Forensic Interviewing: For Law Enforcement

By Kelly D. Harrison

Forensic Interviewing for Law Enforcement is a practical overview of interrogation law before guiding the reader into various legitimate strategies that aid in obtaining confessions. Included also is information covering such topics as understanding words used by criminals that aid in identifying them for later interrogation. There is a chapter devoted to analyzing verbal responses to identify the innocent and identifying those who provide verbal responses indicative of someone needing more investigation. The use of a psychological questionnaire is laid out completely for an investigator dealing with multiple suspects in a crime. Finally, there is a comprehensive chapter on the polygraph to inform the investigator what he can gain from its use and, importantly, how to utilize a polygraph examination to reach a successful case resolution.

• Language: English
• Publisher: Xlibris US
• Release date: May 3, 2013
• ISBN: 9781483623931

Kelly D. Harrison

Kelly D. Harrison was a Department of Defense certified polygraph examiner for over twenty-eight years. He was deployed to the US Navy base at Guantanamo Bay, Cuba, for 2004 to 2005 as a member of the Joint Terrorism Task Force to interrogate suspected Al-Qaeda members captured in Afghanistan and Pakistan. Kelly used the law enforcement model of interviewing to obtain confessions of terrorist group membership, locations of weapon caches, links to other suspected terrorists, and aiding terrorist groups through poppy cultivation and heroin production. Kelly taught interview and interrogation skills at the Federal Law Enforcement Training Center (FLETC), Glynco, Georgia, for four years. Kelly was a guest lecturer at the FLETC for several additional years and currently conducts pro bono polygraph examinations for the Colorado public defender.

Book preview

FORENSIC INTERVIEWING

FOR LAW ENFORCEMENT

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Kelly D. Harrison

Copyright © 2013 by Kelly D. Harrison.

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the copyright owner.

Rev. date: 05/01/2013

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Contents

Foreword

Acknowledgments

Dedication

About The Author

Chapter 1 Introduction

Chapter 2 A Historical Review Of Interrogation

Chapter 3 England’s Contribution

Chapter 4 The Road To Miranda

Chapter 5 Article 31 Of The Armed Forces Uniform Code Of Military Justice And The Fifth Amendment Of The Us Constitution/Miranda Warning

Chapter 6 United States V. Tempia

Chapter 7 Post Miranda

Chapter 8 Interrogation Skills

Chapter 9 Patience, Persistence, And Persuasion

Chapter 10 Rapport

Chapter 11 Interrogation Psychology

Chapter 12 The Interview Room

Chapter 13 Detecting Deception In Nonverbal Behavior

Chapter 14 Detecting Deception In Verbal Responses

Chapter 15 Trickery And Deceit During Interrogation

Chapter 16 The Bait Question

Chapter 17 Themes

Chapter 18 The Alternative/Choice Question

Chapter 19 The Accusatory/Confrontational Statement

Chapter 20 When To Conduct The Interview

Chapter 21 The Structured Interview

Chapter 22 The Cognitive Interview Method

Chapter 23 Confession Or Admission

Chapter 24 Voluntariness Of Confessions

Chapter 25 False Confessions

Chapter 26 Taking The Confession

Chapter 27 Protecting The Confession

Chapter 28 Investigation Assessment Questionnaire

Chapter 29 Forensic Statement Analysis

Chapter 30 911 Calls

Chapter 31 The Mass Structured Elimination Questionnaire

Chapter 32 The Verbal Analysis Interview Technique

Chapter 33 The Polygraph

Chapter 34 Future Of The Polygraph And Other Lie Detection Devices

Chapter 35 Conclusion

References

Selected Bibliography

Foreword

Forensic interviewing has long been associated with the interview of children exploited by sexual predators. With the development of sophisticated paper-and-pen elimination tools and a deeper understanding of verbal responses to structured questions, the concept of forensic interviewing has expanded into the realm of criminal investigations concerning adult offenders.

This book is a guide through the maze of understanding the history of interrogation laws, for both civilian and military, a review of court decisions impacting the interrogator, and the use of specific tools to filter through a pool of suspects in unknown subject crimes in order to flush out the actual perpetrator.

There is a need today for an interrogator to be aware of new psychological-based strategies used by defense lawyers in their effort to diminish the credibility of the confession and, in some cases, have the confession removed as evidence. The information in this book will review the history of confessions and provide insight into the most common attacks against the confession.

