What is the right play when you read an in-custody suspect his Miranda rights and ask him if he wishes to talk - but he doesn't say "yes" or "no"? Can an officer proceed without a definitive "yes" in response to that all important question: With these rights in mind, do you wish to speak with me now?
On June 1, 2010, the US Supreme Court analyzed the police interrogation of homicide suspect Van Chester Thompkins. After being advised of his Miranda rights, Thompkins demonstrated he understood those rights - but when asked if he wanted to speak to police (and thereby waive those rights) he did not say "yes" or "no." The police officers elected to begin the interrogation without Thompkins having explicitly waived his rights or having told them he wanted to speak with them. Thompkins was almost completely silent during the 3-hour interrogation with the exception of a few sporadic comments. At one point the officers asked Thompkins if he believed in God, prayed to God and whether he had prayed to God to forgive him for shooting the victim. Thompkins answered "yes" to each of the questions. Thompkins later filed a motion to suppress his statements, claiming that he had invoked his Fifth Amendment right to remain silent, that he had not waived that right, and that his inculpatory statements were involuntary. The Court ultimately found the confession was admissible and that a reasonable police officer would not have found Thompkins' remaining silent after being read his Miranda rights to be an invocation of his Fifth Amendment right to silence. The Court said, "Once a suspect has been provided with the requisite warnings and has had an opportunity to invoke his rights, the primary purposes of Miranda are fulfilled." In short, if an in-custody suspect is read Miranda and demonstrates (or explicitly acknowledges) he understands those rights, an officer may interrogate a suspect even if he doesn't explicitly waive those rights. Having been properly presented his rights a suspect has been put on notice that those rights are enduring and can be invoked at any time during questioning.
(***Note: Questioning must be cut off by police at the moment an in-custody suspect takes the opportunity to invoke those rights.***)
The International Association of Chiefs of Police (IACP), in conjunction with the Office of Juvenile Justice and Delinquency Prevention (OJJDP), released this Guide in September, 2012. Designed to aid law enforcement in obtaining legal and reliable confessions, this Guide shares current scientific research, analyzes pertinent case law, and makes a number of "best practice" recommendations for juvenile interrogations. Graduates of The CTK Group's three day and two day courses will be pleased to find the most current research and this Guide endorse the techniques they have been trained in. Officers must be aware of the research regarding juveniles - and implement interview and interrogation practices that are designed to avoid involuntary and false confessions.
Officers should read this cutting edge research presented by the High-Value Detainee Interrogation Group (HIG) - the U.S. intelligence-gathering group created by President Barack Obama in August 2009 with the mission of enabling "...the nation's most effective and experienced interrogators to collect intelligence from terrorism suspects in order to prevent attacks against the US and its allies." Consider the implications for the thousands of law enforcement officers at the local, county and state level.
The job of the police is to stop crime by stopping criminals. It is a real life, deadly cat-and-mouse game where the hunter and the hunted spar for advantage and success. To accomplish its goals, law enforcement can draw from a vast array of technologies, stratagems, and devices. One of the primary weapons in the law enforcement arsenal is deceit. Criminals, like most prey, are lured into clever traps set by police. The police create circumstances and situations that are designed to prompt the criminal suspect into revealing incriminating information. This is obvious in the use of confidential informants, undercover police officers, and other common police tactics. Suspects are “tricked” by police into revealing themselves. A controversial aspect of this kind of police “trickery” occurs in the interrogation context. What may police tell suspects to “trick” or prompt them into confessing? Can a police officer misrepresent the strength of the case against the suspect? Can an officer lie about the nature of incriminating evidence? Can an interrogating officer disguise his or her identity during the interrogation and pose as a family friend, priest, or someone friendly to the accused? This article by Miller Shealy Jr. examines current police practices in the context of recent Supreme Court cases and social science findings. Shealy Jr. argues that certain deceptive techniques are appropriate in the interrogation context. If appropriately utilized, “trickery” of a certain type does not unreasonably increase the risk of false confessions and is an appropriate tactic in the hunting of criminals.
