Law enforcement utilizes highly effective techniques that have the capacity to elicit confessions from innocent persons. The police regularly deceive and manipulate suspects through a variety of methods that are explicitly intended to force an admission. Again and again, anecdotes and research confirm that innocent people can, and with startling regularity do, admit to heinous crimes they did not commit. The Fifth Amendment, and the reading of Miranda rights, in particular, provide some protection for suspects. However, law enforcement has been able to turn Miranda largely to their advantage. As such, the onus is on the suspect to 1) remain silent no matter what the police say, and 2) clearly and unambiguously request counsel.
If you remain calm and invoke your rights, you will be able to ensure the greatest opportunity for a positive legal outcome. If you forgo the protections afforded by the constitution, then you will be subject to the highly effective manipulations of law enforcement professionals. The former option is generally the better choice!
The Methodology and Efficacy of Police Interrogation
On February 4, 1982, a young woman was discovered dead in her home by her live-in boyfriend. The autopsy revealed that the woman had been stabbed multiple times in the neck and back, and sexually assaulted. The police originally suspected a registered sex-offender by the name of Kirk Eaton who was known to live in the area. However, George Allen encountered police by chance while walking a few blocks from the scene of the crime—the police mistook Allen for Eaton and brought him in for questioning. Although the detective assigned to the case eventually realized Allen was not Eaton, he decided to proceed with the interview anyway. Allen, a man with an extensive history of hospitalization for severe schizophrenia, eventually confessed to raping and murdering the victim. He was subsequently convicted without any physical evidence linking him to the crime. George Allen Jr. would ultimately serve more than thirty years in a Missouri state penitentiary before being exonerated by DNA evidence on January 18, 2013. Cases like Mr. Allen’s are not uncommon, and it leads to troubling questions about the methods used by law enforcement and doubts about the overall efficacy of interrogation techniques.
For the past century, scholars and scientists have struggled to explain the prevalence of false confessions in our criminal justice system. Research suggests that a variety of factors produce unreliable confessions; the individual personality of the suspect being interviewed, and the tactics used by the interrogator (such as accusatorial tactics) can combine to lead even an innocent person to confess. In fact, a 2006 study by the Intelligence Science Board concluded that current military and law enforcement interrogation practices lack any scientific validity. While law enforcement has been generally quite slow to adapt to the aforementioned research, more recent public debate regarding “enhanced interrogation techniques” prompted federal, state, and local law enforcement agencies to evaluate their interrogation practices. And in 2009, the Obama administration initiated federally-funded research into productive, evidence-based methods of interrogating suspects. However, law enforcement has been slow to adopt evidence-based interrogation methodologies largely due to their reduced capacity to elicit a confession. Instead, classical interview techniques are still favored by most law enforcement agencies
In the United States, police cannot involuntarily compel a suspect to provide information. Consequently, law enforcement utilizes three primary techniques to elicit information voluntarily: First, the Reid Technique involves analyzing the suspect’s body language in response to questions, and is predicated on the officer’s capacity to read the suspect’s body language. The Reid Technique has been criticized for its inapplicability across cultures (because different cultures display different body language). Second, maximization and minimization are used by officers to magnify the potential of refusing guilt and minimizing the consequences of confessing. And lastly, the Good cop/Bad cop shtick is a tried and true method for building rapport with the suspect, and ultimately eliciting a confession. The technique involves the bad cop building tension and fear, while the good cop provides a sympathetic ear.
Law enforcement interrogation methodologies all involve dishonesty, trickery, and emotional manipulation. Should we really be surprised that false confessions are rather commonplace?
Constitutional Rights v. Law Enforcement
The Fifth Amendment of the U.S. Constitution provides the following protections during police interrogations: 1) The Right to Remain Silent, and 2) The Right to an Attorney.
The Fifth Amendment states that a suspect cannot be compelled to be “a witness against himself.” This means that police cannot force a suspect to offer self-incriminating evidence. However, this protection only applies to statements. While the police cannot compel self-incriminating statements, they can require a suspect to provide a blood or DNA sample. Additionally, the Fifth Amendment provides a right to legal counsel. The Supreme Court ruled in Escobedo v. Illinois that a suspect has the right to refuse questioning until a lawyer is present, and the Supreme Court expanded that protection in Edwards v. Arizona to constrain police from continuing an interrogation after a suspect has invoked their right to counsel. That means that suspects can invoke their right to counsel at any time while in police custody, and questioning must stop until the lawyer arrives. Moreover, Miranda v. Arizona established the requirement for police to inform suspects of their Fifth Amendment rights prior to initiating an interrogation. Absent a voluntary, knowing, and intelligent waiver of Miranda rights, any admission or confession will be excluded from evidence at trial.
Miranda was an innovation in U.S. constitutional law and criminal procedure. Prior to that decision, only a few inconsequential federal cases addressed the issue of police interrogation practices, and none had a practical impact. The Supreme Court stated that standard police interrogation techniques are manipulative, heavy-handed, and oppressive—all of which threaten to overcome the rational decision-making capacity of suspects. Accordingly, Miranda rights are intended to curtail the overwhelming influence of police authority and provide some protection for the suspect. The Nixon administration originally derided Miranda as a victory for the “forces of crime;” however, the decision did not ultimately impede law enforcement in a significant way— and in some ways actually enhanced it! Throughout the mid to late 1970s, electronically recording interrogations became increasingly commonplace in order to establish that Miranda rights had been read. The practice of recording the reading of Miranda rights and the subsequent interview proved to be a boon for prosecutors. Prior to Miranda, the admissibility of confessions was based on a complex weighing and balancing test to determine the “voluntariness” of the confession. Nowadays, courts simply inquire into whether the officer read the rights—if the rights were read, then the confession is generally admissible. Miranda ensures that suspects are informed of their constitutional protections during police interviews, and also provides an incentive for police to record interviews. Overall, Miranda has historically been shown to benefits both suspects and officers.