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Article Excerpt
I. INTRODUCTION
[B]y any standards of human discourse, a criminal confession can never truly be called voluntary. With rare exception, a confession is compelled, provoked and manipulated from a suspect by a detective who has been trained in a genuinely deceitful art. That is the essence of interrogation, and those who believe that a straightforward conversation between a cop and a criminal--devoid of any treachery--is going to solve a crime are somewhere beyond naive. If the interrogation process is, from a moral standpoint, contemptible, it is nonetheless essential. Deprived of the ability to question and confront suspects and witnesses, a detective is left with physical evidence and in many cases, precious little of that. Without a chance for a detective to manipulate a suspect's mind, a lot of bad people would simply go free. (1)
Interrogation manuals and training programs teach police to use psychological tactics and strategies to heighten suspects' stress and anxiety and to manipulate their vulnerabilities to obtain confessions. (2) Most people would regard as reprehensible some of the deceptive techniques that police routinely use if employed by their acquaintances in everyday life. (3) Misrepresenting facts, presenting false evidence, lying, and deceit are part and parcel of the interrogation process. (4)
A suspect's self-incriminating statement leads almost ineluctably to a plea or conviction. (5) A relationship exists between certain types of interrogation tactics, false confessions, and wrongful convictions. (6) Cases abound of innocent people who are wrongly convicted based solely on false confessions of dubious reliability. (7) Aggressive or manipulative techniques may be especially dangerous when police employ them with vulnerable suspects, such as those with mental retardation or juveniles. (8)
Despite youths' vulnerability in the interrogation room, courts treat them as the functional equivalents of adults and use the adult legal standard--"knowing, intelligent, and voluntary under the totality of the circumstances"--to gauge their waivers of Miranda rights and the voluntariness of confessions. Interrogation manuals recommend that police use the same techniques with children as with adults, despite developmental psychologists' doubts that juveniles possess the cognitive ability or judgment necessary to function on par with adults. (9)
We know remarkably little about how police actually question delinquents. Most of what the legal community--judges, law professors and criminologists, and policymakers--and the public know about interrogation practices derives from anecdotal cases of police abuse and false confessions often elicited from young, unsophisticated children. Dramatic portrayals of police interrogation in movies and television programs bear scant relationship to the mundane reality most criminal suspects experience. Four decades after the Supreme Court decided Miranda, we still have remarkably few empirical studies by criminologists or legal scholars about how police actually question suspects. Police departments are extremely reluctant to grant researchers unrestricted access to interrogation rooms. Concerns about confidentiality and protection of human subjects make it even more difficult to obtain empirical data or to directly observe police questioning juveniles.
This Article presents the first systematic quantitative and qualitative data--interrogation tapes and transcripts, police reports, juvenile court filings, and probation and sentencing reports--about how police question juveniles. Section II summarizes the law governing police interrogation of juveniles. Section III examines developmental psychological research on juveniles' competence to exercise legal rights. Section IV reviews empirical studies of police interrogation, social psychological research on interrogation, and analyses of practices associated with eliciting false confessions. Section V describes the methodology and data in this study. Section VI analyzes routine police interrogation of juveniles sixteen years of age or older and charged with felony-level offenses. An earlier article analyzed sixty-six juveniles' competence to exercise Miranda rights. (10) This Article examines how police interrogated the fifty-three juveniles who waived their rights. It describes the techniques police used, how juveniles responded to those tactics, the length of interrogations, and the fruits of those efforts. Section VII discusses three policy issues: recording, interrogation length, and use of false evidence during questioning.
