In closing this necessarily truncated discussion of policy considerations attending the new confession rules, some reference must be made to their ironic untimeliness. There is now in progress in this country a massive reexamination of criminal law enforcement procedures on a scale never before witnessed … It is no secret that concern has been expressed lest long-range and lasting reforms be frustrated by this Court’s too rapid departure from existing constitutional standards. Despite the Court’s disclaimer, the practical effect of the decision made today must inevitably be to handicap seriously sound efforts at reform, not least by removing options necessary to a just compromise of competing interests. Of course legislative reform is rarely speedy or unanimous, though this Court has been more patient in the past. But the legislative reforms when they come would have the vast advantage of empirical data and comprehensive study, they would allow experimentation and use of solutions not open to the courts, and they would restore the initiative in criminal law reform to those forums where it truly belongs.
Justice Harlan’s dissenting opinion, joined by Justices Stewart and White, suggests that the Miranda ruling was untimely, and potentially unnecessary, given the “massive reexamination of criminal law enforcement procedures” taking place at the time of the ruling. In retrospect, the justice’s arguments were premature. The manner in which police interact with citizens has sparked past and present debates for the establishment of national policing standards/accreditations aimed at changing the culture of policing in the United States. These calls for police reform have been limited in application and have not included comprehensive (nationwide) police interrogation reform. This is in contrast with police reforms undertaken in other countries, some of which have been discussed previously, as well as measures adopted by the United NationsFootnote 1 and the European Union,Footnote 2 which include provisions for ethical police interviewing practices, access to legal counsel, and special consideration for the needs of L2 custodial suspects, juveniles, and persons with cognitive and intellectual disabilities (see also Reference FeldFeld, 2006; Reference ClearyCleary, 2014; Reference Antaki, Richardson, Stokoe and WillottAntaki et al., 2015).
In light of the issues raised in this book regarding the right to invoke counsel and the use of police interrogation to question an array of suspects, the next sections of Chapter 6 will explore paths to moving forward with police interrogation reform in the United States. Parting from the lessons of other countries that have undertaken reform, it will focus on three key areas: (1) police interrogation techniques, (2) the interview of vulnerable populations, and (3) changes in case law related to the reading of rights, invocation of rights, the use of trickery and deception, as well as the use of confessions to build and prosecute a criminal case. The goal of Chapter 6 is to consider ways in which the issues presented in this book can be revisited to change the current state of police interrogation in the United States. This will require changes across the board: legislative, legal, police interviewing training, and also an acknowledgment of the role of cognitive, cultural, and sociolinguistic factors in police-suspect discursive interactions. Furthermore, this chapter challenges the perception that a suspect’s invocation of the right to counsel, and for that matter the presence of counsel during an interrogation, interferes with police work and with obtaining statements from suspects.
6.1 Police Interrogation Reform: Examining Other Paths Taken
Police interrogation reform in the United States benefits from looking outward: to other countries that have treaded, with varying degrees of success, a path for change. In the United Kingdom, as noted previously, the government legislated the Police and Criminal Evidence Act (PACE), which, among other things, mandated that beginning in 1986 all interviews with suspects would be recorded (e.g., on audiotape). Such electronic recordings provided insights as to what actually transpired in police interviews, including the discursive tactics used by police.
In the years immediately following (i.e., the later 1980s), a few studies were conducted based on such recordings and were later published. In 1992 the United Kingdom Home Office published Reference BaldwinBaldwin’s (1993) groundbreaking research. This research, as well as other studies conducted in the 1980s, showed “that although these mandated, nationwide tape recordings revealed few signs of oppressive interrogating, there was evidently a widespread skills deficit” (Reference Bull, Baker, Mason and RockBull & Baker, 2020, p. 45). These studies recognized that police interviewing required formal (and sustained) training and oversight. As a result, a number of experienced police investigators and psychologists came together to develop the PEACE method of interviewing (see Chapter 3 for a discussion).
Following the UK PEACE model, countries such as Norway, Australia, and Canada implemented their own legislative and police interviewing changes. In Norway, “second jumpers” to the UK’s move from interrogation to investigative interviewing, or PEACE (see Reference Griffiths, Rachlew, Griffiths and MilneGriffiths & Rachlew, 2018), it was Norwegian police practitioners who undertook psychological study that changed the original PEACE approach into KREATIV (see Fahsing & Rachlew, 2009). KREATIV training was heavily influenced by PEACE, including the use of UK experts to educate Norwegian trainers and making it a requirement for all detectives seeking further specialization.
As Reference Griffiths, Rachlew, Griffiths and MilneGriffiths and Rachlew (2018) note, in addition to being a “second jumper” to police interrogation reform in the UK, faster progress was achieved in Norway due to a combination of factors, including: the role of police in initiating and driving change, the methodology being embraced by the National University Police College, the support of stakeholders, such as the General Prosecutor’s Office and a Supreme Court ruling, and that it was driven by police officers who received post graduate studies in forensic psychology:
Throughout the Norwegian refinement of the PEACE model, it has been argued that investigative interviewing necessitates strategic disclosure of evidence for a variety of reasons …, one of them is the suspect’s right to be presumed innocent. The fact that detectives need a strategy stimulating both open mindedness and the retrieval of verifiable information is another.
In the Norwegian model, police investigators are encouraged to test alternative hypotheses and to actively seek information indicating innocence. This is in contrast with a guilt-presumptive mindset overly concerned with lie detection. Ethical principles and following an investigative, rather than prosecutorial, interview approach is key to ending coercive, manipulative strategies aimed at obtaining confessions.
Now, the Norwegian and UK models have also shown “that it takes all areas of the criminal justice system to be pulling in the same direction for transformational change to occur” (Reference Griffiths, Rachlew, Griffiths and MilneGriffiths & Rachlew, 2018, p. 172). Investigative interviewing is not an isolated activity. In both Norway and the UK, police reforms, including police interrogation reform, were driven from within the police and/or in collaboration with academics, such as forensic psychologists and forensic linguists.
Other countries, such as Australia and Canada, also followed the path of PACE/PEACE. In Australia, police agencies are state-based.Footnote 3 The path to police reforms in the state of New South Wales, Australia is particularly noteworthy since it illustrates possible roadblocks to the implementation of police reforms due to the problematic relationship between police, legal, and political institutions. An issue that may also affect police reform in the United States.
In the 1990s, the Wood Royal Commission into the New South Wales Police Service decided that a state of “systemic and entrenched corruption” existed in the police organization. This report led to major reforms that included the appointment of a new Police Commission, changes in police recruitment and education, and increased monitoring and accountability standards. The Commission’s reform program was extensive and substantive, similar to the PACE legislation in the UK, but with an added caveat. The Commission highlighted “the complex relationship between police organizations and the volatile political environments in which they increasingly need to operate” (Reference Chan and DixonChan & Dixon, 2007, p. 443). The research notes that: “The Commission’s list of topics indicates the scale and range of corruption discovered: process corruption; gratuities and improper associations; substance abuse; fraudulent practices; assaults and abuse of police powers; prosecution – compromise or favourable treatment; theft and extortion …, among other circumstances that suggest corruption” (p. 446). For Chan and Dixon, these problems could not be explained in terms of “black sheep” or “bad apples,” but rather, as the Royal Commission reported, a state of systemic and deep-rooted corruption. The findings of the Commission were significant, because it shifted the focus of reform from the traditional “bad apples” simplistic explanations, and fixes (e.g., the firing of corrupt police officers) to the institutional contexts that produced and sustained such culture.
