03/29/2016||The Legal Updates Winter 2016|
The Legal Updates Winter 2016 column contains cases which address the following issues:|
- California Supreme Court upholds rejection of Dr. Richard Leo testimony
- The value of videotaping the interrogation in disputing intoxication claim
- Confession voluntariness: ambiguous invocation of right to remain silent and rejection of claim of coercive police tactics; rejection of exhaustion claims
- Court upholds suppression of incriminating statements because Detective read Miranda rights in a "garbled' manner
- Investigator's pre-Miranda statement rendered the subsequent waiver coerced and involuntary
- Military Appeals Court upholds decision to deny defendant's request for assistance of expert in coercive interrogation techniques
- Intrinsic falsehoods do not create a coerced confession
- Ambiguous invocation of right to remain silent; and, police officer's implication that defendant might see the outside again if he confessed to a robbery gone bad instead of a premeditated murder was not an inducement rendering his confession involuntary
- Expert should have been allowed to testify on the factors influencing the reliability of the defendant's confession
- The statement "[i]f I am under arrest, take me to my bunk; all these questions, we can just skip them because I want to go to court" was an unambiguous invocation of his right to remain silent
- Value of videotaping interrogation to demonstrate defendant's demeanor; lying about DNA evidence not coercive
- South Dakota adopts the "trustworthiness" standard to determine whether admissions are admissible and sufficient to support a conviction in criminal cases
- Threat of being raped in jail contributed to a coerced confession
- Defendant's statement that he had a personal lawyer and that "[C]an we get him down here now, or ...?" was not an unambiguous request for a lawyer
- Reference to the possible prosecution of his son did not render the confession inadmissible
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03/27/2016||TASER Exposure and Cognitive Impairment: Implications for Valid Miranda Waivers and the Timing of Police Custodial Interrogations|
In the above referenced article the authors suggest that an individual who has experienced TASER exposure will experience reduced cognitive functioning. As a result the authors question the abilities of an "average" suspect to make a knowing, intelligent and voluntary waiver of their Miranda rights for up to 60 minutes following the TASER exposure.|
Click here for the study
01/25/2016||Rebutting a Murderer: Facts Proving Steven Avery is Guilty|
In response to the Netflix series, Making a Murderer, Dan O'Donnell, who originally covered the Steven Avery trial as a news anchor and reporter, and is releasing a 10-part podcast series on iHeart Radio rebutting many of the claims made by the Netflix show along with presenting other facts as to why he thinks Steven did it.|
Click here to hear the 10 part rebuttal
01/18/2016||Making of a Murderer: The Reid Technique and Juvenile Interrogations|
Here is the opening paragraph of our January/February Investigator Tip: "In the Netflix program, Making a Murderer, which examines the conviction of Steven Avery and Brendan Dassey for the sexual assault and murder of Teresa Halbach, there is a reference made by Brendan Dassey's defense attorney, Mark Fremgen, that "the police are taught a technique by Reid in Chicago to elicit confessions, not get to the truth." Clearly Mr. Fremgen is misinformed or is intentionally misstating the facts."|
Click here for the complete tip
01/17/2016||Cases By Category|
On a regular basis over the last 10 years we have published on our website and through our quarterly newsletter legal updates of current cases which address relevant interview and interrogation issues. The Investigator Tip for Sept/Oct and Nov/Dec is a 300+ page document in which we have attempted to categorize those hundreds of cases into a number of categories for easy reference. We will continue to update this list on a regular basis.|
- Expert testimony on witness credibility
- Pre-arrest Silence
- Court decisions re inappropriate/impermissible investigator statements
- In general
- References to suspect's family members
- Court decisions re appropriate/permissible investigator statements
- In general
- Accident scenario/Self-Defense
- Suggestion of reduced charges
- References to suspect's family members
- Physical factors that render confession inadmissible
- Court decisions regarding the testimony of false confession experts
- Richard Leo
- Richard Ofshe
- Saul Kassin
- Deborah Davis
- Bruce Frumkin
- Christian Meissner
- James Walker
- James Stark
- Pamela Auble
- Alan Hirsch
- Samuel Roll
- E. Clay Jorgensen
- Christopher Lamps
- Jeffrey Vanderwater-Piercy
- Bobby Miller
- Karen Fukutaki
- John Di Bacco
- Mark Vigen
- Scott Bresler
- Robert Latimer
- Solomom Fulero
- Mark Costanzo
- Daniel Grant
- Rosalyn Shultz
- Susan Garvey
- Allison Redlich
- Tom Wright
- Gregory DeClue
- Shawn Roberson
- Michael Fuller
- David Mantell
- Jorey Krawczyn
- Examples of erroneous testimony regarding the Reid Technique
- Value of video recording
- What the courts say about recording
- Admissibility of video recorded statements
- Interrogation room setting
- Length of interrogation
- Investigator pattern of practice considerations
- Juvenile considerations
- Polygraph examination issues
- Mental capacity - affect on incriminating statement
- What constitutes mental retardation?
