Criminal Interrogation and Confessions, 3d ed.

• Author: Grano, Joseph D.
• Position: Review

SELLING THE IDEA TO TELL THE TRUTH: THE PROFESSIONAL INTERROGATOR AND MODERN CONFESSIONS LAW(*)

By Fred E. Inbau, John E. Reid, and Joseph P. Buckley. Baltimore: Williams & Wilkins. 1986. Pp. xvii, 353. $28.50

Of necessity, therefore, interrogators must deal with criminal suspects on a somewhat lower moral plane than that upon which ethical, law-abiding citizens are expected to conduct their everyday affairs. That plane, in the interest of innocent suspects, need only be subject to the following restriction: Although both "fair" and "unfair" interrogation practices are permissible, nothing shall be done or said to the suspect that will be apt to make an innocent person confess. [p. xvii] I share the view that not many innocent men (at least those of average intelligence and educational background) are likely to succumb to these "methods of debatable propriety." But how many innocent men are likely to be subjected to these methods? How "tough" would the American lawyer's reaction be if he had some notion of "the price" we pay in terms of human liberty and individual dignity?(1) I. INTRODUCTION

The third edition of Criminal Interrogation and Confessions is a book in two parts. The first part, an instruction manual, strives to teach professional interrogators how to obtain a confession from a guilty suspect who is not inclined to confess. The second part contains an analysis of the law pertaining to police interrogation. Touted as "an entirely new book" (p. v), the third edition, particularly in the first part, actually replicates much of what is found in the earlier editions. The organization, however, is much more elaborate: while the second edition, for example, simply listed from A to Z the tactics and techniques for successful interrogation,(2) the third edition has rearranged these tactics into "nine steps to effectiveness" (pp. 77-84).(3) Beginning with immediate efforts to "disarm" the suspect from the moment the interrogator is introduced (p. 84-85), moving deliberately to the "critical stage" when the increasingly apprehensive suspect has become indecisive about whether he should continue to lie (p. 159), proceeding quickly thereafter to the suspect's first admission of guilt (pp. 165-70), and concluding with a detailed oral and then written confession (pp. 171-78), the new organization offers the interrogator a systematic strategy for "selling the suspect on the idea to tell the truth" (p. 154).

While the authors' suggested interrogation tactics, even if refined and rearranged, have remained largely the same, each edition of this book has come forward against a different backdrop of constitutional law. Because then prevailing due process doctrine made denial of counsel merely one factor to consider in a voluntariness determination,(4) the first edition, published in 1962, appropriately could suggest means to dissuade a suspect from persisting in an expressed desire to remain silent or to consult a lawyer.(5) Escobedo v. Illinois(6) and Miranda v. Arizona,(7) however, prompted a second edition just five years later. Although the embittered authors conceded that the police had a legal and moral obligation to comply with the strictures of these new cases, they also insisted that most of the first edition's tactics still could be used after such compliance.(8) Nevertheless, the authors had doubts and fears:

If we are in error with regard to our interpretation of the Miranda case, then the Supreme Court has but one more move to make, and that is to outlaw all interrogations of criminal suspects. We say this because of our confidence that effective interrogations can only be conducted by such procedures as the ones we herein describe.(9) As the authors recognize in the preface to the third edition, the law governing police interrogation has changed considerably since they expressed these fears (p. v). Miranda remains alive, but the present Supreme Court has signaled clearly that it will not make "one more move" to eliminate police interrogation.(10) Indeed, those who worship at Miranda's shrine view several of the Court's recent decisions as the prelude to Miranda's ultimate demise.(11) Emboldened by these recent developments, the authors now confidently urge the police to read Miranda more narrowly than they suggested in the second edition.(12)

While the authors have good reason for much of their confidence, the third edition nevertheless should leave informed readers with an uneasy sense that a fundamental tension exists between the book's suggested tactics and the underlying principles, if not the most recent holdings, of modern confessions law. The interrogation tactics the authors advocate do not comfortably coexist with the normative foundations of cases like Escobedo and Miranda, even as narrowly read. Similarly, as the introductory quotations to this essay illustrate, the philosophy of the authors is poles apart from that of Miranda's most passionate defenders, such as Professor Yale Kamisar.(13) While the authors continue to insist on compliance with Miranda, their view of the function and proper scope of police interrogation is clearly not the view of Miranda and its defenders.(14)

