Topical Essays
choose any two topics (Except Religion and the Death Penalty) from the assignment schedule in the syllabus for your 2 essays -as long as they do not overlap with your research paper or the discussion topics (noted in the weekly schedule below). The topical essays should be 3-5 pages in length and demonstrate a command of the assigned reading for the relevant week, e.g., an overview of one topic related to the death penalty; relevant Court findings or empirical findings; your “reaction” to the Court’s ruling or the empirical findings based on what you have learned in this course or other outside, scholarly information. Please avoid using unsubstantiated opinion in your work; you should support your statements. The due dates for the essays are noted in the schedule.
Topics:
Future Dangerousness
Incapacitation
Cost
Mitigation
Associated readings:
Mandery 204-207
*Barefoot v. Estelle,463 U.S. 880 (1983)
Mandery 403-423; 65-84
Mandery 85-104
Mandery 207-210
*Mills v. Maryland,466 U.S. 367 (1988)
*Oregon v. Guzek,126 S.Ct. 1226 (2006)
*Cruz v. Arizona (2022) [future dangerousness and incapacitation]
https://www.supremecourt.gov/opinions/22pdf/21-846_lkgn.pdf
1 The Reid Interrogation Technique: A Gateway to Wrongful Convictions SAMPLE TOPICAL ESSAY -A PAPER Department of Criminology and Criminal Justice, Florida International University CJL 6421: Legal Issues in Criminal Justice Administration Dr. Jamie L. Flexon DATE 2 Introduction False confessions are a major problem in the criminal justice system in the United States. The advent of DNA evidence and the resulting exonerations produced a shockwave which reverberated through the legal community and focused the attention of the public and policy makers on the problem of wrongful convictions (Kassin et al., 2010). A myriad of factors have been found to be present in documented wrongful conviction cases and it is impossible to accurately measure the prevalence and cause of them (Norris et al., 2021). However, the Innocence Project reported that false confessions occurred in about 25% of the DNA exonerations to date (Innocence Project, 2021; Ewanation & Maeder, 2021). Other sources have pegged the rate of false confessions as a contributing factor in wrongful convictions at 12-26% (Gudjonsson, 2003; National Registry of Exonerations, 2020). The reasons why false confessions occur have been widely researched and several have been identified (Kassin & Kiechel, 1996; Redlich et al., 2010). While some suspects voluntarily confess to gain notoriety or as a result of mental illness or substance impairment (Leo, 2009), the vast majority of false confessions occur as a result of police interrogations (Kassin et al., 2010). Police interrogation practices in the United States have changed significantly over time. In the past, the use of “third degree” interrogation tactics were commonplace and resulted in a large number of coerced false confessions (Hopkins, 1931). This included the infliction of physical violence (such as beatings or torture) or mental suffering (such as sleep or food depravation). (Leo, 2009). The use of these third degree methods declined in the 1930-1960 era and were replaced by more professional interrogation methods which are psychologically focused (Kassin et al., 2010). 3 Costanzo and Leo (2007) identify the Reid technique as the “most influential modern interrogation method” (p. 78-79) that is commonly utilized by police in the United States. The first part of this paper will briefly describe the Reid technique and how it is commonly used by police. The following sections discuss serious shortfalls associated with this interrogation method which can lead to false confessions. Finally, the consequences of a false confession will be explored along with recommendations to improve police interrogation methods. The REID technique The Reid technique was developed by Fred Inbau and John Reid and hundreds of thousands of law enforcement officers in the United States and Canada have been trained to use it since the 1960s (Inbau et al., 2001). It encompasses three distinct stages with specific goals. The first step is for the investigator to conduct a careful factual analysis of the case. This is followed by a behavior analysis interview (known as the BAI) which is conducted in a non-accusatory fashion with the objective of gathering investigative and behavioral information concerning the suspect. Based on the suspect’s answers and behavior during the BAI, the investigator reaches a decision on the likely guilt or innocence of the suspect. If the suspect is deemed guilty, an interrogation is conducted which is aimed at breaking the suspect’s resistance and securing a confession (Kassin, 2014; Kelly & Meissner, 2016). The Reid technique uses a detailed nine-step process. It includes carefully controlling the interrogation environment to remove familiar and comfortable stimuli and use of social isolation to create disorientation and anxiety in the suspect. Throughout the questioning process, the investigator emphasizes the certainty of guilt so that the suspect will perceive futility in the situation and confess (Costanzo & Leo, 2007; Kassin et at., 2010). Two specific interrogation techniques commonly employed with the Reid technique are particularly problematic. In the 4 false evidence ploy, the interrogator confronts the suspect with fabricated evidence indicating that the suspect committed the crime (Kassin et al., 2010). The contrived evidence can be a claim that an eyewitness or co-conspirator has implicated the suspect, a supposed DNA or fingerprint match, or some other strong evidence of guilt. The Supreme Court has declined to invalidate all confessions obtained using false evidence ploys, although their use is one factor to be considered in the totality of circumstances inquiry to determine if the confession was voluntary. (Frazier v. Cupp, 1969). Kassin et al. (2010) found that false evidence ploys have “been implicated in the vast majority of documented police-induced false confessions (p. 12). In a recent meta-analysis of laboratory experiments regarding false confession, Stewart et al. (2018) conducted a meta-analysis of false confession research and also concluded that false evidence ploys increased the rate of false confessions. Reid technique interrogations also often involve implied promises of leniency to coerce confessions. In this scenario, the investigator attempts to minimize the crime by suggesting reduced consequences if the suspect admits guilt (Kassin, 2008). Although express promises of leniency are improper (Arizona v. Fulminante, 1991), confessions based on implied promises of leniency are not automatically thrown out but instead become part of totality of circumstances