Turning the Corner on False Confessions

As Laura Nirider explained so well yesterday, defense lawyers and some courts have been developing a “new, scientifically-driven awareness of the problem of false confessions.”  As though to reinforce Laura’s point, a panel of the Illinois Appellate Court recently released an opinion reversing a murder conviction on the ground that the defendant’s confession had been wrongfully extracted under police pressure. Even more importantly, the court held that the confession itself was so obviously false – having been produced by the detectives “deceptive practices” – that the defendant could not be re-tried.  Here is the impressive language at the end of the opinion:

While our [state] supreme court has expressly approved the use of deception to obtain confessions [citation omitted], this case shows us how the use of deception in interrogations leads to false confessions. Deceptive practices contribute to an atmosphere in which whole communities act with hostility toward police. If police want the members of the community to treat them with respect and help them in their efforts to reduce crime, police should renounce the use of deceptive practices in law enforcement so that the members of the community learn that they can trust police officers to treat them honestly. The practice of deception in interrogations and other settings can destroy the trust needed as a foundation for the relationship between police officers and the members of the communities the police officers have a duty to serve and protect. A revision of police department rules, and the actual imposition of significant sanctions for deceptions, might help repair the strained relations between police and some of the communities they have a duty to serve.

You can read the full opinion here.

Comments

[Patrick S. O'Donnell]

One hopes the motivational concern cited here can also embrace the myriad problems with plea bargaining in our criminal justice system (e.g., 'why the innocent plead guilty'), indeed, that it can extend beyond police procedures and corresponding wrong behavior to prosecutorial misconduct more generally (the two forms of misconduct are often related to each other, but need not be). (On 8/13/2015 I provided a short reading guide to the relevant literature in a post, Mapping the Dimensions of Prosecutorial Misconduct, at Religious Left Law should anyone be interested). While scientific literature and evidence is essential to addressing some of these problems, the problems themselves have social (or cultural), political, legal and other causes and dimensions and that are not, strictly speaking, scientific, nor is the motivational complex needed to spread the requisite awareness and necessary action a scientific one: the science is merely among the arsenal of methods and means we enlist toward our social and criminal justice goals and ends. In fact, intuitive or morally motivated awareness of the problem of false confessions has been long standing, it's only the use of science in this manner by the courts themselves that is truly "new."

[Patrick S. O'Donnell]

Steve, what follows is the comment I've moved from Laura's comment thread:

I was being intentionally provocative with my question, and I’ll elaborate why. I’m worried that medical schools will soon be functioning in complete collaboration with, if not just like those commercialized Contract Research Organizations (CROs) that now “dominate drug development and clinical trial management worldwide.” CROs have gradually expanded “into nearly every stage of the discovery, development, and marketing of new pharmaceuticals.” In the words of Philip Mirowski, “Their activities have been known to range from initial screening of molecules for biocompatibility, in vitro screening, pharmacokinetic modeling, chemical synthesis and analysis, all phases of clinical testing, dosage formulation and pharmacy services, to all aspects of the regulatory process. They have also become a major vehicle for exploration of the promise of pharmacogenetics (the genetic profiling and segregation of populations in clinical trials to better predict the efficacy of experimental drugs upon distinct subgroups).” What takes place in medical schools is beginning to pale in comparison:

“One source suggested that the percentage of industry-sponsored clinical research by AHCs [academic health centers, ‘predominantly university teaching hospitals’] fell from about 80 percent in 1988 to 40 percent in 1998. Another source estimates market share of AHCs dropped from 71 percent in 1991 to 36 percent in 2001. A third source estimates that the share of outsourced pharmaceutical R&D was 23 percent in 2006. While there are unfortunately no official statistics on the absolute size of the CRO and AHC sectors [!], and none of these estimates can be treated as definitive, it would appear that an extraordinary displacement of AHOs by CROs is underway. It seems the days are numbered for the previous Cold War model of academic medicine, at least when it comes to drug trials.”

Of course if one thinks there are no necessary deleterious effects of a “for-profit modality” upon the conduct of research, none of these trends are troubling. But Mirowski proffers reasons for concern, among them the fact that

“CROs have managed to convert a set of research protocols originally constructed around the prerogatives of the individual scientist, and, to a lesser extent, the concerns of the medical community, into a second set of protocols more suited to controlling the developmental cycle and marketing of new pharmaceuticals. The CROs have conjured up a set of research practices that are more effectively adjusted to the traffic and rhythms of corporate privatized science. They maintain confidentiality of data; evade prolonged, inconvenient, and costly treatment regimens irrelevant to the testing program; minimize patient interaction; and alter research protocols in a manner that augments the bottom line. They even have rationalized and sped up the very process of composing a journal article that can gain acceptance at the Journal of the American Medical Association or the New England Journal of Medicine. Another frequently mentioned consideration is the possibility of arm’s-length management of legal liability for adverse outcomes. These facts help to explain the undeniable success of the CROs in capturing the bulk of clinical drug trials away from AHCs.”

