24 December 2020

CATO: Getting Police Questioning Wrong Through Lack of Context

CATO is a ideologically libertarian think tank which often puts out quite smart think pieces on various topics. Even when I disagree with them, I usually find their pieces well thought out. This was why I was somewhat surprised when I came across this opinion piece about how terrible the police are in the United States because they lie during interrogations and therefore they are mistrusted by the public. 


The Proposition

Standing alone, it's a very dubious proposition that the general public distrusts police because they lie during the questioning of suspects, so the author attempts to strengthen it by positing that lying in the questioning of a suspect leads to (1) police lying about searches in court and (2) lying to keep each other out of trouble. He doesn't provide any proof of that connection and indirectly points toward collateral factors that are much more likely as causes: (1) the imposition of federal search and seizure standards through Mapp, and (2) the loyalty factor found in any group of people who rely upon one another. I agree, these are factors - particularly the second - which can lead the general public to mistrust law enforcement. They aren't tied into using deception during questioning.

That leaves one item supporting the proposition: they do it better in Europe. They always do it better in Europe. Patriotism may be the last recourse of scoundrels, but Europhilia is the last refuge of those who can't support their argument through American jurisprudence. But, okay, they've set the field. Let's try to play on it.

First of all, let's clear out some of the brambles. The overall rate of crime in Britain and Germany has nothing to do with whether suspects are misled during questioning. There are a myriad of social factors that strongly affect the crime rate that all occur well before anyone ends up at the PD in a room with a detective and a two way mirror.1 And, now is when we cut away the idea that being deceptive during questioning leads to the distrust of the general public. Telling us that people in Britain and Germany trust officers more than Americans do is a distraction which the author connects to questioning techniques. At core, the author of the CATO article believes a suspect has a basic right not to be lied to. That kind of solid core belief is respectable. However, it doesn't make the connection the author wants magically appear.


Examining the English Model

Nevertheless, there is one facially solid argument the author has made: the claim that a policy of requiring officers to be honest has resulted in a "high volume of confessions" and fewer false confessions in England. The fact that "high volume" was used to describe the number of confessions would tend to indicate the author didn't have stats which showed better results in England. I went to the article linked to by the author as his proof that England had fewer false confessions, but on a quick read through didn't see that stated unequivocally. I did see the linked article state

Unfortunately, the PEACE model technique . . . needs to become more innovative with regard to challenging the denials of uncooperative suspects. With this in mind, both the Norwegian and the Irish (An Garda Síochána) police have developed their own interview models, which are largely based on the structure and principles of the PEACE model but are more dynamic and flexible in terms of challenging uncooperative interviewees. (p. 706)

 Putting this together with the attached "high volume" statement would tend to indicate they got fewer confessions overall and that the total honesty system fails when it comes up against the uncooperative. As there are fewer confessions overall and system failure without cooperation by the suspect, there are fewer false confessions.

How then do the English get a "high volume of confessions" when they must maintain honesty? Well, they can entirely honestly look at the suspect and say "If you don't talk to us then it will be used against you at trial." Americans seem to operate on the belief that the English have exactly the same set of rights that we do. They don't. Our Supreme Court has interpreted our right to remain silent as nigh unto absolute. Their Parliament has not. Suspects in England don't have to say anything, but that silence will most assuredly be used against them at trial. Here are the pertinent sections from Part III of the Criminal Justice and Public Order Act 1994:

34. If a suspect fails to mention any fact, but uses that fact as part of his defense, the failure can be used against him at trial.

35. A defendant's failure to give evidence at trial can be used against him.

36. If a suspect has evidence on him indicating he had something to do with the crime, but does not explain the presence of the evidence to an officer, the failure to explain can be used against him at trial.

37. If a suspect is found at the scene of a crime, but does not explain his presence to an officer, the failure to explain can be used against him at trial.

How do you not get a high volume of confessions with that big a stick to wave, entirely honestly, at the suspect?2  I'm pretty sure that there are a lot of American officers who would agree to be honest while questioning suspects if they walked into the room with almost a requirement that the suspect explain things to them.3  So, it appears likely that the high volume of confessions in England is due to a very different playing field and that the honesty requirement isn't the prime mover.

