The goal of police questioning should be to obtain accurate and reliable information, while seeking to eliminate undue coercion, and treat persons with dignity and fairness.
a. Accuracy. Law enforcement has a strong interest in obtaining accurate and reliable evidence using police questioning. Police questioning can produce highly probative evidence, including incriminating statements and witness statements, which can be the most important evidence in criminal investigations. However, police questioning also can produce unreliable evidence. The central goal of interviews and interrogation—of a suspect or others—is to secure accurate information. The use of procedures and methods designed to elicit accurate information, test information’s accuracy, and carefully document information through recording, can ensure police questioning furthers its appropriate goal. Such safeguards are essential; the problem of false confessions is well known. Not only can physical coercion and torture lead individuals to implicate themselves and others falsely, but it is now equally understood that psychological pressure can do the same. Scientific research has shed light on the ways in which psychological pressure can induce false confessions, and that research—as well as innovations by law-enforcement agencies—provides methods to minimize the risk of obtaining false or unreliable confession statements. Individuals are different and may react to a police interview in very different ways. If officers begin questioning, they should keep an open mind and seek to corroborate the individual’s story to assess its veracity.
These Principles do not always track constitutional rulings. Constitutional rulings recognize the dangers of “involuntary” confessions, but do not provide significant protection against false confessions, and largely do not address the reliability of confessions. Traditional constitutional standards require heightened attention to questioning conducted when a suspect is placed in “custody.” As discussed in the next Section, these Principles do not rest on this distinction. However, these Principles recognize that the more serious an offense, the greater the law-enforcement interest, such that more sustained questioning may be appropriate.
b. Coercion. These Principles reflect the view that agencies should minimize the coercion that is placed on individuals during police questioning. By coercion, these Principles mean pressure placed upon individuals to cooperate with police questioning in a responsive way. (This Chapter is not intended to provide guidance regarding cooperating witnesses, incentivized witnesses, and police informants, all of which are the subject of a separate set of Principles.) Although neither witnesses nor suspects should be unduly coerced, these Principles focus on the questioning of suspects. Though there typically is less reason to place pressure on witnesses who are not suspected of wrongdoing because they less often are reluctant to share information with law enforcement, to the degree that officers seek to persuade reluctant witnesses, the same principles apply. Coercion can produce false-confession evidence and false statements, implicating accuracy concerns. In addition, while effectiveness alone would not justify undue coercion, less coercive techniques have been used by agencies with great success, and there is no evidence that they are less effective. Coercion also harms the legitimacy interests described next, because applying undue pressure to individuals during police questioning harms individual dignity.
The following Principles identify methods aimed at minimizing the coercion used during interviews and interrogations. Although these Principles reflect the values important to constitutional rulings concerning the Fifth Amendment, they do not track constitutional standards, which typically do not address the degree of coercion that police may use during questioning.
c. Legitimacy. An important goal of police questioning, as with policing generally, is legitimacy, including whether members of the public support and cooperate with the police. Legitimacy requires treating individuals with dignity, and it harms the dignity of individuals to subject them to undue pressure to incriminate themselves. As a society, we abhor the use of torture to secure information from citizens. We equally abhor the use of undue psychological coercion to secure information from citizens. Thus, in addition to the goal of obtaining accurate information useful in criminal investigation—and minimizing coercion—it is important that agencies conduct interrogations in a manner that is fair and respectful of dignity. The use by agencies of unduly coercive or deceptive techniques can undermine the legitimacy of law enforcement.
d. Characteristics of persons being questioned. As is further developed in § 11.05, vulnerable populations—including but not limited to juveniles and persons with mental-health needs—should be questioned with particular care, and to the minimal extent possible. Doing so serves each of the three interests described above: accuracy, minimizing coercion, and legitimacy. Before questioning, officers should assess the characteristics of the person to be questioned, in order to identify such vulnerable individuals. Policy, training, and additional resources, such as the collaboration of mental-health professionals, can assist officers in making such assessments.
e. Types of questioning. Officers speak to witnesses in circumstances ranging from informal information gathering from cooperative witnesses in the field to questioning of suspects at a police station. These Principles recognize that all police questioning has as its common goal the accurate, minimally coercive, and legitimate investigation of criminal matters. As a result, while interviews of suspects are the focus of these Principles, there is no a firm dividing line between relatively more informal interviews—often conducted outside the police station, of persons who may be witnesses or potential suspects—and interrogations, conducted in a more formal manner and typically in a room at a police station. Each of those types of questioning is vitally important to the preparation of many criminal cases. Information from witnesses as well as suspects can provide crucial information to officers and agencies.