To tackle the Commission’s recommendations a number of long-term solutions were implemented. These ranged from recruitment (e.g., increasing diversity) and education (the investigative interview has been adopted in most jurisdictions in Australia, albeit inconsistently) to changing the culture of policing itself. Although these were important goals, particularly in light of the Commission’s findings, police reform became politicized with police ministers being described as micromanagers. This reflected the Australian government’s commitment to law-and-order (Reference Dixon, Maher, Newburn and SparksDixon & Maher, 2004), a commitment that reassured police officers that their main job is to fight crime, not implement reform. This potential political interference, despite reform initiatives, raises important concerns for police reform in the United States, including the widespread and consistent implementation/training in ethical and effective interviewing practices (e.g., a version of PEACE) across the country.
Another interesting case study is Canada, due to its history with the Reid technique. Canada, as other countries noted previously, has undergone a number of police reforms that have changed the manner in which police officers are trained and recruited. In 2015, the Council of Canadian Academies (the Council), which is an independent, not-for-profit organization that supports independent expert assessments to inform public policy development in Canada, released a comprehensive report to better understand how policing may be carried out more efficiently and effectively in the future. The report addresses numerous areas that need to improve in “twenty-first century policing,” including the changing nature of crime, accountability and legitimacy, improved workforce culture, and safety and security of the web. The latter was an important component of the report, since it addressed cost effective measures in policing as well as present challenges in contemporary policing.
The Council’s report represents the efforts being made in Canada to address justice reform and miscarriages of justice. At present, there are provincial independent civilian oversight bodies that are not involved in local politics that carry the sole authority to decide whether criminal charges should be laid against a police officer. There are also forthcoming changes to civilian oversight of the Royal Canadian Mounted Police (RCMP); possible new requirements on how the RCMP tracks use of force incidents; and how the government will reduce the over-incarceration of Indigenous and black people, as well as addressing concerns of racial profiling. The latter has been a pervasive issue in calls for police reform in the United States.
With regard to police interviewing reform, Reference Snook, Eastwood, Stinson, Tedeschini and HouseSnook et al. (2010) note that: “Poor interviewing has also been associated with miscarriages of justice in Canada” (Reference St-Yves, T. Williamson, B. Milne and S. P. SavageSt-Yves, 2009). For example, the Lamer Commission of Inquiry (2006) into wrongful convictions in Newfoundland and Labrador identified inappropriate interviewing of witnesses as a major concern. In addition, the Federal-Provincial-Territorial Heads of Prosecutions Committee Working Group (2004) identified poor interviewing practices as a potential contributor to miscarriages of justice in Canada” (p. 213). Until recently, Canadian police officers received training in the Reid technique, or some version of it. The Canadian Police College, one of the country’s foremost police-training institutions, now teaches a version of the PEACE method of interviewing. This change was driven by a desire to move away from the accusatory style of the Reid technique of interrogation. In 2015, the RCMP implemented a more conversational style of police interviewing described as a PEACE hybrid that fits the parameters of Canadian law.
The ongoing challenge in Canada, as other countries that have undergone some type of police reform, is to create a standardized approach to police interviewing that is adopted in all jurisdictions. As Reference Snook, Eastwood, Stinson, Tedeschini and HouseSnook et al. (2010) argue because policing is a provincial responsibility, the adoption of national standards is a complex issue, yet given the CACP’s and CPA’s success in promoting reform on other policing initiatives, they are in the ideal position to reform interviewing. Collaboration between researchers and police organizations is also needed moving forward. As Reference TedeschiniTedeschini (2008) notes the application of effective interviewing techniques with lay persons is essential to the proper administration of justice. The implementation of training programs that reflect scientific findings over conventional wisdom, as well as breaking longstanding traditions of senior police officers passing on their techniques, including interviewing ones, to junior officers (see Reference OfsheOfshe, 2007) also requires change. Combatting the confession culture, a problem also afflicting United States policing, is another essential objective of police reform in Canada:
With this type of approach being advocated and utilized over the years by thousands of other trained investigators across North America, it should come as no great shock that research has suggested the existence of a confession culture in the police investigative process that has contributed to miscarriages of justice (Reference Savage, Milne, T. Newburn, Williamson and A. WrightSavage & Milne, 2007). It has also been suggested that the strict adherence to a confession-oriented style of interrogation not only promotes human rights abuses, it may also conceal what amounts to a lack of competency in interviewing techniques (Reference Williamson and T. WilliamsonWilliamson, 2006). In this respect, police investigators have, in my opinion, rightly been criticized for their failure to recognize their primary responsibility – that of information-gatherers (Reference ShuyShuy, 1998).
The case studies presented in this section suggest that most of the reforms required the implementation of new legislation/changes to case law, the adoption of less coercive interviewing practices, and the collaboration between police investigators, lawyers, criminologists, forensic psychologists, and forensic linguists. Factors that are also critical in achieving police interrogation reform in the United States (see Reference Griffiths, Rachlew, Griffiths and MilneGriffiths & Rachlew, 2018).
In the past, calls for police reform in the United States have resulted in attempts to address concerns regarding police profiling and disparate treatment of racialized groups. One such attempt, was the recent police reform legislation, H.R.7120 – George Floyd Justice in Policing Act of 2020,Footnote 4 which ended with no Congressional agreement in 2021. This Act provided a framework to prevent and remedy racial profiling by law enforcement agencies and to limit use of force and use of no-knock warrants, chokeholds, and carotid holds, among other provisions. This legislation, as prior ones, did not make any provisions for police interrogation reform. This despite longstanding research and high-profile cases (e.g., the Central Park Five) in which suspects provided a false confession following police interrogators’ use of coercive interrogation tactics (see Reference KassinKassin, 1997; Reference LeoLeo, 2008; Reference Kassin, Drizin, Grisso, Gudjonsson, Leo and RedlichKassin et al., 2010; Reference GarrettGarrett, 2015). Of note, some efforts have been made at the state level regarding the interrogation of juveniles and at the federal and state levels in the adoption of alternative interrogation methods to the Behavioral Analysis Interview.
At the federal level, some substantive efforts have been made to research best interrogation practices in the aftermath of the 9/11 attacks. As discussed in Chapter 2, since 2009 a government led body called the High-Value Detainee Interrogation Group (HIG) has been assessing research on alternative interrogation methods that do not rely on coercion. The findings of the HIG report provide insights into the use of rapport, open ended/narrative style questioning, and active listening, among other interviewing techniques focused on obtaining cooperation, compliance, and truth detection. The report supports many of the interviewing practices recommended and used in information gathering interview methods, such as PEACE and CI. It also raises questions about its application with criminal suspects within the United States legal framework (see Chapter 3).
Despite the recommendations of the HIG, the report does not mention legislation or policy changes (Reference Griffiths, Rachlew, Griffiths and MilneGriffiths & Rachlew, 2018). The HIG report cannot institute changes to the law or to the training provided to officers at state or local levels:
In order to maximise the influence of psychological theory the HIG research should be targeted at judges and DoJ policy in order to produce real change. The adversarial system only responds to judicial case law. This is shown, in a legal sense by the period before the eventual Miranda ruling (see Reference LeoLeo, 1996b, Reference Leo2008 for a fuller discussion). Therefore, the HIG’s ability to leverage the significant research evidence it has amassed into investigative practice will remain limited unless there is a sea change in the leadership approach.
Other factors limit the effectuation of police interrogation reform in the United States, such as the lack of national legislation mandating the audio or video recording of police questioning of suspects. The latter is essential for both review of police conduct during custodial interrogation and for training and research purposes. Furthermore, significant change in interviewing practices nationally requires leadership, such as that shown by the UK Home Office’s Principles of Investigative Interviewing (Reference SchollumSchollum, 2017). The perspective of senior police investigators, prosecutors, and judges, to the extent that the Code of Ethics of United StatesFootnote 5 judges allow, must also evolve to achieve police interrogation reform in the United States. To this end, the next sections will discuss how these reforms can be adopted to address three key areas: interviewing practices, treatment of vulnerable populations, and the judiciary’s perspective on the existing laws on custodial interrogation.
