Deception in police
Steven J. Ellwanger
Ronald Kitchen was a 24-year-old black male living in Chicago. On January 25,
1988, he was arrested while walking home from the grocery store after purchasing
cookie dough for his children. Initially, detectives charged Kitchen with theft, but
they quickly changed the charge to murder. After hours of interrogation, which
included being beaten with a blackjack, Kitchen confessed under extreme physical
duress to the murder of two women and three children-murders that he did not
commit. Kitchen believed that because there could be no physical evidence linking
him to the crime, his confession could later be recanted without consequence. In
fact, when asked why he falsely confessed, Kitchen stated, "I gave in, hoping that
the judge and jury would see that I was telling the truth" (Hartman, 2009). Unfortunately,
Kitchen underestimated the power of confession evidence and was ultimately
convicted and sentenced to death. In July 2010, after serving 21 years
behind bars-13 of which were on death row-prosecutors dismissed charges
against Kitchen after he was granted a new trial. Formal charges of torture dating
back to the 1980s were filed against the Chicago Police.
As Kitchen's case illustrates, in criminal law a confession is the most damning
and potent evidence a prosecutor can present during trial (Cassell & Hayman,
1996; Leo, 1996). Pressure on police to obtain confession evidence has always
existed. As a result, police have implemented interrogation techniques designed
to maximize confession rates among guilty suspects. In Brown v. Mississippi
(1936), the U.S. Supreme Court held that confessions obtained by brutality and
torture were a violation of the due process rights guaranteed by the Fourth Amendment's
protections against unreasonable searches and seizures. Prior to this
Justice, Crime, and Ethics.
© 2012 Elsevier Ltd. All rights reserved.
72 CHAPTER 5 Deception in police interrogation
landmark ruling, police relied largely on physical interrogation techniques, including
beating suspects with a rubber hose until they confessed.
In response to the real or perceived hurdles introduced through this landmark
case, police agencies modified interrogation practices to emphasize the psychological
dimension of interrogation. To this end, interrogators would often hold suspects
incommunicado from family and counsel for lengthy periods, fabricate
evidence, and employ other techniques to heighten anxiety and increase fatigue
among suspects to secure a confession. In essence, police agencies shifted from
physically coercive methods for obtaining confessions to psychological ones. The
U.S. Supreme Court initially considered the issue of psychological coercion in
1966 with Miranda v. Arizona, which resulted in the now famous Miranda warnings
that require law enforcement officers to inform suspects of their right to
remain silent (Fifth Amendment) and access to legal counsel (Sixth Amendment).
The Court was very clear in stating that evidence (i.e., a confession) obtained during
custodial interrogation was not admissible in court to prove guilt unless the
suspect had been given his or her Miranda warnings and had voluntarily, knowingly,
and intelligently waived those rights.
The pressure experienced by law enforcement to secure confessions did not
wane with the Miranda ruling. Given the fact that most perpetrators don't readily
admit guilt when confronted by law enforcement, police agencies have crafted
deceptive interrogation techniques to secure confessions. The constitutionality of
these techniques is ultimately judged by the voluntariness standard articulated by
the Court in Miranda. Confessions not secured voluntarily, knowingly, and intelligently
are deemed coercive in the eyes of the Court and are therefore inadmissible.
This chapter begins with a discussion of the case law that shapes contemporary
police interrogation techniques, followed by a typology that identifies and examines
deceptive-yet legal-tactics commonly utilized by interrogators to secure
incriminating evidence. Finally, the ethical issues and dilemmas presented by these
techniques for officers, agencies, and the broader system are considered.
FROM BRUTE FORCE TO PSYCHOLOGICAL MANIPULATION
There has always existed pressure on the prosecution to obtain confession evidence.
Even today, under English common law-to which the roots of the U.S.
legal system can be traced-failure to obtain a confession from the accused is seen
as a serious deficiency in the prosecution's case. According to one legal scholar,
"the introduction of a confession makes other aspects of the trial in court superfluous,"
making the confession the prosecutor's most potent and damning piece of
evidence (Leo, 1996; McCormick, 1972:316). In response to this pressure, police
agencies adopted interrogation techniques designed to elicit confessions from
guilty suspects. Initially, these techniques emphasized brute force; later they
stressed psychological coercion. Subsequent judicial intervention eventually
deemed both forms unconstitutional.
From brute force to psychological manipulation 73
Despite judicial intervention, the pressure to secure confessions by the prosecution
has remained. Police continue to exert pressure on suspects to obtain a confession.
To this end, police agencies have adopted techniques that rely on
psychological manipulation. Although the Supreme Court drew a bright line
regarding the timing of the Miranda warnings, it was less clear what "specific techniques"
could be considered so deceitful that they violated the voluntariness clause
enumerated in Miranda. Thus, the constitutionality of contemporary interrogation
techniques must be considered against the backdrop of existing case law.
