use of similar psychologically coercive and deceptive interrogation practices with youth and adults.

METHOD

Participants

Participants were 332 law enforcement officers from the Baltimore County Police Department. Of the 332 respondents (some of whom did not answer demographic questions), 83.7% were male, 9.3% were female, and 7% did not provide the information. The racial mixture was 79.8% White, 5.4% Black, 1.2% Hispanic, .6% Asian-American, and 1.2% other. Approximately 60.5% reported having a child/ children. The average age was 35 years, the average years of experience in law enforcement was 11 years, and the predominant educational level of the officers was a bachelor's degree (40.7%). The police represented a range of ranks and responsibilities: 67.8% were officers, 13.9% were investigators, 11.7% were other ranks, and 6.6% did not provide information. Approximately 84% had used criminal interviewing procedures with suspects within the previous year.

Materials

To document the belief systems and reported interrogation practices of police, two survey instruments were developed: (1) police interrogation· and (2) developmental

Copyright © 2007 John Wiley & Sons, Ltd. Behav. Sci. Law 25: 757-780 (2007) DOI: 10.1002/bsl


knowledge. Both survey instruments were specifically designed for the current study because no historical data collection instruments were available. Survey constructs were identified and defined by (a) a thorough review of the literature on child development and suggestibility (Ceci & Bruck, 1993), the literature on psychological issues in police interrogation (Gudjonsson, 2003; Kassin, 1997), and police interrogation manuals (Inbau et al., 2001) as well as (b) qualitative observation of videotapes of actual interrogations, obtained from a local police department. Next, the survey items were constructed from consultation with a national police research organization. Finally, several interviews were conducted with focus groups of police familiar with the constructs in the interrogation survey. These groups were administered pilot versions of the surveys and asked to provide feedback about the clarity and relevance of the items to the constructs the authors intended to measure. Based on feedback from the focus groups, survey revisions were made.

Police Interrogation Survey (PIS)

The PIS consisted of 9 demographic questions and 49 interrogation questions designed to document police (a) reported use of interrogation practices and (b) beliefs concerning interrogation procedures that affect the reliability of reports and confessions. The majority of the PIS was comprised of statements that participants rated on a six-point Likert response scale, ranging from "strongly disagree" to "strongly agree". The remainder of the questions asked participants to provide percentages indicating how often they believed certain events occurred. The PIS took approximately 12 minutes to complete.

Police received one of three versions of the PIS, which contained the same questions about interrogation concerning either (1) children under 14 years of age, (2) youth ages 14-17 years, or (3) adults 18 years and older. Questions about young suspects were separated into two surveys (children and youth) because research suggests that developmental differences (relevant to interviewing in legal contexts) exist between those 13 years and younger and those 14-17 years (Grisso, 1981; Scott et al., 1995).

Developmental Knowledge Survey (DRS)

The survey consisted of 20 questions designed to assess participants' general developmental knowledge concerning youth and adults. Survey items included developmental issues that may relate to interrogation practices, e.g. gaze aversion and slouching posture. Participants indicated the extent to which they agreed or disagreed with each statement using a six-point Likert-type scale, circling "l" if they strongly disagreed and "6" if they strongly agreed. The DKS took approximately 4 minutes to complete.

Participants received one of two versions of the DKS, which contained the same questions concerning either developmental differences between (1) children (under 14 years of age) and adults or (2) youth (ages 14 to 17 years) and adults. Participants who received the child PIS received the child DKS. Participants who received the youth PIS received the youth DKS. Participants who received the adult PIS received either the child or youth DKS.

Copyright ({] 2007 John Wiley & Sons, Ltd. Behav. Sci. Law 25: 757-780 (2007) DOI: 10.1002/bsl


Design and Procedure

The researchers established collaboration with a police research organization and a large metropolitan county police department. The researchers then met with the chief of the police agency to obtain consent for the project. The first author visited each of 11 precincts of the police agency to distribute the surveys. She attended each of the precincts' roll calls and investigative units to recruit participants and provide explanation and rationale for the project. All participants were assured that their responses would be confidential, their participation was voluntary, and no demographic information would be associated with any specific person. Each participant signed a consent form before completing the survey, which was collected separately to ensure confidentiality.

Each police participant received a manila envelope with one of the four versions of the surveys: (1) child PIS and childDKS, (2) youth PIS and youth DKS, (3) adult PIS and child DKS, or (4) adult PIS and child DKS. The two surveys were stapled together and the order was counterbalanced such that half of the participants received the DKS before the PIS and half received the PIS before the DKS. Of the 342 law enforcement officers invited to participate, 332 agreed to complete the surveys. The high response rate was likely due to the support of a police research organization that is highly regarded by the law enforcement community, obtaining participation in person rather than through mailings of the surveys, and meeting with police in small groups to address their questions and concerns about the research.

RESULTS

Preliminary Analyses

Principal axis factoring was conducted separately on each of the two surveys to confirm the number of factors that provided the best fit to Likert-scale data; the factors were rotated using Promax rotation. Four factors were confirmed for the PIS; two factors were confirmed for the DKS, but the DKS factor solution was not used because there was no interpretable meaning to the mathematically possible factors. Results regarding three interrogation factors are discussed (the fourth factor involved filler questions regarding rapport building, which were not relevant for the current paper): (1) suspects' comprehension of their rights and the intent of a police interview (Cronbach a= .84), (2) police ability to adequately detect deception (Cronbach a= .76), and (3) the suggestibility of suspects during questioning (Cronbach a= .63). Table 1 presents items in these factors and the factor loadings. (Given that the factor loadings of the fourth item in each of the three factors were low, parallel analyses were conducted with three-item and four-item factors and no differences were found; Cronbach alpha coefficients did not increase with the removal of the fourth item from the scales. Thus, the four-item factors were used for analyses.) Factor means are presented in Table 2.

Preliminary t-tests indicated that there were few order effects regarding which survey was completed first. Police who completed the PIS before the DKS more strongly agreed that youth understood their rights and the intent of a police interview. Similarly, on 3 of the 20 DKS items, police who completed the DKS



Table 1. Factor Loadings of Interrogation Survey (PIS) Items

Item Factor Factor Factor Factor 1 2 3 4

Factor 1: Comprehension of rights and intent to a police interview Children understand their right to an attorney .90 .19 .10 .13 Children understand their right to remain silent .82 .10 .09 .10 Miranda rights are well understood by children .85 .28 .11 .14 Children understand the intent of a police interview .52 .30 .14 .10

Factor 2: Deteciion of deception Only guilty children react with discomfort to questions .15 .83 .03 .09 Only guilty children react defensively to questions .23 .80 .15 .06 Only innocent children cooperative during interviewing .02 .60 .04 .07 Only innocent children produce direct responses to questions .17 .45 .10 .13

Factor 3: Suggestibility of suspecu The reports of events given by children are more susceptible .02 .08 .68 .06

to suggestion by interviewers than are those given by adults Children are more likely to confess to crimes they did not .12 .03 .64 .02

commit than adults Compared to adults, children are more easily influenced by .16 .10 .54 .08

trickery during intervie~;ng Children incorporate elements of stories told by police into .13 .01 .45 .12

their own reports when they are interviewed for more than a couple of hours

Note: The term "children" is used, although "youth" or "adults" were also used depending on the version of the survey.

before the PIS more strongly agreed that children/youth demonstrate psychosocial immaturity. Although the vast majority of the sample had been involved in criminal interviewing procedures, investigators are usually involved in more frequent and more serious (felony-related) interrogations; thus, we analyzed the data as a function of rank; these produced a few differences in responses, which are discussed below.

Preliminary correlations and t-tests were conducted to look for relationships between (a) each of the factors and remaining items from the PIS as well as items from the DKS and (b) participants' demographic characteristics. Participants' ethnicity, gender, age, level of education, and whether or not they had children were not related to any DKS or PIS items/factors. Participants' rank and years of work experience were related to a few PIS factors/items (direction of relationship will be discussed below) and were included as covariates in subsequent analyses.

Table 2. Means and Standard Deviations of Interrogation Survey (PIS) Factors

Factor

Comprehension M (SD) Detection of Deception M (SD) Suggestibility M (SD)

Police-Child

3.57 (.93)" 2.66 (.76) 3.52 (.67)

Police-Youth

4.30 (.80)b 2.75 (.81) 3.37 (.75)

Police-Adult

4.30 (.99)b 2.79 (.87)

Note: "1" =strongly disagree; "2" =disagree; "3" =slightly disagree; "4" =slightly agree; "5" =agree; "6" =strongly agree. •=significant difference. b = significant difference.

Copyright (Q) 2007 John Wiley & Sons, Ltd. Behav. Sci. Law 25: 757-780 (2007) DOI: 10.1002/bsl


Chi-square tests were performed on the items in the PIS practice checklist, to examine differences in the percentage of endorsement of techniques across survey version (child, youth, adult). One-way analysis of variance procedures (ANOVAs) were performed on each of the PIS factors and remaining percentage items from the PIS; when categorical demographics were related to PIS factors or items, univariate general linear models (GLM) two-way between subject designs were performed to covary out the related demographic/s, and when continuous demographics were related to PIS factors/items one-way analysis of covariance procedures (ANCOVAs) were used. A single independent variable, type of survey, was included, with three levels for the PIS (child, youth, and adult version). Tukey's Studentized range HSD follow-up tests were performed. Independent-sample t-tests were performed on DKS items, with two levels for the type of survey (child and youth version). In DKS analyses, Bonferroni corrections were used to correct for the possibility of Type I errors. The responses of police are discussed with reference to the mean values and standard deviations displayed in Table 2 (PIS) and Table 4 below (DKS). The response of" l" indicates strong disagreement with the statement and the response of "6" indicates strong agreement with the statement. Only statistically significant effects are reported. No interactions between survey version and demographics were found.

Police Interrogation Survey (PIS)

Knowledge/beliefs about reliability of techniques

Factor 1: Comprehension. This factor included four statements regarding the suspect's ability to comprehend his/her Niiranda rights and the intent attributed to a police interrogation (see Table 1). As seen in Table 2, police slightly agreed that children, youth, and adult suspects understand their rights and the intent of an interrogation. Interestingly, when rank was considered, investigators (M = 4.55, SD= .83) more strongly agreed that suspects understand rights and interrogation than officers (M = 3.99, SD= 1.00) did, F(5, 289) = 2.59, p < .05, 71 2 = .05. After adjusting for rank, responses differed across survey versions, F(2, 289) = 5.29, p < .01, 71 2 = .04. Post hoc tests indicated that police agreed more strongly about youth (M = 4.30, SD= .80) and adults (M = 4.30, SD=. 99) as compared with children (M = 3.57, SD= .93).

