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When examining the particulars of false confessions and wrongful convictions, it is verifiable that many have their roots in the interrogation phase of the investigation where coercion leads to an extraction of a false confession from the detained suspect.^[1] The widespread solution has been to video record custodial interrogations.^[2]

Until the 1980s, most confession evidence was recorded and later presented at trial in either a written or an audiotaped format.^[3] Today, it is estimated that more than half of the law enforcement agencies in the United States videotape at least some interrogations.^[3] 97% of these agencies and departments have found them useful.^[3] In Great Britain, the Police and Criminal Evidence Act of 1984 built certain protections into the questioning process, including the requirement that all suspect interviews be taped.^[2] It appears that it will be only a matter of time before it becomes the norm for introducing confession evidence at trial.^[4]

The assumption stands that videotaped confessions allow for a more complete and objective record of the police-suspect interaction. It serves as a visual representation that can clearly be interpreted by fact finders (the judge and the jurors) during the trial proceedings.^[2] Moreover, those who advocate videotaping interrogations argue that the presence of the camera will deter the use of coercive methods to induce confessions and will provide a record to evaluate thoroughly the voluntariness and veracity of any confession.

Camera perspective bias

Psychological research suggests that evaluations of videotaped confessions could be altered by presumably inconsequential changes in the camera perspective used at initial recording.^[5][4][6] In the United States and in many other countries, interrogations are typically recorded with the camera positioned behind the interrogator and focused squarely on the suspect. ^[2][3] This position seems to provide the most straightforward and logical effect because fact finders are able to focus directly on the expressions of the suspect and what he or she is doing and saying. However, research findings have indicated that the camera perspective influences assessments of voluntariness, coercion on the part of the detective, and even the dichotomy of guilt.^[4][5][6]

G. Daniel Lassiter has done extensive work in this area, manipulating the camera perspective to a suspect-focus (the front of the suspect from waist up and the back of the detective’s head and shoulders), detective-focus (the front of the detective and the back of the suspect), and equal-focus (the profiles of both the detective and the suspect were equally visible) perspective.^[7][6][5][4] In their initial 1992 study, Lassiter and his colleagues used mock police interrogations resulting in a confession that were videotaped simultaneously from the suspect-focus and equal-focus perspectives.^[6] Participants were presented with the confession in one of the following formats: subject-focus videotape, equal-focus videotape, audiotape recording, or written transcript. The participants’ perceptions of the voluntariness and coercion of the confession were assessed via questionnaire.^[6] Videotaped confessions with the focus of the suspect compared to other formats of confessions resulted in judgments of relatively greater voluntariness, notably when compared to both audiotapes and transcripts which are assumed to be bias free. Equal-focus videotapes produced voluntariness judgments that did not differ from those based on either audiotapes or transcripts.^[6]

This study clearly provides evidence that the manner in which videotaping is implemented holds the potential for bias and that this bias can be avoided by using an equal-focus perspective. This finding has been replicated numerous times since its publication, reflecting the growing uses of videotaped confessions in trial proceedings.^[3]

Causes

Illusory causation

Lassiter argues that camera perspective bias is a result of fundamental attribution error and, more specifically, illusory causation.^[8] Illusory causation occurs when people ascribe unwanted causality to a stimulus simply because it is more noticeable or salient than other available stimuli.^[8] Illusory causation is perceptual-based, meaning it occurs because salient information is registered and perceptually organized differently than nonsalient information.^[8][9] In regards to camera perspective bias, the perspective of the camera determines which interactant (detective or suspect) is salient and which one is nonsalient.^[9]

Previous work to which Lassiter’s argument depends, identifies the importance of visual perspective in determining attributional differences between interactants.^[10][11][12] In an early demonstration of illusory causation, observers viewed a causal, two-person conversation, the perspective of which was varied by the differential seating of the observers. After the conversation ended, observers rated each interactant in terms of the amount of causal influence he or she exerted during the exchange.^[10] The results revealed that greater causality was attributed to whichever person observers happened to be facing.^[10] This was determined by their seating position, a factor that is entirely incidental and should therefore have had no bearing on causal judgments. It is also worthwhile to note that the observers, who sat where they could see both interactants very well, viewed both subjects equally in terms of causality.^[10]

In following with the logic, attributional complexity has been examined to see if people who have higher levels can buffer themselves against the effects of camera perspective bias.^[13] Surprisingly, despite the dispositional nature of attributional complexity, no evidence was found to indicate that possessing a high level of attributional complexity shields one from the camera perspective bias in videotaped confessions.^[13] This finding suggests that the nature of illusory causation and the possibility of a dispositional mediation of camera perspective bias warrant more investigation.^[13]

Visual attention

Changes in camera perspective are accompanied by changes in the visual content available to the observer.^[14] Using eye-tracking as a measure and monitor of visual attention, researchers deduced that visual attention mediates the camera perspective bias.^[14] This provides evidence that differences in visual content may also mediate bias.^[14]

