Investigative Interviewing

Adopting a Forensic Mindset

John E. Grimes III

• Publisher: CRC Press
• Year: 2021
• ISBN:
  9781000418859
• Edition: 1
• Topic: Psicología
• Subtopic: Investigación y metodología en psicología

Investigative Interviewing: Adopting a Forensic Mindset is a straight-forward, practical textbook outlining proper interview planning and techniques, detailing all relevant case law concerning confessions.

Being a forensic professional infers that investigator apply the highest standards in collecting, analyzing, preserving, and presenting evidence to a court of law or other tribunals. The author contends that the key to a proper forensic interviewing methodology is the elimination of the term "interrogation, " and the confession-obtaining mindset it creates.

Forensic interviewers can achieve all interview objectives, including truthful confessions that stand up to the scrutiny of the courts and public opinion, by adhering to best-practice, ethical standards. What transpires during the interview must stand up to the scrutiny of the courts and public opinion. In this regard, due process, documenting the procedure, and practicing proven, effective techniques is paramount to getting to the truth—the ultimate goal of any investigation.

The book addresses important issues in the field such as false confessions, due to its criticality and frequent occurrences of this. Coverage also includes the desired qualities of an investigative interviewer and strategies to break down barriers and gain trust with reluctant, uncooperative, and hostile interviewees. Proper report writing, an underrated key to any interview and investigation, is addressed in detail. Lastly. the book provides training on best practice interview steps and strategies to lead the interviewee to the truth. Numerous case examples, and transcripts of real interviews, are provided illustrate real-world interviewing practices and concepts.

Features includes:

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• Examines the human factor in the qualities of a good investigative interviewer such as understanding the offender and strategies to gain the interviewees trust

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• Shares practical experience and best practices, noting traditional pitfalls and mistakes that can impede the truth and lead to false confessions

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• Discusses legal considerations, case law, and the intent behind entering an interview situation with a forensic mindset, prioritizing due process and documenting procedure

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• Presents a notable and extensive case study that includes six informative interviews denoting effective techniques in practice

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• Provides pedagogical elements including chapter learning objectives and end of chapter review with discussion questions

Investigative Interviewing: Adopting a Forensic Mindset promotes legal and ethical investigative interviewing methods and is a welcome addition to the literature for use in forensic science and criminal justice curricula and programs.

Part 1

Due Process, The Foundation of Investigative Interviewing

In the 13th century, English barons sought to limit King John’s authority, petitioning him to grant certain liberties to be enjoyed by his subjects. The early agreements, and annulments of those agreements, eventually led to the historic Magna Carta, which bestowed rights on Englishmen. Among those rights was the concept of due process, a principle that protects individual life and liberty from a powerful and potentially abusive government. Simply put, due process equals fairness.

Six hundred years later and an ocean away, the Founding Fathers of the United States of America included the model of due process in the Bill of Rights to the United States Constitution, making it a foundation of American liberty. The intent, as in 13th-century England, was to protect individuals from an abusive government. The Fifth, Sixth, and Fourteenth Amendments provide individuals certain rights during a custodial questioning by government law enforcement agencies.

The concept of due process has made its way into other areas of society through union agreements and employment contracts. Due process is the foundation of the book Investigative Interviewing. Part 1 of this book includes the following chapters:

1. Due Process and Case Law
2. Interviewing Union Employees
3. Confessions
4. False Confessions

1

Due Process and Case Law

LEARNING OBJECTIVES

• To understand the concept of due process as included in the Bill of Rights of the United States Constitution.
• To identify and discuss the constitutional amendments that address an individual’s due process rights.
• To explain the Supreme Court’s reasoning behind the landmark Miranda v. Arizona case.
• To discuss government law enforcement’s responsibility as it pertains to Miranda.
• To explain the ramifications if the Miranda ruling is violated.
• To identify what could cause an individual to believe they are in custody.
• To summarize the exceptions to Miranda.
• To explain the reasoning behind the rulings in Garrity v. New Jersey and Kalkines v. United States.
• To explain a government agency’s options per Garrity.
• To identify the Garrity warnings.
• To explain a government agency’s options per Kalkines.
• To identify the Kalkines warnings.