Factor 2: Detection of deception. This factor included four statements regarding whether or not innocent or guilty suspects respond in specific manners during interrogation (see Table 1). Police slightly disagreed with the idea that suspects behave in certain ways if they are guilty or innocent. No significant differences among survey versions were found on this factor, F(2, 322) = .67, p = .51, 712 = .00.

Detection of deception percentage questions. There were three questions included in the PIS that asked participants to provide the percentage of time they believe police can reliably detect deception. The items asked how often police can reliably detect deception by watching eye movements, listening to speech patterns, and observing body language. On average, police indicated accuracy at detecting deception with

Copyright <g 2007 John Wiley & Sons, Ltd. Behav. Sci. Law 25: 757-780 (2007) DOI: 10.1002/bsl


these techniques 53.7% (SD= 21.34%), 50.3% (SD= 20.01 %), and 59.5% (SD= 20.04%) of the time, respectively (there were no differences among survey versions on any of the three items: F(2, 328) = .61, p = .54, 1J2 = .00; F(2, 328) = .24, p= .79, 1]

2 = .00; and F(2, 328) = .38, P= .69, 1]2 = .00).

Factor 3: Suggestibility. This factor included four statements concerning the susceptibility of suspects to suggestion during interrogation (see Table 1) and was examined as a function of two survey versions (child and youth), because unlike previous items the suggestibility items were comparison statements between children or youth and adults. Police slightly disagreed/remained fairly neutral in regard to youth and child suspects' susceptibility to suggestion, respectively, although these differences were not significantly different, t(320) = 1. 92, p = .06. Investigators (M = 3.11, SD=. 79) were less likely to acknowledge young suspects' susceptibility to suggestion than officers (M = 3.52, SD= .68) were, F(5, 299) = 2.76, p < .05, 1]

2 =.05.

Suggestibility percentage questions. There were questions included in the PIS that asked participants to provide the percentage of time they believe inaccurate reports and false confessions occur during interrogation. (The distributions of these variables are skewed; thus, medians and modes are presented with the means.) The first set of three statements asked police to identify the percentage of time they believed the techniques of repeated questioning, leading questioning, and presenting false evidence lead to confusion of memories, inaccurate reports, or inaccurate beliefs of guilt, respectively. Overall, police indicated that these techniques may lead to inaccurate memories, reports, or beliefs by suspects the following percentage of time: repeated questioning confuses memories, median= 40%, mode= 30% (M = 40.57%, SD= 22.56%); leading results in inaccurate reports, median= 20%, mode= 10% (M = 26.98%, SD= 22.23%); false evidence convinces innocents they are guilty, median=10%, mode=0% (M=l9.64%, SD=21.64%). After controlling for rank and experience, there were no significant differences among PIS versions on any of these items, F(2, 304) = .01, p= .99, 1]

2 = .00, F(2, 298) = .86, p = .43, r/ = .01, and F(2, 299) = .11, p = .90, 1]

2 = .00, respectively. Police with more experience indicated that they believed that leading questions

cause inaccurate statements from suspects, and false evidence convinces suspects they are guilty, less often than police with less experience, F(l, 296) = 6.89, p < .01, 1]

2 = .02 and F(l, 297) = 14.89, p < .001, 1]2 = .05, respectively. Similarly, ran\' was

related to these three items, F(5, 304) = 4.14, p < .001, 1]2 = .07, F(5, 298) = 3.10,

p < .01, 1]2 = .05, and F(5, 299) = 5.00, p = .00, 11 2 = .08, respectively. Specifically,

detectives indicated less acknowledgement that these techniques may lead to errors than officers did (repeated questioning confuses memories, detectives M = 29.35%, SD=22.75%, officers M=43.18%, SD=22.56%; leading questions result in inaccurate reports, detectives M=l7.04%, SD=21.19%, officers M=29.66%, SD= 22.20%; false evidence convinces innocents they are guilty, detectives M = 7.47%, SD= 14.94%, officers M = 23.40%, SD= 22.47%).

A final question asked participants to provide the percentage of time police elicit false confessions from innocent suspects. Participants felt that police elicit false confessions 10% of the time (median and mode) (M = 12.80%, SD= 14%), with no significant differences among age groups of suspects, F(2, 294) = .13, p= .88,

Copyright (Ql 2007 John Wiley & Sons, Ltd. Behav. Sci. Law 25: 757-780 (2007) DOI: 10.1002/bsl


17 2 = .00 after controlling for relevant demographics. More experienced police believed there was less of a chance of obtaining false confessions than less experienced police, F(l, 293) = 4.04, p < .05, 172 = .01, and investigators (M = 6.02%, SD= 7.09%) indicated belief in a significantly lower likelihood of obtaining false confessions than officers (M = 14.53%, SD= 15.42%) did, F(5, 294) = 2.22, p < .05, r,2 = .04.

Reported use of Interrogation Practices·

Using a checklist format, police were asked to indicate whether or not they had used certain techniques during interrogations in the previous year. The percentage of police who indicated use of each interrogation strategy is indicated in Table 3. If police had not interrogated suspects in the previous year (approximately 16% of sample), they were asked to indicate what techniques they would have used if they had interrogated suspects. There were no differences in the percentage of police who used various techniques according to whether or not they had interrogated suspects· in the previous year. There were no significant differences among survey versions in responses to any of the interrogation practices, indicating that police use the same techniques with young children, older youth, and adult suspects. Depending on the particular technique, 17-87% of the police indicated that they use various Reid techniques.

In addition, two statements more directly asked police whether the same interrogation techniques are or should be used with juvenile and adult suspects. The results of these statements support the findings from the interrogation check-list format: when asked to respond to Llkert-type statements, police slightly agreed that the same techniques are or should be used with youth and adults (M = 3.87, SD= 1.15, and M=3.77, SD= 1.11, respectively).

Interrogation Training

Approximately 33% of police indicated that there was a need for more structured police training regarding the interrogation of youth.

Table 3. Percentage of.Police Who Reported Use of Reid Interrogation Practices

Deception detection from body language Asking questions repeatedly Minimizing seriousness of the crime Using deceit Presenting false evidence Heightening the suspect's anxiety level Discouraging suspect from making denials Asking tWO incriminating questions, such that a positive response to either would indicate guilt Tricking the suspect

Copyright © 2007 John Wiley & Sons, Ltd.

Child Suspects%

84.3 52.9 58.8 45.l 35.3 29.4 37.3 27.5

23.5

Youth Adult Suspects% Suspects%

78.6 86.7 51.4 60.l 44.3 58.7 34.3 42.7 30 25.9 25.7 28 30 25.9 17.1 19.6

20 21.7

Behav. Sci. Law 25: 757-780 (2007) DOI: 10.1002/bsl


Table 4. Means and Standard Deviations for Items in the Developmental Knowledge Survey (DKS)

Police-Child Police-Youth

Comprehension Children/youth do not understand the meaning of 4.5 (.99) 4.38 (.90) some words that adults understand.

Body Language Male children/youth have a need to present a 4.06 (1.01). 4.59 (.90)b cc-macho" image. Children/youth make eye contact with others 2.80 (!) 2.69 (.96) more frequently than adults.

4.08 (l.08)b Children/youth sit with slouched body postures 3.82 (1.09)" more often than adults.

Suggestibility and Psychosocial Immaturity Children/youth are intimidated by adult 3.98 (1.07)" 3.41 (1.l)b autl1ority figures. Children/youth are more easily influenced by 4.7 (l)" 4.94 (.92)b their peers than adults. Compared to adults, children/youth are more 4.55 (1.07) 4.38 (1.14) concerned with immediate outcomes than with future outcomes. Children/youth are frequently unaware of long-term 4. 72 (1) 4.74 (.97) consequences of their actions.

4.55 (.94)b Children/youth are more impulsive than adults. 4.21 (1.08)" Adults use better judgment than children/youth. 3.8 (1.12) 3.7 (1.16) Children/youth are more competent in their 2.52 (.82) 2.49 (.74) decision-making than adults.

Note: "l" =strongly disagree; "2" =disagree; "3" =slightly disagree; "4" =slightly agree; "5" =agree; "6" =strongly agree. • = significant difference. b = significant difference.

Developmental Knowledge Survey (DKS)

Individual items in the DKS versions about children and youth in comparison to adults were examined by independent-sample t-tests. Since the factor analysis was not interpretable, items are grouped together under related topics for purposes of clarity (refer to Table 4 for items and mean item differences discussed below).

Comprehension

One statement pertained to children's and youth's ability to comprehend adult language. Police agreed that there are some words that adults comprehend that youth and children do not understand, and there were no differences across survey versions, t(317) = 1.16, p = .25.

Body Language

Three statements asked police their beliefs about typical body language of children and youth. Police slightly agreed that male children and youth have a need to present a "macho" image. A significant effect across survey versions was observed on this item, t(321) = 4.96, p < .001, such that police agreed more strongly about youth



than children. In another statement, police disagreed that children and youth tend to make eye contact with others more often than adults, with no differences across survey versions, t(312) = 1.01, p = .32. On a third statement, police slightly agreed that children and youth sit with slouched body postures more often than adults, and they agreed more strongly with the statement about youth than children, t(313) = 2.13, p < .05.

Suggestibility and Psychosocial Immaturity

Seven statements addressed the suggestibility and psychosocial maturity of youth. On four of the seven items, there were no differences across survey versions. Police agreed that children are intimidated by adult authority figures but slightly disagreed about youth, t(310) = 4.64, p < .001. In another statement, police agreed that children and youth are more easily influenced by their peers than adults are, yet police agreed more strongly with this statement about youth than about children, t(312) = 2.26, p < .05. Police agreed that, compared with adults, children and youth are more concerned with immediate than with future outcomes, with no differences across survey versions, t(319) = 1.34, p = .18. Police also agreed that both children and youth are frequently unaware of the long-term consequences of their actions, with no differences across survey versions, t(318) = .14, p = .89. In addition, police agreed that children and youth are more impulsive than adults, although police agreed more strongly about youth than about children, t(311) = 2.93, p < .01. Finally, police slightly agreed that adults use better judgment than youth and children, t(313) = . 7 6, p = .45 and disagreed that children and youth are more competent than adults in their decision-making, with no differences across survey versions, t(317) = .39, p = .70.