- Attorney negligence re not using false confession expert
- Miranda issues
- In general
- Referring to Miranda rights as a formality
- Miranda on a roadside stop
- Request for attorney when not in custody
- Request for a lawyer before advisement of rights
- Telling suspect his attorney is at the station
- Fifth warning not required
- Ambiguous/unambiguous invocation of rights
- Determining custody
- When is re-advisement necessary?
- Do inmates need to be advised of Miranda rights?
- Incriminating statements to undercover police
- Courts and The Reid Technique
- The totality of circumstances
- False confessions - defendant characteristics
- Gudjonsson suggestibility test
- Pragmatic implication
- Confession corroboration
Click here for the Sept/Oct and Nov/Dec 2015 Investigator Tip
01/16/2016||International Association of Chiefs of Police publish guide for the questioning of Juveniles|
The IACP has published a document entitled, Reducing Risks: An Executive's Guide to Effective Juvenile Interview and Interrogation. Among their recommendations, the authors point out the importance of making sure that young subjects understand the Miranda advisement, and that interrogators refrain from using deception during the interrogation. We agree. From our book, Criminal Interrogation and Confessions (5th edition) we state the following:|
A general distinction can be made between childhood (1-9) and adolescence (10-15). While both groups will be motivated to lie to avoid consequences associated with acts of wrongdoing, psychologically they are operating at quite different levels. It is our general recommendation that a person under the age of 10 should not be subjected to active persuasion techniques during interrogation (themes, alternative questions). At this age the child is susceptible to suggestion and is motivated to please a person in authority. The interaction between the investigator and child should be limited to a question and answer session which is centered on factual information and simple logic. Although children in this age group generally have good memory skills, it is selective and the investigator must be cautious in forming opinions of deception based on inconsistent recall. In this younger age group the primary difficulty with respect to interrogation is the child's undeveloped level of social responsibility and inability to comprehend the concept of future consequences; their lives focus around "here and now" concepts.
On the other hand, most adolescents have developed a sense of social responsibility to the extent that they know if they admit committing a serious crime they will suffer some future consequence. For this reason a confrontational interrogation may be used with this age group involving some active persuasion. The extent of persuasive tactics should not be dictated by the seriousness of the crime, but rather the maturity of the child.
When a child is taken into custody and advised of his or her Miranda rights, the question of whether the child is capable of making a knowing and voluntary waiver of those rights may arise. Certainly a child under the age of 10 is incapable of fully understanding the implications of waiving Miranda rights. Younger adolescents also may fall into this category. When a juvenile younger than 15, who has not had any prior experience with the police, is advised of his Miranda rights, the investigator should carefully discuss and talk about those rights with the subject (not just recite them) to make sure that he understands them. If attempts to explain the rights are unsuccessful, no interrogation should be conducted at that time. The same is true for a person who is mentally or psychologically impaired.