Additionally, this book will provide information on the mechanics of using credible and reliable investigative tools such as the cognitive interview, linguistic analysis of written statements, the use of elimination questionnaires, the interview strategy of the verbal analysis interview, and the polygraph instrument to assist in reducing a large pool of suspects and nullify the potential of a defense attack that you assumed guilt without a logical basis before doing a confrontational interview.

Further, the central theme in this book is to ensure that the investigator has used the best tools available that will increase his chance of having the actual perpetrator of the crime in the interview room and not waste valuable effort conducting needless interviews of innocent individuals.

This book is written for both military and civilian criminal investigators.

Acknowledgments

The number of criminal investigators who have directly and indirectly contributed to the writing of this book is endless. However, there are two individuals who remain indispensible to this endeavor and require special recognition.

William Bill Davidson, retired colonel, USAF. Bill recruited me into the USAF Office of Special Investigations (AFOSI) polygraph program in 1974 when I was a second lieutenant special agent. His guidance and mentorship ensured I was able to remain a polygraph examiner for twenty-eight years. Bill laid the groundwork early in my career that guaranteed my return to AFOSI as a civilian special agent polygraph examiner upon my retirement from active duty. It was as a polygraph examiner that I was able to break the code on solving many previously thought unsolvable, unknown subject cases.

Special Agent Laura Hummitzsch is one of AFOSI’s premier counterintelligence specialists and is a true spy catcher. She provided an invaluable critique of the manuscript at a key point in my writing and pushed this book toward completion.

I am forever grateful for their contributions.

Dedication

On July 22, 1960, I married my high school sweetheart, Barbara Ann Keel. Her commitment to the rigors of military life in our many far-flung and desolate air force assignments has been remarkable. Once settled in a new location she was the first to say put out the American flag so the neighbors will know who lives here. She enjoyed every assignment; and until recently, every three years or so, she would begin looking for the moving truck knowing it was time to move on. She is the role model for every military member’s spouse and my real inspiration.

About the Author

Kelly D. Harrison, Sr., was a special agent with the USAF Office of Special Investigations for over forty-three years. He has served in the US Air Force, enlisted, commissioned officer and civilian special agent, for over fifty-two years, always in a law enforcement capacity. During his senior high school year, Kelly decided to pursue a career in law enforcement, so he enlisted in the air force’s military police career field in January 1959. He was honorably discharged four years later. After a brief stint working in his hometown of Anniston, Alabama, he and Barbara decided military life held a better future for them. She concurred with him reenlisting, and for the next forty-nine years, they lived in Oklahoma, Alaska, South Dakota, Mississippi, Illinois, Nevada, California, the Republic of the Philippines, Japan, Hawaii, Georgia, and Colorado. Kelly served as an enlisted military policeman for the US Air Force at Eglin AFB, Florida; Clinton-Sherman AFB, Oklahoma; Eielson AFB, Alaska; and Ellsworth AFB, South Dakota. It was at Ellsworth AFB, while doing duty as a military police investigator, that he was recruited into the Air Force Office of Special Investigations (AFOSI). Kelly completed his undergraduate degree at William Carey College, Hattiesburg, Mississippi, in 1972, and earned a master’s degree in criminal justice from Chapman College, Orange, California, in 1985. He attended officers’ training in 1973 and was commissioned a second lieutenant. Kelly was trained as a polygraph examiner in 1974 and remained in that position until he retired from active duty in November 1983. He returned to the AFOSI in May 1984 as a civilian special agent polygraph examiner. After leaving the AFOSI polygraph program in November 2002, Kelly taught interview and interrogation skills in the Behavioral Science Division at the Federal Law Enforcement Training Center (FLETC), Glynco, Georgia. He was an adjunct lecturer for specialized interview strategies at the AFOSI’s Advanced General Criminal Investigator’s Course at the FLETC and was the AFOSI subject matter expert (SME) for interviews, interrogations, and investigating unknown subject crimes. Kelly’s last assignment was as a criminal investigations and operations consultant at the Twelfth Field Investigations Squadron, Buckley AFB, Colorado.

Kelly, his wife Barbara, and Bailey, a Cavalier King Charles spaniel, live in Aurora, Colorado.

Chapter 1

Introduction

This book will discuss the subject of interrogations and confessions and their place in history. The confession as a product of a criminal investigation is often misunderstood as where it stands in the evidence matrix. For some criminal investigators the confession is the most important piece of evidence gathered in the process while to some the confession may be secondary to other evidence.

Most often, confessions are gained through the use of interrogative questioning and practices. It is rare to get a confession by a suspect being overcome with guilt and feelings of remorse to the point they walk in and confess. Most suspects will want to hide their guilt and can resist efforts of the best interrogators.