The CTK Group strongly encourages our students to rely on Evidence-Based Interview and Interrogation methods, and that includes using the Cognitive Interview for Suspects, researched and developed by Dr. Ed Geiselman of UCLA. The cognitive interview for suspects (CIS) is geared toward obtaining large amounts of information from a subject, in part because most research shows that most liars hate to say more than the minimum necessary to comply with the interview. Elements of the CIS also allow ample opportunity for the subject to reveal the deception on his/her own, such as when he/she is unexpectedly asked to draw the scenario or to tell the story backward. The chances of accurately detecting deception go up dramatically when the interviewer gets actively involved in the process rather than simply observing the subject, waiting for an indictor to give the subject away.
It is fairly routine for an officer to go to the County Jail and ask an inmate who is pending trial to talk - often about an investigation or case other than the one they had been arrested for. The United States Supreme Court advised in Roberson that once an individual has been placed in custody and invoked his legal right to an attorney (under the Fifth Amendment), all communication must cease between law enforcement unless his attorney is present (or the individual re-initiates contact with law enforcement). Simply put, an invocation of the right to an attorney regarding the one offense bars all other officers - for all other cases - from attempting to interview the individual. There are some exceptions to this general principle that should be considered, including: re-initiation by the individual and a break in custody (that is, a release of the individual from the custodial setting).
In 1997, the Supreme Court of Iowa reviewed a District Court's decision not to suppress statements made by Darla Countryman regarding her involvement in the double-murder of sisters Madelyne and Dorothy Miletich. The Court's opinion was concerned with when Miranda warnings had to be read, and if so, whether they were properly given. The Iowa Justices reiterated, "Miranda warnings are not required unless there is both custody and interrogation." Therefore, the Court noted, the critical question was whether Darla was in custody of law enforcement officers at the time she made incriminating statements. The Court said in determining whether an individual [is] in custody, a court must examine all of the circumstances surrounding the interrogation, but “the ultimate inquiry is simply whether there was ‘a formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.”
In June of 1994, the Supreme Court of Iowa decided whether incriminating statements made by a murder suspect to a correctional officer should be suppressed because he was in custody but was not read the Miranda warnings. The Court explained they decided whether or not a person was in custody for purposes of Miranda by answering the following question: Would a reasonable person in the suspect's position have believed his freedom to leave was restricted by law enforcement? The Court also gave us the four relevant factors for determining custody that are still cited by our Iowa Courts today: (1) the language used to summon the individual, (2) the purpose, place and manner of the interrogation, (3) the extent to which the defendant is confronted with evidence of his guilt, and (4) whether the defendant is free to leave the place of questioning. As Iowa Officers assess whether or not custody is present for purposes of Miranda (and therefore whether the Miranda warnings should be read) they must also consider those same four factors.
Here is a article about a recent New York State Supreme Court ruling on a false confession case. The Court looked at the use of deception by police and specifically at the deception used by police in this case to elicit the confession. For us, it always come back to voluntariness ... are the things you are saying to the suspect going to elicit a voluntary and uncoerced admission or confession? We find officers are much less likely to rely on deception as a technique if they have pre-planned both their interview and interrogation strategy, using a research based interview and interrogation plan that is cognizant of all the recent legal decisions.
Originally published in New York City in 1940, this 198-page book by former Berkley (CA) Police Lieutenant W.R Kidd, is the earliest interrogation manual we've been able to find anywhere. By clicking on the link provided here, you can read the book on-line in it's entirety. Chris, Mike and I have included it here out of respect for Kidd and his revoluntionary approach to interrogation. You will be amazed as as Kidd explains how interview and interrogation truly is the most important skill an officer can hope to master - and how theme development is the most effective way of persuading a suspect to tell the truth. Consider these words from the foreword: "Rarely indeed are physical clues sufficient to secure convictions in major cases, and more rarely is the offender caught redhanded in the act. Therefore it is important that the practical methods of obtaining information about the crime, about the witnesses, and about the suspect, should be passed on to the younger officials. Without this information, important facts concerning the crime under investigation may be lost by the investigators. Moreover, due to faulty approach by the interrogator, witnesses who otherwise might have been friendly prove to be hostile when brought into court. Lastly, and most important, due to faulty technique, dangerous criminals may be turned loose to prey again upon the public."
