Half a century ago the Supreme Court in Miranda v. Arizona noted with distaste the tricks and psychological manipulation perpetrated on suspects by police interrogators. Quoting from the 1962 edition of Inbau & Reid’s Criminal Interrogation and Confessions, the court described a recommended ruse where the interrogator pretends to have definite proof of the suspect’s guilt, but invites him to adopt a story that minimizes the legal consequences.

“Joe,” says the interrogator, “you probably didn’t go out looking for this fellow with the purpose of shooting him. My guess is, however, that you expected something from him and that’s why you carried a gun—for your own protection. You knew him for what he was, no good. Then when you met him he probably started using foul, abusive language and he gave some indication that he was about to pull a gun on you, and that’s when you had to act to save your own life. That’s about it, isn’t it, Joe?” If Joe agrees to this fiction, the interrogator “is advised to refer to circumstantial evidence which negates the self-defense explanation.”1 Thus, Joe has been cleverly tricked into admitting to the shooting.

There are problems with bamboozling a person legally presumed innocent into self-incrimination. One is that even an actually innocent person who’s been told that there’s conclusive proof of her guilt may reasonably believe that agreeing to a scenario proposed by the police, whether of self-defense, accident, or other excusable conduct, is the only alternative to being convicted of a serious crime. Another problem is that when the police pretend to believe that the crime is excusable or not a crime at all, the suspect reasonably believes that he will receive minimal or no punishment. In other words, it’s an implicit but clear promise of leniency. And finally, as anyone familiar with suppression hearings knows, it’s a short, easy step from self-entitlement to lie to suspects in the interrogation room to self-entitlement to lie on the witness stand.

Training the police in deceptive, psychologically manipulative interrogation tactics is a thriving commercial business. Its spokespersons indignantly deny that these tricks are coercive or likely to induce false confessions, and insist that there’s no other way to solve crimes. Interrogators “must deal with criminal suspects on a somewhat lower moral plane than that upon which ethical, law-abiding citizens are expected to conduct their everyday affairs,” explains the current Inbau & Reid manual. Requiring police interrogators to operate as ethical, law-abiding citizens would be like imposing a 20 mph speed limit in the name of highway safety.2

In a 33-year-old ruling, the New York Court of Appeals bought into this reasoning, holding that deception is acceptable unless it is “so fundamentally unfair as to deny due process.”3 This is not very helpful guidance for the police, who do not sit around discussing the meaning of due process and fundamental fairness before questioning a suspect. The constitutional test of coercion is not the astronomical standard of fundamental fairness, but whether the will was overborne.

There’s no other context where a waiver of fundamental rights is considered voluntary when induced by lies and deceptions.

Other countries consider deceptive interrogation tactics to be an oppressive, unethical and unreliable method of investigating crimes. In 1984, as a result of several high-profile miscarriages of justice involving false confessions, the Government of England and Wales passed the Police and Criminal Evidence Act (PACE), which required the full recording of interrogations and prohibited deceptive interrogation tactics. There was no decline in the rate of confessions. The government, together with the Association of Chief Police Officers and psychological researchers, subsequently developed a method of investigative interviewing known by the acronym PEACE.4

Unlike the Inbau & Reid-type method, which is essentially folk psychology, the PEACE model is derived from scientifically accepted principles of cognitive psychology and systematic field studies of police interrogation. Instead of making up a story and urging the suspect to agree to it, the interviewer focuses on gathering information—the only legitimate purpose of interrogation. The interviewer begins by introducing himself and explaining the purpose of the interview, the charges against the suspect and his legal rights. To ensure that the suspect understands, the investigator asks him to repeat them in his own words. If the suspect agrees to continue, he is asked to give his account, which the interviewer does not interrupt or contradict. The interviewer asks open-ended clarifying questions, probing and summarizing the suspect’s account. Only then does he ask the suspect to explain contradictory evidence.

For the “difficult” suspect, officers are taught to identify different attempts at evasion and deal with it, for example by ignoring it or refocusing the conversation, but never by engaging in arguments.

The PEACE model does not presume guilt and makes no overt attempt to persuade a non-compliant suspect to confess.This contrasts sharply with the Inbau & Reid manual, which purports to instruct on how to identify a guilty suspect from his body language and “paralinguistic cues” (which scientific research has debunked), and assumes that once the interrogator has decided the suspect is guilty his job is to get the evidence from his own mouth.

PEACE emphasizes that obtaining a full and accurate account will result in more reliable evidence than simply trying to get the suspect to inculpate himself:

By obtaining an initial free narrative and using evidence-based challenges, the interviewer is able to reveal innocence or guilt—that is, an interviewee’s failure to respond truthfully to evidence (e.g., DNA, CCTV recordings) that contradicts his or her account can illustrate guilt regardless of whether the interviewee verbalizes that guilt.

PEACE, therefore, allows the truth to be revealed without the use of manipulative and coercive tactics and the risk of false confessions.5

The outstanding difference of the PEACE model is that the interviewer doesn’t lie. For instance, although both PEACE and Inbau & Reid recommend establishing rapport, the PEACE interviewer does not do so by misrepresenting the purpose of the interview or its adversary nature.

The PEACE interviewer is polite and professional, but does not tell the suspect he is there to “help” her or “clear this up” so she can go home. Although both methods involve confronting the suspect with contradictory evidence, the PEACE model requires that the evidence be true. The PEACE interviewer does not suggest scenarios, let alone minimizing scenarios, to trick the suspect into inculpating herself.

The PEACE model is not some pie-in-the-sky ideal, but the actual practice of police forces in England, Wales, New Zealand, Norway and parts of Australia and Canada. Knowing that there are ethical alternatives should, at the very least, enable courts to consider police tricks and ruses with a more critical and skeptical eye.6

Lorca Morello is a staff attorney in The Legal Aid Society’s Criminal Appeals Bureau.

Endnotes:

1. Miranda v. Arizona, 384 US 436, 451-452 (1966).

2. Inbau, Reid et al., Criminal Interrogation and Confessions xiv (5th ed. 2013).

3. People v. Tarsia, 50 NY2d 1, 11 (1980).

4. Preparation and planning; Engage and explain; Account; Closure; and Evaluate. See Brent Snook et al., Reforming Investigative Interviewing in Canada, 52 Canadian J. Criminology & Crim. Justice 203, 207-210 (2010) available at http://www.cbc.ca/thenational/includes/pdf/snook-reforminginvest.pdf.

5. Snook at 211

6. On Thursday, Nov. 21 at 6 p.m. at the St. Francis College, 180 Remsen St. in Brooklyn, The Legal Aid Society is presenting a CLE program on the P.E.A.C.E. model.