A criminal interrogation is an exercise in persuasion, the goal of which is to obtain truthful information. An interview may evolve into an interrogation if the interviewee is perceived as being unwilling to offer the truth. During an interview a person is questioned about his or her knowledge of a crime that has been committed. The purpose is to gather information. The interviewee may be a victim, a witness, or someone who can provide details regarding the incident. The subject questioned during an interview is assessed by the interviewer for credibility through objective nonaccusatory conversion. An interview typically is conducted during the early stages of an investigation in a variety of environments.
An interrogation is different from an interview in many ways. Often the primary difference is in the perception of the interviewer. A change from interviewing to interrogation is evidenced by a change from the nonaccusatory approach to one that is accusatory. Often occurring in a controlled environment, an interrogation involves eliciting information from a suspect who is perceived as unwilling to admit his or her role in a crime or it may involve an individual with reason to hide the truth. Statements are sometimes asserted by the interrogator rather than posed in the form of questions.
Sought by the interrogator is a confession or admission regarding participation in or knowledge of the crime. A confession is a statement made by a suspect disclosing guilt of the crime and excluding the possibility of a reasonable inference to the contrary. A confession is not limited to words, but may also include the demeanor, conduct, and acts of the person charged with a crime. For example, in People v. Balidi (1974) the defendant showed the interrogators how he had committed the murder of a young girl by acting out the manner in which he stabbed her.
An admission is an acknowledgment of conduct, containing only facts from which guilt may or may not be inferred. The statement of admission may be a word, act, conduct, or any other type of information that infers guilt. Information about the suspect and his or her role or relationship to the crime, the victim, or the place of the offense may be part of the admission. Because the courts do not differentiate between degrees of incrimination, no distinction is drawn between confessions and admissions for purposes of their use as evidence against the individual in criminal court.
The law governing interrogation methods is not specified in any one place; criminal interrogations are guided by evolving standards of acceptable practices. Constitutional law, federal and state statutes, and Anglo-American tradition blend together with a current emphasis on the Fifth Amendment against self-incrimination, the Sixth Amendment guarantee of the right to counsel, and the Fourteenth Amendment guarantee of due process.
The controversy surrounding interrogation involves the methods that are used to extract a confession from the suspect. Early common law allowed an admission or confession as evidence of guilt regardless of it being the product of force or duress. Rather than conducting an investigation to establish guilt, enforcement officers resorted to torture to extract a confession from the accused during an interrogation. Isolated attempts to prohibit torture as an interrogation method are documented in English jurisprudence as early as 1628 according to the U.S. Supreme Court in Bram v. United States (1897).
Practices of torture as an interrogation method eventually led to the development of rules on the admissibility of confessions in the late eighteenth century. The common law rule excluded coerced confessions from being admitted at trial due the unreliability of evidence that was the product of torture. In Bram (1897) the Court incorporated the common law rule with the requirement in the Fifth Amendment, which prohibited compelling an individual to give witness against himself, as the standard for judging the admissibility of confessions.
The common law rule was abandoned for the free and voluntary rule stated in American jurisprudence during the early twentieth century. It required that statements must be freely and voluntarily made, without duress, fear, or compulsion, and with knowledge of the consequences of the confession. Articulated in People v. Fox (1926), the rule required that confessions of the accused would be voluntary only when they were made of free will without any threat or harm or by promise or inducement or reward. Torture as a means to extract confessions was expressly denounced in Brown v. Mississippi (1937). Using a totality of the circumstances test, the Court in Brown concluded that repeated whippings of the suspect produced a coerced statement that could not be used against him in court.
The U.S. Supreme Court through its decision in Miranda v. Arizona (1966) has defined interrogation as the 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.
False confessions fuel the debate over criminal interrogation practices. A false confession is a written or oral statement acknowledging guilt, made by someone who did not commit the crime. False confessions are known to occur in rare circumstances, although there is no existing estimate on the numbers of persons who have provided false confessions. In cases of proven false confessions, a common factor was a lengthy interrogation of the suspect.
