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Criminal interrogation techniques on trial.

THE INTERROGATION OF CRIMINAL suspects is essential to the investigation process, and in a large percentage of solved cases, a confession played a vital part.

Nevertheless, when a confession is presented as evidence at a criminal trial, it is often subjected to unwarranted attack. The attacks are, however, warranted when there is some basis for charges of direct or indirect physical force, threats of physical harm, or promises of leniency in return for a confession. Any one of those factors may induce an innocent person to confess; consequently, such allegations of that nature must be fully explored.

Also exempt from the unwarranted category are confessions obtained in violation of a court-established rule designed to safeguard a constitutional right--the Miranda warnings, for example.(1)

Defense counsel can, with full legitimacy, attack a confession based on police noncompliance. This is also true if the police employ methods that shock the conscience of the community, as when a police interrogator poses as a member of the clergy or a defense lawyer to obtain a confession.

What investigators deplore, however, are the claims that a confession is flawed because of the use of nonthreatening, no-risk psychological tactics and techniques to induce truth telling by a criminal suspect.

A gross misconception prevails that a person who commits a criminal offense will, in most instances, readily admit it or confess after only a brief period of questioning.

Only a short time is needed if the police resort to force, threats, or promises of leniency as interrogation tactics to obtain confessions. However, confessions ordinarily do not result quickly when proper, nonendangering, psychologically effective tactics and techniques are used. A reasonable period of time--perhaps several hours--is required to definitely eliminate innocent suspects or to implicate the guilty. Such procedures are rarely accurately depicted.

Many judges have no comprehension of the extent to which an interrogator must rely on psychologically sophisticated interrogation techniques to elicit a confession, and the ability of both innocent and guilty suspects to resist these techniques without confessing is not understood.

Joseph D. Grano, a professor of law, explains, "The professional interrogator, with his anxiety-inducing tactics, is employed precisely because the inherent pressures of custodial interrogation usually are insufficient by themselves to produce the desired confession."(2)

In recent years a number of confessions have been suppressed as a result of defendants' claims that the psychologically sophisticated nature of the interrogation techniques created certain perceptions that led them to confess involuntarily.

The defendants were not claiming that they were physically threatened or abused; they were not claiming that the interrogator offered them a promise of leniency in exchange for a confession; and they were not disputing that they knowingly and voluntarily waived their rights under Miranda. The following description of a Michigan court case illustrates the problem.

The person under interrogation was the driver of a car that crashed over the railing of a bridge, resulting in the death of his three children. His wife, also a passenger, survived.

Investigators believed that the crash may have been intentional rather than accidental, so the suspect was asked to take a polygraph examination. The examination was followed by several hours of interrogation, after which the suspect confessed.

A psychologist who testified at a suppression hearing described the interrogation as one that employed "highly sophisticated psychological techniques." He based his conclusion that the confession was not voluntary on the following considerations, taken from the trial court transcript:

* The technique the interrogator used was a hypnotic technique resulting in the defendant being brainwashed.

* Because the defendant was under great trauma and stress, he was susceptible to suggestion.

* Because the defendant was under the influence of the police for 11 or 12 hours, "virtually anybody begins to breakdown, the ego disintegrates."

* The interrogator presented a monologue in a hypnotic pattern. His voice was slow and soothing, and he kept repeating the same concepts.

* The interrogator was attempting to impose the truth on the defendant rather than seeking the truth from him. Evidence of this is that the interrogator did not ask the defendant questions during the interrogation.

* The interrogator ignored the defendant's denials and protests of innocence and twisted the defendant's objections around to use the defendant's words against him.

* Because of the length of the interrogation, the defendant would have said anything the interrogator wanted to hear just to get out of the room.

* The interrogator offered the defendant only two possible explanations for the crime, and the acceptance of either one would lead to an incriminating statement.

Despite the faulty conclusions of the psychologist, he should be given credit for his insight into the interrogation process. For the most part, he described accurately the procedures and techniques considered standard and customary in criminal interrogations.

Unfortunately, the trial judge, in considering the totality of the circumstances, ruled to suppress the confession on the following rationales:

* "I am convinced that the purpose of getting the defendant to agree to a polygraph examination was merely a ruse to conduct an interrogation of the defendant."