Courts routinely uphold the use of trickery and deceit during interrogations of adult suspects who are not mentally impaired. Within the area of trickery and deceit, clearly the most persuasive of these tactics is introducing fictitious evidence which implicates the suspect in the crime. As we state in Chapter 15, this technique should be avoided when interrogating a youthful suspect with low social maturity or a suspect with diminished mental capacity. These suspects may not have the fortitude or confidence to challenge such evidence and, depending on the nature of the crime, may become confused as to their own possible involvement if the police tell them evidence clearly indicates they committed the crime. Factors such as the adolescent's level of social responsibility and general maturity should be considered before fictitious evidence in introduced.
The ultimate test of the trustworthiness of a confession is its corroboration. The admissions, "I shot and killed Mr. Johnson" or, "I forced Susie Adams to have sex with me" may be elicited from an innocent juvenile (or adult) suspect. These admissions only become useful as evidence if they are corroborated by (1) information about the crime the suspect provides which was purposefully withheld from the suspect, and/or, (2) information not known by the police until after the confession which is subsequently verified.
Here is a link the IACP publication
01/16/2016||The Legal Updates Fall 2015|
The Legal Updates Fall 2015 column contains cases which address the following issues:What constitutes an intellectual disability? What is mental retardation?Is it coercive to tell a subject that it was important for him to tell the investigators how the child was injured so he could get proper treatment when the investigators knew that the victim was brain dead and would not recover? Court rejects defendant's claim he confessed because of the physical problems and confusion caused by his diabetesThe defendant's Miranda rights were not rendered fatally defective by fact that he was not specifically advised that he had the right to have an attorney present "before and during questioning"Court should have allowed testimony on false confessionsInvestigator's comments that he thought the victim was telling the truth during the videotaped interrogation of the defendant did not constitute plain errorLying about evidence - saying a witness placed the defendant in the victim's car - was not coerciveCourt rules that threats to the defendant's ability to maintain contact with his infant daughter were psychologically coercive - the totality of circumstancesDefendant's statement that he wanted to speak with his uncle, whom he considered "better than a freaking attorney," before answering any further questions was a clear invocation of his right to remain silentValue of video in demonstrating the fallacy of the defendant's allegations about the investigator's behavior|
Click Here for Legal Updates 2015
11/18/2015||Why Training with John E. Reid & Associates is so Valuable!|
Mark Holloway, developer of Thin Blue Training interviewed our Vice President, Lou Senese regarding interviewing and interrogation training and why it is so important. |
To listen to the podcast click here and choose TBT:4 Interview and Interrogation with John E. Reid and Associates.
Click Here to Listen to PODCAST!
11/11/2015||Court admonishes investigator for not following Reid guidelines|
In this case the Appeals court pointed out several prescribed Reid procedures that were not followed by the investigator, resulting in a confession that was found to be involuntary: |
- A non-accusatory interview was not conducted before initiating an interrogation
- The investigator misrepresented the case evidence when questioning a 13 year old
- There was no corroboration of the incriminating statement
- There was contamination - disclosing details of the crime
In People v. Elias (June 2015) Court of Appeal, First District, Division 2, California the court concluded that "the prosecution failed to prove by a preponderance of the evidence that Elias's inculpatory statements were voluntary, and the trial court therefore erred in receiving the statements in evidence." In this case a 13 year old had made incriminating statements about sexually touching a child under the age of 14.
The interrogation of the defendant took place in an office in the elementary school building; lasted about 20 to 30 minutes; and, concluded when the investigator "suggested Elias might have touched A.T.'s vagina because he found it exciting or just because he was curious, Elias rejected the first suggestion and, to [the investigator's] comment, "[b]ut you did it," said, "[f]or curiosity." Elias thus accepted [the investigator's] alternative theory that he touched the bare skin of A.T.'s vagina for three to four seconds, in the midst of playing a video game with her brother, merely "out of curiosity."
In reviewing the questioning of the defendant the Appeals Court pointed out several times that the investigator did not follow the guidelines for proper interview and interrogation procedures outlined our book, Criminal Interrogations and Confessions.
