Eye on the Courts: Research Shows Flaws in Marsh Interrogation

As we noted last week, we remain troubled by the confession of Daniel Marsh. As we noted last week, during a suppression hearing this spring, Andrea Pelochino of the Public Defender’s office argued that Daniel Marsh’s youth, inexperience and mental health challenges made him uniquely susceptible to the suggestions of law enforcement and a veteran FBI special agent.

Ms. Pelochino cited research on juvenile susceptibility, versus that of adults, to confess or possibly falsely confess under pressure.  She argued that his apparent sophistication does not matter.

In an article in yesterday in the New York Times, that point is driven home. The Times cites a study published in June in Law and Human Behavior, a publication of the American Psychological Association, that is among the first to examine actual interrogation of juvenile suspects.

As the study notes in its abstract, “The present study examines electronically recorded police interviews with juveniles to describe the characteristics, processes, and outcomes that occur in actual juvenile interrogations, including interview duration, individuals present, and confessions. Fifty-seven electronic recordings from 17 police departments were analyzed using observational research software. The median juvenile interrogation lasted 46 min, though the range was extensive (6 min to nearly 5 hr). Youth frequently submitted to questioning without a parent or advocate present, and disruptions to the interview process were common. Interrogation outcomes varied and included full confessions, partially incriminating admissions, and denials of guilt.”

As the New York Times notes, “Even when police interrogators left the room, cameras kept recording the teenage suspects. Some paced. Several curled up and slept. One sobbed loudly, hitting his head against the wall, berating himself. Two boys, left alone together, discussed their offense, joking.

“What none did, however, was exercise his constitutional rights. It was not clear whether the youths even understood them.”

The result is troubling – none of the juveniles had a lawyer at their side. None of them left, even though they were free to do so, and none remained silent.

As the Times writes, “The research, published in Law and Human Behavior, adds to accumulating evidence that teenagers are psychologically vulnerable at the gateway to the criminal justice system. Youths, some researchers say, merit special protections.”

“If kids are making these poor decisions because their development is not complete, then to penalize them with long-term legal consequences is unfair,” said the study’s author, Hayley M.D. Cleary as reported by the Times.

This study is the first to examine actual interrogations.

As we have noted before, jurors find confessions highly persuasive. One study that looked at actual wrongful convictions found that jurors would accept confessions even in cases where there was direct exculpatory evidence.

Moreover, with teenagers, studies continue to show that they “are not developmentally ready to make critical decisions that have long-term impacts.”

“Adolescents are more oriented to the present, so they are less likely than adults to be thinking about the future consequences of what they’re saying,” said Laurence Steinberg, a professor of psychology at Temple University, the Times reports.

“The police often promise kids things in the present. ‘If you just tell me you did it, you can go see your mom,’ ” he continued. “And because the brain’s reward systems are hypersensitive during adolescence, that immediate reward of confessing will trump the thinking of, ‘What will happen when I come back to court in a month?’ ”

This is exactly what happened in the Daniel Marsh case. Veteran FBI Special Agent Chris Campion repeatedly told Daniel that he was his healer: “Now, Daniel, this is your time to heal, I am here to heal you, this is your refuge.”

This is a common tactic by interrogators – they create conflict and attempt to back the individual into the corner so that he or she sees the only way out of the situation is to confess.

As we noted last week, “Youth are more naive, trusting, fearful and more easily misled. Investigators can more easily suggest to juveniles that they face harsher consequences if they don’t confess, and much lesser consequences if they do. After hours of interrogation, studies have shown, many youthful suspects will conform their stories to cues from detectives, believing they can then finally go home.”

The Times notes that “teenagers aged 15 and younger will unwittingly comply with authority figures. They are very suggestible, so that during an interrogation, they are more likely than adults to change their answers in response to interviewers.”

The Times writes, “In Dr. Cleary’s study, the average age of the juveniles, almost all boys, was about 15. In nearly every interview, the door was shut to the interrogation room, with the suspect sitting in a corner and the interrogator between the youth and the door. In half the cases, the interrogator had a visible weapon. In 16 percent, the suspects were handcuffed or in leg shackles. The interrogations were frequently interrupted, with other interviewers coming and going. The teenager often was left alone. One interrogator came and went 19 times.”

