Nathan J Gordon, William L Fleisher
Page 36
cation and extensive database integration.
In the early 1980s, one of the authors* made a formal suggestion to the U.S. Customs Service that techniques in behavior analysis be part of the training for Customs inspectors to
*William L. Fleisher, special agent, Office of Investigation, U.S. Customs Service.
16. PASSENGER SCREENING WITH VERBAL AND NONVERBAL CUES
243
FIGURE 16.2
enhance their ability to detect smugglers. The suggestion was adopted by the Assistant
Commissioner, Inspection and Control, and the initiative was given to Garnett Fee of that
headquarters division to develop a nationwide training program for all U.S. Customs
inspectors in the art of behavior analysis.
At the request of Mr. Fee, the author developed a training program to “train the
trainers.” Training was conducted at the Port of Miami, and several Customs inspectors
were trained in verbal and nonverbal indicators of deception. Those inspectors trained,
John Ryan, Prospero Ellis, Pierre Hebert, and Gary Heffner, became legendary in the Cus-
toms Service for their acumen in detecting drug smugglers and becoming effective trainers
in interviewing skills. These inspectors and the author took the program nationwide, train-
ing every inspector working airports on the system. In 1984, the Commissioner of Customs,
William van Raab, presented the author with Customs’ Distinguished Service Medal for his
part in this program. In the citation for the award, Commissioner van Raab reported that in
the 7-month period following the training, the program was directly responsible for 8 heroin
seizures totaling 12 pounds; 50 cocaine seizures at 130 pounds; 34 marijuana seizures at 215
pounds; 8 hashish seizures at 57 pounds; 2 opium seizures at 4 pounds; 20 currency sei-
zures at $397,898; and 7 merchandise seizures at $311,084.
The simple elegance of the Customs Behavior Analysis training program was to intro-
duce Customs inspectors to using their innate skills to observe another’s body language
and listen to elicited responses and spontaneous utterances that were indicative of decep-
tion or a threat risk, in order to identify incoming air passengers who were smugglers or
other criminals. Using the same interviewing and observational techniques to identify
244
16. PASSENGER SCREENING WITH VERBAL AND NONVERBAL CUES
FIGURE 16.3
high-risk passengers before they board the airplane would also be an easy task. Remember,
this training would only enhance the detection skills already given to us by nature.
Today, many companies are investing time and energy in developing systems that can –
in a manner of speaking – read passengers’ minds. For example, an Israel-based company,
WeCU Technologies, is working on an airport security system that will use state-of-the-art
technology to assess physiological reactions, establishing cognitive knowledge of certain
symbols or pictures recognizable only by terrorists. This is achieved by having a passenger
look at a screen on which certain symbols or pictures are projected. These images would
be threat specific and only have cognitive meaning for someone involved in or planning
an act of terror. Working on the theory that an individual cannot “not react” when pre-
sented with a significant stimulus, sensors would record slight changes in heart rate, skin
temperature, and so on, not unlike how a modern polygraph instrument works. Those
who react to the terror-specific stimuli would be pulled from the line and given an intense
secondary screening. WeCU is working on more sensitive instrumentation that can be
operated from a distance. The goal is to rapidly screen passengers to speed up the security
process.
The bottom line on effective passenger screening is to use all available tools from inter-
viewing to technology. Do not rely on any single technique. Multilayer the passenger
screening process through observation and interviewing techniques conducted by various
security team members from the baggage sky cap to the boarding agent. Although in this
country “profiling” has become a bad word, we believe that profiling behavior, not appear-
ance, is acceptable and necessary to protect the flying public.
SUMMARY
245
SUMMARY
• To screen passengers, transportation security officials must use proven methods that are
effective and fair.
• The Israeli airline security model has worked for six decades, and passenger interviewing
is an integral part of it.
• Effectively used interviewing and interrogation techniques for passenger screening have
been proven to work.
• At present, there is no practical technological substitute for the observations of a highly
trained interviewer in identifying high-risk passengers.
• It is critical for effective passenger screening that the screeners be well trained in
nonverbal and verbal indicators of a threat.
References
[1] J. Edgar Hoover and the FBI, Gale Research Inc., 1994. Available at: http://www.encyclopedia.com/doc/1G2
3468301936.html.
[2] El Al. Wikipedia. Available at: http://en.wikipedia.org/wiki/El Al.
[3] T. Marshall, Los Angeles Times, April 19 (1986).