The confession is frequently seen as the blue-ribbon prize given the interrogator with the best verbal skill. Some investigators have been overheard describing an interrogation similar to a Wild West shootout in which the best man wins. It is the competitive nature and ego of a few criminal investigators that has jeopardized confession evidence in prosecuting criminal offenders.

The entire police profession has been held suspect for centuries for the interrogation procedures used to get confessions from persons involved in crime. This public stereotype cast upon the police profession is not new. In truth, this view is ancient and based on events that in fact tend to justify the public’s perception.

After the end of World War I, there was a social revolution by various women’s groups and others opposed to the manufacture and sale of alcohol for public consumption. Women had found a new voice from filling jobs left vacant by men who went to war. They wanted to outlaw alcohol, and they wanted the right to vote. They got both in 1920: the Eighteenth Amendment (prohibition) on January 16, 1920 and the Nineteenth Amendment (women’s right to vote) on August 26, 1920. It was prohibition, however, that led to an increase in lawlessness and physical brutality by police during interrogations.

The 1920s in US history are renowned for speakeasies, gin mills, and the rise of organized crime, particularly in New York and Chicago. Near the end of the 1920s, then President Herbert Hoover took note of the lawlessness and authorized the first federal assessment of law enforcement in the United States. The inquiry was officially known as the Commission on Law Observance and Enforcement, commonly called the Wickersham Commission after its chairperson, George W. Wickersham. There were various committees established to inquire into the effects of prohibition, the causes and costs of crime, the operation of federal courts, and importantly, that of official lawlessness. One of the commissions specifically dealt with the issue of brutality upon lawbreakers among the nation’s police departments.

On the issue of official lawlessness, the final report by the Wickersham Commission (1931, 32) said in part, Police brutality in general and the third degree in particular, were practiced extensively in police departments across the country. The commission found evidence that most local law enforcement agencies engaged in some form of mistreatment of suspects to gain confessions. They found, for example, that a county sheriff in Arkansas had constructed a nonlethal electric chair in which he would strap suspects and administer jolts of electricity until they confessed. Cops were notorious for meting out their own brand of punishment. It was not uncommon to learn that most prisoners were worse off physically upon arriving at the police station than they were when initially placed in the paddy wagon.

As a result of the Wickersham Report, the Federal Bureau of Investigation (FBI) began to emphasize scientific forms of criminal investigation so as to render interrogation altogether obsolete. The Wickersham Report had further influences on society and judicial decisions. The report strongly indicated that the rise in organized crime and other general lawlessness was a result of prohibition. Prohibition was later repealed on February 17, 1933 by the Twenty-first Amendment. A further indicator of the Wickersham Report’s influence was when, for the first time ever, the US Supreme Court in Brown v. MS, 297 US 278 (1936), overturned a state case regarding coerced confessions.

Yet the value of interrogating criminal suspects cannot be ignored. It remains a valuable tool and crucial element in bringing criminals to justice. In many cases, without a confession, the suspect is released because there is insufficient evidence to prosecute. Many prosecutors will tell you without the suspect’s confession there would have been no case.

The confession serves several purposes, which reinforce its necessity. A confession tells us who committed the crime and often contains information to retrieve evidence equally necessary to prosecute the perpetrator. Particularly, in unknown subject crimes, the evidence found that identifies the criminal exists in about 10 percent of the cases. Typically, in about 90 percent of solved cases in which the subject’s identity was initially unknown, the police developed a suspect who lead them to the evidence with his/her confession. In many cases (estimated as high as 90 percent in federal cases), a confession leads to a plea agreement. Plea agreements save millions of dollars each year in trial costs.

Law enforcement professionals cannot fail to properly train investigators on the correct procedures and legal issues required to get valid confessions from the criminal suspect. The requirement of obtaining information from a person, which is against their interest, will remain a valued police practice.

How confessions are obtained is the focus of many books on the subject. Most interrogation experts differ in style and substance. The two major schools of interviews and interrogations are the Reid Institute and Wicklander-Zulawski (WZ) and Associates, both located in or near Chicago, Illinois. The Reid Institute emphasizes a confrontational approach with the heavy use of themes (reasons for the crime) followed by alternative (choice) and leading questions. The WZ style is more nondirect, less confrontational, and recommends six different varieties of confrontation strategies such as the direct, introductory statement, participatory accusation, enticement/baiting question accusation, the step interrogation, and factual accusation. There are a host of other interrogation publications that generally build around the basics of the Reid technique and WZ.