II. LEGAL FRAMEWORK GOVERNING INTERROGATION OF JUVENILES
The Supreme Court in In re Gault granted juveniles the Fifth Amendment privilege against self-incrimination in delinquency proceedings. (11) As a result, the Court assumes that police should administer a Miranda warning to juveniles prior to custodial interrogation. (12) Decades earlier, in Haley v. Ohio (13) and Gallegos v. Colorado, (14) the Court warned trial courts to carefully evaluate the impact of youthfulness and inexperience on the voluntariness of confessions and excluded statements coerced from fourteen- and fifteen-year-old youths. Gault reaffirmed that children are not the functional equivalents of adults when interrogated by police. (15)
In Fare v. Michael C., (16) the Court ignored its earlier concerns about youths' vulnerability and endorsed the adult waiver standard--"knowing, intelligent, and voluntary under the totality of the circumstances"--to evaluate juveniles' waivers of Miranda rights. (17) The Court denied that developmental and psychological differences between children and adults required different procedures for youths. (18) Fare asserted that the adult waiver standard provided judges with the flexibility needed to assess juveniles' invocations or waivers of Miranda rights. (19) In Yarborough v. Alvarado, (20) the Court held that the "custody" sufficient to require a Miranda warning (21) reflected objective factors indicating a restraint of liberty and found that youthfulness or inexperience with police had no bearing on whether a reasonable person would feel free to leave. (22) Alvarado acknowledged that the voluntariness of juveniles' Miranda waivers and confessions included subjective elements like youthfulness and inexperience. (23)
Trial judges consider both subjective and objective factors when they decide whether a juvenile made a "knowing, intelligent, and voluntary" waiver or gave a voluntary confession. The inquiry includes both offender characteristics--age, education, IQ, and prior contact with law enforcement--and features associated with the interrogation--location, methods employed, and duration of questioning. (24) The "totality" approach gives judges broad discretion theoretically to protect youths without unduly restricting officers' ability to question them. (25)
About a dozen states require the presence of a parent or other "interested adult" when police interrogate juveniles as a prerequisite to a valid Miranda waiver. (26) Those states assume that most juveniles require an adult's assistance to effectively exercise Miranda rights. (27) They presume that a parent will enhance a juvenile's understanding of and ability to exercise rights (28) and reduce coercive pressures. (29) Courts recognize that juvenile justice policies have become more punitive and that youths require additional safeguards to achieve functional procedural parity with adults. (30) Commentators generally support parental presence safeguards, (31) even though they recognize the limited utility of such safeguards. (32)
Like most states, Minnesota allows judges to decide whether a juvenile made a "knowing, intelligent, and voluntary" Miranda waiver under the "totality of the circumstances." (33) The Minnesota Supreme Court reaffirmed the "totality" approach after Fare and has repeatedly rejected juveniles' claims for a parental presence rule. (34) A parent's absence undermines a waiver only if a juvenile repeatedly requested to speak with his parent both before and after he received his Miranda warning. (35) Federal and Minnesota law treat juveniles as equal to adults in the interrogation room. Youthfulness, inexperience, or parents' absence are simply some of the factors judges consider when they assess Miranda waivers.
III. DEVELOPMENTAL PSYCHOLOGICAL RESEARCH ON JUVENILES' COMPETENCE
Developmental psychologists strongly question whether juveniles are competent to make "knowing, intelligent, and voluntary" waiver decisions. Thomas Grisso has studied juveniles' legal competencies for three decades and reports that many do not understand the language of a Miranda warning well enough to make a valid waiver. (36) Because many juveniles do not understand the Miranda warning, they cannot exercise their rights as effectively as adults, who better understand the warnings. (37) Although juveniles consistently underperformed when compared with adults, they most frequently misunderstood their fight to consult with an attorney and to have one present during police questioning. (38) In studies, competence correlated with age; younger juveniles understood Miranda warnings even less often than did mid-adolescents. (39) Juveniles sixteen years of age and older understood Miranda warnings about as well as did adults, although substantial minorities of each group misunderstood some components. (40)
Even youths who understand the words of a Miranda warning may not be able to exercise them effectively. Juveniles do not appreciate the function or importance of rights as well as adults. (41) They have greater difficulty than adults conceiving of a right as an absolute entitlement that they can exercise without adverse consequences. (42) Rather, they regard a right as something that authorities allow them to do, but which officials can unilaterally retract or withhold. (43)
Social expectations of obedience to authority and children's lower social status make them more vulnerable than adults during interrogation. (44) Less powerful people, such as juveniles or racial minorities, often speak indirectly with authority figures to avoid provoking conflict. (45) Juveniles may acquiesce more readily to police suggestions during questioning. (46) Miranda requires suspects to invoke their rights clearly and unambiguously, a requirement that runs contrary to most juvenile delinquents' social responses and verbal styles. (47)
Social psychologists who study interrogation and juveniles' competence to exercise rights conduct their research under laboratory conditions approved by Institutional Review Boards. Restrictions on experimentation on human subjects, especially vulnerable populations such as juveniles, prevent them from replicating the stressful conditions and coercive pressures that police exert during interrogation. (48) Moreover, public school youths who participate in social psychologists' studies are not necessarily comparable with delinquents who tend to be poorer, tend to possess less verbal facility, and tend to have a poorer understanding of legal abstractions. (49)
Developmental psychologists also have studied juveniles' adjudicative competence and raised further concerns about their ability to exercise Miranda rights. (50) To be competent to stand trial, a defendant must be able to understand legal proceedings, to make rational decisions, and to assist counsel. (51) Severe mental illness or retardation normally impairs defendants' competence. (52) However, generic developmental aspects of adolescents impair their ability to understand legal proceedings, to make rational decisions, or to assist counsel in the same ways that mental illness or retardation renders adults incompetent. (53) Grisso found significant age-related differences between adolescents' and young adults' adjudicative competence and quality of judgment. (54) Many juveniles below the age of fourteen were as severely impaired as adult defendants incompetent to stand trial. (55) A significant proportion of those younger than sixteen were incompetent, and many older youths exhibited substantial impairments. (56) Age and intelligence interacted to produce higher levels of incompetence among younger adolescents with lower IQs than among adults with lower IQs. (57) Even formally competent adolescents often made poorer decisions than did young adults because of differences in judgment. (58)
In summary, research on juveniles' ability to exercise Miranda rights and their adjudicative competence consistently reports that, as a group, adolescents understand legal proceedings and make decisions less well than do adults. Youths fifteen years of age and younger exhibited the clearest and greatest disability. Although juveniles sixteen years of age and older appear to function comparably with adults, many still exhibited significant deficits which could increase their vulnerability during interrogation.
