A criminal defense attorney will often ask his client why he confessed or gave a statement to the police, particularly after listening to the detective recite the Miranda warnings. Most clients state that the detective was friendly or seemed to be trying to help him out of the jam. Despite the fact that the detective oftentimes charges the client with every offense the facts will support (and some the facts cannot support), the client continues to consider the detective a benefactor of sorts. In Massachusetts, there are few detectives who will treat you fairly, nevermind look out for your best interests.
Massachusetts Criminal Defense Attorney: Interrogations
Once a homicide detective has identified a possible suspect, his goal is to obtain a confession. There is no more powerful evidence of guilt than the confession. Because courts rule confessions inadmissible in extremely few cases, detectives have been green-lighted to employ, short of physical violence, almost any method to secure a suspect’s confession. Sophisticated detectives are trained to break down a suspect’s resistence to questioning or to confessing by utilizing a number of psychologically coercive methods. These methods include isolating the suspect, confronting him, befriending him, lying to him, baiting him, holding out the possibility that by confessing the suspect can extricate himself from the charges, denying him sleep, denying him food and water, denying him use of a telephone, denying him a lawyer, and denying him contact with family. Over the course of the last twenty to thirty years, police detectives, together with experts in psychology, have pieced together an interrogation methodology that has proven very successful at extracting confessions. Again, as stated elsewhere in this website, if you are arrested by the police, particularly for a serious offense, resist the temptation to speak with the police. Call a Massachusetts criminal defense lawyer before speaking with anyone about the allegations.
“The principal psychological factor contributing to a successful interrogation is privacy – being alone with the person under interrogation.” FRED E. INBAU, ET. AL., CRIMINAL INTERROGATION AND CONFESSIONS, p. 24 (3rd ed. 1986) (this book is regarded as the Bible of interrogation). Typically, only one or two detectives will interrogate a suspect. Obviously, obtaining a confession from a suspect – even a suspect who wishes to unburden himself – before a room full of police personnel is going to be very difficult. By isolating the suspect, the detectives hope to impress upon the suspect that the detectives hold all the power and that resistance to questioning is futile.
The Interrogation Room
While television shows and movies depicting the rooms within which they interrogate suspects as colorful conference rooms, crowded with police memorabilia, make for good entertainment, they are not well designed to elicit confessions from suspects. The experienced detective understands that even the surroundings can give him an edge in extracting a confession from a suspect. Experts suggest that room within which a suspect will be interrogated be quiet, permitting little to no interruptions or distractions. It should be free of “police” memorabilia; the less the room appears associated with the police, the greater the chances of the police keeping the suspect focused on the questioning, keeping the suspect from considering the potential implications of his giving a statement, and, ultimately, obtaining the suspect’s confession. The ideal room should contain nothing that will distract the suspect or loosen the interrogator’s psychological grip on the suspect; as such, it should be of plain color, contain no ornaments, no pictures, no loose objects (such as paper clips or pencils with which the suspect might examine or toy with to lessen his tension) and no windows.
The Baiting Question
The baiting question is, essentially, a trick question designed to elicit from the suspect an incriminating response. The interrogator poses the question in a nonaccusatory manner, as if he is a friend searching for a plausible explanation for evidence implicating the suspect in the crime. Since most guilty suspects are desperate for a way out of their predicament, they abandon their earlier denial and snap up the bait. Unfortunately for the suspect, his answer only serves to tighten about his neck the hangman’s noose. An example of a baiting question:
Bill, you know the crime lab people are running some fingerprints they lifted from the door of the safe. Can you think of any reason why they might find your prints on the safe? I mean, I’m not suggesting that you stole the money. I just want to know if you might have accidentally touched the exterior the safe?
Criminal Interrogation and Confessions (3rd ed. 1986).
The interrogator may employ another form of the baiting question in an attempt to elicit a lie from the suspect. The interrogator asks a question in a manner which suggests that the interrogator is not in possession of any evidence that might contradict a denial from the suspect. If the suspect gives the denial that the interrogator is hoping for, the interrogator will then contrast the suspect’s denial with evidence from another source. This technique, if used successfully, allows the interrogator to gain a psychological advantage over the suspect – who may be stunned by the quick reversal.