The end result, however, remains the same. In an interrogation, a police officer is attempting to retrieve information from a person about their past behavior that can be harmful to their present and future, and to do it in a manner where an impartial judge can rule the information was given freely and voluntarily.

The information in this book will aid in understanding the history, political forces, and judicial decisions, which have shaped the modern-day rules that govern interrogations and confessions. Included will be key information and tools an investigator can use to stay within proper interrogation boundaries and to help ensure he is not interrogating an innocent person.

Chapter 2

A Historical Review of Interrogation

The interrogation of persons thought to be involved in illegal conduct has been around virtually as long as recorded history. The first known pictures ever drawn of police found in a Twelfth Dynasty Egyptian tomb of about 2000 BC shows five soldiers in a police capacity beating (administering the third degree) a suspect (Wrightsman and Kassin 1993, 59-60).

The Random House Dictionary defines the third degree as the subjection of a prisoner to mental torture (as continuous questioning over excessively long periods) or physical torture (as restriction to a meager diet or deprivation of sleep) in an effort to wring a confession from him.

During the period of the Roman Empire, the centurions (soldiers appointed police duties) were allowed to apply torture to anyone except citizens of Rome to gain confessions. Certain practices still used in many countries today, such as the informant in a suspect’s cell, were started with the Inquisition in the thirteenth century (Wrightsman and Kassin 1993, 60).

The Inquisition, a period of religious persecution between the 1200s and 1800s, is filled with tales of torture use. Nicholas Eymerich, the Grand Inquisitor of Aragon, developed a guide for the use of torture to extract confessions of heresy. If the initial interrogation did not gain a confession, the prisoner was first threatened with torture. If that did not gain compliance, he was then taken to the torture chamber and shown the instruments and given an explanation how they work. If the prisoner continued to resist, he was placed on the machine and tortured until the confession was given (Wrightsman and Kassin 1993, 60)

At each step, the inquisitor would remind the prisoner of the folly of remaining silent. The tactics of the inquisitors were closely regulated. Confessions obtained as a result of torture were not valid unless the victim later voluntarily ratified them. If the confession was retracted after the torture was ended, the alleged heretic was tortured again until he agreed his initial confession was true.

During the inquisition, many handbooks to guide the inquisitors were written. The following excerpt from Eymerich’s Directorium Inquisitorium gives advice to the inquisitor on how to handle an early interrogation of a suspect.

The inquisitor should behave in a friendly manner and act as though he already knows the whole story. He should glance at his papers and say: ‘It’s quite clear you are not telling the truth’ or should pick up a document and look surprised, saying: ‘How can you lie to me like this when what I’ve got written down here contradicts everything you’ve told me?’ He should then continue: ‘Just confess—you can see that I know the whole story already’ (Jones 1998, 12).

Does this sound familiar? It reads like a paragraph out of a modern-day interrogation guide, but it was written in 1376.

In the United States, the era of coerced confession existed throughout the nation’s police departments from around 1900 to the 1940s. The technique used by the police in this time to get confessions was called the third degree. Thomas Brynes, a New York City detective, is credited with inventing the third degree in the late 1880s (New York Press, 2012). His office was referred to as a Star Chamber where retribution was meted out to criminals and others who overstepped acceptable social boundaries.

The third degree is a widely used term usually describing a variety of coercive interrogation tactics ranging from prolonged confinement to extreme physical violence and torture. Some of the methods used in the United States from around 1880 to 1960 were beatings; nonfatal electrocution; applying hot objects to flesh (e.g., lit cigars, red hot pokers, etc.); having dentists grind into teeth, having doctors inject truth serum drugs such as scopolamine hydro bromide, morphine, and sodium amatol; mock executions; denial of food, water, sleep; denial of drugs (from drug addicts), being confined in a sweat box; near drowning experiences; and the good cop/bad cop (Mutt and Jeff) routine.

The third degree typically occurred in police custody, involved the use of physical force or psychological duress, and was designed to extort confessions of guilt from criminal suspects.

By 1910, the police’s use of the third degree was outlawed by statute, mostly symbolic, in many states. Despite widespread condemnation by civic groups and newspapers, it was not until the 1931 Wickersham Commission Report that the nation’s police departments begin to reform their arrest and investigation procedures.

Oddly, in response to the Wickersham Commission Report, the most common defense from police departments was that the third degree did not exist and, in contradiction, they (the police) could not do their job without it (resorting to third degree tactics). From 1920 to 1930, inclusive, there were 67 cases in which appellate courts found it to be proved that third-degree methods were used to extort confessions from suspected criminals (Chafee et al. 1969 reprint, 52-53).

