DEFENDING THE REID TECHNIQUE OF INTERROGATION

The following material represents highlights from Mr. Joseph Buckley's presentation at the Reid Conference for Investigative Training November 6-8, 2000. Mr. Buckley is President of John E. Reid and Associates, Inc.

BACKGROUND

Over the last several years police interrogation tactics and techniques have come under scrutiny by both the courts and the media. ABC's 20/20, Dateline NBC, and CBS' 48 Hours have all featured segments on the issue of false confessions. The expert that each of the networks relied on for their criticism of police interrogation techniques was Richard Ofshe, a social psychologist with the University of California, Berkley.

In the past several years Dr. Ofshe has been retained by hundreds of defense attorneys as an expert witness on police interrogation techniques, and the phenomena of false confessions.
In his testimony Dr. Ofshe regularly criticizes what he describes as The Reid Technique. We have had the opportunity to testify against Dr. Ofshe on a number of occasions, and our office is regularly contacted by prosecutors from around the country for information about the nature of his testimony. As a result of these experiences we placed on our web site (www.reid.com) several years ago, a link called The Critics Corner in which we discuss a number of Dr. Ofshe's criticisms and offer our responses.

The following discussion is an expansion of that basic information.

THE STUDIES


The studies that Dr. Ofshe uses as the primary foundation for his contention that police interrogations frequently result in false confessions are:

Miscarriages of Justice in Potentially Capital Cases by A. Bedau and M. Radelet (published in the Stanford Law Review, 1987) and, The Consequences of False Confessions: Deprivation of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation by R. Ofshe and R. Leo, published in the Journal of Criminal Law and Criminology, 1998.

Here are the details of these two studies.

Re: Miscarriages of Justice... This study reports on 350 cases from the 20th century in which the authors claim that innocent people were convicted in homicide cases. Of these 350, 49 cases involved confessions (14% of the total). However, many of these interrogations involved clearly coercive tactics, including beatings, and days of uninterrupted interrogation.

A critical review of this study, Protecting the Innocent: A Response to the Bedau-Radelet Study, was published by Markman and Cassell in the Stanford Law Review, November, 1988.

Re: The Consequences of False Confessions...

In this study Ofshe and Leo report on 60 cases from the prior 30 years in which they claim innocent people falsely confessed in homicide cases. These 60 cases were broken down into 3 groups: cases that were proven to be false (34); cases that were presumed to be false (18); and, cases that were considered to be highly probable to be false (8).

Of these 60 cases of purported false confessions, 8% were from juvenile suspects and 28% were from individuals that were apparently emotionally or mentally handicapped. It should also be noted that 30% of the cases involved interrogations that lasted over 12 hours.

A very effective rebuttal to this study, The Guilty and the Innocent: An Examination of Alleged Cases of Wrongful Conviction from False Confessions, was written by Paul Cassell and published in the Harvard Journal of Law and Public Policy, 523 in 1999. In this rebuttal Professor Cassell points out that in at least 9 of the above referred to 60 cases the individuals were telling the truth when they confessed.

These two studies represent anecdotal information. They should be carefully reviewed, and the issues that they raise be carefully considered, but they do not provide any scientific basis for the claim that police interrogation techniques that conform to the guidelines established by the courts result in false confessions. They do illustrate that illegal interrogation procedures can cause innocent people to confess.

THE REID TECHNIQUE

What exactly is The Reid Technique? On a regular basis we will see a reference to an interrogation in which the interrogator said that he/she used The Reid Technique, which may or may not have been the case. At the same time, many of our critic's testify as to what they believe The Reid Technique involves - oftentimes completely misstating and misrepresenting the elements of The Reid Technique. The following information should help to clarify what we mean when we refer to The Reid Technique.

