For the Defense - Vol. 6, Issue 2 - 6

becomes available. This is when confirmation bias -
the cherry picking of information that conforms to your
theory - and the ignoring of exculpatory evidence can
take hold. Studies have shown that confirmation bias
is one of the major contributing factors in wrongful
convictions.2
Behavioral Analysis
This problem is made worse through training.
Investigators are taught that by using tricks of the
trade, such as watching a person's body language and
listening to how they frame their answers, they can
detect deception and determine guilt with over 80
percent accuracy. Sometimes referred to as " behavioral
analysis, " it is universally taught in interrogation
schools as a shortcut in the investigative process.
Behavioral analysis is supposed to identify the guilty
and increase investigators' closure rates. However,
decades of research into deception detection has
repeatedly proven that behavioral analysis by police
does not work. At best, those who practice it have little
better than a 50:50 chance of being right. Those who
are trained in behavioral analysis have a worse track
record, yet they tend to express more confidence in
their conclusions.3
Disturbingly, this is the process by
which detectives often decide whom to interrogate,
which witnesses and complainants are reliable, and
which informants to believe.
Coercion
Once detectives identify an innocent person as the
suspect, the next step is to use coercive interrogation
tactics. When I bring this up in my presentations to
law enforcement, the response is always, " Of course
interrogation is coercive. How else can you get someone
to confess against their own self-interest? " There are
better, scientifically proven ways, but that is a topic for
another day.
The interrogation approach most widely used in
the U.S. is the accusatory approach, commonly called
the Reid Technique. John E. Reid and Associates, the
largest interrogation school in the country, has always
insisted that if the technique is used properly, it will
never result in a false confession.4
Of course, they also
say that the first step to using the technique properly is
to not interrogate an innocent person.5
An accusatory interrogation can be broken down as
follows:
1. Conclude that the subject is guilty.
2. Tell them that there is no doubt of their
guilt.
3. Block any attempt by the subject to deny
6 For The Defense l Vol. 6, Issue 2
the accusation.
4. Suggest psychological or moral
justifications for what they did (also
known as " themes " ).
5. Lie about the evidence that points to
their guilt.
6. Offer only two explanations for why
they committed the crime. Both are
admissions, but one is less savory than the
other.
7. Get them to agree with you that they did
it.
8. Have them provide details about the
crime.
This process is supposed to be delivered as a
monologue, with the investigator doing all the talking
until the subject succumbs and admits their guilt.
Though Reid and Associates and others claim that
the goal is to get to the truth, the actual goal is to
temporarily convince the subject that their only option
is to admit to what the investigator believes to be the
truth.
What is especially problematic is that these tactics,
even when used " properly, " often include real
or implied threats of inevitable consequences or
real or implied promises of leniency. These tactics,
when combined with the misrepresentation of the
evidence, have repeatedly been shown to induce false
confessions. And repeatedly, judges have ruled such
tactics as permissible, especially if the subject has waived
their Miranda rights. However, just because a tactic is
considered legal does not make it benign. Behind every
conviction resulting from a false confession, there is a
judge that ruled that confession admissible.
Vulnerable Defendants
Other conditions can also contribute to false
confessions. These include the isolation inherent in
interrogations and the length of the interrogation. In
the past, law enforcement was taught that the only
time an interrogation should end is when: (1) the
subject confesses; (2) the suspect invokes his right to
counsel; or (3) the investigator runs out of things to
say. Reid and Associates advise that if no admission
is forthcoming after three hours, the interrogation
should stop.6
However, not all the schools that teach
the accusatory approach follow this.
Some people are especially susceptible to these
tactics: those who trust authority figures, juveniles,
the mentally ill, and those with intellectual or
developmental disabilities, like Walter Ogrod. Law
enforcement has
long
recognized
that
improper
interviewing tactics can adversely influence witnesses

For the Defense - Vol. 6, Issue 2

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