The Courts: Acceptable Investigator Interrogation Behaviors

Over the last 20 years we have published numerous court decisions on interrogation issues in an effort to keep our audience up to date with the courts’ views as to acceptable and unacceptable interrogation behaviors.

In this Tip we have reviewed 114 court decisions as to what the courts consider to be acceptable investigator interrogation behavior. Please note: While these court decisions offer a representative sample of what the courts generally view as acceptable investigator interrogation behaviors there are undoubtedly exceptions, so every investigator should be sure to review court decisions in their jurisdiction.

Before detailing these court decisions we have listed the Reid Core Principles and Best Practices that all investigators should follow and that we teach at all of our training courses and have published in our books.

The Core Principles of the Reid Technique are as follows:

• Always treat the subject with dignity and respect

• Always conduct interviews and interrogations in accordance with the guidelines established by the courts

• Do not make any promises of leniency or threats of harm or inevitable consequences

• Do not conduct interrogations for an excessively lengthy period of time

• Do not deny the subject any of their rights

• Do not deny the subject the opportunity to satisfy their physical needs

• Exercise special cautions when questioning juveniles or individuals with mental or psychological impairments

Within any established procedure (medical, therapeutic, manufacturing, education, engineering, etc.) there are optimum or ideal conditions under which the probability of success is maximized. These optimum procedures are called "best practices." Because of uncontrolled or unanticipated events, it is not always possible to apply best practices within a procedure in every instance. However, a practitioner should always strive to utilize best practices when feasible.

The successful interrogation is one in which (1) the suspect tells the truth to the investigator and, (2) persuasive tactics used to learn the truth are legally acceptable. With these goals in mind, the following are a list of the Reid Technique Best Practices for applying the Reid Nine Steps of Interrogation, along with a brief discussion of each practice:

Conduct an interview before an interrogation. Absent a life-saving circumstance the investigator should conduct a non-accusatory, non-confrontational interview before engaging in any interrogation. During the interview the investigator can establish rapport with the suspect, assess their credibility, develop investigative information and establish a behavioral baseline. Also, during the interview the suspect is more likely to reveal information that can be used to develop an interrogation strategy.

Conduct an interrogation only when there is a reasonable belief that the suspect is guilty or withholding relevant information. The belief that a suspect is guilty of a crime or is withholding relevant information may be based upon investigative information, evidence, the suspect's demeanor, or verbal responses to interview questions. The investigator should avoid conducting an accusatory interrogation as a technique to separate innocent from guilty suspects.

Consider a suspect's behavior in conjunction with case facts and evidence. The assessment of a suspect's credibility during an interview will be enhanced and likely more accurate if it is based not only on the suspect's verbal and nonverbal behavior, but also on case facts (the suspect's established opportunity, access, motive and propensity to commit the crime) as well as forensic or testimonial evidence.

Attempt to verify the suspect's alibi before conducting an interrogation. The most efficient means to prove a suspect's innocence is to verify his or her purported alibi. Conversely, when it is determined that the suspect provided a false alibi, this finding offers support for the suspicion of the suspect's probable guilt.

There should be no barrier between the investigator and suspect within the interrogation room. A desk or table separating the suspect from the investigator provides the suspect a sense of security and confidence in not having his lies detected. This is obviously undesirable. Rather, the furniture within the interrogation room should be arranged in such a way that the suspect and investigator are facing each other about 4-5 feet apart without any physical barrier between them.

A single investigator should be the lead communicator. While it is often appropriate to have a third person in the room during an interrogation, perhaps as an observer or witness, there should only be one primary investigator communicating with the suspect at a time. A guilty suspect is more likely to offer a voluntary confession to a single investigator who has established a rapport and trust with the suspect. A tactic to be avoided is to have two or three investigators simultaneously bombarding the suspect with themes or alternative questions or working as a "tag team" wearing the suspect down over an extended period of time.

Do not threaten the suspect's well-being or make threats of inevitable consequences. It is clearly improper to threaten a suspect, directly or indirectly, with physical harm or pain. This would include threats directed at the suspect's family members or loved ones in an effort to obtain a confession. Similarly, an investigator should never attempt to falsely convince a suspect that he or she is in a helpless situation and that the only way to avoid an inevitable consequence is by confessing.

