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Confessing During Interrogation
29 November 2005
by Michelle Calderon, staff writer for AnaiRhoads.org
"…No person shall be compelled in any criminal case to be a witness against himself." (US Constitution, Amendment VS.)
A confession has a powerful impact upon a criminal case. A confession must be voluntary to be admissible but may still be attacked before the trial jury because voluntariness is exceedingly difficult to define in law. In Culombe vs.. Connecticut (1961), Justice Frankfurter declares that "the notion of voluntariness is itself an amphibian” (a, n. d.). It is difficult for juries to appreciate why a confession might be unreliable or false mainly because it is difficult to comprehend just why so many suspects can be convinced to give a confession to the police. Physical force is no longer common in the police station. Furthermore, the questioning occurs after a suspect is given Miranda warnings. The suspect is expressly told that any statements may be used against him/her and that officers are not necessarily safeguarding the suspect’s own best interests. Confession in a case may harm the accused in other ways. It often causes police to curtail investigation into other possible suspects. Confessions lead judges and even defense counsel to assume the defendant's guilt. So why do suspects confess?
Ancient Rome, the medieval and early modern Europe all used brutal measures for interrogations. Ancient historians confirm “that torture was employed as lawful tactic by judges to obtain evidence of serious crime” (Zalman, 2002, p. 310). In The Passion of the Christ, “the torture of Jesus is presented in such a brutal, unflinching manner that it's almost impossible not to look away as chunks of flesh are ripped out by a scourge, and the bloody, mangled skin is shredded to appear like a grotesque parody of ground meat “(Berardinelli, 2004).
Prior to Miranda vs.. Arizona, U.S. (1966), interrogation practice were divided into three periods. Before 1936 the Supreme Court were passive with respect to public concerns over police "third-degree" practices. From 1936 to 1966, the Court reviewed coerced confessions under the due process voluntariness test derived from the exclusionary rule. The third phase applied the Fifth Amendment to coerced admissions made under custodial interrogation.
With the condemnation of brutal and tortuous methods of extracting confessions, the Court instead were faced with different methods of coercion at hand. Case by case, the Courts reviewed and made decisions on how to protect individual rights against self-incrimination. Without established rules, there were many landmark cases that precluded the eventual need for a basic guideline for police to follow. Bram vs.. United States (1897) held that coerced confessions are determined by the voluntariness test and suggested three different policies for the due process: “(1) ensuring that convictions are based on reliable evidence; (2) deterring improper police conduct; or (3) assuring that a defendant’s confession is the product of his free and rational choice.” (Zalman, 2002, p. 314).
In 1912, the Judges Rules were established by English Courts to warn the suspect that “you are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence” (Zalman, 2002, p. 313). This clearly reminds us of the Miranda Warnings now enforced in the US.
Brown vs.. Mississippi ,1936 provided the idea of a fair trial and banned violence-induced interrogations in order to obtain a confession. From 1936 until 1966, the Supreme Court decided more than thirty confessions cases and applied the voluntariness test to lesser forms of coercion.
Ashcraft vs.. Tennessee (1944), the concept of Third Degree was condemned. While violence was not employed, questioning methods “in relays” for thirty-six hours with no interruption until confession was rendered not voluntarily obtained and constituted to coercion. The bright line confessions rules gave the police greater guidance, McNabb vs.. United States (1943) and later in Mallory vs.. United States (1957).
All persons questioned by police have a general obligation to cooperate and to answer questions truthfully (Brogan vs.. United States, 1998). Witnesses who claims the privilege has relevant information cannot be forced to testify unless immunity if granted. If immunity is granted and the witness refuses to testify, the courts have power “to compel testimony through contempt and imprisonment, Shillitani vs.. United States (1966). Voluntary statements are not protected by the privilege even if incriminating. The state cannot coerce or compel a criminal suspect to testify at his trial because it violates a defendant’s Fifth Amendment rights, Griffin vs.. California, 1965.
Still, there were no set of rules established for police and judges to follow. Instead, the police had to rely on past examples of cases to apply during interrogation process. In 1964, the Fifth Amendment Right to self-incrimination was incorporated into our Constitution applied to all federal, state, and local law enforcement services paving the way to Miranda vs.. Arizona (1966). The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court in order to make him aware not only of the privilege, but also of the consequences of doing so.
