Kids, Cops, and Confessions

Inside the Interrogation Room

Barry Feld, Barry C. Feld

• Publisher: NYU Press
• Year: 2012
• Print ISBN: 9781479816385
• eBook ISBN: 9780814770672
• Topic: Social Sciences
• Subtopic: Criminal Procedure
• Index: Social Sciences

Juveniles possess less maturity, intelligence, and
competence than adults, heightening their vulnerability in the justice system.
For this reason, states try juveniles in separate courts and use different
sentencing standards than for adults. Yet, when police bring kids in for
questioning, they use the same interrogation tactics they use for adults,
including trickery, deception, and lying to elicit confessions or to produce
incriminating evidence against the defendants.
In Kids, Cops, and Confessions, Barry Feld offers the
first report of what actually happens when police question juveniles. Drawing
on remarkable data, Feld analyzes interrogation tapes and transcripts, police
reports, juvenile court filings and sentences, and probation and sentencing
reports, describing in rich detail what actually happens in the interrogation
room. Contrasting routine interrogation and false confessions enables police,
lawyers, and judges to identify interrogations that require enhanced scrutiny,
to adopt policies to protect citizens, and to assure reliability and integrity
of the justice system. Feld has produced an invaluable look at how the justice
system really works.

Interrogating Criminal Suspects

Law on the Books and Law in Action

Ours is the accusatorial as opposed to the inquisitorial system. Such has been the characteristics of Anglo-American criminal justice since it freed itself from the practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end. Under our system, society carries the burden of proving its charges against the accused not out of his own mouth. It must establish its case, not by interrogation of the accused even under judicial safeguards, but by evidence independently secured through skillful investigation.¹

For three-quarters of a century, the Supreme Court has struggled to find the right balance between needs of law enforcement and protection of individuals during interrogation. The state wants reliable statements that will lead to successful plea, prosecution, and conviction. Citizens have a right to be free from coercive tactics and practices likely to elicit unreliable statements. Court decisions accommodate legitimate police practices and suspects’ rights.

An adversarial system of criminal justice presumes equality between the individual and the state. The parties—prosecution and defense—control the contest, and the judge functions as an umpire to enforce procedural rules.² The prosecutor seeks to obtain convictions and the defense to prevent them. In theory, partisan self-interest will promote a better-informed fact-finder. The state may ask suspects questions, but it may not compel them to answer or draw negative inferences from their silence. If the state can use persons as a source of evidence in their own prosecution, then it would convert the adversarial process into an inquisitorial one.³

Despite the value of independent investigation, suspects often are important sources of evidence—confessions, admissions, leads to witnesses, or the location of physical evidence—and questioning them contributes to successful prosecutions. When the state questions a person, the person usually will know whether the information sought could incriminate, and he or she must assert the privilege against self-incrimination.⁴ However, police actions may impair suspects’ ability to freely choose, for example, if they use threats or force. The Constitution limits the state’s power to force answers and protects individual autonomy. Since the 1930s, the Court has used three strategies—Fourteenth Amendment due process voluntariness, Sixth Amendment right to counsel, and Fifth Amendment privilege against self-incrimination—to regulate interrogation, to balance individual and state interests, and to maintain a properly functioning adversarial system.

This chapter analyzes the Court’s constitutional interrogation doctrines and their impact on justice administration. Part I briefly reviews the Court’s three theories and their limitations. The Fourteenth Amendment voluntariness test posited limits on police interrogation tactics but did not identify prohibited practices in advance or provide guidance for police and courts. The Sixth Amendment right to counsel gave suspects access to a lawyer, threatening the state’s ability to question suspects at all, and the Court quickly limited its applicability to interrogations conducted after the state has filed formal charges. Miranda recognized that the compulsive pressures of custodial interrogation threatened suspects’ Fifth Amendment privilege against self-incrimination. The Court required a Miranda warning to empower suspects, to preserve the balance of equals in an adversarial system, and to regulate most interrogations. Part II analyzes how the Miranda Court viewed interrogation and how the Court’s subsequent decisions have restricted and narrowed its meager protections. Part III reviews empirical research on interrogation. Miranda prescribed a protective warning in an empirical vacuum. The Court had little evidence about what actually happened when police interrogated suspects or how its ruling might affect interrogation practices.⁵ It relied on interrogation training manuals and programs.⁶ Miranda, subsequent rulings, and those manuals provide the framework for current interrogation practices.

I. The Court, the Constitution, and Confessions

The Constitution provides the theoretical framework for an adversary system of criminal and juvenile justice. In reality, states administer a plea-bargain justice system in which 90–95% of defendants admit their guilt for sentencing concessions rather than contest their innocence.⁷ “The American system of plea bargaining is fundamentally a system of deal-making in exchange for self-incrimination—a process that begins during the investigative stage of detective work, well before the filing of any charges by the prosecutor, the negotiation of any reduction by defense counsel, or the ratification of any two-party deals by the judge.”⁸ The initial decision to confess determines subsequent stages of the process—whether a defendant has any plea-bargaining advantage or goes to trial—and converts the adversarial process into an inquisitorial one. Moreover, it occurs in secret, which limits the Court’s ability to regulate police tactics. The Court developed three constitutional strategies to regulate interrogation without knowing what actually happens or how its rulings would affect justice administration.