Introduction

In the United States, due process is based on guarantees found in the Constitution’s Bill of Rights, specifically, the Fifth, Sixth, and Fourteenth Amendments. This chapter reviews case law that has shaped the conduct of investigative interviews by providing interviewees certain rights and establishing interviewer obligations.

The Fifth, Sixth, and Fourteenth Amendments

The Fifth Amendment provides that no person should be compelled to be a witness against themselves. The Fifth Amendment reads:

No person shall be held to answer for a capital, 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 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.

The right that, “no person shall be compelled in any criminal case to be a witness against himself,” has been held by the U.S. Supreme Court to apply not just to a criminal trial, but also to questioning by the government. The Fifth Amendment privilege against self-incrimination is such a fundamental inherent right that its application has surfaced in certain workplace rules.

The Sixth Amendment guarantees the rights of the accused to have the assistance of counsel. The Sixth Amendment reads:

In all criminal prosecutions, the accused shall enjoy the right to 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.

The U.S. Supreme Court ruled in Escobedo v. Illinois, 378 U.S. 478 (1964), that per the Sixth Amendment, criminal suspects have a right to counsel during police interrogations. The Supreme Court has applied the protections of the Fifth and Sixth Amendments to the states through Section 1 of the Fourteenth Amendment known as the Due Process Clause. The Fourteenth Amendment was adopted in 1868. Section 1 reads:

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.

Until the adoption of the Fourteenth Amendment in 1868, the federal courts were unable to dictate the evidentiary rules for the states. Most criminal cases were held in state courts. Each state developed its own rules and opinions regarding custodial questioning. Since the late 1800s, the U.S. Supreme Court has ruled and opined on various tactics utilized by law enforcement and due process rights of individuals subject to custodial questioning. The Court focused on the admissibility of a petitioner’s statement or confession and if there were violations of due process rights.

The Fifth Amendment right against self-incrimination and the Sixth Amendment right to have the assistance of counsel during custodial questioning were established. However, the Court realized that some individuals might not be aware of or exercise these rights on their own volition. In 1966, the U.S. Supreme Court addressed this in the landmark case of Miranda v. Arizona, 384 U.S. 436 (1966).

Miranda

In Miranda, the U.S. Supreme Court ruled that law enforcement must inform an individual that they are questioning of his or her constitutional right against self-incrimination per the Fifth Amendment. Also, as in Escobedo, the Court held that per the Sixth Amendment, an individual must be told of their right to have an attorney present during questioning. The case details and the Supreme Court ruling are as follows.

In 1963, Ernesto Miranda was arrested by the Phoenix, Arizona police and charged with rape, kidnapping, and murder. The police did not inform Miranda of his constitutional rights before being interrogated. During the 2-hour interrogation without an attorney present, Miranda confessed to committing the crimes. The prosecution’s case was based entirely on Miranda’s confession. Miranda was convicted of rape and kidnapping and sentenced to 20–30 years in prison. Miranda appealed to the Arizona Supreme Court, claiming that the police violated his constitutional rights in obtaining the confession. The Court disagreed and upheld the conviction.

Miranda appealed to the U.S. Supreme Court. In a 5-to-4 decision, the Court reversed the conviction. It ruled that the prosecution could not introduce Miranda’s confessions as evidence due to the police not informing Miranda of his constitutional rights against self-incrimination and to have an attorney present during questioning. Ernesto Miranda was retried and convicted without the use of his confession.

The Court held that the Fifth Amendment privilege against self-incrimination is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way. The Court concluded that:

Without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crimes contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.

The Sixth Amendment right to have an attorney present during custodial police questioning is also a fundamental right. Chief Justice Earl Warren wrote, the presence of an attorney during such questioning permits “the defendant under otherwise compelling circumstances to tell his story without fear, effectively, and in a way that eliminates the evils in the interrogation process.”

The Court instructed that if the individual being questioned indicates in any manner and at any stage of the process that he or she wishes to consult with an attorney before speaking, there can be no questioning. In addition, if the individual indicates in any manner that he or she does not wish to be “interrogated,” the police may not question him. The Court held that:

The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

The Court’s ruling led to the formulation of what is known as the Miranda warnings, which must be recited to an individual in law enforcement custody prior to questionin...