* "The objective of the examiner was to ingratiate himself with the defendant. He used a monotone, nonaccusational, almost hypnotic tone of voice. The examiner tried to equate things he had done in the past with the actions of the defendant. The examiner made statements calculated to lead the defendant to believe that he was there to help him."

* "Because the defendant was distraught and guilt ridden over the death of his children, he was more vulnerable to being tricked into giving a confession."

* "Although the examiner told the defendant on two or three occasions that he was free to leave, it was clear that the defendant did not believe he was free to leave."

* "Finally, and perhaps the most compelling, is the videotape itself. It is apparent that his |the defendant's~ will to...resist the accusations faded over the day. It was clear that the defendant's will to resist the accusations no longer existed."

Following the suppression ruling the prosecution appealed, but the Michigan Appellate Court agreed with the lower court and upheld the suppression of the confession.(3) During his trial--without the confession being admitted--the defendant was nonetheless convicted.

The interrogation in this case was not unusually lengthy, and the suspect was not threatened, subjected to physical harm, or deprived of biological needs. No promises of leniency were made, and the validity of waiver of Miranda rights was not questioned.

The issue focused, therefore, on whether the psychologically sophisticated interrogation techniques used in the case were proper. It is the position of this article's authors that the techniques were not only proper but absolutely essential in discovering the facts.

AN INTERROGATION HAS THREE PRIMARY objectives: to ascertain the probability that the suspect is or is not the offender; to eliminate the innocent by eliciting information, evidence, or behavior symptoms indicative of that fact; and to obtain a confession from the guilty or information from him or her regarding the involvement of other persons.

Prior to an interrogation, most investigators conduct a nonaccusatory interview to ascertain the probability of the suspect's innocence or guilt. In some cases, an interrogation meeting may be preceded with a nonaccusatory polygraph examination.(4)

These procedures present no problem with regard to confession admissibility at trial, except insofar as they become confused with the accusatory interrogation itself.

In the previously cited case, for example, the psychologist's description of the length of interrogation included the time required to drive the suspect to the examiner's location, the duration of the polygraph examination, as well as the time during which the suspect was taken out for lunch. An interrogation, however, does not begin until the interrogator accuses a suspect of lying and is actively attempting to persuade the suspect to tell the truth.

Typically, the interrogation begins with an accusation of guilt--essentially a statement that says, "There is no doubt that you did this." As the interrogation continues, if the suspect displays verbal and nonverbal behavior consistent with a deceptive person the investigator will maintain a high degree of confidence in the suspect's guilt.

However, if the suspect's verbal and nonverbal behavior progressively become more consistent with that of a truthful suspect, the interrogator may modify his or her accusation statement to one that is less direct. For example, the interrogator may indicate that if the suspect did not commit the crime, then he or she must know who did.

If the suspect persists in his or her truthful behavior even in response to this statement, the investigator may then pursue the possibility that the suspect has withheld some relevant piece of information from the investigator. When the suspect's behavior at each level is consistent with truthfulness, the suspect is generally considered innocent of the crime.

It is unfortunate that there are occasions when an innocent person may experience an accusatory interrogation. That risk, however, is far less than the risk that innocent persons will actually be arrested. Moreover, an accusation made under the prevailing conditions of privacy--with the interrogation room occupied by only the investigator and the suspect--is far less intrusive than an arrest.

Another compensating factor is that in the interrogation room, the suspect has an opportunity to disclose information or evidence that establishes positive proof of innocence. On many occasions, this may be the only way he or she can be removed from further suspicion by the police.

If the only permissible tactic allowed during an interrogation were to ask the suspect to tell the truth about what he or she did, certainly no innocent suspect would confess, but neither would a guilty suspect.

However, proper interrogation techniques should not cause an innocent person to confess.

FROM A BEHAVIORAL PERSPECTIVE, THE act of confessing to a crime requires that an individual act against his or her own self interest. The suspect realizes that if he or she confesses, he or she may incur severe consequences.

Because of a strong self-preservation instinct, most guilty suspects cannot be expected to readily confess. For this reason, the majority of guilty suspects will not admit their involvement until after interrogation.

Another reason interrogation is required is that part of the decision-making process involved in committing a crime includes justifying the crime in some manner. These mechanisms have been referred to as neutralization techniques.(5)

Because guilty suspects have justified their crime, they do not experience intolerable remorse or guilt over their criminal behavior and, therefore, have little internal incentive--guilt--to confess.