Do not offer the suspect promises of leniency. An investigator should not offer the suspect a quid pro quo promise of leniency in exchange for a confession. In other words, there should be no promise that the suspect will receive a less severe punishment if the suspect confesses.

Do not make promises you cannot keep. There are many promises an investigator can make to a suspect which are proper and will not cause a confession to be suppressed. These are promises that can be kept such as including the fact that the suspect cooperated in a written report or a promise not to reveal to coworkers the suspect's confession. However, false promises jeopardize the admissibility of a confession. An example of a false promise is the investigator telling the suspect, "If you confess you can sleep in your own bed tonight," when, in fact, the suspect is taken into custody after confessing.

Do not deny the suspect his legal rights. An investigator is legally obligated to honor a suspect's rights whether it be a custodial suspect's Miranda rights, a military suspect's article 31 rights or, within the private sector, a union member's rights.

When interrogating a non-custodial suspect, do not deprive the suspect of his freedom to leave the room. The suspect's exit from the interrogation room should not be blocked by positioning the investigator's chair between the suspect's chair and the door. The room should not be locked from the inside (requiring a key to open the door) and the room should not be in an area that requires a key or pass code to exit the building. Finally, the investigator should not make verbal statements implying that the suspect is not free to leave the room, e.g., "You're not going anywhere until we get this clarified!"

Do not conduct excessively long interrogations. In most instances, if the suspect is still adamantly maintaining his innocence and has not made any incriminating statements or admissions after three to four hours of interrogation the interrogation should be re-assessed and possibly terminated.

Exercise extreme caution when interrogating juveniles, suspects with a lower intelligence or suspects with mental impairments. This class of suspect is more susceptible to false confessions and, therefore, the investigator should be cautious in utilizing active persuasion such as discouraging weak denials, overcoming objections or engaging in deceptive practices. Proper corroboration of a confession will be critical with this class of suspect.

When using interrogation tactics involving deception the investigator should not manufacture evidence against the suspect. Courts make a distinction between false verbal assertions, e.g., "We found your fingerprints in her bedroom." which are permissible and manufacturing evidence, which is not permissible. An example of manufacturing evidence is taking the suspect's fingerprints and transferring the prints to an evidence card which indicates that the prints were found in the victim's bedroom.

When a suspect claims to have little or no memory for the time period when the crime was committed the investigator should not lie to the suspect concerning incriminating evidence. While it is not uncommon for guilty suspects to feign memory loss, an overriding concern is an innocent suspect who experiences true memory loss for the time period when the crime was committed. Under this circumstance, if the investigator lies to the suspect about incriminating evidence and the suspect confesses, it may be argued that presenting false evidence caused an innocent suspect to believe that he had committed the crime.

Do not reveal to the suspect all information known about the crime. A legally admissible confession should include corroboration. One form of corroboration is information only the guilty suspect would know, e.g., the method of entry in a burglary, a memorable statement made to a victim, the denomination of money stolen, etc. When interviewing a suspect or offering information to the news media, the investigator should carefully guard this protected information so that the only person who would know it would be the investigator and the person who committed the crime.

Attempt to elicit information from the suspect about the crime that was unknown to the investigator. The best form of corroboration is information not known to the investigator about a crime that is independently verified as true. Examples of independent corroboration include the location of a knife used to kill the victim, where stolen property was fenced or the present location of a car the suspect stole.

The confession is not the end of the investigation. Following the confession, the investigator should investigate the confession details in an effort to establish the authenticity of the subject's statement, as well as attempt to establish the suspect's activities before and after the commission of the crime.

In conclusion, failure to follow the best practices of the Reid Technique will not necessarily result in a false or inadmissible confession. However, if these best practices are followed there is an extremely high probability that a confession will be a true statement of guilt and that the confession will be admitted as evidence against the defendant at trial. Consequently, an investigator should always strive to follow best practices when utilizing the Reid Nine Steps of Interrogation.

