EXAMINING POLICE INTERROGATION TECHNIQUES: The accusation and the theme

This blog series discusses the interrogation rubric introduced in Criminal Interrogation and Confessions (1986) by Inbau and Reid which is the basis for law enforcement protocol nationwide. The first two steps are discussed in this Blog.
Step One of the interrogation is called the direct positive confrontation. The suspect is informed in unequivocal language that evidence clearly indicates that he committed a crime and in support of this assertion, real or fictional evidence is proffered. To persuade a guilty suspect to confess, the investigator exaggerates his confidence in the suspect’s guilt. If the suspect fails to confess, the suspect is henceforth treated as a liar.
After the initial accusation, the investigator must make a “transition statement.” An example of a transition statement is: “While there is no doubt that you did this, what I need to establish are the circumstances which led up to this happening.” The transition statement is psychologically integral to the interrogation because it offers a reason for the interrogation other than to elicit a confession. Note that the transition statement assumes that the suspect’s guilt is no longer at issue. With this more congenial transition statement on the heels of the confrontational initial accusatory statement, the investigator gives the suspect the opportunity to elaborate for the first time since the interrogation commenced with the expectation that the suspect will take the opportunity to shift responsibility away from him and towards external facts or persons as being responsible for the crime.
Step Two of the interrogation process is theme development. A theme is a monologue in which the investigator offers and reinforces existing moral and psychological justifications for the suspect’s criminal behavior. In order to match the correct theme to the suspect, the investigator must determine whether the suspect is emotional or non-emotional.
If the suspect is emotional, the technique known as “minimization” is used. Here, the investigator mitigates the offense and downplays its seriousness. The investigator begins building rapport with the suspect by offering empathy, moral justification and sympathy to the suspect’s predicament and assists the suspect in rationalizing and excusing his criminal behavior. Blame is placed on the victim, accomplice or the existence of extenuating circumstances and the seriousness of the crime is deemphasized. This is an example of a minimization theme in a burglary interrogation:
“Bob, I believe you went into that house out of desperation because of your financial situation. I don’t think you are a common criminal or a bad person. I think you tried hard to pay your bills and feed your family but when you lost your job you got further and further in debt. Because you are a good husband and father, you reached the end of your rope when your daughter got sick and needed to go to the doctor. In a moment of desperation and on the spur of the moment, you broke the window of the house on Elm Street and took some jewelry to sell. It is obvious that those folks have more money than they know what to do with and they even left their back door unlocked.”
In the example, the crime is minimized and the break in is morally justified as a reasonable act in the face of financial difficulties.
Alternatively, if the suspect is non-emotional, “maximization” of the evidence, crime or severity of punishment is utilized. The investigator exaggerates the strength of evidence against the suspect and magnitude of charges. The interrogator tries to scare the suspect into confessing by making false claims of the strength of the evidence and exaggerating the seriousness of the offense. Depending on the jurisdiction and the extent to which police are able to deceive the suspect, an investigator may stage an eyewitness identification or fabricate a lie detector test.
In the next installment, dealing with denials will be discussed.

EXAMINING POLICE INTERROGATION TECHNIQUES: defining “interrogation”

  • Interrogate : to ask (someone) questions in a thorough and often forceful way. (Merriam-Webster dictionary)

This blog series is designed to expose and explain the coercive nature of the police interrogation known as the Reid Technique as described in Criminal Interrogation and Confessions, by Fred E. Inbau and John E. Reid. This technique has become the foundation for police interrogation education and training. In the Netflix series “The Making of a Murderer,” this method is exemplified by the interrogation of Brendan Dassey.

As a criminal defense attorney and the product of years of network television dramas, I always knew that speaking to the police without counsel was fraught with danger yet a huge percentage of my clients spoke to the police when invited to do so. Why? Because they confused an “interview” with an “interrogation” and erroneously believed that the police were interested in what they had to say. Additionally, people speak to the police because they believe their situation will improve if they do so. They believe that the police will accept their information and either release them or stop investigating them.  The suspect believes he is being “interviewed” when in fact; he is being accused and “interrogated.” What is this fundamental difference?

An interview is a non-accusatory, unstructured fact-finding conversation typically conducted in the beginning of an investigation and can occur anywhere. The questioner is trying to collect investigative and behavioral information in order to form an opinion as to who their suspect is and how the crime occurred. Investigative information is obtained by asking questions which will permit the interviewee to give detailed answers and even volunteer information. The investigator will take notes and ask follow-up questions. In the case of Brendan Dassey, a question like “What do you know about what happened to Teresa Halbach?” is an interview question; it invites a conversation.

Contrast this type of question with “Brendan, there is absolutely no doubt that you were involved in Teresa Halbach’s murder.” Here, the Reid method brands the suspect as “deceptive” and the police forcefully advise the suspect that the investigator is absolutely certain of his guilt and possesses evidence in support of this opinion. This may be true or not. The accusatory statement must show a strong level of confidence and serves to forestall any attempt by the suspect to deny knowledge or involvement in the crime.