Obtaining a confession is psychologically accomplished through two basic processes: reducing the suspect's resistance to confess and increasing his or her desire to tell the truth. This is true whether a confession is to a priest, a friend, or a police officer.

When confessing to a priest or friend, there is usually a stated or understood promise of confidentiality that essentially eliminates the consequences of the confession. During an interrogation, however, the interrogator must reduce the suspect's resistance to confess without presenting any promise of leniency or confidentiality.

When confessing to a priest or friend, a positive benefit is realized--moral redemption and anxiety relief. But when compared to the potential consequences of a criminal confession, these benefits are insignificant to most suspects. Therefore, an interrogator must also increase the suspect's desire to tell the truth without threatening him or her or using physical violence.(6)

Consider a noncriminal example of a child who breaks a lamp. On first being questioned, the child may deny involvement and offer support for his innocence by saying, "If I did that, I would certainly tell you."

The parent may then explain that the evidence clearly indicates that the ball broke the lamp and that the child was playing with the ball. Perhaps the parent will point out that the child's nonverbal behavior clearly indicates responsibility.

The parent may then say that it appears the lamp was broken accidentally and that the right thing to do is to tell the truth. The parent may add that just because the child broke the lamp does not mean that the parent no longer loves the child. These statements each serve to decrease the child's resistance.

To elicit a confession, however, the parent must increase the child's desire to tell the truth (increasing the child's anxiety associated with continued deception). This might be accomplished by saying, "I would like to believe that this was just an accident. You didn't break the lamp on purpose, did you? I will be very angry with you if you did this on purpose. It was just an accident wasn't it?" The child will nod his or her head and apologize.

This interrogation may last only a couple of minutes. If the child does not acknowledge responsibility after a minute or two, most parents would discontinue trying to elicit a confession and simply punish the child based on the evidence.

What happens, though, when the suspect is an adult and the punishment for the crime is prison? Further, consider a situation where a confession is necessary to establish sufficient evidence against the suspect.

The same procedures are used, but it takes more time and effort to accomplish each goal; the interrogation will be more intense and the interrogator will be more persistent.

THE CRITICAL QUESTION RELATING TO criminal interrogations, therefore, must be whether the techniques used to reduce the suspect's resistance to confess--or to increase his or her desire to tell the truth--could cause an innocent person to confess.

Both innocent and guilty suspects actively avoid punishment for the crime under investigation. Consequently, during interrogation both suspect types can be expected to deny their involvement, offer reasons as to why they are innocent, challenge the evidence presented against them, or psychologically shut out the interrogator's words and withdraw into their own shell. Each of these responses represents instinctive reactions for self-preservation.

For an interrogation to be successful, the interrogator must be able to shut down or overcome the guilty suspect's defenses and eventually diminish his or her resistance to telling the truth. The primary technique used to accomplish this goal is called "theme development."

During theme development, the interrogator repeatedly attempts to morally justify the crime in the suspect's mind. For instance, the interrogator may blame external factors for influencing the suspect's decision to commit the crime. This procedure is intended to allow the suspect to believe that his or her motivations, or the circumstances surrounding the crime, are understandable.

Caution must be exercised during this process, however, not to tell the suspect that if the crime was committed for a morally acceptable reason, the suspect will be accorded leniency. It is clearly not the function of theme development to relieve the suspect of criminal responsibility for his or her action.

An important psychological factor to consider is that during theme development the interrogator is not presenting any new ideas to the deceptive suspect. During the course of committing a crime, every person rationalizes, minimizes, or justifies his or her crime in some way so he or she can internally tolerate his or her criminal behavior. The interrogator, during theme development, is simply reinforcing those existing beliefs in the suspect's mind.

Consider the case of a struggling businessman who was experiencing decreased profits. Because of building code violations, the insurance company increased his premiums. After falling several months behind on lease payments, the man decided to set fire to the building.

During this interrogation, the interrogator might develop a theme centered around the suspect's bad luck and blame the insurance company for contributing to the business failure because of the higher premiums it was charging.

The interrogator would argue that, out of frustration and desperation, the suspect set fire to his business, not as a get-rich-quick scheme but to catch up financially so he could pay household bills and clothe and feed his family.