DISCUSSION

Our purpose was to document the belief systems and reported interrogation practices of 332 law enforcement officers on surveys regarding (1) interrogation (PIS) and (2) children's capacities (DKS). Analyses revealed that, while police understand some issues related to child development, they do not seem to apply this fundamental developmental knowledge to the interrogation context. Moreover, many police officers use Reid interrogation techniques including psychological coercion, trickery, and deceit, and they use the same techniques with children, youth, and adult suspects. The following summarizes our findings and discusses their relevance and implication.

Comprehension

When asked about youth comprehension outside of the interrogation context, police agreed that children and youth do not understand some words that adults use and made no distinctions between the two age groups. However, when asked about the comprehension abilities of suspects in interrogation, police indicated that suspects of

Copyright <0 2007 John Wiley & Sons, Ltd. Behav. Sci. Law 25: 757-780 (2007) DOI: 10.1002/bsl


all ages understand their rights and intent of interrogations. Although police agreed less strongly that young children comprehend these elements of an interrogation, police believed that older youth demonstrated comprehension abilities similar to those of adults. Therefore, police officers appear to understand that children under 14 years of age have less ability to comprehend their rights and the intent of a police interview than older youth and adults, but they still slightly agreed that children under 14 years understood these elements of an interrogation. These results suggest that police may lack awareness about young children's difficulty understanding common legal terms (Perry et al., 1995; Saywitz et al., 1990) and both young children's and older youth's inability to meet the standards for adequate comprehension of their Miranda rights (Grisso, 1981).

In summary, police acknowledge some developmental age differences concerning comprehension abilities, but fail to apply this knowledge to the interrogation context. Indeed, a fair number of police (21.4%) endorsed usage of verbally tricky, forced choice questions where either choice incriminates the suspect, without discrimination of the age of the suspect, indicating little knowledge or application of Lyon's (1999) finding that children are likely to choose between the forced-choice answers presented by police even when none are correct.

Detection of Deception

Overall, police demonstrated some knowledge about typical behaviors of youth and the fallibility of deception detection with suspects of all ages, yet they failed to apply this developmental knowledge to their practices and continue to use unreliable behavioral analysis techniques in interrogation. Police agree that "typical" deceptive behavior does not exist (Vrij, 2001), and believe they are only accurate about 55% of the time they used behavioral analysis to detect deception. These results are concordant with social science findings that police are no more accurate at detecting deception than chance alone (DePaulo & Pfeifer, 1986; Meissner & Kassin, 2002; Vrij, 2001). Clearly, police beliefs fail to support Reid associates' claims that police can distinguish truth and deception at an 85% level of accuracy (http:// www.reid.com/ services/r_behavior .html).

Police officers acknowledged presence of typical developmental behaviors among children and youth outside of the interrogation context. For example, police disagreed that children/youth make more eye contact than adults and agreed that children/youth tend to sit with slouched body posture more often than adults. This suggests that police recognize behavior differences among youth of various ages. Given these responses to the DKS, one might expect that police would suggest they are even less accurate at detection deception with young suspects since this age group demonstrates different nonverbal behaviors; however, although police agreed that they do not reliably detect deception, they indicated no differences in reliability of behavioral analysis among suspects of various ages.

Most alarming is the finding that, despite police acknowledgement of the fallibility of deception detection and differences in typical behaviors of children and youth in comparison to adults, an average of83.2% of police claimed to use body language to detect deception, without discrimination of the age of the suspect. This is especially dangerous because police are trained to use behaviors such as slouching and lack of



eye contact as signals of deception and indications that they should proceed with interrogations. If police perceive these childhood behaviors as deceptive, this perception may increase the frequency with which they judge young suspects to be guilty, therefore increasing the frequency with which they subject youth to coercive and deceptive interrogations to obtain a confession.

Suggestibility and Psychosocial Immaturity

Overall, in comparison to the substantial body of literature concerning children and adolescents' susceptibility to suggestion, police officers demonstrated adequate knowledge when asked about children/youth in general (outside of the interrogation context). For example, police agreed that children and youth demonstrate immaturity of judgment, less competent decision-making and planning, and more malleability than adults. These results demonstrate that police have knowledge similar to researchers about youth's diminished developmental capacities (Fried & Reppucci, 2001; Scott et al., 1995) and diminished psychosocial maturity (responsibility, perspective-taking abilities, and temperance) (Steinberg & Cauffman, 1996).

However, when asked about suggestibility of suspects in interrogation, police remained relatively neutral in their responses about young suspects' susceptibility to suggestion. Although the most common responses from police were that 30 and 10% of the time police elicit inaccurate statements from the use of repeated and leading questioning, respectively, police did not indicate differences among age groups concerning the frequency with which repeated questioning, leading questioning, and presenting false evidence leads to the provision of inaccurate statements by suspects. This result suggests that, although police are aware that leading, repeated, and suggestive questioning may affect the accuracy of suspects' reports, they may not know that children and adolescents are more susceptible to suggestion than adults (Ceci, 1994; Ceci & Bruck, 1993; Dunn, 1995; Loftus, 1979). Furthermore, 54.8, 53.9 and 30.4% of police indicated that they used suggestive techniques such as repeated questioning, minimization, and presentation of false evidence, and an equal percentage of police use these techniques with young children as with older youth and adults.

False Confession Rates

The most common response of police was that they elicit false confessions from suspects 10% of the time. This is alarming. However, following completion of the surveys, police provided feedback that although they might have acknowledged false confessions, they believed that these flawed confessions were usually unsubstantiated by further evidence and thus uncovered before charges were made. This is consistent with the assertion by Kassin et al. (2005) that law enforcement personnel exhibit the commonsense assumption that "I'd know a false confession ifI saw one." In addition, the percentage question format asks police to respond about the frequency of occurrences as a result of police behavior; perhaps if questions like these asked police how often events occur as a result of their own behavior, police would be

Copyright (Q 2007 John Wiley & Sons, Ltd. Behav. Sci. Law 25: 757-780 (2007) DOI: 10.1002/bsl


less likely to acknowledge the fallibility of their techniques. As Kassin and Fong (1999) purport, law enforcement personnel are often more confident of their own abilities and judgments than others are. Future research should clarify these findings.

Police Reported Use of Interrogation Practices

The reports of police substantiate that police readily use coercive and deceptive Reid Technique interrogation strategies, and just as many police employ these techniques with young children and youth as with adults. Police appear to be following Reid's instructions to use the same interrogation techniques with young suspects as with adult suspects, despite psychological research that indicates that these techniques may more frequently result in inaccurate reports from children and youth. Therefore, results substantiate Leo's (1996) initial observations that the majority of interrogators frequently used techniques common to the Reid interrogation approach, as well as retrospective reports that suspects of various ages are subjected to similar interrogation processes (Redlich et al., 2004).

Effect of Rank and Experience

The differences that emerged according to rank indicated that the investigators were less aware or less likely to acknowledge the fallibility of interrogation with juveniles than officers (i.e., investigators indicated that juveniles had more comprehension skills, were less suggestible, and were less likely to falsely confess than officers). Similarly, police with more experience were less likely to acknowledge the fallibility of techniques such as leading questioning and presentation of false evidence, and less willing to acknowledge the occurrence of false confessions. These findings parallel the results of Kassin and Fong (1999) that investigators/police with interrogation experience and training are no more accurate in aspects of criminal interviewing, such as detection of deception, yet remain more confident and cite more reasons for their judgments than college students with no experience. Similarly, since investigators often receive more training about interrogation, their particular unwillingness to acknowledge unreliability of suspects' reports in the current study certainly echoes the claims by Drizin and Leo (2004) that police are not trained about how psychologically coercive tactics sometimes lead the innocent to falsely confess. In fact, it would appear that the more training that police get in interrogation techniques, the less likely they are to be aware of their possible fallibility.

Limitations

A few limitations to the present study should be considered. First, the sample included police officers from only one metropolitan county police department, and it is possible that police from other departments across various areas of the nation may report use of different interrogation strategies and demonstrate different beliefs about their efficacy. The authors are currently collecting data from several police agencies nationwide to obtain a more representative sample. Second, given possible

Copyright ((;) 2007 John Wiley & Sons, Ltd. Behav. Sci. Law 25: 757-780 (2007) DOI: 10.1002/bsl


skepticism and mistrust of police about academia, police may have exhibited some social desirability bias. However, this appears to be unlikely with the current group of police officers because some of their responses are undesirable (i.e. indications that they elicit false confessions). Likewise, while an individual who is well aware of the dangers of using psychologically manipulative strategies might hesitate to admit using ,such techniques, police are taught and legally permitted to use all of the techniques listed on the survey check-list. It is unlikely that police felt socially undesirable effects by acknowledging use of these legal and widely promoted interrogation strategies. In fact, from the anecdotal experience of the authors, law enforcement would often emphatically state after completion of the survey, "We're allowed to use all of those techniques on the survey ... it's not like we drag out the rubber hose!". In addition, the researchers took care to reduce police skepticism during recruitment and administration of the surveys (i.e., researchers explained that national police organizations and agency administration helped to develop the survey and support the project). However, as is the case with all scientific endeavors, multi-method convergence is of utmost importance in interpretation of results; thus, past archival data and future multi-method projects should be used to carefully interpret our results.

Finally, the sample of police included all ranks of law enforcement, although investigators typically engage in more criminal interviewing than law enforcement of other ranks. Likewise, investigators typically handle more serious, felony-level cases, where false confessions may lead to extreme punishments. Although it may be of use to focus research primarily on this group of law enforcement personnel (and our nationwide sample will incorporate data from a larger sample of investigators), there were few differences in responses across ranks in the current study. These differences indicated that investigators and those with more experience were less likely to acknowledge the fallibility of psychologically coercive interrogation strategies with young suspects, suggesting that research focusing primarily on investigators would yield documentation of more hardened police perceptions regarding youthful immaturity and interrogative suggestibility.

Summary and Implications

Overall, our findings suggest several conclusions: (1) how police perceive youth in general and how they perceive and treat them specifically in the interrogation context may be contradictory; (2) a general view of police is that youth can be dealt with in the same manner in interrogations as adults; and (3) there is recognition by some (33%) of police that they may benefit from training about the interrogation of juvenile suspects. It is unclear as to whether police fail to apply such knowledge due to their desire to conduct interrogations in prescribed ways, whether they fail to think about such applications, or whether they truly believe there is a difference between youth in general and youth in the interrogation context (although those youth likely to be suspected of committing a crime demonstrate more susceptibility to interrogative suggestibility rather than less, Bruck & Melnyk, 2004). Future research should address such issues.