In their opinion, the Appeals Court stated that "no evidence corroborated his incriminating statements." In their discussion of the issue of corroboration the court stated:
"The best form of corroboration is the suspect's revelation of information only a guilty suspect would know. (Inbau et al., Criminal Interrogation, supra, at pp. 354-356.) Thus "[t]he admissions, 'I shot and killed Mr. Johnson' or 'I forced Susie Adams to have sex with me' may be elicited from a juvenile (or adult) suspect. These admissions become useful as evidence if they are corroborated by (1) information about the crime the suspect provides which was purposefully withheld from the suspect, and/or, (2) information not known by the police until after the confession which is subsequently verified." (Id. at p. 255.) Corroboration is "[t]he ultimate test of the trustworthiness of a confession." (Ibid.)"
The court went on to state later in their opinion that "One of the ways police facilitate false confessions is by disclosing specific facts regarding the crime during the interrogation process, inducing the suspect to adopt these facts and thus accurately "confirm[ ] the preconceived story the police seek to have him describe."... The use of this suggestive technique--referred to as "contamination" has been found to be coercive and to have overcome the will of subjects, particularly those who are young or otherwise vulnerable. From the court's opinion:
"As one of the authors of Criminal Interrogation has said, "[I]t is imperative that interrogators do not reveal details of the crime so that they can use the disclosure of such information by the suspect as verification of the confession's authenticity. In each case there should be documented 'hold back' information about the details of how the crime was committed; details from the crime scene; details about specific activities perpetrated by the offender; etc. The goal is to match the suspect's confession against these details to establish the veracity of the statement." (Combating Contamination, at pp. 847-848, quoting Joseph P. Buckley, The Reid Technique of Interviewing and Interrogation, in Tom Williamson ed., Investigative Interviewing: Rights, Research, Regulation 190, 204-05 (Willan 2005).)"
In discussing the investigator's use of deception during the interrogation (misrepresenting the evidence) and the fact that such a practice is inappropriate for this juvenile, the court quotes from Criminal Interrogation and Confessions:
"The authors of the text expounding the Reid Technique candidly admit that "[m]any of the interrogation techniques presented in this text involve duplicity and pretense. To persuade a guilty suspect to offer an admission against self-interest, the investigator may have to falsely exaggerate confidence in the suspect's guilt, sympathize with the suspect's situation, and display feelings toward the suspect or his crime that are far from genuine. The investigator may suggest a face-saving motive for the commission of the crime, knowing it is not true. In some cases an investigator may falsely imply, or outright state, that evidence exists that links the suspect to the crime." (Inbau et al., Criminal Interrogation, supra, at p. 351.) But, as we have said, the text makes it eminently clear that such deceptive techniques "should be avoided when interrogating a youthful suspect with low social maturity " because such suspects "may not have the fortitude or confidence to challenge such evidence" and "may become confused as to their own possible involvement, if the police tell them evidence clearly indicates they committed the crime." (Id. at p. 352, italics [emphasis] added.)
Later in their opinion the court points out that the investigator violated "a basic tenet of the Reid Technique meant to reduce the likelihood of inducing false confessions" - conducting a non-accusatory interview of the defendant before engaging in an interrogation. The court further stated:
"As underscored in the opening pages of the current edition of the text expounding the Reid Technique, an "interview" is "nonaccusatory," its purpose "is to gather information," "it may be conducted early in an investigation," "it may be conducted in a variety of environments," the conversation should be "free flowing and relatively unstructured," and "the investigator should take written notes." (Inbau et al., Criminal Interrogation, supra, at pp. 3-4.) On the other hand, an "interrogation" is "accusatory" and "involves active persuasion," it "is conducted in a controlled environment" and "only when the investigator is reasonably certain of the suspect's guilt," and the investigator "should not take any notes until after the suspect has told the truth and is fully committed to that position." (Id. at pp. 5-6, italics [emphasis] added.)
"Proponents of the Reid Technique, and virtually all interrogation manuals, counsel that interrogation should almost never be undertaken without the benefit of a previous interview: "Absent a life-saving circumstance the investigator should conduct a non-accusatory interview before engaging in any interrogation. During the interview the investigator can establish rapport with the suspect, assess their credibility, develop investigative information and establish a behavioral baseline. Also, during the interview the suspect is more likely to reveal information that can be used to develop an interrogation strategy." (quoting from the Reid Position Paper at www.reid.com).
