03/18/2015||Legal Updates for Winter 2015|
The Legal Updates Winter 2015 column contains cases which address the following issues:|
- Court did not allow David Mantell to testify as an expert on false confessions
- Defendant was not denied effective assistance due to trial counsel's failure to develop and present expert witness testimony concerning claimed involuntariness of his confession
- Defendant was not denied effective assistance due to trial counsel's failure to develop and present expert witness testimony concerning claimed involuntariness of his confession
- Court finds expert testimony regarding false confession phenomenon was not admissible
- Violation of Garrity rule nullifies admissibility of incriminating statement
- The importance of accurate translations by the interpreter - erroneously suggesting a lesser punishment if defendant confessed
- Defendant should have been advised on his rights before questioning in the pat-down room
- Investigator's statement that it was time for the defendant to "come to Jesus" was not a coercive statement
- Court excludes the testimony of Dr. Jorey Krawczyn on false confession issues
- Use of a psychologically-oriented techniques during questioning is not inherently coercive; request to have his mother in the room was not an assertion of his right to remain silent
- Investigators failed to honor the defendant's invocation of his right to silence
- Videotaped interrogation admissible even though investigator repeatedly accused defendant of lying
- The statement "that things would go better for [defendant] if he spoke," did not serve to overbear defendant's will or render it impossible for him to make a rational, informed choice whether to confess
- Suggesting to the defendant that the stabbing death was self-defense does not render the confession involuntary
- Employing deceptive practices to elicit a confession are not coercive
- 13-year olds statement "Could I have an attorney? Because that's not me" was an unequivocal and unambiguous waiver
- Preamble to the advisement of rights undermined the subsequent Miranda advisement
Click here for Legal Updates 2015
02/10/2015||Can a subject's silence be used in trial as an indication of his guilt?|
Earlier this year an article entitled, Silence Is No Longer Golden: How Lawyers Now Advise Suspects in Light of Salinas v. Texas, was published in The Champion (a publication from the National Association of Criminal Defense Lawyers). In this article the authors describe the US Supreme Court decision in Salinas v. Texas as follows: "In a 5-4 decision, Salinas held that a witness, whom police subject to a noncustodial questioning without Miranda warning, cannot rely on the Fifth Amendment unless he expressly invokes it. That is, if a witness remains silent in the face of such questioning, the prosecution can, at trail, introduce his silence as substantive evidence of his guilt. And further, the police do not have to inform the witness in advance of his right against self-incrimination."|
Click here to access the complete article
Click here to access the US Supreme Court Salinas decision
02/10/2015||Why 'Tell me why you did it' is a failed technique|
Lou Senese, Reid VOP, just published a brief article in PoliceOne.com entitled “Why ‘Tell me why you did it’ is a filed technique. |
Click here for the article:
02/10/2015||Courts affirm interrogation techniques that are often mischaracterized by false confession experts|
Courts affirm interrogation techniques that are often mischaracterized by false confession experts|
In our Legal Updates Summer 2014 we have several cases that we wanted to highlight for our audience that specifically affirm interrogation techniques that false confession critics often mischaracterize and associate with false confession topics.
1. Misrepresenting evidence:
False confession experts ofttimes testify that when the police misrepresent evidence to the suspect (for example, that there was a DNA match) there is a high probability that it will cause a false confession. In actuality it is not the misrepresentation of evidence that is the impetus, but rather the "aggravating circumstances" otherwise present during the interrogation. Here are two cases addressing the issue of misrepresenting evidence to the suspect.
In Jefferson v. State (July 2014) the Supreme Court of Nevada found that "Jefferson's argument that his confession was rendered involuntary by the detectives' deceptive interrogation techniques is unavailing. Jefferson argues that the detectives misrepresented DNA evidence by exaggerating what DNA evidence could reveal to them and the time frame in which they would learn the information. However, "an officer's lie about the strength of the evidence against the defendant is, in itself, insufficient to make the confession involuntary."
Furthermore, in US v. Graham (June 2014) the US District Court, N.D. Georgia, pointed out that misrepresenting evidence is "one factor to consider among the totality of the circumstances in determining voluntariness." ... However, "[c]ourts have been reluctant to deem trickery by the police a basis for excluding a confession on the ground that the tricks made the confession coerced and thus involuntary."
The court points out that there are a number of cases in which statements elicited from a defendant in response to police deception were found involuntary,.... but "these cases all involve significant aggravating circumstances not present here, such as, subjecting the accused to an exhaustingly long interrogation, the application of physical force or the threat to do so, or the making of a promise that induces a confession."