A detailed body of constitutional law applies to police questioning of suspects. One important area of constitutional law—the Miranda doctrine—draws a line by asking whether a person is deemed to be in “custody.” See Miranda v. Arizona, 384 U.S. 436, 444 (1966). A determination that an individual is in custody, broadly speaking, establishes an obligation to: (1) provide a set of warnings before a custodial interrogation begins, and (2) honor requests for counsel. Constitutional law has very little to say about noncustodial questioning by officers, other than requiring any statement to have been “voluntarily” obtained. The focus in constitutional law on the issue of “custody” can be quite formalistic, and remote from the concerns that motivate these Principles. For example, an innocent person who is not considered to be in custody still may face great pressure to confess falsely. A vulnerable person, such as a juvenile or mentally ill person, may receive unfair treatment that implicates concerns of legitimacy, even if not considered a suspect and not formally deemed to be in custody during the questioning. That said, the concerns with accuracy, coercion, and legitimacy may well be greater in the settings in which more formal custodial questioning occurs. No matter in what form or setting questioning occurs, police professionals ought to have an abiding interest in getting it right. Thus, these Principles do not take as their starting place the line between custodial and noncustodial interviews. Rather, the focus is on obtaining accurate statements with minimal coercion applied by officers in their questioning of a suspect.
To be clear, individuals may face pressure to cooperate and answer questions, due simply to the inherent authority and power of law enforcement, and the role that police officials play in the criminal justice system, This may be the case even if police do not seek to impose any additional pressure. Officers should be mindful that many features of the criminal system, including both the costs of non-cooperation and the benefits of cooperation, can place great pressure on individuals during police questioning.
f. Policy, training, and supervision. To ensure that police questioning yields accurate information, while minimizing coercion, law-enforcement agencies should have in place sound policy, appropriate training, and adequate supervision. Written policies should describe in advance how police questioning should be conducted, consistent with § 1.06, and those policies should be as detailed as is necessary to ensure compliance with these Principles. Training should provide officers with techniques to carry out these policies. Supervisors should review transcripts or video of questioning carried out by officers in order to improve training and to provide guidance to officers.
Police questioning is indispensable to criminal investigations. It can include relatively informal police questioning of witnesses, as well as more formal interrogation of suspects, as discussed in § 11.04. A confession can help to solve a crime that otherwise might have gone unsolved. If a suspect volunteers details about a crime that were not made public, that can provide officers with very probative evidence of guilt. Moreover, many suspects volunteer their guilt quite readily. Careful and professional questioning of non-suspect witnesses can elicit further information that may prove crucial to understanding and solving a crime. These Principles focus primarily on suspects, and not witnesses, because the concerns with coercion and legitimacy are heightened when suspects face pressure to potentially incriminate themselves. However, it is important that sound practices also be used when witnesses, including fully cooperative witnesses, are questioned.
Police interrogation methods have evolved in important ways. That torture or use of physical coercion can cause false confessions has been long known. Well-known false confessions in America date back to Colonial times, to the Salem Witch trials of 1692. Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 L. & Hum. Behav. 3, 4 (2010). While use of the third degree has been forbidden for decades by law enforcement, training and policy still commonly permit, if not encourage, the use of a high degree of psychological coercion of suspects. The leading interrogation training manual emphasizes the use of detailed methods designed to secure confessions using psychological techniques, including threats, promises, and deception of suspects. Fred E. Inbau, John E. Reid, Joseph P. Buckley & Brian C. Jayne, Criminal Interrogations and Confessions (5th ed. 2013). In recent decades, it has become better understood that such forms of psychological coercion similarly can produce false confessions. See, e.g., Steve A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 968-974; See Richard J. Ofshe & Richard J. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Denv. U. L. Rev. 979, 984 (1997). Many of the wrongful convictions overturned in recent decades involved psychological, as opposed to physical, coercion. Over time, concerns have grown that psychological techniques can manipulate suspects into falsely confessing. For an overview, see Richard A. Leo, Police Interrogation and American Justice 181 (2008).
