08/14/2014||Not so Fast - the Central Park Jogger case|
As everyone knows the Central Park Jogger case has become a high profile "false confession" case - highlighted by the documentary Ken Burns did about the case.|
Not so fast. A recent article in the Wall Street Journal sheds some very interesting light on the case. The story was written by Michael Armstrong who is of counsel at McLaughlin & Stern. He has served as Queens County district attorney and chief counsel to the Knapp Commission investigating corruption in the New York City Police Department.
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07/15/2014||The Hunting Of Man: Lies, Damn Lies, And Police Interrogations|
Miller W. Shealy, Jr., Associate Professor of Law, Charleston School of Law, has just published an article entitled, The Hunting Of Man: Lies, Damn Lies, And Police Interrogations, in which he discusses and then support the use of deception by investigators during their interrogations. Here is the article's Abstract:|
The job of the police is to stop crime by stopping criminals. It is a real life, deadly cat-and-mouse game where the hunter and the hunted spar for advantage and success. To accomplish its goals, law enforcement can draw from a vast array of technologies, stratagems, and devices. One of the primary weapons in the law enforcement arsenal is deceit. Criminals, like most prey, are lured into clever traps set by police. The police create circumstances and situations that are designed to prompt the criminal suspect into revealing incriminating information. This is obvious in the use of confidential informants, undercover police officers, and other common police tactics. Suspects are "tricked" by police into revealing themselves. A controversial aspect of this kind of police "trickery" occurs in the interrogation context. What may police tell suspects to "trick" or prompt them into confessing? Can a police officer misrepresent the strength of the case against the suspect? Can an officer lie about the nature of incriminating evidence? Can an interrogating officer disguise his or her identity during the interrogation and pose as a family friend, priest, or someone friendly to the accused? This article will examine current police practices in the context of recent Supreme Court cases and social science findings. I will argue that certain deceptive techniques are appropriate in the interrogation context. If appropriately utilized, "trickery" of a certain type does not unreasonably increase the risk of false confessions and is an appropriate tactic in the hunting of criminals.
Click here for the complete article.
07/15/2014||From Law and Order magazine: The Reid Technique Webinar - The Reid Technique Delivered Right to Your Training Room|
In the June 2014 issue of Law and Order magazine the editorial staff profiles the new online training program developed by John E. Reid and Associates for investigators. As the article states, "The three-hour Reid Technique webinar is an excellent summary of the 40-hour instructor led classroom course. It serves as both an introduction to Th4e Reid Technique and as a refresher to the course."|
Click here for the compete article.
07/01/2014||The Reid Technique - A Position Paper|
As the world leader in teaching interview and interrogation techniques, The Reid Technique is commonly challenged by defense attorneys and interrogation critics. We have prepared a position paper that will provide you with information to respond to these challenges. In this paper we address the following topics:|
The core principles of the Reid TechniqueBest PracticesWhy false confession experts criticize The Reid TechniqueWhat the courts say about false confession expertsWhat the courts say about The Reid TechniqueThe best way to guard against false confessions"Reid" testifying as interrogation expertsHow do I answer the question, "Do you use The Reid Technique?"
Click here to access this position paper.
06/17/2014||US Attorney General issues policy memo regarding recording interrogations|
In a Memorandum regarding "Policy Concerning Electronic Recording of Statements" dated May 12, 214 the US Department of Justice, Office of the Deputy Attorney General, stated the following:|
"This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and the United States Marshals Service (USMS will electronically record statements made by individuals in the circumstances set forth below."
"The presumption applies only to interviews of persons in FBI, DEA, ATF or USMS custody. Interviews in non-custodial settings are excluded from the presumption."
This policy takes effect on July 11, 2014.
Click here for the Memorandum.
06/17/2014||HumInt Collection: A look through noncoercive field questioning and screening of jihadist combatants|
Two of our senior instructors, William Schrieber and Philip Mullenix, co-authored a new article just published in the Marine Corps Gazette entitled, HumInt Collection: A look through noncoercive field questioning and screening of jihadist combatants. Here is the beginning of the article:|
Marines whose military occupational specialties (MOSs) include field questioning and screening of jihadist suspects must operate within the interrogation parameters defined in Field Manual 2-22.3, Human Intelligence Collector Operations (Department of the Army, Washington, DC, September 2006) ("the Manual").