The Times writes, “Dr. Cleary speculated that interruptions could heighten a suspect’s anxiety but they could also afford him mental breaks.”

A significant concern about interrogations of juveniles has been their limited capacity to comprehend rights such as the Miranda warnings.

The Times notes, “Dr. Steinberg once asked a 12-year-old about the right to remain silent. In his new book, ‘Age of Opportunity: Lessons From the New Science of Adolescence,’ he recounts how the boy, who recognized the Miranda warnings from watching ‘Law & Order,’ replied: ‘It means that you don’t have to say anything until the police officer asks you a question.’ Some jurisdictions require that parents be present for interrogations of teenagers. In Dr. Cleary’s study, only 12 suspects were accompanied by parents during portions of the interviews, whose duration ranged from six minutes to five hours, with the average about 45 minutes.”

But if parents are not legally savvy, their presence may not serve young suspects well, the Times points out

They write, “In the videos, five parents remained largely silent. Some lectured their children and then questioned them, taking on the interrogator’s role. A few parents urged their children to come clean, inadvertently sealing their fate.”

Parents have conflicting roles, Dr. Cleary said. “They want to defend their children against accusations of wrongdoing. But we also socialize children to obey the law and tell the truth.

“Some parents might have felt compelled to use the situation as a teachable moment, or they might have felt their parenting skills were being threatened.” Dr. Cleary said. “It’s not fair to put parents in that situation, particularly without a lawyer.” But how do parents balance encouraging children to respect authority against the harm that can befall them by speaking with interrogators?

Dr. Steinberg suggests that parents tell teenagers: “If you’re being questioned by police because they think you’ve done something bad, say you need to talk to your parents first.” Parents can decide whether to call a lawyer.

The Times writes, “Citing recent research, the American Psychological Association has called for widespread protections for suspects, including teenagers, during interrogations. The recommendations include limiting the length of interviews; videotaping them in their entirety; assuring that teenagers are always accompanied by a lawyer; and that interviewers be trained to reduce the risk of eliciting false confessions from impressionable suspects such as youths.”

“This spring, the International Association of Chiefs of Police, a law enforcement coalition, along with the federal Office of Juvenile Justice and Delinquency Prevention, developed online training for those who interview adolescents. Drawing from developmental research, the program instructs officers to explain Miranda warnings in language teenagers will understand and not to make false promises of leniency, because of youths’ proclivity toward gullibility.”

“We want to avoid involuntary or false confessions from juveniles,” said John Firman, director of research for the association. “The ultimate goal is to get accurate information from them. And if you don’t understand juvenile brain development, the likelihood is that you’ll get bad information.”

David Angel will be in Yolo County on November 15 at the Vanguard Court Watch Dinner and Awards Ceremony to talk about the Santa Clara Convictions Integrity Unit – for more information click the button

Where does that leave Daniel Marsh?

Daniel Marsh was a 16-year-old. He was lured to the interrogation room under false pretenses and he agreed to waive his Miranda rights, believing he would be interrogated on a knife incident. He was kept in the interrogation room for five hours, denied his mother, an attorney, or the chance to leave.

The veteran FBI Agent Campion then gave him an out and promised to heal him, ultimately inducing him to confess to the crime.

As we have noted, there are a number of false convictions that end at this point. They have the confession and little other evidence. Sometimes the jury weighs the confession so heavily that they ignore exculpatory and contradictory evidence.

In this case, you have physical evidence, and the fact that Mr. Marsh had bragged to his friends about the crime, to bolster the confession, but other than the fact that the confession was videoed, the police abandoned evidence-based practices in how they went about obtaining the confession. Under other circumstances, we would be alarmed more than we are at how this was conducted.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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20 Comments

  1. theotherside

    ” A few parents urged their children to come clean, inadvertently sealing their fate.”