[4] R. Ben Veniste, et al., The 9/11 Commission Report. Final Report of the National Commission on Terrorist Attacks Upon the United States, U.S. Government Printing Office, Washington, DC, September 11, 2004.
C H A P T E R
17
Legal Considerations
The primitive view of confessions was that a sane person would not confess to a crime he
did not commit. Of course it was perceived that the confession had to be given freely and
voluntarily.
In the 1783 United Kingdom case of King v. Warickshall (U.K. LDB 1783), the court ruled
that:
a free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the
strongest sense of guilt, and therefore is admitted as proof of a crime to which it refers, but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape
when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected [1].
In 1791, Congress suggested twelve amendments to guarantee “the people” certain
rights against oppression by a strong central government. Ten of these were approved.
These amendments to the Constitution are called the Bill of Rights. The Fourth, Fifth,
and Sixth Amendments play an important role in the admissibility of confessions into a
criminal trial.
The Fourth Amendment covers the scope of search and seizure. The Fifth Amendment
states that no person shall be compelled in a criminal matter to be a witness against himself.
The Sixth Amendment guarantees the accused a speedy and public trial by an impartial
jury and, among other things, the right to counsel.
These were amendments to the Constitution; they were intended to protect the people
from the threat of an arbitrary and oppressive federal government, and its agents and
officers.
The Fourteenth Amendment was added in 1868 and placed some comparative restric-
tions on the states and their agents and officers: no state shall deprive any person of life,
liberty, or property w
ithout due process of law. It is this amendment that has imposed con-
stitutional restrictions on state and local law enforcement officers.
As confessions began to play a major role in our judicial system in convicting indivi-
duals, the courts became concerned as to whether these “confessions” were induced
through physical abuse or mental duress and, thus, were not intelligently and freely
given.
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17. LEGAL CONSIDERATIONS
In 1935, in a North Carolina case, State v. Anderson, the court stated:
Confessions . . . are called voluntary when made neither under the influence of hope or fear, but are
attributable to that love of truth which predominates in the breast of every man, not operated on him by
other motives more powerful with him, and which, it is said, in the perfectly good man can be
countervailed.
The concern about a voluntary and freely given confession was to ensure that the state-
ment of a suspect was valid and that the suspect was not denied the unalienable right
against self-incrimination afforded him by the Fifth Amendment.
In the 1936 case of Brown v. Mississippi (297 U.S. 278), the U.S. Supreme Court reversed a
local court’s guilty verdict against three African American males accused of murder. The
three were found guilty mainly on the grounds of their confessions, which were given after
they were hanged and whipped on more than one occasion. The reversal was argued only
on the narrow grounds that the defendants had been denied due process of law.
In 1940, 4 years after the Brown case, the U.S. Supreme Court heard another case, this one
dealing with psychological rather than physical abuse. In Chambers v. Florida (309 U.S. 478),
four young African American males were convicted of murder, again based mainly on their
confessions. These men were held isolated in local jails without any contact with the outside
world. They were questioned repeatedly for 7 straight days before they confessed.
The Supreme Court reversed the decision of the lower court on the grounds that the con-
fessions were coerced and, therefore, the defendants had been denied due process of law.
The justices felt that continued questioning in an unfriendly environment, without any con-
tact with the outside world, was sufficient pressure to make the confessions involuntary.
In the 1943 case of McNabb v. United States, the U.S. Supreme Court decided that a con-
fession could be excluded from evidence if there was an unusual delay between the time
of arrest and the time of arraignment. The details of the McNabb case are as follows. The
three McNabb brothers were arrested for killing a U.S. Alcohol Tax Unit officer. They
weren’t arraigned until 6 days after their arrest. During this time “legal” confessions were
obtained. The defense appealed on the grounds of self-incrimination, but the Supreme
Court did not consider this argument. Instead, they focused on the delay from the time of
arrest to the time of arraignment. The Court stated:
Legislation requiring that the police must with reasonable promptness show legal cause for detaining
arrested persons, constitutes an important safeguard, not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self confident
society. This procedural requirement checks those who would resort to those reprehensible practices known as the “third degree,” which, though universally rejected as indefensible, still find their way into use.
Interestingly, the McNabb ruling only applied to federal officers and was not applied to
state or local law enforcement agencies.