Elimination of brute force
The Supreme Court first considered the issue of interrogation techniques employed
by states to secure confession evidence in 1936, with Brown v. Mississippi. Brown
and two other suspected accomplices were tortured, including being beaten on their
backs with a leather strap and metal buckle, for the alleged murder of a white man.
The deputy sheriff told Brown and the others that the beatings would not stop until
they confessed to the murder and all of the details surrounding it. One day after the
confessions were secured, the trial began. With the rope marks still clearly visible
on the suspects, none of those people who participated in the beating denied that it
had taken place. The suspects were ultimately convicted of murder and sentenced
to death. On appeal, the Supreme Court ruled that confessions obtained by brutality
and torture by law enforcement officers were a violation of the due process rights
guaranteed by the Fourteenth Amendment. The initial reluctance of the Court to
become involved in state affairs, and its concern for the reliability of confession
evidence obtained by physical coercion, is captured in its rationale:
The State is free to regulate the procedure of its courts in accordance with its
own conceptions of policy, unless it "offends some principle of justice so rooted
in the traditions and conscience of our people as to be ranked fundamental.". . .
[T]he freedom of the State in establishing its policy is the freedom of constitutional
government and is limited by the requirement of due process of law.
Because a State may dispense with a jury trial, it does not follow that it may
substitute trial by ordeal. The rack and torture chamber may not be substituted
for the witness stand. The state may not permit an accused to be hurried to conviction
under mob domination-where the whole proceeding is but a mask-
without supplying corrective process. (Brown v. Mississippi, 1936)
Controlling psychological coercion
The Brown decision had the effect of eliminating the use of brute force to secure
confessions by holding that such evidence is highly unreliable and therefore
inadmissible. In response, police agencies modified their interrogation practices.
Interrogators began to focus on the psychological dimension of confessions.
Interrogators developed standard operating procedures (SOPs) that emphasized
techniques designed to increase anxiety and fatigue among suspects during
74 CHAPTER 5 Deception in police interrogation
questioning. These techniques first came to the attention of the Supreme Court in
1966 with Miranda v. Arizona.
Ernesto Miranda, who was 23 years old, poor, and had only a ninth-grade
education, was accused in the kidnapping and rape of an 18-year-old girl. Miranda
was subsequently arrested and identified in a police line-up by the victim. He was
immediately taken to an interrogation room where he was held incommunicado for
2 h. When investigators emerged from the room, they had a fully signed confession,
which had a typed paragraph at the top stating that the confession was voluntary
and made without threats or promises of immunity and "with full knowledge
of my legal rights, understanding any statement I make may be used against me."
Miranda was subsequently sentenced to 20-30 years in prison.
On appeal, the U.S. Supreme Court held that Miranda's Fifth (right to remain
silent) and Sixth (right to counsel) Amendment rights had been violated and went
on to articulate the now famous Miranda warnings. Miranda was unique in two
ways. First, Miranda signaled a willingness by the Court to become involved in
the day-to-day operations of police agencies by spelling out specifically what
police agencies needed to do for confession evidence to be admissible in court.
The court was clear that: (1) suspects must be given their Miranda warnings by
the police; (2) any confession evidence must be obtained after a waiver by the suspect;
and (3) that waiver must be voluntary and intelligent. Second, Miranda was
unique for what it did not do: It did not identify any specific deceitful interrogation
technique that would violate the voluntariness clause beyond the use of trickery
to induce a waiver of a suspect's Fifth and Sixth Amendment rights (Miranda v.
Arizona, 1966; see also White, 1979).
RELIABILITY, FREE WILL, AND FAIRNESS
The reluctance of the Court to proscribe specific police interrogation techniques for
their violation of the voluntariness clause articulated in Miranda has resulted in the
proliferation of various forms of trickery. The constitutionality of such deceptive
practices can only be judged on a case-by-case basis. Because no per se rules
exist that prohibit specific types or categories of deception, case law has (and will
continue to) define the limits and bounds of the Miranda protections with respect
to deceptive interrogation. Of particular importance in determining these limits
and bounds is the meaning of voluntariness. Voluntariness as defined by the Court
is a concept "that is infused with multiple values," as Justice Harlan noted in
his Miranda dissent ("Miranda v. Arizona, 384 U.S. 436 (1966)). In fact, interpretations
of the Miranda ruling-especially regarding "voluntariness"-have been
guided by the values of reliability, free will, and fairness embodied in the decision.
Reliability of confession evidence was the early focus of state courts in determining
voluntariness. Police interrogation techniques that would leave a defendant
"willing to make any statement that the officers wanted him to make" (Ward v.