Field questioning (also known as tactical questioning) is defined in section 1-17 of the Manual as expedient initial questioning for information of immediate tactical value, generally performed by members of patrols. Screening as described within section 1-18 of the Manual is generally performed by experienced collectors, usually within a controlled environment, to identify the level of knowledge, level of cooperation, and placement and access of a given source relative to information of high intelligence value.
As a human intelligence (HumInt) collector engaged in field questioning and/or screening, the Marine has a responsibility to adhere to the Manual's five phases of a HumInt questioning session: planning and preparation; approach; questioning; termination; and reporting.
Click here for the complete article ("Reprinted courtesy of the Marine Corps Gazette. Copyright retained by the Marine Corps Gazette.")
06/02/2014||Legal Updates Spring 2014|
The Legal Updates Spring 2014 column contains cases which address the following issues:|
- Defendant is entitled to discovery of evidence relating to officer's alleged propensity to obtain confessions through coercive conduct
- Standard questions that solicit from the custodial suspect basic identifying information do not require an advisement of rights
- Video identifies improper interrogation - confession suppressed
- Video contradicts defendant's claim he was too intoxicated to waive his rights
- Court confirms that The Reid Technique consists of proper interrogation procedures
- The criteria to be considered in determining custody for a juvenile suspect
- Testimony of Dr. Deborah Davis on false confessions excluded by the court
- Testimony of Dr. Allison Redlich on false confessions excluded by the court
- Undercover agents do not have to advise a suspect of their Miranda rights
- The value of recording an interrogation to demonstrate voluntariness
- Value of recording to demonstrate the totality of circumstances and voluntary nature of incriminating statements
- Investigator should not be allowed to testify about the defendant's credibility
- Denial of juvenile suspect's request to see mother during interrogation did not render the confession inadmissible
- Anatomy of a false confession case
- Gudjonsson Suggestibility Scale found not to meet Fry test - there is not acceptance of the GSS in the forensic psychology community
- Combination of assertion the defendant's daughter would suffer without an admission and an implied promise of leniency yield involuntary confession
- Equivocal invocation of rights: "[t]he context of the recorded statement clearly indicates that [Piatnitsky] was willing to speak with the detectives, just not on tape."
- Court should have allowed Dr. Richard Ofshe to testify in general about false confessions
- Investigators did not follow suggested guidelines when interrogating mentally deficient individual as detailed in Reid training manual and text, Criminal Interrogation and Confessions
Click here for Legal Updates Spring 2014
05/20/2014||Arguing for Statewide Uniformity in Recording Custodial Interrogations|
The American Bar Association has recently published an article by Attorney Thomas Sullivan that discusses the need to establish uniform recording guidelines, Arguing for Statewide Uniformity in Recording Custodial Interrogations. The article contains a detailed listing of state by state custodial recording requirements, and begins as follows:|
"In light of the widespread agreement that recordings of custodial interrogations are a valuable tool for our system of criminal justice, an issue remains as to how the practice should be instituted. There are two schools of thought: Some contend recordings should be adopted pursuant to guidelines (a.k.a. best practices) recommended by state law enforcement authorities and/or state police and sheriff associations. Others contend it is preferable to have a state statute or state supreme court rule that provides for recording under circumstances that apply uniformly throughout the state. This article examines both proposals and the reasons that favor state statutes and supreme court rules."