But attacks of the Miranda were present: Harris vs.. New York (1971) and Michigan vs.. Tucker (1974) applied certain exceptions to the Miranda and allowed the use of illegally seized evidence in proceedings other than the trial. Additional protections for suspects were established in Spano vs.. NewYork (1959), Gideon vs.. Wainwright (1963), Massiah vs. US (1964) and Escobedo vs. Illinois (1964) applying the Sixth Amendment rights allowing the right to counsel.
Despite the storm of criticism that followed Miranda the police learned they were able to obtain confessions even after giving the Miranda warnings. The length of interrogation sessions, the tactics employed, or the pressures exerted on suspects to divulge information, and whether these matters undermine the validity of waivers were soon questioned. Problematic confession issues (confessions by mentally handicapped defendants, lengthy interrogations, confessions induced by threats or promises to the defendant or by threats of adverse consequences to a friend or loved one, and misrepresentation of evidence against the suspect) were examined. But except for prohibiting violence and extreme tactics, "the post-Miranda constitutional limitations impose virtually no limit on police interrogation practices" (Weisselberg, 2002). It means to abandon suspects to the tender mercies of elected legislators for relief from improper police action.
The Court has an obligation to "formulate rules that reduce the likelihood that police will engage in pernicious interrogation practices," and defines pernicious interrogation practices as those that have a "propensity to produce untrustworthy statements" (Weisselberg, 2002). Chief Justice Warren stated that "the modern practice of in-custody interrogation is psychologically rather than physically oriented." (Zalman, 2002, p. 316-322). Warren used police interrogation manuals to full advantage in Miranda and rendered such tactics during custodial interrogation inherently coercive. This manual was the Court's best effort to afford suspects the ability to exercise free choice in the stationhouse to make an informed decision whether to choose speech or silence. This manual was later published. This manual is currently in its 4th edition and known as the Reid Technique of Interrogation (Weisselberg, 2002). The Reid model is considered the most influential interrogation manual in the US.
The Reid model has nine steps discussed below: (Buckley, n. d.).
Step One is "direct, positive confrontation" with the accused. Here the officer tells the suspect that the evidence clearly indicates he is guilty of the crime. Example may be a comment that the officer needs to know why the crime was committed, implying that the reason may make a difference.
Step Two is to develop a theme, such as one designed to sympathize with a suspect perhaps by suggesting that the act was understandable or to reduce the suspect's feeling of guilt by minimizing the moral seriousness of the offense.
Steps Three and Four are to handle the suspect's expected denials. Keep the suspect's attention, handle the person's expected passive mood, and then present alternative questions to the suspect.
Step Five of the process is to procure the suspect's attention to the theme. At this stage the investigator may move his chair in closer to the suspect's. A person who is physically close to another individual is also emotionally closer to that person. The investigator may also ask hypothetical questions designed to stimulate internal thoughts from the suspect. After that, the suspect relates details of the crime and finishes by reducing the confession
Step Six of the interrogation. The investigator condenses theme concepts to one or two central elements and moves into the next step of the process designed to elicit the initial admission of guilt.
Step Seven is presenting an alternative question. This is a question that presents two choices to the suspect concerning some aspect of his crime. The choices generally contrast a positive and a negative choice. Accepting either choice, of course, results in an admission of guilt. It is important to remember that every suspect has a third option which is to reject both sides of the alternative question. The psychology of the alternative question relies on the guilty suspect's victim mentality. If an innocent suspect gets to this stage of an interrogation, he listens to both sides of the question and has no difficulty rejecting both of them. The guilty suspect, on the other hand, not wanting to be perceived as a bad or hideous person may be persuaded to accept the positive choice to writing.
Step Eight, developing the oral confession.
Step Nine where the oral confession is converted to a court admissible document. A confession is a statement acknowledging personal responsibility for a crime including details only the guilty person would know.
