[T]he very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals.
The history of police interviewing in the United States, as in other countries, has a checkered past that includes physical coercion. This was called the “third degree” which was endemic in early twentieth-century policing. It consisted of literally beating confessions out of suspects if they were not deemed cooperative. This brutal approach is inhumane and often lead to involuntary and false confessions. With time the “third degree” became a less commonly adopted procedure, but incidences of this type of practice were still reported into the early 1960s. The Commission on Civil Rights, for example, found that in 1961 some police officers still engaged in the practice of using physical coercion to obtain a confession. Other instances of police brutality were also reported during this time, such as in People v. Portelli (1965).
Since the 1960s, behavioral analysis approaches to police interviewing, such as the Reid interrogation technique, have been adopted in United States policing. This approach was a response to the “third degree” and was based on the general notion that it is best to use “one’s wits than one’s wrists” (Miranda v. Arizona, 1966). At close examination behavioral analysis approaches, such as the Reid technique, place a premium on obtaining statements from suspects, albeit not through physical force but through psychological trickery, deception, and/or pressure. All of which, to an extent, are legally acceptable in the United States.
Regarding its popularity, the Reid technique appears to be widely used in United States police stations, yet its actual use is not well understood. Among self-reported studies with police investigators, the use of the Reid technique appears to be prevalent (Reference Cleary and WarnerCleary & Warner, 2016). In addition to Reid, there are rapport and cognitive-based techniques currently in use by police and law enforcement agencies in the United States, such as the Federal Bureau of Investigation (FBI), United States Drug Enforcement Administration (DEA), and military branches of the United States Armed Forces. Although, as with the Reid technique, it is unknown how often these agencies and the military use rapport-based interviewing. The latter interviewing style is espoused as being part of interviewing reforms in federal law enforcement agencies to reduce coercion and rates of false confessions (see Reference Meissner, Surmon-Böhr, Oleszkiewicz and AlisonMeissner et al., 2017).
The corpus shares the legal requirement of suspects being read their Miranda rights prior to being subject to any type of custodial interrogation method. No significant differences were observed in the corpus between police or other law enforcement agencies in the invocation of rights stage of an interrogation. In the corpus, regardless of the type of interrogator, the reading of the rights stage is often tackled as a deterrence to interrogation (see also Reference Mason, Mason and RockMason 2020, Reference Mason2016, Reference Mason2013), which opens the door to a variety of techniques and approaches used by law enforcement to obtain statements from suspects. Some of the techniques are more enlightened than others, but when applied to United States custodial settings, they are all moored in the legal framework of Miranda guarantees.
Thus, it is worth discussing broadly the methods applied by law enforcement and the military to interrogate custodial suspects and evaluate how these methods may fit with the Miranda rights. To accomplish this task, the next sections will discuss the Reid technique and the operational mandate of the High-Value Detainee Interrogation Group (HIG) (herein the HIG Report, 2016). Of note, while the HIG was developed to collect human intelligence in a counter-terrorism context (HUMINT), the HIG has expanded to achieve a “broader understanding of effective interviewing and interrogation methods – including those that occur in criminal, military, and intelligence settings” (Reference Meissner, Surmon-Böhr, Oleszkiewicz and AlisonMeissner et al., 2017, p. 446). As Reference Meissner, Surmon-Böhr, Oleszkiewicz and AlisonMeissner et al. (2017) note criminal and counter intelligence contexts diverge with respect to their purpose: to obtain a confession as evidence for criminal prosecution as opposed to obtain information about the past, present, or future related to a national security investigation. They add, however, that the basic processes that facilitate cooperation and elicitation are shared by both contexts, including the interrogation methods applied by professionals in the field. Hence, how police investigators approach the Miranda rights stage of the interrogation across the corpus, and potentially across interviewing styles, will provide insights into the possible connection between the law and how interviewing styles are used and implemented in the United States.
3.1 The Reid Technique of Interrogation: A Look at the “Manuals”
In the landmark case Miranda v. Arizona (1966), the justices refer to “the manuals.” These manuals were used in the 1960s to train officers in police interrogation techniques. As Justice Warren, who delivered the majority opinion in Miranda, states:
It should be noted that these texts professedly present the most enlightened and effective means presently used to obtain statements through custodial interrogation. By considering these texts and other data, it is possible to describe procedures observed and noted around the country.
Justice Warren was skeptical of the training “manuals” and provided a lengthy discussion of the now Reid technique in his Miranda opinion. Hence, portions of his and other justices’ opinions will be incorporated in the chapter’s discussion of the Reid technique of interrogation. This will situate the Court’s view on police interrogation and invocation of rights within the often chosen mode of interrogation in the United States, past and present.
The Reid technique was developed in the 1950s by John E. Reid, a psychologist, polygraph expert, and former Chicago police officer, who reformed police interrogation practices in light of the Wickersham Commission (see Reference Drizin and ReichDrizin and Reich, 2004). Since its inception, training in the Reid technique has been commercially available to government, law enforcement, and, subsequently, business entities. The technique has also received some support in Court rulings. These mentions are part of Reid’s marketing strategy. According to Joseph Buckley, president of John E. Reid and Associates, Inc. (Reference Buckley2012), the Court recognized the Reid technique in Stansbury v. California (1994) and in Missouri v. Seibert (2004).Footnote 1 Buckley notes that these cases referenced the Reid technique as an example of proper law enforcement interrogation training: “Courts throughout the country have recognized The Reid Technique as the leading interview and interrogation approach used today in both the law enforcement and business communities” (Reference BuckleyBuckley 2012, p. 2).
The Reid technique consists of three phases: factual analysis, the investigative interview, and the interrogation. The factual analysis stage consists of reviewing the case facts and evidence. This stage is similar to what Reference WaltonWalton (2003) describes as the “preparatory” interview stage. During the “preparatory” stage police officers formulate questions to ask the suspect. These questions often serve to confirm the police officers’ suspicions. The latter may arise during the evidence gathering stage of an investigation, which often includes information obtained during the questioning of witnesses and/or alleged victims of a crime (see Reference MasonMason, 2016).
In the investigative interview stage of Reid, also referred to as the Behavior Analysis Interview, police officers are trained to assess the “guilt” of suspects by analyzing their verbal and nonverbal responses. At the onset of the interview, as noted in the John E. Reid & Associates website:Footnote 2 “the investigator must be sure to comply with all legal requirements, such as the appropriate advisement of rights. It is imperative that throughout the interview, the investigator maintains an objective, neutral, fact-finding demeanor” (Reference ReidReid, 2018, para. 7). Regarding the presence of counsel during questioning, Inbau appears to have considered it obtrusive and interfering with privacy: “Opening the interrogation process to public scrutiny-for example, by allowing an attorney to sit in with a suspect or by requiring prompt delivery of suspects to magistrates for questioning-would cripple the ability of police to obtain confessions. To Inbau, such outside interference was unnecessary” (Reference Drizin and ReichDrizin & Reich, 2004, p. 629).