In other words, it is not the misrepresentation of evidence that is the genesis of a coerced or even false confession, but the "aggravating circumstances" present during the interrogation.
2. The accident scenario:
False confession experts ofttimes testify that when the police suggest to the suspect that the shooting may have been an accident, it is tantamount to a promise of leniency and that it is likely to cause an innocent person to confess. Here are two cases addressing the issue of suggesting that the die may have been caused accidentally.
In State v. Turner (May 2014) the Nebraska Supreme Court held that misinformation by police officers during the defendant's interview that felony murder would receive a lesser sentence than premeditated murder did not overcome defendant's will so as to render his confession involuntary based on purported promises of leniency. From the court's opinion: "Turner argues that his confession was involuntary because it was induced by an implied promise that he would receive a lesser sentence if he confessed that the shooting was accidental. As evidence of this implied promise, he points to Ficenec's statements that it made "a big difference" how and why the shooting occurred..." After an examination of the totality of circumstances the court rejected this argument and found the confession admissible.
In Smith v. State (June 2014) the Supreme Court of Georgia held that statements by the police detectives during a custodial interrogation to the effect that shooting the victim was an accident in response to the victim lunging at the defendant did not constitute a slightest hope of benefit that could render defendant's confession inadmissible.
3. Confession voluntariness:
In People v. McIntyre (May 2014) the Colorado Supreme Court laid out 13 factors that they consider in the evaluation of the voluntariness of a confession:
- whether the defendant was in custody;
- whether the defendant was free to leave;
- whether the defendant was aware of the situation;
- whether the police read Miranda rights to the defendant;
- whether the defendant understood and waived Miranda rights;
- whether the defendant had an opportunity to confer with counsel or anyone else prior to or during the interrogation;
- whether the statement was made during the interrogation or volunteered later;
- . whether the police threatened [the] defendant or promised anything directly or impliedly;
- the method [or style] of the interrogation;
- the defendant's mental and physical condition just prior to the interrogation;
- the length of the interrogation;
- the location of the interrogation; and
- the physical conditions of the location where the interrogation occurred.
02/10/2015||Toronto Sun Gets It Wrong|
In a recent article entitled, "Peel Regional Police investigative techniques questioned" the author, Sam Pazzano, makes a number of erroneous statements about The Reid Technique, primarily based on the information he received from two lawyers involved in the Mikey Spence case. Here is the email that we sent to Mr. Pazzano:|
I just read your article entitled, "Peel Regional Police investigative techniques questioned" and was very surprised that with your extensive discussion of The Reid Technique you did not call our office to ask us about the technique that we have been teaching to the law enforcement community for over 50 years. At the very least I would think that you would want to confirm whether or not the description of the Reid Technique given to you by lawyers James Fleming and David Schulman was, in fact, accurate.
Let me clarify a few of the errors in your article.
The Reid Technique is built on a core of principles that include the following:
- Always conduct interviews and interrogations in accordance with the guidelines established by the courts
- Do not make any promises of leniency
- Do not threaten the subject with any physical harm or inevitable consequences
- Do not deny the subject any of their rights
- Do not deny the subject the opportunity to satisfy their physical needs
- Always treat the subject with dignity and respect
In your article you quote Fleming and Schulman as stating that "The Reid Technique presumes the person is guilty." That simply is not the case. The Reid Technique, when applied as we teach the process, should always begin with a non-accusatory interview designed to develop investigative and behavioral information. During this interview process (which some investigators equate with the PEACE model) the investigator plays a neutral and objective fact finder. It is only when the investigative information and evidence indicate that that a subject may be withholding or fabricating relevant information that an interrogation would take place. Accusing a subject of lying should never be the first contact with a subject.
In your article you state, "In Canada, there have been a number of high profile cases where police interrogators using the Reid technique created false confessions, some of which resulted in wrongful convictions." That is absolutely not true. False confessions are not caused by the proper application of The Reid Technique, they are caused when the investigators engage in behavior that the courts have deemed to be coercive - threats of harm or inevitable consequences; promises of leniency; denial of a subject's rights; and excessively long interrogations to name a few. In reality, the Canadian courts, including the Supreme Court, have consistently upheld the techniques that we teach.