IV. POLICE INTERROGATION--LEGAL FRAMEWORK AND EMPIRICAL REALITY
Prior to Miranda, the Supreme Court regulated police interrogation in the states by focusing on the voluntariness of a confession. (59) Except in extreme cases, (60) however, the Court experienced great difficulty determining whether a confession was voluntary or coerced. Judges considered both the characteristics of the suspect and the circumstances surrounding the interrogation and then attempted to reconstruct the defendant's state of mind to decide whether his confession reflected his "free will." (61) By the mid-1960s, psychological interrogation tactics supplanted physical coercion and further increased the Court's inability to distinguish between voluntary and involuntary confessions. (62)
A. THE MIRANDA DECISION AND POLICE INTERROGATION
The Miranda Court could not factually reconstruct how police interrogated suspects because it occurred incommunicado without an independent record, and police and suspects often described widely divergent experiences. (63) Although contemporary interrogation relied on psychological manipulation, rather than physical coercion, the Court had no direct evidence of the practices police used. (64) In lieu of empirical studies, the Court used police interrogation manuals and training programs as a proxy for the procedures used. (65) The Court described the techniques recommended by Inbau and Reid in Criminal Interrogation and Confession, the leading interrogation manual at the time, (66) and characterized the physical isolation and psychological manipulations it prescribed as "inherently coercive." (67)
Inbau and Reid's recommended psychological manipulations and techniques underlie most contemporary interrogation practices, and are commonly referred to as the "Reid Method." (68) They contend that verbal and non-verbal cues--Behavioral Symptom Analysis--enable an interrogator to distinguish between guilty and innocent suspects and to question them accordingly. (69) Isolating a suspect enables an officer to overcome a suspect's resistance and denials and to increase her willingness to confess. (70) Interrogators use a nine-step sequence of social influence and techniques of persuasion to systematically weaken suspects' resistance and to provide face-saving rationales. (71) These nine steps include: directly confronting the suspect about her guilt; (72) developing "techniques of neutralization" or psychological themes to justify or excuse the crime; (73) interrupting the suspect's attempts at denial; (74) rebuffing the suspect's explanations or assertions of innocence; (75) engaging the suspect if she becomes passive or tunes out; (76) showing sympathy and urging the suspect to tell the truth; (77) offering a face-saving alternative, albeit incriminating, explanation for committing the crime; (78) having the suspect orally relate some incriminating details of the crime; (79) and finally, having the suspect provide a signed written confession. (80) The cumulative interrogation process increases a suspect's anxiety, creates a state of despair, and offers surcease by minimizing the consequences of confessing. (81)
B. EMPIRICAL RESEARCH ON POLICE INTERROGATION
Criminologists and legal scholars have conducted remarkably few naturalistic field studies of how police actually interrogate suspects in the United States. (82) Immediately after Miranda, several studies measured compliance with the warning requirement and assessed the impacts of warnings on confession rates. (83) The post-Miranda impact studies reported that police generally complied with Miranda and administered warnings, and thereafter suspects waived their rights. (84) Nearly all of those contemporaneous studies concluded that Miranda warnings had a minimal effect on confession rates and convictions or on police interrogation tactics. (85) However, only the 1967 New Haven study by the editors of the Yale Law Journal actually observed police interrogate suspects. (86)
Nearly three decades elapsed before criminologists ventured into the interrogation room to report what actually occurred. In 1992-1993, Richard Leo observed 122 interrogations in an urban California police department and reviewed 60 audio- and video-tapes of interrogations performed in two other California departments. (87) He analyzed how police induced suspects to waive Miranda, how they interrogated them following a waiver, and how the exercise of Miranda rights affected subsequent case processing. (88)
In addition to Leo's naturalistic field observations, legal scholars used indirect methods to assess contemporary police interrogation practices. Cassell and Hayman attended prosecutorial screening sessions that reviewed the sufficiency of evidence and interviewed police about any interrogations they conducted during their investigation. (89) Weisselberg used the Court's Miranda methodology and analyzed interrogation training manuals and instructional programs. (90)
