The Fifth Amendment states that, “no person . . . shall be compelled in any criminal case to be a witness against himself.” Additionally, the U.S. Supreme Court case Miranda v. Arizona states that, among other things, warnings against self-incrimination must be read to suspects who are undergoing custodial interrogation. Together, these protections are in place to protect individuals from implicating themselves in a crime. Despite this, many suspects waive their Miranda rights and confess their involvement in criminal activity. Any incriminating statements given by suspects may be used against them in a criminal proceeding.
A confession is one of the strongest forms of evidence against the defendant and research indicates that juries are more likely to convict a defendant based on a confession than on any other type of evidence. Due to the powerful effect of confessions, there are some instances in which criminal justice actors, such as police and prosecutors, engage in tactics that attempt to elicit confessions from suspects who would not otherwise speak voluntarily. The use of compulsion or coercion to elicit confessions is clearly prohibited by the language of the Fifth Amendment.
According to researchers, there are three types of confessions. The first is a voluntary confession, in which a suspect confesses to a crime without any outside influence. Suspects may voluntarily confess for any number of reasons; these range from being factually guilty to protecting another person involved in the crime. Whatever the reason, these confessions are usually admitted at trial. The second type is a compliant-coerced confession, in which the suspect confesses after undergoing an interrogation laden with coercive tactics by police. In these situations, suspects plead guilty to put a stop to psychological and/or physical coercion by the police. Some suspects are more susceptible to pressure than others and may not be able to resist confessing when such tactics are used. With these confessions, the suspect may or may not be factually guilty. Compliant-coerced confessions are the most common type of confession to be false.
The third type is the coerced-internalized confession, in which the suspect has been so manipulated by the police that he actually believes he has committed the crime and, thus, confesses. One common method that police use to induce a coerced-internalized confession is to allege that the suspect was under the influence of drugs and/ or alcohol and simply blacked out, which would explain why the suspect does not remember committing the crime. Coerced confessions that contribute to the conviction of a defendant can be the basis of a successful appeal; as a result, the defendant may be granted a retrial without the confession admitted as evidence.
Coerced confessions can be obtained by a number of means; physical force, isolation, food and sleep deprivation, lying about evidence, and threats of physical harm have all been employed to elicit confessions from suspects. In fact, most cases of coerced confessions are due to promises made to the suspect such as lenient punishment, or threats such as harsh punishment. Because such incentives may be sufficient to produce an untruthful confession, the U.S. Supreme Court has ruled that coerced confessions may be excluded at trial. One of the first U.S. Supreme Court cases to deal with coerced confessions was Brown v. Mississippi (1936). In this case, police officers stripped, whipped, and tortured African American suspects into confessing to a murder of a white victim. In reversing the convictions, the court stated that, “the rack and torture chamber may not be substituted for the witness stand.”
The use of psychological coercion was brought before the court in 1940 in Chambers v. Florida. In this case, black suspects were questioned repeatedly throughout five days and nights by groups of up to 10 white interrogators, which included law enforcement officers and members of the community. The court stated that the suspects finally confessed as a result of “the haunting fear of mob violence … in an atmosphere charged with excitement and public indignation.” The court reversed the convictions, stating that the interrogations, “demonstrate … the relentless tenacity which ‘broke’ [the suspects’] will and rendered them helpless to resist their accusers further.”
The Brown ruling was later expanded in Arizona v. Fulminante (1991). In this case, Fulminante confessed in prison to a fellow inmate who was acting as an Federal Bureau of Investigation (FBI) informant. The informant claimed that, because Fulminante was rumored to have killed a child, the informant would offer Fulminante protection in exchange for Fulminante’s confession. Fearing brutal treatment at the hands of other inmates, Fulminante confessed to the murder.
The court ruled that the confession was coerced due to a credible threat of physical violence. Also, although the confession was not elicited by a police officer, the fact that the informant was acting on behalf of the police was enough for the court to reverse Fulminante’s conviction. Although Fulminante was factually guilty, the court stated that even factually guilty suspects have rights that must be recognized. Police may not resort to illegal methods to secure a confession; in particular, confessions are “fundamentally different” from other types of evidence due to their effects on a jury.
There are a number of consequences stemming from coerced confessions. First, coerced confessions are a violation of constitutional rights, as the U.S. Supreme Court has indicated. Second, coerced confessions cannot be trusted; there may be no way of knowing if a defendant is factually guilty or innocent if a confession is coerced and no other supporting evidence exists. Coerced confessions rob defendants of a fair trial and can lead to wrongful convictions.
Wrongful convictions are problematic on many levels, especially if they lead to an individual being placed on death row and, perhaps, executed. There are numerous organizations, such as the Innocence Project, dedicated to discovering and overturning wrongful convictions. Richard Leo states that approximately 15 to 20 percent of wrongful convictions exonerated through DNA testing were the result of coerced confessions.