6.2 From Interrogation to Interviewing: Changing the Perspective in the United States
In the United States, some police stations have started to adopt aspects of the PEACE method of interviewing. Training consultants, such as Wicklander-Zulawski & Associates,Footnote 6 have also discontinued the use of the Reid technique and adopted their own style of rapport-based interviewing. This change, although not yet embraced across all federal and state law enforcement agencies, is a step toward the implementation of comprehensive, noncoercive interviewing practices that emphasize rapport building, ethical conduct, and the use of conversational/narrative style of interviewing. Interviewing tenets such as these are also embodied in the Mendez Principles (Reference Mendez and ArehMendez & Areh, 2021). The latter is an expert-led initiative that recognizes “that the outcome of an interview is interconnected with the full enjoyment of rights by a person at each stage of contact with public authorities – regardless of whether such encounters are labelled as conversations, interrogations, interviews or questioning” (p. 1). The Principles, albeit not designed as a training manual, propose that good interviewing practices should be universalized and shared among professionals in a variety of countries and all legal cultures with the aim to avoid human rights violations and reduce false confessions. As proposed, the Principles can be applied to both suspects and witnesses in military, state, federal, and other types of jurisdictions (e.g., local police stations).
The main areas addressed in the Principles are the Conduct of Interviews, Justice Systems, and Human Rights. The Principles stress that interviewing is instructed by science, law, and ethics. With regard to the conduct of interviews, one of the pillars of the Principles is that interviewers should establish and maintain rapport with interviewees, as building rapport reduces interviewees’ anxiety and stress, and leads to interviewers obtaining more comprehensive, accurate, and actionable information. Procedural standards, such as adhering to the detainee’s legal rights to access counsel and/or to remain silent must also be consistently followed. Effective interviewing requires the gathering of accurate and reliable information to obtain the truth under investigation. This process will require careful planning, an unbiased attitude toward the detainee, and constant (re)evaluation of the effectiveness of the interview. This includes transparency and accountability (e.g., record keeping of all interviews), external oversight, and the observance of all domestic legal frameworks, drawn from international law, such as the right to silence and access to counsel.
The role of effective and ethical interviewing on vulnerable populations is also highlighted in the Principles. A situation of heightened vulnerability can include factors such as age, gender, sexual orientation, nationality or ethnicity, cultural or religious background, difficulties with communication and understanding (language barriers), inability to read and/or write, intellectual disabilities, as well as other factors that may be present with socioeconomic level and immigration status, among other variables. The next section will discuss the role of ethical and nondeceptive interviewing practices when interviewing vulnerable populations, such as juveniles and L2 custodial suspects.
6.2.1 Vulnerable Populations
One of the questions that arise from custodial interrogation training is whether there are substantive differences between how police question adult and juvenile suspects. Research on child development shows there are psychological differences between adult and juvenile subjects that permeate the context of interrogation (see Reference Kostelnik and ReppucciKostelnik & Reppucci, 2009; Reference Meyer and ReppucciMeyer & Reppucci, 2007). Reference Cleary and WarnerCleary and Warner (2016) argue that these differences require further investigation in the interrogation room, particularly due to interrogations with juveniles often being excluded from empirical inquiry due to barriers to data access or other complications owing to legal and confidentiality considerations. The authors add that there is also a “training gap” in the literature on how the law enforcement community trains investigators, legally and tactically, to elicit information from suspects: “Systematic reviews or empirical analyses of interrogation training in the United States are not available, and international data are limited. What is known about modern police interrogation techniques is largely derived from the training manuals of commercially marketed interrogation training programs” (Reference Cleary and Warner2016, p. 271).
In the United States, some programs have been targeted to questioning child victims or witnesses, such as the ChildFirst method (National Children’s Advocacy Center, 2019). These programs adopt an information-gathering approach consistent with the PEACE method. The interrogation of juvenile suspects, however, also requires a targeted approach often not covered in training sessions or manuals. This is concerning in the light that police interrogators in the United States appear to be using the same psychologically coercive interrogation techniques with juveniles as with adult suspects (see Reference Cleary and WarnerCleary & Warner, 2016). This is an issue that could be addressed through training given the apparent association between inadequate police training and practice (see also Reference Meyer and ReppucciMeyer & Reppucci, 2007).
Research on custodial interrogation with juveniles also examines the possible relationship between the invocation of legal safeguards and age, as well as other racial and cultural factors. Reference Kassin and NorwickKassin and Norwick (2004), for example, examine why people, including juveniles, waive their Miranda rights. They note that juveniles may waive their rights due to being “more compliant in response to an investigator’s waiver request than adults” (p. 219). Other factors may also contribute to juvenile and adult suspects’ compliance with police, including racial background with racialized groups having a higher distrust of local police (Reference TaylorTaylor, 2002) and cultural differences (e.g., Asian American Immigrants, Japanese nationals) placing a higher premium on respecting authority (see Reference LandersLanders, 2000). Furthermore, situational influences on the Miranda decision should be considered with juveniles who are subject to sympathy and minimization techniques and contextual factors that may affect invocation of rights, such as amount of in-custody time and access to an attorney or child advocate. The latter is explored in Reference Schoovaerts, Vanderhallen and McIntyreSchoovaerts et al.’s (2021) case study on the role of mandatory legal assistance with juvenile suspect interviews in Belgium.
In 2016, Belgium introduced legislation mandating legal assistance for juvenile suspects. Reference Schoovaerts, Vanderhallen and McIntyreSchoovaerts et al.’s (2021) study examines how lawyers in Belgium fulfill this role in practice. The authors note that there is widespread consensus that juvenile suspects are more vulnerable than their adult counterparts due to their age and, hence, require more protection, particularly during custodial interrogation. In Belgium, frameworks for legal assistance, such as the 2021 Salduz Act (2011), have been implemented in order to minimize the effects, and risks, of interviewing juvenile suspects.
To test whether juveniles benefit from mandated legal assistance, Reference Schoovaerts, Vanderhallen and McIntyreSchoovaerts et al. (2021) analyzed seventeen video-recorded police interviews of juvenile suspects between the ages of twelve and seventeen who were charged with less serious crimes. As the authors note, Belgium is an interesting jurisdiction to consider, since juvenile suspects cannot waive the right to legal assistance and the role of the lawyer is defined as active and specifically trained to provide assistance to juveniles. In this analysis the lawyer’s mandatory presence is overall positive. Most of the interviews followed the information-gathering style and the lawyers adopted a stance which facilitated searching for the truth. The authors, however, stress that there were deficiencies in the lawyers’ approach to legal intervention, particularly when police investigators used subtle pressure tactics.
Reference Schoovaerts, Vanderhallen and McIntyreSchoovaerts et al. (2021) argue that mandatory legal assistance is not enough and needs to be accompanied by training specific to assisting juvenile suspects in custody. Lawyers must also be able to adopt an active role in the interview and react quickly to prevent coercion or misconduct. These measures should improve the lawyer’s effectiveness safeguarding the juvenile suspects’ legal rights. Future studies, however, are needed with a larger sample of juvenile suspects, police questioning of juveniles in other jurisdictions, and juvenile suspects facing more serious criminal offenses. The practicality of these measures, when adapted to other jurisdictions such as the United States, needs to be explored also in light of attorney professional code of conduct considerations.
Another population that requires special attention is suspects who are L2 speakers of the institutional language, such as English. Research on suspects’ comprehension of Miranda rights, in particular, has shown that both L1 and L2 speakers of English have problems understanding their rights. L2 speakers face additional comprehension challenges. Reference Pavlenko, Hepford and JarvisPavlenko et al. (2019), for example, examined the comprehension of Miranda rights by L2 speakers of English. The authors compared understanding of the Miranda rights among native and advanced L2 speakers of English to establish whether standardized assessments can predict comprehension of the rights.