Reducing the bias

Judicial instruction

Judges conduct an omnibus hearing with prosecutors and defense counsel to decide on the voluntariness and the admissibility of a confession when its legitimacy is disputed.^[4] Likewise, it is the job of jurors to decide on the voluntariness of the confession, which ultimately leads to the dichotomous decision of conviction. Research shows that a judge’s requirement-of-proof instruction to a mock jury (the defendant is presumed innocent, the burden of proof is on the prosecution, and guilt must be established beyond a reasonable doubt) has more impact on jurors’ verdicts when made prior to the presentation of evidence than when made after the presentation of evidence.^[15][16]

In this same light, it logically follows that the timing of judicial instruction (before or after the presentation of the confession) can potentially moderate the effect of camera perspective on judgments.^[4] However, judicial instruction emphasizing the need to be cognizant of reliability and fairness concerns in evaluating the confession and, in some cases, directly alerting mock jurors to the potentially prejudicial effect of camera perspective did not mitigate the bias.^[4] This was found to be true whether the judicial instruction preceded or followed the presentation of the confession.^[4] The sampling of jury-eligible adults facilitated a realistic, fact-based trial simulation allowing the results can be generalized to real courtroom situations.^[4]

Expertise

Judges play a crucial role in determining what confession evidence juries are allowed to consider. It is possible that their greater knowledge, experience, and understanding of the law pertaining can mitigate them against the camera bias effect.^[5] Experts (judges and law enforcement officers) presented with suspect-focus, detective-focus, and equal focus versions of a videotaped confession replicated prior data patterns, indicating camera bias perspective.^[5] Relevant expertise provides no defense against the influence of camera perspective.^[5]

Accountability

According to studies investigating camera perspective bias and the experience of accountability (or blameworthiness), accountability does not alter the effect of the bias although high-accountability yields more careful and thorough processing of information.^[17] The failed attempt to mitigate camera perspective bias was found via manipulation of the amount of accountability participants felt by telling them that they would have to justify their judgments of voluntariness to a trial judge.^[17] Participants’ ratings of voluntariness were comparable with the now typical pattern of camera perspective bias.^[17]

Ecological validity argument

Brian H. Bornstein published an article in Law and Human Behavior in which he claims that psychological research concerning jury simulation is not ecologically valid. Moving closer to a high standard of ecological validity, according to Bornstein, is required for psychological science to sway the skeptical legal community.^[18] He elaborates on the methodologies that have led to this trend.^[18] One issue he cites through archival data collection addresses the popular use of college undergraduate students, which is especially detrimental in jury simulation because of the relative infrequency with which college students serve on actual juries.^[18] He states that this hinders “the feasibility of generalizing from simulation studies to the behavior of real juror."^[18] In order to satisfy the skeptical nature of the law community, as discussed above, researchers such as Lassiter and his colleagues began using jury-eligible adults instead of undergraduate students.^[4]

One limitation of Lassiter’s work that he himself exposes is that all the interrogations/confessions that were used prior to this realization were simulations of trial evidence.^[7] Therefore, at the time, there was no evidence demonstrating the camera perspective bias generalizes to authentic videotapes recorded by police that depict actual suspects and interrogators.^[7] Lassiter and colleagues soothed this concern with their 2009 study comparing judgments of voluntariness and guilt of the suspect in each perspective condition (suspect-focus, equal-focus, and detective-focus, audio only, reading only) using authentic interrogations recorded.^[7] The investigation demonstrated the camera perspective bias found in previous studies.^[7]

Policy Recommendations

The growing body of work indicates that the criminal justice system needs to be seriously concerned with how it acquires and uses videotaped confession evidence.^[17] Research indicates that an equal focus perspective produces relatively unbiased assessments of videotaped interrogations.^[4][6][7][9] However, many members of law enforcement may consider the equal-focus view unsatisfactory because it does not provide a full-face view of the suspect, and thus important information in the expression cannot be presented.^{[3] [19]} Investigation into the dual-camera approach revealed that this perspective eliminates the usual camera perspective bias on voluntariness and guilt judgments, but it was no better than the infamous suspect-focus condition in terms of its impact on the ability to accurately distinguish between true and false confession.^[19] To aid criminal-justice practitioners and legal policy makers to achieve sound and fair policy, Lassiter and colleagues presented the following recommendations based on psychological research:^[19][20]

1. Custodial interrogations recorded in their entirety with the camera positioned so that the resultant videotape displays an equal-focus or detective-focus perspective.

2. If an interrogation has already been videotaped from a suspect-focus perspective, it should not be used. Rather, the use of an audio track or a transcript derived from the videotape should be used.

3. The use of a dual-camera approach is not advised because it does nothing to moderate actual accuracy of judgments.