05/07/2008 Reid Institute Members - Two new Canadian Columns are available: "Prosper Warning: Part 1" and "Prosper Warning: Part 2"
By Gino Arcaro B.Sc., M.Ed

I. Executive Summary
It is a common occurrence for an arrested person to invoke the right to counsel by asking to consult with a lawyer then change his mind and waive the right before consulting with a lawyer. When this happens, the police have a mandatory obligation to read the "Prosper Warning" to the arrested person before interrogating him. Since the inception of the "Prosper Warning" in 1994, a string of case law derivatives have emerged including two recent decisions by the Saskatchewan Court of Appeal in R. v. Basko (2007)[1] and R. v. Weeseekase (2007)[2].

Both cases include:
  1. important points-of-reference for frontline police officers, and
  2. significant case law review for research purposes.
Prosper Warning Part 1 explains the Basko point-of-reference circumstances and its derivative cases. Part 2 will explain the Weeseekase point-of-reference and its derivative cases including how Basko is applied.
Click here for compete article
05/07/2008PoliceOne.com publishes two new Reid articles
In their Street Survival Newsline newsletter PoliceOne.com has published to recent articles by Reid staff: Understanding and Investigating Child Physical Abuse by Robert H. Farley, and Murder: Anatomy of Interrogation Theme Selection and Development by Louis Senese.
Click here for the complete articles
05/01/2008Investigators Tip: May-June 2008
One-on-one allegations are very common in criminal investigations. The accuser may be an alleged victim. The accused, of course, denies involvement and offers an explanation for the false allegation. In other situations, an incident occurs and there are only two possible suspects. Obviously, both suspects will name the other...
Evaluating One-On-One Allegations
03/10/2008Street Crimes seminar now part of GSA contract
John E. Reid and Associates is pleased to announce that our Street Crimes seminar is now part of our GSA contract. Personnel from all federal agencies can now attend the Street Crimes seminar at the GSA rate of $300 per person - a savings of $95 from the standard rate.
For details on the Street Crimes program please click here.
03/09/2008 Reid Institute Members - The new Canadian Column is entitled, "Act on your suspicions: The Section 24(2) Charter pendulum
This case law decision involves a frontline interrogation relative to a vehicle search that violated s. 8 Charter, resulted in a large drug seizure, and the admission of the drugs as evidence because of a paradigm shift in the way s. 24(2) Charter was applied by the Court. This case not only marks a common sense change in the application of s. 24(2) Charter, it is a point-of-reference case that applies s. 24(2) Charter the way it was intended.

Although this case does not directly involve a formal interrogation and confession, the ruling is significant because it will likely affect how s. 24(2) Charter will be applied in the future to the admissibility of any evidence. The derivative cases that may emerge will be monitored to determine the long-term effects, if any, on the admissibility of confessions.
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02/24/2008Reid Institute Members - The new Canadian Column is entitled,
I.Review of Singh

This case is a derivative of the landmark right to silence decision released three months ago, in R. v. Singh (2007) SCC.

To briefly review the key points: In November, 2007, the Supreme Court of Canada made the following major ruling, in R. v. Singh (2007) regarding the right to silence: A police officer may continue to question an arrested person who has invoked the right to remain silent.

Five key points emerge from this rule:
  1. Invoking the right to silence does not automatically end an interrogation.
  2. It is not a sec. 7 Charter violation for the police to ignore an arrested person's right to remain silent and to persuade the accused to change his mind.
  3. Considerable persistent questioning is allowed after the right to silence is invoked.
  4. The police are entitled to continue questioning after the right to silence is invoked "so long as their conduct does not reach the point where the suspect's will is overborne and his statement is no longer voluntary." An "overborne will" is defined as being "deprived of an operating mind." It means incapable of making meaningful decisions - the free will to make choices. In other words, as long as the accused has an operating mind and has decision-making capacity, "persistent" interrogation may continue.
  5. A sec. 7 Charter violation occurs only if an arrested person invokes the right to remain silent and the police interrogation techniques cause the arrested person to lose his decision-making capacity. In Canada, an interrogation must stop only when the suspect's operating mind is deprived - when he loses the ability to make sound decisions.

Click here for the complete article.
02/11/2008Reid Institute Members - The new Canadian Column is entitled, "Young Offender Confessions: 'right' versus 'required'.
Reid Institute Members - The new Canadian Column is entitled, "Young Offender Confessions: 'right' versus 'required'. By Gino Arcaro B.Sc., M.Ed

I. sec. 146(2)(b)(iv) and sec. 146(6) YCJA

Among the numerous controversies surrounding young offender laws is the admissibility of young offender confessions. One of the interrogation issues centers on how to properly instruct a young offender about waiving the presence of a third party consultant, in accordance with sec. 146(2)(b)(iv)Youth Criminal Justice Act. Another related issue is what constitutes a "technical irregularity" under sec. 146(6) YCJA.