Texas, 316 U.S. 547 (1942)) or are the result of police coercion rather than the
Reliability, free will, and fairness 75
suspect's perception of the event (Rogers v. Richmond, 356 U.S. 534 (1961)) are
involuntary and thus unconstitutional. In addition to reliability, the Court was also
concerned about the extent to which a suspect's statements were "the product of
his or her free and rational choice." In other words, confessions could be involuntary
if the techniques employed were coercive, regardless of whether they produced
a false confession. For example, Justice Black, speaking for the Court,
found that an uninterrupted 36-h interrogation was "so inherently coercive that it
was irreconcilable with the possession of mental freedom" (Ashcraft v. Tennessee,
322 U.S. 143 (1944)). Finally, the voluntariness standard includes a fairness component.
The fairness component deals directly with the legitimacy of the police
tactics employed to secure the confession. In Spano v. New York, the court's primary
concern was not with the potentially coercive methods but with insuring that
"police obey the law while enforcing the law" (Spano v. New York, 360 U.S. 315
In the absence of any definitive guidance by the Court prohibiting specific
types of interrogation techniques and the pressure experienced by police to obtain
confession evidence, numerous techniques have been developed to maximize
confession rates (Hess, 1997; Inbaue & Reid, 1962; Inbaue, Reid, Buckley, &
Jayne, 2001). Many of these techniques are inherently deceptive because they
require officers to make statements they know are untrue or to play a role that is
inconsistent with their actual feelings (Box, 1999; White, 1979). In fact, Inbaue
et al. (2001) openly favor "psychological tactics and techniques that may involve
trickery and deceit," noting that "they are not only helpful but also frequently
indispensible in order to secure incriminating information" (2001:xii). The authors
prescribe numerous strategies designed to deliberately deceive a suspect into confessing.
Deceptive techniques may be classified into eight categories initially identified
by Skolnick and Leo (1992), as outlined in Box 5.1.
BOX 5.1 DECEPTIVE INTERROGATION TECHNIQUES
Deceptive Interrogation Techniques
"Interview" vs. "Interrogation"
Exaggerating the Nature and Severity of the Offense
Minimization/Normalization of Crime
Use of Promises
76 CHAPTER 5 Deception in police interrogation
"Interview" versus "Interrogation"
Interviews can be distinguished from interrogations by their purpose and nature.
The purpose of an interview is to gather pertinent information regarding a crime.
Interviews usually occur early in an investigation, when the police have little or
no evidence linking a suspect to a crime, and the location is often spontaneously
chosen or solely determined by convenience (i.e., taking place in an individual's
home, on the street, or in a police cruiser). Questions like "Do you know who
might have killed John Doe?" or "Why do you think John Doe was murdered?"
are typical interview questions.
Once police have reason to believe that an individual may have been involved
in a crime, the nature and purpose of the questioning will change. During interrogation,
investigators are deliberately trying to elicit incriminating evidence that
will be used to prosecute the suspect. Thus, interrogations are accusatory in nature.
The location for interrogation is often chosen by design (i.e., taking place at the
police station or crime scene). Questions like "Why did you kill John Doe?" or
"Why did you want John Doe dead?" implicate the individual in the crime.
Miranda warnings must be given whenever there is a custodial interrogation.
Custodial means that a suspect is under arrest or is deprived of his or her freedom
in a significant way. Interrogation, again, means that the suspect is being asked
questions that attempt to link him or her to the crime. One of the most popular
strategies the police employ is to make what is actually an interrogation appear
to be an interview. This is done by questioning suspects in the field and/or frequently
reminding them that they are free to leave at any time. As Skolnick and
Leo (1992) have noted, this is one of the cleanest forms of deceptive interrogation
techniques in that by recasting the interrogation as an interview, it becomes free of
Closely associated with pretending an interrogation is an interview is the practice
of interrogators assuming a nonadversary role. The purpose of this technique is
to get the suspect to forget the adversarial nature of the relationship between the
interrogator and suspect or that the interrogator is attempting to elicit information
that will later be used to prosecute the suspect. Interrogators will often assume
roles that the suspect perceives to be more friendly and concerned with ensuring
the welfare of the suspect rather than attempting to elicit information that will later
be used to convict them.
Because masking and minimizing the perceived adversarial nature of the interrogation
are often paramount to securing confessions, police manuals often advise
police officers involved in role-play to dress in civilian clothes, attempt to build
rapport, use flattery, and speak and behave in ways similar to suspects-a process
known as mirroring (Hess, 1997; Inbaue et al., 2001; Kassin, 1997). The goal is
to create the illusion that interrogators are friends who are interested in helping,
rather than harming, the suspect. A popular and well-known role-playing technique
Reliability, free will, and fairness 77
assumed by interrogators is "good cop/bad cop," or the "Mutt and Jeff" routine.
Here one interrogator ("Mutt") pretends to be extremely angry and impatient with
the suspect because of his or her unwillingness to talk and confess to the crime.
That interrogator paces around the interrogation room attempting to look menacing
and unpredictable while making demeaning comments about the suspect. The other
interrogator ("Jeff," the "good cop") tells Mutt to leave the room and "let off some
steam." At this point, Jeff encourages the suspect to confide in him before Mutt
returns (LaGrange, 1998).
