This was how one speaker, to an enthusiastic audience, described some American police officers at the National Association of Criminal Defense Lawyers conference in Florida in August 2016. Hundreds of practitioners gathered in West Palm Beach to discuss the theme of police and prosecutorial misconduct. The dominant subjects were those which attract international outrage; most obviously the seemingly unjustified shootings of predominantly young black men. But what also emerged was a more insidious form of misconduct: the eliciting of false confessions.
One notorious example is the confession made by Brendan Dassey, subject of the 2015 Netflix documentary series Making a Murderer. In 2005 Dassey was convicted along with his uncle Stephen Avery of the murder of Teresa Halbach. Only 16 years old at the time, of low intelligence and otherwise cognitively impaired, Dassey was convicted almost exclusively on a confession extracted by police. The investigation and conviction were widely condemned after the release of the documentary as being the consequence of profound psychological coercion by those in power in order to exploit the cognitive underdevelopment of an impressionable child.
Among the speakers at the conference were Jerome ‘Jerry’ Buting (Avery’s attorney) and Deja Vishny, an attorney involved in the case. The conference took place days before an announcement that, following a successful appeal, Dassey was to be released after 11 years in prison. The attorneys were united in their condemnation of Dassey’s conviction, voicing their opinion that the procedure used to interview him was indicative of a troubling trend in the interrogation of vulnerable individuals.
Learning from America: the infamous Reid Technique
Similar issues arise in the UK – but when they do, and a client provides instructions that a confession is false, our initial instinct tends to be to either attack the credibility of individual police officers or to simply adduce evidence of the defendant’s mental health or lack of cognitive development. The law itself only affords practitioners the rather blunt tools to be found in ss 76 and 78 of the Police and Criminal Evidence Act 1984 (‘PACE’).
Vishny urged a different approach – look at the confession itself. Ask not what the police did wrong, but why that elicited false information. Rather than calling psychiatric evidence about your client, call it to comment on and discredit the oppressive course of conduct which led to your client falsely inculpating themselves. And finally analyse how you can prove the confession was false. What we can learn from the US can inform our own practices by providing ammunition for cross-examination or jury speeches, or for applications to exclude confessions. Understanding how to go about that starts with understanding the methods used (wittingly or unwittingly) by the police. And that starts with the Reid Technique.
Developed as an interrogative tool replacing the use of physical force with psychological pressure, the Reid Technique endures primarily because it works, at least from the perspective of law enforcement. The first stage is a behaviour analysis interview designed to indicate whether or not the suspect is being truthful. This is then used as a basis for a longer interview where the officer adopts various techniques in order to manipulate the suspect’s thought processes. It succeeds in eliciting confessions but it leads to false confessions. Of the 311 people exonerated in the US through post-conviction DNA testing, over a quarter provided false confessions when subjected to interrogation using the Reid Technique. People have confessed to murders and rapes which they did not commit.
Behaviour analysis or junk science?
There is an enduring notion that people give both verbal and non-verbal cues as to whether or not they are being truthful. Sweating, defensive posture and covering one’s mouth are all considered to be examples of the former. The latter might involve using phrases like ‘to tell you the truth’ (a phrase undoubtedly familiar to all practitioners in both countries) or more subtly, failing to use contractions (innocent people apparently say ‘I didn’t’, the guilty use ‘I did not’). Whilst these cues feel inherently reliable, when applied at large they fall into the realm of what Vishny described as ‘junk science’, having no reliable basis in fact. Yet we use them all the time in criminal law. How often have you heard a police officer give evidence suggesting a suspect was probably guilty/hiding something because ‘he was sweating profusely’ or ‘he seemed nervous’? This might in reality indicate guilt, or fear of the police, anxiety, physical exertion, or a thousand other things. Worse, our entire jury system is predicated on the idea that we can tell who is lying and who is telling the truth by putting them in a high pressure situation and firing questions at them. As the courts start to align themselves with the 21st century we increasingly see that this is an untenable approach.
Confrontation, conciliation and contamination
Having analysed the suspect’s verbal and non-verbal tics using friendly and generally open questions (‘What sort of punishment should the person who did this get?’, for example) the interview then moves on to a more aggressive form of interrogation. This generally starts with a ‘bait’ question or prop. This might involve dropping a large file of papers onto the table and asking something like: ‘Is there any reason why your DNA would be on the knife?’ Such a question is not inherently dishonest but strongly suggests that the questioner already has the evidence or knows the answer to a particular enquiry. Over time an atmosphere is developed in which the police make clear they have everything they need already and just want to give the offender a chance to make a clean breast of it. In the Dassey case the police told him: ‘We already know exactly what happened. We just need to hear it from you.’