In addition to research in the United States, England's Police and Criminal Evidence Act (PACE) has required police to record station-house interrogation of suspects since 1991. (91) Gisli Gudjonsson and his associates developed quantitative and qualitative methods to code and analyze tapes and transcripts of interrogations, documented police interrogation techniques, assessed the effectiveness of those strategies, and measured the impact of those tactics on vulnerable suspects. (92) Roger Evans analyzed PACE transcripts of police questioning juveniles. (93)
For more than two decades, Saul Kassin and his associates have conducted extensive laboratory studies of the social psychology of interrogation. (94) They have analyzed the dynamics of social influence and persuasion, the accuracy with which police and naive observers distinguish between truthful and deceptive subjects, the individual characteristics that increase some suspects' likelihood to give false confessions, and the police practices likely to elicit false confessions. (95) Finally, studies of cases of wrongful convictions examine the contributions police-induced false confessions make to miscarriages of justice. (96)
C. VULNERABLE POPULATIONS AND FALSE CONFESSIONS
False confessions are one of the leading causes of wrongful convictions. (97) Scholars currently debate the incidence of false confessions; the types of techniques likely to elicit false confessions; (99) appropriate safeguards to reduce the likelihood of false confessions; (99) and the consequences of restricting interrogation tactics to innocent suspects and to the public. (100) We have no way to measure how often false confessions occur or lead to wrongful convictions, but recurring cases of DNA-exoneration of defendants who confessed falsely raise the specter of imprisoning and executing innocent people. (101) Three factors consistently contribute to police-induced false confessions--youthfulness, coercive interrogation techniques, and prolonged questioning. (102)
Interrogation manuals discount the likelihood of false confessions, minimize the role that interrogation practices play in eliciting them, and make scientifically unsubstantiated claims about police ability to assess suspects' guilt or innocence. (103) Most criminal defendants do lie, and the vast majority of those who do confess are guilty. This guilt-presumptive baseline expectancy predisposes police to disbelieve true claims of innocence. (104) Kassin contends that innocence itself puts innocent suspects at risk. (105) If police presume guilt or employ unreliable diagnostic cues of guilt or innocence, then they may confront and question more aggressively innocent suspects. (106)
The Reid Method emphasizes three psychological processes--isolation, confrontation, and minimalization--that increase risks of false confessions. (107) Isolation heightens stress and anxiety. Confrontation, fatigue, and sleep deprivation increase susceptibility to social influences, impair complex decision-making, and heighten suggestibility. (108) Minimization techniques provide a moral justification upon which some suspects seize to escape from isolation and despair. (109) Confronting suspects with strong assertions of guilt and presenting them with false evidence increase their sense of hopelessness, as well as the likelihood that even innocent people will confess. (110) Moral justifications to neutralize guilt may induce innocent suspects to adopt the proffered excuses to end questioning. (111)
Youths' diminished competence relative to adults increases their susceptibility to interrogation techniques and concomitant risks of false confessions, (112) Adolescents have fewer life experiences or psychological resources with which to resist the pressures of interrogation. (113) Juveniles' lesser understanding of legal rights or consequences increases their vulnerability to manipulative tactics. (114) They think less strategically and more readily assume responsibility for peers than do adults. (115) They are more likely to comply with authority figures and to tell police what they think the police want to hear. (116) As a result, interrogation techniques designed to manipulate adults may be even more effective and thus problematic when used against children. (117) Tactics like aggressive questioning, presenting false evidence, and leading questions may create unique dangers when employed with youths. (118) Under these interrogative pressures, some juveniles confess falsely to serious crimes that they did not commit. (119) This study provides an opportunity to empirically examine how officers routinely question juveniles and to assess social psychologists' hypotheses about interrogation and adolescents' vulnerability.