Mirowski also cites the development of “independent IRBs (Institutional Review Boards) with dedicated bioethics consultants, hence a “new for-profit niche market provided services to the CROs from their very inception.” Not surprisingly, these independent IRBs lack the stringent regulatory oversight of local academic IRBs, having only to “conform to FDA requirements.”

Why does one read articles about an increasing number of med school grads going to work for hedge funds? Why are these students shunning medical practice to start biotech companies or to join consulting or financial firms? One factor prominent here, even if only indirectly, has to do with the corporatization of medicine, a complex of capitalist imperatives and its corresponding money ethos that has seeped and slithered its way into medical schools in keeping with the corporatization of higher education in general.

If I’m not mistaken, most biomedical research R&D is now funded by Big Pharma, biotechnology, and medical equipment industries, which have far outspent the NIH in recent years (hence the ‘escalated and enhanced commercialization of science,’ biomedical and otherwise, which accounts for the IP anxiety and all the recent nasty legal battles). To the extent that non-NIH funds go to research and clinical trials at medical schools, I don’t see how these institutions can be engaged in truly independent, (academic) scientific research (far more, although certainly not absolute freedom, followed in the wake of the state’s previous role as science’s foremost manager and patron). In any case, what takes place in these medical schools should be examined in light of the following from a medical journal article:

“Marked changes in US medical school funding began in the 1960s with progressively increasing revenues from clinical services. The growth of clinical revenues slowed in the mid-1990s, creating a funding crisis for US academic health care centers, who responded by having their faculty increase their clinical duties at the expense of research activities. Surveys document the resultant stresses on the academic clinician researcher. The NIH provides greater funding for basic and translational research than for clinical research, and the new Patient-Centered Outcomes Research Institute is inadequately funded to address the scope of needed clinical research. An increasing portion of clinical research is funded by industry, which leaves many important clinical issues unaddressed. There is an inadequate supply of skilled clinical researchers and a lack of external support for clinical research.”

Another writer notes that, “with NIH dollars uncertain and clinical reimbursements falling, with the prospect of reduced Graduate Medical Education government funding, and with reduced investment in discovery by big pharma, a perfect economic storm is threatening the foundations of our vital academic medical institutions.”

And the corporatization of the culture at many teaching hospitals has spilled over into medical schools proper, where industrial funding makes mincemeat of the notion of “scientific medicine,” as weak institutional safeguards assure market imperatives will structure the nature and course of research.

As we learn from a 2009 Time article, “There’s always been reason to worry about the influence of Big Pharma on the practice of medicine. When doctors are being lavished with meals and speaking fees by the likes of Pfizer and Merck, can you really trust them when they later write prescriptions for those companies’ drugs? Medical schools were long considered above such vulgar stuff. Now, however, it turns out that many professors and instructors are, legally, on the dole as well, and students are beginning to worry that what they're being taught is just as one-sided as what patients are being prescribed.”

Finally, consider this article by two young medical students: “The Pharmaceutical Industry’s Role in U.S. Medical Education,” by Rijul Kshirsagar and Priscilla Vu at the University of California, Irvine School of Medicine (April 3, 2016):

“Though not obvious, the relationship between physicians and the pharmaceutical industry begins long before doctors have the power to prescribe medication. Medical students are subjected to a barrage of advertising that inevitably leads to a physician-industry connection that can be harmful to our health care system. Medical students’ exposure to pharmaceutical marketing begins early, growing in frequency throughout their training. Students receive gifts such as free meals, textbooks, pocket texts, small trinkets and even drug samples. Forty to 100 percent of medical students report exposure to the pharmaceutical industry, with clinical students being more likely than preclinical students to report exposure. The number of students recalling over 20 exposures to marketing rose from 33.3 percent to nearly 72 percent as students entered their clinical training. Pharmaceutical companies, recognizing the formative nature of the clinical years of medical education, seek to form relationships with medical students years before they are ready to independently practice medicine.

These interactions intensify throughout a physician’s training, ranging from trivial gifts such as pens and pads to more questionable large honoraria and consulting fees. Some resident physicians report an average of six pharmaceutical gifts annually, up to 70 industry sponsored lunches, and nearly 75 promotional items in one year, and a survey showed that 41 percent of emergency medicine departments allowed their residents to be taught by drug company representatives. Physicians meet with pharmaceutical representatives an average of four times a month. Though these examples may seem shocking, they underscore the inherently intertwined physician-pharmaceutical relationship.

As medical students are increasingly subjected to pharmaceutical marketing throughout their education, their skepticism towards the practices of the pharmaceutical industry gradually diminishes. Multiple studies report a relationship between exposure to the pharmaceutical industry and positive attitudes about industry interactions. As students’ exposure to the pharmaceutical industry increases, their ability to determine industry bias decreases. In losing their ability to detect bias and analyze pharmaceutical marketing statements objectively, medical students hinder their future ability to practice evidence-based medicine.

