07/01/2009Investigators Tip: July-August 2009
To date, the innocence project has freed in excess of 200 individuals from prison based on DNA evidence. These innocent defendants were found guilty of serious felonies such as murder and rape. Furthermore, about twenty percent of them confessed to committing the crime either to the police during an interrogation, or to a judge as a result of a plea bargain with the prosecutor. What causes innocent people to confess to crimes they did not commit?
Motives For False Confessions
06/20/2009New Canadian column - Relationship between Polygraph, Right to Counsel, and Confessions
I. The polygraph paradox

A polygraph test is both part of the interrogation process and a separate, specialized interrogation strategy. In some investigations, it is the entire interrogation. In others, the polygraph test is one stage of a questioning pathway.

Polygraph tests are usually scheduled when only mere suspicion connects the suspect to the crime. The accused attends the police station by consent as a suspect, not under arrest. Although the right to counsel is required by law only after a person is detained or arrested, suspects consenting to a polygraph test are usually informed of the right to counsel before the test even though this is not required by law.

The inadmissibility of polygraph test results, combined with the consent requirement form a complex relationship between the test and confession admissibility. A crucial part of this complicated relationship is the right to counsel. In most cases involving a polygraph test, where a confession is obtained, the accused’s status changes. After a confession is made, the officer’s belief changes to reasonable grounds, changing the accused person’s status from a voluntary visitor to an arrested person.

The question becomes, “Is the original right to counsel before the confession sufficient or does the right to counsel have to repeated after the confession?”
Click here for the complete story
06/01/2009Police did not coerce defendant's incriminating statements by conducting fake polygraph test in response to defendant's demands for examination (Sims, Acting P.J.)
People v. Mays C.A. 3rd; May 8, 2009; C057099

In their opinion the court stated "It is well established, the court noted, that a confession is involuntary if it results from coercive policy activity, the issue being whether the defendant's will was overborne. Thus police deception during an interrogation does not necessarily invalidate incriminating statements. A psychological ploy is prohibited only when, in light of all the circumstances, it is so coercive that it tends to result in a statement that is both involuntary and unreliable.

Here, the deception was a mock polygraph. The use of a mock polygraph, the court of appeal concluded, was not likely to produce a false confession. Mays may have believed that polygraphs were perfectly accurate, as he testified, but that was not a belief induced by the police.

Further, the trickery was not particularly coercive because, even after he saw the fake test results, Mays continued to deny involvement in the crime. Instead, he simply admitted being present at the scene wearing particular clothes. Other evidence gave that admission weight, namely the surveillance photo and other witness testimony identifying the shooter as a male dressed as Mays admitted he was. Therefore, the court said, May's ability to admit being present, while steadfastly denying participation, demonstrated that his will was not overborne by the police ruse."
Click here for the complete story
06/01/2009Court did not commit error in excluding defense expert's testimony regarding false confessions
Wright v. State S09A0324 (04/28/09)

HEADNOTE: The Supreme Court vacated Kayla R. Wright's aggravated assault conviction, holding that the charge merged as a matter of fact with Wright's malice murder conviction. However, the Court affirmed Wright's convictions for murder and concealing the death of her newborn infant, holding that the trial court did not err in excluding a defense expert's testimony based on Wright's failure to comply with discovery requirements and her failure to satisfy the evidentiary test in criminal cases with regard to the false confession theory and the Reid method. The Court also held that, under the totality of the circumstances, the trial court did not err in admitting Wright's confession that her baby was breathing and whimpering after birth; the physical evidence, witnesses testimony regarding Wright's comments, appearance and behavior after the baby's birth and her statements supported her convictions; the trial court properly allowed the medical examiner to opine on the cause and manner of the baby's death, based on the investigative history and his autopsy findings; the trial court did not abuse its discretion in giving curative instructions, rather than granting a mistrial, after the state referred to a non-existent live-birth certificate when questioning a witness; and Wright failed to show that her defense counsel were deficient.
Click here for the complete story.
06/01/2009
Incriminating statements made after a polygraph examination can be admissible In the case of State v. Dressel (May 2009) the Minnesota Court of Appeals upheld the admissibility of incriminating statements that were made after a polygraph examination.
Click here for the complete story.
05/20/2009New Canadian column - Admissibility of young person's confession. Traditionally unlawful inducements are not always strong enough to exclude. R. v. S.E.V. (2009)
By Gino Arcaro M.Ed., B.Sc.

I. The Pendulum Swings

The sec. 24(2) Charter pendulum has not always swung fairly. The pendulum was unbalanced for years, in favour of the defense. Growing evidence shows the pendulum swing is balancing out.