Perhaps most illuminating is the language of Mr. Reid regarding the taking of notes:

“The investigator should not take any notes until after the suspect has told the truth and is fully committed to that position. Premature note-taking during an interrogation serves as a reminder to the suspect of the incriminating nature of his statements and can therefore inhibit further admissions against self-interest. Only after the suspect has fully confessed, and perhaps after the confession has been witnessed by another investigator, should written notes be made documenting the details of the confession.”

Finally, the interrogation must be conducted in a controlled environment. The room must be private, free of external distraction with a door that can be closed. The room details are specific. The room should be 10’x10’ space and the distance between the chairs should be 4’-5’ away from each other. There should be no barriers between the suspect and the investigator. A desk or table offers a psychological shield behind which a deceptive suspect will hide. (Creating A Temporary Interview Room, PoliceLink.)

When given the opportunity to be silent, take it. You have no obligation to EVER speak to the police and you should never do so without an attorney present. It isn’t a fair fight and in an interrogation, law enforcement’s goal is to extract an admission or confession not to listen to an explanation. The next installment of this series discusses the psychological underpinnings of the Reid method and the type of coercion employed.

EXAMINING POLICE INTERROGATION TECHNIQUES: an Introduction

In listening to the discussions of the Netflix documentary, “The Making of a Murderer,” an overwhelming majority of people mention the confession of the 16 year old suspect Brandon Dassey as being particularly disconcerting. Mr. Dassey, was a high school boy with an IQ in the 70’s when he confessed to participating in a sexual assault, kidnapping and murder. He made multiple confessions and recanted the confessions each time.

The combination of his tender age and his borderline mentally retarded/developmentally disabled cognitive abilities made him particularly vulnerable to interrogation techniques employed by an investigator and police. For those who are not familiar with interrogation techniques used against Mr. Dassey, one needs only to study the nine step Reid Technique espoused in Criminal Interrogation and Confessions by Inbau, Reid and Buckley (1986). This book is the authoritative text as to how to obtain a confession. Law enforcement in the United States has embraced this procedure and believe that a truly innocent individual will be able to withstand the psychological trickery and therefore if a confession is obtained, it must be the product of a guilty individual.

In order to understand the psychological underpinnings of this nine step approach one must realize that everything from a remote and quiet interrogation room, the placement of chairs, use of a desk, the wearing of civilian clothing etc. is all designed to increase tension and maximize the police officer’s control. The interrogation techniques are aimed at breaking down denials and resistance and thereby increasing the likelihood of a confession. But is the confession accurate?

In subsequent installments of this confession blog series, I will discuss in detail the Reid Technique and the psychological manipulations utilized, why innocent people confess to crimes they did not commit and the dangers inherent in confessions obtained using this technique.

JUST BECAUSE YOU SELL DRUGS DOESN’T MEAN THE POLICE CAN SEARCH YOUR HOUSE…IN NC

In State of North Carolina v. Allman (COA 15-40, January 5, 2016), the Appellate Court, the court ruled that the police could not search a house where known narcotic sellers lived if no facts were presented in the search warrant affidavit that drugs were expected to be found at the residence. Just because known sellers lived there, if there were no observations linking the house to narcotic sales, they could not search it.

Furthermore, just because the police said that probable cause existed, without actual facts alleged in the affidavit, just sayin’ it did not make it so. Also, the warrant allegation stating that two occupants of the house were engaged in drug trafficking did not translate into a natural and reasonable inference that drugs were possessed, sold or manufactured at the house.

Now, the law in NC is different from the federal law. The federal laws permit the inference that “in the case of drug dealers, evidence is likely to be found where the dealers live.”

WITHDRAWL OF CONSENT TO SEARCH: NO MEANS NO

THE LAW: In U.S. v. Patiutka, the US Court of Appeal for the Fourth Circuit ruled that when a motorist gives consent to a vehicle search during a traffic stop, that consent can be withdrawn. When the police officers ignored Mr. Patiutka’s request to cease the search, the evidence seized was suppressed. The court ruled that since consent was the only basis for the search, when the consent was withdrawn, the police officer’s continued search was illegal.

THE LESSON: The motorist has the right and the power not to consent. It is critical to not make the police officer’s goal of building a case against you easier. Never consent to anything: never agree to give the police the right to search and never provide them with information prior to consulting with an attorney. If by some reason you temporarily forget this advice, withdraw consent immediately after regaining your senses. Now that police encounters are often recorded with dashcams and chest mounted cameras, the video tape evidence is a much more accurate account of whether consent was given and the scope of the consent. Know to say “no.”

 

U.S .v. Patiutka (US Court of Appeals, Fourth Circuit, 10/23/2015)

 

Commercial social networking websites are off limits to registered sex offenders

I was the trial lawyer in this case in 2010 and I moved to dismiss the case alleging that N.C. Gen. Stat. 14-202.5 which forbids the accessing of a commercial social networking web site by a registered sex offender was unconstitutional. The Court of Appeals agreed with me and ruled that the statute violated the First Amendment and was unconstitutional on its face and as applied. However, last week the NC Supreme Court reversed, holding that section 14-202.5 was constitutional and was not unconstitutionally overbroad or vague.