There was a noticeable decline in the use of third degree interrogation methods during the 1930s and 1940s. The first recognized police interrogation manual was written in 1940 by W. R. Kidd, a lieutenant with the Berkeley, California, police department. In Kidd’s book, Police Interrogation (1940, 46-47), he condemned third degree practices as useless and vicious. It was not until 1960 that the psychological model of police interrogation replaced the third degree technique. This does not mean that there are not periodic valid claims by criminal suspects today that they were subjected to physical abuse when interrogated.

Chapter 3

England’s Contribution

Everything has a beginning. Just as one can trace a river to its origin, the history of the right not to incriminate oneself while being interrogated also had a beginning. The basis for the United States legal system originated in 1215 when England’s King John Lackland was forced to sign the Magna Carta on a tiny island called Runnymede in the Thames River. Among the Magna Carta’s many parts was the first known bill of human rights. The pertinent portion states, No freeman shall be taken or imprisoned or exiled or in any way destroyed, except by the lawful judgment of his peers or by the law of the land.

During the 1500s, England experienced a dark period of religious repression in which inquisitorial procedures and the use of the oath ex offico was used extensively to gain confessions from those suspected of seditious libel and heresy. The most detested form of questioning used the oath ex offico. In this time, religion controlled every aspect of one’s life. Once a person took an oath before God to speak the truth, he or she would rather be burned at the stake for having incriminated himself or herself than to face the wrath of God later for lying under oath. This resulted in a great number of people confessing to crimes that led to their death. Not to answer a question posed after swearing to the oath permitted the authorities to assign guilt the same as is there had been a confession.

It is possible to trace the origins of the right to remain silence as it developed in England courtesy of Leonard Levy. In 1528, William Tyndale, a scholar, expressed his opposition to religious persecution in his book The Obedience of Christian Man. Tyndale asserted that a man should refuse an oath put to him by a judge to answer all that is demanded of him (L. Levy 1999, 63). Tyndale’s writings influenced the actions of John Lambert who, in 1537, became the first person on record in England who objected to the inquisitorial procedures used by ecclesiastic courts to trap suspected heretics (L. Levy 1999, 4).

Lambert’s death at the stake at Smithfield earned him a place in John Foxe’s Book of Martyrs, published in 1563. The Book of Martyrs was the most popular of many works dealing with cases of religious persecution in England. During the sixteenth and seventeenth centuries, it was second only to the Christian Bible in popularity. The Book of Martyrs taught people that resistance to unjust procedures was possible, even if it meant their death. It also taught the values of religious freedom and freedom of speech, and among other procedural rights, it stressed the right to remain silent to incriminating questions.

Near the end of the 1500s, the Englishman John Udall was indicted for seditious libel and tried before a common-law jury. During questioning, he became the first defendant in a common-law trial to claim a right against self-incrimination. Because he refused to answer questions under the oath ex officio, the judge instructed his jury that his failure to deny the charge under oath proved his guilt (L. Levy 1999, 150).

The final but most important Englishman in the development of the right to remain silent was John Lilburn. He is the acknowledged catalytic agent in the history of the right against self-incrimination. His defiance of the Star Chamber’s many proceedings against him eventually contributed to the abolishment of the Chamber by the Puritan-dominated Long Parliament in April 1641. However, his greatest feat was getting the Long Parliament to establish a presumption of innocence in ecclesiastic courts even while remaining silent.

During the sixteenth and seventeenth centuries, in England, absolutely no restrictions existed about excluding confessions. All avowals of self-guilt were accepted at face value. In early English common law, the confession of the accused was most important. In early court cases, failure of the Crown to introduce a statement of admission was tantamount to acquittal.

Through the middle of 1600s, the use of physical inducements to confess was the rule and the evidence obtained was accepted without question. The use of torture to extract confessions was common. Durant (1957, 115) wrote, As everywhere in the sixteenth century, torture was often used to obtain confessions or evidence. Common methods of torture included flogging, burning, the rack, roasting the feet over burning coals, and water torture. The purpose of torture was to extract confessions.

During the reign of Charles I, 1625 to 1649, the right against self-incrimination emerged in English common law, largely in response to repressive measures taken in the name of the law, against some of the King’s most persistent critics.

Beginning with the period after the Restoration of 1660, there was a slow and gradual improvement in the procedures used in criminal trials in England. The last instance of torture in England was apparently in 1640, but as late as 1664 a defendant said he was threatened with the rack (Chafee et al. 1969, 27). The English Bill of Rights in 1689 greatly aided this process. In 1775, for the first time, an English judge placed restrictions on the admissibility of an ordinary confession, and in 1783, the modern view on the admissibility of confession was established that confessions obtained through promises or threats were not to receive credit as evidence.