False confessions are an important cause of wrongful convictions. False confessions have led to over 60 exonerations in cases involving DNA testing and many more cases not relying upon DNA evidence to exonerate. The individuals often spent a decade or more in prison before obtaining their exoneration. Almost without exception, those exonerees were said to have confessed in detail, offering inside information that only the culprit could have known; in retrospect, it is evident that their confession statements were contaminated and that law enforcement must have disclosed those details. See Brandon L. Garrett, Confession Contamination Revisited, 101 Va. L. Rev. 395 (2015). In addition, the National Registry of Exonerations includes over 200 exonerations that involved confessions, the majority of which were non-DNA exonerations. The National Registry of Exonerations, Joint Project of Mich. Law & Nw. Law, Exonerations by Contributing Factor, at https://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx. Agencies have had substantial civil-damages awards imposed in cases in which contaminated confessions led to wrongful convictions. See, e.g., Warney v. State, 16 N.Y.3d 428 (N.Y. 2011); Jerry Markon, Wrongfully Jailed Man Wins Suit, Washington Post, May 6, 2006, B01.
Researchers have documented distinct types of false confessions caused by psychological coercion. Some individuals comply due to pressure placed on them by officers. Others internalize what they are told and actually become convinced of their guilt even though they are innocent. Saul M. Kassin & Katharine L. Kiechel, The Social Psychology of False Confessions: Compliance, Internalization, and Confabulation, 7 Psychol. Sci. 125 (1996). Researchers also have raised concerns that innocent individuals face special risks during interrogations. Saul M. Kassin, On the Psychology of Confessions: Does Innocence Put Innocents at Risk?, 60 Am. Psychol. 215, 216, 223 (2005) (describing how innocent individuals may place more trust that law enforcement will ultimately clear them and as a result, place themselves at risk of falsely confessing). Researchers have described the dangers of false confessions for many years. Gisli H. Gudjonsson, The Psychology of Interrogations and Confessions 523-537 (2003).
An additional problem is that even false confessions can appear to be extremely reliable, and as a result, they can play a powerful role in criminal cases. Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051, 1084 (2010). Confession evidence is extremely compelling before a jury. In well-known cases, jurors have convicted individuals even despite DNA testing that excluded them, on the strength of confession statements. Id. The power of confession evidence may be so strong that it also enhances perceptions of the strength of other evidence in a case. Jeff Kukucka & Saul M. Kassin, Do Confessions Taint Perceptions of Handwriting Evidence? An Empirical Test of the Forensic Confirmation Bias, Am. Psychologist (2014). Indeed, once a confession has been secured—false or otherwise—officers may cease investigating other leads and attorneys may be highly motivated to secure a plea.
Constitutional rulings do not provide significant protection against false confessions; they largely do not even address the reliability of confession statements. Rather, they try to rule out police questioning practices that implicate concerns with coercion as well as with legitimacy. See, e.g., Brown v. Mississippi, 297 U.S. 278 (1936); Haynes v. Washington, 373 U.S. 503 (1963); Frazier v. Cupp, 394 U.S. 731 (1969). Nonetheless, the concern with accuracy has been present in some rulings as well. In its ruling in Miranda v. Arizona, the U.S. Supreme Court cited the well-known false-confession case of George Whitmore and how he had confessed due to “brainwashing, hypnosis, [and] fright.” 384 U.S. 436, 455 n.24 (1966). More recently, the Supreme Court has cited examples of false confessions uncovered by DNA testing in capital cases. Atkins v. Virginia, 536 U.S. 304, 320 n.25 (2002) (“in recent years a disturbing number of inmates on death row . . . [including] at least one mentally retarded person [Earl Washington, Jr.] who unwittingly confessed to a crime that he did not commit.”).
It has been common among American police interrogators to use the “Reid method,” see Fred E. Inbau et al., Criminal Interrogation and Confessions 347 (5th ed. 2013). That method emphasizes a set of psychological techniques designed to confront and accuse a suspect, and then maximize the pressure placed on the suspect to incriminate themselves, while appearing to minimize the consequences for the suspect in doing so. The techniques tend to rely on “some form of deception,” ranging from “rationalization” of the person’s actions to outright “evidence fabrication.” Christopher Slobogin, Manipulation of Suspects and Unrecorded Questioning: After 50 Years of Miranda Jurisprudence, Still Two (or Maybe Three) Burning Issues, 97 Boston U. L. Rev. 1157, 1161 (2017).