I've watched a fair number of police interviews over time. Most start with a short chat that quickly leads into the officer explaining Miranda rights to the suspect. In the last ten years or so in my locale that usually means the officer reading them off a piece of paper, the suspect initialing beside each right and then the suspect signing the bottom of the paper if she waives the rights. The suspect does it almost every time and then starts talking; sometimes she can't even wait that long.4  Do police build rapport with suspects? Yes. Despite the CATO author citing rapport as a terrible and deceptive thing we do in the US, it is a major part of the interview process in England as well. After all, the second phase of the PEACE model, Engage and Explain, "is sometimes described as the Rapport stage of the interview." And let's not forget, the suspect is often trying to build rapport herself so she can lead the detective down a primrose path or sell him a sob story or just catch a break. 

PEACE is all about the rapport and in a situation like England's where the suspect basically has to talk to the officer rapport and picking apart inconsistencies is probably enough in many cases. The US system also relies on rapport, but doesn't have a situation where the suspect faces consequences for not saying anything. It's not quite a comparison of apples to oranges. It's more like comparing a Golden Delicious to a Granny Smith. They're both apples, but you wouldn't use them interchangeably in a recipe.

We could change our system to mimic the English: "You have a right to remain silent. Anything you say or do not say can and will be used against you in a court of law." Then we could adopt the PEACE system from the English. Would it be as effective? Apparently not. However, if you take as a first principle, as the CATO author does, that officers must be entirely honest with suspects that might be a sacrifice you're willing to make.


The Example Given

 Let's look at the example the author gives. Two suspects are put in separate rooms and neither is talking. The officers tell each that the other is singing like a bird in order to get them to talk. Ask yourself if this technique in any way makes the content of the statements of the suspects conform to a preconceived notion of the officers of how the crime occurred. It doesn't. Therefore, should we remove this technique from the officers? Probably not.

We should be concerned if officers are leading a suspect down a path. Didn't you do X? Yes. Then you did Y? Yes. Whenever a questioner asks closed questions, leading a suspect in a certain direction it can be bad. If there's nothing but this sort of questioning that interview is very suspect. Of course, a leading and/or deceptive question may be needed to get things rolling along. Look, we know you killed him, right? Yeah, okay. Just tell me how it went down. Then the suspect fills in the details. An important check in this sort of questioning is the undisclosed fact. If the suspect talks about something which is not told him and not known to those who weren't at the scene then the interview is strong evidence.5  The problem here, and I suspect in most false confessions, isn't the deception. It's the susceptibility of the suspect to suggestion and officers who don't use open ended questions when they should either because of poor training or because they aren't getting the answers they want.



I understand finding the misleading of a suspect during questioning distasteful. In a perfect world robbers, rapists, and serial killers would all confess fully and immediately the moment they were first questioned. Then our police officers would not have to sully themselves with misleading questioning tactics meant to lead to a confession of the act and the CATO author would not be discomforted by reality. Unfortunately, we live in reality. Officers have to do distasteful things because we are choosing the distasteful over the bad or flat-out evil.

Believing that total honesty from officers is a first principle is fine - naive, but fine. However, you must argue its benefits within the American system, not use a comparison with a significantly different system. Explain why it is such a good that it more than compensates for the necessary evil officers now engage in. If you can come up with a solid, practical, American jurisprudence based solution which will provide as good or better results, present it. I'm sure a detective who gets an embezzlement confession without using a single bit of deception will thank you for your efforts. Just please don't ask him to hold his breath while you try to work out that solution.



 1  In the US, the idolization of crime and criminals might have something to do with this. We know and glorify our criminals from Billy the Kid through Bonnie and Clyde and on to the Notorious B.I.G. who was so well known that people adopted his nickname for a Supreme Court Justice.

2  My one semester of college German has not sufficiently prepared me to do as indepth a review of German law, so I'm stuck with what Wikipedia says (rely on this at your own risk): Complete silence is unusable, but selective silence (answering only some questions?) can be pointed out in court. Apparently, this is a statutory right, not a constitutional protection. Also, the warning given by police tells a suspect he can remain silent, but also tells him it is his right to tell the officer of evidence in his favor.

3  As an aside, if the purpose of the constitutional protection is to stop things like confessions being beaten out of a suspect, I don't think this would be unconstitutional in the US either. The Brits have simply decided to walk a different path than we have.

4  I've had more than one patrol officer complain that "I told the guy he had the right to remain silent so don't talk to me and he did anyway so now I'm in court." 

5  I've had that conversation with officers before. "Oh come on John, you're the third detective on this case and it's from twenty-two years back. How can you know this confession is real?" "Because we never told anybody that the robber scattered crayons across the kitchen before he left - not even your office or anybody - and he described his co-defendant doing it." They will hold on to these undisclosed facts like Scrooge McDuck holds on to his money and hide them in Fort Knox if they can.