V. METHODOLOGY AND DATA
The state supreme courts of Alaska and Minnesota have long required police to electronically record interrogation of criminal suspects. (120) In 1985, the Alaska Supreme Court in Stephan v. State held that an unexcused failure to record custodial interrogation violated defendants' state constitutional rights. (121) In 1994, the Minnesota Supreme Court in State v. Scales relied on its supervisory powers to regulate the admissibility of evidence and required police to record all custodial interrogations. (122) The Minnesota Court adopted the reasoning in Stephan and found that:
A recording requirement ... provides a more accurate record of a defendant's interrogation and thus will reduce the number of disputes over the validity of Miranda warnings and the voluntariness of purported waivers. In addition, an accurate record makes it possible for a defendant to challenge misleading or false testimony and, at the same time, protects the state against meritless claims. Recognizing that the trial and appellant [sic] courts consistently credit the recollections of police officers regarding the events that take place in an unrecorded interview, the [Stephan] court held that recording "is now a reasonable and necessary safeguard, essential to the adequate protection of the accused's right to counsel, his right against self incrimination and, ultimately, his right to a fair trial." A recording requirement also discourages unfair and psychologically coercive police tactics and thus results in more professional law enforcement. (123)
Since Stephan and Scales, a few states have required police to record some or all custodial interrogation, (124) other states are considering such a requirement, (125) and many police departments do so as a matter of departmental policy. (126) The Wisconsin Supreme Court recently required police to record custodial interrogation of juveniles. (127)
Scales tapes and transcripts provide the basis for this study. I obtained the data from the Ramsey County Attorney's office because of the office's proximity and the county attorney's willingness to cooperate with this study. Ramsey County is an urban and suburban area that includes St. Paul, the Minnesota state capital, and several smaller cities. It is the second most populous county in the state with more than half a million total residents. About 12% of the county's population falls within the age jurisdiction of the juvenile court. About 69% of the juveniles are white, 18% Asian, 12% African American, and less than 2% Native American. (128) The St. Paul Police, Ramsey County Sheriff, and seven suburban police departments provide law enforcement services. (129) In 2000, the Ramsey County Attorney flied more than 4,000 delinquency petitions and nearly 1,000 status offense petitions. (130)
In Minnesota, trials of sixteen- and seventeen-year-old delinquents charged with felony-level offenses are public proceedings. (131) Because other delinquency proceedings are closed and confidential, the Ramsey County Attorney and I restricted this study to older delinquents. I assumed that police would employ the full range of interrogation techniques against older juveniles charged with felonies.
Initially, a Ramsey County paralegal generated a list of cases of sixteen- and seventeen-year-old youths charged with a felony. She searched for interrogation records in cases that were finally resolved but which had not yet been transferred to archives. She individually inspected every file in those closed felony cases to find any interrogation transcript or tape. (132) She also identified files that contained a Miranda form and no confession or police reports, which indicated a juvenile had invoked her rights, so we could compare juveniles who waived or asserted Miranda rights. Each time she found a tape or transcript, she copied the file associated with that offense--police reports, Miranda waiver form, transcripts or tapes of interrogation, court petitions, certification studies, and probation sentencing reports. She then laboriously redacted references to other juveniles in the police reports to protect their anonymity.
The county attorney's office provided me with all of the files in which the paralegal found tapes or transcripts. She did not "cherry-pick" or select only self-serving "good" cases but gave me all of the available files. (133) I obtained a total of sixty-six files of juveniles who met the search criteria--sixteen or seventeen years of age, charged with a felony level offense in a certification, Extended Jurisdiction Juvenile (EJJ) prosecution, (134) or delinquency matter--and for whom evidence of interrogation existed. I personally transcribed thirty tapes of interviews, both to preserve confidentiality and to immerse myself in the tenor of the interrogation room.
I read and coded each case file for two primary purposes. First, I reviewed police reports, witness statements, property inventories, and other documents to understand the circumstances surrounding the offense, the context of each interrogation, and the evidence police possessed when they questioned a suspect. Second, I adapted instruments used in other recent interrogation studies (135) and constructed a detailed coding form to classify and analyze whether juveniles invoked or waived Miranda rights, how the officers conducted the interrogation, and how the juveniles responded. An earlier article reported on juveniles' competence to exercise their Miranda rights. (136) This Article examines the interrogation techniques police employed following juveniles' Miranda waivers.
This study suffers from significant methodological limitations. The first is sample selection bias. I was unable to randomly select the files I analyzed from a larger universe of interrogations cases because such an array simply did not exist. The study includes only juveniles whom prosecutors actually charged with serious crimes and for whom an interrogation record exists. (137) This significantly biases the sample compared with the larger number of cases in which police questioned juveniles and the county attorney did not file charges. Moreover, the fact that the prosecutor's files contained transcripts or tapes suggests that these cases differ in unknown ways from more numerous cases of juveniles who were charged, but whose tapes were not transcribed and remained in police evidence lockers until subsequently destroyed or recycled. Because the sample includes only sixteen- and seventeen-year-old youths charged with a felony, many of whom had prior experience with law enforcement, this study cannot address the problems posed when police question younger or less sophisticated juveniles. (138)
St. Paul Police Department officers conducted about three-quarters of the interviews and their interrogation practices may not be representative of those of other departments in Minnesota or elsewhere. (139) Several reviewers of this and an earlier article suggested that Minnesota police practices probably differ from and are more benign than those used in other states because Scales has required them to record interrogations for more than a decade. The reviewers pointed out, for example, that unlike Leo's research, none of the officers in this study continued "questioning outside of Miranda" after a juvenile had invoked her rights. (140)
I personally transcribed half and coded all of the interrogations to address the county attorney's and district court's concerns about data confidentiality. (141) As a result, I could not use multiple coders or obtain inter-rater reliability scores. Rigorous experimental psychologists properly could characterize aspects of this study as "impressionistic." Finally, I only have sixty-six cases, both because of the limited number of tapes or transcripts available and the significant costs of identifying, copying, and redacting each file.