By the beginning of the 1800s, the English judiciary was generally cynical of all confessions and tended to repudiate them if given the slightest justification. Two basis for this distrust of confessions was articulated: (1) that the process of procuring proof of an alleged confession through the testimony of a victim, informer, or police officer is of questionable reliability and (2) even when the confession is a well-proven fact, it may have little diagnostic value (as an indicator of guilt) if coerced or induced by promises, threats, or other tactics of the third degree.

Chapter 4

The Road to Miranda

Note: The information in this chapter is not intended to provide legal advice. This information is presented to show the reader the evolution of decisions that led to current case law. Consult your legal advisors for guidance on interview and interrogation procedures and current case law.

The road to Miranda began on September 25, 1789 when the first ten amendments (Bill of Rights) were presented to the legislatures of the newly formed United States. The proposed ten amendments were made official on December 15, 1791. The four that are pertinent to the later court cases leading to the Miranda decision are the Fourth, Fifth, and Sixth Amendments of 1791 and the Fourteenth Amendment passed in 1868. There were several reasons for the first ten amendments, but the Fifth Amendment was added because the colonists were tired of being questioned by the British about alleged acts of treason and sedition.

The Fourteenth Amendment was one of several post-Civil War amendments designed to stabilize the turbulence of reconstruction. Of these amendments (Fourth, Fifth, Sixth, and Fourteenth), the Fourteenth later formed the cornerstone of future review and changes to police procedure by the US Supreme Court.

The four amendments are quoted below from Cornell University Law School Web site:

Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fifth Amendment: "No person shall be held to answer for a capitol, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in the time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Fourteenth Amendment Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Prior to the Civil War, the states enjoyed significant freedom from the central government. After the war ended in 1865, the power of the central government began to grow, particularly after the passage of the Fourteenth Amendment and noticeably in the realm of law.

In Brown v. Walker, 161 US 591 (1896), the Supreme Court made the observation that the inquisitorial character of an interrogation with its temptation to push the accused into a fatal contradiction made the system so odious as to give rise to a demand for its total abolition.

Brown was the auditor for a railway company suspected of taking kickbacks from a coal mine. During the grand jury, he refused to answer questions on the grounds his answers would tend to accuse and incriminate himself. Brown was ordered into custody of the marshal until he cooperated with the grand jury and fined $5. His appeal from the judgment was successful. The court ordered Brown released from the marshal’s custody and set free.

In Bram v. United States, 168 US 532 (1897), the Supreme Court expressed a concern that forcing suspects to incriminate themselves through coercion (physical abuse, threats, or promises of leniency) was such deplorable conduct that the use of it made a fair trial impossible.

We cannot overlook the importance of the Bram decision. In this ruling, the court put their concern about coercive interrogation into action. The court ruled that in order to be free and voluntary within the meaning of the Fifth Amendment privilege, a confession must be one that was not extracted by any sort of threats or violence nor obtained by direct or implied promises, however slight.

When interrogated, Bram was told by a detective that another crewman had seen him commit three murders and that he should tell the detective if he had an accomplice in order to avoid having the blame of this horrible crime on your shoulders. The court interpreted the first part of the detective’s statement as a threat and the second part as an offer of a benefit. There are indicators that Bram was subjected to physical abuse before he made his confession. Bram was stripped by the detective and interrogated naked. At the time of Bram and later, in state cases, confessions that were clearly given in exchange for promises of leniency or physical abuse by the police were not found to be in violation of the Fifth or Fourteenth Amendment. The Bram ruling was made applicable only to the federal government’s law enforcement agencies. The states continued to enjoy freedom from the Supreme Court until 1936.

An example of the court’s early decision not to meddle in state cases was the Twining v. New Jersey, 211 US 78 (1908), decision in which the court ruled that the Fifth Amendment’s clause against self-incrimination as a necessary ingredient of due process was not binding on the states.

Albert Twining was a director of a bank. During an inspection by an official of the State Banking Department, Twining furnished false documents regarding the financial condition of his bank. At his trial he declined to testify leading the judge to tell the jury they could draw an unfavorable conclusion for his refusal to testify. Twining was convicted and appealed on the issue Does the Fifth Amendment right against self-incrimination in criminal proceeding apply to the states? The court ruled that the Fifth Amendment right against self-incrimination is not a fundamental right, immunity, or privilege of United States citizens.