The present Supreme Court would not have spawned Miranda. Nevertheless, perhaps because of institutional considerations, the Court seems disinclined to take the drastic step of overruling Miranda and rethinking the basic premises of confessions law. Although judicial restraint is usually praiseworthy, in this context it can only assure continuation of the tension between Miranda's philosophical assumptions and those that to a large extent the present Court and the authors share. Moreover, the Court's failure to resolve this tension increases the likelihood that a future Court will take the step that worried the authors twenty years ago, for someday the tension will have to be resolved.

In section II of this essay, I attempt to illustrate the tension between the authors' suggested tactics and premises of modern confessions law. My purpose is to show that the authors' approach to police interrogation is pervasively, not just occasionally, inconsistent with both strands of thought that have influenced current legal doctrine. Section III critiques these two strands of thought and argues that the tension should be resolved by rejecting the premises of modern confessions law.(15)

2. THE TENSION BETWEEN PROFESSIONAL INTERROGATION AND THE PREMISES OF MODERN CONFESSIONS LAW

   Putting aside specific doctrinal holdings and concentrating on philosophical underpinnings, two strands of thought have influenced modern confessions law. The first, most apparent in sixth amendment cases but infecting fifth amendment cases as well, is that a suspect needs and should have assistance in matching wits with the police during interrogation.(16) The second, most prevalent in fifth amendment cases, is that a custodial suspect needs and should have protection against the pressures to confess that are generated by interrogation. For those who typically applaud Warren Court decisions, these strands are not separate and independent but rather interrelated expressions of what human dignity requires.(17)

   1. POLICE INTERROGATION AND INTELLIGENT CHOICE

      Although Escobedo v. Illinois(18) has little vitality today as a sixth amendment case,(19) its reasoning, which illustrates the first strand of modern confessions thinking, still exerts influence. After the police confronted Escobedo with an accomplice who accused him of the fatal shooting, Escobedo responded that the accomplice, not he, had fired the shots. The Supreme Court sympathetically observed that Escobedo as a layman undoubtedly was unaware that his admission of complicity was as damaging as an admission that he had fired the fatal shots.(20) The Court stated that Escobedo needed counsel's legal aid and advice, because what resulted during the interrogation could affect the later trial.(21) Absent the right to counsel's advice, the trial would be "no more than an appeal from the interrogation," with conviction virtually assured by the suspect's confession.(22)

      We can appreciate how remarkable this reasoning is only by focusing clearly on the evils the Court identified as warranting relief. The primary evil is the suspect making an uninformed and unintelligent decision to confess. To assure an informed and intelligent decision, one that comports with the suspect's best interests, counsel should be present to provide aid and advice. A second evil is the police obtaining evidence from the suspect that will help assure his conviction. The suspect will not have much chance of mounting an effective defense at trial--that is, of winning an acquittal--if he confesses, and for some reason, not articulated, this is undesirable even when the suspect is guilty.(23)

      If these concerns are legitimate, the tactics the authors advocate should have no place in our law. Indeed, if one takes Escobedo's reasoning seriously, all police interrogation should be prohibited until the defendant has had an opportunity to consult with a lawyer. Under Escobedo's constitutional vision, we cannot rest comfortably with a system that permits the availability of legal assistance to turn on the suspect's hurried response to a less than enthusiastic police warning. Indeed, the procurement of legal advice must depend in such a system more on chance than on a reasoned exercise of judgment.(24) Of course, as the authors and others know, provision of counsel to all defendants before interrogation would facilitate intelligent choice only by virtually eliminating the possibility of confessions, for the only advice a competent lawyer typically will give, particularly if the suspect is guilty, is not to make a statement. This, however, is the necessary price of taking Escobedo seriously.

      To avoid having to justify either Escobedo's premises or our tolerance of unexacting waivers, some may be willing to accept the present system...