As a result of sample selection bias and small sample size, I make no claims that this study represents how police interrogate juveniles more generally or in other jurisdictions. Despite these caveats, this study reports the largest aggregation of routine interrogation of juveniles in the criminological literature. Scholars properly focus on notorious cases of juvenile false confessions (142)--for example, the Ryan Harris case, the Central Park Jogger, and Michael Crowe--but they too concede that they cannot estimate how representative those cases are of the universe of interrogations or how often they occur. (143) While this study is not representative, it sheds some light on routine interrogation of older juveniles.
VI. POLICE INTERROGATION OF JUVENILES
Table 1 introduces the juveniles whom police interrogated. Males comprised the vast majority (86%) of youths questioned. About two-thirds (65%) of the juveniles were sixteen years of age at the time of their questioning. (144) Their distribution of offenses was more serious than the typical Ramsey County juvenile felony caseload. (145) Prosecutors charged over half (52%) of the youths with crimes against the person--murder, armed robbery, aggravated assault, and criminal sexual conduct. Moreover, these delinquents were criminally experienced: almost half (42%) had one or more felony arrests prior to their current felony referrals; nearly two-thirds (62%) had prior juvenile court referrals; and more than one-quarter (26%) were under current juvenile court supervision--probation, placement, or parole status. The majority of youths whom police questioned (68%) were members of ethnic and racial minority groups--African-American, Hispanic, and Asian--and African-American juveniles accounted for the largest group (42%) in the sample. (146)
When police take a suspect into custody (147) and interrogate her, (148) Miranda requires that the police administer a warning and obtain a waiver prior to questioning. (149) Police arrested (150) nearly all (88%) of these juveniles before they questioned them. (151) Police placed in detention the vast majority (88%) of the youths they took into custody. They released 5% of youths whom they previously had detained after they finished questioning. Police conducted two-thirds (66%) of the interviews in detention centers or correctional facilities and an additional one-third (30%) at police or sheriff stations. They performed only 5% of interviews in non-custodial settings, such as a juvenile's school or home.
St. Paul juvenile officers conducted about two-thirds (68%) of the interviews, and St. Paul homicide detectives carried out another 8% of interviews. (152) Twenty-one officers conducted the sixty-six interrogations in this study. A male officer or officers conducted 80% of the interviews, a female officer conducted 18% of the interrogations, and a female and male officer conducted a "good cop-bad cop" interrogation in one case. (153)
Police must successfully negotiate the Miranda warning and secure a waiver before they can question a suspect. (154) My earlier study of juveniles' competence to exercise Miranda rights reported that police initially asked "booking questions" (155) and delayed administering warnings in most cases to build rapport and to predispose juveniles to waive their rights. (156) Police conveyed to juveniles the impression that the Miranda warning was a bureaucratic ritual that they had to complete before they could talk. (157)
Once a suspect receives a Miranda warning, she must waive or invoke her rights clearly and unambiguously. (158) The post-Miranda research reported that most suspects--typically two-thirds to three-quarters or more--waived their rights. (159) The more recent studies of interrogation--Leo's California research, Cassell and Hayman's Salt Lake observations, and Gudjonsson's British studies--also report high rates of waiver. (160) In this study, 80% of the juveniles waived their Miranda rights. (161) Criminally experienced juveniles with one or more prior felony arrests waived their rights at lower rates (68%) than did those with fewer or less serious police contacts (89%). (162) In sum, these sixteen- and seventeen-year-old delinquents exercised their Miranda rights about as often as did the adults in other interrogation studies.
A. POLICE INTERROGATION TECHNIQUES
Legal scholars criticize the Court's Miranda and due process approaches to police questioning, (163) describe the dangers of false confessions, (164) and highlight the risks of prolonged interrogation and police trickery. (165) The data collected in this study allow us to examine how officers actually questioned juvenile suspects. I present quantitative and qualitative data from the fifty-three juveniles who waived their Miranda rights: the form of questions police asked, the tactics they employed, the juveniles' responses, and the effectiveness of these strategies in eliciting admissions and collateral evidence.