People may voluntarily give a false confession due to a pathological desire for notoriety; a conscious or unconscious need to relieve guilt over prior wrongdoings; an inability to distinguish fact from fantasy; and a desire to aid and protect the real criminal. Individuals may offer false confessions without any external pressure from the police. These people simply turn themselves in to the authorities claiming they have committed a crime.
False confessions may occur when the suspect tries to escape a tough situation, avoid an explicit or implied threat, or to gain a promised or implied reward. False confessions may also result from the physical or psychological pressures of the interrogation process. Because the suspect perceives immediate gains that outweigh the long-term consequences, this person will confess despite knowing that he did not commit the crime. Persons who are particularly vulnerable are those who are young, tired, confused, or suggestible and those exposed to false information.
Critics denounce police procedures involving the observation of the behavior of suspects as a way to select someone for more intensive interrogation tactics. Excessive focus on an individual because of a hunch or a lack of eye contact narrows the police vision. The problem may be overcome by following the facts of the case, investigating all leads possible, and interviewing all suspects. One of the best times to read suspect behavior is during the establishment of rapport. After that point behavioral indicators should be carefully interpreted within the entire context of the interrogation and not as specific indicators of guilt. This is particularly true when interrogating persons with mental illness, retardation, or personality disorders.
Some individuals are particularly susceptible to police interrogation techniques that may lead to a false confession. Examples are youthfulness, low or borderline IQ, mental handicap, psychological inadequacy, recent bereavement, language barrier, alcohol or other drug withdrawal, illiteracy, fatigue, or inexperience with the criminal justice system. A method to overcome the charge of advantage over a suspect is achieved through a background investigation on questionable suspects prior to the interrogation. Placing the vulnerability in context at the beginning of the interrogation provides an opportunity to understand the limitations of the suspect.
Police officers themselves may inadvertently cause false compliant confessions by contamination. Contamination of confessions may occur when police officers use questions that provide crime scene information about which the suspect would not otherwise have knowledge. Using crime scene photos may amplify this flaw and educate the suspect about the crime. The use of open-ended questions and obtaining narrative responses from the suspect are helpful for reducing the chance of contamination.
To avoid the controversies surrounding police interrogations, there is a trend to require that interrogations be electronically recorded. Illinois, Maine, and the District of Columbia became the first states to require by statute that electronic recording be used in custodial interrogations in homicide investigations. State courts are beginning to express a preference that interrogations be recorded whenever practicable in custodial interrogations or interviews at a place of detention. Serious or major felony cases in addition to DUI, child abuse, and domestic violence investigations are the common crimes that would be recorded. The manner in which the recordings take place vary among states; many allow covert recording with the suspects unaware that they are being videotaped. Massachusetts and Washington are among the few two-party consent states that do not make an exception for police custodial interviews.
Lawful Interrogation Practices
The importance of interrogation as part of the investigatory process is a well-established fact. The Supreme Court in Bruton v. U.S. (1968) recognized that the suspect’s own confession lawfully obtained may be the most damaging evidence that can be admitted against him.
In order for an interrogation to be conducted lawfully, the opportunity to interrogate a suspect must be legally obtained. Additionally, there must be compliance with requirements for warnings of constitutional rights to a custodial suspect. Finally, there must be an absence of force or threat of force during the interrogation. The U.S. Constitution and the Bill of Rights protect citizens from actions of government officials and their agents, but not from other citizens. Evidence that is obtained from the interrogation of one citizen by another citizen is not held to the same standard as an interrogation by a police officer.
An absence of police misconduct is necessary to obtain the opportunity to interrogate lawfully. An example of police misconduct within this context would be the entering of a home without consent or a valid warrant for the purpose of extracting a suspect for interrogation.
The second requirement for a lawful interrogation is that police must be in compliance with the requirements for the warnings of constitutional rights to a custodial suspect. Conformity requires an understanding of the conditions that indicate a custodial versus a noncustodial interrogation.