According to Reference Pavlenko, Hepford and JarvisPavlenko et al. (2019), research suggests that around 80 percent of adults and 90 percent of juvenile suspects in custody waive their rights and talk to police without the presence of counsel:
Given that 70% of adult inmates function at or below a sixth grade reading level, it is not surprising that they understand only the simplest sentences … . Nor do they benefit from prior encounters with the police: detainees perform no better than members of the general population on Miranda comprehension instruments (Reference Rogers, Rogstad, Gillard, Drogin, Blackwood and ShumanRogers et al., 2010) and “frequent flyers” (> 40 arrests) fare no better than those with brief criminal histories (< 5 arrests) (Reference Rogers and DroginRogers and Drogin, 2015). When it comes to decision-making, practice does not make perfect either: a study with 80 pretrial detainees revealed that 48.7% did not consider the long-term consequences of waiving their Miranda rights and 43.8% could not generate a single long-term reason for exercising their rights … .
Reference Pavlenko, Hepford and JarvisPavlenko et al. (2019) add that these findings also hold outside the United States. The problems are exacerbated among vulnerable populations (e.g., juveniles, persons with cognitive and/or intellectual disabilities) due to limitations in language skills and memory capacity, poor impulse control, as well as a tendency to be easily manipulated by police interviewers.Footnote 7
L2 speakers also face significant challenges during custodial interrogation, yet few studies have empirically investigated L2 speakers’ ability to understand the rights and make a decision. Two of the main issues placing a barrier to L2 assessment of Miranda comprehension are the assessment principles themselves and the lack of a mandate to require interpreters in custodial interviews with L2 speakers. In contrast with federal and state courts in the United States, the right to an interpreter does not (legally) extend to custodial interrogations. This leaves police officers or other nonprofessional interpreters to provide linguistic mediation, even if they have basic or intermediate level skills in the suspect’s native language. Police officers acting as interpreters also raises questions of biasness, since: “Research shows that officers serving as interpreters still see themselves primarily as interrogators and may perform their add-on duties in a faulty and half-hearted way” (Reference Pavlenko, Hepford and JarvisPavlenko et al., 2019, p. 185).
With regard to Miranda comprehension assessments, Reference Pavlenko, Hepford and JarvisPavlenko et al. (2019) tested the participant’s proficiency using established guidelines, such as the American Council on the Teaching of Foreign Languages (ACTFL) and the Common European Framework (CEFR) tests. The authors note that some of the descriptors of high-level (distinguished) proficiency in the ACTFL test conflate proficiency with education and intelligence, a standard many native speakers never attain. The authors, hence, chose Reference HulstijnHulstijn’s (2011, Reference Hulstijn2015) theoretical framework, which does not relate proficiency with intellectual abilities, and which distinguishes between basic and higher language cognition, BLC (implicit knowledge of linguistic structures) and HLC (peripheral knowledge acquired through education) respectively, and core and peripheral components of proficiency (Reference Hulstijn2015, p. 187). They find that most of the L2 participants in the study failed to understand their Miranda rights and displayed significant disadvantages in both BLC and HLC when compared to native speakers:
Such weaknesses, however, may be invisible to the untrained eye because our participants did exactly what they were expected to do, according to CEFR standards – faced with unfamiliar words, speakers at the level B1 and higher infer their meanings from context, and, faced with complicated sentences, they extrapolate their meanings, using contextual, syntactic and lexical cues … Unfortunately, in the absence of a basic understanding of the US criminal justice system, compensatory strategies useful in academia lead L2 speakers astray in legal contexts – the plausible alternative meanings they infer create “an illusion of understanding.”
The authors add that standardized assessments, including the adaptation of Reference GrissoGrisso’s (1998) Miranda Rights Comprehension Instruments (MRCI) to L2 speakers, should not be used to make decisions about comprehension of Miranda guarantees, since “there is no proficiency level at which L2 speakers are guaranteed to understand their rights” (Reference Pavlenko, Hepford and JarvisPavlenko et al., 2019, p. 201). These findings are also shared by Reference Urbanik, Pavlenko, R. Blackwood and U. RøynelandUrbanik and Pavlenko (2021) who found that even if one proficiency assessment is superior to another, the manner in which rights are delivered, such as the dialogic approach, is key to reducing linguistic guesswork and safeguarding the L2 custodial suspects’ rights. For Urbanik and Pavlenko, what needs to change is how rights are communicated to L2 custodial suspects. This includes dual presentation of the warnings (oral and written), asking the custodial suspect to read each warning out loud, adopting the in-your-own-words requirement, simplifying the waiver and avoiding complex legal jargon, electronic recording of custodial interrogations, and the delivery of rights.
The dual presentation of rights is fairly common in United States policing, but the in-your-own words (dialogic) approach is not. The latter consists of the custodial suspect being asked to restate each right in their own words to ensure comprehension. This is in contrast with the traditional request for comprehension “do you understand these rights?,” which albeit typical in the reading of rights stage of custodial interrogation, may elicit feigned comprehension in the form of agreement, such as “yes.” The dialogic approach was also highlighted in the Guidelines for Communicating Rights to Non-Native Speakers (2012). The Guidelines emphasize that to reduce guesswork, if the custodial suspect is unable to restate in their own words the rights, a professional interpreter should be provided, and the reading of rights stage repeated to ensure comprehension. A point further noted in Reference Urbanik, Pavlenko, R. Blackwood and U. RøynelandUrbanik and Pavlenko (2021):
Since laypeople are rarely able to accurately assess their linguistic needs and the police lack the expertise to determine independently whether the suspect has sufficient understanding of the language in question, the adoption of an in-your-own words requirement offers a working solution to this dilemma. When suspects have difficulties restating the rights in their own words (e.g., when they remain silent or repeat the statement verbatim), a professional interpreter with expertise in legal interpreting should be brought in, even if the suspect had earlier declined the offer of interpreting services. Then, the dialogic procedure needs to be repeated anew, because in and of itself the provision of interpreters and translations does not guarantee comprehension, especially among people unfamiliar with the very cultural assumptions underpinning the right to silence in police interviews.
The recommendation of using professional interpreters in custodial settings is also the focus of a 2006 National Association of Judiciary Interpreters and Translators (NAJIT) position paper Language Assistance for Law Enforcement. This paper emphasizes the need for law enforcement to err on the side of caution and provide a qualified, professional interpreter to L2 speakers subject to questioning, such as custodial suspects. As the paper stresses, the use of a professional legal interpreter minimizes lay person’s lack of comprehension, increases accuracy of police–lay person exchanges, and reduces conflict of interest that may be challenged in court when a nonprofessional interpreter (e.g., a police interrogator) provides linguistic mediation. Of note, the practicality of providing a professional interpreter needs to consider factors such as availability, particularly with languages of limited diffusion, economic and logistic factors, the use of technology (e.g., remote interpreting), and increased recruitment and training that may facilitate this endeavor. Moreover, the need for additional mediation to ensure comprehension of the rights may also require changes in current practicing standards in legal interpreting.
6.3 Legal Reforms
Effective interviewing is grounded in ensuring human and legal rights. The reading of rights provision, albeit part of most interviewing models, is only as strong as the laws protecting such rights. Police interrogators can use the invocation game to manipulate the preferences of suspects, including invoking rights, because case law facilitates the task. Hence, to reform police interrogation in the United States the Court’s perspective on the application of Miranda rights and the use of trickery and deception needs to be revisited.