However, these traditional interrogation methods have been evolving in the United States. A leading interrogation training provider, Wicklander-Zulaski & Associates, no longer trains on the Reid Method. Eli Hager, A Major Player in Law Enforcement Says it Will Stop Using a Method that is Linked to False Confessions, Marshall Project, March 9, 2017. The federal High-Value Detainee Interrogation Group (HIG), which includes members of the Central Intelligence Agency, Federal Bureau of Investigation, and other federal law enforcement, has developed interrogation best practices that similarly focus on questioning that is designed to build rapport and “draw out what the detainee knows as opposed to only focusing on the intelligence the team would like to obtain.” High-Value Detainee Interrogation Group, Interrogation Best Practices 2 (August 26, 2016), at https://www.fbi.gov/file-repository/hig-report-august-2016.pdf/view. Police departments, including in Dallas, Philadelphia, and Los Angeles, have begun to use the approach developed by the HIG.
In response to concerns about several high-profile false confessions, U.K. interrogators also developed an alternative: the PEACE model (for Planning and Preparation; Engage and Explain; Account; Closure; and Evaluation). Slobogin, supra, at 1161-1162. The PEACE interrogation methods used in the United Kingdom, and now in Australia, Denmark, New Zealand, Norway, Sweden, and other countries, adopts an “investigative interviewing” approach, geared toward obtaining rapport with a suspect and maximizing the amount of information gathered from that suspect. See, e.g., James Trainum, How the Police Generate False Confessions 218 (2016). Christian A. Messner, Christopher E. Kelly & Skye A. Woestehoff, Improving Effectiveness of Suspect Interrogations, 11 Ann. Rev. L. & Soc. Sci. 211, 213 (2015), citing John Baldwin, Police Interview Techniques: Establishing Truth or Proof?, 33 Brit. J. Criminol. 325 (1993); Rebecca Milne & Ray Bull, Investigative Interviewing: Psychology & Practice (1999); Thomas M. Williamson, From Interrogation to Investigative Interviewing: Strategic Trends in Police Questioning, 20 Psychonomic Bull. Rev. 812 (1993). This model is characterized by the use of noncoercive tactics and open-ended questions. Colin Clarke & Rebecca Milne, National Evaluation of the PEACE Investigative Interviewing Course, Police Research Award Scheme (2001); Stavroula Soukara et al., What Really Happens in Police Interviews of Suspects? Tactics and Confessions, 15 Psychol. Crime & L. 492 (2009); David W. Walsh & Rebecca Milne, Keeping the PEACE? A Study of Investigative Interviewing Practices in the Public Sector, 13 Legal & Criminol. Psychol. 39 (2008). Other alternatives include the approach developed for counterterrorism efforts by the High-Value Detainee Interrogation Group Research Unit. Slobogin, supra.
This Section does not require that agencies adopt any one model of police interrogation, but it rejects the most coercive and deceptive techniques and discourages using methods that have been shown to produce false confessions. The larger thrust of these Principles, that agencies should be most concerned with obtaining accurate information in a fair and dignified manner, is more compatible with training and processes used by approaches, such as the PEACE approach, that depart from the Reid method.
Related to, but separate and apart from, the accuracy-based concern with false confessions, the legitimacy and dignitary concern with physical and psychological coercion is equally important and longstanding. Torture, or use of physical force to secure information from a person, has long been forbidden under the Fifth Amendment. As the U.S. Supreme Court has put it in its rulings, the Fifth Amendment’s self-incrimination clause reflects the view that: “important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.” Blackburn v. Alabama, 361 U.S. 199, 206-207 (1960). The concern with coercion dates back long before the Fifth Amendment was drafted. Justice Hugo Black famously wrote that “The testimony of centuries, in governments of varying kinds over populations of different races and beliefs, stood as proof that physical and mental torture and coercion had brought about the tragically unjust sacrifices of some who were the noblest and most useful of their generations.” Chambers v. Florida, 309 U.S. 227, 237-238 (1940). The 1931 National Commission of Law Observance and Enforcement examined the problem of police use of torture and noted that: “the third degree is especially used against the poor and uninfluential.” IV Nat’l Comm’n on L. Observance & Enf’t, Report on Prosecution 159 (1931). The U.S. Supreme Court has long been concerned with the state using interrogations to coerce individuals “whether by physical force or by psychological domination . . .” In re Gault, 387 U.S. 1, 47 (1967). Legitimacy concerns are also raised by use of deception, which may undercut credibility of law enforcement in other contexts. Margaret L. Paris, Lying to Ourselves, 76 Or. L. Rev. 817 (1997).
