by Anthony W. Accurso
There are many aspects of the criminal justice system in the U.S. that are in desperate need of reform, but one aspect — how we obtain information from potential suspects — is perhaps more troubling than others because it does more than just undermine the pursuit of justice by generating false confessions; it also has its roots in torture.
To understand how the interviewing and interrogation of persons of interest has become ripe for reform in this country, this article will present some key terms and a short history of interrogation up to its current state; review the technique most commonly taught in the U.S., including how it works, its failings, and why attempts to rehabilitate this technique will continue to fall short; and discuss alternative methods that are likely (eventually) to be the future of interrogations in this country.
Early forms of interrogations in a criminal context go back to the earliest days of legal systems, but perhaps the most well-known example is the Spanish Inquisition. It was declared in 1478 by King Ferdinand II of Aragon and Queen Isabella I of Castile and broadly applied to all Spanish territories, allowing the tribunal of the Holy Office of the Inquisition to investigate approximately 150,000 people for various offenses — though it intensified after decrees in 1492 and 1502 required all Jews and Muslims in Castile to convert to Catholicism or leave the territory.
According to Thomas F. Madden, Professor of History and Director of the Center for Medieval and Renaissance Studies at Saint Louis University, “The Inquisition was not born out of desire to crush diversity or oppress people; it was rather an attempt to stop unjust executions.” Yes, you read that correctly. Heresy was a crime against the state. Roman law in the Code of Justinian made it a capital offense. Rulers, whose authority was believed to come from God, had no patience for heretics.
Under direction of the first Grand Inquisitor, Tomás de Torquemada, investigations were announced, along with a 30-day grace period for confessions and the gathering of accusations by neighbors. Evidence that was used to identify a crypto-Jew (Spanish Jews practicing their faith in secret) included the absence of chimney smoke on Saturdays (a sign that the family might clandestinely be honoring the Sabbath), the buying of many vegetables before Passover, or the purchase of meat from a converted butcher. The court could employ physical torture to extract confessions once the guilt of the accused had been established. Crypto-Jews were allowed to confess and do penance, although those who relapsed were executed.
According to historycollection.com, Inquisitors used various methods of torture to extract confessions from the presumptively guilty, though two are noteworthy for their longevity of use: the “rack” and “toca,” the progenitor of modern waterboarding.
When persons were subjected to the rack, they would be chained to a table such that they were stretched when the wheel was turned. “As the chains were tightened, the body would stretch and joints, ligaments, and tendons would snap, crack, and pop,” a memorable and horrifying set of sounds.
Toca involved tying a person to a board or table, so they could not struggle, stuffing their mouth with a rag and pouring water over their mouth, “mimicking the sensation of drowning.” Depending on a person’s constitution, this torture could last for days until a confession was forthcoming. “Reports from those that witnessed toca would describe the horrors of watching a person lose consciousness from the lungs filling with water.”
Persons accused of heresy would often be required to first witness the torture of others before facing torture themselves. “When the tendons and ligaments of a person on the rack began making noise, bystanders routinely offered up confessions.”
Witness accounts would be propagated, relating the horrors of simulated drownings. “Just hearing about toca would be enough for some to willingly confess to sins or surrender information without ever being charged with any crimes.”
Under such a system, it is conceivable that many persons who were unpopular in their community — such that their neighbors were likely to assume they were guilty of something —would confess to crimes to save themselves from being tortured, even if they were factually innocent of the crimes to which they confessed. Whatever penance was assigned was surely more palatable than being publicly humiliated and possibly mutilated for life. When faced with the overwhelming power of the state-sanctioned violence and its inevitable application, it’s no wonder that even innocent persons would take any lesser punishment to avoid harsher outcomes. And remember, every person subjected to the system was already perceived as guilty by investigators who had collected sufficient evidence to believe that they were torturing offenders against God and country.
A more recent example is the Star Chamber. It was originally an English court established to ensure the fair enforcement of laws against socially and politically prominent people sufficiently powerful that ordinary courts might hesitate to convict them of their crimes. It later became synonymous with the arbitrary use and abuse of power it wielded, and modern courts are sometimes referred to as “star chambers” when they issue strict, arbitrary rulings after secret proceedings and extend little or no “due process” to the accused. This was due to its use by the English monarchs to wield arbitrary power against their political opponents.
One of the weapons of the Star Chamber was the ex-officio oath where, because of their positions, individuals were forced to swear to answer truthfully all questions that might be asked. Faced by hostile questioning, this then gave them the cruel trilemma of having to incriminate themselves, face charges of perjury if they gave unsatisfactory answers to their accusers, or be held in contempt of court if they gave no answer. See Pennsylvania v. Muniz, 486 U.S. 582 (1990), for an account of this.
Edgar Lee Masters wrote in the early 1900s that, “in the Star Chamber the council could inflict any punishment short of death, and frequently sentenced objects of its wrath to the pillory, to whipping and to the cutting off of ears. … With each embarrassment to arbitrary power the Star Chamber became emboldened to undertake further usurpation. …The Star Chamber finally summoned juries before it for verdicts disagreeable to the government, and fined and imprisoned them. It spread terrorism among those who were called to do constitutional acts. It imposed ruinous fines. It became the chief [defense] of [King Charles I] against assaults upon those usurpations which cost him his life.”
The excesses of the Star Chamber became the inspiration for what would later become the Fifth and Eighth Amendments to the U.S. Constitution, prohibiting compelled testimony against oneself and cruel and unusual punishments, respectively. Muniz.
Though these constitutional rights were seminal in the founding history of this country, time and the trauma of conflict can cause the decay of common values and wisdom. After the Civil War, and during Westward expansion, the details of due process were not always strictly observed.
Take the case of Wilson, a man in Arkansas in 1896. The body of Thatch, Wilson’s short-term traveling companion, was found in a creek near where the two had camped two weeks prior in territory belonging to the Creek Nation. Wilson was found in possession of property known to belong to Thatch, including “five horses and a colt, a wagon, gun, bedclothing, and other property.” Wilson v. United States, 162 U.S. 613 (1896).