Interrogators also routinely adopt the role of father, brother, or a religious or therapeutic
counselor. Similarly to "good cop/bad cop," the success of these roles in
securing a confession is largely contingent on the interrogator's ability to convey
a sense of friendship, feign sympathy, and make appeals to God or religion. The constitutionality
of these techniques has largely been affirmed by the courts except
when they can be construed as "coercive," such as when an officer implies that
God will punish suspects if they do not confess (People v. Adams, 143 Cal.App.3d
970 (1983)). Despite the effectiveness of these techniques and their affirmed constitutionality,
legal scholars have criticized such strategies for undermining the very
goal that Miranda was meant to achieve to make the individual more aware that
he or she is engaged in an adversarial process and that the suspect is not in the presence
of people who are necessarily acting in his or her interest (Kamisar, 1966).
Despite this criticism, role playing is widely used and one of the most effective interrogation
techniques employed by police officers (Skolnick & Leo, 1992).
The Court attempted to draw a clear line regarding when Miranda warnings must
be given. Whenever a "custodial interrogation" ensues, suspects must be made
aware of their Fifth Amendment right to remain silent and Sixth Amendment right
to counsel. The Court did not say, however, that police had to be enthusiastic about
giving the Miranda warnings, nor that the warnings have to be read in a manner
that encourages suspects to exercise their rights. As a result, Miranda warnings
are often delivered in a manner that is intended to increase the likelihood that a
waiver will be elicited. The warnings can be recited in a flat, perfunctory manner
intended to imply that they are not that important and are merely a bureaucratic ritual
(Skolnick & Leo, 1992). For example, one seasoned investigator would routinely
interject during their reading-at the point at which suspects are informed
of their right to counsel-that no person on death row got there without the help
of their attorney (Hess, 1997:36).
Police interrogators may also utilize a false-evidence ploy to induce suspects to
confess. In such instances, police confront the suspect with false evidence. Leo
(2008) has identified three types of false-evidence ploys: demeanor evidence,
78 CHAPTER 5 Deception in police interrogation
testimonial evidence, and scientific evidence. Demeanor ploys involve the fabrication
of evidence gleaned from the suspect's behavior. That is, they tell the suspect
that their appearance, behavior, or postures provide strong evidence of their guilt.
This is in part the product of their training and expectations, which are shaped
by training manuals that argue that guilty individuals display certain behaviors
(e.g., gaze aversion, slouching posture, and/or "insufficient richness of detail" in
responses) that can be observed to determine the likelihood of guilt (Inbaue
et al., 2001; Jayne & Buckley, 1999). A false-evidence ploy is not the misreading
of the suspect's behavior-or falsely concluding that a suspect is guilty based on
the suspect's behavior. Rather, it is the fabrication of demeanor evidence that
police present to the suspect in an effort to get them to confess, despite observing
behaviors that actually suggest their innocence.
The most common form of false-evidence ploys utilized by police is testimonial
(Leo, 2008). This technique involves police telling the suspect that they have testimony
by an eyewitness, video camera, or even an accomplice that implicates the
suspect in the crime. For example, police will often tell a suspect who they
believed played a relatively minor role in the commission of a crime (e.g., drove
the getaway car) that the suspect's accomplice is located in another interrogation
room and is currently confessing to the crime and implicating the suspect. The officer
then states that unless the suspect confesses his or her role, the suspect will
"take the fall" for the crime. Finally, police may also fabricate scientific evidence
linking the suspect to the crime. For example, police may claim that they found the
individual's fingerprints at the crime scene or have found the victim's DNA in
bloodstains taken from the suspect's clothing.
The Supreme Court and other courts have generally found these false-evidence
ploys to be constitutional, as in Ward v. State (1980), which affirmed the constitutionality
of providing misinformation to suspects in order to play accomplices
against each other (Ward v. State, 408 N.E.2d 140 (1980)) and fabricating scientific
evidence about nonexistent bloodstains and testimonial evidence from nonexistent
eyewitnesses (State v. Jackson, 308 N.C. 549 (1983)). However, the courts have
more recently ruled that false evidence ploys that involve the creation of physical
evidence (e.g., evidence written on official letterhead or a tape recording of a police
officer portrayed as an eyewitness) are unconstitutional because their "potential for
indefinite life and the facial appearance of authenticity" creates a risk for contaminating
the criminal justice system (Florida v. Cayward, 552 So. 2d 971, 1989; State
v. Patton, 826 A.2d 783, 2003; see also Woody & Forrest, 2009).
