When questioning individuals, officers should:
- (a) minimize the length of questioning;
- (b) avoid leading questions and disclosing details that are not publicly known;
- (c) avoid threats of harm to the individual or others or, conversely, avoid making promises of benefits to the individual or others;
- (d) avoid the use of deceptive techniques that are likely to confuse or pressure suspects in ways that might undermine accuracy of evidence;
- (e) ensure the individual has access to basic physical and personal needs, including food, water, rest, and restrooms; and
- (f) not question the individual in an environment that is unduly uncomfortable.
Comment:
a. General. As stated in § 11.01, the objectives of police questioning are to obtain accurate information while minimizing coercion and respecting legitimacy, dignity, and fairness values. Any police questioning inherently involves some degree of coercion; the goal should be to minimize such coercion in order to improve the accuracy of the information obtained and to protect the rights and the dignity of individuals. Although the U.S. Constitution requires that a confession be voluntary and not overbear a person’s will (considering the totality of the circumstances), constitutional law provides little clear guidance to officers regarding their conduct in questioning suspects. This Section adopts the view that officers have an obligation, independent of any obligation imposed by the Constitution, to assess an individual’s potential vulnerability to both suggestion and coercion. Members of vulnerable populations, such as juveniles and individuals with mental-health issues, should be questioned with an even greater degree of care. The need to question with care and respect, and to minimize undue coercion, is still greater for witnesses who are not suspects, and who are not being accused of criminal involvement.
b. Length of questioning. Interrogations should be limited to the minimum amount of time required to obtain the information needed. In general, interviews and interrogations should not be conducted for more than three hours in one sitting. Shorter periods may be appropriate for vulnerable suspects, such as juveniles. Officers also should be attentive to the time of day and whether the suspect may be sleep deprived, as sleep deprivation creates risks for suggestiveness and false confessions.
c. Avoiding the use of leading questions. An interviewer or interrogator normally should not lead the subject, but rather should ask open-ended questions designed to elicit the most accurate and detailed information possible. An interview should be conducted in a manner that encourages a productive exchange of information. Officers should make in advance a checklist of key nonpublic facts, as part of the investigative file, which should not be disclosed during the investigation. During questioning, officers should ask only open-ended questions concerning itemized key facts that the culprit of the crime would be expected to know. Asking leading questions concerning facts that are important in an investigation can contaminate the record, because it cannot be later assessed whether the suspect could have volunteered that information. Taking care to avoid disclosing those key facts will provide powerfully probative evidence of the reliability of any statement, if a person volunteers key nonpublic facts without prompting.
d. Threats of harm. Threats of harm should not be employed. For example, officers should not, in an effort to pressure a witness, threaten loss of child custody or arrest of a relative. Although some courts have admitted interrogations and confession statements despite threats of harm that officers make, such threats, whether directed at an individual or others such as family members, may cause unnecessary distress and render a statement unreliable. Because they also are implicit threats of harm if a statement is not forthcoming, promises of benefits such as leniency, to the individual or to others, also should not be used as inducements.
e. Deception. Deceptive tactics should be avoided to the extent that they risk the accuracy of evidence, contribute to the possibility of false confessions, create a less reliable record, and harm the legitimacy of investigations. Although some types of mild use of deception, such as expressing sympathy for the defendant’s situation, may not raise such concerns, officers should avoid deceptive practices that are likely to confuse or pressure suspects in ways conducive to false confessions.
Courts conducting a constitutional analysis consider deception as one factor in the totality of the circumstances inquiry. Although courts often have tolerated some forms of deception, including lies about the evidence available to the police, agencies and police training increasingly counsel against use of severe forms of deception, and in particular the use of false evidence, during interrogations. Scientific research has demonstrated that deception, or any misrepresentation or misinformation, can have a significant impact on one’s beliefs and memory. Use of false evidence, such as fictional accounts that lead suspects to believe that DNA conclusively ties them to the crime, that an eyewitness has identified them as the perpetrator, or that another suspect has called them a fellow conspirator, are especially likely to increase both the risk of false confessions and of the police receiving unreliable information from a guilty suspect; they also can be highly coercive, and can harm the legitimacy of investigations.
f. Deprivation of food, water, and restroom access, and other unduly coercive practices. Deprivations of food, water, and restroom access, among many types of actions and environments that persons would find uncomfortable or harmful, are highly inappropriate. Such conduct should never occur, either for suspects or for witnesses. Persons who belong to vulnerable populations may have still greater sensitivity to environmental conditions and additional care should be taken with them. The named types of unduly coercive practices are illustrative; this Section does not constitute an exhaustive list. Nor does this list highlight still more abusive and obviously coercive practices such as the use of physical torture, which should not be permitted.