In addition to Thatch’s property, investigators found “The bedclothing was bloody, and the blood had passed through the bed, the bloody parts being a foot or more in diameter. A pillowcase belonging to Thatch was sewed over the blood spots on one side of the bedtick, and a flour sack sewed over those on the other. Charred pieces of cloth and some buttons were found at the camping place, and some blood in the ground under where there had been fire.”
When Wilson was brought to trial, the government sought to enter into evidence Wilson’s confession to the crime, but Wilson’s attorney objected “on the ground that it was not voluntary.”
The court then heard testimony from U.S. Commissioner J.B. George “that Wilson was brought to his office at night; that there was a crowd at the door, and talk of mobbing, and he directed him to be turned over to the city marshal to be taken to jail; that he examined him the next day, and that the statement was his statement, as made and written down at the time.” The government also called George’s assistant, who testified that he was the one who transcribed Wilson’s statement, and he corroborated George’s version of events.
Wilson testified, “that after he was arrested, he was taken to Keokuk Falls, where a great crowd of people gathered around him and threatened to mob him, and he was taken before J.B. George, who proceeded to examine him in the presence of the crowd, without giving him the benefit of counsel or warning him of his right of being represented by counsel or in any way informing him as to his right to be thus represented.”
The court eventually credited the government’s witnesses’ account over Wilson’s and allowed the confession to be entered. The Supreme Court upheld the admission saying “we are not prepared to hold that there was error in its admission in view of its nature and the evidence of its voluntary character, the absence of any threat, compulsion, or inducement, or assertion or indication of fear, or even of such influence as the administration of an oath has been supposed to exert.” The court also wrote that “the true test of admissibility is that the confession is made freely, voluntarily, and without compulsion or inducement of any sort.”
When viewing Wilson’s case nearly 130 years later, it is not so far-fetched to believe that a commissioner and his assistant would use the threat of mob violence to extract a confession from a suspect, who the mob believed was guilty, and then testify in concert to hide how truly involuntary Wilson’s statement actually was.
What we know for sure, though, is that violence and threats of violence were commonly used to extract confessions from suspects, especially non-white suspects. Though slavery had officially ended, the Thirteenth Amendment still allowed for slavery — and all of its inherent horrors — for persons convicted of a felony. Yet when a law enforcement officer is investigating a violent crime and has a suspect in custody who they truly believe to be guilty, whether the loss of rights occurs before or after the conviction is sometimes seen as a meaningless distinction. This practice, known as the “third degree,” was common until at least the mid-1930s. In 1931, a presidential panel known as the Wickersham Commission credited reports of officers hanging suspects out of windows, dunking their heads underwater, or simply punching and kicking them until they confessed.
But it was not until the 1936 case of Brown v. Mississippi, 297 U.S. 278 (1936), that the Supreme Court took up the issue. The case involved three Black men who were accused of murder and were also beaten and whipped until they confessed.
The Court noted that “in his testimony with reference to the whipping of the defendant Ellington, and in response to the inquiry as to how severely he was whipped, the deputy stated, ‘Not too much for a negro; not as much as I would have done if it were left to me.’ Two others who had participated in these whippings were introduced and admitted it — not a single witness was introduced who denied it.”
It was on full display that the men had been assaulted while in custody as their wounds were clearly visible during the sham trial to which they were subjected. These wounds were among the factors cited by the court when it overturned their convictions while issuing a warning to police officers everywhere that convictions based on such coercion would not be allowed to stand.
Its opinion quoted Fisher v. State, 110 So. 361 (Miss. 1926), saying “[c]oercing the supposed state’s criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief inequity, the crowning infamy of the Star Chamber, and the Inquisition, and other similar institutions. The constitution recognized the evils that lay behind these practices and prohibited them in this country. ... The duty of maintaining constitutional rights of a person on trial for his life rises above mere rules of procedure, and wherever the court is clearly satisfied that such violations exist, it will refuse to sanction such violations and will apply the corrective.”
But like many reforms, these did not immediately take hold everywhere all at once and would to some extent continue through the 1960s, with some notorious exceptions.
For instance, in the modern era of DNA exonerations, Chicago stands out as a city with a staggering number of proven-false confessions — where suspects admitted to crimes that DNA evidence later showed they could not have perpetrated. Many of these confessions can be attributed to a unit that operated within the Chicago Police department specifically devoted to extracting confessions using sophisticated electrical equipment.
Following specific allegations by multiple suspects that contained similar, horrific details, an investigation was launched into the interrogation unit overseen by the infamous Commander Jon Burge. The People’s Law Office produced “a chronological list of more than 60 alleged victims from 1972 to 1991,” according to the Chicago Reader. Edward Egan was named special prosecutor in 2002 to investigate the allegations, and his list grew to at least 118 victims, according to confidential sources interviewed.
According to witnesses, Burge, and the detectives who aided him, first began by using an army field telephone on suspects, a trick that Burge is alleged to have picked up during his service as an MP in Vietnam.
Former sergeant D.J. Lewis, who served with Burge’s company, the Ninth MPs, from February 1968 to January 1969, said that field phone interrogations were “not uncommon.” He stated that prisoners would be tied to a pole in a tent by officers from the Army of the Republic of Vietnam (“ARVN”). “[T]hey would give them treatment, and it was not uncommon for them to rig up a field telephone and put one [wire] around a finger and the other around the scrotum and start cranking. And they would eventually tell you what you wanted to know. …” Lewis explained that the ARVN officers did this with the blessing of the U.S. Military Intelligence.
Allegations against Chicago PD officers working with or under Burge included the use of a field telephone, a cattle prod, and a mysterious third device that plugged into an electrical outlet. Museum curators who specialize in period-specific electrical equipment have said the descriptions match a “violet ray machine” or “violet wand,” a device that is commonly used in BDSM and can be adjusted to provide sharp shocks that are generally non-lethal, though still extremely painful.