Remember, there is an option to reading Miranda warnings to everyone you interrogate - at least those individuals that are not in custody. Clear back in 1983, the US Supreme Court was asked whether Miranda warnings were required if the suspect was not placed under arrest, voluntarily came to the police station, and was allowed to leave unhindered by police. The Court's answer: the ultimate test of whether someone is "in custody" (and therefore, needs to be read the Miranda warnings) is simply whether there is a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest. If you read the short opinion you will also see that Miranda warnings are not required "simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect."
Jesse Montejo was arrested on September 6th, 2002, in connection with a robbery and murder. Montejo waived his Miranda rights under and was interrogated at the sheriff’soffice by police detectives through the late afternoon and evening of September 6th - and the early morning of September 7th. During the interrogation, Montejo never invoked his Fifth Amendment right to have counsel present during questioning, and ultimately admitted that he had shot and killed Ferrari in the course of a botched burglary. On September 10th, Montejo was brought before a judge for what is known in Louisiana as a "72-hour hearing" — a preliminary hearing required under state law. The Court ordered the Public Defender's Office to represent Montejo for the remainder of his legal proceedings. After the appointment of counsel, and later that same day, two police detectives visited Montejo back at the prison and read Montejo his Miranda warnings again and asked if he would help them find the murder weapon. Montejo again waived his rights and did not ask to have an attorney present for any further questioning. During his time with the detectives, Montejo wrote a letter of apology to the victim's family. When Montejo returned to the County Jail, his court-appointed attorney was quite upset that the detectives had interrogated his client in his absence. Was it permissible for the detectives to go back in and attempt to talk to Montejo a second time since he had never invoked his Fifth Amendment right to counsel - even after Montejo had been appointed an attorney by the court? The answer was yes. The Court said police can't "badger" a defendant into changing his mind after he has invoked that right, but a defendant who never asked for counsel has not yet made up his mind in the first instance (and therefore could be reapproached, presented Miranda again and assuming he waived again, re-interviewed.) The Montejo opinion also stated that when a suspect is not in custody his "protection" from any police questioning is to exercise his free choice, freedom of movement and ability to terminate the interaction - that is, "...he need need only shut his door or walk away to avoid police badgering." Remember, every admission and confession must be the product of a suspect's free choice.
At the Iowa Law Enforcement Intelligence Network Conference, we talked about recent research conducted by two forensic psychologists from Iowa State on False Confessions, specifically the stress that individuals experience when accused of a crime. Check out the Iowa Public Radio Interview of these two forensic psychologists on that topic and ask yourself: How is my game plan going to ensure I don't take a False Confession?
In an effort to continually improve the Interview and Interrogation skills of Midwest police officers, we are monitoring recent state Supreme Court decisions involving false confessions from the last twelve months. Within the last year, we have seen State Courts in Michigan and New York allow limited testimony from experts on False Confessions. It is only a matter of time before we deal with this issue closer to home. The CTK Group has already tackled the issue of False Confessions and implemented it as a component in our Advanced Interview and Interrogation Course. There are specific tactics you can implement in all your Interview and Interrogations to negate a False Confession argument from the defense. The CTK Group has embedded those tactics into our game plan.
The Iowa Supreme Court decided to suppress the 2010 confession of Robert Howard who had previously been convicted of sexual abuse and child endangerment. If you’ve trained with The CTK Group recently, you know the Court issued 3 other opinions this spring in which the Justices clearly expressed their concern with Iowa officers making promises of leniency or threats that resulted in suspects making involuntary statements. Here, the Court said the officer “…strategically planted in Howard’s mind the idea that he would receive inpatient treatment, and nothing more, if he confessed.” What’s the take home? It’s a good thing to generally encourage a suspect to tell the truth. And it’s wise for an officer to reiterate he can’t make any promises and that all charging decisions are up to the county attorney. It’s a bad thing to tell the suspect what’s going to happen – good or bad – if he does confess.
