Legitimizing False Confessions In Popular Culture - A Look at Law and Order: Special Victims Unit and the Depravity Standard.

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It seems like every few weeks (or perhaps less) we are informed through news media of a fresh new instance of someone who has been released on account of a wrongful conviction. There is indeed a necessity to be aware of the various possible causes of wrongful convictions – preferably before such occurrences transpire. Not everyone reads news articles, and fewer still have the time or inclination to peruse through scholarly literature or actual jurisprudence. Enter film, television and other mediums of popular culture.

Mediums of popular culture are excellent teaching tools to highlight and make visible (potential) miscarriages of justice and wrongful convictions, in addition to their possible causes. There have been a number of commercial and documentary films that exhibit narratives concerning wrongful convictions (e.g. In The Name of The Father) and the use of questionable police techniques such as “Mr. Big” sting operations (see Mr. Big: A Documentary).

Why look to narratives told through moving images? At a basic level, they serve as accessible means to understand or acquire information about important phenomena. As scholars, Charles Ogletree Jr. and Austin Sarat (2015, p.4) have articulated: “Mass-mediated images are as powerful, pervasive, and important as are other early twenty-first century social forces – including globalization neocolonialism, and human rights – in shaping and transforming political and legal life.”

Film and television shows are useful tools for depicting legal events. However, as Ogletree and Sarat (2015, p. 5) further posit, they “are not just mirrors in which we see legal and social realities reflected in some more or less distorted way.” Rather, they argue (2015, p.5), such visual mediums “project alternative realities that are made different by their invention and by the editing and framing on which the moving image depends.”

With Wrongful Convictions Day upon us, I thought I would use this blawg post to discuss a particular television episode that connects to the theme of wrongful convictions and specifically how particular police techniques may give rise to them.

One of the various possible instances in which a wrongful conviction may occur is through coercive interrogations and the production of a false confession. An episode of Law and Order: Special Victims Unit (SVU) entitled the "Depravity Standard" (Season 17, Episode 9) illustrates this and other associated problems (presently available on Netflix). SVU is a fictional television show highlighting the work of police officers and prosecuting attorneys as they investigate and prosecute, respectively, sex-related crimes.  

The episode, in particular, features the attempted prosecution of  Lewis Hodda (played by Tom Sizemore), for the kidnapping of two children, one of whom he supposedly murdered. In pursuing the accused with respect to the murdered child, there is no direct evidence. The main evidence to be used is a confession procured by Lieutenant Olivia Benson (the lead character of the show who is played by Mariska Hargitay). As the episode unfolds, we learn that Olivia uses lies and veiled threats to get the accused to incriminate himself. Despite the presence of such techniques, Olivia seeks to insistently project the notion that the confession is inherently voluntary and provides a legitimate basis upon which to convict.

  

During the trial, Olivia takes the stand to testify on behalf of the prosecution regarding the confession that she secured. After Hodda's videotaped confession is played in court, the assistant district attorney, Rafael Barba (played by Raúl Esparza) asks Olivia if she was present during the confession. Olivia states that the confession was voluntary and Hodda had been informed of his rights (thus establishing that the procedural norms situated within the Miranda warning were adhered to). Barba later inquires from Olivia whether any coercion, physical violence or threats were used. Olivia states, unequivocally: "Absolutely not."

Olivia is then cross-examined by Hodda's counsel, Lisa Hassler (played by Robin Weigert). After some initial questioning, the following dialogue ensues.

Hassler: Finally, you had Lewis Hodda in your interrogation room.

Olivia: Yes, where he confessed to murdering a seven-year old boy. It's on the video.

Hassler: I am much more interested in what is not on the video. So, you interrogated Lewis Hodda for over six hours before turning on a camera. During all that time, you didn't coerce him? You didn't threaten him?

Olivia: No, I followed police procedure. 

Hassler: Did you tell him that witnesses had seen him with other children who had been murdered? 

Olivia: I may have. 

Hassler: Was it true?

Olivia: Um, the Supreme Court has ruled that police are allowed to make misrepresentations. 

Hassler: By misrepresentations, you mean lies?

Olivia: Basically, yes. 

Hassler: So, after lying to him about these nonexistent witnesses, didn't you tell him, and I quote [Hassler reads from a document]: "Nobody likes a "chomo" in state prison"?

Olivia: Yes, but it was a matter of urgency. The defendant had another child. 

Hassler: Your Honor, please instruct the witness to answer the question only. 

Judge: Lieutenant, you are flirting with causing a mistrial. The jury will disregard. 

Hassler: What is a “chomo”, Lieutenant?

Olivia: It's a child molester. 

Hassler: And ‘chomos’, or child molesters -- are themselves -- frequently assaulted in prison, are they not?

...

Olivia: Yes, they are. 

Hassler: So, you lied about having the evidence that would send him to prison and you threatened to label him a 'chomo' when he got there. 

Olivia: We had good reason to believe that he was a child molester. 

Hassler: And you promised to advertise that belief to insure he would be assaulted when he got to prison. Then, and only then, did he confess. 

Olivia: He confessed because he was guilty.

SVU’s main protagonists are police officers and prosecuting lawyers with supporting roles played by victims of crime. Their main adversaries are the designated criminals and their counsel. Pitted against such enemies, the resort to such sharp practices projects an aura of justification. The ends justify the means. 