- Kassin, Saul and Holly Sukel. “Coerced Confessions and the Jury: An Experimental Test of the ‘Harmless Error’ Rule.” Law and Human Behavior, v.21/1 (1997).
- Kassin, Saul and Lawrence Wrightsman. “Coerced Confessions, Judicial Instruction, and Mock Juror Verdicts.” Journal of Applied Social Psychology, v.11/6 (1981).
- Kassin, Saul and Lawrence Wrightsman. “Confession Evidence.” In The Psychology of Evidence and Trial Procedure, S. Kassin and L. Wrightsman, eds. Beverly Hills, CA: Sage, 1985.
- Leo, Richard. “False Confessions: Causes, Consequences, and Implications.” Journal of the American Academy of Psychiatry and the Law, v.37/3 (2009).
- Wakefield, Hollida and Ralph Underwager. “Coerced or Nonvoluntary Confessions.” Behavioral Sciences and the Law, v.16/4 (1998).
Conscience as Internal Sanction
Conscience is the “voice within” that an individual perceives when doing (or contemplates doing) something that he or she knows to be morally wrong. This “voice” is a set of physiological mechanisms that engage the primary emotion of fear and the social emotions of guilt, shame, and embarrassment. Ever since Charles Darwin, evolutionary scientists have viewed conscience as an evolved adaptation that functions to resolve conflicts between the pursuit of individuals’ selfish goals and the larger goals of the community. Possessing what theologians think of as “the voice of God” would have strong fitness benefits for individuals since it marks them as persons of good character who desire to do the right thing and who are cognizant of the rights and concerns of others. Individuals with a sturdy conscience show themselves as people who would make conscientious and agreeable mates, employees, colleagues, and friends. The bite of conscience is discomforting, and people seek to avoid or ease the unwelcome feeling. Conscience is both self-and other-centered. It warns individuals not to damage their relationships, because the consequences of doing so are detrimental to the self, and to repair these relationships if they have damaged them. Because group living requires cooperative relationships, conscience is the mechanism of civilization. Sigmund Freud proposed that civilization is bought at the cost of individuals surrendering the right to do what they please.
The concept of conscience is central to criminology because it is something that is severely compromised in criminals who “do as they please” to the detriment of others. The goal of socialization encompassing all other goals is the development of a conscience. Most social scientists tend to view socialization as simply a cognitive process whereby others pour prescriptions and proscriptions into empty heads, but the process is more complicated than that. If Darwin was correct that conscience is an evolutionary adaptation, there must be other biological mechanisms in addition to the prefrontal cortex dedicated to conscience development.
If social animals are to function cooperatively in groups they must possess the ability to respond to signals of reward and punishment with socially appropriate approach and avoidance behavior. Many philosophers have written about the hedonic tug-of-war within humans as they struggle to meet their wants and needs while being aware of the wants and needs of others. The classical model of approach-avoid behavior is Plato’s tripartite model of the soul: the appetitive, rational, and spirited parts. The appetitive part motivates individuals to seek the pleasures necessary to sustain individual life and the continuation of the species (food, water, and sex). The rational soul urges individuals to make wise decisions when seeking their goals, and the spirited soul emotionally enforces the dictates of the rational soul. In Plato’s famous chariot allegory, the charioteer is the rational soul fighting to control the spirited noble white horse (emotion) and the ugly black horse (appetite). Both horses are necessary to move the chariot forward, so none of the parts are bad in and of themselves; they just have to be reined in.
Freud’s tripartite model of personality (the id, ego, and superego) also posits that a harmonious relationship must exist among the constituents of personality to ensure individual well-being. The id is like Plato’s appetitive soul, the superego is analogous to the spirited soul, and the ego is the rational or reasoned soul. People are born with the id, the norms and values of their socializing agents provide the superego, and their capacity for reason provides the necessary balance between the two. While there are differences between the Platonic and Freudian models, the underlying concept is the same: Individuals are in a perpetual war with ourselves as the three components vie for supremacy when they are confronted with temptation.
Criminal behavior is the failure of the spirited soul to enforce what the reasoned soul knows to be right; or to remove the metaphor, it is the failure of socialization agents to mold criminals into the kind of moral beings cultures expect. A large part of a successful socialization revolves around individuals’ relative sensitivity to reward and punishment as they contemplate the responses of others to their behavior. Individuals must learn cognitively what is expected of them, but how well lessons are learned is more a function of how the lessons engage limbic system emotions than how they engage rational reflection. After all, even psychopaths know cognitively what is right and wrong, but neuroimaging studies have shown that they lack the ability to engage the social emotions, and it is this inability that lies at the bottom of their condition.