    Sealing their fate?   I see this differently, it’s teaching their child to take personal responsibility.  To tell the truth, not to lie to an authority figure.  Imagine that!  A lesson every parent would hope to pass on to their children.  Keep in mind the tiny size of the sample here, 57 interviews.  I would like to know the range of crimes being investigated in this study as well.  I doubt any of them were homicides, such as in Marsh.  I would imagine they ranged from burglaries to assaults and other thefts.

    A confession isn’t just trying to get them to say “yeah I did it”.  The end game is to get the details of the crime from the suspect.  Details that no one but the suspect would have.  That weeds out the false confessions and is what has the impact on jurors…but usually keeps cases from going to trial.  So Marsh did give those grisly details.

    “He was kept in the interrogation room for five hours, denied his mother, an attorney, or the chance to leave.”

    This is at least the second time I have seen you write this.  Please point out where, when, and how Marsh was denied an attorney.  That would be a clear Miranda violation and is quite illegal.  Had a request for an attorney been denied, his confession would have been excluded and we would not even be discussing this.  your readers are going to read and believe this, quite irresponsible….

    1. South of Davis

      TOS wrote:

      > Please point out where, when, and how Marsh was denied an attorney.

      > That would be a clear Miranda violation and is quite illegal.

      But it would not fit the “cops trick people in to saying they are killers ALL THE TIME narrative that David rarely goes a week without touching on”…

      >  Had a request for an attorney been denied, his confession would have

      > been excluded and we would not even be discussing this.  your readers

      > are going to read and believe this, quite irresponsible….

      And if he had an attorney (who didn’t go to a top 50 law firm) and (just) his Mom at his side David would be writing:

      “He was denied his father and quality legal representation”… since even if he had his entire extended family by his side and Justice Sotomayor heading a 20 member “Liberal Dream Team” it would not be enough for David who would also want to have Thomas Keller cooking for poor little Mr. Mash who could easily be “tricked” in to admitting he killed his neighbors even with his family and legal counsel if he didn’t have a full tummy…

      1. sisterhood

        “it’s teaching their child to take personal responsibility.”

        If my child did a minor crime, not a violent crime, I would not want her to confess. Because the treatment my child would receive in a juvenile detention center or county jail would probably not be justice. I would not want my child to confess. Maybe confess to a member of the clergy, or to a therapist, and of course to take responsibility. But not to law enforcement. Sadly, I have lost faith that law enforcement would treat my child fairly and compassionately.

  2. Robert Canning

    The whole area of confessions and police interrogation is a rat’s nest. A good introduction might be the article that appeared in the New Yorker last winter: http://www.newyorker.com/magazine/2013/12/09/the-interview-7. The article details a particular set of police interrogation techniques and the social science research which suggests we should not be so comfortable with those methods.

    The issue of consent is particularly controversial for adolescents. Here in Davis a couple years ago the police proposed an “internal possession” ordnance that would have allowed the police to approach citizens (under or over the legal drinking age) and “request” that they consent to a breathalyzer. In the presentation to the City Council, the police assured the CC that they had adequate consent procedures in place. But unfortunately the social science research on this suggests that the presence of uniformed police officers compromises the ability of many individuals to offer uncoerced consent. As Professor Janice Nadler at Northwestern University School of Law has written: “…[W]hen police officers ask a person if they can search, citizens often feel enormous pressure to say yes….Courts often analyze the language of police encounters as if the conversation has an obvious, context-free meaning.” Luckily the police dropped the proposal for the ordnance when presented with some resistance by the public and several members of the CC.

    I’ve never been interrogated by the police but I wouldn’t want to be. Can you imagine what it must feel like for a 15 year old mentally ill boy to be closed in a room with two experienced police officers? If he was such a psychopath, why did it take such a short time to get a confession? A good intro to why not to talk to the police is given in the relatively notorious YouTube video found here: http://youtube.com/watch?v=6wXkl4t7nuc. After listening to law professor explain, listen to the cop (a law student) explain why what the professor just said is true.

    I am not suggesting that Daniel did not commit the crime, but the methods used to obtain 1) his consent to talk to the cops without an attorney (and a parent); and 2) his confession, are not those that we should applaud. There needs to be more transparency and openness about the coercive methods the police are allowed to use to investigate crimes.

