ically oriented. As we have stated before, since Chambers v. Florida, this court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconsti tutional inquisition. . . .
In dealing with statements obtained through interrogation, we do not purport to find all confessions
inadmissible. Confessions remain a proper element of law enforcement. Any statement given freely and vol
untarily without any compelling influence is, of course, admissible as evidence. . . . There is no requirement that the police stop a person who enters a police station and states he wishes to confess to a crime, or a per son who calls the police to offer a confession or any other statement he desires to make.
Although there is no requirement that the suspect sign a form to waive his rights, having
the suspect sign an Advice of Rights form indicating that he does waive them prevents him
from later denying he was advised of them. This is the best practice to use, to avoid any
question that the person was properly advised consistent with the legal requirement.
The Court also held that even if a suspect waives his rights and agrees to be interviewed,
he still has the right, at any time he so desires, to stop the interview process and/or request
legal representation. Many law enforcement agencies have added this verbiage to their
waiver forms; however, the court does not require that the suspect be advised of these
rights. It only requires that if the suspect wants to stop, or to have legal counsel, the request
must be honored.
Some courts have held that once a suspect refuses to talk, or requests an attorney, law
enforcement officials cannot later ask the suspect if he has changed his mind and now
desires to speak with them (People v. Randall, 1 Cal. 3d 948, 1970). If the suspect, by his
own volition, requests to speak with law enforcement officers, then it appears he may be
advised of his rights again, and spoken to if he waives them at that time.
In People v. Lyons (18 Cal. PP. 3d 760, 1971), the court held that if a suspect refused
to waive his rights concerning one crime, he could later be asked to waive his rights
concerning a different crime.
Once a suspect has consulted with an attorney, it appears that the police must advise the
attorney if they wish to speak with the suspect. In Tidwell v. Superior Court for Humboldt
County (17 Cal. App. 3d 780, 1971), the police got permission from the suspect to search
his apartment without notifying his attorney, who had already been appointed by the court.
Incriminating evidence that they discovered was ruled inadmissible because the attorney
had not been duly advised.
17. LEGAL CONSIDERATIONS
251
Any evidence obtained from an illegal questioning of a suspect also will be ruled inad-
missible. The courts have held that if the confession is obtained illegally and is therefore
viewed as “poisonous,” then any evidence discovered as a result of it will be considered
“fruits of the poisonous tree” and inadmissible.
In the 1977 case of Oregon v. Mathiason (495 U.S. 492), the court defined custody and clar-
ified when it was required to give a suspect his Miranda warning by stating:
Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by
virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to
everyone whom they question. Nor is the requirement of warnings to be imposed simply because the ques
tioning takes place in the station house, or because the questioned person is one whom the police suspect.
Miranda warnings are required only where there has been such restriction on a person’s freedom as to ren
der him “in custody.” It was that sort of coercive environment to which Miranda by its terms was made
applicable, and to which it is limited.
The court went on to clarify this issue in Yarborough v. Alverado (541 U.S. 652), stating:
Two distinct inquiries are essential to the determination: first what were the circumstances surrounding
the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was
not at liberty to terminate the interrogation and leave.
Most suspects, whether innocent or guilty, seem willing to waive their Miranda rights.
This may be due to their innocence, their perception that even though they are guilty
they will not say anything to indicate their involvement in the crime, their desire to
confess, or their perception that refusal to cooperate would be a sure indication of their
involvement.
There are instances where trickery is used to obtain a confession. The 1969 case of Frazier v.
Cupp (394 U.S. 731) is one of the leading cases dealing with this issue. The defendant was
convicted of murder based on his confession, after he was falsely told that his cousin had
already admitted to the crime. The interrogating officer also offered false sympathy for the
defendant, suggesting that the victim had provoked the attack by making homosexual
advances. The defendant argued on appeal that (among other things) the confession had been
involuntary and should have been excluded. The U.S. Supreme Court stated:
[T]he fact that the police misrepresented the statements that [the defendant’s cousin] had made is, while
relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases
must be decided by viewing the “totality of the circumstances,” and on the facts of this case we can find
no error in the admission of petitioner’s confession.
In the 1963 case of Lynumn v. Illinois (372 U.S. 528), the defendant, who was convicted
on drug charges, was lied to by the investigator and told that state financial aid for her
infant children would be cut off, and her children taken from her, if she did not “cooper-
ate.” The justices in this case ruled that the resulting confession was “not voluntary, but
coerced.”