II. Interrogation Reality

Among the countless interrogation challenges facing investigators, the following are three facts of reality:
  1. Interrogation strategies change during interrogation, sometimes from one extreme to another.
  2. Release is a prominent factor that affects a suspect's decision whether to confess or not.
  3. A series of inducements do occur during most interrogations. The key is the strength of the inducment and the relationship between that strength and the decision to confess.
These issues all occurred in R. v. S.E.V. (2009).
Click here for the complete article
05/05/2009Legal Updates May, 2009
The Legal Update document for May 2009 includes cases addressing the following issues:

Ambiguous attorney request

Court excludes testimony of Richard Leo

Court excludes testimony of Richard Ofshe

What constitutes a threatening statement that renders a confession involuntary?

Judge rejects Dr. Ofshe testimony

Court limits testimony of Saul Kassin
Click Here for the complete document.
04/28/2009Child abuse cases focus of training
'The Woodward News Online' just published an article about the Reid training program, The Reid Technique of Investigative Interviewing(R) for Child Abuse Cases. conducted by David Buckley.
Click here for the article
04/14/2009US Supreme Court rules that confessions obtained after six hours by federal investigators may not be admissible
On April 6, 2009 in the case of Corley v. US, the United States Supreme court ruled the following:

"We hold that S 3501 modified McNabb-Mallory without supplanting it. Under the rule as revised by S 3501(c), a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was "reasonable considering the means of transportation and the distance to be traveled to the nearest available [magistrate]"). If the confession came within that period, it is admissible, subject to the other Rules of Evidence, so long as it was "made voluntarily and ... the weight to be given [it] is left to the jury." Ibid. If the confession occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed.

In this case, the Third Circuit did not apply this rule and in consequence never conclusively determined whether Corley's oral confession "should be treated as having been made within six hours of arrest," as the District Court held. 500 F.3d, at 220, n. 7. Nor did the Circuit consider the justifiability of any delay beyond six hours if the oral confession should be treated as given outside the six-hour window; and it did not make this enquiry with respect to Corley's written confession. We therefore vacate the judgment of the Court of Appeals and remand the case for consideration of those issues in the first instance, consistent with this opinion."
Click here for the complete opinion.
04/01/2009Your work (Reid and Associates) has done more to bring about professional policing in America than all other law enforcement advancements in the past 30 years.
Dear Joseph,

You are very welcome. I feel a personal debt to the Reid program. It has helped me resolve several heinous, unsolved crimes. And more importantly, families of victims have gone from being fearful, frustrated and angry, to living with peace of mind and a sense that justice has been done. I took the Basic Course in 1989, and the Advanced in 1992. I was an active polygraphist from 1993 - 2002. I have personally seen the Reid program transform the ability of law enforcement to solve crimes. I am now in the twilight of my police career, and I am looking forward to the next chapter in life. In my mind, your work has done more to bring about professional policing in America, than all other law enforcement advancements in the past 30 years.

My very best to you,

Chuck Kopp
Bristol Bay Borough Police Department
03/25/2009Court rejects expert testimony on confessions (Dr. Deborah Davis); upholds confession admissibility (Reid Technique)
In the case of People v. Gallo, Dr. Deborah Davis testified for the defense at the suppression hearing (click here for a copy of her Power Point slides) but the court rejected the effort to suppress the confession, stating that the interrogator "used a technique [Reid Technique] he learned in his police training, and his use of it followed what the courts have deemed to be permissible."
Click here for the complete decision.
03/25/2009New Canadian column Part 2 of The 24-hour Clock: The relationship between sec. 503 C.C. and the duration of an interrogation
The 24-Hour Clock: The relationship between sec.503 C.C. and the duration of an interrogation. Part 2

By Gino Arcaro M.Ed., B.Sc.

I. The Changing Boundaries

Imagine playing on a football field with changing boundaries. There are sidelines and end zones but they move. Often, they change form game to game. In some cases, the sideline gets closer. In others it gets further away. There are lines on the field but you can't actually see them. They are not painted on. Often, you have to guess what is in-bounds and what is out-of-bounds. And the goal posts move.

Interrogating a suspect is much like the "changing boundaries" scenario. The line between voluntary and involuntary confessions often gets blurred. This creates an investigative paradox: the absence of discernible boundaries creates considerable strategic latitude. The police do not have to walk on eggshells, worrying about every word they say during questioning, especially during the questioning of a murder suspect. Obviously, limits are imposed and a balance has to be achieved. But, the field does not always tilt against the police R. v. Ansari (2008) is an excellent example of the changing field. This case involved:

i. Three separate statements made by a murder suspect during three interrogations involving three different officers each with a different questioning strategy/approach;

ii. Questioning styles ranging from passive/friendly to aggressive/"berating" that included substantial persuasion to try to change the suspect's mind about his right to silence;

iii. The complexities of a major crime investigation including the reality of the "24-hour clock" imposed by bail hearing laws governed by sec. 515 Criminal Code.