Once the police have established that they already know everything they move to a more conciliatory tone. They make clear to the interviewee that this is their chance to explain exactly how the offence was committed. Perhaps it will help them in the long run. In this way the suspect’s reasoning goes from a belief that the police have some form of evidence which will inevitably convict them to thinking therefore that the logical response is to provide the mitigation that the police invite. Vitally, by this stage the interviewee will know what to give the police because the police will have subtly introduced the relevant facts that they want elicited. This is what Vishny called ‘contamination’. Again, this was obvious in the Dassey case. The police repeatedly asked the suspect what he did to Halbach’s head. They wanted him to confess to shooting her. Having guessed wrongly several times (‘I cut off her hair?’) the officer gives up and says: ‘Who shot her in the head, Brendan?’
This sort of interview consisting of confrontation, conciliation and contamination is highly structured with police being taught to follow a fairly rigid pattern of questioning. The method taught to police in the UK (PEACE: Preparation and Planning, Engage and Explain, Account, Closure and Evaluate) encourages more of a dialogue, but it is not uncommon to find similar questions being used for the same ends. For example: ‘This is your opportunity to tell your side of the story.’ ‘Did you do this because you were in debt?’ ‘Can you think of any reason why they would make this up?’
These questions appear to elicit information, but asked in an (in)appropriate context can apply significant pressure to an individual lacking in robustness. Whilst such questions are not necessarily evidence of misconduct, their cumulative effect can lead to admissions by individuals which have been characterised repeatedly by the US Supreme Court as ‘involuntary’.
Think laterally: methods for defending clients
Armed with the knowledge of how seemingly innocuous questions can become powerful tools of suggestion, how to deploy it in this jurisdiction which makes no explicit acknowledgement of the Reid Technique? Vishny suggested a two-stage approach. First, own the confession, rather than distance yourself from it – either before the jury or before a judge in applying to exclude. Where the defendant appears to show guilty knowledge, schedule those ‘confessions’ and cross-reference them to questions which suggest the answer (‘Who shot her in the head, Brendan?’). Secondly, instruct a psychologist – and not just to assess your client but to assess the interview. They can comment on the effect on your particular client of the form of questions used, the order in which they are deployed, the body language of the interrogator, effect of the size of the room, the time a person is questioned for without a break, or the effect of props (a gruesome photo, a large file of ‘evidence’ etc).
All of this ultimately goes to developing a case theory. In short, the coercive techniques used are why the confession is false, the contamination is the proof that the confession is false. Both must work together: confront the confession – it was made but it is false; elicit evidence of the defendant’s vulnerability and the effect the interview is likely to have had on him; and demonstrate that ‘guilty facts’ known only to the defendant were, in fact, suggested by the police. The benefit of this method is that it doesn’t require any mention of Reid but can equally be applied to misuse of the PEACE method. Nor, in fact, does it require the application of law – though it would fit as neatly into applications under s 76 of PACE (on oppression and reliability) as it would a jury speech.
The same sort of lateral thinking can be equally applied to other sorts of confessions. Take, for example, a case where a person is said to have confessed at the scene but the police say that the body camera footage was not working. Why not seek in disclosure the maintenance records for that device both before and after the incident? These sorts of approaches require the application of no law and do not rely on the goodwill or discretion of a judge. They go further than merely challenging the conduct of the police, they explain the conduct and provide credible explanations or even proof for why such action led to your client falsely inculpating themselves.
Reforming an outmoded mindset
In spite of these techniques, and his lawyers’ best efforts, Dassey remains in prison as a result of further challenges by the state. Compared to the US, I have greater faith in the integrity of the majority of police officers in this country, and a tentative faith in the greater efficacy of our system of appeal. But it nonetheless remains the case that the UK, like the US, is stuck in an outmoded mindset that refuses to acknowledge complex psychological realities. The methods used by the courts and the police are increasingly ill-suited to deal with the needs of defendants, many of whom are mentally ill or cognitively underdeveloped. The methods of challenging false confessions described in this article might mitigate some of the worst injustices which result from such a refusal to reform but what is needed is a more serious consideration of the way we assess truth and lies in the criminal justice system. Let us hope it happens before there are too many more Brendan Dasseys.
Contributor Simon Ralph, Carmelite Chambers, attended the conference with a grant from the Bar Council and Criminal Bar Association