Police interrogation a 'guilt presumptive' process

The raft of DNA exonerations nationwide has focused greater discussion in recent years on a handful of common sources of provably false convictions. While erroneous eyewitness IDs dominate among causal factors, more than a few erroneous convictions have resulted from false confessions.

While the fact of false confessions is inarguable (in Austin's infamous yogurt shop murders, for example, dozens of people confessed to the same crime), the mechanics of how that occurs are only just beginning to be understood. While some false confessors are mentally ill or seeking publicity, others succumb to pressure to confess by police interrogators.

Hoping to "to educate potential clients about police tactics and the psychology of the confession," Texas attorney and blawgger Stephen Gustitis examines new research on police interrogations from an article called Mourning Miranda by Charles Weisselberg analyzing training and tactics used by California police. (Others have commented on this writing here and here. ) Writes Gustitis:

Weisselberg started by distinguishing between an “interview” and an “interrogation.” An interview is non-accusatory. It's “free-flowing and relatively unstructured.” Its purpose is to gather information. An interrogation, on the other hand, is “accusatory,” conducted “in a controlled environment,” and involves “active persuasion.” Officers are trained and understand the difference between an interview and an interrogation. During an interview police establish rapport with a suspect and use verbal and non-verbal information to decide whether, in their view, a suspect is telling the truth. If officers become “reasonably certain of the suspect’s guilt,” they may initiate an interrogation. Consequently, an officer’s initial judgments about truth, guilt, and culpability determines whether the suspect will be interrogated. In contrast to interviewing, interrogation is a “guilt-presumptive" process.

Next consider the nine potential components, or steps, used in many police interrogations. First is the confrontation statement by the interrogator. Then the interrogator interjects a reason for the commission of the crime, usually a morally acceptable one. Then the interrogator prepares to overcome the suspect's denials. Steps four through six guide the investigator in overcoming the suspect's reasons why he would not, or could not, have committed the crime. In step seven the police offer a statement supporting the suspect's morally acceptable reason for committing the crime. And the final steps are take the oral statement and convert it into a written confession.

In a followup post, Gustitis further described common interrogation practices, declaring that typically:

police wanted to first isolate a suspect, allowing them to sit alone and in sparsely furnished surroundings. This increased stress and increased the person's incentive to free themselves from the situation. Then by confronting the suspect outright the police hoped to increase anxiety and induce a sense of hopelessness.

Investigators regularly confront suspects and emphasize to them the only question remaining open is "why" (and not "whether") they committed the crime. In other words, the police presume the person under interrogation is guilty. Additionally, some of the most common police tactics include appealing to the person's self-interest, confronting them with actual (or purported) evidence of guilt, undermining their confidence in denials, appealing to the importance of cooperation, offering moral justifications for committing the crime, and minimizing the seriousness of the offense.

The Miranda court recognized the prevalence and use of these police interrogation tactics and concluded isolation was one of the most significant aspects of these methods. They concluded custodial interrogations contained inherently compelling pressures that undermined a person's ability to make free and informed choices whether to speak to the police.

Weisselberg's description of interrogation tactics jibes closesly with that offered earlier this year by academic Richard Leo in his book "Police Interrogations and American Justice," who argued that police routinely use coercion, fraud and deception in ways that contribute to false confessions. Lying to suspects in particular can generate false confessions as well as other negative outcomes. Such practices are prominent features of the so-called Reid technique (see a description here) which forms the basis for most police interrogation training in the United States.

Recording interrogations would solve some but not all of these problems; many police interrogation techniques are based on inherently coercive approaches that lack scientific support. Particularly suspect is reliance on the interrogating officers' ability to detect deception that supposedly justifies use of more coercive techniques. Ironically, then, one of the main arguments against recording interrogations has been that police want to keep those suspect tactics secret for fear the public won't support them:

The F.B.I., in documents defending its policy [not to require taped interrogations], argued that taping was not always possible, particularly when agents were on the road, and that it was not always appropriate. Psychological tricks like misleading or lying to a suspect in questioning or pretending to show the suspect sympathy might also offend a jury, the agency said.

“Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants,” said one of the once-secret internal Justice Department communications made public as part of the investigation into the dismissals of the United States attorneys.

That's not an acceptable reason to oppose taped interrogations, particularly in circumstances where a suspect has been isolated and read their Miranda rights. Just like cockroaches scatter when you turn on a light, my guess is that recording and thus exposing these tactics to scrutiny by judges and juries would, in the long run, result in their defenestration. At a minimum, recording would allow more comprehensive post-investigative analysis by researchers to identify unproductive approaches and best practices. Until then, for the foreseeable future, coercive tactics will remain a routine part of American police interrogation.