Conscience is thus the social emotions coupled with the moral learning that evokes them. Reinforcement sensitivity theory (RST) is a neurobiological theory focusing on the conditioned suppression or expression of behavior. RST posits three interacting systems of behavioral regulation located within separate brain circuits and governed by separate neurotransmitter systems: the behavioral activating (or approach) system (BAS), the behavioral inhibition system (BIS), and the fight-flight-freeze system (FFFS). The BAS and BIS are part of the central nervous system’s limbic system and prefrontal cortex (PFC), and the FFFS is part of the autonomic nervous system (ANS) of the peripheral nervous system.
The BAS is sensitive to signals of reward from conditioned and unconditioned appetitive stimuli. The BAS motivates individuals to seek things vital to survival and reproductive success; their built-in reward system. Of course, seeking appetitive goals such as alcohol and drugs was not part of the evolutionary plan. These novel stimulants hijack the natural reward system and use it for unnatural purposes. The BAS is like the Freudian id; it obeys the pleasure principle, craves instant gratification, and unless governed by a watchful avoidance system, it cares not (or is oblivious to) whether the means used to satisfy them are appropriate or injurious to self or to others.
The BIS is activated when the search for reward stimuli exceeds reasonable limits and is sensitive to conditioned and unconditioned threats of punishment. It inhibits approach behavior by inducing feelings of fear or anxiety when negative consequences are anticipated. The BIS is like the Freudian superego striving for the ideal and representing all the moral “dos and don’ts” internalized during socialization. An overly strong BIS is related to anxiety-related disorders, such as obsessive-compulsive disorder, and a weak BIS is correlated with attention deficit hyperactivity disorder (ADHD) and psychopathy.
The biological substrates of approach and avoidance have been neurologically and genetically mapped out in RST. The BAS is primarily associated with the neurotransmitter dopamine and with mesolimbic system structures such as the ventral tegmental area (an area rich in neurons that synthesize dopamine) and with the nucleus accumbens (the “pleasure center”), the major target of dopamine. The BIS is associated with the neurotransmitter serotonin and with limbic system structures such as the hippocampus and the amygdala that feed their memory circuits into the prefrontal cortex (PFC) where judgments and decisions are made in accordance with rationality.
An unbalanced BAS-BIS system may produce a “craving brain” that leads someone into all sorts of physical, social, moral, and legal difficulties, such as addiction to gambling, food, sex, alcohol, and drugs. A faulty BAS is essentially a brain less efficient in binding dopamine, overly efficient in transporting it back into the presynaptic knob, and/or overly efficient in clearing it from the synaptic gap. Defective “brakes” are associated with similar deficiencies of the serotonergic system. Carriers of any or all of the genetic variants responsible for these deficiencies are led on an incessant search for more pleasure-inducing experiences to increase dopamine levels. A balanced BAS/BIS system obeys the Freudian reality principle; it does not deny the pleasure principle, it simply adjusts it to the demands of social reality.
The third part of the approach-avoidance system is the FFFS, a subsystem of the ANS. The FFFS also includes the amygdala and hippocampus, which suggests that the BIS and the FFFS may be a single integrated inhibition system. Because BIS and FFFS components are engaged simultaneously in approach/avoidance situations, the reactivity level of the ANS is considered a major determinant of the development of a conscience. The conscience is the basis for forming moral judgments and for moving one’s behavior into conformity with those judgments, but it is more than a reasoning mechanism as it typically moves individuals in one direction or another before they have had an opportunity to consciously contemplate options. This emotional component of the conscience precedes cognition and serves to adjust their behavior by modifying neural activity in ways that lead them to choose moral responses over possible antisocial responses in approach-avoidance situations.
The modern view of conscience is that it is the cooperative output of limbic emotional and rational cognitive mechanisms. Individuals with strong consciences feel guilt, shame, and anxiety when they violate moral rules; those with impaired consciences do not. Differences in the emotional component of conscience are observed in infancy, long before children are able to reflect cognitively on their behavior as morally right or wrong. Variation in ANS arousal and neurotransmitter patterns lead to significant variation in how well the prescriptions and proscriptions of moral behavior are learned via classical conditioning of the ANS.
- Hare, Robert. Without Conscience: The Disturbing World of the Psychopaths Among Us. New York: Pocket Books, 1993.
- Kochanska, Grazyna and Nazan Aksan. “Conscience in Childhood: Past, Present, and Future.” MerrillPalmer Quarterly, v.50 (2004).
- Krebs, Dennis. “The Evolution of a Sense of Justice. In Evolutionary Forensic Psychology, J. Duntley and T. Shackelford, eds. Oxford: Oxford University Press, 2008.
- Walsh, Anthony. “Right and Wrong-Conscience.” In Theoretical Criminology: Assessing Philosophical Assumptions. Waltham, MA: Elsevier, 2013.
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