These thoughts and motives--themes--are not introduced to the suspect for the first time during the interrogation; these justifications occurred to the suspect while he was contemplating setting the fire.

Consequently, during the interrogation the suspect will relate to the interrogator's theme, and his verbal and nonverbal behavior will indicate that he accepts the interrogator's thesis.

Consider another businessman who had experienced the same financial nemeses and whose business also was burned to the ground. But in this instance, the fire was set by a disgruntled employee, and there was no involvement on his part.

Because this suspect did not start the fire, he has not rationalized or justified it in any way; he will reject the rationales offered in the theme because of his knowledge that regardless of the rationalizations or justifications offered, he did not start the fire. This attitude will be displayed in his verbal and nonverbal behavior.

In addition to theme development, the investigator should use the following techniques to reduce the suspect's resistance to confess:(7)

* State that the purpose for the interrogation is not to find out whether or not the suspect committed the crime, but rather to determine what caused the suspect to commit it.

* Express high confidence in the suspect's guilt.

* Attempt to prevent the suspect from verbalizing denials by maintaining a monologue and urging the suspect to listen to the interrogator.

* Sympathize with the suspect's position and express understanding as to why he or she committed the crime. In this regard the investigator may blame the victim for causing the suspect to commit the crime, minimize the impact of the crime on others, or blame psychological stress or intoxication for affecting the suspect's judgment.

* Falsely tell the suspect about possible evidence implicating him or her in the commission of the crime.

* Move physically close to the suspect to maintain his or her attention and interest.

None of these techniques, in and of themselves, is unique to an interrogation, and none of them would cause an innocent suspect to confess to a crime.

Even when these techniques are combined and presented in a controlled interrogational environment, all they accomplish is to reduce the suspect's resistance to confess. The interrogator must still increase the suspect's desire to tell the truth.

It is also important to note that an innocent suspect is not persuaded by the theme. The innocent businessman did not have any preexisting beliefs that justified the fire. So when the interrogator tried to explain that starting the fire was understandable, the suspect grew more and more impatient and frustrated with the interrogator's repeated implications. It is precisely this rejection of the theme that results in the truthful verbal and nonverbal behavior mentioned.

From a psychological perspective, the suspect who has accepted the interrogator's theme is operating from the same belief structure as when he or she committed the crime. That is, he or she believes the crime is morally justified.

If this alone was sufficient for a confession, the suspect would have turned himself or herself in immediately following the crime. To elicit a confession from a guilty suspect, therefore, the interrogator must also increase the suspect's desire to tell the truth.

One way to accomplish this objective is to express a concern to the suspect that if he or she does not tell the truth, people may make false assumptions about why he or she committed the crime.

The technique culminates by asking the suspect alternative questions that offer two descriptions about some aspect of the crime. The alternative questions are phrased so that either choice is incriminating.(8) One choice, however, is clearly more acceptable or desirable than the other.

In the first of the previous arson examples, the investigator may say to the suspect: "John, did you buy that business and insure it for the sole purpose of making a profit by starting the fire, or was this a situation where your intentions were honest and you tried hard to make the business work, but because of all the unforeseen expenses you found yourself in a desperate situation and starting the fire was the only way you saw to insure survival of your family? Did you start that fire because you are dishonest and greedy and wanted to make a quick buck, or were you just trying to break even on your losses? You were just thinking of your family, weren't you?"

Examples of additional alternative questions that may be used in other types of cases include: Did you plan this out for a long time, or did it just happen on the spur of the moment? Have you done this many times before, or was this just the first time? Did you spend this money on drugs and parties or was it to pay your bills?

Even though the interrogator encourages the suspect to accept one of the two alternative questions, the suspect always has a third choice--to reject both alternative questions and maintain his or her innocence.

A suspect will not accept the more desirable side of the alternative question unless his or her resistance to confess has first been decreased. Both of these objectives must be accomplished for the suspect to decide to confess, and neither of the tactics--alone or combined--would cause an innocent person to confess to a crime.

An interrogation is not a counseling session during which the suspect is encouraged to accept full responsibility for his or her criminal behavior and modify it accordingly. In truth, effective interrogation techniques are counterproductive to healthy psychological adjustment because the investigator is fueling the suspect's rationalizations for committing the crime.