The Behavior Analysis Interview generally consists of three types of questions, such as those concerning the subject’s background, specific issues that are under investigation, and behavior-provoking questions. Police investigators trained in Reid often use the latter type of questioning to detect whether suspects are truthful or deceptive in their responses. Reference LeoLeo (2008, p. 95) provides some examples of the types of questions police investigators use in the Behavioral Analysis stage. These include: (1) Who do you think committed (alleged crime)?; (2) Have you ever thought about doing (alleged crime)?; and (3) What do you think the results of our investigation will show with respect to your involvement in (alleged crime)? These questions are often meant to elicit a response, either verbal or nonverbal, which the police investigator will mark as truthful or deceitful, based on what Reid trainers characterize as most consistent with how truthful or deceitful individuals would respond.
The relationship between nonverbal behaviors and deception proclaimed in the Reid manuals, however, has been rejected in numerous studies on verbal cues and deception. This is an important point considering the potential for obtaining unreliable information. As Reference VrijVrij (2018) notes, Reid’s examination and assessment of nonverbal cues has limitations:
More than 100 deception studies – brilliantly summarized by Reference DePaulo, Lindsay, Malone, Muhlenbruck, Charlton and CooperBella DePaulo and her colleagues (2003) in their meta‐analysis – have shown that the cues Reid and Arther claimed to be diagnostic of deception are actually unrelated to deception. Yet these undiagnostic cues to deceit are presented as diagnostic cues in the Reid training manual (Reference Inbau, Reid, Buckley and JayneInbau et al., 2013). Unsurprisingly, observers who paid attention to the cues promoted in the Reid training manual performed less well in lie detection tests than did their counterparts.
Once the Behavior Analysis interview stage of the Reid technique concludes and officers establish the “guilt” of the suspect, the interrogation stage begins. The third stage of the Reid technique is the interrogation. Only those deemed “guilty” in stage 2 are interrogated. Of note, it is unknown how often persons are deemed guilty in stage 2 and are subjected to interrogation. The Behavior Analysis stage consists of the Nine Steps of Interrogation: (1) initial confrontation, (2) theme development, (3) handling denials, (4) overcoming objections, (5) procurement of the subject’s attention, (6) handling the subject’s passive mood, (7) presenting an alternative question, (8) developing the details of the admission, and (9) converting the verbal confession to a written or recorded document. The use of maximization and minimization describes how these steps are incorporated and used in police-suspect exchanges (see Reference Kassin and KiechelKassin & Kiechel, 1996).
Minimization involves presenting the suspect with a theme that reduces the import of the crime. Themes usually convey the interrogator’s opinion that the crime was not so serious, that the victims deserved their fate, or that anyone else would have acted in the same way. Suspects may understand minimization as implicit promises of leniency. Maximization, on the other hand, involves presenting the case against the suspect as being full proof. The implicit message is that the crime is serious and the suspect faces very harsh consequences and punishment. Being cooperative is portrayed as the only possible way to mitigate the direness of the suspect’s situation (see Reference Gaines, Mason and RockGaines, 2020).
The discursive actions of minimization and maximization in police interrogation are carried out using strategies, such as “confrontation,” “appeals to self-interest,” and, “sympathy/minimization” (see Reference MasonMason, 2013, Reference Mason2016, Reference Mason, Mason and Rock2020; Reference DixonDixon, 2010). In a self-report survey of police practices and beliefs in the United States, Reference Kassin, Leo, Meissner, Richman, Colwell, Leach and LaFonKassin et al. (2007) found “the typical interrogation often, but not always, includes confronting the suspect with evidence of his or her guilt and appealing to his or her self-interests. Somewhat less frequently, interrogation sometimes includes offering the suspect sympathy, moral justifications and excuses” (p. 389). From a linguistic perspective, these findings suggest that police officers tend to favor discursive actions that emphasize “separateness” or distance between the suspect and the police (i.e., the adversarial nature of interrogation), with an occasional preference for establishing “connectedness” with the suspect, as when employing “sympathy/minimization” (Reference MasonMason, 2013). The following sections will illustrate some of these techniques, starting with the reading of Miranda rights, using excerpts from actual police interrogations cited in the corpus.
3.1.1 Setting the Tone of the Interrogation: Reading of Rights and Invocation of Counsel
The interrogation phase of the Reid technique is often preceded by the reading of Miranda rights, as illustrated in Excerpt 3.1.
1 Detective Holliday: So you understand each of your rights?
2 Brandon Johnson: Yes.
3 Detective Holliday: Are you willing to give up these rights and answer questions or make statements at this time?
4 Brandon Johnson: Ah, I really would like to have a lawyer present.
5 Detective Holliday: Okay.
6 Brandon Johnson: Because I know how serious this is.
7 Detective Holliday: Hm-hm.
8 Brandon Johnson: And I don’t have anything to hide. I will talk to you guys. You know, I’ll tell you any and everything I know, you know. But, um, I just wondered what like what kind of questions would you like to ask me or anything?
9 Detective Holliday: Well you, for, for you to find that out though.
10 Brandon Johnson: I gotta answer these questions though on paper.
11 Detective Holliday: Pardon?
12 Brandon Johnson: You said I gotta, I gotta answer these questions on the paper.
13 Detective Holliday: No. Well no, no. You answered them [Miranda warnings]. But you just said you wanted a lawyer which means I can’t ask, tell you what the questions are gonna be without a lawyer being present. Now do you wanna waive your right to a lawyer? You understand that at any time, you can change your mind and stop talking and stop answering questions. You can ask for that lawyer at that time, whatever. But because you’re thinking about asking for a lawyer – .
14 Brandon Johnson: Well I understand that.
15 Detective Holliday: Alright. That, I, I don’t, you’re in control here guy.
16 Brandon Johnson: Right, alright, alright. I understand that. You can, um.
17 Detective Holliday: You’re in control. Brandon Johnson: _______, you can, you can.
18 Detective Holliday: You wanna waive your rights and talk to us right now?
19 Brandon Johnson: I can talk to you, yes.
20 Detective Holliday: Okay. So the answer’s yes?
21 Brandon Johnson: Yes.
In Excerpt 3.1, the suspect is attempting to invoke counsel while also determining whether it is necessary, or prudent, to do so. This discursive strategy, herein the start of the invocation game (see Chapter 4), is reflected in the questions and statements the suspect makes regarding the uncertainty of the process, the charges (e.g., Johnson does not know what the police officers have on him), and the custodial process in general. The detective, on the other hand, is observed managing two contrasting goals: making sure the suspect acknowledges comprehension of the rights, as read to him, and aiming for the suspect to waive such rights, not invoke counsel, and provide a statement to the police interrogators, while not overtly responding to the suspect’s questions or acknowledging the suspect’s invocation of the right to counsel.