A noncustodial interrogation takes place when the suspect being questioned is not in police custody or under arrest. The suspect must be fully aware that he or she is free to leave at any time. This awareness may be based in part on the location of the interrogation, the attitude of the interrogator, and follow-through by not arresting the suspect at the time of the interrogation. Miranda warnings are not required if the suspect is not in custody, but must be provided if the situation changes to custodial. A noncustodial interrogation is not an option after the individual has been arraigned in court on the crimes under investigation or asks to speak to an attorney.
The custodial interrogation occurs when the suspect is under arrest or is not free to leave because arrest is impending. The Miranda warnings are necessary prior to questioning the suspect in custody. The offender must understand his or her rights and voluntarily waive them. A knowing waiver of rights is compromised if the individual has a mental disability, cannot read or write, or is under the influence of alcohol or drugs. It is the responsibility of the interrogator to assess the ability of the suspect to understand his or her rights and make a voluntary waiver. An individual may not be coerced or forced to give up his or her rights. There is no requirement that Miranda rights be given verbatim or that a waiver be made in writing. Typically police department policy dictates the manner in which these rights are given to the suspect and the method of documenting that waiver. The waiver of rights can be revoked by the suspect at any time. Four out of five suspects who are given rights per Miranda will waive them and submit to questioning (Leo and White 1999). Neither the subsequent charging nor the severity of punishment is affected by a waiver, although case resolution through plea bargaining is increased (Leo 1996).
The third requirement for a lawful interrogation is that there must be an absence of force or threat of force after the initial waiver of rights and during the interrogation. Factors surrounding the interrogation, or the totality of the circumstances, will determine whether physical or psychological pressures unduly influenced the accused to make a statement. A promise of leniency will typically nullify a confession. Small deceptions may be used by the police during interrogations according to the ruling in United States v. Guerrero (1988). In the more recent decision of United States v. Mendoza-Cecelia (1992), the U.S. Court of Appeals ruled that isolated incidents of deception usually do not invalidate the free waiver of the suspect and that police may use some psychological tactics in interrogating a suspect. Threats to arrest members of a suspect’s family may cause an involuntary confession. The individual factors that the court will look at in determining if the process was coercive are similar to those considered coercive in obtaining a waiver. The federal courts have stated a preference that a person under arrest be brought to court for arraignment without unnecessary delay in order for a confession to be admissible against him. This requirement aimed at addressing incommunicado interrogation and coerced confessions is known as the McNabb-Mallory doctrine. The Court has never imposed the rule on the states nor did it set a specific time after which a confession would be invalid. Congress in 1968 legislated to set a six-hour period for interrogation following arrest before the suspect must be presented to court as part of the Omnibus Crime Control and Safe Streets Act (82 Stat. 210, 18 U.S.C. Sec. 3501(c)). Some states have adopted the rule voluntarily.
Police officers are successful in obtaining a confession or admission in the vast majority of interrogations attempted (50% to 75%). Prior to conducting an interrogation the investigator prepares by interviewing the victim and witnesses and reviewing the evidence collected in the case. The collection of background information on the suspect including his or her criminal history is an essential aspect of preparation. The investigator makes the determination on the location of the interrogation and the person best suited to conduct the questioning.
Experts themselves do not agree on the best method for conducting criminal interrogations. A common approach involves forceful claims by the interrogator that the suspect is guilty without giving him or her opportunity to deny the assertion. Other methods are based on the level of guilt that the suspect experiences. A third approach involves the establishment of a relationship between the suspect and interrogator that would facilitate the flow of information to the interrogator. The top four interrogation tactics that were most frequently observed in a study of 182 police interrogations (Leo 1996) are (1) an appeal to the suspect’s self-interest (88%), (2) confronting the suspect with existing evidence of guilt (85%), (3) undermining the suspect’s confidence in his or her denials (43%), and (4) identifying contradictions in the suspect’s alibi or story (42%).