At a 1985 hearing, suspect Leonard Hinton described being taken to a basement in Area Two, the section of Chicago where Burge was operating at the time. He said his hands were handcuffed above his head, his pants and shorts were pulled down, his ankles were handcuffed to a pole so his legs were spread, and then “the officer with the mustache and with the glasses with the black hair, he came in with a rod, and one was carrying a box, a black box. …There was a cord to the long rod. … The handle on it was black and they plugged the wire into the box. … Then they put something in my mouth … it was cloth … and they tied it so I couldn’t holler. … Then they took the rod, long part, and they placed it under my genitals. … [It was] a pain out of this world. I couldn’t describe it. … They said, ‘Are you ready to talk yet?’ The other said, ‘I don’t think he’s ready to talk yet.’ He hit me with it again. … Then … he touched it in the crack of my rectum. … Then he took that [cloth] out of my mouth. I said, ‘I am ready to talk. Tell me what you want me to say, sir. Please stop.’”
According to a 1998 Human Rights Watch report, the use of electrical devices on persons in custody was extremely rare in the 50 years preceding the report. Most often, cattle prods were used to “control, move, or punish prisoners or demonstrators.” Until the mid-1960s, a field telephone was used to torture prisoners at the Tucker State Prison Farm in Arkansas (it was referred to as the “Tucker Telephone”).
This means that Burge and his men were unique in that they used such equipment to extract confessions. Their uniqueness also presents a modern example of torture in the context of criminal interrogations. Cases like Leonard Hinton’s illustrate the effectiveness of such tools to overcome the will of a suspect and extract a confession. However, as Hinton’s testimony demonstrated, suspects subjected to various degrees of torture will eventually confess to anything to end the torture, even if it is not true or accurate.
Once police were ordered to quit torturing suspects, some new method to extract confessions had to fill this gap. In 1962, the first edition of Criminal Interrogations and Confessions was published. Its authors were Fred Inbau, a Northwestern University law professor who ran one of the country’s first crime labs, and John E. Reid, a former police officer turned polygraph expert.
Reid had a reputation as a master interrogator, “extracting confessions in over 300 murder cases” through the 1940s and 1950s, according to WIRED magazine. The book explained that an interrogation “should be designed to persuade a suspect that confessing is the only sensible option; to get confessions … police must sweep up suspects in a wave of momentum that they’ll find impossible to reverse.”
One enthusiastic proponent of this method, now known as The Reid Technique (“TRT”), was former head of the FBI, J. Edgar Hoover. He was developing a brand image of the FBI as the premier law enforcement agency of the time and was keen on adopting methods claiming to be backed by science, like ballistics, fingerprinting, document examination, and TRT — which claimed its basis in “psychological principles.”
“Third-degree methods, an ill-trained officer might think, perhaps a severe beating, will force a confession,” said Hoover. “But the trained officer, schooled in the latest techniques of crime detection, will think otherwise.”
Where the third degree was about overcoming the will of a suspect using physical force, TRT is about creating a kind of irresistible psychological pressure. It is a step-by-step process whereby the interrogator confines a suspect, mentally (and sometimes physically), such that the only plausible option is to confess to the crime in question. And though TRT can be applied in any setting, its creators recommend using a small, dark room, preferably at a police station. The following passage from Criminal Interrogations and Confessions explains this rationale:
“The principal psychological factor contributing to a successful interrogation is privacy — being alone with the person under investigation. … [I]n his own home, (the suspect) may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions within the walls of his home. Moreover, his family and other friends are nearby, their presence lending moral support. … In his own office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law.”
TRT, or some semblance of it, was (at least until recently) pervasive across America in that nearly every officer who received formal or mentored training in interrogation was trained on its principles. Crime dramas like Law & Order regularly feature TRT, though interrogations are usually depicted on TV as resolving much faster than they do in real life, where the process can stretch on for hours or even days. Reid and Inbau liken the interrogator’s task to “a hunter stalking his game.”
According to WIRED, “[a]ll the major tropes of a traditional police interrogation can be traced back to Reid and Inbau’s manual: the claustrophobic room, the interrogators’ outward projection of certainty, the insistence on a theory of the case that assumes the suspect’s guilt. (The manual calls this a “theme.”) The interrogators bolster that theme with what they characterize as incontrovertible evidence, which can include facts drawn from real detective work (“We know you got off work at 5 p.m.”) or details that are completely fabricated (“The polygraph says you did it.”). Toward the end, interrogators are encouraged to “minimize” the crime in a consoling sort of way (“He had it coming, didn’t he?”). All the while, they cut off all denials until the suspect cracks. Detectives are allowed to use deceit and trickery because, as Inbau and Reid explained, none of these techniques are ‘apt to induce an innocent person to confess to a crime he did not commit.’” Of course, today, we know that this is an absolutely false premise.
The Reid Technique
Prior to authoring the leading manual on interrogations, John E. Reid was a police officer and a polygraphy expert. Though the polygraph has been shown to be no better than chance at detecting deception, many law enforcement officers stubbornly swear by its effectiveness, and Reid sought to create an interrogation model that operated in a similar fashion by provoking responses in a suspect that would indicate to the interrogator that the suspect was being deceptive, all without using special equipment.
It is prescribed as proceeding in three phases, with the first being “factual analysis.” This involves “an inductive approach where each individual suspect is evaluated with respect to specific observations relating to the crime … [it] relies not only on crime scene analysis, but also on information learned about each suspect.” Its purpose is to eliminate improbable suspects, develop possible suspects or leads, increase confidence in identifying truthful or guilty suspects through the interview process, and to identify proper interrogational strategies.
This phase is about obtaining information from the suspect but also about the suspect themselves. By asking basic factual questions, an investigator can make assessments such as whether a person is generally consistent in their relating of details, is confrontational, or seeks attention and approval. Such assessments can be leveraged in later phases.
The next phase is the “Behavior Analysis Interview.” An investigator will ask questions “to elicit behavior symptoms of truth or deception from the person being interviewed.” An experienced investigator will often probe into areas with little or no relation to the crime in question, as this serves to establish how the subject behaves in response to stimuli. For instance, if they avert their gaze or bite their fingernails while discussing events where they avoid being forthcoming or which provoke guilt or shame, the investigator will note these “tells” and look for them in the next phase.