In the vast majority of cases (89%), a single officer conducted the interrogation. Two officers questioned 13% of youths charged with crimes against the person and 17% percent of youths charged with property offenses. In the latter cases, officers from different jurisdictions tried to clear separate crimes involving the same juvenile. Police concluded most (89%) examinations in one session, but questioned six juveniles (11%) a second time after questioning a co-defendant or at the juvenile's request. (166)
One of the interrogator's first tasks is to establish rapport and a positive relationship with a suspect. (167) Police used the Miranda warning process subtly to predispose the suspect to waive her rights and talk with police. The Supreme Court does not require police to give a Miranda warning before they ask routine "booking questions." (168) In most cases (56%), police asked juveniles neutral booking questions--name, age and date of birth, address and telephone number, grade in school, and the like--to build rapport before administering Miranda warnings. Officers sometimes used juveniles' responses to "booking questions" to engage in casual conversations with youths and to accustom them to answering questions. (169)
In addition to using "booking questions" to built rapport, in about one in seven cases (14%) officers asked juveniles if they wanted a drink or needed to use the bathroom:
Q: You want something to drink?
A: Yes, please.
Q: Have a seat over there. What do you want?
A: Ah, [inaudible]
Q: Anything cold?
In another case, the officer apologized for the interrogation room environment. "It is a little chilly in here. I apologize for that, but that's just the way this building is."
The detectives used these preliminary contacts to establish a positive relationship with the suspect. At the start of a homicide interrogation, the officer pointed out to the juvenile that he treated him respectfully:
Q: I want you to, I want you to realize, okay. You're sitting here right now. You're not in handcuffs, right? And I ... I brought you a can of pop, right?
A: Uh huh [affirmative].
Q: Am I treating you like a suspect?
A: No.
Q: Okay. But I want you to understand, ah, that ah, there was a shooting tonight.... There was a shooting tonight and you're not here by chance. You're not here because we pulled your name out of mid-air.... Okay? You're here because we, we obviously know some things. Okay? Now, you noticed, I'm not treating you like a suspect.
Similarly, while investigating a shooting incident, the officer commented, "I think I've been more than fair with you, you know. I don't want to make you feel bad. I just want you to be honest with me."
After completing the Miranda formalities, in about one-fifth (17%) of cases, officers described their roles as neutral, objective fact finders trying to determine what happened, rather than as adversaries. (170) They invoked their professional expertise, advised the youths that they could distinguish between suspects who lied or told the truth, and reassured them that they would not lie to or trick them:
Okay. John, (171) here's the deal. First of all I ... I ain't never met you before. I'm gonna look at you in the eye man-to-man I'm ... if you got questions you ask me, okay? If there's some questions here that I can't answer, then I'll just tell you straight up I can't answer them, okay? But the better informed you are probably the better decisions you make too, okay? And I'll--John, I'll tell you what like I told--like I say to everybody urn, no matter what the case is, I'm--I'm a homicide detective. We're not talking about a homicide here, um but my point is urn, no matter who I talk to urn, I try to be as straight forward as I can even though I--usually I've never met the people before in my life before you sit down here and like I said if you got questions, ask me questions, okay? All I'm looking--all I'm looking from you is the truth. That's it. Urn, I think I've got the truth in this, but no matter what happens in my line of work, I'm never there to see it happen. I always come in after the fact. So for me to write down something for me to guess at something is I think to be the truth and write it down, I can't do that, okay? ... I guess my advice would be don't let anyone talk for you uh, John's got a story and I'm here to write your story, whatever it is. My name's Mike, I told you. I don't ... I don't take sides in this. I can't. I got no emotional involvement in this whatsoever. I'm just here as a detective taking down ... taking the facts. And that's all it is, I mean the facts and everything else will speak for themselves and then uh, I'm thinking it's gonna be a load off your shoulders and at least it will be something you could put behind ya. So, I'm ... I'm ... I'm feeling that you probably know what this is about so, I don't know, do you just want to start at the beginning and then if we have to fill in some spots or some spaces we can do that, I don't care. Whatever you're most comfortable doing.
Once officers secured a Miranda waiver, they commenced interrogation in earnest. Questions can take a variety of forms, so I initially examined simply how officers framed their questions. As Table 2 indicates, in every interrogation (100%) officers asked juveniles at least some open-ended queries that invited them to provide an account. In nearly half the cases (42%), they began interrogation with open-ended questions and asked the suspect to "tell her story." (172)
What I've learned over the years is there's always two sides to every story and this is your opportunity to give your side of the story. Do you want to tell me what the circumstances were or your side of the story on what happened? Well, this, this is to get your side of the story, Darnell. Whatever you say, of course, it's on tape, so I can't add to it. I mean I can't say something you didn't do, but this is to get your side of the story so we want to know what your part in this was.
Officers' initial open-ended invitation to "tell their story" sometimes emphasized discrepancies among witnesses' or co-defendants' statements and offered the juvenile the opportunity to provide his version:
Do you want to tell me what happened? 'Cuz I've heard two different stories now. Actually, three different stories. 'Cuz I've got one of version of the story of what was going on and I've gotta find out what was going on with your side. We have to investigate it. First we have to gather knowledge, talk to people, get witness statements, talk to maybe people that were involved with things.... The thing is Rick, you know, we're here to get your side of the story. We've already got the other side of the story. We've talked to Chris [co-defendant]. We want to get your side of the story.