Interfering With Suspect’s Attempt to
Speak With a Lawyer
Once a suspect states that he wants an attorney, all questioning by the police must cease until the suspect consults with a criminal defense lawyer. Commonwealth vs. Perez, 411 Mass. 249, 257 (1991); Edwards vs. Arizona, 451 U.S. 477, 484-485 (1981); Miranda vs. Arizona, 384 U.S. 436, 478-479 (1966). To compel the police to allow a suspect/arrestee to contact a lawyer or family, Massachusetts passed a law requiring the police to notify a suspect, upon arrival at the police station, that he has the right to use a telephone and to allow him access to a telephone within one hour thereafter. Detectives are absolutely forbidden from obstructing a suspect’s attempts to reach a lawyer. There are few exceptions to these rules. Massiah vs. United States, 377 U.S. 201 (1964). Detectives know that a lawyer will advise a client/suspect to assert his 5th Amendment right to silence – ending the chase. Although reprehensible and without justification, many, if not most, detectives ignore the law and take affirmative steps to prevent a suspect from speaking with family or a lawyer while they interrogate him.
Like menacing wolves circling desperate and maybe defenseless prey, detectives will cut off any available avenue of escape – and a lawyer represents just such an avenue. The detectives arresting a suspect at night have until only morning to make the kill. At 9:00 a.m., they’re required to turn the suspect over to the court for arraignment and certain appointment of a lawyer. Until morning, to these detectives, safeguarding the prey supercedes the constitution and the law. Later, during a hearing on a motion to suppress the confession because of police illegalities, these detectives will commit perjury, if necessary, to assure the court that they fully complied with the law and the constitution. These detectives are confident that the judge will credit their testimonies and deny the motion to suppress. In reality, judges rarely disbelieve obvious police perjury and very rarely suppress confessions – particularly in first-degree murder cases.
Examples of detectives interfering with a suspect’s right to consult with a criminal defense lawyer include:
- Commonwealth vs. Christina Martin, (1992): Though Martin asserts her right to counsel when arrested in Canada and even speaks with a Canadian lawyer, Massachusetts detectives illegally question her once they pick her up at the airport.
- Commonwealth vs. M.L., (2001): State Police & Fitchburg Detectives ignore Defendant’s pleas for a lawyer (“there’s none available right now”) and for sleep, interrogate him relentlessly for six hours (until 5:10 a.m.), offer him neither food nor water, and, illegally refuse to advise him of his right to use a telephone.
- Commonwealth vs. Sherman, 389 Mass. 287 (1983): Police refuse both to honor lawyer’s request to be present during interrogation and to inform suspect of lawyer’s request.
- Elfadl vs. Maryland, 61 Md. App. 132 (1985): Police refuse to allow lawyer retained by suspect’s wife to communicate with him and to inform suspect of lawyer’s presence.
- Lewis vs. State, 695 P.2d 528 (Okla. 1984): Sheriff intentionally misdirects lawyer, retained by defendant’s parents, throughout jail and courthouse while suspect being interrogated within building.
- People vs. Smith, 93 Ill. 2d 179 (1982): Police refuse to allow lawyer access to suspect, falsely claiming that the suspect would not be interrogated in the near future because he was undergoing drug withdrawal.
- State vs. Hanes, 288 Or. 59 (1979): When police learn that a lawyer retained by suspect’s wife on way to meet suspect, police move suspect to undisclosed location.
- Commonwealth vs. Hilliard, 471 Pa. 318 (1977): Police lie to lawyer that suspect not in custody. Later, police deny lawyer access to suspect until suspect confessed.
- Commonwealth vs. McKenna, 355 Mass. 313 (1969): Police lie to lawyer about suspect’s whereabouts and neglect to inform lawyer that suspect already being interrogated
- State vs. Beck, 687 S.W.2d 155 (Mo. 1985): Police, at prosecutor’s direction, fail to honor suspect’s lawyer’s request to be notified when suspect arrested.
Kevin J. Mahoney is a Cambridge, Massachusetts Criminal Defense Lawyer and author of Relentless Criminal Cross-Examination.