Michelle White (Teeside University)
Introduction
With the rapid growth in popularity of Netflix-esque crime documentaries and the notoriety afforded to contemporary appeals cases, both domestically(e.g. R v Kiszko) and internationally(e.g. West Memphis 3, Innocence Project 2023), the perplexing quality of false confessions has never before occupied such a prominent place in the public’s awareness. However, even as the recognition of false confessions is increasing, the emphasis persists on the intentional untruths from the accused. This can be to evade oppression or coercion during questioning, safeguard the actual perpetrator, or even seek notoriety.
There is a vast amount of literature surrounding the vulnerable suspect and the predisposition to falsely confess, and it is largely accepted that a number of vulnerabilities can cause the suspect to profess guilt for a crime that they did not commit (Gudjonsson et al., 2021). However, much of the current discourse centres upon the accused being cognitively aware of their innocence, yet nonetheless confessing due facets of the complexities of their conditions.
Yet, there have been a number of occasions whereby a suspect has authentically confessed their guilt, only for it later to be determined that their recollection is not factually correct, but rather a confabulation. However, this population of the vulnerable accused is somewhat lesser acknowledged and understood, particularly in the legal sector (Brown et al., 2017). Consequently, this blog considers the phenomenon of confabulation in more depth, and explores its prevalence, aggravating factors and considering legal reform.
Defining confabulation
Before considering the potential implications and prevalence of confabulation, it is imperative to seek to define its nature, implications and risk factors. Whilst there is no official legal definition, the Oxford Dictionary of Psychology (2009) defines confabulation as:
‘a memory disorder related to amnesia but involving the generation of fabricated accounts of events, experiences, or facts, either deliberately or without conscious intent, to compensate for memory loss. Some authorities think of it as ‘honest lying’.‘
Whilst this definition provides a base for academic discussion, it arguably requires further refinement. Gudjonsson (2003) proffers that confabulation can equate to ‘problems in memory processing where people replace gaps in their memory with imaginary experiences that they believe to be true’. Moscovitch and Melo (1997) have defined the condition to be ‘honest lying’. Irrespective of choice of definition, the common underpinning factor is the generation of a false memory or recollection, with a genuine belief of the fabrication.
Confabulation can be seen as a characteristic of a non-exhaustive list of conditions and is present in two, generally accepted, forms: spontaneous and provoked confabulation (Gudjonsson et al, 2021). Whilst also occurring spontaneously, this research focuses primarily upon provoked confabulation, to reflect its prevalence within the criminal justice system. This internalisation of falsehood can be linked to a number of mental health conditions or disorders, and, as an extension of normal memory processing, respectively. However, the elusive nature of its presentation inevitably leads to cynicism and accusations of lying or malingering. Nevertheless, it is widely acknowledged, academically, that there is a fundamental differentiation between a complex psychological condition, and deliberate falsehood (Brown et al, 2017).
The link between confabulation and vulnerability
Whilst confabulations can occur in neurotypical or “non-impaired individuals” (Brown et al, 2017) it is widely acknowledged that a range of conditions may give way to a predisposition for confabulation including, (but not exclusively limited to): traumatic brain injury, Foetal Alcohol Spectrum Disorder (FASD), Wernicke-Korsakoff syndrome (WKS), Post Traumatic Stress Disorder (PTSD), Alzheimer’s disease, Anosognosia, Anton’s Syndrome, Schizophrenia,20 bipolar disorder, anterior communicating artery aneurysms etc (Wiggins & Bunin, 2021). Research also suggests a tendency towards confabulation in neurodivergent populations (Gudjonsson, Young & Bramham, 2007; Spitzer et al, 2017; Asperger, 1944). However, this aspect of research is still somewhat restricted in scope, and the current study aims to expand upon it.
The underpinning factors of a suspect’s tendency to confabulate must also be considered in order to determine its prevalence, namely in terms of suggestibility. According to the extensive research of Gudjonsson (1986), suggestibility can be defined as “the extent to which persons ‘come to accept and subsequently incorporate post-event information’ into their recollections of memory” (Siegal, 1996), and the ‘tendency of the individual to respond in a particular way to suggestions’ (Gudjonsson, 2003). This is in direct contrast to compliance, which is the tendency to concede for personal benefit (Gudjonsson, 2003).