Legal scholars have approached these legal reforms from a variety of perspectives, ranging from the Court revisiting the Davis ruling to requiring the use of corroborating evidence when suspects give a statement to police. This section will focus on the measures that have been proposed to ensure that custodial suspects’ rights, in particular the right to counsel, are observed. As Reference Kassin and NorwickKassin and Norwick (2004) note: “As the gateway to police interrogation and the production of confessions, which can have far reaching and rippling effects on the disposition of cases (Reference Leo and OfsheLeo & Ofshe, 1998), the invocation or waiver of Miranda is a pivotal choice point in the life of the accused and in the criminal justice system” (p. 213). In context, this statement is particularly noteworthy since past research suggests that four out of five suspects often waive their Miranda rights and agree to questioning (see Reference Leo and WhiteLeo & White, 1999). From a legal standpoint this finding is significant since it suggests that Miranda warnings, and how police interrogators interpret suspects’ invocations of such rights, may not adequately protect suspects from overzealous police investigators – the very purpose of the warnings.
The Court’s approach to Miranda limits coercive police interrogation tactics, but it is not designed to remove the numerous barriers that prompt custodial suspects, even innocent ones, from agreeing to speak to law enforcement and provide a confession. This book has addressed many of the factors that contribute to the ineffectiveness of the Miranda warnings, as practiced, including the cost of lawyer-free, incommunicado custodial interrogation. This is compounded with the law not requiring police officers to provide custodial suspects with information regarding the interview process or their rights that may help in their decision to either provide a statement or invoke their Miranda rights. A matter that exacerbates the already present asymmetry of knowledge between police and suspects in custodial settings.
6.3.1 The Elusive Right to Counsel and Overcoming Legal Barriers: The Inherent Limitations of Miranda and Davis
Since the Miranda and Davis rulings, legal scholars have provided an array of perspectives regarding the effect of case law on a suspect’s invocation for counsel. One perspective is supportive of the Davis ruling, as envisioned by the majority opinion of the Court. Reference YunckerYuncker’s (1995) assessment of Davis, shortly after the ruling, lies on the ineffectiveness of both the application of the per se rule, prior to Davis, and the clarification standard proposed by the concurrent minority opinion. Regarding the clarification approach, Reference YunckerYuncker (1995) argues that it “presented difficulties because it tended to put the power to invoke the right to counsel at the will of the interrogating police officer. Police officers were able to circumvent or manipulate the desires of the suspect by attempting to clarify the ambiguous statement” (p. 734). For Yuncker, the clarification standard is at best risky and at worst may lead a suspect to waive their rights and self-incriminate.
Reference YunckerYuncker (1995) argues that the application of the per se – automatic rule when a suspect invokes counsel would also require that interrogation cease at the mention of an attorney, irrespective of whether the suspect was invoking the Miranda right to counsel. For Yuncker, this presents a dilemma for police, since the per se rule may interfere with the suspect’s true intentions or desires for representation. As he notes, police officers should not have to determine whether a suspect’s equivocal invocation for counsel is an actual invocation. Hence, he argues that the Davis ruling does not undermine Miranda, but rather gives suspects some level of control over the pressures of custodial interrogation.
Other legal scholars, such as Reference ChenChen (1996), propose that the limitations inherent in Davis may be overcome by implementing the clarification standard: the opposite perspective to Reference YunckerYuncker’s (1995). In Chen’s view, clarifications may assist police interrogators in making correct determinations about the suspect’s actual intentions when invoking counsel. Chen notes that considering the political makeup of the Court, the Davis decision is not unexpected. The Court was generally conservative and some of the justices voted along ideological lines. Yet, Chen argues that it is somewhat surprising that the Court did not adopt the concurring minority opinion recommending the clarification standard. For Chen, the latter best meets efficient police practice, unlike the per se bar rule:
Instead of promoting police efficiency, the per se bar rule would deter the investigative process simply because the police would have to stop the questioning even when a suspect wants to give a statement. Again, the clarification approach, which provides the police with clear guidelines during interrogations, best meets the needs of efficient police practice. Whenever confronted with an ambiguous request, police must stop and clarify, and if the suspect desires to continue, the police can be sure that their continued interrogation will not result in inadmissible statements. Therefore, this approach minimizes the amount of lost and inadmissible confessions and increases investigative efficiency.
Chen adds that the Court’s Davis majority opinion does not achieve the goal of protecting individual rights. The clarification approach, on the other hand, balances the intent of Miranda with the police’s ability to investigate crime. By requiring police to stop an interrogation and clarify a suspect’s equivocal request for counsel, it protects both the suspect’s rights and prevents possible acquittals due to judges’ throwing out inadmissible confessions. Reference LevenbergLevenberg (1995) also supports the use of clarifications with equivocal invocations for counsel. He proposed a modified clarification approach where the interrogators’ response to the ambiguity is neutral and focuses solely on establishing the status of the suspect’s invocation. In this approach, the police should inform the suspect of the consequences of the ambiguous invocation and ask the suspect to state whether they are asserting the right to counsel.
More contemporary research on the role of requests for clarification with invocations for counsel deemed equivocal has focused on the delivery of these types of requests and the legal limitations created by Davis during the interrogation process. Reference BazelonBazelon (2007) notes that the right to counsel is at its best ambiguous, since it can apply before, during, or after interrogation, and at its worst misleading and ineffective: “The Miranda warnings are intended to protect a suspect’s Fifth Amendment right against compelled self-incrimination; however, the vagueness of the ‘right to the presence of an attorney’ combined with the intensity of the interrogation often render the suspect’s Fifth Amendment privilege illusory” (p. 1009). Reference BazelonBazelon (2007) adds that the effect of the Davis ruling on suspects’ ability to invoke counsel may be difficult for a suspect to overcome. He notes that sociolinguistic factors, such as being a member of a racialized group, may increase a suspect’s tendency to use indirect modes of speech more often to avoid conflict. Racialized groups are also “…arrested on a disproportionate basis, and therefore, the Davis rule creates a strong bias against them” (p. 1030).
Another reason for the Davis standard to potentially interfere with the suspect’s invocation for counsel is the interrogator’s strategic use of clarifications. As Reference BazelonBazelon (2007) notes, the police can use clarifying questions to manipulate and deceive a suspect into not invoking counsel. He proposes instead the use of clarifications that address the limitations inherent in Davis. What the author describes as a temporal element that alerts the suspect of their right to have counsel present during interrogation:
As an initial matter, implementing the proposed bright-line rule would not be a burden on law enforcement officials because it requires adding only two words to the standard Miranda warnings “during interrogation … .”
One could argue that this proposed rule is already the rule of the Court, and that this proposal will not change existing law. This rule, however, differs from existing precedent in that it requires strict compliance with one of the Miranda warnings: the right to have counsel present during interrogation. Moreover, this rule is necessary in light of the fact that several circuits have not required law enforcement officials to make suspects aware of their right to have counsel present during interrogation, a right that is guaranteed by the Fifth Amendment. The rule, therefore, augments the Miranda protections, or at least calls for the Court to reaffirm precedent that has not been followed.
This proposal to clarify the language of Miranda and specify its function may benefit custodial suspects who are unaware of the function of the rights. Its effectiveness, as the presumption that suspects’ invocations should be taken literally and/or that clarifications can establish a custodial suspects’ true intent when invoking counsel, is questionable in practice in light of the invocation game.