Three laws govern the admissibility of young offender confessions and statements:
  1. common law "confession rule" relating to voluntariness
  2. Charter provisions including right to silence, right to counsel, reason for arrest and sec. 24(2)
  3. Statutory protections created by the Youth Criminal Justice Act, including section 146 YCJA.
The first two laws apply to both adult and young offenders. The third law applies only to young offenders, increasing the complexity of young offender confession admissibility.
Click here for full article
02/11/2008Legal Updates for February 2008
We have reviewed 9 cases that relate to such issues as the interrogator referring to religion during the interrogation; misrepresenting evidence during the interrogation; ambiguous requests for an attorney; the value of video recording interrogation; and 4 court decisions that reject experts' testimony of the issue of false confessions.
Click here for the details on these cases.
01/01/2008Five Courts Reject the Testimony of Richard Leo and Richard Ofshe


In the case of People v.Wroten Dr. Richard Leo testified that the interrogators suggested to the defendant "that the offense was accidental, thereby minimizing the suspect's perception of the consequences of an admission and implying that an accidental killing might result in leniency. This technique can increase the risk of a false confession." The court rejected this position and the jury convicted the defendant of first degree murder. In their review of the case the Court of Appeal, 2nd District, Division 2, California stated "There were also no promises of leniency made to appellant. The statements he points to as making such promises are at worst ambiguous and, in any event, did not pervade the interrogation. Detective Lait's statement that they were giving appellant a "million dollar opportunity" to explain whether the shooting was intentional or accidental contains no promise of benefit. While the detective stated that knowing whether the murder was intentional or accidental might make a difference in "how we proceed," he did not say it would benefit appellant or that it would make a difference as to whether they would proceed. Furthermore, after Detective Lait made those statements, appellant continued to deny involvement in the Mosley shooting....Those statements did not overbear his will to resist and proximately cause him to confess. Detective Garrido's statement that they wanted to get appellant "cleared up" was little more than encouragement to tell the truth." Click here for the complete decision

In the case of People v.Muratalla Dr. Richard Leo suggested that the defendant's consent to search may have been given as the result of improper police questioning techniques. The Court of Appeals decision stated that "Leo opined that threatening to arrest a suspect's girlfriend or to have the suspect's child removed in order to gain access to the suspect's residence would qualify as coercive threats. Such threats, if used to gain consent, would also affect the suspect's subsequent perceptions about whether the suspect should make statements during an interrogation." The trial court found that "under the totality of circumstances, Muratalla's consent to search was voluntary. The court found that assuming the officers had discussed the possibility of having DCFS take custody of the children and had handcuffed Dorame in Muratalla's presence, such conduct did not induce Muratalla "to do something that he otherwise might not have done." The court noted that it would have found Muratalla's consent to have been involuntary had the officers said to Muratalla that his son would be removed by DCFS and his girlfriend would be arrested unless he agreed to the search of his residence. But in the absence of such a direct threat by the officers, the trial court concluded that Muratalla's consent was obtained without police coercion." The Court of Appeals, 2nd Disrtict, California affirmed the trial court's decision. Click here for the complete decision.

In their decision in the case of People v. Cota, the Court of Appeal, 4th District, Division 3, California reported the following:

"During trial, defense psychological expert Dr. Richard Ofshe testified about interrogation tactics used by police in order to elicit confessions from suspects and factors that contribute to suspects making false confessions. During closing argument, the prosecutor read an excerpt from a law review article in which Ofshe was quoted as saying: " 'While a guilty party will likely be very unhappy that he is being accused and confronted with evidence that supports the accusation, he is somewhat insulated from shock because he has always been aware of possible detection and can understand that he has been caught. An innocent suspect is likely to experience considerable shock and disorientation during interrogation because he is wholly unprepared for the confrontation and accusations that are at the core of the process and will not understand how an investigator could possibly suspect him.'

The prosecutor then proceeded to argue, "[w]hen you look at this videotape [of the defendant's interview with Campuzano], ask yourself that question. Where is the shock of being accused of these horrific crimes? ... There isn't because the defendant knew what he did, period. And because this evidence is so compelling, because it is so compelling, the defense is grasping at straws.... And all they need to do is fool one of you. If they fool one of you, then the defendant is not held responsible." Click here for the complete decision.