Click here for the complete decision.
10/22/2015||The Inside Information Checklist|
In the August 2015 issue of The Police Chief magazine (published by the International Association of Chiefs of Police) Dr. Gregory DeClue has written an article entitled "The Inside Information Checklist." In this article Dr. DeClue careful examines the issue of false confessions, and in particular, the phenomena of "police contamination" - the disclosure by the investigators to the suspect of details concerning the commission of the crime. Dr. DeClue discusses the importance of "Holdback" information - details about the commission of the crime that the investigators agree to "hold back" and not reveal to anyone that they interview or interrogate during the investigation so as to use the disclosure of such information by the suspect as confirmation of the authenticity of his confession. Dr. DeClue has designed a Holdback List that he recommends investigators should use to document the holdback information in the case.|
Dr. DeClue recommends that all sessions with the suspect be recorded so that a review of the recording can identify whether the "holdback" details of the crime offered by the suspect were, in fact, from his own knowledge of the crime or if they had been disclosed to the suspect by the investigators. Specifically, Dr. DeClue states:
"A review of the recording should answer important questions about the validity of the confession. Did the suspect provide inside information regarding the details of the crime?
Did the suspect include some or all of the known details that were included on the Holdback List? If so, which of those details were never mentioned by the police during their interaction with the suspect?
Did the suspect provide the details in response to open-ended questions or only in response to leading questions? For each detail provided by the suspect, was the detail an accurate match to independently collected evidence? Did the suspect provide information regarding details not known by the police prior to the interview or interrogation? If so, has subsequent investigation corroborated the suspect's story? Does each detail provided by the suspect accurately match independent evidence, or not?
If the investigation has been conducted in a conscientious manner, these are very straightforward questions. The Inside Information Checklist (IIC), as shown in Appendix 2, provides a way to organize the details of an investigation, including the details of the suspect's statement, to see if the suspect provided accurate, independently verified details that demonstrate knowledge of inside information about a crime to which he or she has confessed."
Click here for the complete article.
10/15/2015||Proper Persuasion - Reid article is the cover story for the August 2015 issue of Security Management magazine |
In the August 2015 issue of Security Management magazine from ASIS International, the cover story, "Proper Persuasion" is an article written by David Buckley - one of our senior instructors. Here is an excerpt:|
AUG 2015 | SECURITY MANAGEMENT
COVER STORY | BY DAVID M. BUCKLEY
DAVID M. BUCKLEY IS A SENIOR INSTRUCTOR AT JOHN E. REID & ASSOCIATES, INC., WHERE HE IS ON THE BOARD OF DIRECTORS. HE HAS BEEN TEACHING INTERVIEWING AND INTERROGATION TECHNIQUES FOR MORE THAN 30 YEARS AND IS THE AUTHOR OF HOW TO IDENTIFY, INTERVIEW & INTERROGATE CHILD ABUSE OFFENDERS AND COAUTHOR OF THE BOOK, ELECTRONIC RECORDING OF INTERROGATIONS
Using persuasive techniques, rather than traditional interrogative methods, can help an investigator elicit the truth from a subject.
MOVIES AND TELEVISION consistently portray interrogators as insensitive, aggressive brutes who use verbal threats, physical force, and false promises to get the information they seek. Think Jack Bauer of 24. But the process of interrogation has evolved significantly over the last few decades, so images associated with the word do not always accurately represent current tactics.
A proper investigative interview does involve questioning, but it is not conducted in a forceful or threatening way. There are a number of important techniques an investigator should cultivate to achieve the ultimate goal of the interview: eliciting the truth from the subject. Maintaining a nonaccusatory tone is critical; the subject must feel comfortable disclosing important facts. A particular line of questioning should be followed to keep the interview from feeling like an interrogation, but also to convince the subject that it is in his or her best interest to tell the truth. Finally, the use of positive persuasion is a cornerstone of the investigative process. This technique includes seven steps, and the second step, the development of persuasive statements, is highlighted in this article. Examples of interview techniques taken from a real-life scenario are included throughout to illustrate how the interviewer can use these best practices to conduct successful investigations.