Because of this, after a suspect confesses--even though he or she acknowledges committing the crime--the suspect is likely to believe that because the crime was somewhat justified, or could have been much worse, he or she should receive some special consideration.

With this background, it is not surprising that after a suspect confesses, is consequently charged with the crime, and finds himself or herself facing possible maximum penalties, he or she feels tricked, lied to, and unethically treated. The individual believes that the interrogator unfairly took advantage of him or her.

After obtaining an attorney and convincing the attorney that the confession was false and involuntary, the attorney must then find fault with the interrogation. Sometimes a psychologist is hired to evaluate the defendant and the interrogation in question.

The psychologist's description of the interrogation frequently includes a variety of adjectives that are intended to convince the judge that the confession was involuntary. The interrogation is commonly characterized as involving brainwashing, hypnosis, coercion, compulsive tactics, or undue duress.

According to defense counsel, if an interrogation fits any of these descriptions, the logical conclusion must be that the suspect's free will was removed and, therefore, the confession was involuntary.

Each of the foregoing adjectives carries with it an instinctively repulsive association with torture, isolation, and third-degree tactics. The mere reference to any of these words--especially by a psychologist--will predictably arouse an emotional response rather than an impartial evaluation.

The following section presents each of these concepts in a logical and straightforward manner. Stripped of their emotional connotations, each of these characterizations can be condensed to essential elements and consequently be supported or disproved.

Brainwashing. The term brainwashing was used during the Korean War to describe the tactics employed in an attempt to change war prisoners' political attitudes about the United States. The procedures involved torture, promises, isolation, starvation, and threats occurring over a period of months or years.

When an attorney claims that his or her client was brainwashed, he or she is not using the term in the traditional sense. However, Webster's provides a second definition of brainwashing, which is, "persuasion by propaganda or salesmanship." Propaganda involves spreading ideas, facts, or allegations to further an individual's cause or to damage an opponent's cause.

An interrogation is much like a trial in that two adversaries use persuasion and propaganda to further their cause. During an interrogation, a guilty suspect is motivated to avoid the punishment associated with his or her commission of the crime; therefore, the suspect attempts to persuade the interrogator of his or her innocence through verbal statements.

On the other hand, the interrogator uses persuasion and salesmanship to overcome the suspect's resistance to confess to the crime in question and encourage him or her to tell the truth.

Frequently the foregoing definitions of brainwashing will be merged in such a way that a testifying psychologist will claim that through improper persuasive techniques, the interrogator planted a false belief of guilt in the suspect's mind.

The psychologist may claim that evidence of this is the interrogator's suggestion during the theme that the suspect had a morally acceptable reason for committing the crime. These claims are entirely invalid.

For a suspect to relate to a theme, the suspect must have already justified the crime in some way. The interrogator's theme is merely reinforcing existing beliefs that are already present in the guilty suspect's mind.

The second definition refers to propaganda and salesmanship. Proper interrogation techniques do involve brainwashing but only in the sense that courtroom arguments also involve brainwashing.

However, describing proper interrogation techniques as brainwashing is misleading because the first definition involves tactics that are clearly improper and would render a confession inadmissible, whereas the second definition describes tactics that are legal, and should in no way affect the admissibility of a confession.

Clearly, proper interrogation techniques do not involve convincing the suspect that he or she is guilty. At most, the interrogator attempts to convince the suspect that his or her guilt is certain and that his or her reasons for committing the crime may be understandable and deserve explanation.

Coercion. The term coercion is an ambiguous construction that must be carefully defined when used to describe behavior during an interrogation. In the context of interrogation, coercion connotes physical force and the application of physical methods, such as striking the suspect or using glaring lights.

Webster's describes coercion as, "to constrain or force to do something; to bring under control by force." The principal concept here is using physical force against a suspect or constraining the suspect through the use of physical force. A threat of physical force can also constitute coercion.

In their attempt to apply the concept of coercion to the interrogation process, attorneys have modified the definition of coercion to mean that the interrogator used "psychological coercion" to force a false confession.

The concept of psychological coercion does not exist as a reported phenomenon in psychological literature, so an individual must assume that the combination of words implies using cognitive pressures to force or constrain a suspect.