In the case of R. v. Amos (2009) the Ontario Superior Court upheld the techniques that the interrogator successfully used to obtain a confession, many of which are elements of the Reid Technique. For example, when discussing the interrogator's efforts to minimize the suspect's moral responsibility, the court stated the following:
There is nothing problematic or objectionable about police, when questioning suspects, in downplaying or minimizing the moral culpability of their alleged criminal activity. I find there was nothing improper in these and other similar transcript examples where [the detective] minimized [the accused's] moral responsibility. At no time did he suggest that a confession by the subject would result in reduced or minimal legal consequences. Those questions did not minimize the offence anywhere close to the extent of oppression within the meaning of Oickle and other authorities. In using the words "this is your opportunity" to tell your story, and statements to the effect that "your credibility is at its highest now", and in asserting to the accused that he would not be as credible ten months down the road at trial when he had "spoken to lawyers", and the like, the detective was making an approach to the accused's intellect and conscience.
In R. v. Oickle, (2000) the Canadian Supreme Court overturned a lower court's suppression of an arson confession and expressed implicit approval of many of the interrogation techniques utilized in The Reid Technique. In Oickle, the Court of Appeals suggested that the interrogator's understanding demeanor improperly abused the suspect's trust. The Canadian Supreme Court disagreed stating,
"In essence, the court [of appeals] criticizes the police for questioning the respondent in such a gentle, reassuring manner that they gained his trust. This does not render a confession inadmissible. To hold otherwise would send the perverse message to police that they should engage in adversarial, aggressive questioning to ensure they never gain the suspect's trust, lest an ensuing confession be excluded."
Furthermore, in Oickle, the Court of Appeals concluded that the police improperly offered leniency to the suspect by minimizing the seriousness of his offense. The Supreme Court again disagreed stating,
"Insofar as the police simply downplayed the moral culpability of the offence, their actions were not problematic."
In Oickle the Supreme Court offers support for the investigator's necessity to be less than truthful in persuasive efforts during an interrogation. It referenced to the often cited decision of Justice Lamer who wrote, "The investigation of crime and the detection of criminals is not a game to be governed by the Marques's of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community." (Rothman v. The Queen, 1981)
In the Reid Technique we teach that when a suspect appears to be debating whether or not to tell the truth, the use of an alternative question can be a very effective means to obtain the first acknowledgement of the truth. Examples of an alternative question include, "Have you done this many times before or was this just the first time?", "Did you blow that money on drugs and partying, or did you use it to pay bills?", "Was this whole thing your idea or did you get talked into it?" It is important to recognize that none of these alternative questions address real consequences the suspect may face. This concept is emphasized repeatedly during training in The Reid Technique, including several examples of improper alternative questions. An example of an improper alternative question is, "If you planned this out and it was premeditated then we're talking first degree murder. That means spending the rest of your life behind bars. On the other hand, if this happened on the spur of the moment then it's just manslaughter." Clearly this alternative question is telling the suspect that if he confesses to manslaughter he will be sentenced less harshly. It is improper and could be used as grounds to suppress a confession.
In Oickle, the Court of Appeals expressed concern that the use of an alternative question implied a threat or promise of leniency. In refuting this argument, the Canadian Supreme Court offers a clear test of whether or not an implied threat or promise crosses the legal line to where an ambiguous statement may invalidate a confession. In their opinion they state,
"The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise."
A relevant passage from R. v. Rennie illustrates excellent insight into the criminal mind:
"Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession."
There are always two sides to every story - as a reporter I thought that would be a paramount concern of yours - to present both sides.
Joseph P. Buckley
John E. Reid and Associates
02/10/2015||Charles Piper, CRT new article: Neeldes in a paystack: Physician submits $500,000 in false claims|
Mr. Charles Piper, Certified in the Reid Technique, has published an article in Fraud magazine entitled, Neeldes in a paystack: Physician submits $500,000 in false claims. Here is a link to the article |
On January 9, 2013 we posted a notice in the What's New column for two other articles by Charles Piper:
Two very informative fraud articles written by Charles Piper, Reid graduate and Certified in the Reid Technique (CRT)
Mr. Charles Piper has written two excellent fraud articles for the Association of Certified Fraud Examiners which we are linking to with their permissions:
"10 popular health care provider fraud schemes" Jan/Feb 2013 Click here
"Finding the bid riggers: 12 red flags of contract and procurement fraud" July/Aug 2012
Charles has authored book on fraud investigations entitled: Investigator and Fraud Fighter Guidebook: Operation War Stories
Click Here for Book
02/10/2015||Compendium: Electronic Recording of Custodial Interrogations|
On their website the National Association of Criminal Defense Lawyers has published an extensive compendium of the laws and court decisions regarding the electronic recording of custodial interrogations. Here is the article:|
"There are few aspects of police work more important than questioning arrested suspects in felony investigations. To a large extent, our criminal justice system depends upon the accuracy of how the results are reported including all statements, physical actions, facial expressions, and tones of voice of individuals under interrogation.