If, after the first two phases, the investigator believes the suspect is guilty, they proceed to the third phase: interrogation. When an interrogation is depicted in crime dramas, it is almost exclusively only this phase that is shown.
It begins with the “positive confrontation,” an assertion that the suspect is guilty. The true purpose of this is to provoke a response that can be compared against behaviors documented in the previous phase. (“We have reviewed all the evidence, and we know you did it.”)
The interrogator then develops a “theme,” which is a narrative that shifts blame away from the suspect, often to an external set of circumstances or onto the victim. (“Of course, you had to kill him after he said those things to you.”)
During theme development, it is common for suspects to ask for permission to speak with the intent to deny the accusation and rebut the theme. Interrogators are trained to discourage this, because — according to Reid — innocent subjects are more likely to “promptly and unequivocally” deny the accusation without asking to talk and that “[i]t is very rare for an innocent suspect to move past this denial state.”
Interrogators are to overcome objections by agreeing with the suspect. For example, if a suspect states that they would never commit the crime because they love the victim, the interrogator should use the objection to further develop the theme by saying something like, “so you loved them enough to end their suffering.”
Throughout this, the interrogator is supposed to dominate the suspect’s attention, usually by closing the physical distance between them. This tactic prevents consideration of anything except the theme under development.
The step referred to as “handling the suspect’s passive mood,” recognizes that after a successful period of interrogation, a suspect will begin to feel hopeless and worn down. Reid dictates that the interrogator “should intensify the theme presentation and concentrate on the central reasons he [or she] is offering as psychological justification … [and] continue to display an understanding and sympathetic demeanor in urging the suspect to tell the truth.”
It is at this point that the suspect will be presented with a choice between two alternatives. Both assume the suspect’s guilt, but the justification in each will be different, usually with one option being morally superior to the other. (“Did you plan this thing out, or did it just happen on the spur of the moment?”) The interrogator should follow this with a statement “which encourages the suspect to choose the more understandable side of the alternative.”
Once the suspect chooses one of the alternatives, the interrogator has them orally relate details of the offense, usually without interruption except to keep the suspect on track with the confession. The goal of this step is to have the suspect confirm details of the crime that were not made public by investigators. These come in two types: “dependent,” where the details corroborate information about the offense known to investigators and obtained through evidence prior to the investigation, and “independent,” which are details unknown to investigators prior to the investigation but may be corroborated after the interrogation. The latter are more effective for obtaining a conviction.
The final stage is where the oral confession is converted to a written confession. This step is unnecessary where the interrogation (including the confession) is recorded. However, even when a recording is made, a written confession will be more effective for obtaining a conviction. Interrogators are trained to reinforce the confession by reissuing Miranda warnings to the suspect, avoiding leading questions, and using the suspect’s own language.
What Could Possibly Go Wrong?
The Innocence Project is an organization that attempts to help incarcerated persons who claim they did not commit their crime of conviction, and they do so exclusively through having biological evidence tested using the most scientifically reliable method to date: DNA testing. Of the 375 exonerations achieved by the Innocence Project to date, approximately 29% involved false confessions.
Forejustice.org, which maintains a database of all exonerations (as well as pertinent details), shows that of the 2,403 exonerations in the U.S. since the year 2000, 298 of them involved false confessions by the defendant or a co-defendant.
According to a recent estimate by the Department of Justice, as many as 10% of the approximately two million incarcerated men and women in U.S. prisons are actually innocent of the crime for which they were convicted and sentenced. The Innocence Project states that we can gather from this data that “as many as 50,000” of these wrongly convicted persons produced false confessions.
Critics of TRT say there are several features of the technique that are conducive to producing false confessions. John E. Reid & Associates, Inc., the company that holds the rights to TRT, acknowledges “false confessions do occur” but claims that “[w]ith very few exceptions, false confessions are caused by the investigator engaging in coercive or inappropriate behavior.”
Reid and Inbau have previously claimed that a well-trained investigator could catch suspects lying with “85 percent accuracy.” However, this claim to accuracy was made without any basis in research, and research conducted within the last dozen years has established that failing to follow the recommendations of Reid & Associates not only increases the likelihood of false confessions, it practically guarantees this outcome. But to understand why this is, we must understand where the process can go wrong.
First, even large police departments with enough resources to educate officers rarely prioritize interrogation training, preferring instead to have inexperienced officers mentored by senior staff. When these skills are passed down from one generation of interrogators to the next without formal retraining as the legacy techniques are tested and retested by research, it can give rise to divergent sets of practices that each previous generation believed to be effective, without ever validating these methods statistically. Or, as was the case in Chicago’s Area Two under Jon Burge’s leadership, the inappropriate methods he used were adopted by new trainees under his command.
As a profession, doctors avoid this problem by undergoing extensive initial education, followed by practice, and then continuous training and professional development. This is often not the case with police.
“You would think that at a large organization like the LAPD, a large emphasis would be put on developing interrogation skills for their detectives,” said Tim Marcia, a detective with LAPD’s Robbery-Homicide Division. “To be quite honest, we go to an 80-hour detective school, and probably about four hours is devoted to interrogation.”
Other research has undermined the whole premise of the Behavior Analysis Interview phase of TRT. During this phase, the interrogator is establishing a “baseline,” which involves determining which verbal or nonverbal behavior (such as fidgeting or broken eye contact) exhibited by the suspect during the interview is characteristic of deception.
However, when German psychologist Günter Köhnken studied the capacity of police officers to determine deception based on such “tells,” he found they were no better than the average person at detecting deception. Subsequent research has shown that “the more confident police officers are about their judgments, the more likely they are to be wrong,” according to WIRED magazine.
Reid & Associates questions the value of such research because the studies often “(1) involved college students in laboratory settings, with students having low motivation to be believed if innocent or avoid detection if lying, or (2) [had] been conducted by people not trained to interview criminal suspects.”
Aside from poor training, there are other factors — rooted in our understanding of human psychology and validated by research — that make TRT a dangerously slippery slope.