However, a crucial element in implementing the Reid technique successfully (that is, without any legal recourses), would involve the issue of custody or detainment. An officer’s subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment whether the person is in custody. The test for custody for Miranda purposes is an objective test: how a reasonable man in the suspect’s position would have understood his situation (Berkemer vs. McCarty, 1984). In other words, if the suspect does not feel he is free to leave, then he is in custody.
Custody for the purposes of Miranda is a formal arrest, or its functional equivalent (handcuffing or pointing of a firearm or tackling a running suspect or the like.). Interrogation in a police station does not become custodial merely because of the location. The fact that an individual has become the focus of an investigation does not trigger the Miranda requirement. Questioning in a police car or at the police station, not allowing the suspect to leave the presence of police or asking the driver to get out of the car taking him into the nearby police box for interrogation may be considered as police custody. A roadside questioning of a motorist detained pursuant to routine traffic stop was not construed to be custodial interrogation by the Supreme Court. (Hussein, 2004).
Additionally, Black's Law Dictionary defines custody as "the care and control of thing or person as well as detainer of a man's person by virtue of lawful process or authority..." (c, 2005). Custodial accountability of the police means depriving any person of his right to movement and action in a significant way. "The ultimate determinant of whether or not a person is in custody", as said by the Supreme Court of America in California VS.. Bakeler" is whether the suspect has been subjected to formal arrest or to equivalent restraint on his freedom of movement" (Hussein, 2004).
Interrogation is a powerful device through which police endeavors to pump the suspect for disclosure of facts. Custodial interrogation would prove to be giant leap in modern criminal procedures. The Supreme Court has finally succeeded in implementing guidelines for officers to conduct during questioning while protecting the rights of suspects. In a landmark decision (Miranda VS.. Arizona) the American Supreme Court held "by custodial interrogation we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way". Detention must be to the deprivation of the right to movement of the suspect in a significant way. With this condition follows four warnings before an interrogation to take place namely, a) You have a right to remain silent b) Anything you say can be used against you in a court of law c) You have a right to the presence of an attorney and d) If you cannot afford an attorney, one will be appointed for you prior to questioning. Unless the warnings are given, evidence collected through interrogation is not admitted in court. It is important to note that the suspect can end the interrogation or request counsel at any time even after waiving the Miranda.
The key to modern day police interrogations and why it works is to deceive suspects into believing that it is in their own best interests to speak. The expectation of a reward is essential. Police interrogators “often try to float a more understandable or less morally culpable version of the offense even seeming religious in nature similar to priests who extracted confessions for centuries” (Zalman (2), 2002).
The Reid model has proved successful because it operates in a society in which many associate confession with absolution, meaning forgiveness and mercy similar to those of priests. By minimizing the condition, the officer offered the suspect an excuse or moral justification for the crime. By maximizing the condition, the officer uses scare tactics, such as exaggerating the strength of the evidence and the seriousness of the offense. Minimizing “communicated leniency expectations as effectively as did an explicit promise. If subjects have been conditioned to believe that confession is always rewarded, they would be more inclined to interpret a detective's statements that encourage a confession as containing some promise of leniency or reward” (Weisselbert, 2002).
References:
a. (n. d.). Columbe vs. Connecticut. Retrieved November 15, 2005, from: Yale
Berardinelli, J. (2004). Review of the movie: The Passion of the Christ. Retrieved November 15, 2005, from: Colossus
Buckley, J. & Jayne, B. (n. d.). The Reid Technique of Interrogation. Retrieved November 17, 2005, from: Reid
c. (2005) Black’s Law Dictionary: Custody. Retrieved November 22, 2005, from:
Law Student Paradise
Hussein, M. (2004). Police Custody. Retrieved November 22, 2005, from:
Daily Star
Weisselberg, C. (2002). The Precinct Confessional. Criminal Justice Ethics. New York, Volume 2, Issue 22. (57-66). Retrieved November 11, 2005, From: ProQuest.
Zalman, M. (2002). Criminal Justice Procedure: Constitution and Society, Third Edition. (320).
Zalman (2), M. (2002). Welsh S. White, Miranda’s Warning Protection: Police Interrogation Practices after Dickerson. Justice System Journal.
Denver. Volume 23, Issue 2. (263-271). Retrieved November 11, 2005, from: ProQuest.
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