Gudjonsson and MacKeith (1982) coined the term ‘Memory Distrust Syndrome’ in the 1980’s, referring to a condition whereby an individual developed a significant distrust in their own recollections, and as such became much more susceptible to suggestion, ultimately leading to pressured-internalized confession aka confabulation.
Otgaar et al (2021) corroborate the link between to a high degree of susceptibility, and (to a lesser degree) compliance to confabulation. Otgaar also considered the implications of reality monitoring difficulties, particularly with respect to internalized false confessions, however, the data regarding internalized false confession was limited, making it difficult to analyse.
What provokes confabulation?
Whilst confabulation can occur spontaneously, without any provocation, there is a strong indication the adverse interaction with the Criminal Justice System can precipitate such a response, particularly where the accused has a predisposition to do so.
Gudjonsson (2014) suggests that confabulations typically occur following a five-sequential-stage process:
- Trigger (e.g., an arrest, police interview, leading questioning, and even dreams), making the suspect distrust his/her own memory.
- Plausibility (i.e., whilst in a confused state, the suspect is persuaded that the material event could possibly have happened, or may be given a narrative of how it could have viably occurred).
- Acceptance (i.e., the suspect accepts that the event may have happened). This occurs when the suspect has abandoned his own belief or memory of innocence. Gudjonsson (2014) notes that the more plausible the accusation the more likely the acceptance.
- Memory reconstruction. Once accepting their guilt the suspect will try to reconstruct the events in their imagination to determine its plausibility. This can be exacerbated by the interviewers affirmations, or external sources of information (e.g. from the press).
- Resolution (e.g. when the suspect becomes aware of the true events). This can happen sometime after the original confession and is likely to be received with scepticism from authorities.
It is therefore asserted that provoked confabulations are elicited by specific stimuli (Brown et al, 2017) which, with respect to the core themes of this research, may be seen within the parameters of questioning, interrogation and cross examination. As such, it is evident that the interview process for the vulnerable accused requires significant caution and understanding of its potential impact.
The problem within the CJS
False or inaccurate admissions of guilt are certainly not a new or novel concept within the CJS, so the reader may question why more specific research is required in a comprehensively studied field. When considering the nature of provoked false confessions, a suspect may (knowingly) admit guilt because of interrogational pressure, being incentivised (e.g. ‘if you tell us that you did x, we will let you go home), but, once the stressors or incentives have been removed, it is highly likely that the confession will be rapidly recanted. Whilst undoubtedly still biased and highly problematic, this recall allows for a reasoned challenge of innocence. Yet, when experiencing a confabulation, the suspect assimilates the false information as an actual memory, internalising it without recognizing it to be fictional. This situation becomes highly challenging to argue for innocence, especially when the suspect retains a distinct recollection of committing the offense.
It is also important to consider that, once the ‘Pandora’s Box’ of confession has been opened, there will be an impact, even whereby the reliability of the admission is contested. This has proved particularly relevant to a jury (Kassin & Sukel, 1997) even where the judge has ruled such confession to be inadmissible, remaining stigmatising on the accused.
Reform and Resolution
The question that remains to be answered centres on how the issue of confabulated testimony can be resolved, and current academic discourse suggests that the resolution lies in education and awareness of key authorities (Brown et al, 2017), with an emphasis on avoidance of closed and suggestive questioning (Riesthuis, et al, 2023), repetitive questioning and negative reinforcement during interview. However, the impact of such measures is yet to be evaluated, and future research will look to analyse the current awareness of police authorities of confabulation, and assess the impact of such changes upon the vulnerable suspect.
Conclusion
This paper identifies that there is a significant void in research on confabulation within the legal/policing realm. The understanding of confabulation within psychological research is much more advanced than its legal counterpart, and as such, this paper seeks to apply the scientific underpinnings, with a pragmatic emphasis, to the legal sphere. Forthcoming research will look to more closely explore the link between specific vulnerabilities and confabulated testimony, in addition to examining the various facets of police interview in depth, analysing their potential psychological impact.
It is believed that Einstein once opined that “Memory is deceptive because it is coloured by today’s events”, and this applies particularly felicitously to the issue of the vulnerable suspect; if memory, as a construct, is susceptible to subjectivity, the consequences for those with an inherent distrust of their remembrances is potentially catastrophic, after all, “no other class of evidence is so profoundly prejudicial” (Justice William Brennan, Colorado v Connelly, 1986).
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Defending Vulnerability 