The key elements that define The Reid Technique are:
  1. A non-accusatory interview that is conducted before the investigator engages in any accusatory interrogation. This interview generally lasts from 30 to 45 minutes and includes both investigative and behavior provoking questions.
  2. The interview is conducted in a controlled environment with only one investigator interacting with the subject.
  3. The interview and interrogation are distinctly different procedures, usually separated by several minutes.
  4. The primary persuasive vehicle of the interrogation is a theme that offers moral justification for the suspect's crime. The theme is presented as a monologue and the investigator discourages the suspect from offering denials or explanations for incriminating evidence. At no time during the interrogation process should the investigator state that if the suspect's crime was somewhat justified, he may be afforded leniency.
  5. The impetus for the first admission of guilt is in the form of asking an alternative question. This question presents the suspect with two choices concerning some aspect of the crime. For example, "Did you plan this out months in advance, or did it pretty much happen on the spur of the moment?" The suspect is encouraged to accept the positive choice (spur of the moment). In presenting and contrasting the alternative question, the investigator must not offer threats or promises. An example of an improper alternative question would be, "Do you want to be charged with first degree murder, which will mean life in prison, or was it just manslaughter, where it happened on the spur of the moment?"
Once the suspect accepts the positive alternative, active persuasion stops within the interrogation process. The investigator asks non-leading questions to draw out the full confession. The final step of the process is to have the verbal confession witnessed and converted to a court admissible document.

If the process in question does not involve these elements, it is not The Reid Technique.

GENERAL LEGAL CONSIDERATIONS

Advisement of Rights

The issues surrounding police interrogation techniques and procedures must start with some basic legal guidelines. Clearly, if the suspect is in custody, he must be advised of his Miranda rights and the appropriate waiver obtained before any questioning takes place. However, the U. S. Supreme Court has clearly stated that "focus of suspicion" does not require the advisement of rights (Beckwith v. US 425 US 341 (1976)), and that merely because the questioning takes place in the police station does not mandate that the warnings be given (Oregon v. Mathiason 429 US 492 (1977)).

Once the warnings are given in a custodial circumstance, the subject's refusal to talk or request for a lawyer must be honored (Dupnic v. Cooper 963 F.2d 1220 (9th Cir. 1992))

Threats and Promises

The courts have spoken clearly that a confession that is the result of physical abuse, threats of harm or promises of leniency is inadmissible. (see Criminal Interrogation and Confessions, Inbau, Reid, Buckley and Jayne, 4th edition, 2001)

As we have said in both of our books and at our training seminars, " To protect ourselves from being misunderstood, we want to make it unmistakably clear that we are unalterably opposed to the so-called "third degree," even on suspects whose guilt seems absolutely certain and who remain steadfast in their denials. Moreover, we are opposed to the use of any interrogation tactic or technique that is apt to make an innocent person confess. We are opposed, therefore, to the use of force, threats of force, or promise of leniency - any one of which might well induce an innocent person to confess. We do approve, however, of such psychological tactics and techniques as trickery and deceit that are not only helpful but frequently indispensable in order to secure incriminating information from the guilty, or to obtain investigative leads from otherwise uncooperative witnesses or informants." (Criminal Interrogation and Confessions, page xii)

Trickery and Deceit

The U. S. Supreme Court ruled in 1969 that when examining the voluntary nature of a confession the court must examine the "totality of circumstances," and that misrepresenting to the suspect evidence that existed against him will not nullify a confession:

"The fact that the police misrepresented the statements that [the suspected accomplice] had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided on the "totality of circumstances." Frazier v. Cupp 394 US 731 (1969).

Other cases which address the acceptability of tactics that involve trickery and deceit include:

U.S. v. Harris 914 F.2d 927 (7th Cir. 1990)
Holland v. McGinnis 963 F.2d 1044 (7th Cir. 1992)
State v. Kelekolio 849 P.2d 58 (Haw. 1993)
Lucero v. Kerby 133 F.3d 1299 (10th Cir. 1998)
U. S. v. Byram 145 F.3d 405 (1st Cir. 1998)
One court, however, drew a distinction between verbally misrepresenting evidence and creating it. In the case of State v. Cayward 552 S.2d 971 (Fla. 1989) the investigators had created a falsified crime laboratory report that implicated the suspect in a homicide and, with the use of this prop, were successful in persuading the suspect to confess. The court recognized the distinction between "verbal assertions and manufactured evidence" ruling that the latter threatens a loss of integrity within the judicial system. Specifically, the court was concerned over the possibility that a false report used for interrogation purposes might well be retained and filed in police records and thus be subject to public attention as though it were fact.

TYPES OF FALSE CONFESSIONS


The courts require that a confession is both voluntary (the product of the suspect's free will) and trustworthy (a statement that is accurate and true).