Examples of cognitive pressures might include such practices as persuasion, deception, propaganda, and positive and negative reinforcements. These procedures may influence behavior, beliefs, and expectations, but they do not force or constrain the suspect in any way.

Even the Supreme Court appears somewhat confused as to the concept of coercion. In a 1944 decision, the Court ruled that interrogations must be free from "inherent coercion."(9) This sounds reasonable if coercion involves physical force.

However, in a dissenting opinion, Justice Jackson argued that every interrogation, regardless of its length, involves inherent coercion. Obviously, Justice Jackson was not referring to physical force when he used the word coercion but perhaps to the interrogational environment.

None of the techniques advocated in this article involve causing, or threatening to cause, physical pain to the suspect or physically constraining a suspect. Consequently, proper interrogation techniques in no way involve coercion. If an attorney or psychologist wants to modify the meaning of coercion, he or she should clearly define how the word is used.

Compulsion. In contrast to coercion, compulsion describes an uncontrollable desire or urge to engage in a particular behavior. The key concept to consider with respect to compulsory statements is that a threatening impetus is required to cause the behavior.(10)

For example, a judge who threatens to imprison a witness unless the witness answers a question is using compulsion to elicit the verbal response. Similarly, an interrogator who threatens harm or threatens to isolate the suspect unless the suspect confesses is using compulsion to elicit a confession.

The nature of the threatening impetus required before a confession is considered the result of compulsion must be carefully evaluated. For example, in the Supreme Court's opinion in Miranda, reference is made to "compulsion inherent in custodial surroundings."

Indeed, all interrogations are threatening in the sense that if the suspect confesses, he or she may suffer some consequences. But not all confessions can be considered compelled. Merely being in a threatening environment is insufficient to render a statement compulsory.

To qualify as compulsive, the threat must be the impetus for the confession. The motivation for confessing must be to avoid or remove the threat, that is, the witness deciding to testify to stay out of jail.

Therefore, for a defendant to claim that his or her confession was the result of compulsion--and thus involuntary--it must be demonstrated that making the false confession was the only possible means to avoid or remove the threat.

In considering this defense, the initial response to a threat is to fight it--protest innocence--or flee from it--terminate the interrogation. Only after the suspect has exhausted these two remedies would the suspect resort to a false confession to relieve the threat.

None of the interrogation techniques that are considered proper involve continuing a custodial interrogation after the suspect has invoked his or her Miranda rights. Nor is preventing a suspect in a noncustodial interrogation from leaving the room advocated. On the other hand, if the suspect has made no attempt to terminate the interrogation, he or she cannot legitimately claim that his or her confession was compelled.

Duress. Whereas compulsion usually denotes a specific threat, the word duress typically describes some general aspect of the interrogational environment.

For example, duress may be cited when a confession is suppressed because of the length of the interrogation or perhaps because three interrogators were simultaneously questioning a suspect or doing so in relays. The suspect, in effect, is claiming that the environment of the interrogation was so intolerable that he or she believed a confession was the only means to seek relief.

Both guilty and innocent suspects may describe an interrogation, or even a courtroom cross-examination, as intolerable. The fact that an interrogation was lengthy, unpleasant, emotionally draining, intense, or frustrating to the suspect does not, in and of itself, constitute an environment that was so intolerable as to cause an innocent person to confess.

The literal definition of intolerable must be applied, whereby the suspect finds himself or herself in an environment that he or she cannot tolerate. Consequently, the suspect confesses to achieve an environment that he or she can tolerate.

Exactly at what point an interrogational environment crosses the line between tolerable and intolerable is individually defined. Some suspects can tolerate much more environmental stress and anxiety than others.

In addition, this is an almost impossible subject to assess after the fact. When a suspect is asked by his or her defense attorney, "Why did you admit doing this?" the suspect may reply that he or she had no choice but to confess. The attorney will then set out to prove duress and compulsion. The suspect may or may not be telling the truth about his or her motivations for confessing.(11)

Because a psychologist is relying on the suspect's statements during a clinical examination conducted weeks or months after the interrogation, he or she is in no position to make an accurate determination of the suspect's ability to tolerate the interrogational environment.

During such an evaluation, the defendant is relating his or her present perceptions about his or her past emotional states that may well be psychologically distorted or contrived.