Court Decisions

Confession voluntariness: ambiguous invocation of right to remain silent and rejection of claim of coercive police tactics; rejection of exhaustion claims

In State v. Perdomo-Paz [Missouri Court of Appeals, Western District] the defendant contended on appeal that he invoked his right to remain silent by referencing, in isolation, his statement that he did "not for real, man, no, but..." want to answer questions about a homicide. He argues that this statement required Detective Ray to immediately cease her interrogation. But our Missouri Supreme Court has stated that it does "not read Miranda searching for out-of-context sentences that support a preferred outcome." ... "Instead, courts must look to the full context of a particular statement in order to determine whether a suspect invoked his rights or not."

From the courts opinion: "At the beginning of the interrogation, Detective Allen read Perdomo-Paz his Miranda rights. Perdomo-Paz signed a Miranda waiver and began talking to Detectives Ray and Allen. Detective Ray asked basic informational questions. She then told Perdomo-Paz that she and Detective Allen were conducting a homicide investigation:
Det. Ray: Well, the reason we are talking to you, we're, uh, conducting an investigation, it's a homicide investigation. Okay, so, I just want to ask you a few questions about that. You cool with that?
Perdomo-Paz: What is, I mean [unintelligible], I mean, I don't know that ... [several seconds of silence]
Det. Ray: You fine with that, just talking about a homicide. Is that, is that....
Perdomo-Paz: I mean not, not for real, man, no, but....
Det. Ray: Why not?
Perdomo-Paz: I mean because when Kansas tried to talk to me about a homicide, you know, ... sometimes I couldn't even sleep ... that I know who killed somebody, [parts unintelligible]
Det. Ray: Okay, well, these are going to be easy questions, okay? Is that, is that fine? You okay with answering some easy questions? [several seconds of silence when Perdomo-Paz paused and then nodded his head affirmatively]

Detective Ray then began questioning him. Throughout the interrogation, Perdomo-Paz's story remained consistent: he went to a party on Noland Road in Independence at 9:30; "Carlos" drove him home; he was home by 1:00 a.m.; he stayed home the rest of the evening and did not go to any other parties that night.

Perdomo-Paz's response, "not for real, man, no, but ..." to Detective Ray's question
whether he was "fine" with talking about a homicide was not a clear and unequivocal
assertion of the right to remain silent. As we have stated under a similar fact pattern: [A suspect's] use of the conjunction "but" is an equivocation, which suggests that he was
experiencing an internal conflict: while he did not want to talk about what had happened,
other factors compelled him to do so."

The court went on to state: "Considering the totality of the circumstances, Perdomo-Paz's
statement was not coerced. First, Perdomo-Paz was advised of his Miranda rights and
signed a waiver, indicating that he understood them. Second, Perdomo-Paz claims that
his statement was coerced because when he asked for water because his throat was dry and when he asked for a bathroom break, the detectives did not immediately give him water or allow him to use the restroom. However, shortly thereafter, the detectives gave him water and a bathroom break when he asked a second time. Third, the length of Perdomo-Paz's interrogation-three hours with a break -was not coercive. Missouri courts have held that continuous questioning for four hours is not coercive.... Fourth, while Perdomo-Paz told the detectives during the interrogation that he was tired and at times laid his head on his folded arms on the table, he did not demonstrate that he was so tired that he was unable to resist the questioning. A statement is not involuntary due to a defendant's tiredness when the interrogation is conducted at a reasonable time and the length of the interrogation is reasonable.... Additionally, the video-recorded interrogation (which has been viewed by this Court) contradicts Perdomo-Paz's claims of exhaustion by showing he was sufficiently alert and energetic to actively participate in exchanges with the detectives. Fifth, Perdomo-Paz claims that Detective Ray made sporadicstatements to him that were "aggressive and demeaning." The Missouri Supreme Court has held that tactics such as "yelling, 'getting in his face,' and misleading" a suspect about whether his accomplice was making a statement implicating him were not impermissibly coercive where the detectives did not touch the defendant or threaten him with any physical harm.... We conclude that none of the factors identified by Perdomo-Paz establish that he was deprived of his free choice to admit, deny, or refuse to answer the detectives' questions or that his will was overborne when he made the statement.'