Voluntary False Confession

A voluntary false confession is one in which the subject confesses in the absence of any police questioning. Individuals may make a voluntary false confession as the result of organic or functional mental disorder, or for some specific purpose or gain, such as the protection of the actual offender.

Coerced Compliant Confession

An allegation of a coerced compliant confession typically occurs when the suspect claims that he confessed to achieve some instrumental gain, such as being allowed to go home; bringing the interrogation to an end; or escaping the inherent psychological or physical pressures of the interrogation.

Coerced Internalized Confession

Coerced internalized confessions are confessions that are allegedly false and occur when the investigator successfully convinces an innocent suspect that he is guilty of a crime he does not remember committing. There are three types of suspects who may claim that a faulty memory affected the trustworthiness of their confession: guilty suspects who have given a voluntary and trustworthy confession and are now looking for some way to discredit it; a guilty suspect who actually does not remember committing the crime; and, an innocent suspect who is convinced through the interrogation process that he must be guilty, and, therefore, accepts responsibility for committing the crime through a confession.

SUSPECT SUITABILITY

It is important to understand some of the factors that could influence the admissibility of a confession, as well as what our critics describe as the "model of interrogation" that they claim investigators follow.

Age When conducting an interview or interrogation, the investigator must carefully assess the suspect's suitability. The courts have often spoken about the need to examine the "totality of circumstances" (particularly with a juvenile suspect) when examining the voluntary nature of a confession. As the U. S. Supreme Court said:

"The totality approach permits - indeed, it mandates - inquiry into all of the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warning given him, the nature of his Fifth Amendment rights, and the consequence of waiving those rights." Fare v. Michael C. 442 U.S. 707 (1979). An investigator should remember that the younger a suspect is, the more he may lack the confidence to offer strong denials, and may even try to please the investigator. Furthermore, the younger a suspect is, the less active persuasion should be used during the interrogation. More emphasis should be placed on the factual elements of the case and the incriminating evidence or conflicting statements made by the suspect.

In a custodial situation it may be advantageous to have the juvenile suspect repeat back the essential elements of the rights so as to demonstrate his understanding of the advisement.

In the case of Gallegos v. Colorado 370 U.S. 49 (1962) the U. S. Supreme Court reversed the murder confession of a 14-year-old boy because the trial court had admitted a confession that had been obtained while the boy was being questioned alone. According to the majority of the Court, he had "no way of knowing what the consequences of his confession were without advice regarding his constitutional rights from someone concerned with securing him those rights - and without the aid of more mature judgment as to the steps he should take in the predicament in which he found himself."

While most courts have declined to adopt a fixed rule that renders youthful suspects incapable of waiving Miranda rights, some courts and legislators have applied what is referred to as the "interested adult rule" which prescribes that there can be no valid waiver by a youth under a certain age (16, 17 or 18). In Illinois, for example, any suspect under the age of 13 must be represented by legal counsel during any custodial questioning.

Intelligence

Another important factor to consider is the intelligence level of the suspect.

In the case of Smith v. Duckworth 910 F.2d 1492 (7th Cir.1990) the U.S. Court of Appeals held that a finding of involuntariness cannot be predicted solely upon mental instability, but that a defendant's mental state is relevant to the extent it makes a suspect more susceptible to "mentally coercive police tactics."

In another case, Vance v, Bordenkircher 692 F.2d 978 (4th Cir. 1982) the U.S. Court of Appeals held that the murder confession of a 15-year-old youth who had an IQ of 62 and a mental age of nine was voluntary and admissible. The U.S. Supreme Court declined to review this case.

With the above in mind, it becomes very important for the investigator to document the suspect's vocabulary, verbal skills and level of education to be able to demonstrate the suspect's ability to understand what s/he was saying.

It is important for the investigator to conduct the interrogation at the suspect's level of understanding and comprehension rather than strictly the chronological age. If we have a suspect who is 20 years old but has the IQ level of a 12 year old, we should conduct the interrogation as though we were talking to a youngster.

Language

When questioning a suspect in a language which is not their first language, the investigator should make sure to read the Miranda rights in both languages if feasible. If the interrogation is conducted in English, it is important to document the appropriateness of the suspect's responses, as well as their requests for clarifications, and the quality of their responses.