The simplest and most straightforward test to determine whether an interrogation was so intolerable as to cause the type of psychological pressures associated with a false confession is to evaluate the suspect's attempts to leave the interrogation environment. If no attempt was made, it must be concluded that only in retrospect--after the confession--did the suspect perceive the interrogation as intolerable.

If the suspect in a noncustodial interrogation attempted to leave the room but was not allowed to do so or the suspect in a custodial interrogation invoked his or her right to remain silent and was ignored, strong evidence is presented to support the premise that, at the time of the interrogation, the suspect could not tolerate the environmental anxiety. Consequently, the confession should be suppressed.

Willpower (free will). One of the Supreme Court's views on confession admissibility is explained in Culombe v. Connecticut, which offers this ambiguous test: "Is the confession the product of an essentially free will and unconstrained choice by its maker?"(12)

The concept of removing a person's "will" psychologically has no meaning. As the philosopher Maine De Biran wrote more than a century ago, "I cannot act deliberately without knowing what I am doing. More generally, the separation of reason and will, or action and cognition, is a fundamental error. To act is to know, and vice versa."(13)

This position was reiterated in a brief filed with the Supreme Court by the American Psychological Association explaining that a fundamental premise of behavioral science is that all behavior is determined, or purposeful; all behavioral decisions can be traced back to a stimulus condition or cause. The concept of the absence of volition (will), therefore, is meaningless in psychology.(14)

Consequently, when an attorney argues that an interrogation technique that had been used was improper because the suspect's willpower was removed or overcome, he or she is arguing a psychological impossibility.

Consider the suspect who confesses to murdering his wife because he is told that if he does not confess the interrogator will pull the trigger of the gun pointed at the suspect's head. In this instance, has the interrogator taken away the suspect's will to not confess? No, the suspect still has a choice of either confessing or dying. If the suspect confesses, it is a deliberate act, and therefore the suspect knows what he or she is doing and is in possession of his or her will.

In this example, of course, the suspect's confession should be ruled inadmissible, not because the interrogator took away the suspect's will but because the interrogator's threatening statements and actions could cause an innocent person to confess.

The concept of free will may appear contradictory to the initial goal of an interrogation, which is to reduce the suspect's resistance to confess. There is, however, a clear distinction between a suspect's resistance and his or her will.

Resistance is the suspect's determination to do or not to do something, whereas a will is the ability to choose between doing or not doing something. An interrogator attempts to legally reduce the suspect's determination to maintain his or her deception, but the techniques described herein always leave open the option of not confessing.

The strength of a suspect's resistance against confessing is summarized as follows by one writer: "In ordinary circumstances, a man will not acknowledge the commission of a crime carrying serious penalties, even if he is guilty, and this motive of self-protection will operate a hundred times more strongly to prevent his acknowledging a crime of which he is innocent."(15)

Hypnosis. Hypnosis describes an altered state of consciousness characterized by narrowed attention and an increased openness to suggestion. While there are many methods of hypnotic induction, common factors in all techniques include encouraging the person to focus attention on what is being said; relaxing and feeling tired; letting go and accepting suggestion easily; and using vivid imagination.

Many theorists believe that all hypnosis is really self-hypnosis in that the hypnotist is merely a guide to help the subject achieve a state of awareness that could otherwise be achieved alone.(16)

To become hypnotized, the subject must want to be hypnotized. Of critical importance is that a subject would not do something while hypnotized that he or she would not do if not hypnotized. If a subject would not confess to a crime when not hypnotized, there is no reason to believe that he or she would confess to a crime when hypnotized.

It should be clear that the interrogation procedures described here would not hypnotize a suspect. Unlike the willing patient who has a strong desire to comply with the hypnotic induction, the innocent suspect is actively rejecting the interrogator's suggestions. Even if a suspect voluntarily agreed to be hypnotized, he or she would only confess in the hypnotized state if he or she also would have confessed without hypnosis being used.

A PSYCHOLOGICALLY HEALTHY SUSPECT will not engage in behavior that will jeopardize self-interests. No suspect, innocent or guilty, wants to go to prison or be otherwise punished for violating the law. To elicit a confession from a guilty suspect, therefore, the interrogator must be allowed to use techniques that effectively decrease the suspect's resistance to confess, while at the same time increasing a desire to tell the truth.