Reporters’ Notes
The U.S. Supreme Court’s “voluntariness” test assessing coercion during custodial interrogations is not adequate to, or even intended to, inform sound police practices or assess or safeguard the reliability of interrogations. Dickerson v. United States, 530 U.S. 428 (2000). The topics addressed in this Section relate to concerns sometimes expressed by the courts, but rarely addressed in a clear way.
To provide an example, the U.S. Supreme Court has not regulated with any care the length of interrogations. The Court has noted that “there is no authority for the proposition” that an interrogation that is three hours long “is inherently coercive.” Berguis v. Thompkins, 560 U.S. 370, 387 (2010). In contrast, policing experts recognize that length of interrogations must be carefully monitored. Even the Inbau and Reid treatise recommends that interrogations not typically last more than three hours (now “three or four” hours). Fred E. Inbau et al., Criminal Interrogation and Confessions 422 (4th ed. 2001) The Fifth Edition states that “for the ordinary suspect” a “properly conducted interrogation that lasts 3 or 4 hours” would not constitute “duress.” Fred E. Inbau et al., Criminal Interrogation and Confessions 347 (5th ed. 2013). For those reasons, this Section counsels minimizing the length of police questioning. In addition, researchers have examined how sleep deprivation caused by lengthy interrogations can increase the susceptibility of suspects to police pressure and suggestion. Mark Blagrove, Effects of Length of Sleep Deprivation on Interrogative Suggestibility, 2 J. Experimental Psychol.: Applied 48, 56 (1996) (studying effects of sleep deprivation).
This Section counsels avoiding asking leading questions. That is particularly crucial as to key pieces of information, in order to ensure that the individual can provide that information without prompting. The interrogation training materials, originally written by Fred Inbau and John Reid, and now in their Fifth Edition, are emphatic on this point: it is crucial not to ask leading questions that potentially contaminate confession evidence. Inbau and Reid have called it “highly important” to “let the confessor supply the details of the occurrence.” Fred E. Inbau et al., Criminal Interrogation And Confessions 367 (4th ed. 2001). Thus, “[w]hat should be sought particularly are facts that would only be known by the guilty person.” Id. at 369. The current Fifth Edition slightly modifies that language but makes the point equally emphatically. See Fred E. Inbau et al., Criminal Interrogation And Confessions 315, 355 (5th ed. 2011) (“It is highly important . . . that the investigator let the confessor supply the details of the occurrence, and to this end, the investigator should avoid or at least minimize the use of leading questions” and “the lead investigator should decide and document on the case folder what information will be kept secret.”). A further best practice involves holding back key facts and ensuring that they are carefully documented in the officers’ files as important and not to be released to the public. As noted, if those facts are then disclosed by the suspect voluntarily and without prompting, the statement can provide particularly probative evidence of guilt. See also Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051, 1066-1067 (2010) (describing police training on avoiding contamination).
Use of non-leading questions to solicit information in an open-ended way is the basis for what are called Cognitive Interviewing techniques, which have been researched and found to produce improvements in the recollection of witnesses. The Cognitive Interview was developed several decades ago by Ron Fisher and Ed Geiselman in response to requests from law enforcement for improved methods to interview witnesses. Ron P. Fisher & Ed R. Geiselman, Memory Enhancing Techniques for Investigative Interviewing: The Cognitive Interview (1992). These techniques focus on permitting the witness to provide as much information as possible. They are based on principles designed to retrieve information from memory with completeness and accuracy. A series of laboratory experiments and field tests have documented that these techniques produce more complete and accurate information about events, whether in policing situations, eyewitness recall, or events in corporate environments. See, e.g., Amona Memom, Christian Meissner & Joanne Fraser, The Cognitive Interview: A Meta-Analytic Review and Study Space Analysis of the Past 25 Years, 16 Psychol. Pub. Pol’y & L. 340 (2010). Such techniques may be far preferable not just for interrogations, but for interviews, including with witnesses who want to cooperate but who might have difficulty recalling events, as all witnesses will. Jillian R. Rivard et al., Testing the Cognitive Interview with Professional Interviewers: Enhancing Recall of Specific Details of Recurring Events, 28 Appl. Cogn. Psychol. 917 (2014).