Reid & Associates cautions that methods used on neurotypical adults should be modified when the suspect is a child or the adult in question is neurodivergent or has cognitive impairments. They list several factors to be considered when determining whether a modified approach should be used. This includes easily verifiable details like the suspect’s age and prior experience with investigations, but factors such as a suspect’s emotional maturity level, language proficiency, and approximate IQ are not so easily measured, even by professionals with more than four hours of training. And the justice system has a track record of treating cognitively and emotionally immature teenagers as adults.
One common critique leveled at TRT is that it is a guilt-presumptive process, where an investigator reasonably believes a suspect is guilty before interrogating them. “[B]ut the alternative,” says the company, “to interrogate people you do not believe committed the crime, would be absurd.”
The problem with guilt-presumption, though, is that it “creates a slippery slope for innocent suspects because it may set in motion a sequence of reciprocal observations and reactions between the suspect and interrogator that serve to confirm the interrogator’s belief in the suspect’s guilt.” This is in part due to a well-documented psychological phenomenon that is common to all humans and which is difficult to correct for: confirmation bias. In this case, an investigator will focus on details that confirm their belief that the suspect is guilty and then ignore or fail to notice details that undermine this belief.
It should be noted that the interview models used in other countries are non-accusatory, nor do they presume the guilt of the suspect. Because those methods are far less confrontational, they can be used on all witnesses and persons of interest who may possess details about the crime. These methods will be covered in more depth later in this article.
One reason that false confessions are difficult to detect is because interrogators will sometimes reveal evidence to the suspect that was previously not made public. In rare cases, this is intentional but is most often an honest mistake, occurring when the interrogator loses track of public versus private details, or shows an evidence photo to a suspect that inadvertently discloses the information. After such a disclosure, says Reid & Associates, “it is difficult, if not impossible, to determine if the subject had independent knowledge of these details or was just repeating what he was told.”
Contamination is a well-documented phenomenon. Brandon Garrett, a professor at the Duke University School of Law, wrote Convicting the Innocent: Where Criminal Prosecutions Go Wrong in 2011, his analysis of the first 250 DNA exonerations. He noted that in 38 of the 40 false confessions, “the authorities said defendants provided details that could be known only by the actual criminal or the investigators, thus corroborating their own admissions of guilt by revealing secret information about the crime that could only have been provided by them.”
Reid & Associates notes that another contributing factor to a false confession is the length of the interrogation. One study of 44 false confessions noted that the average length of the interrogation was 16.3 hours. Several suspects later admitted that they confessed simply to end the interrogation and did so under the mistaken belief that the subsequent investigation would prove that they were, in fact, innocent.
Despite this, the company places no upper limit on the length of time to which a suspect should be subject to continuous interrogation, nor have any studies been done to determine this limit — though it would be difficult to get such a study past a preliminary review board due to its similarity to psychological torture.
Where interrogators can cross the line into coercion while (mis)using TRT methods has been a subject revisited by courts since TRT was published. According to Dr. Richard Leo, Professor of Law and Psychology at the University of San Francisco School of Law and expert on interrogation techniques and false confessions, “[m]ost people understand that psychologically coercive interrogation techniques can lead to true confessions, but they do not understand the relationship between psychologically coercive interrogation techniques and false confessions. … [L]engthy custody and interrogation; police lies about non-existent evidence (i.e., false-evidence ploys); minimization; and implied or explicit promises and threats … may lead to false confessions from innocent suspects [who] come to perceive that they have no meaningful choice but to comply with the demands and requests of their interrogators.”
Reid & Associates notes that “courts have consistently found that advising a suspect of the potential penalties he may face based on the type of crime that he committed is not coercive, but that promising the suspect a benefit for confessing, such as receiving a shorter sentence, getting counseling instead of going to jail, or being able to go home and not getting arrested, can nullify a confession.”
Whether or not specific statements made by the interrogator are coercive is regularly adjudicated by courts using a “totality of the circumstances” review. This is a vague standard in that it is rare that any one type of statement will, by itself, be enough to be coercive; and what is not coercive for an adult of average mental capacity may be coercive for other suspects, such as children. This is also why many rulings are not more widely applicable, as a set of statements may be judged coercive when applied to one defendant but not to another.
One of the most contentious issues surrounding interrogation techniques involves lying to a suspect about evidence. This is not allowed in many other developed countries, and states like Illinois have banned lying to juveniles. The U.S. Supreme Court has said that misrepresenting evidence “is, while relevant, insufficient, in our view, to make this otherwise voluntary confession inadmissible” and should be assessed on a case-by-case basis in a “totality of the circumstances” review. Frazier v. Cupp, 394 U.S. 731 (1969).
“When deceptive interrogation tactics are sanctioned by our courts, what is the lesson conveyed to the public — that law enforcement officers can lie to a suspect, but when a suspect lies to the police, it is a crime?” wrote Justice Barry Albin in his concurring opinion to a New Jersey Supreme Court case where a woman’s confession was found to be involuntary, in part due to the interrogator lying to the defendant.
Reid & Associates urges extreme caution with this tactic. First, “the guilty suspect may detect the investigators [sic] bluff, resulting in a significant loss of credibility and sincerity. For this reason, we recommend that this tactic be used as a last resort effort.” They also mention that it should not be used on a “youthful suspect with low social maturity or a suspect with diminished mental capacity,” and it should also be avoided with suspects who acknowledge that they may have committed the crime but who cannot recall doing so. In these cases, “the introduction of such evidence may lead to claims that the investigator was attempting to convince the suspect that he, in fact, did commit the crime.”
Regardless of whether deceptive statements by the investigator are allowed, courts have definitively decided that fabricated physical evidence is unacceptable. In State v. Cayward, 522 So. 2d 971 (Fla. Dist. Ct. App. 1989), for example, the investigator showed the suspect falsified scientific reports indicating that his DNA had been found on the victim, and this was found to be coercive. “It may well be that a suspect is more impressed and thereby more easily induced to confess when presented with tangible, official-looking reports as opposed to merely being told that some tests have implicated him. If one perceives such a difference, it probably originates in the notion that a document which purports to be authoritative impresses one as being inherently more permanent and facially reliable than a simple verbal statement.” Id.