Waiving of the Miranda rights allows the police interrogator to conduct the interrogation and, thus, apply an array of strategies aimed at obtaining a statement from the suspect. These strategies run the gamut of maximization–minimization and include police officers confronting the suspect with evidence of guilt, using time-limited offers, and/or showing empathy toward the suspect.
3.1.2 Confronting the Suspect
In the Reid technique, police interrogators often confront suspects with evidence that supports their claims and corrodes the suspects’ denials. As noted previously, some of the interrogators’ alleged evidence may be gathered during the investigative interview of witnesses and/or victims of crime. When using this strategy, the questioner formulates questions to ask the suspect, such as those that confront the suspect with evidence of guilt. Police interrogators may also use false-evidence ploys to extract a confession when confronting the suspect (Reference LeoLeo 2008). Excerpt 3.2 illustrates police interrogators’ use of confrontation.
1 Detective 1: [Pena] told Garcia that the person the shot was [Vargas], from El Monte Flores.
2 Detective 2: That dude. You know who he is, right?
3 Petitioner: Yeah, I’ve seen him before.
…
4 Detective 1: … Look, I can go on in the statement and [Garcia] says a lot of shit in here.
5 Petitioner: Mmm hmm.
6 Detective 1: But you get the meat of what I’m sayin’ right?
7 Petitioner: Yeah, because it’s not true. I never talked to him and told [Pena] all that.
…
8 Petitioner: Well, is [Pena] telling you this?
9 Detective 1: I ain’t gonna tell you what he said … Just like I ain’t gonna tell [Pena] what you said … And I ain’t gonna tell nobody else what you said.
10 Petitioner: I just talked to an attorney, sir, because that’s nonsense.
11 Detective 2: Well, let me explain to you, you have a unique position. You understand the difference between a suspect and a witness?
12 Petitioner: Yeah, I know that, sir, but it – you’re coming at me with this all mixed up stuff.
When the detectives said they had video footage from nearby stores of Petitioner at the crime scene on the night of the murder, Petitioner stated that, although he was unsure when the murder occurred, he was not present at the time because he was at a barbeque at a friend’s house. The detectives suggested that Petitioner’s phone was not in the vicinity of his friend’s house but rather in the vicinity of the murder, and that contrary to Petitioner’s allegations, Petitioner had not been seen by witnesses at or near the barbeque:
13 Detective 2: Where were you?
14 Petitioner: I was, I was at my [friend’s] house.
…
15 Detective 2: How do you know that? You told us you can’t remember that day?
16 Petitioner: It had to be like towards the weekend, cuz we were barbequing.
17 Detective 2: Okay
18 Petitioner: His mom always barbeques.
…
19 Petitioner: Have you talked to [Pena’s] mom? … That night she seen me – at [the friend’s] house.
20 Detective 1: Dude, believe me, we’ve already questioned [Pena’s mom.] … she didn’t know where you were.
21 Detective 2: She denied even knowing you.
…
22 Detective 1: … She didn’t see you that night …
In Excerpt 3.2, the detectives use confrontation, such as “Dude, believe me, we’ve already questioned [Pena’s mom.] … she didn’t know where you were,” and “She denied even knowing you,” to establish their knowledge of the “facts” of the crime and the suspect’s alleged involvement. As illustrated in Excerpt 3.2, in the confrontation stage of police interrogation, most of the police-initiated exchanges are formulated as statements of fact, often followed by a short pause that prompts the suspect to respond.
Excerpt 3.2 also shows how police interrogators use confrontation to break down suspects’ possible perceptions that the police do not have a strong case against them (and/or will not continue to pursue the case). When Detective 2 says: “How do you know that? You told us you can’t remember that day?” the detective is attempting to get the suspect to stop resisting the interrogation and provide statements that corroborate and expand on the interrogators’ alleged knowledge of the crime. The asymmetry of knowledge between the police and suspects, coupled with the isolation caused by custodial interrogation, are highlighted in several judicial opinions, among them Justice Warren’s Miranda majority ruling:
To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect’s guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact.
Throughout the police interrogation, the “guilt” of the suspect is at the center of the discursive exchanges. Establishing the suspects’ guilt may require lying to suspects or what Warren describes as the use of “trickery” in police interrogation. As with the police officers’ treatment of invocation of rights, the law provides a great deal of latitude to police officers who lie and misrepresent the strength of the evidence against suspects during police questioning. The use of deception is often ruled as an accepted practice in police interrogation and does not automatically render an interrogation coercive or the product of such interrogation, such as a confession, involuntary (see Frazier v. Cupp, 1969; Clanton v. Cooper, 1997).
Another common strategy in the Reid technique of interrogation is police officers’ use of pressure tactics with/without time-limited offers. This is an effective strategy to manage suspects’ denials: an undesirable outcome of police interrogation (see Reference Mason, Mason and RockMason, 2020).
3.1.3 Time-Limited Offers
In the Reid technique, police interrogators may attempt to persuade suspects that they are trapped and powerless (Reference Kassin, Leo, Meissner, Richman, Colwell, Leach and LaFonKassin et al., 2007). The police officers stress the urgency of the suspect speaking to police and providing a statement. The officers use pressure tactics, such as time-limited offers, to get the suspect to speak to them and stop denying the “evidence.” This strategy often follows “confronting the suspect.” Excerpt 3.3 illustrates this type of police interrogation strategy.
1 Q1: Tell the truth, tell the truth.
2 A: Tell the truth about what?
3 Q1: The dairy.
4 A: Well … I heard about the dairy.
5 Q1: Let’s start there. Again, just try it again. Try again. Just try again.
6 Q1: Who were you there with?
7 A: I’m done talking.
8 Q: Y–You think we’re bullshitting you?
9 Q1: Denying it, denying it.
10 Q1: Here’s your chance.
11 Q: Jesus? Look at me please. You think I’m bullshitting you about this?
Petitioner continued to deny any special knowledge of or involvement in the incident. After detailed further questioning, the following exchange occurred:
12 Q: … You just gonna show us no respect, even though we go out of our way to show you respect? You can answer us something.
13 A: I just want to go back to my cell.
14 Q: You want to go back to your cell?
15 A: Yeah.
16 Q. Okay. You will very shortly ….
However, Petitioner did not go back to his cell. The officers continued to question him, and Petitioner continued to deny involvement in the shooting. Eventually, the officers began speaking to each other regarding arresting Petitioner for murder. (Lodged Doc. 8 at 23.) They asked Petitioner what color the victim’s eyes were and to describe the sound the victim’s screams made. They told Petitioner they didn’t want to go to his mother and tell her he was a cold blooded murderer. Eventually, an officer asked, “But how responsible are you? How cold blooded of a killer are you?” (Lodged Doc. 8 at 25.) Plaintiff responded, “It just happened.” (Id.) After further questioning, Plaintiff provided additional details regarding the shooting.
