by Jacob Barrett
On May 24, 2021 the Oregon Legislature passed SB 418 banning police from lying to juveniles in order to obtain a confession during interrogations. The bill is part of a number of youth reform measures recently passed by the Legislature. Oregon is only the second state to pass such legislation.
Under SB 418, a statement made by a juvenile while in custody is presumed to be involuntary made if the person is under 18 years of age, the statement is made in connection with an investigation into a misdemeanor or a felony, and a court determines that police intentionally used information known by them to be false to elicit the statement.
The bill allows for an exception if the state proves by “clear and convincing evidence” that the statement was “voluntary and not made in response to the false information used by the [police] officer to elicit the statement.”
SB 418 prohibits the use of deceptive interrogation tactics, including false promises of leniency and false claims about the existence of incriminating evidence.
Research has repeatedly shown that young people are particularly susceptible to manipulation during interrogation. Due to an undeveloped prefrontal cortex, juveniles have particularly weak judgment, problem-solving skills, and decision-making abilities as compared to adults. Juveniles are two to three times more likely to falsely confess during interrogations than adults. Studies show that juveniles exonerated by DNA evidence falsely confessed at a rate of 31.1% compared to exonerated adults at 17.8%. Further, of 340 exonerations by DNA, 42% of juveniles have falsely confessed compared to 13% of adults.
Juveniles are more likely to falsely confess for the same reasons that they are at risk for dangerous behavior: impulsivity and difficulties in weighing risks and rewards, vulnerability to pressure and suggestion, and motivation from short-term rewards. This developmental timeline is linked to vulnerabilities during interrogation, increasing the likelihood that juveniles will falsely confess to criminal acts that they did not actually commit.
Deceptive interrogation tactics have long been known to significantly increase the risk of false confessions by both juveniles and adults. Even proponents of manipulative investigation techniques such as the Reid Technique, urge caution in applying these tactics to juveniles. Investigators must “modify their approach” to account for age, cognitive ability, and other personal risk factors that may result in the suspect providing officers with false or unreliable information.
While SB 418 was sponsored by former police officer turned State Senator Chris Gorsek (D), State Senator Michael Dembrow (D), State Senator James Manning, Jr. (D), State Representative Khanh Pham (D), and State Representative Jeff Reardon (D), it traces its roots in the work of the Innocence Project, the Center on Wrongful Convictions at Northwestern University School of Law, and the Oregon Innocence Project, which have repeatedly exposed hundreds of wrongful convictions based on false confessions obtained through deceptive police interrogation tactics. “As a criminal justice educator and former police officer, this is a professional standard I teach and we have reliable data showing that untruthfulness used in interviews can lead to false confessions,” Senator Gorsek said.
“False confessions that contribute to wrongful convictions do not serve the interests of justice: they harm victims, erode public trust in the legal system, and waste public resources,” said Bridget Budbill, Legislative Director of the Oregon Office of Public Defense Services. “The irreparable harm a wrongful conviction causes to the person convicted in error is unparalleled: there is no state action that will make that person whole again when a miscarriage of justice of that magnitude occurs,” Budbill noted.
Huwe Burton and Martin Tankleff, two men who were exonerated after the use of deceptive police tactics, supported the legislation. Tankleff, who spent 17 years wrongfully imprisoned, said, “It is my hope that with the passage of this legislation, young individuals will not suffer the type of interrogation tactics I and others have suffered. Passage of this legislation protects all, especially our community.”
The International Association of Chiefs of Police agrees police should avoid using deception or promises of leniency when questioning juveniles. SB 418 promotes the national consensus of best practice.
According to Rebecca Brown and Zach Winston, of the Oregon Innocence Project, “[a]t a time where police-community relations are suffering tremendously, changing how young people are interrogated [goes] a long way towards helping to repair public trust in the criminal legal system.”
This past July, Illinois was the first state in the nation to enact legislation banning the use of deceptive tactics when interrogating juveniles. Senate Bill 2122 takes effect January, 1, 2022.
Sources: forensicmag.com; oregonlegislature.gov; “The Truth About False Juvenile Confessions,” American Bar Association Insights on Law and Society (2016); “Arresting Development: Convictions of Innocent Youth,” Rutgers Law Review (2010); “Exonerations in the United States 1989 through 2003,” Journal of Criminal Law and Criminology; Dassey v. Dittmann, U.S. Supreme Court Amici Curiae Brief of Independent Law Enforcement Instructors and Consultants in support of Petitioner (2018); “Police Training in Interviewing and Interrogation Methods: A Comparison of Techniques Used with Adult and Juvenile Suspects,” Law and Human Behavior (2016).
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