6.3.2 Moving Forward in Light of Case Law: A Look at Some Approaches
There are numerous perspectives on how to improve the investigative goal of interrogations and reduce the probability of false confessions. One approach, which has been discussed extensively, is the recording of all police interrogations. Reference Leo, Neufeld, Drizin and TaslitzLeo et al. (2013) argue that electronic recording of an interrogation is essential to establishing a confession’s reliability. Otherwise, prosecutors, judges, juries, and appellate courts will not be able to identify whether police interrogators have contaminated or formatted a suspect’s confession. For the authors, through a motion by the defense, courts in criminal cases should evaluate the reliability of evidence obtained through a confession. The latter could be accomplished in the same pretrial hearing that assesses the voluntariness of a suspect’s statements. Reference Leo, Neufeld, Drizin and TaslitzLeo et al. (2013) note that the Federal Rule of Evidence 403 (or its state counterpart) gives trial courts the authority “to exclude confession evidence whose probative value is substantially outweighed by the danger of unfair prejudice to the defendant, confusion of the issues, or misleading the jury” (p. 802). The authors add that under Rule 403, at any point during a criminal case, the trial judge has the discretion to evaluate the probative nature of the evidence, including evidence obtained through a confession, weigh its prejudicial effect, and exclude it from evidence, if appropriate.
Reference Leo, Neufeld, Drizin and TaslitzLeo et al. (2013) reiterate that pretrial assessments of the reliability of confession evidence would address the high value placed on confessions. This often results in police closing investigations after a confession is obtained and end the police’s effort to pursue other leads or corroborate a confession, even if contradicted by other evidence. The authors propose a possible solution – a statute that makes unreliable defendant statements in criminal cases inadmissible at trial: “if it was made under circumstances raising an undue risk that it is false [or that it will result in conviction of a factually innocent person]” (p. 836). For the authors, this proposed measure would address the problem of unreliable confessions, given the pervasiveness of police crafting custodial suspect’s statements through a process of discursive contamination and formatting.
To improve the reliability of confessions, Reference SangeroSangero (2007) puts forth a complimentary perspective: the requirement of “strong corroboration” of confession evidence. The author argues that the Miranda rules only address the possibility that a confession may be involuntary. The matter of false confessions, which the author notes may be voluntary, is not properly addressed in the law. For Sangero, this is inconsistent with the considerable research demonstrating innocent persons providing a false confession, resulting in their wrongful conviction. In most of these cases, without the advent of genetic, DNA, testing, much of these false confessions and wrongful convictions would not have been revisited and reversed. Yet, genetic testing is not possible for every case. Moreover, custodial suspects subject to interrogation may provide false confessions voluntarily, without explicit pressure from police.
Reference SangeroSangero (2007) adds that the general assumption that the criminal justice system functions properly (see also Reference CassellCassell, 1999) should also be revisited:
If the system does indeed operate properly, then, on the one hand, why should it be assumed that, without a confession, a guilty person would be acquitted? For, even without a confession, it should be possible and necessary to obtain other evidence that would incriminate the guilty person. On the other hand – again, if the system is supposedly working properly – why should it be assumed that an innocent person would be convicted instead? Moreover, if the focus on extracting confessions from interrogees is ceased, then it may be inferred that fewer innocent persons would be convicted even if not enough confessions would be extracted from the guilty.
Sangero notes that confessions should be taken with a degree of skepticism. A confession, obtained with or without external pressures, is “not the ‘queen of evidence,’ but rather, it is the ‘empress of wrongful convictions’” (p. 110).
The requirement of corroborating evidence for a confession may reduce the likelihood of a false confession being used at trial (and as evidence) and raises the voluntariness standard to a reasonable doubt standard. Sangero notes that police investigators should not limit themselves to the interrogation of suspects and trying to get a confession, but rather employ investigative techniques that provide evidence extrinsic to the suspect. The implementation of a strong corroboration, however, will require a change in the current, traditional standard, which the author argues only requires “slight” corroborative evidence:
Essentially, the police investigation following the apprehension of a suspect is mostly directed at obtaining a confession. Furthermore, once the confession is obtained, the investigation usually ends. My explanation for this is complicated and, briefly, as follows: first, the police operate under a misguided conception of the guilt of the suspect (in direct contrast to the presumption of innocence); second, the confession is still considered to be particularly strong, almost conclusive, evidence; third, the key measure of the success of the police (and, I am afraid, also of the success of the prosecution) and the major criterion for the promotion of investigators (and, I fear, also for the promotion of prosecutors) is still the high percentage of convictions; fourth, extracting a confession – especially when some use of pressure is acceptable – is an easy and inexpensive approach in comparison with alternative methods of investigation; fifth, the courts, which are usually not willing to exclude confessions provided that the formal Miranda rules are abided by, are essentially sending a message to investigators that it is possibly reasonable to focus on extracting confessions from suspects; sixth, judges, in fact, allow the police to use detention (in disgraceful conditions) or the threat of detention, as a means of exerting pressure on interrogees so that they will confess to crimes that they are suspected of having committed; seventh, the confession may still be considered to possess extra-evidentiary value in addition to the excessive evidentiary value already attributed to it.
Sangero concludes that society should move away from a confession culture that in essence encourages and values self-incrimination. He recommends that lawmakers enact legislation that reduces innocent persons being wrongfully convicted on the basis of confessions alone and move to objective “strong corroboration” that is independent of the confession and links the suspect to the crime. Of note, there are practical considerations to this proposal, ranging from the viability of (all/most) cases going to trial to the possible societal concerns of those accused of a crime being released while awaiting trial.
Another perspective that works in tandem with those previously discussed, is the requirement of legal assistance during custodial interrogation. At present in the United States, there is no such legal requirement. On the contrary, the majority opinion in Miranda made it clear that the interrogation must cease if a suspect states a desire for counsel, but a “station house lawyer” is not required to secure a suspect’s request for legal representation. This is in contrast with other jurisdictions outside the United States, such as European states, where legal assistance is more accessible at the police station.
In 2008, the European Court of Human Rights (ECtHR) signaled to states that are members of the European Convention on Human Rights (ECHR) that the right to legal assistance in the pretrial period of investigation is essential to ensuring the right to a fair trial (under Article 6, ECHR). In the seminal case of Salduz v. Turkey (2008), the ECtHR held that every suspect in police custody, except for compelling circumstances, must be provided with access to an attorney prior to their first interrogation. Although much has been written about the impact of Salduz on legal reforms, “there has been less scrutiny of the manner in which legal assistance for detained suspects is arranged and provided. The ECtHR has consistently stated that the protection afforded to ECHR rights must be practical and effective, not theoretical and illusory. Accordingly, the practical logistics of the operation of the right to legal assistance are critical” (Reference Daly and ConwayDaly & Conway, 2021, p. 619).
The manner in which ECHR member states select lawyers for detained suspects varies, ranging from utilizing an intermediary clearinghouse to the detainees making the phone calls themselves. In Scotland, for example, police are required to pass all requests for in custody legal advice to the Solicitor Contact Line (SCL). The latter is provided by the Scottish Legal Aid Board. In England and Wales, there is a similar protocol in which the police call the Defence Solicitor Call Centre (DSCC) conveying a custodial suspect’s request for legal assistance. Legal advice is provided without remuneration to any custodial suspect who has received the caution. The intermediary step, however, is not followed by all jurisdictions. In Austria, Bulgaria, and Greece, often local law associations produce a list of lawyers from which the custodial suspect may choose. On occasion, custodial suspects make the phone call for legal assistance themselves or the police does so on their behalf. In the Netherlands and France, a mixed approach with some centralized referral system is employed. In Northern Ireland, the Law Society operating in Belfast set up a rotation system for duty solicitors. Outside of Belfast no formal rotation system is employed. In Poland, if a custodial suspect cannot provide the name of a lawyer for police to contact, police inform family members that they should make arrangements to secure an attorney. As Reference Daly and ConwayDaly and Conway (2021) note this can be challenging and causes both variance in the quality of representation as well as delays in the delivery of legal assistance. They add that across Europe there is no standard process to selecting legal counsel.