In the case of Lyons v. State Lyons sought to have Dr. Richard Ofshe testify as an expert witness on false confession theory. Following a hearing outside the jury's presence at which Ofshe testified, the trial court ruled that it would not allow the testimony based upon the evidence in the case, because such theory had not reached a verifiable stage of scientific certainty, and because whether Lyons's inculpatory statements were the results of threats or coercion was a matter the jury could discern for itself. "This Court further observed in Riley that the admission of expert testimony based on the theory of false confessions was premature and unreliable inasmuch as there was insufficient scientific support and too many unanswered questions regarding such theory. Id. at 682-683(4), 604 S.E.2d 488. In short, false confession theory does not satisfy the evidentiary test in criminal cases set forth in Harper v. State, 249 Ga. 519(1), 292 S.E.2d 389 (1982)." Click here for the complete decision.

In the case of US v. Mamah the US District Court, N.D. Illinois granted the government's motion to bar Dr. Richard Ofshe's testimony, stating that "The jury will not be, and cannot be, assisted in any way by Dr. Ofshe's views in determining whether Mr. Mamah's version of the interrogation is more accurate than that of the interviewing agents, assuming material conflict. It is a classic jury function to determine the credibility of witnesses. That Dr. Ofshe can say some people confess falsely when faced with certain stimuli is not relevant to the jury's credibility determination function. Nor can Dr. Ofshe testify, as part of his work, what the specifics of the interrogation consisted of as related to him by Mr. Mamah. Mr. Mamah's statements to him about the interview would be inadmissible hearsay and could not be disclosed by Dr. Ofshe to the jury pursuant to Rule 703. Beyond that, Dr. Ofshe employs mere conclusory statements in his report about tactics used without specifics or elaboration. As is recited in Hall at p. 1344, conclusory statements without any explanation why the expert can contribute to the jury's understanding of the subject are also subject to exclusion. That is also the situation here." Click here for the complete decision.
12/01/2007Criminal social psychology research confirms the foundation of the Reid Nine Steps of Interrogation - theme development
In a recent article entitled Bridging the Gap Between Research and Practice: How Neutralization Theory Can Inform Reid Interrogations of Identity Thieves, the authors point out that the foundation of the Reid Nine Steps of Interrogation (specifically theme development) is grounded in strong psychological principles - in this case neutralization theory.

As the authors state:

"Themes are the heart of interrogations in that they serve to psychologically excuse the suspect's behaviors. By voicing excuses as to why the suspect's behavior is acceptable, interrogators may be able to break down some of the existing mental, psychological, and physical barriers. Once the suspect realizes that interrogators understand and are sympathetic to the situation, there is a greater chance the suspect will discuss the crime or incident. The objective of the interview is to uncover the truth, and themes are one of the most effective methods to get the suspect to explain the act or situation in question (Leo 1996).....

As previously explained, themes are detailed scenarios developed by interrogators that are based on the neutralization (or neutralizations) that offenders use to make sense of their actions. By increasing their knowledge on the varying types of neutralizations that offenders use for different types of crimes, interrogators will increase their chances of obtaining confessions. In what follows, we show how research examining the neutralizations used by identity thieves can inform and guide police in their interrogations using the Reid Technique." Click here for the complete article.
Click here for the complete article.
11/17/2007Reid Institute Members - The new Canadian Column is available on the Members What's New page - it is entitled, "Obtaining a confession "no matter what" after right to silence invoked, may be acceptable."
R. v. Singh (2007)[1] S.C.C. - Right to Silence Part 2
By Gino Arcaro B.Sc., M Ed.

I. Summary

The bold strategy of obtaining a confession from a murder suspect, "no matter what," may be acceptable even if it requires persistence that ignores and changes the suspect's intention to remain silent, as long as the police conduct does not negate the suspect's ability to exercise his free will.br>
On Thursday, November 1, 2007, the Supreme Court of Canada made a landmark ruling that significantly expands police interrogation strategy. The SCC upheld the 2002 second-degree murder conviction of a person who shot an innocent bystander. The primary issue before the court was determining the extent of police persistence that may be used to obtain a confession, when an accused repeatedly invokes his right to remain silent.br>
The case, R. v. Singh, deals with a homicide investigation that began when a bystander was shot through the open door of the bar by the accused after the accused had been kicked out for fighting. During interrogation, the accused repeatedly invoked the right to silence, telling the detective that he did not want to answer questions. The detective persisted. The accused changed his mind and made certain statements.
Click here for complete article
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