During the past decade there has been an increasing use of electronic recording equipment by law enforcement to record their interrogations of felony suspects from the Miranda warnings on. Subsequently, there has been concurrent support for legislation and court rules governing these recordings, to ensure statewide consistency in police and sheriffs' practices and procedures. For example, in 2003, there were two state supreme courts that required recording of custodial interrogations and four others followed suit.
Tom Sullivan, NACDL member and partner with Jenner & Block, compiled the Compendium and provides an introduction to the project below."
- PDF version of the complete compendium.
- The State Map features the most up to date information on pending/enacted legislation and case law, in each state.
- To view the national organizations that have taken formal positions regarding the practice of electronic recording, click here.
- To view the foreign countries that have recording statutes and rules, click here.
02/10/2015||Court offers scathing rejection of false confession expert Dr. Alison Redlich|
In People v. Oliver (July 2014) the Supreme Court, Kings County, New York rejected the testimony of false confession expert Alison Redlich. In their opinion the court stated the following: |
"Dr. Alison Redlich, one of a small group of social scientists who have repeatedly proffered themselves as experts on the subject of false confessions, describes herself as an expert in "the areas of social influence, decision making, scientific methods, and specifically interrogation techniques and confession." She asserts that her testimony "will give jurors a more accurate understanding how to weight [sic] the confession itself and how to avoid using inaccurate cues and assumptions to judge the truthfulness of the confession and/or the defendant's testimony about his confession," yet her proffer makes no reference to the defendant at all, nor to the particular circumstances of this case. Instead, she has provided what appears to be a general treatise on the subject of false confessions. For that reason alone, her proposed testimony does not meet the threshold standard required by the Court of Appeals-that the proposed testimony be relevant to the particular facts of the case before the court.
Moreover, while Dr. Redlich has impressive academic credentials, there are serious reasons to question the extent of her expertise, the legitimacy of the theories she propounds, and her objectivity.
... the Court is not required to accept Dr. Redlich's assertion that her theories are "generally accepted among scientists," especially since many of the researchers she includes in that group are the very researchers whose testimony has been consistently rejected by New York courts. ( See cases cited infra.). As some of those cases make plain, the "relevant scientific community" is not at all unanimous about false confession research, the methods employed by Dr. Redlich and her colleagues, and the conclusions they reach. Dr. Michael Welner, a board certified psychiatrist, is of the opinion that false confessions are "rare events," and that the only way to determine whether a confession is actually false is through DNA testing that disproves the guilt of the confessing defendant.... He dismisses the theories Dr. Redlich and her colleagues advocate as "soft science," pointing out that some of the research actually relied on newspaper reports of cases as sources of allegedly false confessions.
There is even dissension among the researchers that Dr. Redlich cites. One of them, Dr. Saul Kassin, has conceded that there is no "scientific basis for distinguishing true from false confessions," that "further research in the field is sorely needed," and that lay people may be able to assess whether confessions are in fact false.... Dr. Redlich herself has admitted that her theories cannot be tested empirically.
... Dr. Redlich's report is filled with speculation, unsupported theories, and advocacy rather than expertise. There is no empirical support for many of her assertions.
... A review of her curriculum vitae reveals that Dr. Redlich has never worked in any law enforcement capacity, nor does she articulate the basis of her theoretical expertise. She is nonetheless critical of law enforcement in general, and police interrogations in particular, which she describes as "confidence games" with "strategies based on the manipulation and betrayal of trust." Given these views, it is difficult to envision an interrogation of which she would approve. In any case, while she is a critic of the police, the Court does not accept her statement that she is an expert in police methods, at least insofar as this case is concerned."
Click here for the complete decision.
02/10/2015||Japanese research confirms Reid approach|
In the Reid Technique of Interviewing and Interrogation we have always espoused a nonjudgmental, neutral and objective demeanor by the investigator during the interview and an empathetic, understanding approach during the interrogation - building rapport with the suspect and letting the suspect now that anyone in similar circumstances might have done the same thing.|
Recent research in Japan confirms that building relationships with the suspect "gets the best results" and minimizes the chances of a false confession.