Ireland is one of the cases in which the selection of counsel raises some important legal questions that should be considered when implementing legal assistance services. In Ireland, until 2014, legal advice to custodial suspects was limited to consultations. The change to allow lawyers to attend custodial interviews came about a circular issued by the Director of Public Prosecutions (DPP) to An Garda Síochána in May 2014 “instructing that, where requested, the attendance of solicitors should be facilitated, and that all suspects should be advised of this entitlement” (Reference Daly and ConwayDaly & Conway, 2021, p. 625). This circular does not constitute a legal or constitutional right. It was not until 2015 that An Garda Síochána issued a Code of Practice on Access to a Solicitor by Persons in Garda Custody and the Law Society of Ireland issued Guidance for Solicitors Providing Legal Services in Garda Stations. To provide access to legal services at Garda stations, The Criminal Law Committee of the Law Society of Ireland created an online list of attorneys:
who have registered as willing to attend at a station, divided by relevant division, which displays in a random order each time it is renewed. The list is provided for in the guidance for solicitors issued by the Law Society of Ireland. This “Find a Garda Station Solicitor” system would allow gardaí to provide a randomized printed list to detained suspects from which they could select a solicitor to be contacted. This has not, however, been formally adopted in any way, although it was referenced by the state in evidence to the European Committee for the Prevention of Torture during its 2019 visit to the state.
The use of lists of attorneys raised concerns about the actual random choice of attorneys being selected to provide legal assistance at Garda Stations. Daly and Conway analyzed what they describe as semistructured interviews of forty-four criminal defense attorneys in Ireland between the periods of 2018 and 2019. The authors’ research provides some interesting findings. They note that the interviewees expressed a high level of concern that the system of selecting registered attorneys was not consistently applied in practice. Other important concerns raised by the interviewees include the failure to use the list, alternative (nonrandom) criteria for selecting attorneys, the selection by gardí (police) of preferred attorneys, rather than the clients, and the role of factors such as speed/expediency and suggestibility in the selection process.
In the study, the attorneys interviewed appeared to be supportive of the use of a list. Yet, they expressed concern over the clarity and fairness of the selection process. An important point raised, and which could affect any system not using a third party legal contact, is the police contacting an attorney on behalf of a custodial suspect. Reference Daly and ConwayDaly and Conway (2021) note that: “This power of the police is only reinforced by the fact that, unlike in many jurisdictions, it is the gardaí making the phone call rather than the client or an intermediary. Some participants believed that the choice of clients can be actively overridden by gardaí” (p. 632). Thus, participants in the study expressed concern that the gardaí are not using the sanctioned list in favor of what they describe as “favorites.” The allegations for gardaí selecting off list include financial reasons, which could constitute corruption, and the impact on the investigation. The latter reason was the most commonly cited. Here gardaí may prefer attorneys who are less likely to advise their clients to remain silent and who may make it “easier” for the gardaí to conduct the police interview. Attorneys who were willing to consult in person and attend promptly to the call also seemed to be favored by the gardaí. This gardaí’s preference for expediency may also influence the custodial suspects who may be encouraged to choose a quicker release from detention than to wait for the attorney to arrive. In the study, the attorneys mentioned custodial suspects foregoing all together the right to counsel, contacting counsel to request that they do not attend the station, or not making contact at the time of arrest, as is the custodial suspect’s right. Furthermore, and as insightful, many of the participants felt that the quality of the defense they offer influences whether they receive requests to attend the police stations. They also noted that less active, rights-driven solicitors are often selected or suggested by gardaí, which raises questions about whether the rights of the accused are being respected.
The case study in Ireland suggests that even in countries where legislation has passed to further protect custodial suspects’ right to counsel, it is difficult to overcome past legal and police culture patterns that place a premium on obtaining a statement expediently. Legislative reforms that are not formalized and implemented consistently, with an emphasis on transparency, and which have little or no oversight at the police station, may fail to protect custodial suspects’ rights. These issues are not unique to one country and need to be considered if, and when, legislation and/or the Court revisits the question of the need for “station house lawyers” available at all times to advise custodial suspects in the United States.
6.4 Concluding Remarks
To achieve police interrogation reform in the United States, there needs to be an understanding about the effects of the Miranda and Davis rulings in protecting custodial suspects’ rights and the relationship between the law and how police conduct interrogations. Miranda addressed the need for additional safeguards to protect custodial suspects’ right to counsel during custodial interrogation. Yet, the ruling did not define what constitutes an invocation for counsel that would cease a police interrogation. The Davis ruling, although narrowed invocations for counsel as those a reasonable police officer would understand as unequivocal/unambiguous, did not define what constitutes this type of unequivocal invocation. On the contrary, the ruling added uncertainty to the definition of requests for counsel and, in the process, bestowed additional power to police investigators in making the determination. In essence, Davis perpetuated and institutionalized the invocation game, framed in manipulation/deception, that has been observed in police interrogations, past and present. Since 1994, there has been no attempt of the Court to revisit the Davis ruling or a move toward creating legislation that addresses not only police reform, but also how police interview custodial suspects. The latter is needed to move the invocation game of interrogation, grounded in legally accepted manipulation and deception, to an investigative interview that gathers information, not confessions. To accomplish these reforms, new legislation needs to address three key points: (1) how police question suspects, (2) how police question members of vulnerable populations, and (3) how the law, and the requirement of counsel (at the police station) during custodial interrogation better secures custodial suspects’ rights.
The first point takes us back to the clear divide shown in the book’s corpus between justices who argue in favor of removing unnecessary obstructions to police investigation and those who rule, primarily, for the protection of individual constitutional rights. The former is argued most often. This raises the following inquiry, what does this mean for police interrogation reform? One possibility that has been discussed is that police interrogation reform can occur organically and independently of the law. This approach would not include extensive legislative involvement and/or changes to the law and would depend largely on the police reforming itself.
Although police officers have been part of important reform policies in some jurisdictions outside of the United States, leading to major reforms (e.g., PACE), historically this has not been the most effective approach in the United States. Without broader legislative and legal reforms, it will be difficult to overcome police culture that may not fully embrace reform.Footnote 8 As Reference RobinsonRobinson (2020) notes, there are four main barriers to police reform in the United States: (1) the decentralized nature of policing, (2) the culture of policing and not being open to change, (3) a lack of training based on science, and (4) lack of government leadership and initiatives. There is also the current focus on tactical skills, rather than on social interaction: “American policing in the future will be shaped by the men and women now coming into the police academies, yet at a time when there are calls for advancing ‘guardian’ culture in policing, many training academies are still organized as military-style boot camps emphasizing a ‘warrior’ approach” (p. 235).
The manner in which police officers question suspects in the United States is mediated by both present and past views of the role of police questioning in solving crime. Present policing culture, for example, may be recalcitrant to changes in the interrogation room due to the high value placed on obtaining a custodial suspect’s confession. As Reference Bull, Baker, Mason and RockBull and Baker (2020) caution adopting a new interviewing approach may cause some police departments to push back. This is also highlighted in an older 2007 survey (Reference Zalman and SmithZalman & Smith, 2007) that suggests that changes to police interviewing practices may face resistance from police officers who conduct interrogations. Hence, addressing the potential push back will necessitate legislative recommendations and changes to police officers’ criminal code of conduct that include how police question suspects. This will also require police investigators who conduct police interviews to be trained in noncoercive, rapport-based, interviewing methods and be required to maintain their skills. Training needs to also emphasize not only how police interrogators formulate questions, but how they follow up suspects’ responses, particularly during the probing stage of police questioning. Even an interrogator who is trained and motivated to use noncoercive questioning tactics (e.g., using TED questions) may shift the interview as framed and change the suspects’ preferences and discursive choices. This is the potential pitfall of any interrogation/interview technique and, as such, needs to be part of any training method, even noncoercive ones. Furthermore, and as noted previously, even the best interviewing techniques may turn into a game of misperception if the law facilitates it. Hence, changes to the law, such as the Court revisiting Davis, will also be needed to adapt legislation to current law regarding the reading of rights, suspects’ invocations for counsel, and the presence of counsel, if requested. This point will be discussed in more detail later in the section.
