18 February 2003

My Web Site

Police can plant false memories during interrogations.

I already knew this but I doubt the general public did (or even does; think the U.S. public reads the Independent?). I'm not speaking from my general bias as a defense attorney but from my experience as an interrogator in the Army. During training police interrogation techniques were held up as the way not to do interrogations. A person under stress tends to say what he feels the person in control (the interrogator) wants him to say; the less intellectual or sophisticated the person being questioned, the more truth attaches to this statement. If asked leading questions, backed by untruthful statements the subject will tend to gravitate toward that which the questioner tells him is truth. i.e:

"We know you were in the house that night Bobby. You just went in to look at the pretty pictures, didn't you? And then you saw Ms. Martin? And you just wanted to talk to her? And then she screamed? And then . . ." lie followed by leading questions

This form of questioning can lead to an extreme abuse when the subject is led thru this sort of questioning several times and then asked to "tell us what you did in your own words." Shock, a drug fog, lack of itellect, desire to please, desire to end the session and/or other factors (depending on the person) combine in some form to lead the subject to agree during the leading questions and to repeat the story fed to him. He may quickly recant the next day after he has slept, the drugs have cleared out of his system, and his girlfriend has reminded him that they were together (alone) out at lover's lane at the time the break-in was supposed to have happened. But it's too late, the police have their confession and it will be given undue weight in the courtroom.

To be fair, there are techniques for testing whether a confession under this situation is truthful. First, one can feed an untruth to the subject and see if he adopts it: "You broke into the house with a crowbar, didn't you?" when the door was just left open and the perpetrator just walked in. Second, you can leave out a fact and ask an open-ended question: "Bobby, you told us you mugged Ms. Martin. What did you hit her with?" when she was hit by something unusual like a ceramic Superman statue. In the open ended question you must pick something unusual because if you ask something like "What did you stab the man in the kitchen with?" the subject will answer "umm . . . ahhh . . . I think it was some sort of kitchen knife." Of course, a smart subject can pick these up and play right into them ("I hit her with my crowbar") so there is a strong incentive to cheat and not ask the control questions - especially if the officer is convinced he has the right person and that this person will lie to save his hide.

I do not believe that officers set out to convict innocent men but I do believe they push the envelope as far as they can to get the ones they believe are guilty. I have had a case where the officer had a client write out his confession 4 times until he finally put in it what the officer wanted - and the language seemed extremely coached. The final confession meant a difference of time of several years in prison. I put the client on the stand so that the judge could see he was barely functional and very open to suggestion. He agreed with everything I asked him and then agreed with everything the prosecutor asked him. Then under questioning he seemed unable to realize there was any conflict. I pointed out the several, evolving confessions and suggestability but the judge saw the final confession and that was the end of the story. He was convicted of the more serious crime and sent to prison for a looooonng time. Sorry this is so vague: attorney-client privilege.

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