Were you ever taught the myth that someone who looks up and to the left is lying? Here's an article from the July 2010 Police Chief magazine that examines the use of Neuro-Linguistic Programming (NLP), or the use of eye movements to detect deception. This is current research we use to design our class and teach officers the most accurate ways to detect deception.
Similar to the November, 2010 Iowa case of State vs. Gray, the Nebraska Supreme Court suppressed the in-school confession of 14 year old C.H. to a Madison County Sheriff's Investigator. However, it's important that Nebraska Officers pay attention to what the Court doesn't say (it doesn't forbid future in-school interviews of juvenile suspects without Miranda warnings) as well as what it does say. Having told C.H.'s father ahead of time, Investigator Drummond went to C.H.'s school and had the principal bring C.H. to a conference room in the principal's office area for an interview. During the 30 minute interview C.H. admitted to the Investigator he had frequently had sexual contact with his 4 year old step-sister. The Court said C.H. was in custody (and therefore should have been presented with Miranda warnings) because: (1) 14 year old C.H. wasn't specifically told he was free to leave the interview and that he didn't have to talk to police or answer any questions; (2) the Investigator decided before the interview that no matter what happened he was going to place C.H. in custody and therefore couldn't honestly tell C.H. he was free to leave. Make sure to note the Court cited another Nebraska case (In re Interest of Tyler F.) in which they did not suppress an in-school confession of a 14 year old in which Miranda wasn't read! Remember, non-custodial/non-Miranda interviews - even of juvenile suspects - can be legally admissible in certain situations if Officers know and follow the rules!
The Iowa Court of Appeals found the statement, "That's all I can tell you, I ain't got nothing to say, like just take me to Polk County" was a sufficient invocation of a suspect's right to remain silent when he was interrogated while in custody. The Court also reminds officers that the test for determining if someone invoked their right to silence is an objective test. That is, officers must ask how a reasonable officer would interpret the suspect's words. The test is not how the officer at the scene actually perceived the suspect's words. In determining whether Grady's statements were a sufficient invocation, the Court looked at things like the amount of pressure by the interrogating officers, their use of profanity, their accusing Grady of playing games, and the fact that the officers presented false evidence.
The Supreme Court of Iowa provided some insight into how it determines if a suspect's statements are involuntary. Specifically, under the Court's "evidentiary test" a confession can never be received into evidence where the statements were influenced by any threat or promise. This is a different test than the federal courts "totality of the circumstances test". Under that test the interrogation is viewed as a whole and a number of factors are considered in figuring out whether a suspect's statements were voluntary. Instead of determining if any threats or promises were used by an officer, the Court looks at whether the will of the suspect was overborne or if his capacity for self-determination was critically impaired. There is a big different between the two tests and Iowa officers need to realize how the use of any threats or promises can keep a jury from ever hearing a suspect's confession.
In the Spring of 2011, The CTK Group introduced itself to the Iowa Law Enforcement community though the Iowa Peace Officers Association. Just as the IPOA does, The CTK Group aims to bring quality training to Iowa police officers by creating a community where resources are available to help us reach our end goal…that is getting to the truth. Check out what The CTK Group is all about.
Interested in improving your skills when it comes to Interrogating Sex Offenders? Check out the link at the Iowa Peace Officers Association regarding our Sex Crimes Conference held in 2011. What started out as an idea for an Annual Conference with an alternating topic has morphed into a yearly conference specifically on Sex Crimes. Join us at our Sex Crimes Conference in 2012 as we examine the most successful ways to get confessions from Sex Offenders..
Have you ever wanted to interview an already incarcerated inmate on an unreleated case? Do you need to first read him Miranda? This US Surpeme Court opinion is already getting some play in newspapers and law enforcement websites as “breaking news”. The reality is, this is right in-line with some of our longstanding Iowa opinions – most notably State v. Deases (Iowa 1994). Deases made it very clear that incarceration alone does not automatically mean someone is “in custody” for purposes of Miranda. Instead of making a hard rule, the Court in Deases set out a 4-part test for. A number of more recent Iowa Court of Appeals cases, like State v. Polk (Iowa 2011) continue to cite to Deases.
