Police Interrogation
Published in The Federal Lawyer, September 2008
Police Interrogation and American Justice
By Richard A. Leo
Harvard University Press, Cambridge, MA, 2008. 327 pages, $45.00.
In Police Interrogation and American Justice, Richard A. Leo presents a gripping indictment of what goes on behind the closed doors of police interrogation rooms. From psychological manipulation, to threats of harm and promises of leniency, to lengthy incommunicado questioning, all the way to outright brutality—police engage in conduct that causes suspects to think that they have no choice but to say what is expected of them and to provide coerced and often false confessions. These police practices subvert our system of justice and enable the police to become, in effect, prosecutor, judge, and jury—and sometimes executioner. Leo’s book is a powerful contribution to criminal justice public policy.
In contextualizing police interrogation, Leo brings to life the so-called third degree of the 19th and early 20th centuries—the systemic use of psychological and physical torture to elicit confessions. The catalog is vile, yet it is riveting to read how easily sadism arose in those entrusted to safeguard the public. That the tools were mundane makes the horror all the more real—police used chairs, pistol butts, leather straps loaded with lead, slabs of wood, brass knuckles, baseball bats, and copper-bound rulers. Methods of physical and psychological torture included the “sweat box” and the “water cure” (now known as “waterboarding”).
The “Report on Lawlessness in Law Enforcement,” widely known as the “WickershamReport,” was issued 80 years ago, during Herbert Hoover’s administration, and the report urged reform. The changes that ensued from it, however, reveal a treachery that, though less outwardly hideous, is far more damaging to the entire justice system. Leo writes that “the decline of the third degree is also a story about the persistence of police institutions and behavior.” The police still believe that those they interrogate are guilty; therefore, the police feel free to force a guilty narrative on suspects in order to convict them. The third degree, Leo explains, was replaced by the creation of behavioral analysis tools to determine guilt and to elicit confessions. Thus were born the polygraph, truth serums, voice stress analysis, and behavioral and statement analysis. The use of these devices, Leo writes, persuaded suspects that the police could essentially read their minds. “By shifting the focus away from the interrogator and his techniques to the lie-detection machine and endowing it with oracular status in the name of modern science, the detective mystifies the interrogation process.” This shift created the illusion that the police officer is focused on finding the truth, Leo explains. Compounding the problem is poor police training about the dangers of psychological coercion. Training manuals and programs dealing with police interrogation have largely neglected the issue of false confessions.
It is not surprising that the third degree, as well as current interrogation techniques, causes defendants to succumb to psychological coercion and to sign false confessions, thereby yielding a high rate of wrongful convictions. Obtaining confessions, after all, is law enforcement’s goal, and police are too often unconcerned whether the confessions they obtain are truthful. After inducing confessions, police continue their manipulation by suggesting a narrative of how the crime occurred. Leo writes that “American police interrogators still presume the guilt of the suspects they interrogate; still attempt to overcome their resistance and move them from denial to admission; still try to convince them—if by fraud rather than force—that they have no real choice but to confess; and still exert pressure to shape and manipulate their post-admission narratives.”
Interrogation, which takes place in closed rooms and is rarely electronically recorded, is the most secretive of police functions, even though more convictions are obtained through confessions from interrogations than from any other kind of evidence. According to Leo, the interrogation process is kept hidden because detectives understand that it “often involves behavior—psychological manipulation, trickery, and deceit—that is regarded as unethical in virtually all other social contexts.”
Perhaps the American mythos that police are fundamentally trustworthy makes false confessions more common. Most persons in custody are not aware of the extent to which police manipulate and lie during interrogations. Suspects confess to end the psychological and physical brutality they are undergoing, to relieve their stress, and perhaps to put an end to their confinement. Suspects may think that they have no choice but to comply with police demands and confess; they believe that the positive results of admitting to some version of the crime with which they are charged outweigh the costs of continuing to deny their guilt. Police frequently lie and say that inculpatory evidence exists, and such lies increase the risk of innocent people falsely confessing.
Making the problem of false confessions worse is the fact that many people believe that innocent people will not confess to something they haven’t done. Most people are unaware that police use what Leo calls “highly manipulative, deceptive, and stress-inducing techniques and strategies” to obtain confessions and that such techniques
have resulted in many false confessions. Social scientists have documented hundreds of false confessions that have occurred despite procedural safeguards such as Miranda rights and legal limits on coercive questioning tactics. In fact, according to studies that Leo cites, false confessions are the primary cause of wrongful convictions in this country. Neither criminal justice officials nor jurors distinguish between true confessions and false ones. The media do not report false confessions, and prosecutors do not acknowledge them. Although it may be understandable that jurors believe that only the guilty confess, it is hard to believe that judges do not know better. Judges should also know that the very existence of a confession carries “its own set of confirmatory and cross-contaminating biases,” which means that jurors may view the rest of the evidence through a negative prism. Leo writes that as “the case against a false confessor moves from one stage to the next in the criminal justice system, it gathers more force and the error becomes increasingly difficult to reverse.”
Both prosecutors and judges lean toward the presumption that suspects who confess are guilty, and, as a result, the legal system treats these defendants more harshly. “Conditioned to disbelieve defendants’ claims of innocence or police misconduct,” writes Leo, “judges rarely suppress confessions, even highly questionable ones.” In one study of false confessions, researchers found that nearly 75 percent of defendants who gave false confessions and whose cases went to trial were convicted erroneously. According to another study, more than 80 percent of suspects who falsely confessed were convicted. Furthermore, when defendants recant they are usually not believed, because such retractions are viewed as confirming these defendants’ deceptive or guilty tendencies.
Police Interrogation and American Justice causes one to marvel at the extent to which the parties in the justice system have been complicit in enabling lawless police to effect convictions of suspects by coercing their confessions. Leo offers suggestions for
reform, which are fair and reasonable in a country that has the highest incarceration rate in the world. Among his proposals are making audio and video recordings of interrogations; forbidding police from making promises or threats to detainees; permitting expert testimony regarding the effect of coercive questioning techniques in order to educate jurors about false confessions; and enacting safeguards to protect the mentally ill, juveniles, and other especially vulnerable individuals. It is a moral travesty that these basic safeguards are not already mandatory.