That which emerges from the scene is the manner in which lying becomes or is presented as normalized. I am not solely referring to Olivia’s (or her real-world counterparts’) flagrant lying during interrogations (which is perfectly legal). Rather, it is also the lies that some officers may tell themselves and the court under oath to secure a conviction. In the scene, Olivia avowedly asserts that the confession is voluntary despite threatening to reveal Hodda’s status as a “chomo” to other inmates and thus placing him in a vulnerable position.  

A further problematic aspect of the narrative is the use of the video-recording as purportedly solid and persuasive evidence of guilt. Guilt springs forth not merely from the word of a law enforcement official testifying but more importantly from the accused’s own lips as captured on video – and thus the video doesn’t lie. What is of course problematic is that the video does not reveal all the things that were said to Hodda prior to his final confession. As some jurisprudence suggests, while a video-recording is not required, courts may find it highly suspect that an interrogation is only partially recorded (especially where recording equipment is available) (see e.g. R. v. Moore-McFarlane).

There is an added aspect to the video-recording that does not get addressed specifically in the episode which is also telling. While a video-recording is a helpful tool to hear and see what has transpired during an interrogation, how that recording is effected can have a substantial impact on how the viewer perceives it. Though we hear Olivia’s voice, the image in the video-recording focuses solely on Hodda and it is a close-up. This is not insignificant. Psychologist Daniel Lassiter conducted a series of experiments several years ago with mock juries using video-camera footage of an interrogation from two vantage points – one camera was focused solely on the accused and the other captured both the accused and the interrogators (See Mnookin, 2014). As Professor Jennifer Mnookin writes (in connection with Lassiter’s experiments): “When the interrogator isn’t shown on camera, jurors are significantly less likely to find an interrogation coercive, and more likely to believe in the truth and accuracy of the confession that they hear — even when the interrogator explicitly threatens the defendant.”

After the prosecution and defense rest their cases, the jury is left to deliberate. As the episode unfolds, we learn that the jury cannot come to an agreement on the verdict – specifically, one (or possibly more jurors) is having doubts about the confession and Hodda’s guilt. The case ends in a mistrial and thus no conviction is secured based on the confession offered.

One gets the sense that the show is intended to have viewers lament this result. After the trial, two jurors approach the mother of the murdered child to tell her that most of the jury members believed Hodda to be guilty. The juror who refused to convict was portrayed as being anti-police and uncooperative. What this suggests of course is that notwithstanding the problems with the confession and the lack of reliability surrounding it, the proper result was Hodda’s conviction. The failure to convict is attributed to a juror with a generalized anti-police bent. In addition, Hodda’s lawyer, we are told, is the daughter of a famous (fictional) trial lawyer who was still seeking the approval of her father - eleven years after his passing. The show constructs those who show support for Hodda (or question the methods used) as being suspect and motivated by less than legitimate concerns. 

That SVU travels down this road – e.g. vis-à-vis how it legitimizes improper interrogation techniques – is far from surprising. It is after all a show that is largely police-officer and prosecution friendly. As Dr. Adam Shniderman (2014, p.100) has written, SVU’s model of justice (like other Law and Order franchises) is one which focuses on speed, efficiency, and order-maintenance rather than the rights of suspects and accused who are presumably guilty. Shniderman (p.126) argues that conduct by SVU detectives on the show typically abuses defendants’ rights and are sometimes later vindicated at trial. However, and this is worth noting, he observes (p.126) that the tactics on display on SVU with respect to police interrogations also have led to false confessions in the real world. 

While it may be unclear as to what extent films and television shows influence viewers (and prospective jurors), studies suggest that the influence is real. Whether taken on its own, or as part of a pattern of legitimated conduct, the SVU episode discussed here problematically validates questionable police tactics and primes its viewers to find such methods defensible and necessary. Given the willingness of real world juries to convict when they hear a confession, projecting interrogation methods involving threats of violence is questionable. It fosters, at least among some members of the public, the notion that such means are acceptable.   

I end with two quotes by the United States Supreme Court in the 1991 case Arizona v Fulminante (p.296) which concerned a coerced confession. The quotes speak to the power of confessions at trial.  

A confession is like no other evidence. Indeed, the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him. . . . [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.

 ...

In the case of a coerced confession...the risk that the confession is unreliable, coupled with the profound impact that the confession has upon the jury, requires a reviewing court to exercise extreme caution before determining that the admission of the confession at trial was harmless.

Sources

Arizona v Fulminante, 499 US 279 (1991). 

Jennifer L Mnookin, “Can a Jury Believe What It Sees? Videotaped Confessions Can Be Misleading” New York Times (13 July 2014), online:

Charles Ogletree Jr. & Austin Sarat, “Imaging Punishment: An Introduction” in Charles Ogletree Jr. & Austin Sarat, eds, Punishment in Popular Culture (New York: NYU Press, 2015) at 1-21.

R v Moore-McFarlane, (2001), 56 OR (3d) 737, 160 CCC (3d) 493 (ONCA).

Adam B Shniderman, “Ripped from the Headlines: Juror Perceptions in the Law & Order Era” (2014) 38 Law & Psych Rev 97.