Our goal is to stimulate research by increasing understanding of police beliefs and reported practices concerning the interrogation of juveniles. If future research



involving the larger law enforcement community demonstrates a similar pattern of results, we hope to encourage the incorporation of such findings, along with other social science research, into the development of a new perspective on police interrogation and innovative educational provisions for police. In addition, until training and educational protocols are viable and widely implemented, the authors support recommendations by scholars such as Kassin & Gudjonsson (2004) to implement reforms mandating that interrogations be videotaped. According to the majority of police administration in departments that regularly videotape interrogations, recording of the interrogation process is a useful practice that does not undermine the investigator's ability to obtain valid confessions and may even protect the interrogator from faulty accusations of interrogative misconduct (Sullivan, 2004). In conclusion, the authors hope that this first attempt at the documentation of the problem of false confessions through the lens of law enforcement encourages inclusion of police in future research and in the development of precautionary procedures that obtain reliable information from youthful suspects in the least threatening and most just way.

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jF!etu ~ork ~upreme <!Court ~ppeUate ~ibision - ~econb ~epartment

Docket No. 2017-00638


Of Counsel: Eric R. Breslin, Esq. Melissa S. Geller, Esq. Amanda Bassen, Esq. Jovalin Dedaj, Esq.

Respondent,

- against -

ANDREW KRIVAK,


BRIEF OF AMICI CURIAE

DUANE MORRIS LLP Attorneys for Amici Curiae

The Innocence Network, The Innocence Project, The Exoneration Initiative, and the Office of the Appellate Defender

One Riverfront Plaza 1037 Raymond Boulevard, Suite 1800 Newark, NJ 07102

Putnam County Clerk's Index No. 39/1996

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF AMICI CURJAE ................................................ l

SUMMARY OF ARGlJMENT ................................................................................. 2

ARGlJMENT ............................................................................................................ 4

I. EXPERTS WIDELY ACKNOWLEDGE THAT INNOCENT PEOPLE MAKE FALSE CONFESSIONS .................................................... 4

II. SCIENTIFIC RESEARCH DEMONSTRATES THAT AGGRESSIVE INTERROGATION TACTICS, SUCH AS THOSE USED ON MR. KRIVAK, CAN RESULT INF ALSE CONFESSIONS .............................................................................................. 6

A. Psychological Interrogation Tactics Employed by Police during Custodial Interrogations Produce and Enhance the Risk of False Confessions ........................................................................................... 7

1. Coercive Interrogation Techniques in Practice: Adrian Thomas ..................................................................................... 14

B. Aggressive Interrogation Tactics Create a High Risk of False Confessions, Particularly in Juveniles ................................................ 15

C. Confession Evidence is Highly Prejudicial and Has a Strong Biasing "Confession Effect." .............................................................. 18

1. The Confession Effect in Practice: Juan Rivera ....................... 21

D. Andrew Krivak'.s Confession Exhibits the Hallmarks of a False Confession .......................................................................................... 23

III. Third Party Guilt Is Highly Probative of False Confessions and Should Not Be Easily Disregarded ............................................................... 28

A. The Danger of Ignoring Evidence of Third Party Guilt in Practice: Marvin Anderson's Wrongful Conviction ........................... 28

1

B. The Danger of Ignoring Evidence of Third Party Guilt in Practice: Rolando Cruz's Wrongful Conviction and Death Sentence ................................................................... , .......................... 29

CONCLUSION ....................................................................................................... 30

11

TABLE OF AUTHORITIES

Page(s)

CASES

Arizona v. Fulminante 499 U.S. 279 (1991) ........................................................................................... 18

Corley v. United States 556 U.S. 303 (2009) ............................................................................................. 6

Deskovic v. City of Peekskill 894 F. Supp. 2d 443 (S.D.N.Y. 2012) ........................................................... 24-25

Furman v. Georgia 408 U.S. 238 (1972) ........................................................................................... 30

Graham v. Florida 560 U.S. 48 (2010) ........................................................................................ 17-18

Haynes v. Washington 373 U.S. 503 (1963) ........................................................................................... 10

Hernandez v. Cty. of DuPage No. 96 C 8030, 1997 WL 598132 (N.D. Ill. Sept. 19, 1997) ............................. 29

In re Winship 397 U.S. 358 (1970) ........................................................................................... 30

JD.B. v. North Carolina 564 U.S. 261 (2011) ...................................................................................... 15-17

Miller v. Alabama 567 U.S. 460 (2012) ........................................................................................... 17

Miranda v. Arizona 384 U.S. 436 (1966) ............................................................................................. 6

People v. Anderson 42 N.Y.2d 35, 396 N.Y.S.2d 625 (1977) ............................................................. 9

People v. Castaldo 146 A.D.3d 797, 46 N.Y.S.3d 115 (2d Dep't 2017) .......................................... 23

111

People v. Rivera 962 N.E.2d 53 (Ill. Ct. App. 2011) ..................................................................... 21

People v. Thomas 22 N.Y.3d 629, 985 N.Y.S.2d 193 (2014) .................................................... 14-15

Roper v. Simmons 543 U.S. 551 (2005) ........................................................................................... 18

Tice v. Johnson 647 F.3d 87 (4th Cir. 2011) ................................................................................ 22

United States v. Scheffer 523 U.S. 303 (1998) ........................................................................................... 11

STATUTES, RULES & REGULATIONS

C.P.L. § 440.10 (l)(g) ............................................................................................. 30

NYCRR § 670.11 ...................................................................................................... 1

OTHER AUTHORITIES

Allison D. Redlich, The Susceptibility of Juveniles to False Confessions and False Guilty Pleas, 62 RUTGERS L. REV. 943 (2010) ................................................................................................................. 15

Brandon L. Garrett, Contaminated Confessions Revisited, 101 VA. L. REV. 395 (2015) .................................................................................................... 6

Brandon L. Garrett, The Substance of False Confessions, 62 STAN. L.

REV. 1051 (2010) ······························································································· 22

Brent Snook, Joseph Eastwood & W. Todd Barron, The Next Stage in the Evolution of Interrogations: The PEACE Model, 18 CAN. CRIM. L. REV. 219 (2014) ................................................................................... 11

Christian A. Meissner et al., Interview and Interrogation Methods and Their Effects on True and False Confessions, Campbell Systematic Reviews (June 2012) (available at http://www.campbellcollaboration.org/media/k2/ attachments/Meissner_ Interview_ Interrogation_ Review. pdt) ...................... 12-13

lV

David Propper, Castaldo Case Ends in Plea Deal, The Examiner, Feb. 20, 2017, https://www.theexaminemews.com/castaldo-case-ends-in-plea-deal/ ........................................................................................................ 23

Eli Hager, The Seismic Change in Police Interrogations, The Marshall Project (Mar. 7, 2017, 10:00 PM), https://www.themarshallproject.org/2017/03/07/the-seismic-change-in-police-interrogations ......................................................................... 13

Fred Inbau et al., CRIMINAL INTERROGATION AND CONFESSIONS (2d ed. 2013) ................................................................................................................... 11

Gisli H. Gudjonsson, THE PSYCHOLOGY OF INTERROGATIONS AND CONFESSIONS-A HANDBOOK (Graham Davies et al. eds., 2003) ................. 8, 13

Innocence Project, False Confessions or Admissions, https://www.innocenceproject.org/ causes/false-confessions-admissions/ (last visited Mar. 28, 2018) .......................................................... 4, 6

Innocence Project, Juan Rivera, https ://www.innocenceproject.org/ (last visited Apr. 3, 2018) .............................................................................. 21-22

Innocence Project, Marvin Anderson, https ://www .innocenceproject.org/ cases/marvin-anderson/ (last visited Mar. 29, 2018) ........................................................................................ 28

Innocence Project, Rolando Cruz, https://www.innocenceproject.org/ cases/rolando-cruz/ (last visited Mar. 29, 2018) ................................................................................................... 29

Int'l Ass'n of Chiefs of Police, Reducing Risks: An Executive's Guide to Effective Juvenile Interview and Interrogation at 1 (2012), http://www.theiacp.org/Portals/O/pdfs/ReducingRisksAnExecutive GuidetoEffectiveJuvenileinterviewandinterrogation.pdf .................................. 16

Jessica R. Meyer & N. Dickon Reppucci, Police Practices and Perceptions Regarding Juvenile Interrogation and Interrogative Suggestibility, 25 BEHAV. Ser. & L. 757 (2007) ............................................. 5, 15

John E. Reid & Assocs., Inc., Investigator Tips (June 2004) http://www.reid.com/educational_info/r_tips.html?serial =1086208648124137 ............................................................................................ 8

v

John E. Reid & Associates, Inc., Take Special Precautions When Interviewing Juveniles or Individuals with Significant Mental or Psychological Impairments, http://www.reid.com/pdfs/20120929d.pdf ......................................................... 16

Jonathan Bandler, Deskovic awarded $40M in wrongful conviction case, Lohud (Oct. 24, 2014 9:49 AM), https://www.lohud.com/story/news/local/2014/10/23/jeffrey-deskovic-wrongful-conviction-forty-million-verdict/17798527/ ...................... 24

Lauren Kirchner, How Can We Prevent False Confessions from Kids and Teenagers?, PACIFIC STANDARD (June 17, 2014), https://psmag.com/news/preventing-false-confessions-kids-83 5 90 .................. 1 7

N. Dickon Reppucci et al., Custodial Interrogation of Juveniles: Results of a National Survey of Police, in POLICE INTERROGATIONS AND FALSE CONFESSIONS: CURRENT RESEARCH, PRACTICE, AND POLICY RECOMMENDATIONS 67 (G. Daniel Lassiter & Christian A. Meissner eds., 2010) ........................................................................................... 17

National Registry of Exonerations, http://www.law.umich.edu/special/ exoneration/Pages/browse.aspx (follow "Browse Cases" hyperlink; then filter Exonerated field for "2017" and Contributing Factors Display field for "False Confession") (last visited March 28, 2018) .................. 3

Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 DENVER U. L. REV. 979 (1997) .................................................................................................... 7-9, 18,26

Saul M. Kassin & Katherine Neumann, On the Power of Confession Evidence: An Experimental Test of the Fundamental Difference Hypothesis, 21 L. & HUM. BEHAV. 469 (1997) ............................................ 18-19

Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 L. &HUM. BEHAV. 3 (2010) ..................................... 5, 7-9

Saul M. Kassin & Gisli H. Gudjonsson, The Psychology of Confessions: A Review of the Literature and Issues, 5 PSYCHOLOGICAL SCIENCE IN THE PUBLIC INTEREST 3 3 (2004) ...................... 10-11

Saul M. Kassin, The Psychology of Confession Evidence, 52 AM. PSYCHOL. 221 ( 1997) ........................................................................................... 7

Vl

Saul M. Kassin, Why Corifessions Trump Innocence, 67 AM. PSYCHOL. 431 (2012) ........................................................................ 11-12, 19-20

Steven A. Drizin & Richard A. Leo, The Problem of False Corifessions in the Post-DNA World, 82 N.C. L. REV. 891 (2004) ........... 4, 9, 16

Vll

STATEMENT OF INTEREST OFAMICI CURIAE

The Innocence Network, the Innocence Project, the Exoneration Initiative,

and the Office of Appellate Defender (together, "Amici") work to exonerate

innocent people who have been wrongfully convicted of crimes. As set forth more

fully in the Affirmation of Eric R. Breslin in Support of Motion for Leave to File

the Attached Proposed Brief as Amici Curiae Pursuant to NYCRR § 670.11

("Breslin Aff. "), Amici are dedicated to exonerating the wrongfully convicted and

preventing future miscarriages of justice. See Breslin Aff. 'if'if 5-8 (describing

mission and focus of each organization). Amici' s efforts serve as a check on the

overwhelming power of the State over criminal defendants, while also helping to

ensure a safer and more just society. Wrongful convictions destroy many lives,

and it is critical that the criminal justice system plays a role both in preventing

wrongful convictions and in righting these wrongs when they do occur.