In 1964, the decision in Escobedo v. Illinois (378 U.S. 478) played a major role in reshaping
the requirements for a confession to be admissible. Escobedo was arrested for killing his
brother-in-law. He refused to make any statements to the police and was released the same
day, after his attorney obtained a writ of habeas corpus. The police then received additional
information and rearrested Escobedo. Escobedo requested to see his attorney. His attorney
17. LEGAL CONSIDERATIONS
249
arrived at the police station and requested to see Escobedo. Both requests were refused.
Throughout his interrogation, Escobedo made additional requests to consult with his attor-
ney. These requests were also denied. Escobedo eventually made damaging statements that
were used against him at his trial.
Escobedo was found guilty of the murder; shortly thereafter, his attorney appealed on
the grounds that Escobedo was denied his right to counsel as provided under the Sixth
Amendment. The State Supreme Court ruled that the right to an attorney, as provided by
the Sixth Amendment, referred to legal representation at the time of the trial, not at the time
of arrest.
The U.S. Supreme Court disagreed and held that the right to counsel begins at the
moment an “investigation begins to focus on a particular suspect.” It was at this point that
a suspect had to be advised he had the right to remain silent and a right to speak to his
attorney if he so desired, or any of his statements would be inadmissible. Because Escobedo
had been denied these rights, his conviction was reversed.
Two years later, in 1966, the Court set solid guidelines and gave the suspect greater rights
in Miranda v. Arizona (384 U.S. 436). Miranda was only one of four cases that were actually
being viewed by the Supreme Court at the time; however, the ruling is known as the
“Miranda rule.” In this case the U.S. Supreme Court held that for a confession to be admissi-
ble, officers had to abide by a specific set of rules. These rules dictate that if a suspect is in
custody, or deprived of his freedom of movement in any way, he must be advised that:
1. He has the right to remain silent.
2. If he gives up this right to remain silent, anything that he says can and will be used as
evidence against him in a court of law.
3. He has the right to consult an attorney and to have that attorney present during the
police/law enforcement interrogation; and
4. If he is unable to afford an attorney, he is entitled to have an attorney appointed to
represent him, free of charge, during the course of the interrogation.
In the opinion, Chief Justice Warren elaborated on these guidelines:
The cases before us raise questions which go to the roots of our concepts of American criminal jurispru
dence: the restraints society must observe consistent with the Federal Constitution in prosecuting indivi
duals for crime. More specifically, we deal with the admissibility of statements obtained from an
individual who is subject to custodial police interrogation and the necessity for procedures which assure
that the individual is accorded his privilege under the Fifth Amendment of the Constitution not to be com
pelled to incriminate himself.
We dealt with certain phases of this problem recently in Escobedo v. Illinois. There, as in the four cases
before us, law enforcement officials took the defendant into custody and interrogated him in a police station for the purpose of obtaining a confession. The police did not effectively advise him of his right to remain
silent or his right to consult with his attorney
. Rather, they confronted him with an alleged accomplice
who accused him of having perpetrated a murder. When the defendant denied the accusation and said
“I didn’t shoot Manuel, you did it,” they handcuffed him and took him to an interrogation room. There, while handcuffed and standing, he was questioned for four hours until he confessed. During this interrogation, the police denied his request to speak to his attorney, and they prevented his retained attorney, who had come to the police station, from consulting with him. At his trial, the State, over his objection, introduced the confession against him. We held that the statements thus made were constitutionally inadmissible. . . .
The constitutional issue we decide in each of these cases is the admissibility of statements obtained from
a defendant questioned while in custody and deprived of his freedom of action. In each, the defendant was
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17. LEGAL CONSIDERATIONS
questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from
the outside world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process. In all cases, the questioning elicited oral admissions, and in three of them, signed statements as well which were admitted at their trials. They all thus share salient
features incommunicado interrogation of individuals in a police dominated atmosphere, resulting in self
incriminating statements without full warnings of constitutional rights. An understanding of the nature
and setting of this in custody interrogation is essential to our decisions here today. The difficulty in depict ing what transpires at such interrogations stems from the fact that in this country they have largely taken
place incommunicado. From extensive factual studies undertaken in the early 1930s, including the famous
Wickersham Report to Congress by a Presidential Commission, it is clear that police violence and the “third
degree” flourished at that time. . . .
By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant way. This is what
we meant in Escobedo when we spoke of an investigation which had focused on the accused. . . .
Again we stress that the modern practice of in custody interrogation is psychologically rather than phys