Courts have come to draw a distinction between two types of lying to suspects: intrinsic
misrepresentations, or those lies that relate to a suspect’s connection to the crime; and
252
17. LEGAL CONSIDERATIONS
extrinsic misrepresentations, or those that have nothing to do with the suspect’s connection
to the crime but attempt to distort his ability to make a rational choice about confessing [2].
The 1992 decision by the Seventh Circuit Court of Appeals in Holland v. McGinnis
clarified this difference. In that case a confession was obtained after investigators falsely
told the defendant that they “had received a Chicago police report indicating that a
witness had seen his vehicle in the alley where the victim had been raped.” The Court
stated:
Such misrepresentations, of course, may cause a suspect to confess, but causation alone does not consti
tute coercion; if it did, all confessions following interrogations would be involuntary because “it can almost always be said that the interrogation caused the confession.” Miller v. Fenton, 796 F.2d 598, 605 (3d Cir.), cert.
denied, 479 U.S. 989 (1986). Thus, the issue is not causation, but the degree of improper coercion, and in this instance the degree was slight. Inflating evidence of Holland’s guilt interfered little, if at all, with his “free
and deliberate choice” of whether to confess, Moran v. Burbine, 475 U.S. 412, 421, 89 L. Ed. 2d 410, 106 S.
Ct. 1135 (1986), for it did not lead him to consider anything beyond his own beliefs regarding his actual guilt or innocence, his moral sense of right and wrong, and his judgment regarding the likelihood that the police
had garnered enough valid evidence linking him to the crime. In other words, the deception did not interject the type of extrinsic considerations that would overcome Holland’s will by distorting an otherwise rational
choice of whether to confess or remain silent.
On June 1, 2010, in a 5 to 4 decision, the U.S. Supreme Court revisited Miranda v. Arizona
in Berghuis, Warden v. Thompkins (560 U.S.
(2010)). The Court decided that the inter-
rogation may continue even after a suspect remains silent after being given Miranda warn-
ings and any statements he makes are admissible unless he has affirmatively stated he
wants to remain silent and/or affirmatively stated that he wanted an attorney present dur-
ing questioning. Just saying he understands his rights does not prevent the continued ques-
tioning by the police. Basically, when considering trickery as part of an interrogation
strategy, you must ensure that what is being done would not cause an innocent person to
give a false confession. Most legal experts agree that telling a suspect you are a member
of the clergy, or their defense lawyer, would be crossing the line. However, telling a suspect
that he will feel better once he tells the truth, or that by telling the truth he will show that he
is cooperating, would not typically be sufficient to render the confession involuntary [2].
It is the interviewer/interrogator’s job to obtain the truth in a legal and ethical manner.
The interviewer/interrogator must separate the innocent from the guilty. He must help
the guilty accept responsibility for their offense and help them move on with their lives.
It is an awesome responsibility that must be fulfilled in a way consistent with the principles
of good interviewing and interrogation techniques.
SUMMARY
• The Fifth Amendment states that no person shall be compelled in a criminal matter to be
a witness against himself.
• A suspect’s constitutional rights are to protect him from threat of an arbitrary and
oppressive federal government, and its agents and officers. A private investigator or
security officer not working for the government is not required to advise a suspect of his
constitutional rights.
SUMMARY
253
• The Supreme Court requires a suspect be advised of his constitutional rights when in the
mind of an “average person” he would believe he is not free to leave: that he is in a
custodial situation.
• Many jurisdictions require their agents and officers to advise suspects of their
constitutional rights anytime they are questioned and have become the focus of
suspicion or anytime the interview becomes accusatory, regardless of whether it is a
custodial situation.
• The interrogator must remember whether “Miranda” has been given or not. If the
suspect is willing to communicate, there is a part of him willing to confess.
References
[1] F.L. Bailey, G.L. Vaughan, Confessions: The Law and Polygraph. Presented at the American Polygraph Associa tion’s Annual Seminar, August 2008.
[2] www.straightdope.com/. . . /what can the police lie about while conducting an interrogation.
C H A P T E R
18
The Integrated Interrogation
Technique
Once the guilty suspect has been identified with reasonable certainty, the next step in the
process is to obtain an admission of guilt. The interviews have borne fruit; the interrogation
begins.
Warren Holmes, a famous polygraphist and former homicide detective from Florida,
once stated that there was a formula for obtaining a confession. He identified it as:
FA þ L ¼ C ðForce of Assertion plus Leverage yields the ConfessionÞ
The FA (Force of Assertion) portion of the equation represents the force of the positive
and convincing statement the interrogator uses to assert his sense that the suspect is guilty.