Excerpt 3.3 is a classic example of the police officers’ use of confrontation and pressure tactics, such as “Here’s your chance.” The latter implies that suspects have only a limited amount of opportunities to talk about the case, talk to the police officers, and so on. Of note, this is not consistent with the law. The excerpt also shows how police officers present the seriousness of the charges and the best option for the suspect: cooperate with them. The police officers, here Q and Q1, intimate their knowledge of the case and the suspect’s (A’s) involvement. They use face threatening strategies that emphasize the police officers’ perception of the suspect as a liar who thinks he can “bullshit” them and, hence, is acting disrespectfully. In Excerpt 3.3, the strategy does not change the suspect’s initial stance not to talk to police, and the suspect asks to be returned to his cell. The police officers acknowledge the suspect’s request, but do not acquiesce. The police officers proceed to question the suspect further until the suspect states: “It just happened.”
The next strategy, empathy, is less confrontational and relies on police interrogators establishing some level of solidarity and rapport with suspects.
3.1.4 Empathy
The use of empathy as a police interrogation strategy serves “to instill hope of minimizing the consequences of guilt, thereby paving the way for the interrogator to suggest how one might be able to do so” (Reference Davis, Leo and FolletteDavis et al., 2010, p. 442). This technique often follows the confrontation stage of police interrogation and may be “recycled” if the suspects deny involvement in the crime of which they are accused.
Common questions and statements used with empathetic strategies include flattering the suspect, showing empathy (an affective response) toward the suspect, and optimizing legal outcomes contingent on the suspects admitting guilt. The latter strategy is shown in Excerpt 3.4.
1 Porter: Okay cool. With these rights in mind are you willing to talk to me?
2 Petitioner: About what?
3 Porter: Well about the shooting that happened last night. We can stop whenever you want.
4 Petitioner: I don’t know even know what you’re talking about but [unintelligible] wait until an attorney’s present or something.
5 Porter: Well that’s up to you. I mean that’s a decision you’ve got to make.
6 Petitioner: Yea. Yea cause I don’t know what you’re talking about a shooting.
7 Porter: Well like I said it’s your call[,] you’ve got to be clear about this. You have the absolute right to talk to us or not talk to us.
8 Petitioner: Yea.
9 Porter: Um but, but we’re legally required to make sure we have absolute clarification. Do you want to talk with us? Do you not want to talk with us? Do you want to wait for an attorney? Do you not want to wait for an attorney? The decision falls on you. We obviously want to hear your side of the story. I mean I know you’re in a bad position and everything but you know it is what it is now.
Petitioner asked whether charges would be brought against Campbell, and Detective Porter said that both he and Campbell would be charged with attempted murder. He told Petitioner the police had heard the deputy’s story and Campbell’s story, but they had not yet heard from him. Porter said, however, that Petitioner should not feel pressured and that the decision to talk was up to him. (Petitioner protested that Campbell hadn’t done anything.) The following colloquy then took place:
10 Porter: Well hold on nobody’s putting any pressure on you. Haven’t the cops been decent with you up here so far?
11 Petitioner: Yea. Yea.
12 Porter: And we’re going to continue to be. I mean but again if you’re going to talk to us the law requires that we protect your rights. Right? The law requires that if you want to talk to us it’s something that you want to do freely, voluntarily and I’m not going to[,] you know[,] if you feel like you said you think you want to wait for an attorney or whatever the case is [,] that’s up to you. Now all I can do is encourage you that we obviously want to hear the other half of this. But that’s a decision that you’ve got to make, not us. So what do you think?
13 Petitioner: Can I take a couple of minutes to think about it?
14 Porter: Sure, absolutely. Just remember that we’ll never know your side of this unless, unless you’re the one to tell us. Right? We’ll step out and let you think about it. What do you think?
The excerpt shows the invocation for counsel stage and the suspect’s mention of “wait until an attorney is present or something.” This was prefaced with the suspect’s statement of not knowing what the police officers were talking about. This type of statement often precedes or follows invocations for counsel (or statements referring to counsel) in the corpus. The statements reflect the asymmetry of knowledge between the suspect and police interrogator and also show the suspect’s use of gauging options. In Excerpt 3.4, there is no immediate acceptance of the suspect’s statement: “waiting for an attorney or something.” On the contrary, the police interrogator engages in multiple follow-up turns of talk that appear to be meant to clarify what the suspect wants. That is, to clarify whether the suspect wants to invoke counsel. These statements include commentary from the police interrogator, such as: “We obviously want to hear your side of the story. I mean I know you’re in a bad position and everything but you know it is what it is now.” The police interrogator’s statement also suggests some empathy toward the suspect’s predicament: “I know you’re in a bad position.”
The use of empathy as a police interrogation strategy is part of minimization (Reference Mason, Mason and RockMason, 2020). The police interrogators’ use of minimization may include the use of deception, which, as noted previously, may be considered justified within the law. United States v. Monroe (2017), a United States District Court for the District of Rhode Island ruling, puts into perspective how some in the judiciary view the use of empathy and minimization during police interrogation:
While Monroe argues the Reid Technique was used “to discourage [him] from not admitting guilt by presenting socially accepted alternatives … in order to prod him into choosing the lesser guilt inferring alternative,” there is nothing impermissible as a matter of law with this interrogation approach; it falls within the range of acceptable interrogation tactics sanctioned by the First Circuit. Monroe offers no authority, and the Court could not find any, for the contention that an agent’s minimization of crimes, under these facts, renders a suspect’s statements involuntary. Thus, Monroe’s argument that the Reid Technique violated his Due Process rights must fail.
The ruling captures a legal perspective on the role of minimization in police interrogation. This perspective, however, does not account for the strategic features of minimization, which may lead a suspect from wanting to invoke their rights to waiving them. Going back to Excerpt 3.4, the police interrogator’s low-key tone is used when the suspect requests some time to think about his predicament. The police interrogator’s response is an ongoing attempt at persuading the suspect to talk to him: “Sure, absolutely. Just remember that we’ll never know your side of this unless, unless you’re the one to tell us. Right?” In this case, as others in the corpus, the suspect choses to waive his right to counsel and provides a statement to the police.
3.2 Core Principles of the Reid Technique
The John E. Reid and Associates website lists a number of principles that police officers are taught to follow when conducting an investigation. A number of these are correlated with observing the law, particularly the legal concept of “voluntariness.” Some examples include: (1) Do not make any promises of leniency; (2) do not threaten the subject with any physical harm or inevitable consequences; (3) do not deny the subject any of their rights; (4) do not deny the subject the opportunity to satisfy their physical needs; and (5) always act in compliance with the guidelines established by the courts. The caveat to these guidelines is that they must be observed following the law and around the main goal of Reid: to obtain a statement from the suspect. The emphasis on obtaining a statement, coupled with the legal parameters in which police interrogators operate, may contribute to the problem of false confessions.
