Inside the interrogation room.

• Author: Leo, Richard A.

1. INTRODUCTION

   The "gap problem"--the gap between how law is written in the books and how it is actually practiced by legal actors in the social world--has been an ongoing concern to legal scholars at least since the advent of Legal Realism in the 1930s,(1) and has been the focus of countless empirical studies associated with the Law and Society Movement since the 1960s.(2) Nevertheless, the gap in our knowledge between legal ideals and empirical realities remains as wide as ever in the study of police interrogation. Recognizing the source of the gap problem in 1966, the Miranda Court wrote that "interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation room."(3) Linking the gap problem to the secrecy of interrogation, the Miranda Court emphasized the absence of first-hand knowledge of actual police interrogation practices, issuing a clarion call for empirical research in this area.(4) Regrettably, this call has gone almost entirely unheeded in the three decades following the influential Miranda opinion. Although law libraries are overflowing with doctrinal analyses of appellate court cases, there exist no contemporary descriptive or analytical studies of routine police interrogation practices in America. If, as William Hart has written, "no law-enforcement function has been more visited by controversy, confusion and court decisions than that of the interrogation of criminal suspects,"(5) then it is not only surprising but also disturbing to note just how little we know about everyday police interrogation practices in America.

   To be sure, since 1966 there have been a few experimental studies of the social psychology of confessions,(6) several early evaluative studies of the judicial impact of the controversial Miranda decision on confession and conviction rates,(7) and a few socio-linguistic or "conversational" analyses of individual police interrogation transcripts.(8) But unlike their English counterparts,(9) American scholars have almost altogether ignored or avoided the empirical study of police interrogation practices and criminal confessions. In legal scholarship, there have been no empirical studies of police interrogation practices since the late 1960s.(10) Instead, law professors, lawyers, and law students have created a formidable law review literature that focuses almost entirely on the doctrinal and ethical aspects of interrogation and confession case law, rather than on the routine activities of legal actors and institutions.(11) Since traditional legal scholarship is based on an analysis of leading cases--which are unrepresentative of the larger universe of court cases and thus may depict atypical police practices as the norm--this literature is by itself both narrow and misleading. In short, we know scant more about actual police interrogation practices today than we did in 1966 when Justice Earl Warren lamented the gap problem in Miranda v. Arizona.

   This Article, which is the first in a two-part series, will attempt to fill in some of the gaps in our knowledge of routine American police interrogation practices by describing and analyzing the characteristics, context, and outcome of interrogation and confession in ordinary criminal cases that are not likely to make the published record on appeal. The second Article will analyze the impact of the Court's ruling in Miranda v. Arizona on the behavior, attitudes, and culture of American police interrogators in the last thirty years.(12) Both articles are based on nine months (more than 500 hours) of fieldwork inside the Criminal Investigation Division (CID) of a major, urban police department I shall identify by the pseudonym "Laconia,"(13) where I contemporaneously observed 122 interrogations involving forty-five different detectives. In addition, I viewed thirty videotaped custodial interrogations performed by a police department I shall identify by the pseudonym "Southville"(14) and another thirty video taped interrogations performed by a police department I shall identify by the pseudonym "Northville."(15) For each interrogation, I recorded my observations qualitatively in the form of fieldnotes and quantitatively with a forty-seven question coding sheet. Thus, my field research represents a more general, multi-faceted and methodologically diverse study of the history and sociology of police interrogation in America.(16)

   This Article takes the reader inside the interrogation room to understand the characteristics, context, and outcome of contemporary police interrogation practices in America. It is the only study to do so in more than twenty-five years, and the first ever to do so in any sustained, explicit, or comprehensive manner.(17) I hope to reorient much of the research and discourse on police interrogation practices in legal scholarship from is near exclusive doctrinal (or "law-on-the-books") focus to a more empirically-grounded (or "law-in-action") perspective, which I believe is necessary to inform the legal, ethical, policy, and theoretical debates in the study of criminal procedure.

   In Part II of this Article I discuss the potential sources of bias in my data and how I attempted to overcome them. In Part III, I quantitatively describe and analyze the patterns in police techniques, suspect behavior, and interrogation outcomes in all of the 182 cases I observed.(18) In Part IV, I analyze the effects of police interrogation practices, Miranda warnings, and incriminating statements on the subsequent stages of the criminal process, such as the adjudication of guilt, case disposition, and sentencing. Finally, in Part V of this Article I offer some concluding thoughts on the findings of this study.

2. METHODOLOGICAL CAVEAT: OBSERVER EFFECTS AND THE PROBLEM OF BIAS(19)

   Participant observation may be the ideal method to get as close as possible to the phenomena the researcher intends to analyze and understand. This has been one of the underlying methodological assumptions in my empirical study of American police interrogation practices.(20) However, the problem of studying naturally occurring data confronts the participant observer. Consequently, the participant observer cannot control the parameters of his research nor the effects of his behavior on the research subjects.

   It is a methodological truism that the field researcher inevitably influences the environment in which he participates during the very process of observation.(21) These so-called "observer effects" may "con laminate" the data that the participant observer seeks to collect. In the context of my research, my presence may have altered the behavior of the detectives during the custodial interrogations I observed. Indeed, whether the participant observer alters the behavior of law enforcement officers by his mere presence is a classic methodological problem that has bedeviled sociologists of policing since Westley's groundbreaking field research more than forty years ago.(22) It stands to reason that the presence of a third party influences police behavior, yet the precise outcome of this effect is often difficult, if not impossible, to accurately assess since participant observers usually lack any independent or hidden controls.

   I do not believe that my presence in the interrogation room significantly altered the behavior of the detectives I observed. Although I will never know the true effect of my presence, I offer the following observations. First, I sometimes put my ear to the door and listened to those interrogations from which I was purposely excluded, and each time the Miranda warnings were given properly. Nor did I overhear any threats or promises. Conversely, I occasionally observed behavior inside the interrogation room--such as yelling, table pounding, or highly aggressive questioning--that straddled the margins of legality. After one such interrogation, one of the two interrogating detectives informed me that he could be fired if I reported his behavior to the Captain. As we will see in Part III of this Article, I viewed a few interrogations that were clearly "coercive" by the standards of contemporary appellate courts. In one of these interrogations, the primary detective ignored the suspect's repeated invocations of his Miranda rights to silence and counsel, though ultimately the detective failed to convince the suspect to talk. After the interrogation session, the detective asked me what I thought he could have done differently to elicit admissions. When I responded that it did not matter since any subsequent confession would have been suppressed by the court, the detective casually replied that neither one of us would have remembered the Miranda violations in court. That one of the detectives could so naturally assume that I would perjure myself to advance the cause of crime control is, I think, good evidence that my presence, at least in some instances, had little effect on the interrogation practices I was observing.(23)

   Second, the more time I spent inside the CID, the more the detectives became accustomed to my presence. As I became part of the "furniture" inside the Laconia Police Department (LPD), the detectives frequently treated me as one of their own. They would, for example, describe their cases to me by penal code sections or their actions by police codes or jargon, apparently forgetting that I did not know what they meant. In addition, many of the detectives shared with me explicitly confidential information about their co-workers or superiors, information whose exposure could have damaged their reputations, if not their careers, within CID. At the same time, detectives told me of their own indiscretions and sometimes questionable behaviors, for which they could have been administratively sanctioned, and in some instances held civilly liable, had I publicly revealed their confidences. In a sense, then, I became the...