In nearly every interview (93%), police also asked closed-ended questions which required only a few words to answers.
Leading questions play a prominent role in studies of false confessions because they require suspects to adopt interrogators' incriminating premises or feed suspects "inside information" that only a guilty party would know. (173) Police asked leading questions in only half (49%) of the interrogations, and such questions did not feature prominently in any case. Interrogators "echoed"--repeating back a phrase or the last few words of the suspect's previous reply--in about half (47%) the cases to invite further comment. In about one-quarter of cases, officers asked multiple questions (25%) in a single sentence or allowed a long pause (23%) to hang in the air. Although a few of the transcripts that I received noted the presence of long pauses, I encountered this technique more frequently in the tapes that I transcribed, so it may be more common than the data indicate. Although the Reid Method instructs interrogators to cut off suspects' denials, (174) police interrupted juveniles' answers in only about one-tenth (11%) of cases. Table 2 summarizes the frequency with which officers used different forms of questions. In two-thirds of the cases (66%), they asked questions in three or four different ways, and in 15% percent of cases, they used five or more deliveries.
1. Overcoming Resistance--"Maximization" Strategies
Police interrogators use a two-pronged strategy to overcome suspects' resistance and to enable them to admit responsibility. (175) Maximization techniques intimidate suspects and impress on them the futility of denial, while minimization techniques provide moral justifications or face-saving alternatives to enable them to confess. (176) Police may overstate the seriousness of the crime or make exaggerated or false claims about the evidence. (177) The Reid Method recommends asking emotionally-charged Behavioral Analysis Interview (BAI) questions to provoke reactions from suspects. (178) Leo reported that detectives used several maximization tactics: confront suspects with real and false evidence; refuse to accept denials; accuse suspects of lying; identify inconsistencies in suspects' stories; and emphasize the implausibility of suspects' claims. (179)
Table 3 summarizes the more common maximization strategies officers used: confronting juveniles with evidence; asking BAI questions; playing on their fears; calling them liars; and pointing out inconsistencies. Officers used maximization strategies in nine out of ten (89%) interrogations and asked an average of five (5.1) different types of questions in the interrogations in which they used them. In more than two-thirds of the cases (70%), police confronted juveniles with evidence--identification by witnesses, statements of co-defendants, physical evidence, or fingerprints--to emphasize the strength of their case. (180) In about one-half or more of the cases, officers asked BAI questions (62%), accused suspects of lying (49%), pointed out inconsistencies in suspects' responses (45%), and urged them to tell the truth (45%). In more than one-third of interrogations, the officers disputed suspects' assertions (40%), played on their fears (36%), and emphasized the seriousness of their predicament (34%). The following excerpts illustrate the more common maximization strategies police used.
a. Confront with Evidence
Police confronted suspects with statements of witnesses or co-defendants, physical evidence, and fingerprints. They most commonly (70%) referred to witnesses who identified the juvenile. Because prosecutors charged the majority (52%) of these youths with crimes against the person, these offenses generated both victims and potential witnesses. When youths denied involvement, officers referred to eyewitnesses who named or identified them:
Somebody--well we got--I'm guess we got one, two, three, four--four people saying you hit him.... Four people that know Jay-Jay from the neighborhood....
And it's not just one person, we've got, we've got multiple witnesses on you. You're ... you're ... you're screwed. You really are. You're screwed.
Q: Eyewitnesses, that's the best evidence possible. I mean, you can't get better than witnesses, and I've got witnesses, neighbor witnesses that's sitting on the deck by the trailer.
A: How do they know it's me? Oh yeah, it's Rick.
Q: Ever hear of a lineup? You got your photo taken last winter.
Sometimes a "confidential informant" provided officers with a lead to the juvenile:
1830 hours received a call from a person who ... I can't tell you who it is ... who told them the following: Roger Jefferson, Ronald and a third black male named Otto did the robbery at Blimpies the night before using a shotgun.
In other cases, friends or acquaintances furnished the testimony. A juvenile suspect in a homicide drove a car in which two girls were passengers and whom the victims earlier had disrespected--"dissed." Officers told the youth that if his statement was consistent with what the girls already had told them, then they would know he was telling the truth:
You were driving the car. Remember what I told you. Your best ... the best thing for you is to just tell the truth what happened up there. Okay? No BSing, no lies. That's your best chance right now ... is to be a witness to what happened. You're there, you're driving the car. We know about the dissing, you know, the arguments before. The deal with girls. We know all that. I'm not, I'm not BSing you. You know that I know. So now what...
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