Click here for the complete article
05/19/2014||Investigators did not follow suggested guidelines when interrogating mentally deficient individual as detailed in Reid training manual and text, Criminal Interrogation and Confessions|
In US v. Preston (May 2014) the US Court of Appeals the court stated, "Today we consider the voluntariness of a confession given by Tymond Preston, an intellectually disabled eighteen-year-old. To elicit this confession, the police, among other tactics, repeatedly presented Preston with the choice of confessing to a heinous crime or to a less heinous crime; rejected his denials of guilt; instructed him on the responses they would accept; and fed him the details of the crime to which they wanted him to confess. Under the totality of the circumstances, including Preston's intellectual disability, we conclude that the confession that resulted from this questioning was involuntarily given and should not have been admitted at trial."|
From their opinion the court stated:
Preston was eighteen, with an IQ of sixty-five. The two officers realized early in the interrogation that Preston suffered some sort of intellectual disability, as his initial responses gave them cause to believe that he had an impairment. They therefore inquired directly if he was "disabled." Preston did not understand the word "disabled," and so asked its meaning. That he had to ask for an explanation of a common word itself suggests the extent of his cognitive impairment. After the officers explained the word's meaning, Preston agreed that he was disabled, elaborating that he was not able to complete his schooling as a result.
Summarizing the evidence regarding how the intellectually impaired respond to contemporary police interrogation methods, several scholars have listed "seven common characteristics" of such people, including (1) "unusual[ ] susceptib [ility] to the perceived wishes of authority figures"; (2) "a generalized desire to please"; (3) difficulty "discern[ing] when they are in an adversarial situation, especially with police officers," who they generally are taught exist to provide help; (4) "incomplete or immature concepts of blameworthiness and culpability"; (5) "[d]eficits in attention or impulse control"; (6) "inaccurate views of their own capacities"; and (7) "a tendency not to identify themselves as disabled" and to "mask[ ] their limitations ."
"[A]s interrogators have turned to more subtle forms of psychological persuasion," and away from physical coercion, "courts have found the mental condition of the defendant a more significant factor in the 'voluntariness' calculus." ... It simply "takes less" in terms of sophisticated police interrogation techniques "to interfere with the deliberative processes of one whose capacity for rational choice is limited than it takes to affect the deliberative processes of one whose capacity is not so limited."
Among the police tactics used here were several recommended by a manual on police interrogation, see Fred E. Inbau, John E. Reid, Joseph P. Buckley & Brian C. Jayne, Criminal Interrogation and Confessions (5th ed. 2013) ("Reid manual"), from which both the officers who interrogated Preston were trained. The officers, however, sometimes disregarded the manual's cautions about the tactics they used.
For example, using one of the recommended approaches, the two officers asked Preston a number of questions that presented him with two alternatives as to how the crime was committed. See id. at 293-303. "Both alternatives are highly incriminating, but they are worded in such a way that one alternative acts as a face-saving device whilst the other implies some repulsive motivation." Gudjonsson, supra, at 19. In this instance, Preston was asked to choose, for example, whether he was a monster--a sexual predator who repeatedly preys on children--or if the abuse of the child was a one-time occurrence.
These questions were derived from similar exemplars in the Reid manual. Reid manual, supra, at 296-97, 298. The manual, however, suggests that the inculpatory alternatives technique recommended may be unduly coercive when used for suspects of seriously impaired mental ability: it trains agents in the alternative questioning method with the understanding that "no innocent suspect, with normal intelligence and mental capacity, would acknowledge committing a crime merely because the investigation contrasted a less desirable circumstance to a more desirable one and encouraged the suspect to accept it." Reid manual, supra, at 303 (emphasis added). The psychological evidence regarding Preston's intellectual disabilities confirms this assessment by indicating that he is confused by complexity, abstraction, and multiplicity, and likely to acquiesce in suggestions made by the questioner. As a result, recognizing that where one is asked "a or b," one can answer "neither one," rather than acquiescing in one or the other, could well have exceeded his intellectual abilities.
The agents coupled the techniques of alternative questioning, providing suggestive details, and repetitious and insistent questions with other techniques that the Reid manual specifically cautions against. The Reid manual specifically warns that the questioning "should not be, in any way, based on leniency if the more understanding alternative question is accepted." Reid manual, supra, at 300 (emphasis added). It also cautions that when questioning people of low intelligence, investigators should avoid offering promises of leniency or using deceptive interrogation techniques due to the vulnerability of this group. Id. at 332-33, 352, 429.
Assuredly, interrogating officers can make false representations concerning the crime or the investigation during questioning without always rendering an ensuing confession coerced. ..... But false promises stand on a different footing. In particular, the Supreme Court has observed that "the test of voluntariness" is "whether the confession was extracted by any sort of threats or violence, or obtained by any direct or implied promises, however slight, or by the exertion of any improper influence."