If feasible, the confession should be read in the suspect's native language before he signs the document.

Mental, Emotional or Physical Health

If a suspect displays behaviors that are strongly suggestive of severe mental, emotional or physical disorders, it may not be appropriate to interrogate them at that time. If a suspect exhibits severe thought disorders, they should not be interrogated.

Suspects who exhibit severe anxiety disorders may be more susceptible to false confessions as a result of perceived duress. Suspects who are addicted to drugs or alcohol should not be interrogated when exhibiting clear symptoms of withdrawal, or when significantly under the influence of drugs or alcohol.

In anticipation of possible challenges to a confession based on any of the above elements, it is advisable to document the basic information about the suspect's suitability at the time of questioning. Consequently, we suggest that the suspect complete a Medical Data Sheet. We have provided an example of a Medical Data Sheet on the back page of this newsletter that you can duplicate and use in future interrogation situations.

THE OFSHE MODEL

Dr. Richard Ofshe, a social psychologist with the University of California, Berkley, has described in testimony, the following as the "model of interrogation" that he claims investigators follow in their interrogations. According to Ofshe, interrogation consists of two parts: eliciting the first admission and obtaining the post confession narrative.

In an effort to obtain the first admission of guilt, the interrogator must convince the suspect that "there is absolutely no doubt that you committed this crime." To further accomplish this, the interrogator overwhelms the suspect with the evidence, including the use of fabricated evidence. The general demeanor should be one that conveys the idea to the suspect that the interrogator will get more upset if the suspect attempts to or continues to deny any involvement in the crime.

One of the interrogator's goals is to make the suspect feel helpless by making such statement as "You're not leaving this room until you confess." or, "If you tell me you did this you can go home and sleep in your own bed tonight." or, "With the evidence we have, there's no doubt that you will be convicted of this. The only question is how long are you going to sit in prison."

Once the sense of "helplessness" has been established, the investigator obtains the first admission of guilt by using a motivating statement. Ofshe describes low-end motivating statements to include comments such as, "You will feel better about this once you tell the truth." or, "For everyone concerned, tell the truth." or, "Get this over with and out it behind you - just tell the truth." If these statements are not successful, then the investigator will use high-end motivating statements such as, "You will be sentenced to the maximum term unless you confess." or, "If you don't tell the truth I will get your children turned over to child protective services." or, "If you don't confess the judge will make an example out of you and give you the maximum sentence."

Once the investigator obtains the initial admission of guilt, he then moves into the second stage of the interrogation, which is to obtain the post confession narrative in which he attempts to develop the details of how the suspect committed the crime. Ofshe relies extensively on the post confession narrative to identify what he suggests are false confessions. The criteria he uses for suggesting that a confession is false are: 1) the fact that the suspect's statements conform to the police theory of how the crime was committed; 2) there are factual inconsistencies between the suspect's statements and the actual evidence; and, 3) there are no details that can be used for independent corroboration of the confession.

RESPONDING TO THE OFSHE MODEL

In utilizing the Reid Nine Steps of Interrogation the investigator begins with Step 1 - The Direct Positive Confrontation. Our purpose in Step 1 is to establish and express our high confidence in the suspect's guilt and to establish a basis (in the suspect's mind) for the interrogation.

To help establish this sense of confidence in the suspect's guilt we make a very direct accusatory statement, "The results of our investigation clearly indicate that you did [issue]," while holding an evidence file or utilizing other props (such as a videotape). The pretense for the interrogation may be described as trying to establish the circumstances behind what happened; trying to find out what kind of person the suspect is; trying to establish the extent and frequency of his involvement; and/or, to find something about the suspect that can be used as the basis for a compliment.

Criticism
: The investigator is expressing a false confidence in the suspect's guilt.

Response: The interrogation is being conducted because there was information developed during the investigation or the subject's interview that indicated his potential involvement. Furthermore, the suspect knows whether or not he committed the crime. If the interrogator is incorrect the suspect should offer strong denials.

Criticism: By focusing the interrogation on why the suspect committed the crime or what the full circumstances were behind the commission of the act, the interrogator is directing the suspect's attention away from the possible consequences of his actions.

