Fear factor: How far can police go to get a confession?
By Steve Irsay, Court TV
(Court TV) —
In a little more than a day, 18-year-old Peter Reilly went from grieving son
to confessed murderer in the gruesome death of his mother in late September
1973.
Reilly returned to his Connecticut home from a church meeting to find his
mother's battered and bloody body on the floor of the small bedroom the two
shared. State police brought him in for questioning later that night.
At first, the frightened teen denied any involvement in the brutal crime.
But interrogators pressed on for eight hours, eventually telling Reilly he
had failed an infallible lie detector test. Slowly, his story changed.
"Well, it really looks like I did it," Reilly told police at one point.
There was no physical evidence linking Reilly to the scene nor did he
readily remember committing the crime. But he signed a full confession
implicating himself and was convicted of first-degree manslaughter, done in
by his own words.
But three years later a judge cleared Reilly, citing new evidence and a
false confession coerced by investigators.
The debate over police interrogation tactics is fueled by stories like the
Reilly case and the case of Michael Crowe, a California teen charged with
the murder of his sister in 1998 based on a confession that was later thrown
out. In New York, the Central Park jogger rape case was reopened a few
months ago more than a decade after five teenagers were convicted of the
crime based on videotaped confessions.
For critics, the cases are classic examples of powerful interrogation
techniques gone wrong: vulnerable suspects interrogated for hours on end,
confronted with false promises and even lies. For supporters of modern
police practices, they are tired example of exceptions to the rule.
"Critics recycle the same old stories over and over again, but the frequency
is not what is to be suggested," said Joseph Buckley, president of John E.
Reid and Associates, considered the nation's foremost interrogation training
firm.
There are no definitive statistics on the occurrence of false confessions.
Estimates by scholars range from less than 35 to almost 600 each year.
Confessions are one of the most powerful tools in a prosecutor's arsenal,
but how far are police allowed to go to get them? Critics and advocates of
current police tactics agree that the goal of interrogation is to elicit
voluntary and truthful information. They also agree that there are far more
gray areas than clear lines when it comes to the rules of interrogations.
"The law has failed to give police good guidance with regard to coercion and
false confessions," said Richard Leo, a University of California, Irvine,
associate professor who served as a consultant in the case against one of
Crowe's co-defendants. "Police are only taught that you don't shine bright
lights on people, you don't beat them up and you give them food and bathroom
breaks."
Even this was not always the case.
The early days
In the early 1900s the rules of interrogation and confessions where
relatively simple: if you could force it out of them, you could use it
against them.
The infamous "third degree" was the name of the game in backroom
interrogations. Cops routinely beat suspects with everything from fists to
rubber hoses to phone books. Others were hung out windows, drugged,
deprived of food and sleep, and questioned for days on end. One of the most
creative and depraved tactics was the sweatbox — a tiny room with a
stove burning a foul-smelling mixture of coal, bones, rubber and garbage.
It took a Supreme Court ruling to formally end the brutal days of the third
degree. It would be the first in a line of decisions that gradually mapped
the legal terrain in the interrogation room.
In 1937 the court heard the case of Brown v. Mississippi, in which three
black defendants had been found guilty of murder based solely on their "free
and voluntary" confessions.
It was later revealed that one of the defendants was repeatedly hung from a
tree and whipped before confessing. His co-defendants were beaten with
leather straps until they too admitted to the crime. The Supreme Court
found that such physical coercion during interrogations was a violation of
the constitutional right to due process.
In two decisions in the 1940s, the court clamped down on less brutal tactics
like sleep deprivation. It reversed the death sentences of a man who was
interrogated for five straight days and another who was convicted of being
an accessory to the murder of his wife based on a confession given after 36
hours of questioning.
With physical coercion banned, the court turned to verbal coercion in the
famous 1966 Miranda decision. In requiring police to read suspects their
rights, including the right to remain silent and the right to a lawyer, the
Miranda decision seemed to offer people facing an interrogation either the
help of an attorney or an out before tough questioning begins.
"If they exercise those rights then the interview should stop right at that
point," said Don Rabon of the North Carolina Justice Department, a lecturer
and author on interrogations. "Anything you get after that is subject to be
thrown out."
Critics of the Miranda decision claimed it would handcuff interrogators
because suspects would immediately clam up and lawyer up. But numerous
studies show that as many as 80 percent of suspects currently waive their
rights.
"Miranda warnings are little more than a speed bump for police officers when
they interrogate," said Steve Drizen, a clinical associate professor of law
at Northwestern University School of Law (and an expert on false confessions
who helped analyze the Crowe case for Court TV).
In addition, the courts have ruled that the Miranda warnings only apply when
a person is actually in custody. If a suspect is voluntarily speaking with
police during an interview rather than an interrogation and is free to leave
at any time, Miranda doesn't apply.
Once suspects waive their Miranda rights, interrogators are free to begin
using many deceptive approaches to interrogation, such as appearing to
befriend a suspect, good-cop-bad-cop routines, and suggestive "what if"
lines of questioning.
Only direct threats of violence and promises of leniency are clearly
prohibited. Beyond that, the Supreme Court has given interrogators some
freedoms to lie about things like witnesses and evidence, to the dismay of
some critics.
Deceiving the suspect
In 1977 the Supreme Court reviewed the case of Carl Mathiason, who was
convicted in Oregon of first-degree burglary based largely on a confession.
The state's highest court tossed the conviction, in part because an
investigator falsely told Mathiason that his fingerprints were found at the
scene. The Supreme Court, however, did not object to the deception and
upheld the conviction.
