Criminal Interrogation Techniques on Trial
Jayne, Brian C., Buckley, Joseph P.,, III, Security Management
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. …