Response: In order to persuade the suspect to tell the truth, it is essential to reinforce their rationalizations for committing the crime versus focusing their attention on the possible consequences.

Following the initial confrontation, the interrogator begins Step 2 - Theme Development. The core of Step 2 is to present to the suspect, in a monologue, reasons and excuses which morally (not legally) excuse the suspect's behavior. The themes do not plant new ideas in the deceptive suspect's mind, but allow the suspect to feel more comfortable talking about his crime by allowing him to reduce the perceived consequences associated with it - both real consequences (those affecting his freedom or livelihood) and personal consequences (those affecting the suspect's self-esteem). The theme should be presented in a compassionate and understanding tone of voice.

Criticism: Themes imply a promise of leniency.

Response: At no time should the suspect be told that if he committed the crime for an understandable reason that the consequences would be less.

"even if a suspect.influenced perhaps by wishful thinking assumed that he would get more lenient treatment .[this] would not, as a matter of law, make the confession inadmissible." State v. Nunn 212 Ore. 546, 321 P.2d 356 (1958)

Criticism: The investigator does not present the evidence against the suspect so that the suspect cannot make an intelligent choice as to whether or not to confess.

Response: At the time of the interrogation there may not have been irrefutable evidence that the suspect committed the crime, which is why he was interrogated. He made a free choice to voluntarily confess.

Criticism: The interrogator's use of fictitious evidence (which may occur during theme development) may convince an innocent suspect that he is guilty.

Response: An innocent suspect knows that the evidence could not exist and, therefore, is not persuaded by it.

During the course of the presentation of the themes, most suspects will attempt to deny any involvement in the commission of the crime. This brings us to Step 3 - Handling Denials. The more often a suspect verbalizes a denial, the less likely he will be persuaded to tell the truth. Consequently, the interrogator should attempt to discourage weak denials by the use of verbal phrases ("Jim, wait just a minute") combined with nonverbal gestures (turning the head away and using the hand in a stop gesture).

Criticism: The interrogator prevents an innocent suspect from telling the truth.

Response: The interrogator discourages the suspect from offering denials but does not prevent him from saying anything.

Criticism: Investigators are not trained to recognize or distinguish a truthful denial from a deceptive denial.

Response: Studies show that investigators can identify truthful and deceptive suspects based on their verbal behavior. Deceptive denials are typically easily cut off; avoid descriptive language; conflict with the suspect's nonverbal behavior; and, become acceptant. On the other hand, truthful denials are not easily cut off; use descriptive language; have supporting nonverbal behavioral characteristics; and, develop into sincere anger.

As the interrogation continues, many suspects who have been ineffective in verbally dissuading an interrogator's confidence will oftentimes simply turn off the interrogator and wait him out. Through Steps 5 and 6 it is important for the interrogator to regain the suspect's attention. One technique for doing so is to physically move closer to the suspect. This is done to establish and maintain emotional closeness. It is not done to intimidate the suspect. If the suspect appears uncomfortable with this closeness, the interrogator should move back.

Another tactic that may be used to illustrate this emotional closeness would be to touch the suspect with a hand on their arm, for example, to extend sympathy and understanding, not to exert authority over the suspect.

When a suspect appears ready to confess, the interrogator oftentimes will use an alternative question (Step 7) to obtain the first admission of guilt.

The Alternative question offers the suspect two incriminating choices concerning some aspect of the crime. Accepting either choice is an admission. The alternative question offers the suspect a face-saving choice to make the first admission. The interrogator should not present possible punishments when contrasting the positive and negative choices for the alternative question.

A few examples of proper reinforcing statements and alternative questions would be:

"If this was planned out months in advance that tells me you have a criminal mind and are capable of committing much more serious crimes than this and I think that's despicable. But if this happened on the spur of the moment I can understand that. Did you plan this out for months in advance, or did it pretty much just happen on the spur of the moment?"

"If you want people to believe that you are greedy and spent this money on fancy things for yourself then my advise to you is to say nothing. But if you really needed this money for your family that would be important to know. Did you spend the money on yourself, or did you use it to help out your family?"