False confessions by innocent defendants are the third leading factor

contributing to wrongful convictions. Together, Amici submit this brief to offer the

context of their clients' experiences falsely confessing to crimes they did not

commit and to provide the Court with the relevant scientific literature on how such

confessions are generated, including those interrogation tactics that can lead to

false confessions. Because Mr. Krivak's statement to the police has many

hallmarks of a false confession and in light of the new evidence that has further

undermined the reliability of that statement, we respectfully submit that Mr. Krivak

should be granted a new trial.

SUMMARY OF ARGUMENT

The trial court relied almost entirely on Mr. Krivak' s confession in denying

his motion to vacate his conviction. The lower court gave almost no consideration

to the fact that a third party, who, unlike Mr. Krivak, had a history of committing

similar crimes, admitted to committing the crimes for which Mr. Krivak was

convicted, or that Mr. Krivak's co-defendant was acquitted of the very same

charges, based on essentially the same evidence, except for the confession, at a

new trial. The trial court all but ignored the inherent problems with Mr. Krivak's

confession, including that it contained no new details of the crime, and only facts

previously known by the police, as well as the fact that several witnesses recanted

their trial testimony, citing undue police pressure, and that the detectives who

interrogated Mr. Krivak had a history of inducing false confessions from innocent

suspects under circumstances that parallel those of this case. As acknowledged by

both parties, the key evidence differentiating Mr. Krivak's case from that of his co

defendant is Mr. Krivak's confession, a statement written by his interrogators that

he signed after hours of questioning. New evidence casts that confession into

serious doubt. This should entitle Mr. Krivak to relief.

2

Essentially an unknown phenomenon before the advent of forensic DNA

testing, exonerations of individuals whose innocence has been established through

post-conviction DNA testing has confirmed that innocent people can and do falsely

confess. Of the 139 exonerations reported on the National Registry of

Exonerations for the past year, over 20% involved false confessions. 1 With these

exonerations comes a greater understanding of the tactics that lead to false

confessions, and the personal characteristics of people who are vulnerable to false

confessions. Two such factors feature prominently in this case: Mr. Krivak's

youth at the time of the interrogation and the use of the false evidence ploy, a tactic

in which the interrogator falsely claims there exists incriminating evidence against

a suspect. Young people, like Mr. Krivak, are particularly susceptible to

psychological tactics employed during custodial interrogations, including the use

of the false evidence ploy, and are thus at greater risk of falsely confessing. The

trial court's reliance on Mr. Krivak's confession, without due consideration to the

new evidence in this case, is, given the prevalence of false confessions, a

miscarriage of justice. Mr. Krivak is not asking this Court to declare his.

innocence; he merely seeks the chance to present this new evidence at trial to allow

1 See National Registry of Exonerations, http://www.law.umich.edu/special/ exoneration/Pages/browse.aspx (follow "Browse Cases" hyperlink; then filter Exonerated field for "2017" and Contributing Factors Display field for "False Confession") (last visited March 28, 2018).

3

a jury to consider the reliability of his confession in light of the compelling

evidence of third party guilt. Amici urge this Court to overturn the trial court's

decision.

ARGUMENT

I. EXPERTS WIDELY ACKNOWLEDGE THAT INNOCENT PEOPLE MAKE FALSE CONFESSIONS

Research conducted by the Innocence Project shows that of the 354 DNA

exonerations analyzed to date, more than 25% of defendants whose innocence now

cannot be questioned previously made a false confession or incriminating

statement leading to their wrongful convictions. See The Innocence Project, False

Confessions or Admissions, https://www.innocenceproject.org/causes/false-

confessions-admissions/ (last visited Mar. 28, 2018) (hereinafter "False

Confessions"). This has been a particularly acute problem in New York, where 35

of the 224 exonerations involved false confessions. Id. This puts New York

second to only Illinois in the number of exonerations from convictions based on

false confessions. Steven A. Drizin & Richard A. Leo, The Problem of False

Confessions in the Post-DNA World, 82 N.C. L. REV. 891, 943 (2004) (hereinafter

"Post-DNA World''). By far, the bulk of false confessions occur in murder cases.

Id. at 946-4 7. In a study of 125 false confessions occurring between 1971 and

2002, 81 % involved murder cases. When it comes to murder, New York State

leads the country in false confessions.

4

As these statistics do not account for non-DNA exonerations, cases that

never receive post-conviction scrutiny, or sealed juvenile cases, the number is

undoubtedly much higher. See Saul M. Kassin et al., Police-Induced Confessions:

Risk Factors and Recommendations, 3 4 L. & HUM. BERA v. 3 (2010) (citing

studies) (hereinafter "Police-Induced Confessions"). In a 2007 survey, police

officers themselves estimated that approximately 10% of all interrogations result in

. false confessions. Jessica R. Meyer & N. Dickon Reppucci, Police Practices and

Perceptions Regarding Juvenile Interrogation and Interrogative Suggestibility, 25

BERA v. Ser. & L. 757, 770 (2007) (hereinafter "Police Practices and Juvenile

Suggestibility"). 2

2 A copy of Police Practices and Juvenile Suggestibility is attached to the Breslin Aff. as Exhibit A.

5

II. SCIENTIFIC RESEARCH DEMONSTRATES THAT AGGRESSIVE INTERROGATION TACTICS, SUCH AS THOSE USED ON MR. KRIVAK, CAN RESULT IN FALSE CONFESSIONS

False confessions are often the result of psychologically coercive

interrogation tactics, confession contamination by the police, and/or deception or

trickery used in the interrogation room. See Corley v. United States, 556 U.S. 303,

320-21 (2009) (citation omitted) ("there is mounting empirical evidence that [the

pressures of custodial interrogation] can induce a frighteningly high percentage of

people to confess to crimes they never committed"); Miranda v. Arizona, 384 U.S.

436, 455 & n.24 (1966) (recognizing the "heavy toll" custodial interrogations take

"on individual liberty" and that interrogation procedures may result in false

confessions); see also False Confessions; Brandon L. Garrett, Contaminated

Confessions Revisited, 101 VA. L. REV. 395, 408-09 (2015) (explaining that "the

most likely scenario [for the recitation of inside crime information] is that the

innocent convict had details disclosed [by police] during a lengthy interrogation").

The danger of such psychological tactics is the inducement and creation of a false

confession. See False Confessions.

6

A. Psychological Interrogation Tactics Employed by Police during Custodial Interrogations Produce and Enhance the Risk of False Confessions.

Certain psychological methods used during custodial interrogations help

explain how innocent people can make false confessions. The majority of United

States police departments employ some form of the standardized procedures

exemplified in the Reid Technique ("Reid"), developed by the consultant and

polygraph expert John E. Reid in the 1940s. See Richard J. Ofshe & Richard A.

Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74

DENVER U. L. REV. 979, 983 n.20 (1997) (hereinafter "Irrational Action") (noting

influence of Reid); Saul M. Kassin, The Psychology of Confession Evidence, 52

AM. PSYCHOL. 221, 222 (1997) (same).

The primary objective of an interrogation is not a search for the truth, but to

elicit a confession from a suspect investigators have already decided is guilty.

Interrogations typically begin with the separation of the suspect from family and

friends, often in a small, isolated interrogation room designed to increase the

suspect's anxiety. See Police-Induced Confessions, 34 L. & HUM. BEHAV. at 12.

After briefly building a rapport with the suspect, the interrogator then uses tactics

designed to convey the interrogator's certain belief in the suspect's guilt. This is

designed to convince the suspect that any protests to the contrary will fail. See id.;

see also Irrational Action, 74 DENV. U. L. REV. at 990 (explaining goal of

7

convincing the suspect of "certain arrest, certain prosecution, and certain

conviction.").

A central device in this process is the "false evidence" ploy, in which

investigators use "duplicity and pretense" and may falsely exaggerate confidence

in the suspect's guilt. See John E. Reid & Assocs., Inc., Investigator Tips (June

2004) http://www.reid.com/educational_info/r_tips.html?serial

=1086208648124137 (noting that "an investigator often must rely on duplicity and,.

pretense in an effort to develop evidence against the guilty suspect"). False

evidence is often presented to suspects as "incontrovertible" evidence of guilt,

even if that evidence does not exist - or worse - is diametrically opposed to the

actual evidence or test results. · Gisli H. Gudjonsson, THE PSYCHOLOGY OF

INTERROGATIONS AND CONFESSIONS -A HANDBOOK 10 (Graham Davies et al. eds.,

2003) (hereinafter "INTERROGATION HANDBOOK"). This process includes tactics

such as claiming the existence of forensic evidence where none exists, making

general claims of strong evidence, offering demeanor evidence, claiming the

existence of eyewitness evidence, and claiming that a co-perpetrator confessed.

See Irrational Action, 74 DENV. U. L. REV. at 1008, 1014-15, 1018.

Research shows that this "misinformation renders people vulnerable to

manipulation." See Police-Induced Confessions, 34 L. & HUM. BEHAV. at 17. The

use of "outright lies can put innocents at risk to confess by leading them to feel

8

trapped by the inevitability of evidence against them," particularly where the

suspect sees the possibility of leniency in exchange for their confession. Id. at 28.

That is, once a suspect sees a bad outcome as inevitable he or she is more likely to

accept, comply with, and even approve of the final outcome, even one that is it at

odds with reality. See, e.g., Post-DNA World, 82 N.C. L. REV. at 910-11.