3.2.1 The Matter of False Confessions and the Reid Technique
A false confession is one of the most undesirable outcomes of a police interrogation, since at its worst it may result in innocent persons being convicted of crimes they did not commit. The John E. Reid website emphasizes that the Reid technique does not cause false confessions. On the contrary, the website cites that the technique has a high rate of confession (about 80 percent) and of the remaining 20 percent: “a small percentage of them could have been innocent” (see Reference Inbau, Reid, Buckley and JayneInbau et al., 2001, p. 364). This claim has yet to be scientifically verified and has raised serious concerns about the technique’s association with false confessions (see Reference Gudjonsson and PearseGudjonsson & Pearse, 2011, p. 303).
The Reid websiteFootnote 3 also stresses that if false confessions occur it lies with the police officers’ improper use of the interrogation techniques:
False confessions are not caused by the application of the Reid Technique, they are usually caused by interrogators engaging in improper interrogation procedures – engaging in behavior that the courts have ruled to be objectionable, such as threatening inevitable consequences; making a promise of leniency in return for the confession; denying a subject their rights; conducting an excessively long interrogation; etc.
This statement, however, does not address the array of Reid interrogation tactics police officers are trained to use in the field, and which the law allows, including, but not limited to, the use of false empathy, the use of pressure tactics that have coercive undertones, and the role of minimization in potentially deceiving suspects into providing statements. All of these strategies may also affect disproportionally vulnerable populations,Footnote 4 L2 speakers of English, and/or racialized groups who may be further disempowered in custodial settings due to cognitive, social, economic, and/or cultural factors. The latter considerations are not a central part of the training, but have been addressed in the literature.
Garrett (2015a),Footnote 5 for example, provides empirical data about the rate of false confessions among suspects, including those with intellectual disabilities:
False confessions plague death penalty cases. I have found that in half of the 20 cases where individuals sentenced to death have later been exonerated by DNA evidence, false confessions occurred. Each of those confessions supposedly included specific details of the crime that only the murderer could have known. One half of the cases also involved testimony by police informants who falsely claimed to have overheard confessions. Intellectual disability is entwined with false confessions; one-third of those exonerated by DNA testing who had falsely confessed were mentally ill or intellectually disabled.
Garrett (2015b) adds that “Judges, defense lawyers, prosecutors, and jurors may have a very hard time believing that a person could confess falsely” (p. 395). He argues that police contamination often explains how an innocent person could have provided inside information about the crime scenes.
Reference KozinskiKozinski (2017) also tied false confession rates and the possible role of the Reid technique, among other factors, to the statistics. He notes that in a recent study “approximately 29% of DNA exonerations in the US since 1989 have involved false confessions” (p. 303). He adds that researchers found commonalities among these cases, including the suspect being mentally or intellectually challenged, not having assistance of counsel during the interrogation, and being provided information about the crime by police investigators. As Kozinski notes this raises concerns as to whether the Reid technique may be extracting confessions from both guilty and innocent persons.
The psychological aspects of the police interrogation may also contribute significantly to suspects providing false confessions. Reference Gudjonsson and PearseGudjonsson and Pearse (2011) note that false confessions appear to be associated with two main causes: “manipulative/coercive interrogation techniques and suspects’ vulnerabilities in interviews” (p. 35). The latter point, in particular, has been raised in legal rulings, including Miranda. These rulings describe how the isolation of custodial interrogation, which may render suspects more vulnerable to trickery and deception, coupled with discursive tactics meant to break down the resistance of suspects, create a coercive environment ripe for confession extraction, even a false one:
Although it is generally not unconstitutional for officers to lie as an interrogation technique, we note that Detectives Rivera and Carrillo employed sophisticated interrogation techniques that likely helped overcome Mr. Rodriguez’s will … Pressuring a suspect “to change answers inconsistent with guilt and adopt answers evidencing guilt instead” is a police tactic particularly likely to cause an intellectually disabled suspect to “shift” his answers “to conform to the perceived desires of the interrogator”.
The coercive nature of police interrogation is also at the forefront of other high profile cases. One of the most cited cases that mentions, specifically, the alleged coerciveness of the Reid technique is United States v. Jacques (2014): “In this case, the agents’ statements exaggerating the quality of their evidence, minimizing the gravity of Jacques’s offense, and emphasizing the negative media attention that would attend Jacques’s trial all fall safely within the realm of the permissible ‘chicanery’ sanctioned by this and other courts” (p. 812). Other notable state and federal cases that have ruled on the legality of police deception include: Ball v. State (1997); State v. Harris (2010) (the defendant was interrogated for seven hours while shackled to the floor, denied access to phone to call alibi witness, and the use of “themes and options” as interrogation techniques); United States v. Crawford (2004) (pretext search); State v. Melton (1991) (defendant was told it would be cowardly and unmanly to blame the crime on a dead person); State v. Carrillo (1988) (pretext arrest); United States v. Boyce (1979) (appeal to loyalty); and State v. Rettenberger (1999) (“false friend” technique).
Legal precedence in the United States suggests a balance tipped more toward the police officers being able to investigate crimes, with legal avenues to do so, than a concern for protecting suspects from coercive police interrogation tactics. As Reference SimonSimon (2012) argues police investigators must “cease relying on physical cues in attempting to detect deceit.” He recommends a shift from a “reliance on accusatorial and coercive methods … toward less confrontational procedures that focus on information gathering” (p. 161). Simon adds that this change will require agents of the criminal justice system: police officers, attorneys, and judges to “recognize fault lines in the system as they become apparent to us and do our best to correct them” (p. 162). This sentiment is captured in the shift of some police stations moving away from accusatorial interrogation techniques to more information and rapport-based interviewing methods, such as PEACE.
3.3 Information-Gathering Interview Approach
The information-gathering interview approach does not have its origins in the United States. It came about police reforms in the United Kingdom. Since the mid-1980s after the introduction of legislation, such as the Police and Criminal Evidence Act (PACE), the questioning of suspects in the UK underwent major transformations. The new legislation prompted changes as to how police conducted interviews with witnesses and suspects of an investigation. The confession culture of the past was replaced with a new model called PEACE. This was later adopted, with variations, in many territories in Australia where the investigative interview is used, as well as in territories in Canada, as a PEACE hybrid called the Phased Interview Model for Suspects, and in Norway, as a modified version of PEACE called KREATIV. These are examples of the role of PEACE in shaping police interviewing reforms in Australia, Europe and Canada, among other countries, some of which widely used the Reid technique prior to implementing police interviewing reforms.
