As part of the 2012 TLR Symposium held on November 9, 2012, a panel of experts discussed deception and other strategic tactics used during police interrogations. Professor Edward Ohlbaum of Temple Law moderated the panel, comprised of Professor Louis Natali of Temple Law and Joseph P. Buckley III, a criminal enforcement consultant on interrogation methods including the Reid Technique.
The Line Between Deception and Fabrication
Edward Ohlbaum, a law professor at Temple since 1985 and current Director of its Trial Advocacy program, began the discussion by sharing a story from when he served as a public defender in 1979. The defendant had confessed to a robbery because he failed a polygraph test. It appeared to be an open and shut case. Later, however, the public defender discovered that the test had been administered at a particular police station in West Philadelphia which did not typically administer polygraph tests. While at a cocktail party four weeks after the trial, the public defender learned from a detective that the defendant had actually been “hooked-up” to a Xerox machine in the station. Whenever the defendant answered a question, a piece of paper was produced by the machine that said “You lied.”
Professor Ohlbaum then asked whether the police tactics used in his story constituted police coercion. Deception, according to Ohlbaum, is used to convince the suspect of something that is completely illogical. By definition, it exists when investigators try to convince the suspect that it is in his or her own best interest to confess. Thus, the whole goal of interrogation—to convince the suspect that the consequences of confession outweigh or are more desirable than denial of involvement in the crime—is a big lie. Courts have held that police officers have the right to lie to suspects by making assertions about false evidence. Where the line has been drawn, however, is with the fabrication of actual evidence (lab reports, for example).
Ohlbaum then posed two questions to the panel. First, would it be appropriate for an investigator to feed the suspect bad facts? Sharing false information with the suspect would not necessarily contaminate the interrogation. However, if the suspect were to agree with numerous bad facts, it would suggest that the suspect is a compliant confessor, rather than a guilty one.
Second, Ohlbaum asked the panel, when the videotaping of conversations with suspects should begin—from the moment the suspect walks into the station or after the initial interview? Ohlbaum concluded his presentation by arguing that the reasons why an innocent person would confess to a crime are outside the realm of knowledge of a layperson. Therefore, he argued, that it might be time to open the door to experts to testify in order to help the jury determine whether or not a person’s confession is legitimate or if it was coerced.
The Use of Deception in Interrogations
Joseph P. Buckley III continued the panel’s discussion. Buckley is the President of John E. Reid and Associates in Chicago, Illinois and has co-authored three books, including Essentials of The Reid Technique. He argued that lying alone to suspects is not the problem. Rather it is when the lie is accompanied by other objectionable behavior during the interrogation that the interrogation becomes coercive. Therefore, he argued, an interrogation was probably reasonable if the only issue is that the investigator lied.
Although Buckley did not view lying as the problem, he did argue that investigators should only lie to suspects as a last ditch effort. If investigators lie to the suspect too early in their interrogation, according to Buckley, they run the risk that the suspect will know that the investigators are lying. This could cause the investigators to lose all credibility.
Buckley also argued that, although lying is permissible under numerous decisions of various courts, it may not always be appropriate. Therefore, the investigator must exercise judgment in utilizing a lie during an interrogation. For example, false information should not be used in an interrogation of a suspect who acknowledges that he may have committed the crime, even though he has no specific recollection of doing so. According to Buckley, the interrogator’s job is to convince the suspect to tell the truth, not to get him or her to confess. Furthermore, the use of a lie, although permitted by the courts in such a situation, may only serve to confuse the witness about his or her real involvement.
Criticism of the Reid Technique
The panel’s discussion continued with Professor Louis Natali’s overview and critique of the Reid Technique. Prior to joining Temple, Professor Natali was First Assistant Defender at the Philadelphia Defender’s Association. He currently serves on the Board of Directors of the Pennsylvania Innocence Project.
Natali began by asking why deception is used if it is not to gain an advantage in the interrogation process. He then evaluated the behavior analysis interview strategy used in police interviews. He noted that the reasoning behind this strategy has never been subjected to peer review. Thus, it is unclear how reliable the strategy is and what its rate of error is.
He further argued that as a society we have decided that lying is inherently bad. As a result, many professions are explicitly prohibited from lying. For example, stockbrokers and real estate agents face discipline if they were to lie during the course of professional affairs. Nonetheless, we have allowed our police officers to lie to suspects in order to obtain the truth. In addition, Natali argued that there is insufficient evidence to show that treating suspects hospitably would not provide the same outcomes as lying to them does.
Professor Natali ended his presentation by discussing the Reid Technique and playing a video of its use during the interrogation of Michael Crowe, who was falsely charged with killing his sister. Initially developed as an anecdote to the third-degree method, the Reid Technique uses questions that are meant to invoke stress in the suspect. Thus, according to Professor Natali, the answers to the questions are not as important as the body language they invoke. Even though the method is not supposed to be used on children, it was used in the case of Michael Crowe, who was 14 at the time. After questioning, Crowe eventually confessed to the killing of his sister, implicating one of his friends as a co-conspirator. After both Crowe and his friend were charged with the victim’s murder, a drifter confessed that he had killed the young woman shortly before their trial. Thus, Natali argued, that the Reid Technique is frequently misused to obtain false confessions.
Emilia McKee
Temple University School of Law, J.D. Candidate 2014
Supplemental Materials on the Use of Deception in Interrogation (pdf)