As late as 1946, the court ruled in Adamson v. California, 332 US 46 (1946), a person tried in a state court did not have the protection of the Fifth Amendment during a criminal proceeding. Dewey Adamson was charged with murder and at his trial chose not to testify because he knew the prosecutor would impeach him with questions about his prior criminal history. Under California law at that time, the jury was allowed to infer guilt if the defendant failed to testify. Adamson’s lawyer argued that because the prosecutor had drawn attention to Adamson’s refusal to testify, his freedom against self-incrimination had been violated. The court ruled that while Adamson’s rights may have been violated in federal court, the rights guaranteed under the Fifth Amendment did not extend to state courts based on the due process clause of the Fourteenth Amendment.

It was not until thirty-nine years after Bram v. United States and twenty-eight years after Twining v. New Jersey that the Supreme Court addressed the issue of interrogation procedures by the states in Brown v. Mississippi, 297 US 278 (1936). In Brown v. Mississippi, the court condemned extreme forms of police third degree methods used by a sheriff to get a confession in a murder case. The Brown case was the first time the court ruled that physical brutality by state agents to obtain confessions was illegal. Importantly, it was also the first time the Supreme Court nullified a state court decision regarding a confession. Recall that physical brutality had been the subject of a Supreme Court decision forty years earlier on the federal level with the Bram case.

The Brown case deserves further amplification due to its impact on police interrogation procedure. On March 30, 1934, a white farmer, Raymond Stewart, was murdered in Mississippi. Three black tenant farmers—Ed Brown, Henry Shields, and Ellington (not further identified)—were arrested and beat with leather straps by deputies until they confessed. The only evidence introduced at the one-day trial was the confessions. A deputy admitted on the witness stand that the defendants had been whipped. On February 17, 1936, the Supreme Court, by a 9 to 0 vote, reversed the conviction.

The following cases are prime examples of the court’s struggle with the issue of controlling coercive police behavior.

Ashcraft v. Tennessee, 322 US 143 (1944), the Supreme Court condemned thirty-six hours of lengthy questioning by police that resulted in a confession to be psychological coercion. Ashcraft was subjected to a relay of interrogators who implied the questioning would continue until he confessed. Ashcraft’s wife had been found murdered, and he was the main suspect. He was taken into custody on Saturday, June 14, 1941, and interrogated continuously until he confessed at nine thirty Monday morning, June 16, 1941. Ashcraft had been questioned in relays because the officers conducting the interrogation became tired and needed rest, but Ashcraft was not permitted to sleep or rest during the questioning until after he had given the confession (Stuckey 1968, 260).

The issue of Ashcraft’s purported voluntary confession revolved around an interrogation process other than physical brutality. In this case, Ashcroft told the truth when he confessed to having a part in his wife’s death but the court overturned the conviction because they believed the interrogation strategy used to get the confession was coercive.

Lyons v. Oklahoma, 322 US 596 (1944), decided one month later, upheld a period of lengthy and continuous questioning which resulted in a confession. This decision was based on the premise that Lyons possessed mental freedom at the time of his confession.

On January 11, 1940, Lyons was arrested for murdering a family of three in Choctaw County, Oklahoma, and burning their house to conceal the crime. Immediately after his arrest, he was interrogated for about two hours in the county jail. Eleven days later, he was interrogated in the county prosecutor’s office beginning at 6:30 p.m. and ending at around three the next morning. The first interrogation was marked by Lyon’s claim that he was beaten by several police officers during the interrogation and was told there would be further beatings if he didn’t confess. Lyons said he was beaten during the second interrogation and made to hold a pan of his victim’s bones in his lap until he confessed. After the second interrogation, he was transported to the state prison. About twelve hours after arriving at the state prison, he confessed to the warden who had his stenographer take a signed version of the oral confession. The issue presented to the court concerned the voluntary nature of the confession Lyons made to the prison warden. Lyons contended that since his first confession was involuntary as a result of being beaten, his second confession was a product of the brutality he suffered previously. The court ruled that the passage of twelve hours between the coerced confession and the voluntary confession at the prison allowed the effects of the prior coerced confession to dissipate prior to the later confession and that the prison confession was voluntary. In essence, when Lyons made the prison confession, he had mental freedom, which rendered the prison confession voluntary.

The different decisions of the Ashcraft and Lyons cases, which were somewhat similar in the police interrogation techniques used, reflects the dilemma between prohibiting inherent coerciveness while not frustrating the police from obtaining credible confessions.