The types of deception used here, which primarily related to considerations extrinsic to the suspect's guilt or innocence, are particularly problematic when used on a person with an intellectual disability. Intrinsic falsehoods, which relate to the facts of the crime itself or of the investigation--such as falsely informing a suspect that the victim had survived and identified the suspect--do "not lead [the suspect] to consider anything beyond his own beliefs regarding his actual guilt or innocence, his moral sense of right and wrong, and his judgment regarding the likelihood that the police had garnered enough valid evidence linking him to the crime." .... But here, the police did not simply inflate the amount of incriminating evidence against Preston. Instead, they suggested falsely that if he confessed, his admissions would not be used against him--he could "move on" after apologizing to the child, rather than being punished. This approach "interject[ed] the type of extrinsic considerations" more likely to "distort[ ] an otherwise rational choice of whether to confess or remain silent." .... The intellectually disabled are more susceptible to such extrinsic deception tactics.
Accordingly, we conclude that the district court erred in admitting Preston's confession.
Click here for the complete decision
04/28/2014||Special Warfare article: Interrogation Theme Selection for Jihadist Combatants|
Phil Mullenix, one of our senior instructors for our specialized military training program, Instructional Programs In Non-Coercive HUMINT Collection, has published an article entitled, Interrogation Theme Selection for Jihadist Combatants in the April - June 2014 edition of Special Warfare|
Click here to access the publication - Phil's article starts on page 12
4/23/2014||Court confirms that The Reid Technique consists of proper interrogation procedures|
In US v. Jacques (March 2014) the US Court of Appeals, First Circuit, upheld the lower court's opinion that a confession obtained by interrogators using elements of the Reid technique was voluntary and admissible. (We reported on the lower court's opinion in the Legal Updates Fall 2011.) In this opinion the US Court of Appeals stated the following: |
"Finally, Jacques claims that Mazza and Smythe overbore his will through their use of the "Reid technique," including exaggerating their evidence and minimizing the gravity of his suspected offense, in obtaining a confession. Extreme forms of deception or chicanery by the police may be sufficient to render a confession involuntary.... Nevertheless, "the use of chicanery does not automatically undermine the voluntariness of a confession." Id. This court has consistently recognized that "some degree of deception ... during the questioning of a suspect is permissible."
Specifically, "a confession is not considered coerced merely because the police misrepresented to a suspect the strength of the evidence against him." Clanton v. Cooper, 129 F.3d 1147, 1158 (10th Cir.1997); see also Frazier v. Cupp, 394 U.S. 731, 739 (1969) (finding that the police's "misrepresent [ations]" of a co-defendant's alleged incriminating statements were, "while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible."); Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir.1992) (finding "the fact that the officer misrepresented ... the strength of the evidence" to be "one factor to consider among the totality of circumstances in determining voluntariness"); Green v. Scully, 850 F.2d 894, 903 (2d Cir.1988) (finding police officer's "assert[ion] that he already had a strong case against petitioner" insufficient to render the ensuing confession involuntary). As the Seventh Circuit has noted, "[o]f the numerous varieties of police trickery, ... a lie that relates to a suspect's connection to the crime is the least likely to render a confession involuntary." Holland, 963 F.2d at 1051.
In this case, the agents' statements exaggerating the quality of their evidence, minimizing the gravity of Jacques's offense, and emphasizing the negative media attention that would attend Jacques's trial all fall safely within the realm of the permissible "chicanery" sanctioned by this and other courts. Jacques points to no federal authority supporting a finding of an involuntary confession under similar circumstances.... Considered in the full circumstances of this case, Mazza and Smythe's interrogative tactics did not amount to coercion in violation of Jacques's Fifth Amendment rights."
Click here for the complete decision
03/31/2014||Attorney Thomas Sullivan list of law enforcement agencies recording interrogations|
For years now Attorney Thomas Sullivan has been collecting information as to which law enforcement agencies are electronically recording their interviews and interrogations. In addition he has prepared a list of states with recording statutes and rules.|
Click here for Department List
Click here for State List
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