The PEACE model is an acronym for “Preparation and Planning,” “Engage and Explain,” “Account, Clarification, Challenge,” “Closure,” and “Evaluation.” These phases (in sequence) refer to: the planning and preparation conducted prior to the interview; the reading of legal requirements and the opportunity to build rapport between the interviewer and suspect; the interview phase where open-ended questions are used to facilitate the suspect’s account of the events being investigated, including further probing and clarification if needed; the final/end of the interview; and the evaluation, or reflection, that occurs after the interview has been conducted. This model of interviewing emphasizes rapport building, empathy, and conversation management. Interviewers are encouraged to be fair and open-minded and to pursue reliable, true, and accurate information during the interview of suspects. The investigative interview, hence, is approached with an investigative, rather than prosecutorial, mindset. The information obtained should be accurate and reliable, withstanding court scrutiny, and suspects must be approached ethically and within the bounds of the law. This includes explaining in the “engage and explain” phase of the interview process and informing the suspects of their rights and ensuring that they understand such rights prior to the start of the interview. Of note, in many countries, such as the UK, the reading of rights includes the right to silence but not counsel. This does not preclude suspects from requesting an attorney and being allowed to contact one. The attorney may give advice and be present during any questioning in many jurisdictions outside of the United States.
In the “account, clarification, and challenge” phase of PEACE, police engage in the investigative interview of the suspect. In this phase, police interviewers are trained to build rapport with the suspect and ask questions in a manner that enhances the objectives of questioning, such as discovering the truth about the matter under investigation, gathering information, and obtaining evidence. This can be accomplished by using appropriate questions. Open-ended questions, for example, elicit more free recall and this is considered the most accurate form of remembering. These types of questions also minimize interviewer bias. Examples of open ended questions include “wh” questions and T.E.D. questions: Tell, Explain, Describe. Closed probing questions are also effective in the clarification and challenge phase of the investigative interview, since they can be used when the interviewee has omitted some detail in the free recall phase.
The role of memory and recall are also part of the PEACE method. Interviewers may utilize different techniques to enhance the suspect’s memory. The use of conversation management is one of those techniques that may improve eliciting statements from a potentially guilty suspect. Suspects may also be interviewed using the Cognitive Interview (CI), although this type of interview is often reserved for interviewing witnesses due to its emphasis on recall and truth detection:
During police and forensic investigations, interviewing witnesses is often a key procedure that frequently determines the outcome of the investigation (Reference MilneMilne, 1997). However, what witnesses report rarely fully corresponds with what they remember. The commonly used questioning techniques may produce a reduced amount of valuable information, as well as some incorrect information. To manage this difficulty, Reference Geiselman, Fisher, Firstenberg, Hutton, Sullivan, Avetissian and ProskGeiselman et al. (1984) developed the Cognitive Interview, which is now commonly accepted as one of the most successful procedures for enhancing witness recollection.
There are a few experimental studies using CI with college students acting as suspects that have shown mixed results (see Reference GeiselmanGeiselman, 2012). In these studies, CI was modified for use with suspects (CIS) to maximize the opportunity to detect deception. The focus on memory recall and truth detection with suspects, however, has raised some concerns, if not controlled properly. An emphasis on truth detection may bias the interviewer and limit the use of questioning that provides a free narrative that can be challenged or probed further with the evidence. As Reference GeiselmanGeiselman (2012) notes: “As a word of caution, each element of the CIS, as well as the more reliable indicators of deception, can provide the interviewer with ‘red flags’ or ‘hot spots’ only. Detection of any one indicator of deception during the interview should not be taken as sufficient evidence to conclude that the subject is being deceptive” (p. 11).
In the United States, law enforcement agencies have placed a premium on the use of CI, and related techniques, with high-value detainees and military personnel. Given the inclusion of military and nonpolice interrogators, such as federal agents, in the cases that comprise the corpus, the next section will examine the High-Value Detainee Interrogation Group (2016) report, which includes an extensive review of the literature on rapport-based interviewing.
3.4 The High-Value Detainee Interrogation Group Report
In 2009, Executive Order 13491 established a task force to review the interrogation and transfer policies of the US government. The task force recommended the creation of the High-Value Detainee Interrogation Group to improve the interrogation of those deemed dangerous terrorists by the United States government. The National Defense Authorization Act for Fiscal Year 2016 required HIG to submit a report on best practices for interrogation. This extensive report aims “to provide a systematic review and evidence synthesis of the science related to interrogation. It is not intended as a manual or practitioners’ guide” (2016, p. 1). Law enforcement agencies in the United States, such as the FBI, have applied techniques in the HIG report that focus on two core principles: rapport building and enhanced (cognitive) recall. Studies using data from state police interrogations are also cited in the report, such as the Good Stranger study among others. Moreover, studies that examine high-value detainees, suspects of crime, and witnesses are discussed throughout the report, often in the same categories (under type of technique). Hence, this section will discuss the main points addressed in the HIG report with a follow-up section reflecting on the role this report may play in shaping practicing interrogators in a variety of law enforcement agencies.
3.4.1 What Is in the HIG Report?
The HIG Report provides a comprehensive discussion of past and current interrogation practices. These include preparation, context, managing first impressions, countering resistance, developing and maintaining rapport, active listening, use of free narrative and open questions, assisting in the recall of memories (e.g., tell the story in reverse order), language style matching, among other techniques. Some of these work in tandem with each other and/or reinforce other strategies.
To counter resistance, an essential component of the HIG report, the Cylindrical Model (CM) is presented. CM:
is based on research that shows successful negotiations and interrogations can be understood in terms of the extent to which the interrogator and subject are “in sync”; that is, how they align their dialogue over the course of the interaction. The framework of the Cylindrical Model and research on resistance and counter resistance provides a roadmap for transitioning a subject being resistant to being cooperative.
The interactants’ ability to align their framing of dialogue is correlated with level of success in an interrogation. One example of synchronized language use is Language Style Matching (LSM). Research on the coordination of interrogators’ and suspects’ verbal behavior suggests that higher rates of the suspect matching the interrogators’ language style resulted in interrogations containing a confession (see Reference Richardson, Taylor, Snook, Conchie and BennellRichardson et al., 2014). The goal of these strategies is to establish a context of cooperation in which the suspect is working in tandem with the interrogator. The interrogator’s ability to influence the suspect and remove barriers, such as the suspect’s resistance to cooperation, also benefit from rapport building.
In the HIG, rapport is described as playing a central role in the successful interrogation of high-value detainees (see also HUMINT model for noncriminal, threat to national security suspects). The research in the report suggests that interrogators can establish rapport through coordination, such as mimicry, mutual attention, positivity, and activities that foment a working relationship between interrogator and interviewee. With witnesses, interrogators establish a positive relationship. The latter requires, among other steps, that the interviewer explain to the witness why they are being interviewed, what will happen in the interview (e.g., using active listening and nonverbal cues), and encourage the subject to recall as much information as possible, through the use of memory enhancing techniques. Similar methods are applied in the interrogation of high-value detainees. The methods laid out in the HIG report are reportedly used by a number of government agencies and some branches of the military to interrogate a variety of suspects. These methods appear to be modeled on rapport based interviewing (see Reference Collins, Lincoln and FrankCollins et al., 2002; Reference Alison, Alison, Shortland and Surmon-BohrAlison et al., 2020).