Next, and only after convincing the suspect of his or her dire situation, the

interrogator offers the suspect a way out: the making of a confession. See

Irrational Action, 74 DENY. U. L. REV. at 990. The interrogator convinces the

suspect that confessing may result in a lesser charge or the possible avoidance of

prosecution altogether. See id.,· see also Post-DNA World, 82 N.C. L. REV. at 915-

16 (explaining that investigators sometimes rely on "explicit promises of leniency .

. . to extract a confession"). The interrogator also frequently minimizes the

suspect's involvement in the crime and offers a "minimized or less exculpatory

version of the offense" and the suspect's role. See Post-DNA World, 82 N.C. L.

REV. at 916.

The excessive and indeterminate length of an interrogation is another key

feature of coercive interrogations. While New York courts have declined to adopt

a bright-line rule concerning the acceptable length of an interrogation, they have

acknowledged the coercive effect of seemingly interminable interrogations. See

People v. Anderson, 42 N.Y.2d 35, 39, 396 N.Y.S.2d 625, 628 (1977). Similarly,

9

the United States Supreme Court has also criticized the coercive technique of

lengthy interrogations. In the case of one defendant who was detained for 16 hours

and interrogated at various points, the Supreme Court concluded that"[ c ]onfronted

with the express threat of continued incommunicado detention and induced by the

promise of communication with and access to family [the defendant]

understandably chose to make and sign the damning written statement." Haynes v.

Washington, 373 U.S. 503, 514 (1963). The actual number ofhours ofthe

interrogation, however, is less significant than the psychological impact of a

seemingly endless interrogation from the suspect's perspective, particularly young

suspects.

The physical act of isolating a suspect in a confined space for a prolonged

period of time has also been shown to increase the likelihood of a suspect making a

false confession. See, e.g., Saul M. Kassin & Gisli H. Gudjonsson, The

Psychology of Confessions: A Review of the Literature and Issues, 5

PSYCHOLOGICAL SCIENCE IN THE PUBLIC INTEREST 33, 53 (2004). As one study

explains, prolonged detention leads to fatigue, uncertainty, and despair. See id. As

a result, "isolation heightens the anxiety associated with custodial interrogation >

and, over extended periods of time, increases a suspect's incentive to escape."

Id. Whereas an ordinary police interrogation lasts around 2 hours, in a study of

10

false confession cases, 34% of interrogations lasted 6 to 12 hours and 39% lasted

12 to 24 hours. See id.

Such tactics can be extraordinarily effective in extracting an untrue

confession. Brent Snook, Joseph Eastwood & W. Todd Barron, The Next Stage in

the Evolution of Interrogations: The PEACE Model, 18 CAN. CRIM. L. REV. 219,

224 (2014) (hereinafter "Evolution of Interrogations") (noting concerns with the

"use of unreliable behaviourally-based deception detection methods and the use of

tactics that are known to elicit confessions from innocent people").3 Once an

investigator determines in his or her mind the fact of a suspect's guilt, the focus

pivots to obtaining a confession and does not seem to look back or revisit this

initial conclusion. Confirmation bias thus becomes a tremendous concern. See

3 The Reid Technique purports to enable interrogators to determine whether a suspect is guilty, and instructs investigators to use scientifically unsupported methods, such as the physical hand gestures of a suspect, to determine a suspect's guilt. See Fred Inbau et al., CRIMINAL INTERROGATION AND CONFESSIONS 65-85 (2d ed. 2013) (explaining that the "[p]hysical activities of the lying suspect" include "[s]ignificant body movements, grooming gestures and cosmetic adjustments, and supportive gestures"). This "science" has no more validity than the science of phrenology, whereby the shape of a person's head was once thought to determine whether they had criminal tendencies. See Evolution of Interrogations, 18 CAN. CRIM. L. REV. at 224-25 (explaining empirical data demonstrates that police are not able to distinguish between the denials of guilty and innocent suspects with accuracy). Certainly, any such analysis would likely be excluded under any expert witness standard, as most courts have done for polygraph testimony. See, e.g., United States v. Scheffer, 523 U.S. 303, 310 (1998) (noting studies finding polygraphs roughly equivalent to flipping a coin).

11

Saul M. Kassin, Why Confessions Trump Innocence, 67 AM. PSYCHOL. 431, 437

(2012) (hereinafter "Confessions Trump Innocence").

In this case, the eighteen-year-old Andrew Krivak was isolated and

subjected to an excessively lengthy interrogation. Mr. Krivak was arrested without

his family's knowledge, and held incommunicado. The interrogators detained,

questioned and tested Mr. Krivak for seven continuous hours before he relented.

They fed Mr. Krivak facts about the case, convinced him that his co-defendant

implicated him in the crime, and subjected him to a flawed polygraph examination,

claiming he failed despite the examination's inherent problems and evidence to the

contrary. In response to this barrage, Mr. Krivak caved to the psychological

pressures and signed the false confession written by Detective Castaldo, a detective

with the Putnam County Sheriffs Department ("PCSD"), which has a history of

eliciting false confessions. Such a sad result should not come as any great surprise.

In light of the risks posed by false evidence ploys, many countries prohibit

criminal investigators from deceiving suspects about the evidence against them.

For example, in 1984, following public outcry over the large number of false

confessions, Great Britain enacted the Police and Criminal Evidence Act of 1984

("PACE"). See Christian A. Meissner et al., Interview and Interrogation Methods

and Their Effects on True and False Confessions, Campbell Systematic Reviews

(June 2012) (available at http://www.campbellcollaboration.org/media/k2/

12

attachments/Meissner_ Interview_ Interrogation_ Review. pdt). PACE prohibited the

use of psychologically manipulative interrogation techniques and mandated

recorded custodial interrogations. See id. In 1992, the Royal Commission on

Crime and Justice reviewed British police interrogation methods and adopted the

PEACE method, emphasizing the development of a rapport with a suspect, rather

than manipulation. See id.

Given its success in Great Britain, Canada, New Zealand, other Western

European countries have adopted this or similar models. See id. Norway, for

instance, after a notorious false confession to murder in 1995, 4 adopted the

"Tactical Interview Model," a variation of PEACE, which eliminates confession as

the objective of an interrogation altogether. See id. While the Reid Technique

remains popular in the United States, police departments are increasingly shifting

away from its use. See Eli Hager, The Seismic Change in Police Interrogations,

The Marshall Project (Mar. 7, 2017, 10:00 PM),

https://www.themarshallproject.org/2017/03/07/the-seismic-change-in-police-

interrogations.

4 In 1995, seventeen-year-old Birgitte Tengs was murdered in Norway. Her cousin admitted to the murder, even though he had no memory of it. He told his lawyer, "I don't remember it, but it must have been me because everyone says so." See INTERROGATION HANDBOOK at 593.

13

1. Coercive Interrogation Techniques in Practice: Adrian Thomas.

Psychologically coercive tactics, such as false evidence ploys, are not

merely an academic theory. They exist all too frequently in the real world. The

use of such tactics has resulted in the reversal of convictions in New York State.

For example, Adrian Thomas was convicted in October 2009 for the murder of his

infant child on the strength of a false confession, despite evidence that the child

died of complications from sepsis. People v. Thomas, 22 N.Y.3d 629, 637, 985

N.Y.S.2d 193, 195 (2014). The police obtained Mr. Thomas's false confession

after nine hours of interrogation fraught with the coercive tactics discussed above.

See id. at 635-36, 985 N.Y.S.2d at 194-95. These included telling Mr. Thomas that

his son's survival depended on his disclosure of how he caused his son's injuries,

and that if Mr. Thomas did not inflict the injuries, his wife must have. See id. at

637-38, 985 N.Y.S.2d at 195-96. Investigators also made repeated false promises

to mitigate the severity of the consequences, telling Mr. Thomas that "whatever

had happened was an accident, that he could be helped if he disclosed all, and that,

once he had done so, he would not be arrested, but would be permitted to return

home." Id. at 644-45, 985 N.Y.S.2d at 201.

The resulting manufactured confession contained information relayed by the

child's treating doctor to the police to ensure conformity between the physical

evidence and the confession. Id. at 646, 985 N.Y.S.2d at 202. In February 2014,

14

the Court of Appeals vacated Mr. Thomas' conviction, ruling that the interrogation

was "highly coercive" and Mr. Thomas's statements were involuntary. Id. at 642,

985 N.Y.S.2d at 199 (finding that "the set of highly coercive deceptions ... were

of a kind sufficiently potent to nullify individual judgment in any ordinarily

resolute person"). At retrial, after the confession was deemed inadmissible, the

jury acquitted Mr. Thomas. He was finally released from prison after serving six

years in prison for the death of his son, which was, in fact, not caused by criminal

conduct at all but was instead the unfortunate result of medical complications.

B. Aggressive Interrogation Tactics Create a High Risk of False Confessions, Particularly in Juveniles.

These psychologically coercive interrogation tactics result in a

disproportionate number of false confessions among juveniles. See Police

Practices and Juvenile Suggestibility, 25 BEHAV. SCI. & L. at 757-80 (detailing a

view among surveyed enforcement officials that youth suspects can be dealt with

in the same manner as adults); Allison D. Redlich, The Susceptibility of Juveniles

to False Confessions and False Guilty Pleas, 62 RUTGERS L. REV. 943, 952 (2010)

(explaining that the risk of false confessions increases among juveniles who are at

varying stages of maturity when they are subjected to the same interrogation tactics

as adults).

There is widespread agreement among the courts, experts, and law

enforcement that juveniles are inherently vulnerable and malleable and should be

15

treated differently than adults during custodial interrogations. See, e.g., J.D.B. v.

North Carolina, 564 U.S. 261, 272-81 (2011) (explaining that juvenile suspects are

more susceptible to the pressures of custodial interrogations). The International

Association of Chiefs of Police (IACPA), a police executive membership

association founded in 1893, has recognized juvenile susceptibility to false

confessions: "Over the past decade, numerous studies have demonstrated that

juveniles are particularly likely to give false information - and even falsely confess

-when questioned by law enforcement." See Int'l Ass'n of Chiefs of Police,

Reducing Risks: An Executive's Guide to Effective Juvenile Interview and

Interrogation at 1 (2012),

http://www.theiacp.org/Portals/O/pdfs/ReducingRisksAnExecutiveGuidetoEffectiv

eJuvenileinterviewandinterrogation.pdf. Because of the particular risk of eliciting

a false confession when interrogating juveniles, investigators must exercise

"extreme caution and care when interviewing or interrogating a juvenile." See

John E. Reid & Associates, Inc., Take Special Precautions When Interviewing

Juveniles or Individuals with Significant Mental or Psychological Impairments,

http://www.reid.com/pdfs/20120929d.pdf. For example, in Post-DNA World,

Professor Drizin studied 125 proven false confessions and found that 63% of the

confessors were under the age of twenty-five and 32% were under the age of

eighteen. See Post-DNA World, 82 N.C. L. Rev. at 945.