Psychologists have long recommended that a range of unduly coercive and deceptive techniques be discontinued during interrogations. Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3 (Feb. 2010). Legal scholars also have called for the end to techniques such as deception. See Miriam S. Gohara, A Lie for a Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques, 33 Fordham Urb. L. J. 791 (2006); Jennifer T. Perillo & Saul M. Kassin, Inside Interrogation: The Lie, The Bluff, and False Confessions, 35 Law & Hum. Behav. 327 (2011).
Deception during interrogation can take many forms. Officers may use relatively innocuous forms of deception, such as phony pleasantries, or they may concoct rationalizations that they hope will coax a confession (“It might have been self-defense”), or they can resort to more complex deception, such as false evidence ploys. Courts evaluate these techniques under a totality of the circumstances test, which tends to grant officers a great deal of leeway in interrogation settings. As a result, judicial rulings have been fairly deferential to the use of deception. See, e.g., Illinois v. Perkins, 496 U.S. 292, 297 (1990) (referring to deception as “strategic,” and not “ris[ing] to the level of . . . coercion to speak”); State v. Rettenberger, 984 P.2d 1009, 1015 (Utah 1999) (deception must be “sufficiently egregious to overcome a defendant’s will so as to render a confession involuntary”). See generally, Paul Marcus, It’s Not Just About Miranda: Determining the Voluntariness of Confessions in Criminal Prosecutions, 40 Val. U. L. Rev. 601, 612-614 (2006) (reporting cases upholding police lies about “witnesses against the defendant, earlier statements by a now-deceased victim, an accomplice’s willingness to testify, whether the victim had survived an assault, ‘scientific’ evidence available, including DNA and fingerprint evidence, and the degree to which the investigating officer identified and sympathized with the defendant”). Generally, only deception that clearly is likely to cause a false confession finds disfavor in the courts. See, e.g., People v. Thomas, 8 N.E. 308, 317 (N.Y. Ct. App. 2014) (“The various misrepresentations and false assurances used to elicit and shape defendant’s admissions manifestly raised a substantial risk of false incrimination”). For the same reason, deception is less likely to be tolerated when the suspect is a particularly vulnerable suspect. See, e.g. Ex parte Hill, 557 So.2d 838, 841 (Ala. 1989).
Despite the courts’ generally lenient approach to interrogation, law enforcement agencies do not commonly use highly-deceptive techniques. For example, Saul Kassin and Richard Leo’s survey of officers found that, while on average police “appeal to the suspect’s self-interest,” “offer sympathy, justification or excuses,” or “pretend to have evidence of guilt” in roughly 10% of interrogations, the most common techniques by far simply involve isolation of the suspect and confrontation with actual evidence, during questioning that lasts on average of 1.6 hours. See Saul M. Kassin and Richard A. Leo, Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs, 31 Law & Hum. Behav. 381 (2007). In the vast majority of interrogations, no special technique is needed to gain a confession. See Brent Snook at al., The Next Stage in the Evolution of Interrogations: The PEACE Model, 18 Can. Crim. L. Rev. 219, 236 (2014) (finding the confession rate to be similar whether manipulative questioning or a non-deceptive confrontation technique was used).
Further, police training discourages the use of the more manipulative techniques. The leading treatise on interrogation techniques counsels that deception “represents a continuum of false representations, ranging from demeanor and attitude to outright lies concerning the existence of evidence.” Fred E. Inbau Et Al., Criminal Interrogation and Confessions 351 (5th ed. 2013). Although that treatise sanctions some forms of deception, it also cautions that certain fabrications, including the presentation of false evidence, combined with other incentives, makes it “much more plausible that an innocent person may decide to confess,” and concludes that fictitious evidence should only be presented to the suspect “as a last resort effort.” Id. at 352. Further, the treatise emphasizes, such false evidence ploys should never be used with juveniles or those with diminished mental capacity: “These suspects may not have the fortitude or confidence to challenge such evidence and, depending on the nature of the crime, may become confused as to their own possible involvement.’’ Id.
A large body of scientific research emphasizes that misrepresentation of reality to subjects can alter beliefs, behavior, emotional states, event memories, physiological states, and visual memories. As Professor Kassin and his colleagues have stated, “generations of behavioral scientists” have accepted the scientific conclusions that people are “highly responsive to reinforcement” and that false information affects memory and behavior. Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3 (Feb. 2010). Thus, “[s]cientific evidence for human malleability in the face of misinformation is broad and pervasive.” Id. See also Elizabeth F. Loftus, Planting Misinformation in the Human Mind: A 20-year Investigation of the Malleability of Memory, 12 Learning & Memory 361 (2005).