analysis to determine the voluntariness of a confession (Kassin et al., 2010). Research has shown that minimization tactics which convey an implication of leniency may well lead innocent suspects to confess (Kassin et al., 2010). Problems with the BAI As discussed above, interrogations conducted with the Reid technique put innocent suspects at risk for false confessions and wrongful convictions. Thus, evaluation of a suspect’s performance on the BAI becomes a critical step in the investigation. Based on the BAI results, 5 the investigator must decide whether to presume the suspect guilty and move on to an aggressive interrogation with coercive tactics, or search for another perpetrator. In view of the serious consequences involved, one would presume that the soundness of the BAI has been scientifically validated. Unfortunately, this is not the case. The BAI consists of a series of behavior provoking questions which the investigator asks the suspect. In each case, examples of answers which indicate innocence or guilt are provided for reference. For example, the BIA instructs the investigator to ask the suspect if she committed the crime being investigated. For this inquiry, responses which indicate guilty include a delayed response, evasive response, crossing of the legs, shifting the chair and grooming behavior. On the other hand, the BAI instructs that innocent answers consist of an emphatic denial, immediate denial, and direct eye contact (Massip et al., (2011). Another BIA question asks the suspect what she thinks should happen to the person who committed the crime under investigation. In this case, the BIA instructs that the suspect is guilty if she engages in gaze aversion, frozen posture, or fidgety movements (Kassin et al., 2010). Research has consistently shown that the types of behavioral cues used on the BIA are not indicative of truth and deception (DePaulo et al., 2003). As a result, laypersons are on average only 54% accurate at distinguishing truth and deception. In addition, training in deception detection techniques does not produce reliable improvement in this only slightly better than chance accuracy level. Police investigators, judges, and other professionals perform only marginally better but have higher confidence in their often incorrect decisions (Bond & DePaulo, 2006; Meissner & Kassin, 2002). Research directed specifically at the BIA have reached similar conclusions. Initial studies conducted in-house by Reid affiliated parties reported that the BAI showed some promise in the 6 ability to determine guilt or innocence (Blair & McCamey, 2002; Horvath et al., 1994). However, they have been largely discredited on various grounds (Alonso et al., 2009; Masip et al., 2010; Vrij, 2008). A laboratory study involving a mock crime scenario found no significant difference on most BAI questions between guilty and innocent participants (Vrij et al.,2006). Finally, Massip et al., (2011) concluded that the BIA was essentially a collection of common sense lay beliefs regarding deception which have been repeatedly discredited. In summary, the BIA appears to be a critical part of a flawed police interrogation process which puts innocent persons at risk. Consequences of a false confession The severe consequences to a defendant who falsely confesses cannot be overstated. Because law enforcement personnel are not able to differentiate between a confession which is true or false (Kassin, 2005), a confession by an innocent person can trigger an unfortunate series of events which often leads to incarceration. Thus, a confession can impact the police who stop further investigation (Leo & Ofshe, 1998), prosecutors who refuse to even consider other evidence (Hirsch, 2007) and even defense attorneys who become convinced their client is guilty and will be convicted (Scherr et al., 2020). For those defendants who proceed to trial after confessing, outcome is usually bleak. Noted researchers have described confession evidence as “especially devastating in the courtroom” (Kassin, 2008, p. 209) and so impactful as to make “the other aspects of a trial in court superfluous” (McCormick, 1972, p. 316). Proposed reforms A number of reforms have been proposed to reduce the prevalence of false confessions and resulting wrongful convictions. First and foremost, it has been suggested that the Reid technique with its faulty BAI classification criteria and guilt presumptive interrogation methods be 7 curtailed. While some commentators advocate for the elimination of particular techniques such as the false evidence ploy, minimization of responsibility and implied promises of leniency, others suggest more widespread changes in the culture of police interrogations in the United States (Kassin et al., 2010). As previously noted, the most popular current interrogation model is guilt presumptive and accusatorial, with the goal of securing a confession. A frequently suggested alternative is investigative interviewing, such as the PEACE model used in the United Kingdom (Norris et al. 2021). This method of questioning suspects focuses more on fact finding and is less concerned with obtaining a confession. The objective of the PEACE model is to obtain information which can be used to convict guilty suspects while protecting the rights of the innocent (Kassin et al., 2010). Research has shown that this type of investigative interviewing does not reduce the overall conviction rate convict but does help prevent false confessions (Meissner et al., 2014). Other potential reforms include videotaping all custodial interrogations in their entirety with equal camera focus on the suspect and interviewer, educating defense lawyers and judges regarding the prevalence of and risk factors for false confessions, permitting expert testimony at trials involving a recanted confession, and providing a cautionary jury instruction in such cases (Kassin et al., 2010). 8 References Arizona v. Fulminante, 499 U.S. 229 (1991). Blair, J. P., & McCamey, W. P. (2002). Detection of deception: An analysis of the behavioural analysis interview technique. Law Enforcement Executive Forum, 2, 165–170. Bond, C. F., & DePaulo, B. M. (2006). Accuracy of deception judgments. Personality & Social Psychology Review, 10, 214–234. Costanzo, M., & Leo, R. A. (2007). Research and Expert Testimony on Interrogations and Confessions. In M. Costanzo, D. Krauss, & K. Pezdek (Eds.), Expert psychological testimony for the courts (pp. 69–98). Lawrence Erlbaum Associates Publishers. Ewanation L., & Maeder, E. (2021). The interactive effects of race and expert testimony on jurors' perceptions of recanted confessions. Front Psychol. Sep 3; 12:699077. doi: 10.3389/fpsyg.2021.699077. PMID: 34539496; PMCID: PMC8446190. Frazier v. Cupp, 349 U.S. (1969).