16

Yet, the use of suggestive and manipulative interrogation techniques on

juveniles is commonplace. See N. Dickon Reppucci et al., Custodial Interrogation

of Juveniles: Results of a National Survey of Police, in POLICE INTERROGATIONS

AND FALSE CONFESSIONS: CURRENT RESEARCH, PRACTICE, AND POLICY

RECOMMENDATIONS 67 (G. Daniel Lassiter & Christian A. Meissner eds., 2010).

In one study, nearly all of the officers surveyed "reported frequently using the

same interrogation techniques on minors as on adults." See Lauren Kirchner, How

Can We Prevent False Confessions from Kids and Teenagers?, PACIFIC STANDARD

(June 17, 2014), https://psmag.com/news/preventing-false-confessions-kids-

83590.

The notion that juvenile suspects need to be treated differently during a

custodial interrogation reflects the recognition that adolescents should be treated

with special care and afforded enhanced protections. The Supreme Court has

repeatedly emphasized these principles in a recent series of decisions prohibiting

the imposition of the death penalty and mandatory life without parole sentences on

juveniles. See Miller v. Alabama, 567 U.S. 460 (2012) (holding sentences of

mandatory life without parole for juvenile offenders violates the 8th Amendment);

JD.B, 564 U.S. at 272-81 (explaining that juvenile suspects are more susceptible

to the pressures of custodial interrogations); Graham v. Florida, 560 U.S. 48, 68

(2010) (prohibiting mandatory sentences of life without parole for non-homicide

17

offenses for juvenile offenders); Roper v. Simmons, 543 U.S. 551, 569 (2005)

(outlawing death penalty for juvenile offenders). Each of these decisions

recognizes the simple physiological fact that juveniles' lack of cognitive maturity

requires additional due process protections.

C. Confession Evidence is Highly Prejudicial and Has a Strong Biasing "Confession Effect."

False confessions are a leading cause of wrongful convictions. This is not a

surprise. Confessions are "'probably the most probative and damaging evidence

that can be admitted against [a defendant]."' Arizona v. Fulminante, 499 U.S. 279,

296 (1991) (quoting Bruton v. United States, 391 U.S. 123, 139 (1968) (White J.,

dissenting)); see also Irrational Action 74 DENY. U. L. REV. at 983-84 (positing

that a confession "is arguably the most damaging evidence the government can

present in a trial").

Introduction of alleged confession evidence is so powerful that jurors

routinely conclude that such evidence trumps even the most exculpatory DNA

evidence. This is known as the "confession effect." See Saul M. Kassin &

Katherine Neumann, On the Power of Confession Evidence: An Experimental Test

of the Fundamental Difference Hypothesis, 21 L. & HUM. BEHAV. 469, 481 (1997)

(hereinafter "Power of Confession Evidence") (explaining that "confession

evidence has a greater impact on jurors - and is seen as having a greater impact by

jurors - than other potent types of evidence") (emphasis in original). Often,

18

confessions are highly detailed because the suspect received "canned" information

about the crime from detectives during the interrogation, thus making them an

extremely powerful form of evidence. See id. A 2010 study examined 3 8 false

confessions and discovered that 36 contained accurate details of the crime. See

Confessions Trump Innocence, 67 AM. PSYCHOL. at 437. Most "contained

nonpublic information that ... only the perpetrator could have known." Id. at 435.

These confessors were factually innocent, however, proving that the police

communicated these details, either inadvertently or purposefully, during the

interrogation. See id. at 435-36. Yet, because these confessions contained details

about the crime, they appeared reliable to the trier of fact and resulted in truly

terrible consequences.

Once police have a confession, they often close the file and deem the case

solved. Id. at 436. Confirmation bias then sets in, and investigators often

"overlook exculpatory information - even ifthe confession is internally

inconsistent, contradicted by external evidence, or the product of coercive

interrogation." See id. at 4 3 3. Confirmation bias can infect every aspect of a case,

from forensic analysis, to witness mistakes, to prosecutorial overreach. In 2012,

Professor Kassin, a leading researcher on false confessions, along with several

colleagues, analyzed a data set of exoneration cases from the Innocence Project

case files, identifying additional errors in 78% of the cases: 63% involved

19

improper forensic evidence, 29% involved mistaken eyewitness identifications,

and 19% involved untruthful informants. See id. at 43 7. In 65% of those cases,

confessions were obtained early in the investigation, further evidencing the

malignant impact the confession effect can have. See id.

Confession evidence remains compelling to jurors, even in the face of

equally compelling exculpatory evidence, including objective, scientific proof of

innocence. See generally Power of Confession Evidence. Most jurors cannot

conceive that an individual would ever confess to a crime they did not commit and

do not understand why someone could be led do so. See id. In addition, because

false confessions are often highly detailed, they exhibit a misleading appearance of

reliability even where the facts of the crime are either intentionally or inadvertently

imparted to the suspect in the interrogation itself, especially where the suspect

lacked firsthand knowledge in the first place.

More, once a confession is believed to be true, confirmation bias only

reinforces that view. See Corifessions Trump Innocence, 67 AM. PSYCHOL. at 437.

As one psychologist explains, "[m]ost people reasonably believe that they would

never confess to a crime they did not commit, so they evaluate others accordingly,

do not understand the influence of police interrogation practices, and have only a

rudimentary understanding of the dispositional and situational factors that would

lead someone innocent to confess." See id at 434 (citations omitted).

20

1. The Confession Effect in Practice: Juan Rivera.

An Illinois jury convicted Juan Rivera for the rape and murder of an eleven-

year-old girl, following a trial at which the prosecution relied primarily on the

second of two false confessions. See People v. Rivera, 962 N.E.2d 53 (Ill. Ct. App.

2011); The Innocence Project, Juan Rivera, https://www.innocenceproject.org/

cases/juan-rivera/ (last visited Apr. 3, 2018) (hereinafter "Juan Rivera"). Mr.

Rivera confessed after taking two polygraph examinations. The first yielded no

results and the second indicated deception only as to questions wholly unconnected

to the victim's death. See Juan Rivera.

Following Mr. Rivera's conviction at trial, the Illinois Appellate Court

reversed his conviction based on the cumulative effect of trial errors and remanded

the case for a new trial. Id. Mr. Rivera was convicted at a second trial, at which

the key to the prosecution's case was once again Mr. Rivera's confession. Id.

After the Illinois Appellate Court affirmed the second conviction, DNA evidence

came to light showing that Mr. Rivera was innocent. The Chief Judge vacated Mr.

Rivera's conviction. See id. Nevertheless, the prosecution chose to retry Mr ...

Rivera for a third time. The prosecution again relied on Mr. Rivera's false"

confession, obtained using aggressive interrogation tactics. The State's attorney

discounted the exculpatory DNA evidence. A jury convicted Mr. Rivera for a third

time, despite the DNA evidence. On review, the Illinois Appellate Court reversed

21

the conviction, finding no credible evidence of Mr. Rivera's guilt apart from his

contaminated confession. Mr. Rivera served twenty-years in prison for a crime he

did not commit. Id.

Mr. Rivera's fate was sealed the moment he falsely confessed. His

confession had such a potent effect that neither the State's attorney nor a jury of

Mr. Rivera's peers could properly evaluate the existing exculpatory DNA evidence

in the face of even a contaminated confession.

Mr. Rivera's case is just one example of many DNA exonerations where

both false confessions and exonerating DNA evidence were presented at trial, but

the juries credited the confessions over objective, scientific proof, the DNA

evidence. See, e.g., Tice v. Johnson, 647 F.3d 87 (4th Cir. 2011) (affirming district

court's writ of habeas corpus in case involving defendant convicted by two juries,

despite admission of exculpatory DNA evidence establishing third-party guilt); see

also Brandon L. Garrett, The Substance of False Confessions, 62 STAN. L. REV.

1051, 1054-56, 57, 84-85 (2010) (discussing false confessions of JeffreyDeskovic,

Travis Hayes, and Ryan Mathews, which contained shocking amounts of detail and

specificity, and credited by the juries over exculpatory DNA evidence).

22

D. Andrew Krivak's Confession Exhibits the Hallmarks of a False Confession.

At eighteen years old, Andrew Krivak signed a police-drafted statement

admitting to murder after seven hours of interrogation, isolated from any friends or

family, and only after repeated lies from detectives with a track record of eliciting

false confessions through improper conduct. Mr. Krivak signed this statement for

Detective Castaldo, a detective with a history of inflicting violence on a prisoner

and lying about it in his report. See People v. Castaldo, 146 A.D.3d 797, 46

N.Y.S.3d 115 (2d Dep't 2017); see also David Propper, Castaldo Case Ends in

Plea Deal, The Examiner, Feb. 20, 2017,

https://www.theexaminemews.com/ castaldo-case-ends-in-plea-deal/ (reporting on

Castaldo's guilty plea to harassment in the 2nd degree).

Senior Investigator Daniel Stephens, another PCSD detective with a history

of improper investigation tactics, administered a flawed polygraph to Mr. Krivak

and arguably lied about the results. See DX5 1152:9-l 156:13 (1997 trial testimony

of defense polygraph expert Edwin Lambert, who found Krivak's answers to

polygraph questions truthful); DX 1024:21-1026:25; 1033:13-1037:18 (1997 trial

testimony of Investigator Stephens, admitting to certain problems with the

polygraph).