Out of necessity, these techniques are psychologically sophisticated. They involve persuasion, insincerity, potential trickery, and deceit, but they do not involve coercion, compulsion, brainwashing, or hypnosis. And they do not remove a suspect's free will.

Proper interrogation techniques allow the suspect to terminate an interrogation at any time by either leaving the interrogation room in a noncustodial situation or by respecting the custodial suspect's invocation of his or her Miranda rights.

If the suspect makes no reasonable attempt to terminate the interrogation, a claim of duress or compulsion is not substantiated. None of the techniques or tactics presented here would cause an innocent person to confess to a crime.

1 The warnings were mandated by the Supreme Court of the United States in Miranda v. United States, 384 US 436, 86 S. Ct. 1602, 1966.

2 Grano, "Selling the Idea to Tell the Truth: The Professional Interrogator and Modern Criminal Law," 84 Michigan Law Review, 1986, pp. 662-690.

3 People v. DeLisle, 183 Mich. App. 713, 455 N.W. 2d 401, 1990.

4 Contrary to public opinion, a properly conducted polygraph examination involves nonaccusatory questioning.

5 See Lilliquist, Understanding and Changing Criminal Behavior, (out of print) 1980, pp. 153-160.

6 A psychological model that describes the relationships between influencing perceived consequences and anxiety during interrogation is presented in Jayne, "The Psychological Principles of Criminal Interrogation," in the appendix to Criminal Interrogations and Confessions, 3rd ed., by Fred E. Inbau, (Baltimore, MD: Williams and Wilkins, 1985), pp. 327-347.

7 The interrogation tactics listed here are discussed in detail in Criminal Interrogations and Confessions.

8 The use of an alternative question during an interrogation is similar in theory to hypothetical questions asked of an expert witness during cross-examination. Because the attorney selects the material facts as he or she sees fit, he or she is presenting a one-sided hypothesis to the expert. The difference between the expert witness and the suspect of an interrogation is that a suspect can refuse to answer the interrogator's question.

9 Ashcraft v. Tennessee, 322 US 143, 64 S. Ct. 921, 1944.

10 The psychiatric diagnosis of obsessive-compulsive behavior describes an individual who engages in unwanted behavior to reduce internal anxiety caused by recurring disturbing thoughts. Among other characteristics, obsessive-compulsive behavior is repetitive, and a suspect's confession should not be considered the product of obsessive-compulsive behavior unless the suspect has established a pattern of repeated false confessions.

11 In truth, the defendant may not know this either. Because perceptions and beliefs are pieced together through various cognitive processes, they are susceptible to motivational incentives that can cause distortions over time and place. As an example, if it is desirable for a father to want to believe that when he was 16 he was much more responsible than his son is at the same age, (even if, at age 16, the father was less responsible than his son) the father cannot be considered as lying when he expresses this belief.

12 Culombe v. Connecticut, 367 US 568, 81 S. Ct. 1860, 1961.

13 R. Gregory, The Oxford Companion to the Mind, (published by Oxford University Press, a subsidiary of Reed Publishing USA, Portsmouth, NH, 1987), p. 446.

14 Brief Amicus Curiae, American Psychological Association, in support of petitioner, March 1986; Colorado v. Connelly, US 107 S. Ct. 515, 1987.

15 C. McCormick, Handbook of the Law of Evidence, 1954, (out of print) p. 226.

16 D. Coon, Introduction to Psychology: Exploration and Application, (St. Paul, MN: West Publishing, 1980), p. 128.

Brian C. Jayne is director of research and development of John E. Reid and Associates, a Chicago firm that specializes in the interview and interrogation of suspected criminal offenders and of employees in the investigation of acts of misconduct. He is also the dean of Reid College in Chicago and an instructor of psychology. Joseph P. Buckley III is president of John E. Reid and Associates. Buckley is coauthor with Fred E. Inbau and John E. Reid of Criminal Interrogations and Confessions. Buckley is a member of ASIS.

The authors wish to express their appreciation to Professor Fred E. Inbau, John Henry Wigmore Professor of Law Emeritus at Northwestern University, for his suggestions and direction in the preparation of this article.
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Author:Jayne, Brian C.; Buckley, Joseph P., III
Publication:Security Management
Date:Oct 1, 1992
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