When interviewing and interrogating sex offenders, it is absolutely critical that officers know who their suspect is. Kenneth Lanning of the FBI has done extensive work on the typology of sex offenders that provides essential insight into the world of sexual disorders and the people who suffer from them. Use this resource as a guide to determine who you are dealing with.
The Iowa Department of Public Health has established a protocol for sexual assault investigations that offers information for law enforcement. We believe it is imperative for officers to be well-versed in all aspects of the sexual assault investigation and highly recommend this material.
Ever wonder what sex offenders think about how police officers should interview them in order to secure a confession? So did we…and so did Mark Kebbell, who did some fantastic research on this question and published it. We have linked to the abstract of his article (sorry, we can't supply the actual article), but this can give you a start if you want to follow up on Kebbell's article that we presented at the conference.
In November 2010, a District court in Waterloo found a juvenile in custody even though his father brought him to the police department and granted an officer permission to interview him regarding a sex abuse. The Court suppressed the juvenile's statements because it found the interview was custodial. Some things which led to the ultimate finding of custody included: (1) the officer got the father's consent to talk, but not the juvenile's, (2) the juvenile was left in a small interview room with a closed door while the officer came and went, (3) the officer discussed or disclosed particular evidence to the juvenile, (4) when the officer left the room he told Gray to "sit tight" and closed the door, (5) the juvenile was not told he didn't have to talk and was free to leave at any time.
This is probably the most comprehensive overview of police interrogation in the United States. Blair examines all the interrogation manuals in the United States and techniques they recommend. If you want to be assured your techniques are supported by all the research in print, familiarize yourself with this article!
A critical 2009 Iowa case out of Davenport dealing with interrogation of a juvenile in a school setting. Extremely important for officers to read this case and realize which factors the Iowa courts are using to define "custody," especially if you work in a school setting. Remember, custody is not always defined by "formal arrest."
The authors examine sound interviewing principles and warn against taking a "casual approach" to interviews and interrogations. Never underestimate the importance of a good interview!
If a suspect invokes his right to counsel during a custodial interrogation, can you ever re-approach them to ask them more questions? Can you reapproach them while they are sitting in the county jail? Or is that invocation of counsel good forever? According to Shatzer, yes, you may reapproach if there is a 14 day or more break. So you may, under certain circumstances, be allowed to re-approach a suspect who has invoked his right to counsel.
Here is an excellent article by Special Agent Brian Boetig of the FBI about how we can use theories of criminology during Interrogations. This quick re-cap of the theories about why people commit crimes can be extremely useful when offering suspects rationalizations to why they committed the crime they did.
Got 9 minutes? Take a listen to this police interview with the former U.S. Senator Larry Craig after his arrest for soliciting a prostitute at the Minneapolis Airport in 2007. Listen as the officer tries to get an admission of guilt from Senator Craig and ask yourself this: How long would you anticipate it would take to get an admission to a sex offense? If you think it's going to happen in 9 minutes, you're probably getting confessions as often as this officer, which is not often. Yet every day we see officers attempt to gain confessions to sex offenses quickly. We will show you what the research says is the Number 1 factor in successful interrogations and how to use that to your advantage!
Listen as a criminal defense attorney lectures to a law school class on why defense attorneys' should NEVER allow their clients to talk to the police. While this attorney's perspective is not one most cops would agree with, it's important for us, as officers, to understand both side of the issue and how defense attorneys' are being trained.
It's important to know whether the person you want to interrogate is in custody (for purposes of Miranda) or not. In this case, the United States Supreme Court added age to the list of factors which police officers must consider in determining whether or not custody exists. The Court never ruled as to whether J.D.B. was in custody when a police investigator interrogated him at a middle school in Chapel Hill, North Carolina - they only said age will be a factor when the North Carolina Courts take a second look at the interview.