Exaggerating the nature and severity of the offense
In an analysis of interrogation techniques, Inbaue, Reid, and Buckley (1986) proffered
two broad categories that, used in combination, increase the likelihood of
securing a confession (Kassin & McNall, 1991). The first technique is described
as maximization. Here, police attempt to maximize the suspect's perceptions of
the negative consequences for continuing to deny involvement in the crime. One
Reliability, free will, and fairness 79
such technique is to exaggerate the nature or severity of the offense. For example,
a suspect being investigated for statutory rape may be told by the police that the
accuser claims the rape was, in fact, forcible. Similarly, a suspect being accused
of embezzlement may be deliberately told that the amount embezzled is substantially
larger than it actually was (e.g., $1,500 instead of the actual $500). The goal
is to make the individual suspect perceive that the consequences for continued
deception are too great if convicted of the (exaggerated) offense-and therefore
unacceptable-so as to compel him or her to confess. Lower courts have generally
held that a suspect need not be informed of the specific nature of the charges for
the police to obtain a valid waiver (United States v. Anderson,XXXXX
(1976) F.2d 1210, 1212 n.3).
Normalization/minimization of the crime
The second of Inbaue et al.'s categories is the normalization/minimization of the
crime. With this technique, police attempt to minimize the perceived consequences
of admitting guilt by suggesting justifications for the suspect's behavior or trying
to at least normalize it within the context of its occurrence. Minimization and
normalization techniques employed by police allow suspects to justify their behavior
on moral or external grounds. For example, police may suggest that the battery
of a prostitute is justifiable given her moral turpitude or even suggest to an alleged
child molester that they understand he was only trying to show the victim love. If
provided a moral justification by which behavior can be rationalized, suspects
might perceive the consequences of admitting guilt as diminished (i.e., they are
able to save face). Police may also provide external justifications (i.e., the behavior
was drug-induced or an accident) to make the behavior appear less deliberate or
even normal, given the circumstances. When maximization of the offense is combined
with normalization/minimization, it serves to increase the likelihood that
police will secure a confession. These tactics are generally upheld by the courts
and are considered by police agencies to be one of the most effective strategies
available to them (Skolnick & Leo, 1992).
Police may also misrepresent their identity to secure a confession. The Supreme
Court's view on the constitutionality of this tactic is shaped by both the norms
and professional rules surrounding the particular profession or social group being
assumed and the extent to which the assumed identity creates a sense of psychological
compulsion. In Leyra v. Denno (347 U.S. 556 (1954)), the Court ruled that
confession evidence obtained by a police psychiatrist acting as a physician-and
who in the course of treating the defendant repeatedly assured him that he had
done no wrong and would be let off-was inadmissible. In a similar vein, because
of a general assumption of confidentiality, an officer pretending to be a suspect's
lawyer or a priest would be impermissible. Thus, the profession or social group
80 CHAPTER 5 Deception in police interrogation
with which an officer identifies during questioning may, as a result of professional
disclosure rules or norms (e.g., confidentiality), make confession evidence
obtained inadmissible (Skolnick & Leo, 1992).
More recently, the Rehnquist court in Illinois v. Perkins (110 S.CT. 2394
(1990)) did uphold confession evidence obtained through the use of a "jail plant."
Here an undercover officer posed as a prison inmate and was placed in the cell of a
suspected murderer named Perkins who was serving time on an unrelated drug
charge. While planning a prison break, the officer asked Perkins if he had ever
"done" anybody. Perkins subsequently described at length the details of a murder-
for-hire he had committed. The Court ruled that the confession evidence
obtained under these circumstances was admissible, because Perkins-who did
not know the informant was an agent-could not have experienced any psychologically
compelling reason to confess.
Use of promises
The cajoling, trickery, and deception police use to secure confessions are often buttressed
by promises to further entice suspects into confessing. The Supreme Court
has deemed certain types of promises of leniency, however, to be inherently coercive
and therefore unconstitutional. Promises are considered coercive because they
are meant to convince suspects that their condition will somehow be improved.
That improvement is often illusory, however, because police are often only interested
in securing the confession and have little interest in or control over carrying
out the promises. As a result, police rely on a specific form of promise, the use of
which has largely been upheld by the courts.
Because "direct" promises of leniency have been deemed by the Supreme Court
to be unconstitutional since 1897 (Bram v. United States, 168 U.S. 532 (1897)),
police have come to rely on promises that do not guarantee that the suspect's position
will be improved but instead only imply such an improvement. For example,
in State v. Jackson (1983), interrogators led the suspect to believe that if he told
the truth-or confessed-the court would "view his case in a favorable light"
(State v. Jackson, 304 S.E.2d 134 (1983)). On appeal, the North Carolina Supreme
Court ruled his confession to be voluntary because there was no offer of leniency
by the police. Thus, the extent to which promises are viewed constitutional in the
eyes of the courts is largely determined by their directness and specificity (Ayling,
1984; Kassin, 1997; Sasaki, 1988; Skolnick & Leo, 1992; White, 1979).
THE ETHICS AND DILEMMAS OF DECEPTIVE POLICE
Police experience tremendous pressure by society and prosecutors to solve crimes.