5 The 1997 Krivak trial transcript is referred to herein as ''DX".

23

The Krivak case was not Investigator Stephens' first encounter with

allegations of wrongfully obtained confessions. In 2014, in a New York case

demonstrating similar tactics by Investigator Stephens, a jury awarded Jeffrey

Deskovic $40 million after finding that Investigator Stephens "fabricated evidence

and coerced Deskovic's false confession" to murder, resulting in Deskovic's

wrongful conviction. Jonathan Bandler, Deskovic awarded $40M in wrongful

conviction case, Lohud (Oct. 24, 2014 9:49 AM),

https://www.lohud.com/story/news/local/2014/10/23/jeffrey-deskovic-wrongful-

conviction-forty-million-verdict/17798527/.6

Investigator Stephens' discredited tactics in the Deskovic case parallel his

tactics in conducting Mr. Kriyak's polygraph examination and obtaining his

confession. Following a six-hour polygraph examination and additional two hours

of questioning, in which Stephens accused Mr. Deskovic of murder and used

unreliable and improper methods in his administration of the polygraph,

Investigator Stephens told Mr. Deskovic he failed, despite inherent problems with

the examination. See 894 F. Supp. 2d at 466. After learning of the polygraph

6 In denying summary judgment to the Defendants in Deskovic's civil case, a federal district court noted that the "potentially unreliable and abusive polygraph examination" was instrumental in obtaining the false confession. Deskovic v. City of Peekskill, 894 F. Supp. 2d 443, 460 (S.D.N.Y. 2012).

24

results, Mr. Deskovic falsely confessed to the rape and murder of his classmate, a

crime for which he was ultimately exonerated by DNA evidence. See id.

Mr. Krivak's confession similarly was the product of a marathon

interrogation and polygraph examination, in which the very same investigator once

again used a flawed examination and communicated to Mr. Krivak that he failed

the examination, ignoring the examination's deficiencies and, arguably, its actual

results.

Given the severity of this prior misconduct, the detectives' histories of

misconduct should, at the very least, be presented to a jury. Indeed, during the

course of his approximately seven-hour interrogation, Detective Castaldo and

another detective, Detective Quick, falsely told Mr. Krivak that: (1) his co

defendant implicated him in the crime, (2) witnesses reported seeing him at the

crime scene with the victim, and (3) evidence placed the victim in his van. See

Brief for Defendant-Appellant at 6-7 (citations omitted). As is obvious,

Investigator Stephens employed many of the same improper tactics in Mr. Krivak's

interrogation that led to Mr. Deskovic's false confession and for which he was so

severely chastised in federal court.

The Court need not rely on Mr. Krivak's word about coercive and improper

police practices in this case. At the 2016 trial acquitting co-defendant Anthony

DiPippo, several witnesses recanted their testimony from the 1997 trial, testified

25

that the PCSD investigators pressured them into signing false statements and

confirmed that they provided false testimony at trial. See id. at 16-20.

For example, according to one witness, detectives Castaldo and Quick spent

16-18 hours convincing the witness to go along with one of three scenarios, none

of which happened. TX7 1295:7-1296:18. Another witness testified that the

detectives drove him around "in order ... to get the story that they had laid out for

me to go along with .... [T]hey told me where to say the van pulled over and

where this happened so that there was no confusion or mistake in what they had

written for me to sign and what they wanted me to tell the District Attorney the

next day." TX 1297:4-19. The details the detectives were so anxious to get right,

and which these witnesses later recanted, were details that matched Mr. Krivak's

confession. With these witnesses recanting, Mr. Krivak's confession now lacks the

same independent corroboration the PCSD worked so hard to obtain.

Importantly, Mr. Krivak's confession contained no new information; that is,

everything to which Mr. Krivak confessed he learned from the police. He provided

no new details that could be independently confirmed. See Irrational Action, 7 4

DENV. U. L. REV. at 992 (explaining that proof that a suspect knows at least one

particular, non-public and unusual detail about the crime is fundamental to the

7 The 2016 DiPippo trial transcript is referred to herein as "TX".

26

corroboration of a confession). Stripped of its false corroborating support, Mr.

Krivak's confession now emerges with virtually all the indicia of a false

confession.

Mr. Krivak's seven-hour interrogation session was riddled with flawed

"scientific" tests, false evidence ploys, interminable and unrelenting pressure from

a set of investigators who had already determined that he was guilty and who went

to great lengths to ensure that the witness testimony corrobe>rated the police theory

of the crime, not the truth. A third party has confessed to the crime. Key

witnesses have recanted their prior testimony and explained the pressures they

faced from the PCSD to go along with the police narrative. Yet, Mr. Krivak

remains in prison based on the statement he signed, following a coercive

interrogation. The circumstances surrounding Mr. Krivak's confession have all the

hallmarks of the conditions in which false confessions flourish. We respectfully

submit that Mr. Krivak should be granted a new trial.

27

III. THIRD PARTY GUILT IS HIGHLY PROBATIVE OF FALSE CONFESSIONS AND SHOULD NOT BE EASILY DISREGARDED

Where, as here, there is solid evidence of third party guilt, relying solely on

a potentially faulty confession to deny a new trial can result in the denial of

fundamental due process for an innocent defendant.

A. The Danger of Ignoring Evidence of Third Party Guilt in Practice: Marvin Anderson's Wrongful Conviction.

Marvin Anderson's wrongful rape and assault convictions share many

parallels with the instant case and provide an unsettling example of the danger of

ignoring third party guilt. In Mr. Anderson's case, although evidence of third party

guilt was available before trial, it was never presented to the jury, and he was

convicted.

Some years later, the true perpetrator came forward and confessed to the

crime. Still, although the court heard the third-party confession, it refused to grant

Mr. Anderson a new trial. DNA analysis ultimately acquitted Mr. Anderson by

matching the third party who confessed to the crime. Mr. Anderson served fifteen

years in prison, and four years on parole for a crime he did not commit. The

Innocence Project, Marvin Anderson,

https://www.innocenceproject.org/cases/marvin-anderson/ (last visited Mar. 29,

2018).

28

B. The Danger of Ignoring Evidence of Third Party Guilt in Practice: Rolando Cruz's Wrongful Conviction and Death Sentence.

In 1985, Rolando Cruz was convicted of the rape and murder of a young

girl, and sentenced to death. Hernandez v. Cty. of DuPage, No. 96 C 8030, 1997

WL 598132, at *3 (N.D. Ill. Sept. 19, 1997). Much of the evidence against Mr.

Cruz rested on false confessions and his own false incriminating statements. The

Innocence Project, Rolando Cruz, https://www.innocenceproject.org/cases/

rolando-cruz/ (last visited Mar. 29, 2018) (hereinafter "Rolando Cruz"). Later that

year, a third party, a serial killer, confessed to his attorney that he was responsible,

and that he committed the rape and murder alone. This information was conveyed

to the authorities. Hernandez, 1997 WL 598132, at *4. While appeals on Mr.

Cruz's convictions were pending, a key witness also recanted. Id.

Despite these facts, and the third-party confession, prosecutors proceeded to

a second trial after the convictions were reversed on appeal, resulting in a hung

jury. Id., at *5. The State of Illinois then proceeded with a third trial, resulting in

an acquittal. Id., at * 5. DNA has now conclusively established third-party guilt.

See Rolando Cruz. Mr. Cruz served ten years for someone else's crime. Id.

29

CONCLUSION

Confessions have a greater impact on juries than many other powerful forms

of evidence, including evidence of third party guilt and DNA evidence. There is

very little that ties Mr. Krivak to this crime. His co-defendant has been acquitted

and key witnesses have recanted. Another individual has admitted to this crime.

It is an ancient and foundational maxim that, in our system of justice, '"we

believe that it is better for ten guilty people to be set free than for one

innocent man to be unjustly imprisoned."' Furman v. Georgia, 408 U.S. 238, 367

n.158 (1972) (Marshall, J., concurring) (quoting Justice William Douglas in

Foreword, J. Frank & B. Frank, NOT GUILTY 11-12 (1957)); see also In re

Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring) (noting that it is a

"fundamental value determination of our society that it is far worse to convict an

innocent man than to let a guilty man go free"). If these noble and intensely

American sentiments mean anything at all, they must mean that where there is

evidence of third party guilt, a questionable confession should not stand in the way

of a new trial.

For this and all the foregoing reasons, theAmici ask this Court to grant the

relief requested by Mr. Krivak, reverse the Putnam County Court's decision, and

order a new trial, pursuant to C.P.L. § 440.10 (l)(g).

30

Dated: April 4, 2018 Newark, New Jersey

31

Respectfully submitted,

~ Eric R. Breslin, Esq. Melissa S. Geller, Esq. Amanda L. Bassen, Esq. Jovalin Dedaj, Esq. DUANE MORRIS LLP

One Riverfront Plaza 103 7 Raymond Boulevard, Suite 1800 Newark, NJ 07102-5429 Attorneys for Amici, The Innocence Network, The Innocence Project, The Exoneration Initiative, and the Office of the Appellate Defender

Certificate of Compliance with 22 NYCRR 670.10.3(a)(fl

Eric R. Breslin, an attorney duly admitted to practice in the courts of the State of New York and attorney for the Amici, certifies that the within brief was prepared on a computer using size 14 Times New Roman font and is double spaced. According to the word count function of the program used to prepare the brief, the brief contains 6,910 words, not including the table of contents, table of authorities, this certificate of compliance and the attached exhibit.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION, SECOND DEPARTMENT


Respondent,

-against-

ANDREW KRIVAK,


STATE OF NEW YORK ) )ss.:

COUNTY OF NEW YORK )

No. 2017-00638

AFFIDAVIT OF SERVICE

ONIKA MCLEAN, being duly sworn, deposes and says:

1. I am employed by the firm of Duane Morris LLP.

2. I am over 18 years of age, reside in the Brooklyn, New York and am not a party to this action.

3. On April 4, 2018, I caused service by sending a true and correct copy NOTICE OF MOTION FOR LEA VE TO FILE AN AMICI CURIAE BRIEF by depositing in the official depository maintained and exclusively controlled by the United States Government at 1540 Broadway, New York, NY 10036-4086, true and correct copies of the same, properly enclosed in a postpaid wrapper addressed to the following:

Clerk of the Court Supreme Court Appellate Division Second Department 45 Monroe Place Brooklyn, New York 11201

Adele Bernhard, Esq. New York Law School Post-Conviction Innocence Clinic 185 West Broadway, E-819 New York, New York 10013

Hon. Robert Tendy By ADA Larry Glasser Office of the Putnam County District Attorney County Office Building 40 Gleneida A venue

DMJ\8173254.1

Carmel, NY 10512

Andrew Krivak, DIN#: 97 A4236 Wende Correctional Facility 3040 Wende Road Alden, New York 14004-1187

Andrew Krivak, DIN#: 97 A4236 Elmira Correctional Facility P.O. Box 500 Elmira, New York 14901-0500

Sworn to before me this 4th day of April, 20

~

·· JULIE L..WATTS MtJt•'f PUB!JC, Slate ol N,aw Vllk

Mo. O,WA5014288 aillllled In Nassau cout«T • ..' '7(' \ q

ConnlallOn E.pltal July 15, y LV

DMl \8173254.l

Oru>--dl-s<D-Onika McLean

2

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