Mallory v. United States, 354 US 499 (1957), was an important stepping stone toward the development of procedural rules regarding confessions. In Mallory, the Supreme Court ruled that federal officials must take arrested persons before a committing magistrate without unnecessary delay and that any statements taken during a period of unnecessary delay would be inadmissible. Mallory was a suspect in a rape case. He was held in a building jointly occupied by the police and a magistrate court. Mallory was not taken before the magistrate until he had confessed. The decision in this case was not based on abuse or lengthy interrogation. In fact, Mallory confessed after one and one half hours of interrogation. The reversal was due to the police violating a procedural rule, which demanded an arrested person be taken without unreasonable delay to be arraigned.

The Supreme Court experienced a storm of criticism from the law enforcement community regarding the Mallory decision and concluded that police interrogation was not a promising area for experimentation. But that did not seem true of another area of police activity such as searches. When the Supreme Court finally made its move to clamp down on state criminal justice, it would be on the matter of searches by the police (Graham 1970, 36 and 37).

The result was the Mapp v. Ohio, 367 US 643 (1961), decision in which the court finally got the exclusionary rule they were looking for in a state case. In May 1957, Cleveland, Ohio, police officers illegally entered the home of Doreen Mapp searching for a bombing suspect. They did not find the suspect but instead found significant amounts of illegal pornography. Mapp appealed her conviction based on the pornography being seized during an illegal search. The court agreed and said since Weeks v. United States, which held illegally obtained evidence, was excluded in federal trials, the same exclusionary rule applied to trials in state courts.

The importance of the exclusionary rule cannot be overly emphasized. In Mapp, the court clearly demonstrated its authority to control police conduct at the state level. The deterrence of police misconduct, such as in illegal searches, ensured citizens would receive a higher degree of fairness in state courts that, since Mapp, would now be free from the contamination of illegal evidence.

An earlier decision in Weeks v. United States, 232 US 383 (1914), established such a rule for federal officers. Without the concept of the exclusionary rule, the court possibly would have continued muddling along making very little headway in their effort to control police procedure at the state level.

Weeks was a suspect in using the US mail to transport illegal gambling paraphernalia. An illegal search by a US marshal resulted in finding evidence of the crime. The evidence was used to prosecute Weeks in federal court. The court overturned Weeks conviction based on the US marshal’s search being a violation of the Fourth Amendment. An unintended consequence of the court’s decision in Weeks v. United States was the Silver Platter Doctrine. This doctrine essentially permitted evidence seized illegally by state officers could be released to federal officers and used in federal court. The doctrine was declared unconstitutional by the court in Elkins v. United States, 364 US 206 (1960). Any residual concept of the Silver Platter Doctrine, that is, using illegally obtained evidence in state court, was erased with the exclusionary rule applied in Mapp v. Ohio.

With the decisions in Weeks v. United States and Mapp v. Ohio, the court displayed, it was increasing its authority over both federal and state police agencies. Moreover, the court presented itself as evolving with the times in keeping step with civil rights issues, President Lyndon Johnson’s Great Society, and other cultural influences impacting the United States in the turbulent 1960s. We should not overlook other seemingly small but important decisions made by the court in other cases such as Chicago, Burlington, and Quincy Railroad v. City of Chicago, 166 US 266 (1897). This decision incorporated the taking clause of the Fifth Amendment into the due process clause of the Fourteenth Amendment by requiring states to provide just compensation for seizing private property.

In Gitlow v. New York, 268 US 652 (1925), the court considered a freedom of speech issue at the state level. Gitlow was convicted of making seditious statements advocating the overthrow of the United States government. While the court upheld the state’s conviction, the major issue was the court’s right to extend itself to review a challenge to a state law on the basis it violated the federal constitution.

Both of these cases established that the Fourteenth Amendment made the Bill of Rights applicable to state law and well as federal law. Again, the four major amendments of the Bill of Rights applicable to controlling police functions are the Fourth (searches), Fifth (self-incrimination and property laws), the Sixth (right to legal counsel) and last, the Fourteenth Amendment (the due process issue).

In the 1960s, the court moved toward establishing more objective criteria for the admissibility of confession evidence. Up to that point, the refusal of the police to permit the accused to consult with an attorney was regarded as part of the totality of relevant circumstances for judging voluntariness. Prior to the movement toward determining specific objective criteria by which voluntariness could be judged, each case, in which there was a confession under scrutiny, had to be considered individually using the totality of relevant circumstances test. This permitted extreme fluctuations in discretionary authority by the lower courts.

Prior to the 1960s, the court had sought to establish a standard for confessions that could be applied to the states. The