"If this was not your idea and somebody talked you into it that would be very important for me to include in my report. On the other hand, if this whole thing was your idea and you were the mastermind behind it, you're doing the right thing by saying nothing. Was this whole thing your idea, or did you get talked into it?"

A few examples of improper reinforcing statements and alternative questions would be:

"If you keep lying to me about this I'm bound to lose my temper and you don't want me to lose my temper. Do you want to be charged with first degree arson, or was this just criminal damage to property?"

"If you want to spend the next 20 years of your life behind bars you're doing the right thing by saying nothing. By saying nothing that's exactly what will happen. Do you want to spend time in jail, or go home after we get this straightened out?"

"If this was the first time you did something like this I am sure the judge will take that into consideration - but he won't know unless you tell me. So, do you want us to take away your children because you're an unfit mother, or do you want to be able to see your kids again?"

Criticism: The alternative question forces the suspect to incriminate himself.

Response: The suspect always has a third choice, which is to say that neither alternative is true.

Criticism: The alternative question presents a promise of leniency or threatens the suspect with harsh punishment.

Response: At no time should the interrogator describe possible charges, punishment or leniency in association with the alternative question.

Once the suspect accepts one side of the alternative question, in Steps 8 and 9 the interrogator should verbally develop the details of the crime, and then convert the verbal confession into a recorded/written document.

The admission should be developed into the confession by asking a series of open-ended questions that allow the suspect to provide the details of his criminal behavior, such as:

"Then what happened?"
"Where did you go next?"
"What did you do after that?"

It is important to attempt to develop corroborative information, such as details about the crime that had been concealed form the public and possible suspects, or information about the suspect's crime that can be independently verified and was unknown until the suspect confessed.

Crime information that is important to develop includes pre-crime behaviors (observation, preparation, discussions, where suspect obtained tools, weapons or knowledge used in the commission of the crime), as well as details concerning the commission of the crime (method of entry, nature of contact with the victim, statements to victim, position or condition of victim or property after the crime, how money was concealed, how property was transported, etc.), and post-crime behaviors (where stolen goods/weapon/clothes/etc are now, who was told, where suspect went, etc.).

It is important to note that very few confessions represent a 100% accurate and complete description of the crime because some suspects desire to protect the identity of an accomplice; attempt to minimize the seriousness of the crime; to reduce the level of shame or embarrassment; to prevent the recovery of incriminating evidence; or to manipulate the investigators.

CONCLUSION

With the above in mind, at no time in a properly conducted interrogation should the interrogator make the type of statements that are described as typical in the Ofshe model. The type of statements that should not be made include:

"You're not leaving this room until you confess."

"If you tell me you did this you can go home and sleep in your own bed tonight (when such is not the case)."

"With the evidence we have, there's no doubt that you will be convicted of this. The only question is how long you are going to sit in jail."

"You will be sentenced to the maximum term unless you confess."

"If you don't tell the truth I will get your children turned over to protective services."

"If you don't confess the judge will make an example out of you and give you the maximum sentence."

The goal of the interrogation process is to develop the truth. It is not a process designed to obtain a confession by any means from any suspect. The interrogator, following the guidelines established in The Reid Nine Steps of Interrogation, will be meeting all of the guidelines established by the courts in conducting proper interrogations to develop admissible confessions from guilty suspects.


MEDICAL DATA SHEET

Name _______________________________________ Date ____________ Time _________

1. In the last 24 hours, have you had any alcohol, drugs or medications? Y N
If yes, please explain ________________________________________________________

2. In the last 24 hours, how many hours of sleep have you had? _________________________

3. When did you eat your last meal? ______________________

4. Circle the last year of school that you completed: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Middle High College Post-graduate

5. Are you presently experiencing any physical discomfort? Y N
If yes, please explain _______________________________________________________________

6. Are you presently under a physician’s care for any medical problem? Y N
If yes, please explain
_______________________________________________________________

7. Are you pregnant? Y N

8. In the last 12 months, have you ever talked to a psychologist or psychiatrist about an emotional or mental health problem? Y N
If yes, please explain _______________________________________________________________

9. In the last 2 years, have you attempted suicide? Y N
If yes, please explain
________________________________________________________________

10. How would you describe your present emotional and physical well-being?
(please check one of the following):
Excellent ________ Good ________ Alright ________ Poor _________