  3. Tia Will

    “… To tell the truth. Not to lie to an authority figure.”

    i agree with the second statement not to lie, but strongly disagree with the first. I would never teach my children to say anything at all to a police officer without a lawyer present. This belief was strongly reinforced by my interactions with law enforcement officials who defended their right to lie to those detained in order to obtain information. As a matter of fact, the information obtained at the Citizens Academy was itself less than truthful since they maintained that this technique of lying to a detainee would only be used in the case of imminent threat to life as in an ongoing abduction case. That clearly eas not the case here as Daniel was lied to repetitively by his interrogators.

    Given the propensity of “authority figures” in the form of police and interrogators to tell what ever lies suit them,  my advice is that the first and only words that should be spoken  are ” I want a lawyer now, please”

    1. South of Davis

      Tia wrote:

      > my advice is that the first and only words that should be spoken

      > are ” I want a lawyer now, please”

      People that say “I want my lawyer now” make the cops mad and the cops will often (but not always) try to F with them for making them mad.

      Better advice it to “pretend” that you are on the cops side and not really say anything (“sorry officer I was reading e-mails on my phone and didn’t see anything”).  If the cops think you don’t have a problem with them they will almost always let you go.

      Most (but not all) people go in to law enforcement because they like to feel in control and like to have people do what they say to do.  People who take Tia’s advice will often (but not always) end up downtown (and a legal bill from their attorney) and a fix it ticket after a billy club takes out a tail light (and a bill from the Toyota dealer)…

      1. theotherside

        There is way too much wrong here to even go over it piece by piece.  SOD must gave gotten a ticket he disagreed with or watches wayyyyyyy too much TV.

        Tia, that rarely happens and is usually an ineffective technique.  I teach my child to tell the truth and take responsibility for their actions.  There’d be a whole lot less interrogations if other parents followed suit.

        1. sisterhood

          “Tia, that rarely happens and is usually an ineffective technique.”

          “Rarely” – so you admit it does happen. It should never happen. I’m not feeling better because it is a “rare” occurrence.

          “There’d be a whole lot less interrogations if other parents followed suit.”

          It sounds like you are washing your hands of any law enforcement wrongdoing and blaming crime on the parents of the defendant.

          “I teach my child to tell the truth…”

          Then surely you would want a cop or a detective or an FBI agent to always tell the truth, too. Especially during an interrogation.

      2. Tia Will

        South of Davis

        My advice was not meant for the casual on the street “may I speak with you” approach from a police officer. For this kind of interaction, I would suggest a phrase such as, No, thank you officer, I do not have the time now. Unless I am being detained, I really have to go now.  If you are detained, then and only then would plan B below be advisable.

        My advice was how to respond if you have been arrested or feel that you have been implicated in a crime. It is then that I would recommend declining to say anything at all without having a lawyer present.

        “People that say “I want my lawyer now” make the cops mad and the cops will often (but not always) try to F with them for making them mad.”

        This is a pretty strong assertion with regard to the lack of professionalism of our police and I certainly hope that it is inaccurate.

         

        1. Themis

          Tia,

          I strongly agree with what you are saying. I give the same advise to everyone I know that has teenage children. The first thing anyone should say to the police is, “Am I free to go?” Then leave or ask for an attorney.

        2. South of Davis

          Tia wrote:

          > This is a pretty strong assertion with regard to the lack

          > of professionalism of our police and I certainly hope that

          > it is inaccurate.

          Reading the news today we have another example of what cops do to a man (holding his infant child) that talks back to them:

          “officers arrived and took Hashitaka to the ground and choked him until he lost consciousness”

          http://www.sfgate.com/bayarea/article/Man-sues-S-F-cops-over-Baby-Bjorn-incident-5822801.php

      3. sisterhood

        “”People that say “I want my lawyer now” make the cops mad and the cops will often (but not always) try to F with them for making them mad.””

        My personal experience with the Dixon police dept., many years ago, is that the above statement was true, back then, in my situation.

  4. Tia Will

    theotherside

    “I teach my child to tell the truth and take responsibility for their actions.  There’d be a whole lot less interrogations if other parents followed suit.”

