Imagine watching Shakespeare’s “Othello” without knowing what Iago is up to. Fortunately, Iago’s soliloquies and asides clue in the audience that, while pretending to be Othello’s best friend, he’s manipulating Othello into a jealous rage so that he ends up murdering poor innocent Desdemona. An audience taking Iago’s blandishments at face value would just go home thinking she got her comeuppance.
Unfortunately for Adrian Thomas, the cops interrogating him on videotape didn’t soliloquize or make asides. The jury (and AD3) took at face value that the cops, like Iago, were being “friendly and supportive.” Without an expert, the jury couldn’t know that the interrogation was a classic demonstration of psychologically manipulative techniques.
Adrian’s lawyer wanted to call Dr. Richard Ofshe, a social psychologist and expert on police interrogation techniques and false confessions, to explain to the jury that suggestions like, “we know it was an accident,” or “you don’t remember doing it because you’ve repressed the memory,” or “you won’t be arrested if you tell me ‘the truth,'” are not friendly and supportive, but standard tactics for getting a self-incriminating statement. And that these tactics have been shown to make innocent people confess.
The court ordered a Frye hearing where the People brought in their champion, Paul Cassell, a law professor from Utah and former prosecutor and judge, best known for his campaign to abolish those criminal-coddling Miranda warnings. Unencumbered by training in the behavioral sciences, Cassell asserted that he was “a practitioner of social psychology.” His psychological research consisted of collecting 219 case files from the Salt Lake County District Attorney’s Office. Lo and behold, in densely populated Salt Lake County, where the leading crime is probably having too many wives, not a single one of the 219 cases involved a claim of a false confession! From which Cassell scientifically concluded that false confessions are as rare as unicorns.
The Einstein of Utah didn’t stop with a single experiment. He went on to calculate that, according to FBI figures, there are 900,000 arrests per year which, over a 23-year period add up to 20 million. Cassell divided this figure by 60, which was the number of confessions that Dr. Ofshe had identified as false in a 1996 article. From this, Cassell concluded that the frequency of false confessions is one hundredth of one percent. Well, yes, if 20 million arrests is the same as 20 million true confessions.
Cassell’s contribution to the truth-seeking process is his notion that nothing can be known about false confessions or their causes until we know how many there are. Just like nothing can be known about the flu until we know how many people have it. In the meantime, he wants to have videotaped confessions instead of Miranda warnings. Needless to say, there should be no expert testimony on the non-existent phenomenon of false confessions.
The trial judge swallowed this whole.
Appellate Squawk’s scientific studies have conclusively demonstrated that the defense can proffer the country’s leading expert and the People can proffer Howdy Doody and guess who wins out? Not science, and not the accused.