Click here for the complete article
10/15/2015||Review of Reid 90 minute online training program|
ASIS International published a review of our 90 minute online training program, "The Reid Technique of Interviewing and Interrogation for Investigators - Parts 1-7" in the August 2015 issue of Security Management. Here it is:|
Book Review: The Reid Technique of Interviewing and Interrogation for Investigators
8/17/2015 by John E. Reid and Associates, Inc.; Reviewed by James "Rick" Youngblood, CPP
Appears In August 2015 Print Issue
The Reid Technique is a well-known method for interviewing and interrogating subjects. John E. Reid and Associates began developing the technique in 1947, and the company claims that its process is the most widely used approach to questioning subjects in the world. The Reid Technique is most often taught via multiday, in-person classes; now the company is offering a condensed online training program that provides a detailed overview of the Reid Technique and covers many aspects of interviews and interrogations.
Early on, it explains the difference between an interview and an interrogation and discusses when to use which type of questioning. Students learn the types of questions that should be asked in the early stages of an interview and lines of questioning that can be used to extract the information needed from the person being interviewed. It details how those aspects are different for an interrogation, including asking leading questions, direct questions, and more. Details are included for room setup, including where to place the interviewer, interviewee, and any witnesses.
Staged interviews and interrogations, using actors as interviewees and investigators, illustrate the messages of the presentation. They follow the process of what would take place during a real interview or interrogation.
Adding to the learning experience are handouts for each part of the instruction. The handouts contain some good initial information pertaining to the individual sections. As the program progresses, students will be able to fill in the blanks to complete each handout.
The seven parts of the program include an overview, behavior symptom analysis, nonverbal behavior, verbal behavior, investigative interviewing, interrogation, and a summary. This training program is a valuable tool for those new to the investigative process and others at the intermediate level.
Reviewer: James "Rick" Youngblood, CPP, CFE (Certified Fraud Examiner), has more than 30 years of experience in law enforcement, security, and loss prevention. He has conducted countless interviews and interrogations in many settings. Youngblood has authored numerous articles and worked as a professor teaching security management for more than 10 years, including online courses. He is vice chair of the ASIS Crime Prevention and Loss Prevention Council and a member of the Investigations Council. He is the author of the new book A Comprehensive Look at Fraud Identification and Prevention.
Click Here for the complete article
08/01/2015||Legal Updates for Summer 2015|
The Legal Updates Summer 2015 column contains cases which address the following issues:|
- Court admonishes investigator for not following Reid guidelines
- Value of video recording interrogation to determine competency to waive rights
- 10-year-old can make voluntary waiver of rights and can understand the wrongfulness of his acts
- The effectiveness of an anticipatory invocation of the Miranda-based right to counsel
- Court rejects claim that as a foreign student defendant did not understand the Miranda rights
- Court does not allow Dr. Craig Haney to testify about false confessions
- Military court upholds denial of request for false confession expert assistance
- Competency and the value of video recording the interrogation
- What constitutes interrogation?
- Human Lie Detector testimony inadmissible
- Confession found inadmissible due to promise of no jail and help finding shelter for defendant and her children to live
- Testimony regarding threat of deportation of family members should have been admitted; could cause a coerced confession
- Failure to record the interrogation was a violation of Wisconsin law, but harmless error
- The application of the Garibay test to determine confession admissibility from a non-native English speaker
- Testimony by the investigator that the defendant's answers during a police interview were evasive was acceptable
- Testimony of Dr. James Walker re false confession was not persuasive
- An 'implicit waiver' of the 'right to remain silent' is sufficient to admit a suspect's statement into evidence
- The defendant's claim that he could not read the Miranda waiver form because he did not have his glasses was disproved by the video of the interrogation
Click here for updates
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