The HIG Report states that building rapport is considered one of the most important components of an interrogation, since it has been shown to increase the amount of information provided by subjects, improve trust, and produce cooperation. The report cites examples from police interrogations in which the officers used rapport to interview suspects. One of the examples is from video recordings of interrogations from the Los Angeles Police Department in the United States. These interrogations suggest that rapport behaviors increased for those sessions that ended in admissions and remained low for those sessions that ended in denials. As with other studies on rapport behaviors with suspects (see Reference Hartwig, Meissner, Semel and BullHartwig & Meissner, 2014), it is unclear how rapport was measured or evaluated in the study.
The use of influencing strategies in forensic interviewing is also addressed in the HIG Report, which states that: “Empirical observations have found that police in the U.S regularly employ poor interview techniques that either reduce the amount of information elicited or entice subjects [witnesses, victims and suspects] to provide incorrect information” (2016, p. 24). Hence, the report notes that CI methods may improve communication between interrogators and interviewees through rapport-building behaviors. The goal of this type of communication dynamics is to improve the amount and quality of information disclosed by the interviewee. To accomplish this task, enhancement of recall and memory retrieval is featured extensively in the report:
In addition to asking for the full story, the interviewer does not interrupt the subject until he has completed his narrative. The goal is to provide opportunities for the subject to recall as much as possible; interruptions will only impair that process. The subject is also encouraged not to guess at what he may not know, but to freely admit to lapses in memory. This avoids a too-cooperative subject guessing at what the interviewer wants to know and inserting such into his narrative, and is a recognition that memory about a particular event at any one time is frail and incomplete … . Once a full narrative is provided, the interviewer may ask the subject to go through the story again, this time enhancing his ability to recall.
The HIG Report further highlights rapport-based interviewing techniques, including: Observing Rapport-Based Interview Techniques (ORBIT), Motivational Interviewing, the Scharff technique, and Strategic Use of Evidence (SUE). ORBIT and Motivational Interviewing Techniques identify interpersonal interrogator-detainee interactions, one of which is adaptive and the other maladaptive, between interpersonal circles and along two dimensions: a “Cooperation–Confrontation” axis and a “Capitulation–Control” axis (see Reference Alison, Alison, Noone, Elntib and ChristiansenAlison et al., 2013). Interviewers that showed adaptive behaviors (for example, in charge, supportive and conversational) did not affect information yield, whereas maladaptive behaviors (for example demanding and rigid) significantly decreased information retrieved.
Another technique developed to improve the collection of intelligence information is the Scharff technique (see Reference Granhag, Oleszkiewicz, Sakrisvold and KleinmanGranhag et al., 2020). This technique applies a number of tactics, including employing a friendly (adaptive) approach, not pressing for information, using the illusion of “knowing it all,” presenting claims for the source to confirm or deny, and giving the impression of ignoring new information to downplay its importance. In experimental research, one consistent finding of the Scharff Technique is that it resulted in subjects thinking that they had revealed less information than they actually did and believing that the interviewers were more informed than they actually were.
Interrogating across cultures is another factor considered in the HIG Report. The emphasis, however, is on the effect of cross-cultural and linguistic differences in the interviewing and truth detection process rather than on improving communication and subject comprehension in these contexts. The report provides research and case studies showing how misunderstandings in cross-cultural communication, social encounters, intelligence interviews, and police interviews can interfere with social dynamics. Points that were addressed in this section of the report, include the role of face, role/authority, and the need for third party mediation, such as interpreter-mediated exchanges:
research on the use of interpreters in clinical settings has shown that an interpreter may also serve as a cultural consultant, community advocate, or even co-therapist … and that therapeutic alliance is not adversely impacted by the presence of an interpreter. In simulated interrogations, interviewees who spoke truthfully or lied through an interpreter about their current occupations reported that the presence of an interpreter had no effect on the rapport they felt with the interviewer.
Two points that stand out are (1) the view of the interpreter as a potential cultural advocate or even cotherapist, without consideration of the professional standing of the interpreter in a legal setting or the ethical canons of the profession, and (2) the theme of truth detection/cooperation and its possible effect on interpreter-mediated exchanges. Of note, in community interpreting, as may be the case with high-value detainees in the field, the interpreters may engage in cultural mediation and may not be professional/certified interpreters. The HIG Report, however, does not address the role of the interpreter once the person is in custody in the United States and subjected to interrogation and other legal procedures. The emphasis is on the possible effect of the interpreter on truth detection and interviewer rapport building, rather than on the role of the interpreter in providing accurate interpretations and cultural mediation, if required.
The HIG Report also includes a discussion on truth detecting techniques that rely on imposing cognitive load on suspects. Statement Validity Analysis (SVA), which was designed originally for use with children, is one of the techniques cited that assess the validity of adult suspects’ statements. This technique is particularly interesting since it is, or at least was, used by the FBI prior to the HIG Report’s release. The technique, called Statement Analysis (Reference Klopf and TookeKlopf & Tooke, 2003) shares some similarities with the Behavioral Analysis stage of the Reid technique. The goal of the Statement Analysis Field Examination Technique, or SAFE-T, is to assist the investigator in identifying areas for further investigation and truth detection. SAFE-T was designed to identify whether suspects’ statements are accurate and complete by focusing primarily on two elements: lack of conviction (personal) and extraneous information. Reference Klopf and TookeKlopf and Tooke’s (2003) study, albeit includes a small corpus, suggests that statement analysis has the potential to detect deception and do so at a higher rate than police interrogator’s “gut feelings.”
Other studies featured in the HIG report also examine the effect of increasing cognitive load on suspects’ recollections. Truth tellers, for example, seem to provide more details in their accounts than liars. Forensic statement analysis studies argue that deceptive narratives are shorter than truthful ones, as well as less lexically diverse (Reference Vrij, Granhag, Vrij and VerschuereVrij, 2015). Some studies (e.g., Reference Calderon, Mac Giolla, Ask and GranhagCalderon et al., 2018) found that drawings of false intentions were rated as more abstract than drawings of true intentions. These studies point to the potential role for abstractness in detecting deceit. As with other studies discussed in this section, research on truth detection has limitations ranging from small data sets to the use of experimental versus real life data. As Reference VrijVrij (2018) notes on the current, and growing field, of truth detection in interviewing:
The few studies examining multiple interviews have shown that differences between truth tellers and liars in consistency are modest at best. When differences exist, liars appear to be more consistent than truth tellers, which is at variance with the stereotypical belief that liars are more inconsistent than truth tellers … However, this finding is in line with the repeat versus reconstruct hypothesis … Liars need to keep track of their lies and try to repeat what they have said before, whereas truth tellers rely on their memory of the event. The latter leads to changes because memory is a reconstructive process.
Vrij warns that a “liar’s” consistency will also depend on the interview style used. A consideration that needs to be accounted for in future research on cognition, truth detection, and interviewing, particularly with criminal suspects. The question of whether a focus on truth detection and increasing cognitive load, as opposed to information gathering, is appropriate with criminal suspects also needs to be examined further due to the potential implications of creating suspect bias, particularly in legal frameworks that permit the use of trickery and deception and which require Miranda invocations to be unequivocal. A matter discussed in the next section.