A. Fourteenth Amendment Voluntariness

Until the mid-1960s, the Supreme Court regulated police interrogation in the states through the Fourteenth Amendment due process clause. To assure a fundamentally fair trial, the Court required a confession to be voluntary under the “totality of the circumstances.”⁹ Coercive practices rendered a confession involuntary and inadmissible in a criminal prosecution. Prior to World War II, police sometimes used harsh third-degree practices—for example, physical beatings amounting to torture, exposure to heat or cold, water-boarding, isolation, sleep deprivation, prolonged questioning, and the like—to elicit confessions.¹⁰

These tactics posed three constitutional concerns. Physical or psychological coercion could produce unreliable statements, undermine accurate fact-finding, and detract from the search for truth. Second, regardless of a statement’s factual reliability in a particular case, coercive tactics create a substantial risk that innocent suspects will confess falsely—for example, succumb to threats, promises, or inducements. Third, tactics that impair peoples’ autonomy fail to respect individual sovereignty and subvert equality.

The Court could more easily articulate constitutional values—assuring factual reliability, preventing governmental oppression, and respecting individual autonomy—than provide guidance for trial judges to apply them. The legal standard—voluntariness—lacks objective meaning and requires judges to assess suspects’ subjective state of mind when they confessed. The due process approach focused on a person’s “free will” decision to make a statement. The Court used various formulae to evaluate voluntariness—for example, “whether the behavior of the State’s law enforcement officials was such as to overbear [the suspect’s] will to resist and bring about confessions not freely self-determined”¹¹ or whether the suspect’s “will has been overborne and his capacity for self-determination critically impaired.”¹²

Free will and voluntariness are elusive concepts, and judges find it difficult to discern why people do what they do. It is hard to understand why they act contrary to their own self-interest and confess to a crime that can lead to imprisonment. It is even more challenging to reconstruct why they decided to confess at a suppression hearing conducted months later without a record of what actually happened. Except in extreme cases of physical brutality,¹³ judges faced a difficult task to distinguish voluntary from coerced confessions.

Judges must evaluate both characteristics of a suspect and circumstances of an interrogation, reconstruct a person’s state of mind when he or she confessed, and pronounce the decision to speak as voluntary or coerced. “[A] Court making this judgment must address not only the empirical question relating to the extent to which the police pressure restricted the suspect’s freedom of choice but also the normative question of how much freedom of choice should be afforded to the individual under interrogation.”¹⁴ The Court in Schneckloth v. Bustamonte summarized factors to evaluate voluntariness.

In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep.¹⁵

These factors included objective elements (what did police do) and subjective features (how would these tactics affect a person’s ability to resist or decide to talk). The Court seldom identified any particular tactic standing alone that rendered a statement coerced or involuntary.

The test requires a court to reconstruct minute details of an interrogation after the fact, usually with the police and the defendant offering wildly varying accounts of what took place. A court determining whether or not a confession was voluntary must consider any and all circumstances that could enter into this inquiry. This includes not only obvious objective factors, such as the length of the interrogation and whether the interrogators used force of any kind or degree against the suspect, but also subjective characteristics unique to the particular suspect…. The court must then throw all of these factors into a hat, mix them up in a totality of the circumstances approach, reach in and attempt to pull out the answer to a question that can never be answered with confidence by a judge, psychiatrist, or magician.¹⁶

Judges pronounce whether a person with some of the suspect’s characteristics could resist those pressures and choose freely to confess. “[T]he admission of a confession turns as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant’s will was in fact overborne.”¹⁷ The Court’s efforts to distinguish acceptable and unacceptable tactics identified a laundry list of factors, no one of which was necessarily determinative. The Court applied philosophical, psychological, and legal principles to the circumstances to assess voluntariness.

First, there is the business of finding the crude, historical facts, the external “phenomenological” occurrences, and events surrounding the confession. Second, because the concept of voluntariness is one which concerns a mental state, there is the imaginative recreation, largely inferential, of internal, “psychological” fact. Third, there is the application to this psychological fact of standards for judgment informed by the larger legal conceptions ordinarily characterized as rules of law but which, also, comprehend both induction from, and anticipation of, factual circumstances.¹⁸

Police, trial, and appellate court judges encounter factual, legal, and administrative difficulty to apply an amorphous, multifactor test to a subjective state of mind.¹⁹ The totality approach provides no advance guidance to police about permitted or prohibited tactics. Interrogating officers may not know features of a suspect—for example, education, IQ, or psychological vulnerability—that a court later may deem relevant to voluntariness. The voluntarin...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• 1. Interrogating Criminal Suspects: Law on the Books and Law in Action
• 2. Questioning Juveniles: Law and Developmental Psychology
• 3. To Waive or Not to Waive: That Is the Question
• 4. Police Interrogation: On the Record
• 5. Juveniles Respond to Interrogation: Outcomes and Consequences
• 6. Justice by Geography: Context, Race, and Confessions
• 7. True and False Confessions: Different Outcomes, Different Processes
• 8. Policy Reforms
• Appendix 1: Data and Methodology
• Appendix 2: Where the Girls Are
• Notes
• References
• Index
• About the Author