According to the company’s website, Reid & Associates has trained “over 500,000 law enforcement and security professionals” in its methods since 1974. And while all companies have a financial interest in protecting their brand’s image in the face of criticism, some companies are more accountable to regulation and consumer litigation than others. Reid & Associates is not accountable in either fashion and thus seemingly faces no significant penalty for peddling a problematic product. The only limits placed on the practice of its methods are prescribed ad hoc by courts that will occasionally nullify a confession. And the U.S. Supreme Court recently announced that a defendant, who was acquitted after investigators violated his rights during an interrogation, could not claim a monetary judgment under 28 U.S.C. § 1983 against the officer who obtained the statement, let alone against the company whose tactics the officer (mis)applied.
Reid & Associates trains detectives in a method that is, at its core, psychologically coercive. But the level of coercion required to overbear a suspect’s will in violation of the Constitution is a vague and shifting line that is difficult for even trained investigators to ascertain. Even John Reid himself is known to have extracted at least one false confession — he obtained a confession in a 1955 murder case only to have the real killer come forward 23 years later, according to WIRED.
Training thousands of officers in this technique while attempting to warn them about all the ways it could go horribly wrong for the suspect anyway is a bit like selling lawn darts with a simple warning about how their use could maim another person. Sure, you might be able to use them without hurting someone — if you are exceptionally careful and lucky.
A Grieving Father’s
Life Is Destroyed
On the morning of September 21, 2008, Adrian Thomas and his wife Wilhelmina Hicks awoke to discover their infant Matthew limp and unresponsive. Matthew was a mere four months old and had been born premature, so the parents were already hyperalert to their son’s condition. He was rushed to Samaritan Hospital in Troy, New York, where “[t]he most likely differential diagnosis was noted by the treating emergency room doctor as septic shock, although intracranial injuries were also listed to be ruled out.” People v. Thomas, 8 N.E.3d 308 (N.Y. 2014).
Later that day, Matthew was transferred to the Pediatric Intensive Care Unit at Albany Medical Center. His physician concluded that the child had been the victim of blunt force trauma and had been “murdered.” The physician notified local child protective services and law enforcement authorities that evening.
While Wilhelmina was at the hospital attending to Matthew’s care, Adrian was watching their six other children at home. Troy Police Sergeant Adam Mason and other officers arrived at their home and removed the children based on the report that Matthew had been abused. Hours later, the police returned and Adrian was transported to an interrogation room at the Troy police station.
According to the Court of Appeals’ opinion, the police “read the evidently distraught father his rights and commenced a course of videotaped interrogation” lasting “about 9 and 1/2 hours, broken into an initial two-hour, and a subsequent 7 and 1/2–hour session. In between, defendant, having expressed suicidal thoughts during the initial interview, was involuntarily hospitalized … for some 15 hours on a secure psychiatric unit,” after which “he was released back to his interrogators who immediately escorted him back to the police station where the interrogation resumed.”
The interrogators had been told by Matthew’s doctor that he had been “slammed into something very hard. It’s like a high speed impact in a vehicle. This baby was murdered. This baby is going to die and he was murdered.”
Interrogators proceeded under the theory that an adult within the household had inflicted traumatic head injuries on the child. However, they “repeatedly reassured defendant that they understood Matthew’s injuries to have been accidental. They said they were not investigating what they thought to be a crime and that once defendant had told them what had happened he could go home. He would not, they reassured over and again, be arrested.”
Thomas steadfastly denied harming Matthew, even by accident. The officers then “falsely represented that his wife had blamed him for Matthew’s injuries and then threatened that, if he did not take responsibility, they would ‘scoop’ [his wife] out from the hospital and bring her in, since one of them must have injured the child.”
By the end of the first two hours of interrogation — before his trip to the psychiatric unit — Thomas agreed to “take the fall” for his wife. He continued to deny that either of them had harmed the child intentionally, but “he would take responsibility to keep her out of trouble.”
Between the time Thomas agreed to take the fall for his wife and when the second round of marathon interrogation resumed on the evening of September 22, Matthew was pronounced brain dead. Yet the investigators “told defendant that he was alive and that his survival could depend on defendant’s disclosure of how he had caused the child’s injuries.”
When Thomas said he could not remember having injured Matthew, Sergeant Mason responded by saying, “You better find that memory right now, Adrian. You’ve got to find that memory. This is important for your son’s life man. You know what happens when you find that memory? Maybe if we get this information, okay, maybe he’s able to save your son’s life. Maybe your wife forgives you for what happened. Maybe your family lives happier ever after. But you know what, if you can’t find that memory and those doctors can’t save your son’s life, then what kind of future are you going to have? Where’s it going to go? What’s going to happen if Matthew dies in that hospital tonight, man?”
About four hours into the second interrogation session, Thomas began recalling all the times he had mishandled Matthew and bumped his head, an innocuous enough occurrence that all parents of squirming infants have experienced.
A second officer then interrupted the interrogation, claiming to have knowledge of head trauma from his tour of duty in Operation Desert Storm, and “said that Matthew’s injuries could only have resulted from a far greater application of force than defendant had described.”
Sergeant Mason represented to Thomas that he was doing all he could to forestall his superiors from filing charges, but he needed Thomas to cooperate. Mason would later testify that, at that point, he lacked probable cause to arrest Thomas.
Mason then “proposed that defendant had been depressed and emotionally overwhelmed after having been berated by his wife over his chronic unemployment and that, out of frustration, he had, without intending to harm the infant, responded to his crying by throwing him from above his head onto a low-lying mattress.”