Despite the common misconception that most crimes are quickly solved by some
direct forensic evidence that links the suspect to the crime, most crimes are in fact
Crime control vs. due process and ethical orientation 81
solved by important information obtained during police questioning. Interrogation
is an important part of that fact-finding process. At first glance, the use of trickery
and deception in obtaining incriminating information during interrogation might
seem to be without substantial criticism. In fact, one might argue that as long as
the techniques police employ are legal, securing a confession is the most efficient
and therefore rational means for solving a crime.
However, the use of deception in interrogations needs to be considered from a
broader perspective than its perceived utilitarian promise. In fact, a review of such
techniques suggests that despite the contention of training manuals and seasoned
interrogators that liars can be distinguished from truth tellers, the promise of such
claims is often overstated. Even if these claims were not overstated, the use of
deception in police interrogations has potential negative effects on police conduct
in other areas of their work.
CRIME CONTROL VS. DUE PROCESS AND
One's view concerning the appropriateness of deceptive interrogation techniques is
likely a product of fundamental assumptions that one holds about the criminal justice
system. Herbert Packer's (1968) two models of the criminal justice system
view the goals of the system as existing on a continuum.
At one extreme is the crime control model. Individuals who subscribe to this
model believe that the primary goal of the criminal justice system is crime control,
and the goal of crime control can only be maximized (thereby producing the
greatest good for the greatest number of citizens) through efficiency. An efficient
criminal justice system quickly identifies, apprehends, convicts, and punishes perpetrators
(Packer, 1968). Existing at the other extreme of the continuum is the due
process model. In contrast to the crime control model, which emphasizes efficiency
and finality of the outcome, the due process model is more concerned with justice
while emphasizing the process through which it is achieved. Another way of
saying this is that in the due process model, the protection of the innocent is as
important as the punishment of the guilty. Unfortunately, the values of "efficiency"
and "justice" are often at odds with each other and exist in a zero-sum game; that
is, an increase in one often comes at a cost to the other. For example, unrestrained
police power increases the likelihood that individuals will be identified, prosecuted,
convicted, and punished, but without sufficient safeguards it runs the risk
of corrupting the process (see Caldero & Crank, 2010).
The assumptions one holds of the system-which view the central value pursued
by the criminal justice system as either "efficiency" or as "justice"-will
profoundly shape one's views regarding the morality of deceptive interrogation
techniques. It is difficult to argue that efficiency is not an important value, because
an efficient system may provide more effective public safety. Citizens, however,
should recognize that one value often comes at a cost to another, and the extent
82 CHAPTER 5 Deception in police interrogation
to which deceptive interrogation techniques should be allowed to exist is one
that will ebb and flow with political currents and the public sentiment that
RELIABILITY OF BEHAVIOR ANALYSIS
The most popular form of interrogation practiced by police today is the Reid Technique
(Meyer & Reppuci, 2007). The Reid Technique relies on a form of behavior
analysis in which police ask suspects a series of 15 questions and assess their verbal
and nonverbal responses in an attempt to determine guilt. This technique rests
on the assumption that guilty suspects provide verbal and nonverbal cues that
trained investigators can identify to determine deception. For example, short
answers, gaze aversion, slouching, and reactive grooming of self or clothes are
all considered cues of deception (Inbaue et al., 2001). According to Reid and
Associates (2010), interrogators trained in this technique are 85 percent accurate
in distinguishing guilty from innocent suspects.
The assumption that police interrogators can make accurate determinations of
guilt or innocence through behavior analysis is not generally supported by existing
research. It is estimated that laypeople are 54 percent accurate in detecting truth,
whereas the trained police rate is believed to be between 45 and 60 percent, which
may be modestly better-or even slightly worse-than random guessing (Vrij,
2001). Other studies have shown that college students have similar or higher accuracy
rates than trained police officers (DePaulo & Pfeifer, 1986; Kassin & Fong,
1999; Kassin, Meissner, & Norwick, 2005), whereas other research has demonstrated
that such training actually reduces police and college student abilities to
detect deception (Kassin & Fong, 1999; Meissner & Kassin, 2002). Perhaps even
more troubling is the finding that police who underwent training in identifying
deceptive cues were more likely to make, with extreme confidence, prejudgments
of guilt that were frequently in error (for a full review, see Kassin, 2008).
The consequences of inaccurate prejudgment of guilt and extreme confidence
are particularly troublesome when the value of efficiency is permitted to run
roughshod over justice. Caldero and Crank (2010) have argued that police do not
build cases in a serial process whereby evidence is obtained prior to determination
of guilt but instead make determinations of guilt more as a product of intuition and
the professional socialization preceding evidence collection. An example might be
when an officer determines that a particular individual or car does not belong in a
particular area. Once police officers sense that a crime has been or is about be
committed, they work backward to develop sufficient facts to establish "reasonable
suspicion" or "probable cause." They do this to initiate a police/citizen contact or
search-such as claiming that a driver failed to make a complete stop-to allow
for the collection of evidence (see also Crank, 2004). In the interrogation room,
officers usually begin with the presumption guilt (Gudjonsson, 1992) and then
work to secure a confession. Prejudgments of guilt and overconfidence inspired
Reliability of behavior analysis 83
by training in interrogation techniques may have the effect of blinding investigators
to exculpatory evidence. Such attitudes can also lead to interrogation techniques
that elicit a false confession-particularly when police are not trained with
regard to the proper limits of such techniques (which they frequently are not).