Click here to read the story
12/03/2014||Legal Updates Fall 2014|
The Legal Updates Fall 2014 column contains cases which address the following issues: |
- Court allows surreptitious video recording of incriminating statement into evidence
- Court rules that Dr. Shawn Roberson would not be allowed to testify on false confession issues at trial
- Counsel's failure to retain expert witness on false confessions was matter of reasonable trial strategy
- Social Security Fraud
- Failure to develop and present expert testimony on false confession issues is does not indicate ineffective counsel (value of video taping interrogation)
- Value of video recording to demonstrate confession voluntariness
- Court rejects testimony of forensic psychiatrist that defendant fits the profile of someone who would be susceptible to giving a false confession
- Police are not required to give Miranda advisement of persons they suspect or question, even in a police station, absent custody
- Court rejects the suggestion that a loss of visitation rights was coercive
- Juvenile interrogation - confession volutariness issues
- Repeated implied promises of leniency nullify confession admissibility
- Defendant who scored 53 on IQ test can give a knowing and intelligent waiver of his rights
- Court finds confession was result of coercive police interrogation - the importance of using extreme care when questioning an individual with limited mental capacity
- Confession voluntariness and the exclusion of clinical psychologist at guilt phase (value of video recording)
- Pre-arrest silence cannot be used as substantive evidence of guilt
Click here to Review Updates
12/03/2014||Research indicates a 97.8% accuracy rate at detecting deception|
A recent study published in Human Communication Research by researchers at Korea University, Michigan State University, and Texas State University -- San Marcos found that using active questioning of individuals yielded near-perfect results, 97.8%, in detecting deception.|
An expert using the Reid Technique interrogated participants in the first study, this expert was 100% accurate (33 of 33) in determining who had cheated and who had not. That kind of accuracy has 100 million to one odds. The second group of participants were then interviewed by five US federal agents with substantial polygraph and interrogation expertise. Using a more flexible and free approach (interviews lasted from three minutes to 17 minutes), these experts were able to accurately detect whether or not a participant cheated in 87 of 89 interviews (97.8%). In the third study, non-experts were shown taped interrogations of the experts from the previous two experiments. These non-experts were able to determine deception at a greater-than-chance rate -- 79.1% (experiment 1), and 93.6% (experiment 2).
Previous studies with "experts" usually used passive deception detection where they watched videotapes. In the few studies where experts were allowed to question potential liars, either they had to follow questions scripted by researchers (this study had no scripts) or confession seeking was precluded. Previous studies found that accuracy was near chance -- just above 50%.
"This research suggests that effective questioning is critical to deception detection," Levine said. "Asking bad questions can actually make people worse than chance at lie detection, and you can make honest people appear guilty. But, fairly minor changes in the questions can really improve accuracy, even in brief interviews. This has huge implications for intelligence and law enforcement.
Click here for the study
12/01/2014||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.
09/30/2014||Legal Updates Summer 2014|
Legal Updates Summer 2014 The Legal Updates Summer 2014 column contains cases which address the following issues: |
- Investigator's statement that felony murder would receive a lesser sentence than premeditated murder did not render confession involuntary
- Video of interrogation demonstrates that juvenile did not make a knowing and intelligent waiver of his rights
- Confession rendered involuntary when defendant told he could not get a fair trial because of his race
- Value of recording: Video of interrogation contradicts defendant's claims
- US Supreme Court finds Florida test to determine intellectual disability as factor for eligibility for execution unconstitutional
- Investigators operated at the "outer bounds of permissible conduct"
- Confession was coerced when investigators threatened to have Child Protective Services take defendant's child away
- Defendant claims statements were involuntary because he had been given morphine, hydrocodone and promethazine
- Colorado Supreme Court examines 13 factors that should be considered in evaluating whether a confession was coerced
- "the law permits the police to pressure and cajole, conceal material facts, and actively mislead"
- PA Supreme Court rules that expert testimony of false confessions invades the province of the jury
- Does interrogating a suspect in a police car create a custodial environment?
- Confession voluntariness - lying about the evidence
- Georgia Supreme Court rejects the idea that a suggestion that the shooting was an accident constitutes a hope of leniency
- Court offers scathing rejection of false confession expert Dr. Allison Redlich
- Electronic recording of the confession is not required
- Bible in the interrogation room is not coercive
Click Here to Review Updates
Click Here to view earlier "What's New"