Having Thomas demonstrate this with the clipboard, Sergeant Mason instructed: “Move that chair out of the way. Here hold that like you hold the baby. Turn around, look at me. Now here’s the bed right here, all right. Now like I said, the doctor said that this injury is consistent with a 60 mile per hour vehicle crash, all right, all right. That means it was a very severe acceleration. It means he was going fast and stopped suddenly, all right, so think about that. Don’t try to downplay this and make like its [sic] not as severe as it is.… Hold that like you hold that baby, okay and start thinking about them negative things that your wife said to you, all right, start thinking about them kids crying all day and all night in your ear, your mother-in-law nagging you and your wife calling you a loser, all right, and let that aggression build up and show me how you threw Matthew on you [sic] bed, all right. Don’t try to sugar coat it and make it like it wasn’t that bad. Show me how hard you threw him on that bed.”
Thomas then acted this out and, conforming to Sergeant Mason’s prodding, stated that he had thrown “Matthew down on his mattress on the Wednesday, Thursday and Saturday preceding the child’s hospitalization.”
Thomas was subsequently charged with the murder of his infant son. His motion to exclude his written and videotaped statements was denied by the trial court, and he was then convicted by a jury. The Appellate Division upheld his conviction, “reasoning that the People met their burden … to prove defendant’s confession voluntary beyond a reasonable doubt and, relatedly, that the ploys and misrepresentations of defendant’s interrogators were not so serious as to offend due process.”
Nearly five-and-a-half years later, the Court of Appeals of New York would deliver a scathing opinion reversing Thomas’ conviction and ordering the suppression of his statements during the interrogation. It noted that “every scenario of trauma induced head injury equal to explaining the infant’s symptoms was suggested to defendant by his interrogators. Indeed, there is not a single inculpatory fact in defendant’s confession that was not suggested to him.”
Thomas was also lucky in the fact that his interrogator recorded the interrogation sessions. Only federal agencies and about half of all states require recordings. Proving that Sergeant Mason had coerced Thomas into a false confession would have been impossible had the recording of the confession not been available.
Filmmakers Grover Babcock and Blue Hadaegh released Scenes of a Crime in 2011, a documentary that interspersed actual footage from the lengthy police interrogation with excerpts from Reid Technique training films, as well as commentary by key players in the case. According to a film review in the Los Angeles Times, the film reveals that Matthew did not have a fractured skull — nor did he show any bruising, grip marks, or other external signs of either shaking or impact — and laboratory tests later revealed a serious systemic infection, missed by not only the treating doctors but also the pathologist who performed the initial autopsy.
The major steps in TRT outlined earlier in this article track neatly with the statements made by Sergeant Mason during the interrogation, from developing a theme and modifying that theme to incorporate denials and objections by Thomas, to eventually obtaining an oral and written confession. Technically, every tactic Mason used was within the guidelines of TRT, and each statement, reassurance, and promise was individually legal, though when considered in the totality of the circumstances (by the right court) it amounted to illegal coercion that rendered the obtained confession involuntarily made.
Like the torture methods used during the Spanish Inquisition, TRT overwhelms the will of even intelligent, high-functioning adults by creating massive psychological pressure in concert with fostering a sense of helplessness in the face of inevitable consequences.
Indeed, a wealth of research since the 1990s has shown that not only do false confessions occur with disturbing regularity, but that it is trivially easy to implant false memories of having committed a crime.
In 2015, researchers Julia Shaw and Stephen Porter — of the University of Bedfordshire and British Columbia, respectively — published “Constructing Rich False Memories of Committing Crime,” a study describing how they were able to implant false memories in 21 of 30 college-age subjects.
“I’m essentially marrying poor interrogation tactics with poor therapeutic tactics,” said Shaw. According to WIRED, the results were so strong, in fact, that she stopped administering the experiment before she had run through her full sample.
“After three interviews,” they wrote, “70% of participants were classified as having false memories of committing a crime (theft, assault, or assault with a weapon) that led to police contact in early adolescence and volunteered a detailed false account. These reported false memories of crime were similar to false memories of noncriminal events and to true memory accounts, having the same kinds of complex descriptive and multisensory components. It appears that in the context of a highly suggestive interview, people can quite readily generate rich false memories of committing crime.”
Sergeant Adam Mason had been with police department for ten years when he interrogated Adrian Thomas and coerced him into a false confession that cost him over five years of his life. In 2013, Mason was given an award for “outstanding police work,” citing his “exceptional level of performance.”
Also, readers of Criminal Legal News are likely aware that having one’s conviction vacated is sometimes not enough to make a person eligible for compensation for time wrongfully spent incarcerated. Some states, like Texas, additionally require that the prosecutor or trial judge “certify” that the defendant is actually innocent before authorizing compensation. Florida has one of the most restrictive sets of qualifications for compensation, including an unforgivingly short window for filing a claim (90 days from the day the conviction is overturned) and a requirement that the exoneree have no prior offenses before the conviction that was vacated.
Given that methods rooted in Reidand Inbau’s technique have generated an alarming number of false confessions, it is useful to ask what alternatives exist.
Following a 1992 review of interrogation tactics and outcomes in the United Kingdom, the PEACE model was developed. This name comes from an acronym formed from the steps in the process, which are: preparation and planning; engage and explain; account clarification and challenge; closure; and evaluation.
An FBI review of the PEACE model noted that “[w]hile there certainly are similarities between the PEACE and Reid methods … distinct differences exist in the way interviewers approach subjects.”
“The investigators frequently asked open-ended, leading, and repetitive questions; disclosed evidence to suspects; and challenged suspect’s accounts, often by pointing out contradictions and inconsistencies. Yet, they never resorted to threats, promises and intimidation, or the kinds of maximization and minimization tactics through which threats and promises are often implied,” stated the report.
A similar model is known as the “Cognitive Approach” or “Kinesic Interviewing.” Like PEACE, it is a non-confrontational style where suspects do most of the talking. However, there are built-in mechanisms designed to increase the cognitive load on the brain in order to detect deception, instead of unreliable verbal and nonverbal cues used by TRT.
The same FBI review sites one mechanism called the “reverse-order technique, wherein interviewees must tell their stories backwards. Research reveals that the reverse-order process is particularly difficult for people with fabricated stories. This is because people are used to telling stories chronologically. Changing the order requires more thinking and processing, causing liars to make mistakes in their narratives, which collected evidence and witness testimony can disprove.”