This law prevents one from having a Facebook page or accessing other social network sites where minors under 18 years of age are permitted. The next appeal will be in federal court but until the NCSC decision is reversed, persons on the sex offender registry must stay off sites where minors may be members.

State v. Packingham, Docket: 366PA13, Opinion Date: November 6, 2015

REVENGE PORN: POSTING INTIMATE IMAGES MEANT FOR PRIVATE VIEWING IS A FELONY IN N.C.

Your longtime girlfriend hooks up with your roommate and you are livid. In a moment of anger and heartbreak, you post a graphic video clip of the sex tape you and she made, label it “My Ex: the Back-Stabbing Bitch” and post it online.  This rash action can result in a civil and criminal case, confiscation of your phone and computer and arrest under the new “Revenge Porn” law. Posting “Revenge Porn” online will be a felony for adults and a misdemeanor for those under 18 years of age as of December 1, 2015 in the state of North Carolina.

Revenge Porn refers to the posting of intimate images (breasts with nipple visible, male and female genitalia/pubic area and anal area) for the purposes of harassment or humiliation when the poster of the material knows that the images were disclosed in the context of a personal relationship and with a reasonable expectation of privacy.

A “personal relationship” is defined as: current or former spouses; persons of opposite sex who live together or have lived together; persons who have a child in common; current or former household members and persons of the opposite sex who are in a dating relationship or have been in a dating relationship. For purposes of this subdivision, a dating relationship is one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship. (NCGS 50B‑1(b).)

All the following elements must be proven:

“(1)     The person knowingly discloses an image of another person with the intent to do either of the following:

a. Coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

b. Cause others to coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

(2)      The depicted person is identifiable from the disclosed image itself or information offered in connection with the image.

(3)      The depicted person’s intimate parts are exposed or the depicted person is engaged in sexual conduct in the disclosed image.

(4)      The person discloses the image without the affirmative consent of the depicted person.

(5)     The person discloses the image under circumstances such that the person knew or should have known that the depicted person had a reasonable expectation of privacy.” (NCGS§ 14‑190.5A)

This is a complicated law and defenses exist under the First Amendment, statutory exceptions and qualifiers. Please contact me to discuss the specifics of your case.

Supreme Court rules that threats posted on Facebook not a crime if just a rant

Supporters of free speech on social media won a big victory when the US Supreme Court ruled on June 1, 2015, that a federal law which prosecuted a man for making statements on Facebook, that a reasonable person would have viewed as threatening, was unconstitutional.
A man posted the following on Facebook, “Did you know that it’s illegal for me to say I want to kill my wife?” In another, he wrote he would “not rest until your body is a mess, sealed in blood and dying from all the little cuts.” He also posted that he was about to “pull my knife [and] slit her throat.” He was convicted when a jury concluded that a reasonable person would have regarded the posts as threats.
Chief Justice Roberts stated that because the man thought that his posts were “therapeutic rants,” he did not have an “awareness of wrongdoing.” The defendant had posted disclaimers on Facebook stating that he was exercising his right to free speech and was inspired by rap lyrics. Justice Roberts stated that it was an error for the trial judge to permit the jury to convict the defendant based only on how his posts would be viewed by a reasonable person; the defendant had to be aware that his rants were true threats. The use of the words could not constitute a crime if the speaker’s intended meaning was not considered.
This ruling is important because even if a reasonable person would view the speech as a threat, if the speaker did not intend it to be a threat, it is not a crime. A defendant can be convicted only if he “transmits a communication for the purpose of issuing a threat or with the knowledge that the communication will be viewed as a threat.”
For our purposes, if a speech based criminal charge is alleged, the speaker’s intent is controlling. Relevant to any defense of such a charge is an in depth analysis of the specific facts and circumstances surrounding the current posts and the speaker’s belief as to the purpose of the speech.

Killing Rap and Artistic License in Criminal Court

In the New York Times article, “Acquitted of Murder, Rapper Is Convicted on Weapon Charge” Lorne Manly discussed the recent new assault on the First Amendment. Currently, prosecutors are trying to introduce rap lyrics as confession evidence in pending criminal trials. Their argument is that merely setting the confession to music or in the form of a rap does not detract from its incriminating nature. Furthermore, courts are admitting this evidence.
What ever happened to artistic license? When Johnny Cash created his alter ego, an inmate in Folsom prison who had “shot a man in Reno just to watch him die,” No police officers began to comb their cold case files for an unsolved homicide in Reno. People understood the concept of artistic license.
This development could be the beginning of the end for rap. What do rap artists rap about? Not sunshine and rainbows but life observed: drugs, guns, gangs, shootings, police harassment etc. Consequently, if police and prosecutors can use the lyrics to criminally prosecute, the chilling effect on the desire to write and perform a song or rap is enormous. Why risk the harassment, possible incarceration and legal proceedings in order to express oneself? If that is not a violation of free speech, what is?