No investigator wants to have his testimony questioned because it is his word against the defendant’s. It is precisely for this reason that the investigator needs to have a witness verify that the investigator’s testimony is accurate. While it sounds like a simple concept, there are important considerations and procedures to follow when having a confession witnessed.
This point became evident in the recent case of Commonwealth v. Miller. In this case, an Appeals court ruled that the trial judge committed reversible error for not holding a hearing to examine the voluntariness of a confession obtained by loss prevention investigators employed by the defendant’s ex-employer. At issue were extremely discrepant accounts of an in-house interrogation of an employee suspected of stealing $1,000.
The two investigators described a “low-key inquiry” of the defendant. They testified that the defendant “vented” during the two hour interrogation, but ultimately broke down and confessed to stealing the missing $1,000. The investigators denied doing or saying anything to threaten the defendant and testified that the defendant did not exhibit any physical manifestations of being threatened or intimidated.
Conversely, the defendant testified that she felt afraid as she was escorted to an unfamiliar room and questioned by two strangers. She described the room as small and said that she felt claustrophobic. According to the defendant, one investigator “loomed over her and made threatening gestures” while the other blocked the door. The defendant claimed that she was denied a request to call her husband or an attorney. She further claimed that the investigators suggested that if she did not confess that the case would be turned over to the police which may result in a conviction which, in turn, could lead to the defendant’s separation from her special needs child.
As to the confession itself, the defendant testified that throughout the writing, editing and signing of the confession she protested her innocence. According to the defendant, the message conveyed to her was that she would not be allowed to leave the room until the papers were signed. At trial, the defendant’s husband testified that his wife was crying and sounded distressed during a phone call to him following the interrogation. This was corroborated by a witness who heard the husband’s side of the phone conversation. A point not contested was that the investigators violated company policy by failing to have a supervisor present during the interview and interrogation of the employee.
Long before devices were available to electronically record interviews and interrogations, investigators utilized a witness to document what happened during an interview or interrogation and to verify that the suspect, in fact, did offer a voluntary and trustworthy confession. The Miller case serves as an important reminder that if an interview or interrogation is not electronically recorded, it is imperative that the investigator follow proper procedures when having a confession witnessed.
It will be helpful to introduce this topic with a fundamental review of the psychology of deception. Everyone lies for exactly the same reason; all lies are motivated to avoid the consequences of telling the truth. The consequences a deceptive suspect fears may involve loss of income or freedom (being fired, going to jail) as well as loss of pride or self-worth (having to face co-workers or a spouse). Consequently, during an interview or interrogation the investigator wants to do everything legally possible to reduce perceived consequences of telling the truth. One of the most important considerations in this regard is to conduct interviews and interrogations in private.
Privacy is considered the single most important psychological factor contributing to the success of an interview or interrogation. Very simply, it is easier for someone to reveal sensitive information to one person than to two people. Furthermore, it is easier to reveal sensitive information to someone who is not associated with consequences than to a person who represents consequences. Would a child rather confess wrong-doing to a parent or a kindly uncle?
In our text books and other web tips we have offered many examples illustrating the importance of privacy. The following experience comes from a recent seminar participant. For many years he conducted loss prevention interviews and interrogations in private, working one on one with employees. He enjoyed great success learning the truth in a private environment and having the employee’s confession witnessed by a supervisor following the interrogation.. This year his employer required that the employee’s supervisor be present during the entire interview and interrogation. The investigator reported that he rarely obtains a confession with the supervisor present during the interrogation.
Because of the importance of privacy, an investigator should do everything possible to conduct interviews and interrogations in such a way that the suspect is only communicating with a single investigator. However, it is also important to have a witness to this procedure. There are two procedures commonly utilized to document a suspect’s confession and the events that led up to it. The first is to have a witness present during the entire interview and interrogation process. Second, the investigator can bring someone into the room to witness the confession after it has been obtained. Under most circumstances, it is to the investigator’s advantage not to have a witness present during the entire interview and interrogation. An exception is when there is an obvious liability risk such as when a male investigator interviews a female subject concerning a sexual issue.
If a witness is present during the entire interview and interrogation that person should be someone who is not socially acquainted with the suspect e.g., another investigator, manager from a different department, clerical staff. Furthermore, the witness should sit out of the suspect’s sight and remain silent throughout the interview and interrogation. Certainly, the witness should not be involved in questioning the suspect, i.e., the witness is merely an out-of-sight, uninvolved, observer.