The Center for Evidence-Based Crime Policy compared information-gathering (“IG”) approaches (PEACE, Cognitive) to accusatorial approaches (Reid-based methods) and found these approaches differed in four main dimensions.
IG involves trying to establish rapport with the suspect using positive confrontation to obtain a confession while clearly explaining the charge. Accusatorial methods are more confrontational and involve trying to manipulate and control the suspect to obtain a confession.
With regards to questioning, IG methods use open-ended questions and are more exploratory, giving suspects a chance to tell their side of the story. Accusatorial methods use close-ended questioning and are merely confirmatory with regards to the interrogator’s theory.
The primary intended outcome of IG is to obtain information and get to the truth, whereas the accusatorial approach has the sole goal of obtaining a confession.
IG methods use cognitive cues such as the reverse-order technique to detect deception, whereas accusatorial methods rely on anxiety-based cues, or “tells,” that have been proven by research to be unreliable.
Researchers working for the Campbell Collaboration — an international social science research network — concluded in 2012 that “accusatorial methods significantly increased the likelihood of obtaining a true confession (when compared with a no-tactic control condition), these methods also significantly increased the likelihood of obtaining a false confession — a rather medium-to-large effect that is consistent with many cases of wrongful conviction in the United States.”
In contrast, the group found that “information-gathering approaches significantly increased true confession rates, but showed no significant increase in the rate of false confessions when compared with a no-tactic control condition. In fact, information-gathering approaches appeared to show a numerical decrease in the rate of false confessions obtained.”
America, Slow on the Uptake
Following CIA torture scandals in the Bush-era “War on Terror,” in 2010, President Obama (D) announced a new program to reform interrogations. The High-Value Detainee Interrogation Group (“HIG”) was to be a collaboration among the FBI, CIA, and the Pentagon. At the same time, this group began funneling money into research on interrogations. It has funded over 60 studies in psychology and behavioral sciences, several of which refute the basic concepts behind TRT. For instance, one study found that suspects “tend to divulge more information when sitting in a spacious room with windows (the very opposite of what the old Inbau-Reid model recommends).”
In 2012, the LAPD was selected to test the use of HIG methods in a criminal, as opposed to terrorism, context. Two detectives from Robbery-Homicide, Greg Stearns and Tim Marcia, attended a training in late 2013 in Washington, DC.
Though the content of the training is secret, Stearns and Marcia have used HIG methods to great effect for the LAPD, solving a cold case murder that, it turns out, was perpetrated by LAPD detective Stephanie Lazarus, and solving the “Mystery of the Hollywood Head,” the murder of Hervey Medellin by his roommate and lover, Gabriel Campos-Martinez.
According to WIRED, in 2016, the HIG had trained 35 detectives from the LAPD and intends to train more.
“The LAPD is sold on it,” said Mark Severino, a 29-year veteran of the force who, at the time of his comments to WIRED, was a detective supervisor with the Major Crimes Division.
However, due to its secretive nature and its mission to interview terror suspects, the success of HIG agents has been difficult to assess. A Huffington Post report from 2015 said that “the Obama administration’s elite interrogation force is on shaky ground. U.S. officials and outside critics question the effectiveness of its interrogators, whether they’re following their own training, and whether they can continue to rely on psychological research to help break suspects.”
Huffington Post sources relayed a general disdain for the HIG amongst other federal agencies and military outfits, saying that “[c]ertain intelligence shops would prefer to keep their top interrogators to themselves … which means the HIG gets whoever’s left.”
In the meantime, there is at least a slow shift away from TRT to information-gathering methods in law enforcement at state and local levels. Wicklander-Zulawski & Associates, one of the largest consulting groups responsible for training law enforcement officers throughout the country, announced in 2017 that it would no longer train officers on the Reid Technique, saying that it poses too great a risk to continue its use as a training tool.
“Confrontation is not an effective way of getting truthful information,” said Shane Sturman, the company’s CEO. “This was a big move for us, but it’s a decision that’s been coming for quite some time. More and more of our law enforcement clients have asked us to remove it from their training based on all the academic research showing other interrogation styles to be much less risky.”
“What Wicklander-Zulawski has realized is that once you start down the road of using trickery and deception, the misuses are inherent in that. There are no clear lines of, ‘this is a good amount of trickery, and this isn’t,’” said Saul Kassin, American Psychological Association fellow and 2007 recipient of the APA’s Presidential Citation award for his work on false confessions.
Accusatorial, confrontational interrogation methods like the Reid Technique have had their place in the transition away from torture as a means of extracting confessions from criminal suspects. But due to the alarmingly high rate of false confessions by innocent persons, such practices should be relegated to history and replaced by methods that are actually based on evidence-based research and validated by publicly available operational reviews.
Yet, there are thousands of jurisdictions and a multitude of federal agencies, and many, because of obstinance, inertia, or cynicism, will continue to psychologically pressure suspects into confessing to crimes they did not commit. Because of persistent myths about the value of confessions obtained in this manner, many thousands of innocent men and women will be unnecessarily subjected to the evils of incarceration in America.
Sources: apa.org, archive.org, caselaw4cops.net, cebcp.org, cga.ct.gov, Chicago Reader, falseconfessions.org, forejustice.org, historycollection.com, Huffington Post, innocenceproject.org, law.asu.edu, leb.fbi.gov, Los Angeles Times, looper.com, themarshallproject.org, Meissner, C.A., Redlich, A.D., Bhatt, S., & Brandon, S. (2012). Interview and interrogation methods and their effects on true and false confessions. Campbell Systematic Reviews, 8(1).; Moore, T.E., & Fitzsimmons, C.L. (2011). Justice Imperiled: False Confessions and the Reid Technique. Criminal Law Quarterly, 57(4).; nationalreview.com, newjerseymonitor.com, Prien, H. (2013). Christianity in Latin America. Netherlands: Brill.; reid.com, thomasmadden.org, troyrecord.com, wicriminaldefense.com, WIRED Magazine, worldometers.info
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