Supreme Court of New Hampshire carefully examines the issue of confession voluntariness

In State v. Cloutier the Supreme Court of New Hampshire carefully examined the issue of confession voluntariness. The defendant claimed that her confession should have been suppressed because she was threatened with harsher punishment if she did not confess; the length of the interrogation was coercive; she was advised that her refusal to confess could result in false accusations against her daughter; and, the officers were, at times, "insulting and used profanity," suggested that her "medication 'affected her intellect,' " and that she was " 'not a true friend of [the victim].'

The Supreme Court upheld the admissibility of her incriminating statements. From the court's opinion:

"... the defendant argues that Plourde's statement, "[I]f we leave here today, ... [w]e'll handle it like we handle ... like somebody who's done this many times," constituted " 'a threat of harsher punishment should [she] remain silent,' " and asserts that the remaining circumstances of the interview "did not mitigate the effect of this threat." She contends that Plourde's threat, in combination with certain other circumstances, "foreclosed any rational conclusion that her confession was voluntary beyond a reasonable doubt." ... As to the first factor, the defendant contends that the nature of Plourde's statement constituted a threat of harsher punishment should she not confess.

... to the extent Plourde's single statement constituted a threat, it was not a threat "to inform the prosecutor or the judge of" the defendant's refusal to cooperate. ... Nor did his statement convey "an unmistakable message that [the defendant] would be punished" if she remained silent and failed to admit her involvement in the crime.... Indeed, it is unclear what Plourde meant by this single statement. Nonetheless, even were we to assume that Plourde's statement constituted some sort of threat, our review of the video recording discloses no indication that this statement overbore the defendant's will or had any impact upon her conduct during the interview so as to render her confession involuntary.

Our review of the record reveals no other factor that undermines the trial court's finding of voluntariness. Although the defendant was at the police station for nearly six hours, an interview of this length, in and of itself, does not render a statement involuntary. See Belonga, 163 N.H. at 356, 42 A.3d 764 (holding that six *17 and one-half hour interview did not render confession involuntary). What is of paramount importance is what occurred during the interview.... Here, there was no evidence that the defendant "needed or was deprived of food, medical attention, or sleep."

Further, as the trial court found, the defendant's demeanor on the videotape is consistent with finding her statements voluntary. The trial court found that she "look[ed] relaxed" and "appeared lucid and self-possessed." She answered the officers' questions and made statements "in a normal conversational way," and did not appear "intimidated." Although at the end of the interview, the defendant began to "tear up and sob[ ]," this alone is not dispositive. As the trial court concluded, "the tears and the emotional disturbance" demonstrated "remorse," "not the sign of a person ... whose will has been broken." Absent overreaching, deception or coercion by the police, a defendant's emotional response to an interview does not render her confession involuntary.

The defendant also claims that the officers suggested that her refusal to confess could result in false accusations against her daughter. Under some circumstances a confession may be rendered involuntary because the police unreasonably exploit a person's compassion for a loved one.... For example, courts have held that a confession may be involuntary when police make threats to arrest a suspect's family members.... Here, however, the officers did not make such a threat. Rather, they merely questioned whether the defendant's daughter was involved after the defendant agreed that video surveillance would show her and her daughter "over there." Thus, this is not a case in which the police impermissibly used a defendant's compassion for a loved one to "extract a statement."

Finally, the defendant claims that the officers were, at times, "insulting and used profanity," suggested that her "medication 'affected her intellect,' " and that she was " 'not a true friend of [the victim].' " (Brackets omitted.) Although the officers were "not entirely friendly and sedate," .... the interview consisted mainly of questioning in a reasonable tone. To the extent the officers raised the defendant's use of medication, they did so as a possible reason for why they thought she may have taken the safe. Under the circumstances of the interview, the defendant could not have expected that her conversation with the officers would occur without any confrontation or intimation that she might be connected to the crime or questioning as to why she might be connected to the crime.

In this case, the evidence supports the trial court's conclusion that the defendant's statements were the product of a free and unconstrained choice..... Accordingly, we affirm the trial court's finding that the defendant's statements were voluntary.