Click here for the complete decision.
03/03/2009Defendant claims confession was coerced because interrogator was sympathetic, understanding and tried to justify his criminal act - court upholds confession
In the case of State v. Parker, the Court of Appeals of South Carolina stated that "Few criminals feel impelled to confess to the police purely of their own accord without any questioning at all.... Thus, it can almost always be said that the interrogation caused the confession.... It is generally recognized that the police may use some psychological tactics in eliciting a statement from a suspect.... These ploys may play a part in the suspect's decision to confess, but so long as that decision is a product of the suspect's own balancing of competing considerations, the confession is voluntary."

"Excessive friendliness on the part of an interrogator can be deceptive. In some instances, in combination with other tactics, it might create an atmosphere in which a suspect forgets that his questioner is in an adversarial role, and thereby prompt admissions that the suspect would ordinarily only make to a friend, not to the police." Miller v. Fenton, 796 F.2d at 604 (3d Cir.1986), cert. denied, 479 U.S. 989, 107 S.Ct. 585, 93 L.Ed.2d 587 (1986). "Nevertheless, the 'good guy' approach is recognized as a permissible interrogation tactic." Id. (holding confession admissible despite interrogating officer's "supportive, encouraging manner ... aimed at winning [appellant's] trust and making him feel comfortable about confessing."). See also Beckwith v. United States, 425 U.S. 341, 343, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) (interrogator had sympathetic attitude but confession voluntary); Frazier v. Cupp, 394 U.S. 731, 737-38, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (confession voluntary when petitioner began confessing after the officer "sympathetically suggested that the victim had started a fight.")."
Click here for the cmplete decision.
03/03/2009Case demonstrates the care and caution that must be exercised in the interrogation of juveniles
In the case of 12 year-old Anthony Harris the Ohio Fifth Appellate District court "unanimously overturned Judge Kate's decision. The police had violated Anthony's Fifth Amendment rights: He had been in custody, the Miranda warning was improper, and the confession had been coerced." This case illustrates the importance of developing independent corroboration form suspects. particularly juveniles. According to this article the "prosecution couldn't cite one fact given by Anthony that only the killer would know."
Click here for the article describing this case.
03/03/2009Common Mistakes Made During Investigative Interviews and Interrogations
In a recent issue of their newsletter PoliceOne.com published an excellent article by Louis Senese, VP of John E. Reid and Associates, on some of the common mistakes that we see investigators make during their interviews and interrogations.
Click here for the article.
02/22/2009Legal Update February, 2009
The Legal Update document for February 2009 includes cases addressing the following issues:

Ambiguous lawyer request

Two cases regarding an ambiguous request to invoke Fifth Amendment right to remain silent

Two cases regarding the value of video recording an interrogation

The use of Trickery and Deceit

Faulty Miranda Warnings

Confession suppressed because interrogators ignored request to stop the questioning

Confession from defendant with mild retardation (I.Q. 65) upheld

Confession found involuntary when interrogator misrepresented the charge

Does feigned sympathy and rationalizing the defendant’s criminal behavior render a subsequent confession inadmissible?

No basis for ineffective counsel for failing to call expert witness to testify on false confessions – two cases

Juvenile confession found inadmissible – Miranda , length of interrogation and other problems

What constitutes custody?  Two cases

Juvenile interrogation in school – was Miranda required?  Does a deceptive offer to help render the confession inadmissible?

Dr. Richard Ofshe testimony limited

Does a suspect have to be told he is a suspect when he is advised of his Miranda rights?
Click Here
02/22/2009New Canadian column: The 24-hour Clock: The relationship between sec. 503 C.C. and the duration of an interrogation
In his new article for the Member's page, Gino Arcaro discusses how long an interrogation can last according to Canadian law.

I.               Interrogation Time limit

What is the time limit for a police interrogation?

How long can the police interrogate an arrested person?

There is no concrete time limit in Canadian law. The answer is found in the combined effect of:
  1.                sec. 503 Criminal Code,
  2.               sec 515(11) C.C.,
  3.            sec. 9 Charter, and
  4.             R. v. Oickle (2000) SC.C.
  5.              R. v. Storrey (1990) SC.C.
  6.           R. v. Singh (2007) SC.C.
  7.           R. v. Manninen (1987) SC.C.

Click here for the complete decision
02/17/2009New Seminar: Creating a Safe Learning Environment for Children
John E. Reid and Associates offers this one-day training seminar which discusses the problem of child molesters targeting students within the school environment and identifies appropriate responses and offers solutions. This seminar will identify and discuss the methodologies and seduction techniques employed by the child molester in the various chat rooms and on the World Wide Web. Additionally, the seminar examines the topics of child erotica, child pornography, and their use by the child molester.

The seminar will discuss the development of a Model Child Protection Management Policy, guidelines for the supervision of programs that involve students and the implementation of sample child protection legislation such as the Illinois Internet Safety Curriculum Act.
Click here for complete details.
Click Here to view earlier "What's New"