20 Sep Steve Drizin Lectures on “The Drool Test”
Professor Steven Drizin, J.D., is the Legal Director of the Center on Wrongful Convictions and Associate Director of the Bluhm Legal Clinic at Northwestern Law. He kicked off Day Two of the Mental Health Law Forum stating that a study of DNA false confessions resulted in a finding that 43% of those individuals have mental impairments. And, these statistics are based upon the documented cases where DNA has exonerated defendants, and usually only in cases of homicide or rape. This is because many trained detectives don’t think anyone would confess to something they wouldn’t do, especially murder. But, in 80% percent of all murder cases in which DNA exonerated a convicted individual, that individual confessed to committing the crime.
This is the result of law enforcement officer’s false thinking that they are human lie detectors and that they don’t interrogate innocent people, when they figure out someone is innocent they let those people go. Truth is no matter how much training, a human’s detection of truth is only as correct as a coin flip. They are trained to believe that a truthful suspect is upright, casual and leans in when being interrogated. And, a deceptive suspect is slouching, frozen, with no frontal alignment. This training has no regard for the individual who has a cognitive or mental impairment, and is scared of authorities, cannot properly speak or comprehend, and has severe communication deficits such as the inability to maintain eye contact or lacks emotional responses. There is a need for national training on communicating and determining if a suspect has mental impairments.
And, then these individuals when offered the chance for a free lawyer or not to speak, they waive those rights. That’s because for many with mental impairments they don’t understand what those rights mean, they are words without meaning. And, police are not required to ask suspects what the rights mean to them to ensure that they understand. There is a need for mandatory follow up questions from law enforcement.
Worst of all, is the interrogation itself. Law enforcement officers know how to force feed facts of an offense over a period of hours so that a suspect appears to be telling the story of how he committed a crime he was never present for. This and other tactics scream for a national mandate that all interrogations be electronically recorded.
Sadly, it is not just the police, but the public, the prosecutors, and the judges that are ignorant about what a person with a mental impairment is like. In a case this year, in which Steve Drizin represented a young man, and overturned a murder conviction based upon a false confession—the lower court stated the young man was not mentally impaired or incompetent to proceed as “If he was drooling or his eyes were going into space, [counsel] I would can assure you I would have had a sua sponte fitness hearing.” The drool test is still being used by judges, and by many others too ignorant to know that saying so is an absolute abomination of people with disabilities.
Iris Eytan is a Partner at Reilly Pozner LLP. She practices Criminal Defense with an emphasis in mental health defenses.