Pharmaceutical industry influence can harm the social and moral character of students. In medicine, the traditional virtues of benevolence, compassion, integrity, respectfulness, honesty and justice are valued over commitments to money, power and self. Medical school seeks to impart these values, helping to train doctors that act morally in their profession. When a pharmaceutical representative gives a gift to a student, the student either feels indebted or entitled. If a student feels indebted, they are likely to alter their future prescribing habits based on industry recommendations, impairing their ability to practice medicine in an unbiased manner. If a student does not feel indebted, they are in danger of developing an unwarranted sense of entitlement. Fein et al found that nearly one-third of students at UCLA thought that a drug company should pay the cost of printing notes for them, and almost half the students felt that a meal, textbook and paid travel to a conference were appropriate gifts. A something-for-nothing experience has created a sense of entitlement among these future physicians.

As medical students become physicians, the physician-pharmaceutical industry interaction becomes increasingly linked and affects the prescribing habits of physicians. On one hand, physician-industry interactions help keep physicians informed about the latest drugs which can be invaluable as the pace of scientific discovery can exceed dissemination of application information. Some physicians also report the substantial benefit to patients in the form of free sample medication. On the other hand, the industry-physician relationship has many negative consequences. In a review of 16 studies, interactions with the pharmaceutical industry lead to physicians being more likely to request the addition of company drugs to the hospital formulary and to prescribe the company’s medication over generic drugs. These changes resulted in the use of medications that were costly and had no therapeutic advantage over older ones. Medicine relies on objective evidence, and the pharmaceutical industry’s influence underlies the short-cutting of this essential process.

Another negative consequence of physician industry-interaction is the faltering credibility of the medical profession. Weber et al report that some schools have strict policies regarding faculty-industry relationships, but fail to enforce them. For example, Stanford University banned physicians from giving paid promotional talks for pharmaceutical companies, yet more than a dozen of the school’s doctors were paid speakers — with two earning more than six figures during these speaking appointments. The American College of Physicians noted ‘a perception that a physician is dispensing medical advice on the basis of a commercial influence is likely to undermine a patient’s trust not only in the physician’s competence, but also in the physician’s pledge to put the patient’s welfare above self-interest.’ If the patients begin to view physicians as being tainted by industry influence, then the public’s entire faith in the medical system could be eroded. [….]

The pharmaceutical industry and the medical field are inextricably entangled. One creates the necessary medications, and the other delivers the medications to patients in need. Driven by capitalism, the pharmaceutical industry exerts an influence over medical students, creating an atmosphere in which students come to value the industry’s input in patient care that can lead to patient and societal harm. In order to counteract this influence, medical education must reform to help students react to these issues.”

[Steve L.]

You'll have to forgive me, Patrick, for failing to read all of the above into your original comment.

[Patrick S. O'Donnell]

Steve, I hardly expected that: your reply to my provocation allowed me to counter the inferences one might make from the claim that medical schools "do a great deal of research into new treatments and medicines, including clinical trials for new drugs." For example, they increasingly perform, historically and comparatively, little such research. And the nature of what research they do perform has changed in profound ways, often unnoticed. A handful of researchers are reliable guides as to what is happening: for example, in addition to Mirowski's Science-Mart: Privatizing American Science (2011), see John Ziman's Real Science (2000), Martin Kenney's Biotechnology: The University-Industrial Complex (1986),and Hilary Rose and Steven Rose, Genes, Cells and Brains: Bioscience’s Promethean Promises (2012).

[Steve L.]

The ME/CFS research, which I follow closely, is all taking place in U.S. and U.K. medical schools. Both the good (Columbia, Stanford, Cornell) and the bad (Queen Mary University London, University of Bristol).

We all ought to be concerned about creeping corporatization in medicine, but it's not true "that schools themselves are, in general, the source of ('develop') such treatments and medicines."

Another problem, btw, is the increasing infiltration of "complementary and comparative medicine" into mainstream hospitals and medical centers, as is often described at Science Based Medicine: https://sciencebasedmedicine.org/another-pebble-quackademic-integrative-avalanche/

[Patrick S. O'Donnell]

I'll save the bulk of my thoughts about CCM, which is often ill-understood and thus mischaracterized by bioscience aficionados, for another day (there are good reasons why, in some countries, like China, Tibet, Thailand, India, Nepal ... these different approaches to health and healing exist side-by-side and indeed are often complementary). And insofar as individuals are true to or motivated by worldviews (as lifeworlds, the idiosyncratic realization of worldviews in the life of a person) in which these alternative health and healing traditions play a prominent part, we would do well to find some space for them (lest we care little or nothing about the dynamics of power, the meaning of subjectivity, or the role of narratives in pluralist or multicultural communities).

[Litowitz]

The reasoning of the Court regarding the dangers of deception raise an interesting question on the use of informants in "terrorism" cases. The Intercept looked at recent cases and found that some 90% were manufactured by informants giving the ideas to the "terrorist," and this is confirmed in the movie T[ERROR] which is available on Netflix. Basically they infiltrate mosques, find lonely guys who need money or connections, convince them to pull a switch or hit a button, and then charge them with 30 years and get a conviction in the "War on Terror." I guess my question is this: if deception is a problem, then why isn't entrapment a problem (given that entrapment is essentially deception)?