    With this, I wholeheartedly agree. However, telling the truth with a lawyer present is much, much safer than telling the truth without a lawyer present. And refusing to answer questions without a lawyer is neither being dishonest, nor is it not taking responsibility for one’s actions. I consider it the safest course. There will be plenty of time to get things sorted out once a lawyer arrives.

    I am unsure what you are basing the idea that it rarely happens that police lie to suspects when in reality to mislead or pretend that you know more than you do is quite a common tactic according to police interviews that I have heard on news programs and according to our own city and county law enforcement who defended it in a number of circumstances while at the same time claiming that it would only happen in cases such as abduction. At this program, several other instances were brought to their attention and they stated that that would also be a possibility.

     

    1. sisterhood

      “…in reality to mislead or pretend that you know more than you do is quite a common tactic according to police interviews ”

      A member of Dixon law enforcement questioned me and I caught him/her in a bold faced lie, that I even had physical evidence, to disprove.  The cop/detective also threatened to send CPS to my home if I did not cooperate with them, even though I was an innocent bystander. After that happened, I refused to speak with any member of law enforcement without a lawyer present.

      Some cops are decent human beings who really do want to help their community. Others are maniacal egotistical sadistic bullies.

  5. KonaOhana

    Every lawyer or COP I’ve every talked to about interaction with the police is if at any time your approached to be questioned you want a lawyer to do your talking. If one is needed the public defenders are available and the police are required to provide a lawyer.  Typical tickets no need if you’re asked if they can search you or your car tell them NO. They do not have the right to search. If it proceeds this is when you tell them you want a lawyer.  They’ll either provide a lawyer or go away.

    .Since the PATRIOT ACT was passed most of or civil rights are very tenuous.

  6. DavisBurns

    I read the article about the man with his child on a bike in San Francisco.  My daughter subscribes to something that reports on bad cops.  The stories she relates to me daily are astounding.  Occasionally I will watch one of the videos.  What are we thinking in this country?  Our cops are out of control.  Even in Davis, they wear bullet proof vests.  I tried to find out if we have ever had a copy shot in Davis and if we have, I can’t find a shooting much less a death.  I think when they were those things it puts them in the mindset of being in danger, same as other para-military equipment.  There was a time when I would have talked talked to police if stopped but no longer.  It is a sad state of affairs when we are at risk when we have an encounter with law enforcement–or even have good cause to believe we are at risk based on others experience.

    1. sisterhood

      “Our cops are out of control.  Even in Davis, they wear bullet proof vests.”

      Due to a “series of unfortunate events”, I’ve dealt with the Davis police on over ten occasions. It all depends on what officer you are dealing with. Some were wonderfully professional. Others were words I cannot get printed here.

    2. Jim Frame

       I tried to find out if we have ever had a cop shot in Davis and if we have, I can’t find a shooting much less a death.

      A Davis PD officer was shot and killed in the line of duty in 1959, as I recall.  It was a long time ago, but it does illustrate the fact that even sleepy little Davis gets its share of bad guys.

      1. South of Davis

        Jim wrote:

        > A Davis PD officer was shot and killed in the line of duty in 1959

        Just like I know Marsh (or another killer) may get out of jail someday and try to kill one of my kids or grandkids with a knife I’m not going to get a CCW and carry a gun every day since the chance of this happening is so low.  I feel the same way about the MRAP, I know the cops “may” “need” it once in the next 50 years (say to pull a injured cop out of a driveway when we don’t have a dump truck handy) but I think the chance of this is low and we are better off spending the money trying to “prevent” crime than rolling in like the Marines with Marine surplus tanks MRAPs amd M16s “after” the crime happens (since maintaining all these “cool toys” was killing the budget)…

  7. sisterhood

    “If one is needed the public defenders are available and the police are required to provide a lawyer.”

    I wonder how quickly a public defender could have reached Mr. Marsh at the police station? Thirty minutes? An hour or longer? And what would the police have done while Mr. Marsh was waiting? Would he be placed in jail overnight while waiting for the public defender? Maybe a lawyer out there, or a cop, can answer my questions.

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