However, constitutional rulings do not address adequately the concern with psychological coercion during police questioning, and, as a result, these Principles directly counsel minimizing coercion rather than relying on language in constitutional rulings. The U.S. Supreme Court’s Fifth Amendment “voluntariness” test provides a remedy for undue coercion during custodial interrogations. Arizona v. Fulminante, 499 U.S. 279, 303 (1991). However, that test is multi-factored and highly case-specific, and it does not provide clear guidance to law enforcement. Eve Brensike Primus, The Future of Confession Law: Toward Rules for the Voluntariness Test, 114 Mich. L. Rev. 1, 3 (2015). Courts have upheld, for example, extremely lengthy interrogations. Welsh S. White, What Is an Involuntary Confession Now?, 50 Rutgers L. Rev. 2001, 2046-2047 (1998). Courts have found as voluntary confessions that are now known to have been false. Garrett, The Substance of False Confessions, supra; Drizin & Leo, supra, at 944-945, 963-971. Indeed, the Supreme Court has itself noted that the voluntariness test does not provide clear guidance to law enforcement. Dickerson v. United States, 530 U.S. 428, 444 (2000) (“[T]he totality-of-the-circumstances test . . . is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner.”); Haynes v. Washington, 373 U.S. 503, 515 (1963) (“The line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw”). For that reason, these Principles address the problem of undue coercion directly, and without relying on the constitutional voluntariness test.
Whether a person is deemed to be in “custody” while being “interrogated” can trigger a range of constitutional protections, such as the Fifth Amendment right to remain silent and the Sixth Amendment right to counsel. One goal of these Principles is to move beyond the unwieldy concept of “custody.”
The test for whether a person is deemed in custody is not clear. The U.S. Supreme Court recently explained that: “As used in our Miranda case law, ‘custody’ is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion.” Howes v. Fields, 132 S. Ct. 1181, 1189-1190 (2012). Yet, despite this seeming connection to coercion, the Court’s cases often are quite divorced from it. In some cases, the Court engages in a formalistic inquiry about whether it believes a person would feel free to leave, even if the questioning took place behind closed doors at a police station. See Oregon v. Mathiason, 429 U.S. 492 (1977) (“Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.”). At other times, the Court relies on an objective “totality of the circumstances” test. Howes, 132 S. Ct. at 1189-1910. The Court has held that relevant factors include: “the location of the questioning, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning.” Id. The individual characteristics of the person being questioned are also relevant, including whether the person is a juvenile. J.D.B. v. North Carolina, 564 U.S. 261 (2011). In other cases, the Court has held that age and experience with law enforcement were not relevant circumstances. Yarborough v. Alvarado, 541 U.S. 652 (2004). The Court has held that questioning during traffic stops does not constitute custodial interrogation. Berkemer v. McCarty, 468 U.S. 420, 437-438 (1984). Yet, the Court also has said that people who are in prison are not necessarily in “custody” when questioned. Howes, 132 S. Ct. at 1190 (reasoning that “questioning a person who is already serving a prison term does not generally involve the shock that very often accompanies arrest.”).
As the language from those tests and the outcomes in those cases suggest, the U.S. Supreme Court’s Fifth Amendment “totality of the circumstances” test does not provide very useful guidance to law enforcement. The distinctions set out in the cases are not intuitive. They create opportunities for gaming the system, rather than a clear set of best practices for interviews and interrogations. Thus, in rulings such as Salinas v. Texas, 133 S. Ct. 2174 (2013), the U.S. Supreme Court has been highly tolerant of police questioning of individuals deemed not to be in “custody,” without providing warnings under Miranda and the accompanying constitutional protections. Informal questioning is a valuable and important practice, but, like formal questioning of suspects, it too should be governed by careful principles and policy.
The rulings in constitutional litigation are geared toward determining whether evidence will be admissible at a criminal trial, are not focused primarily on what is desirable as a matter of sound policy and practice, and often have very little to do with reliability or coercion. These Principles, by contrast, encourage officers to follow procedures designed to ensure that rights are respected and reliable information is obtained, no matter what the interview or interrogation setting. Constitutional law sets a floor and must be followed, but these Principles are intended to address concerns, often neglected by constitutional law, regarding reliable confessions, statements obtained with minimal coercion, and ensuring legitimacy and treatment of individuals with dignity.