A few years earlier, in the case of Frazier v. Cupp, an Oregon man confessed
to second-degree murder after interrogators falsely told him that his
accomplice had confessed and was cooperating. The Supreme Court ruled that
misrepresenting evidence alone was not enough to disqualify the confession.
"It's not a blanket ability to lie," said David Zulawski, a partner in the
law enforcement training firm Wicklander-Zulawski & Associates. "[The
courts] will take the person's age, experience with police and other factors
and then put that all in a big pile and say whether the confession is
admissible."
Critics agree that not all forms of deception increase the chances of a
false confession, but it is a slippery slope particularly with regard to
certain kinds of deception and certain types of suspects such as
juveniles.
"In so many of these false confession cases the presentation of false
evidence is the one technique that seems to push the person over the edge,"
said Prof. Saul Kassin of Williams College, who studies confessions.
While many supporters of modern interrogation tactics say they do not
encourage deception, they also do not believe it can make an innocent person
confess either.
"The use of deception is a valid approach," said Rabon. "We put officers in
undercover work. They are not drug dealers, but they are deceptively playing
the role. Deception in and of itself will not cause someone to confess to
something they have not done."
But some experts say that deception is what began to overwhelm Michael
Crowe.
The Michael Crowe Case
Twelve-year-old Stephanie Crowe was found stabbed to death on the floor
of her bedroom in Escondido, Calif., on Jan. 21, 1998. Within weeks her
14-year-old brother Michael and two teenage friends were charged with
conspiring to kill her, largely due to their confessions.
After confronting Crowe with some troubling lie detector evidence, lead
Escondido police investigator Ralph Claytor told the teen of physical
evidence linking him to his sister's murder.
"Its very difficult for the person who did it not to get blood on them and
not transfer that blood to other parts of the house," Claytor told Crowe
during the videotaped interrogation. "We found blood in your room
already."
"God," Michael responded, beginning to cry. "Where did you find it?"
Actually, no blood was found. Investigators later testified that they
thought they saw blood but, as the Supreme Court has ruled, there was no
need for them to explain their tactic. A judge did find other problems with
the ways the confessions were obtained, however, and tossed out all three
statements.
During pretrial hearings San Diego Superior Court Judge John M. Thompson
ruled that police made illegal promises of leniency to Michael, telling him
on several occasions that he would get "help" if he confessed but would go
to jail if he didn't. The confessions of the other two teens were excluded
because one suspect was denied sleep and food and the other was not properly
read his rights.
Later, DNA evidence that pointed to a transient seen in the neighborhood
the night of the killing finally destroyed the case against Michael and his
friends.
The cases of Crowe and his friends also highlight the special considerations
that come with interrogating one of the most vulnerable groups of suspects:
juveniles.
Questioning kids
After his sister Stephanie was found murdered, Michael Crowe was placed
in protective custody at a children's center with his 10-year-old sister
Shannon before being brought in for his first interrogation. He was away
from his parents, and he did not have a lawyer.
"Right off the bat things went wrong when the police officers interrogated
Michael outside the presence of his parents," said Drizen of Northwestern
University. "They were incapable of looking out for Michael's best
interest."
In between the landmark Brown and Miranda decisions, the Supreme Court
addressed what it saw as the special needs of juveniles when they are
dealing with law enforcement.
In 1948 the court took the case of 15-year-old John Harvey Haley, who was
convicted of first-degree murder and sentenced to life in prison for his
role in the death of a candy store owner during a robbery. During a
five-hour interrogation, Haley was without a parent, lawyer or other
advisor. Even after he confessed and was imprisoned, a lawyer hired was
denied access to the teen.
The court ruled that age was a critical factor in confessions and discussed
the need for a teenager to have an "interested adult" present so that "the
overpowering presence of the law, as he knows it, may not crush him."
In 1962, the court struck down a conviction based on the confession of a
juvenile in the case of Gallegos v. Colorado. A 14-year-old was found
guilty of first-degree murder based on a confession given after the boy had
been held for five days without seeing a lawyer, parent or other "friendly
adult."
Five years later in the case of Gerald Gault of Arizona, the court formally
extended the Miranda protections to the 15-year-old who had been detained
for making lewd phone calls. In its decision, the court encouraged states
to adopt tests to determine whether a juvenile should be eligible to waive
Miranda rights.
Presently, 39 states including California, where Michael Crowe was
prosecuted, require courts to weigh a combination of factors, such as age,
education and experience with the law, in deciding whether an interrogation
is admissible, according to the National Center for Juvenile Justice.
Eleven states use the presence or absence of a concerned adult as the test,
while nine states use an absolute age cutoff to reject juvenile confessions
given without the presence of a lawyer or adult.
Getting it on tape
For Michael Crowe, a telling video of almost his entire interrogation was
crucial in his confession being thrown out. Many critics of police
interrogation techniques see mandatory recording of all interrogations as
the best and most likely legal reform to the process. Only two states,
Alaska and Minnesota, currently require videotaping.
"We ask judges and juries to evaluate confessions without seeing what went
on," said Kassin of Williams College. "It's like a coroner doing an autopsy
without the body. It doesn't make sense. I think videotaping will
alleviate all the problems."
Law enforcement is divided on the issue of mandatory recording. Some say it
will wrongly influence juries and that an absolute requirement would be too
restricting.
"I think in many cases it is very impractical," said Buckley of John E. Reid
and Associates. "Law enforcement is a very fluid process. You do a lot on
the street and on the scene of the crime."
Rabon, of the North Carolina Justice Department, admits that many of his
colleagues would disagree, but he supports mandatory recording.
"In the investigative process we ought to be ready for the light of day to
shine on everything," he said. "Techniques we use should not be hidden
behind a curtain."
More on the
Michael Crowe case.