In an interrogation setting, deception can affect reliability in a number of different ways. Forensic literature on confessions has shown how deception can cause innocent suspects to believe that they did something wrong or that they will be able to prove their innocence once interrogation is over. Virtually all of this research finds that deceptive techniques such as minimizing the impact of a confession significantly increases the risk of false confessions. For just a few examples from the body of experimental work on this topic, see Saul Kassin & K.L. Kiechel, The Social Psychology of False Confessions: Compliance, Internalization, and Confabulation, 7 Psychological Science 125-128 (1996); Melissa B. Russano, Christian A. Meissner, F.M. Narchet, & Saul M. Kassin, Investigating True and False Confessions Within a Novel Experimental Paradigm, 16 Psychological Science, 481–486 (2005); Julia Shaw & Stephen Porter, Deception Can Create False Memories Constructing Rich False Memories of Committing Crime, 26 Psychological Science 291 (2015); Robert A. Nash & Kimberley A. Wade, Innocent but Proven Guilty: Using False Video Evidence to Elicit False Confessions and Create False Beliefs, 23 Applied Cognitive Psychology 624 (2009).
Police deception may interact with other factors to increase the risk of inaccuracy even further. For example, deception may have greater impact during lengthy interrogations, or for vulnerable persons. As a result, psychologists long have recommended that unduly coercive and deceptive techniques, particularly the use of false evidence ploys, be discontinued or curtailed during interrogations. Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3 (Feb. 2010); Jennifer T. Perillo & Saul M. Kassin, Inside Interrogation: The Lie, The Bluff, and False Confessions, 35 Law & Hum. Behav. 327 (2011). Legal scholars also have called for the end to deceptive techniques. See Miriam S. Gohara, A Lie for a Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques, 33 Fordham Urb. L. J. 791 (2006); Julia Simon Kerr, Public Trust and Police Deception, 11 Northeastern U. L. Rev. 625 (2019); Welsh White, Police Trickery in Inducing Confessions, 127 U. PA. L. REV. 581, 581 (1979). For the contrary argument, that police deception could result in fewer confessions by guilty persons, see Laurie Magid, Deceptive Police Interrogation Practices: How Far Is Too Far?, 99 Mich. L. Rev. 1168, 1209 (2001).
Independently of its effect on accuracy, deception during interrogation can be coercive and undermine the legitimacy of law enforcement. The relatively mild forms of deception, such as showing false sympathy or providing rationalizations for the suspect to ponder, probably are not coercive in any meaningful sense. But the false evidence ploy might lead a suspect, especially an innocent one, to believe there is no choice but to confess, including on the ground that police who are willing to manufacture evidence may be capable of much worse. Further, that technique is particularly likely to taint law enforcement. See United States v. Orso, 266 F.3d 1030, 1039 (9th Cir. 2001) (“[M]isrepresenting a piece of the evidence . . . [is] reprehensible.”); State v. Register, 476 S.E.2d 153, 158 (S.C. 1996) (“The misrepresentation of evidence by police is a deplorable practice.”). Some commentators have argued that any form of deception during interrogation is ultimately misguided, because it creates a culture of deceit within the police organization and reduces the ability of the police to obtain cooperation from a distrustful citizenry. See Gohara, supra; Margie Paris, Lying to Ourselves, 76 Or. L. Rev. 817 (1997).
Finally, although interrogation techniques have long been touted as enabling officers to serve as human lie detectors, they have not been proven to do anything of the sort. Any so-called behavioral analysis or reliance on nonverbal or verbal cues from a suspect to detect deception should be used sparingly. Researchers have documented for some time that officers are not actually better than laypeople at detecting deception, and they perform no better than chance. See Saul M. Kassin & Christina T. Fong, “I’m Innocent!”: Effects of Training on Judgments of Truth and Deception in the Interrogation Room, 23 Law & Hum. Behav. 499, 500-501 (1999); Christian A. Meissner & Saul M. Kassin, “He’s Guilty!”: Investigator Bias in Judgments of Truth and Deception, 26 Law & Hum. Behav. 469, 472 (2002).
These Principles emphasize, however, that in addition to the concern with the accuracy of certain highly coercive questioning methods, there is the separate concern that police questioning should ensure legitimacy, respect for dignity, and fairness.