Deceit and lying are encouraged by Reid and Associates, whose techniques
have been utilized by generations of interrogators and are among the most widely
used today (Inbaue et al., 2001; Meyer & Reppuci, 2007). However, deceit and
lying are behaviors that are prohibited in other areas of police work (e.g., in supervisor/
subordinate organizational relationships) and in the courts. By allowing or
even encouraging behaviors that are generally condemned by society or prohibited
in other areas of police work, policing runs the risk of creating a "slippery slope."
To encourage police to lie, deceive, and fabricate evidence in the interrogation
room while simultaneously believing that such behaviors may not creep into other
areas of police work (e.g., falsifying police reports, warrants, and orders) may be
naı¨ve and myopic.
Police and supporters of deceptive interrogation techniques often justify them
on utilitarian grounds. The constitutionality of existing and future interrogation
techniques will continually be reviewed by the courts. Court decisions will on
occasion remind police of the delicate balance that exists between efficiency and
justice-and that sometimes police interrogation tactics violate civil liberties.
Unfortunately, justifying deceitful practices in the interrogation room on the utilitarian
grounds of crime control may make it easier to also apply them in other
areas of police work (e.g., falsifying evidence to obtain a warrant or lying in court
to secure a conviction). Unlike police interrogations, which are relatively transparent
(often videotaped) and whose methods are relatively easily reviewed by the
courts, lies and fabrications that find their way into other areas of police work
are not as visible and subject to external review mechanisms for the protection
of those who are in fact innocent.
A police force that lies and deceives, even if to achieve good ends, may also
limit its long-term effectiveness. Police are dependent on the public to provide
valuable information in solving crimes, to coproduce public safety through community
involvement, and to help secure convictions from juries comprising the
people they police. A police force that develops a reputation for lying and
deceit-two behaviors generally not supported by the public-runs the risk of
undermining the elements of confidence and trust that are necessary for effective
police/citizen relationships. As a result, citizens may become less likely to furnish
police with important information and/or to actively participate in the policing of
their communities. In addition, police agencies that develop such a reputation are
more likely to encounter juries that question the veracity of officer testimony
and are more likely to acquit suspects than they otherwise would be. This is particularly
true when gross miscarriages of justice resulting from false confessions
obtained through deceptive interrogation techniques are revealed to the public.
A false confession is one in which an innocent person confesses to a crime he
or she did not commit. Because many people assume that innocent people would
84 CHAPTER 5 Deception in police interrogation
not confess to crimes they did not commit, many would argue that the use of deceit
to obtain confession evidence is not problematic. Although the actual rate of
false confessions is unknown in the absence of an adequate method of estimation
(Kassin, 1997), it is believed that the number of false confessions in the United
States is between 10 and 394 per year (Cassell, 1998).
Given the fact that confession evidence has a more compelling influence on
jurors than eyewitness testimony (Wakefield & Underwager, 1998), it is important
to understand the different types of false confessions and the motivations or reasons
that give rise to each. Kassin and Wrightsman (1985) have distinguished
between voluntary false confessions, coerced-compliant false confessions, and
coerced-internalized false confessions. A voluntary false confession is one that is
given in the absence of external pressure from police. The reasons suspects may
give voluntary false confessions range from a desire for notoriety (as when 200
people confessed to the kidnapping of XXXXX XXXXXndbergh's baby) to acceptance,
recognition, or self-punishment. Another example was when a woman falsely
implicated herself and a group of motorcyclists in a local murder and later claimed
in a letter to police that she did so for the same reasons she used drugs and
attempted suicide-for attention (Wrightsman & Kassin, 1993:87-88).
A coerced-compliant false confession is one in which suspects confess after
intense interrogation pressure and that arises out of instrumental motivations. Here
an individual falsely confesses because he or she believes the short-term gains
(e.g., being released, left alone, fed, etc.) outweigh the long-term consequences
(e.g., prosecution, incarceration, loss of reputation, etc), as was the case with
Ronald Kitchen noted at the beginning of this chapter. The perceived strength of
the evidence and an individual's predisposition toward compliance in social situations
have both been found to be significant predictors of this type of false confession
(Cassell & Hayman, 1996; Gudjonsson, 1989). Finally, coerced-internalized
false confessions are those in which an innocent person comes to believe that he
or she has, in fact, committed the crime in question.
It is difficult to understand not only how innocent individuals confess to crimes
they didn't commit but also how, after being exposed to interrogation tactics that
are suggestive, guilt sometimes becomes internalized by the individual. This form
of false confession is particularly troublesome because here an individual's recollection
of the events becomes altered and therefore unretriveable at a later date.