For example, consider the following opening statement of an interrogation:
“John, I think you may have been involved in this homicide we are investigating.”
This is a pretty weak opening statement! The words think and may have show a lack of
certainty that the suspect is guilty. It may indicate that the interrogator is willing to accept
that the suspect is not guilty. A much stronger assertion would be:
“John, the investigation is completed, and the evidence leaves no doubt you did this, didn’t you?”
L (Leverage) represents real or imagined evidence. It is the weight of the physical or psy-
chological evidence obtained from the Forensic Assessment Interview, polygraph charts,
actual or potential forensic evidence, the testimony of eyewitnesses, and so forth. When
FA and L are strong, the result is usually C (Confession).
Imagine a police officer driving down a street at 1 o’clock in the morning. As he drives
past a home, he observes a man dressed in dark clothing coming out of the window with
a television in his hands. He stops the man, who does not live at the residence, and on
checking with the homeowners, confirms that the television is from the home. What is
the chance that this suspect will not confess? None! The police officer caught the suspect
in the act. The officer’s Force of Assertion will be extremely high. The suspect has the tele-
vision set in his hands; thus, Leverage is extremely high.
Effective Interviewing and Interrogation Techniques
255
# 2011, Elsevier Ltd.
256
18. THE INTEGRATED INTERROGATION TECHNIQUE
The same scenario happens throughout the country on a daily basis in retail security
with shoplifting. A store detective observes a customer select merchandise from a rack
and conceal it on his person. The detective approaches the customer, identifies himself as
security, recovers the concealed merchandise, and escorts the shoplifter to an office where
he attempts to obtain a confession. What is the success rate of confessions in cases like this?
Close to 100%! The store detective observed the act, so force of assertion is high. The mer-
chandise was recovered, so leverage is high.
In addition, the mechanism of internalized guilt works in the interrogator’s favor.
Guilt is an internalized state that begins when we receive the message from our parents
that when we do wrong, the act renders us unlovable. How many times have we
observed parents correcting their children, and heard the children ask, after they were
admonished, “Mommy/Daddy, do you still love me?” As they grow older they no lon-
ger need to be caught by their parents to experience this feeling of unworthiness; the
response becomes internalized. When they know they did something wrong, they psy-
chologically punish themselves; this is guilt. Society reinforces the guilt mechanism by
declaring certain public and private behaviors socially unacceptable and avoiding those
who practice that behavior. Extreme forms of antisocial behavior are greeted with force-
ful rejection and public humiliation.
For many, there is the need to become socia
lly “lovable” again. In that event, there are
only two ways to relieve the guilt – be punished for the wrongdoing to compensate for
the act, or seek forgiveness through confession. However, today guilt is no longer the
almost universal factor it once was. With the breakup of the family structure and altered
social codes, a significant number of suspects have a decreased sense of guilt and thus
less of a need for psychological relief. That notwithstanding, almost every suspect will
have some desire to confess or some need to claim credit for the deed. Predictably, the
fear of punishment will usually counterbalance those desires or needs. However, that
counterbalance can be worked with. If a suspect is willing to be interviewed and inter-
rogated, he is also willing to confess. Perhaps he is 70% against confessing and facing
punishment, and only 30% in favor of confessing. The fact remains that some part of
him is willing to confess. The interrogator’s job is to reduce the fear of punishment
and enhance the desire to confess.
DESIRE TO
CONFESS
FEAR OF
PUNISHMENT
FIGURE 18.1
1. MAKE A FORCEFUL ASSERTION THAT THE SUSPECT IS GUILTY
257
Fear of punishment usually outweighs the desire to confess. The job of the interrogator is
generally to decrease fear of punishment and increase the desire to confess.
The Integrated Interrogation Technique maximizes the interrogator’s ability to obtain a
confession from the guilty suspect. This technique revolves around ten key factors that
are introduced into the conversation repeatedly during the interrogation.
1. MAKE A FORCEFUL ASSERTION THAT THE SUSPECT
IS GUILTY
The interrogator must begin with a firm statement of the suspect’s guilt, expressing to
the suspect that he truly believes he committed the crime, otherwise there is no reason
for him to confess: “John, our investigation is now completed, and there is no question that
you were involved.” At this point the interrogator should briefly pause. (Truthful people
Nathan J Gordon, William L Fleisher Page 37