In the Miller case the “witness” was an investigator actively involved in trying to get the defendant to confess. The court recognized that this “witness” was motived to deny that any wrong-doing occurred during the interrogation. A person involved in obtaining incriminating information can hardly be considered an objective, impartial witness to the confession.
If two investigators are present during an interview or interrogation, it is our recommendation that they not “team up” on the suspect where both investigators simultaneously ask questions or make persuasive statements. Rather, one investigator should be the communicator and the other should be an observer. The communicator should be seated directly in front of the suspect and do all of the talking. The observer should be out the suspect’s sight and remain silent. It is acceptable for the investigators to switch roles, where the observer becomes the communicator and vise versa. In doing so, however, the investigators should also switch chairs so the new observer is out of the suspect’s sight. For obvious reasons, if two investigators are involved in obtaining a confession, the witness to the confession should be a third person brought into the room for that purpose following the interrogation.
If the decision is made to not have the witness present during the entire interview and interrogation, the witness would come into the room following the suspect’s confession. It is important that this witness can testify not only that the suspect offered a trustworthy confession, but also that the confession was voluntary. It was the absence of such testimony that greatly contributed to the reversal in the Miller case.
The witness who comes into the room following the confession may be another investigator, the suspect’s supervisor or a manager from a different department. The conversation with the suspect, Randy, would be similar to the following, “Randy, this is Mr. Buckley, my boss. I just want to let him know what you’ve told me this afternoon.” At this point the investigator and witness would face each other and the investigator would repeat the suspect’s confession in the presence of the suspect and the witness, e.g., “Randy told me that he is the person who stole $1,000 from his cash drawer last Friday afternoon. He said that he stole the money at the end of the day at around 5:15, when he was balancing out his drawer. He needed the money because of ...” It is important that while the investigator repeats the suspect’s confession, that the investigator and witness continue to look at each other and not look down at the suspect.
It is improper, and psychologically wrong, to ask the suspect to repeat his confession in the presence of the witness. Under this circumstance, the suspect is unlikely to offer a fully detailed and corroborated confession in the presence of a stranger. However, once the suspect knows that the witness has heard the truth, most suspects will openly discuss their crime. At this stage of the process it is important that the witness independently question the suspect about his crime. The questions the witness asks should develop information to corroborate the suspect’s confession. In addition, because the witness was not present during the entire interview and interrogation, it is important that the witness ask the suspect questions to develop information to demonstrate that the confession was obtained without threats or promises. The following questions would each help accomplish these goals::
“Is everything Mr. Jayne said accurate?”
“Do you have any of the money left?”
“Have you stolen money from the company before this?”
“What bills did you pay with the money you stole?”
“Do you have any complaints about the way Mr. Jayne treated you?”
“Were you threatened in any way today?”
“Did anyone offer you any promises?”
The witness to a confession should be able to testify not only about the suspect’s physical appearance and emotional state following the confession, but also that the suspect’s confession was trustworthy and was the product of the suspect’s free will.
A very troubling aspect of the Miller case is that the defendant claimed that she was protesting her innocence throughout the process of developing the written confession. It is one thing for a defendant to recant a confession at some point after making it – that is not unusual. However, to have a subject state that she was denying committing the crime at the time the confession was being given, edited and signed represents either an incredibly bald-faced lie under oath or a person who was coerced into signing a confession. Unfortunately, in this case no witness was brought into the room to independently assess the suspect’s emotional state, or to elicit information from the suspect about the details of her theft, to find out if she was threatened in any way, had complaints about the way she was treated, etc.
In conclusion, there is no question that the best technique to document the events of an interview or interrogation is a surreptitious electronic recording. When this option is not available, the investigator should have a suspect’s statements witnessed by a person not involved in obtaining the confession. If the witness is present during the entire interview and interrogation, the individual should not be someone personally acquainted with the suspect. Furthermore, that person should sit out of the suspect’s sight. If a witness is brought into the room following the confession, the investigator should repeat the suspect’s confession in the presence of the witness who should then independently question the suspect to obtain corroboration that the suspect, in fact, committed the crime and to elicit information to assess the voluntariness of the confession.
(This article was prepared by John E. Reid and Associates, Inc. as their Investigator Web Tip and was reprinted on our web site and/or distributed to our colleagues with their permission. To view additional Web Tips, go to www.reid.com; select ‘Educational Information’ and ‘Investigator Tip’. To request a copy of a specific ‘tip’ contact Janet Finnerty 1-800-255-5747 ext. 18 or firstname.lastname@example.org.)