The reasons for such internalization are not well known, but studies have shown
that individuals differ with respect to their level of suggestibility during interrogation.
Those people who exhibit poor memories, high levels of anxiety, low selfesteem,
and lack of assertiveness are more likely to experience shifts in memory
and yield to misleading questions (Gudjonsson, 1992).
Coerced-internalized false confessions are relatively rare, yet numerous cases
have been documented (Ofshe & Watters, 1994; Warden & Drizin, 2009). For
example, Thomas Sawyer, a golf course groundskeeper accused of raping and murdering
his neighbor, was originally invited to the police station to "assist" in an
investigation. After 16 h of interrogation in which police claimed they had physical
BOX 5.2 FALSE CONFESSION TYPES AND THEIR CORRESPONDING
False Confession Type
Voluntary False Confession
Coerced-Compliant False Confession
Motivation or Reason
Desire for notoriety, acceptance,
recognition, or self-punishment.
Concerned with maximizing short term
gains (e.g., a drug addict confessing so
they can be released to get a "fix").
Individual prone to suggestibility
resulting from poor memory, high
anxiety, low self-esteem, or lack of
evidence linking him to the crime, Sawyer was convinced by police that the reason
he could not recall the event was because of an alcoholic blackout. He finally
admitted to the crime and went on to state, "I guess all of the evidence is in, I guess
I must have done it" (Jerome, 1995:30). A review by Kassin (1997) of coercedinternalized
false confessions led to the conclusion that such confessions-
although infrequent-occur when (1) individual memories are malleable because
of youth, interpersonal trust, naı¨vete´, suggestibility, lack of intelligence, stress,
fatigue, or alcohol or other drug use; and (2) police utilize false evidence ploys that
rely on seemingly irrefutable scientific evidence (e.g., DNA, hair, fingerprints, or
The use of deception in police interrogation has become a mainstay in police interrogation
techniques. From conflating interrogations and interviews to utilizing
false evidence ploys and role playing, police interrogation tactics rely on psychological
manipulation to secure confession evidence. Society holds lofty expectations
for police to solve crimes and to do so expediently. Because perpetrators
rarely confess their involvement in criminal offenses when initially confronted
by police, interrogators have adopted techniques to secure confessions that attempt
86 CHAPTER 5 Deception in police interrogation
to follow the "letter of the law." The meaning of the "letter of the law," however,
has changed and will continue to change over time as it relates to the values
embodied in the voluntariness standard articulated in Miranda. Changing political
winds and public sentiment will undoubtedly shape future interpretations of this
standard and, therefore, police practices.
The pressure experienced by police to obtain confession evidence is difficult
to overstate, since this evidence is considered to be the most potent and damning
type-even more so than eyewitness testimony. Deceptive interrogation is often
justified on utilitarian grounds by those who believe that the primary goal of the
criminal justice system (and therefore the police) is crime control. It is difficult
to argue the value of eliminating deception in whole or in part if one subscribes
to this view of the criminal justice system and assumes that the techniques learned
and practiced by interrogators are effective in distinguishing liars from those
who tell the truth. Moreover, if one assumes that lying can be confined to interrogation
rooms and that innocent people don't confess, any argument for the
abolition or limiting of deception in interrogation is not likely to gain traction.
Unfortunately, this view is limited at best, XXXXX XXXXX assumptions are often
Police in a democratic society must balance the need for crime control with the
need for justice lest they undermine their perceived legitimacy and, ultimately,
their long- term effectiveness. Empirical analyses of the most popular interrogation
techniques show only a marginal improvement (or in some cases a decrease) in an
individual's ability to detect deception. Police officers trained in such tactics are
more likely to prejudge guilt incorrectly and experience extreme levels of confidence
regarding their conclusions. The potential consequence is that intuition,
socialization, and formal training in these techniques may combine in the interrogation
room to blind investigators to exculpatory evidence. This may also spur
cajoling, trickery, and deception to such an extent as to elicit a false confession,
even if not intended. Even more worrisome is the assumption on the part of many
that an innocent person will not confess. Confession evidence holds considerable
sway over juries and, once presented, is difficult to discount. When false confessions
lead to gross miscarriages of justice, such as in the case of Ronald Kitchen,
public confidence in the institution is seriously eroded, and questions regarding the
limits of police power are raised that may compromise the effectiveness of law
In a democratic society that places a high value on justice-the belief that it is
better to let 10 guilty suspects go rather than wrongly convict an innocent person-
it is difficult to argue for the unfettered use of deception in interrogation. The
courts will ultimately define the acceptable forms and the extent to which it can
be practiced. The need for efficiency will continue to exist alongside other values
that are central to our conceptions of justice. It is important that we understand that
many of the techniques of deception in use today fall short of their promise-while
adversely affecting judgments of guilt and inspiring unfounded confidence-and
that false confessions can and do occur.
Learn More on the Internet
[For more information on police interrogation issues go to www.aclu.org and search on
the term police interrogation.
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