The second point relates to the questioning of vulnerable suspects, specifically juveniles and L2 speakers. To protect L2 custodial suspects’ rights there needs to be a presumption of the need for an interpreter. Police investigators should not be tasked with making determinations about whether a custodial suspect has sufficient proficiency in the L2 to comprehend their legal rights. Police, on average, are not trained to determine their own or others’ proficiency in the L2. As recommended in this chapter, police should instead follow a number of steps aimed at protecting an L2 custodial suspect’s rights, including the dual presentation of the warnings (oral and written), asking the custodial suspect to read each warning out loud, adopting the in-your-own-words requirement, simplifying the waiver, avoiding complex legal jargon, and the electronic recording of custodial interrogations and delivery of rights. All linguistically mediated police interrogations should be videorecorded. These measures should also be in place for L2 witnesses and victims of crime that are subject to police interviewing. Adopting these linguistic safeguards will help further the protection of L2 speakers’ rights who are questioned by law enforcement. These measures may require additional government funding for professional interpreting services, such as providing access to in person and/or remote interpreting at the police station.
Juveniles also require special attention in custodial settings. One of the most effective measures that have been studied and proposed in, and outside, the United States is the required presence of a lawyer during police questioning. The latter is consistent with research completed in Europe that suggests that juveniles are at a higher risk of providing inaccurate statements or false confessions and are more prone to compliance and suggestibility than adults. Furthermore, the absence of age-appropriate interview models for juvenile suspects also puts them at a higher risk. In light of the risks associated with interviewing juveniles, adopting research-informed recommendations would be beneficial when considering police interrogation reforms. An attorney’s mandatory presence during custodial interrogation also appears to be positive. In addition, research cited in this chapter, such as the Belgium case study, points to the benefits of interviews that are conducted using an appropriate information-gathering style. Attorneys that took a cooperative position and adopt an active role also appear to be able to prevent or proactively tackle police coercion or misconduct during a custodial interview. Yet, an attorney’s presence “is insufficient alone and must be accompanied by additional supporting mechanisms such as training specific to assisting juvenile suspects at the police station” (Reference Schoovaerts, Vanderhallen and McIntyreSchoovaerts et al., 2021, 67).
For juveniles, meaningful access to a lawyer is very limited: “no state guarantees lawyers for every child during interrogation, and only one state requires it under limited circumstances” (see National Juvenile Defender Center, 2017, p. 7). Furthermore, according to the United States Department of Justice, Office of Justice Programs (see Reference JonesJones, 2004), many juveniles waive their rights. This issue appears to affect juveniles across the board, but disproportionately juveniles from poor and single parent backgrounds, as well as members of racialized groups (see Reference Leiber and StairsLeiber & Stairs, 1999). These outcomes could be mitigated by requiring the presence of criminal defense lawyers at all stages of custodial questioning. These measures may also reduce recidivism among juvenile suspects and being caught in the system.
The third point deals with changes to the law. Although, it is unlikely that the Legislative Branch of the federal government will enact a law protecting custodial suspects, even juveniles, the need to protect custodial suspects’ right to counsel will require either the Court revising the Davis ruling, which seems unlikely, or new legislation that addresses comprehensive police reform, including police interrogation reform. Police reforms, such as PACE, can provide guidance to new police reform legislation in the United States, if this route were considered. If Davis is revisited, the Court could also undo the lack of clarity raised in the ruling. As mentioned previously, there have been numerous recommendations from legal scholars as to how to address the shortcomings of Davis. These range from requiring police investigators to clarify an invocation for counsel they deem equivocal or ambiguous to returning to the undefined sentiment of Miranda that once a suspect invokes counsel, per se, all questioning must cease.
Revisiting the clarification approach in Davis will likely be an ineffective remedy. In the corpus, what judges often refer to as a request for clarification is linguistically a follow-up move most often aimed at dissuading the suspect from invoking counsel. This action may make it more likely that the suspect will waive their rights. In essence, police interrogators can, and do, use follow-up turns strategically as a means to manipulate the custodial suspect into changing their preferences (or choice to invoke counsel). As Chapter 4 describes, custodial interrogation in the United States is a type of invocation game. One that is designed to (passive-aggressively) change the custodial suspect’s preferences from requesting an attorney to waiving their rights. This invocation game is probably best executed following more guilt-presumptive interrogation techniques, such as Reid, but as noted it would likely be present also with information gathering, rapport-based interviewing techniques, such as PEACE, if the Davis ruling stands and there is no legislative reform. The law facilitates, and possibly incentivizes, police investigators to deem invocations for counsel as equivocal/ambiguous. If the law did not assign the police as gatekeepers of suspects’ right to counsel, and defined invocations for counsel broadly, police interrogation reforms would have a much higher probability of being enacted in practice. This point takes us, once more, to revisiting the per se standard.
Under the per se rule any reference to counsel, regardless of its equivocalness or ambiguity, ceases a police interrogation: “Indeed, the Court described Miranda as a ‘rigid rule that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease’” and has recognized the “undisputed right” to remain silent and to be free from questioning “until he ha[s] consulted with a lawyer” (Reference LevenbergLevenberg, 1995, p. 964). This approach, as noted, was not supported by the Davis Court. The justices thought the per se approach would limit effective law enforcement. Hence, the clarification approach was suggested by some of the justices in Davis to balance police’s ability to interrogate suspects and protect suspects’ rights. In theory, and from a linguistics perspective, requests for clarification may improve a suspects’ ability to invoke counsel, if the police perceive the invocation as equivocal. Yet, this is in theory, not necessarily in practice. A follow-up turn of talk, which would be the clarification of a suspect’s request for counsel, cannot aim to resolve the first/previous turn if the police interrogator already strategically deemed the invocation equivocal/ambiguous and the law permits that strategic interpretation. This takes us back to the very rights Miranda aimed to protect.
Miranda recognized that the goals of the interrogator and the interests of the suspect are in conflict in the adversarial system. The Court also recognized that the custodial suspect who waives their right to counsel may be doing so foolishly: the defendant who does not request counsel is the one who needs it the most. “The defendant who does not ask for counsel is the very defendant who most needs counsel.” If the goal of police questioning were to get information, rather than a confession, then the presence of an attorney to protect a custodial suspect’s rights would not be perceived as a barrier. On the contrary, the presence of counsel at the interrogation may serve several added functions. If the accused decides to talk to interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is accurately reported by the prosecution at trial. A return to a broad interpretation of an invocation for counsel would provide the best path to changing the invocation game of police interrogation into an investigative interview endeavor. Limiting the overreliance on confession evidence and requiring corroboration through the investigative process would also potentially improve the reliability of suspect statements and reduce the number of false confessions obtained.
In sum, police interrogation reform requires a change of perspective on how to effectively balance the role of police officers in investigating crime, a common theme in judicial rulings, and individual constitutional rights. It also requires broader justice reforms that challenge accepted law-and-order rhetoric and unethical (albeit often legally sanctioned) police questioning practices, including the legal use of trickery and deception. As Reference LeoLeo (2008) rightly argues: “Police interrogation should be an investigative function. It should therefore not be guilt presumptive, and its purpose should not be to incriminate the suspect in order to build a case against him” (p. 357). This is the antithesis of the invocation game of police interrogation and can most effectively be addressed by overhauling current legal frameworks that facilitate the imbalance between police investigating crime and suspects being able to secure their Miranda rights.
Open access