3.5 Reid, PEACE, and the HIG Report: Additional Considerations in Light of United States Law
The Reid technique continues to be part of the fabric of United States policing. As previously noted, the technique emphasizes behavior analysis and the use of maximization and minimization, which are aimed at getting the suspect to confess rather than provide quality information that may further the investigation of a crime. The Reid technique has also been criticized for its potential to lead to false confessions: a possible outcome of confrontational, police driven interrogations (Reference Meissner, Redlich, Michael, Evans, Camilletti, Bhatt and BrandonMeissner et al., 2014). As Reference Brimbal, Meissner and KleinmanBrimbal et al. (2021) note, the lack of collaboration between researchers and practitioners and “empiricism has prolonged the use of a coercive accusatorial approach for suspect interviewing that is not the most effective at eliciting accurate and actionable information” (p. 5).
Contemporary research on the effectiveness of information-gathering and rapport-based approaches, on the other hand, have provided insights into the role of training in the application of these methods in the field. The PEACE model, for example, has been evaluated demonstrating mixed results: some showing post-training skill improvement (Reference McGurk, Carr and McGurkMcGurk et al., 1993; Reference Griffiths, Milne and WilliamsonGriffiths & Milne, 2006) whereas others showing less, or no significant, improvement of interviewing practices and rapport building (see Reference Clarke, Milne and BullClarke et al., 2011; Reference Griffiths, Milne and CherrymanGriffiths et al., 2011; Reference Walsh and MilneWalsh & Milne, 2008). Reference Brimbal, Meissner and KleinmanBrimbal et al.’s (2021) quasi-experimental research is noteworthy since it takes a different approach attempting to bridge the gap between research and practice to investigate whether police investigators are more likely to use the rapport building approaches they were trained in, and whether those tactics are effective in developing rapport, establishing cooperation, overcoming resistance, and eliciting information from interviewees. The study shows that the use of productive questioning and conversational rapport (see also Reference Griffiths, Milne and WilliamsonGriffiths & Milne, 2006; Reference Brimbal, Kleinman, Oleszkiewicz, Meissner, Barela, Fallon, Gaggioli and OhlinBrimbal et al., 2019) supports interviewee cooperation. The study concludes that police investigators can be effectively trained to perform evidence-based interviewing. In Reference Brimbal, Kleinman, Oleszkiewicz, Meissner, Barela, Fallon, Gaggioli and OhlinBrimbal et al.’s (2019) prior study this interviewing style facilitated the development of rapport and indirectly increased subjects’ cooperation and disclosure of information.
The CI model highlighted in the HIG report also emphasizes the role of rapport and productive questioning in the interrogation of high-value suspects. Despite its potential benefits improving recall and rapport building, this interview style raises a number of questions when applied to custodial, criminal, settings. As discussed previously, CI has traditionally been applied to witnesses, rather than suspects (see Reference GeiselmanGeiselman, 2012). This interview model aims to facilitate memory recall and detect possible deception. Witnesses’ statements, in particular, are key in the planning stages of a police interview as well as in the interview/interrogation phases of both Reid and PEACE. Hence, improving the odds of obtaining truthful information from witnesses may enhance the effectiveness of the investigative interview, and the probing/clarification stage of PEACE. Yet, the model may not be appropriate, in mission and objective, to the interview of custodial suspects, particularly in the United States. At present, there is also no available research that tests how either PEACE or CI would stand in the Miranda stage of a police interview, specifically in light of the Davis ruling. The emphasis on truth detection may also be a factor that affects the observance of the right to counsel. This takes us to a fairly new and controversial method called the Complex Investigation Phased Engagement Model (CIPEM) that is worth noting giving its potential to provide some clues as to how rapport building in CI and PEACE could fail when applied to custodial suspects in the United States.
CIPEM allegedly aims to get suspects who are not forthcoming with statements to open up to police investigators. This is accomplished by replacing normal police interview scenarios with a “fireside chat” environment. This includes the use of comfortable chairs, no desk or note-taking, shared food, and police seeming empathetic and understanding with the suspect’s plight. It is unknown how often this fairly new technique has been used, but in a recent high profile criminal case in New Zealand it resulted in the police interrogators breaking numerous guidelines when interviewing one of the suspects, such as not video recording important discussions, failing to advise the suspect of his legal rights on two occasions, engaging in persistent questioning aimed at wearing the suspect down, and misrepresenting the facts of the case (see Reference Ensor and WhiteEnsor & White, 2022). CIPEM has recently been renamed PEACE Plus, yet it is not clear how this model is consistently implemented in the field. More research is needed to assess the uses of PEACE Plus, but what is notable is that the use of rapport interviewing can be as problematic as Reid, if the interviewer does not observe the suspect’s legal rights (as in a “friendly” exchange) and fakes empathy toward the suspect in order to get a statement. This point needs to be considered if law enforcement agencies in the United States are utilizing information gathering and rapport based interviewing with criminal suspects in a manner that is inconsistent with the core goals of these methods.
In addition, as discussed previously, United States law allows (to an extent) the use of trickery and deception in police interviews. This is unlike other jurisdictions abroad, such as in the UK and Australia, where legislation was passed deeming it unethical and illegal to confront a suspect with fabricated evidence. The use of rapport to facilitate the interrogation of suspects, even those who have invoked counsel, may be problematic. The Reid technique nor the HIG report comprehensively address the legal needs of suspects (aside from the mandatory reading of rights), such as making legal counsel accessible to suspects, reducing the asymmetry of knowledge between interrogator and suspect, among other important legal and sociolinguistic considerations.
As the law and institutional culture factors stand, the truth detection features of CI and other techniques included in the HIG report, such as Statement Analysis, may bias the police interviewer into trying to “get around” the suspect’s rights and focus the interview significantly on detecting deception and/or making the suspect feel at ease and liked, even if the intent is to make the suspect more compliant in order to get a confession. The linguistic manipulation of a suspect during police questioning, as will be discussed in Chapter 4, increases the odds that interrogators will use what the law allows in all interviewing techniques, even those that are less confrontational than the widely used Reid technique. These issues become even more apparent with vulnerable suspects, such as those who may have cognitive and/or intellectual disabilities, as well as L2 speakers of English and juveniles. Furthermore, neither the Reid technique nor the HIG report fully incorporate, or include in the case of the HIG report, extensive research on the role that sociolinguistic factors may play in the interview process (see Reference ShuyShuy, 1998; Reference HeydonHeydon, 2005, Reference Heydon, Smets and Vrij2008), including the issue of language bias and profiling (e.g., African American English) and the need for professional/certified interpreters with L2 custodial suspects. The latter has received a good deal of attention in the literature and will be discussed further in Chapter 6.
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