COLUMN ONE : Getting Suspects to Confess : How far can police go? Hardball tactics are out but using forgeries and lies can be OK, under the rules of interrogation. Some defense lawyers fear even the innocent can fall victim to such deception.
The mind games begin as soon as they haul you into the interrogation room, a bare, gloomy closet with one table and two chairs.
The police suspect you shot an old man. You deny it. Cocky, you waive your right to stay silent. Brash, you brush off your chance for a lawyer. You are sure you can outsmart the police.
But the detectives want a confession.
And they can legally tell lies, forge documents and stage deceptions to get it.
They can tell you they found your fingerprints at the crime scene--even when they did not. They can warn you they have tracked down witnesses--even when they have not. And they can show you “confessions” from co-conspirators--even if the documents are phony.
“People don’t always walk right up to you and spill their guts,” said Los Angeles Police Cmdr. Tim McBride. “You have to be innovative.”
That’s the game in the quirky, secretive world of police interrogation--where, as McBride puts it, “everything goes and yet nothing goes.”
Lately, questions about the LAPD’s interrogation techniques have surfaced as the department reels under charges of misconduct.
In his taped interviews, former Detective Mark Fuhrman boasted of beating suspects until they told him what he wanted to hear--"the 77th [Street station] lie detector test,” he called it. And Detective Andrew A. Teague, who was recently suspended, has admitted he forged a statement from witnesses to compel a suspect to confess.
Bashing suspects is clearly illegal. But dummying up documents is perfectly proper. Teague’s mistake came later, when he testified in court that the bogus documents were valid.
“It’s OK to misrepresent things to the criminal, but it’s not OK to misrepresent them to the criminal justice system,” said Devallis Rutledge, an Orange County prosecutor who teaches police nationwide about interrogation techniques.
The ethics of interrogation have been established, over decades, by court cases challenging police conduct. The rules vary by state--judges in Florida, for example, have ruled that police cannot pretend to possess “scientific evidence” such as fingerprints, while such tricks are OK in California.
Nationwide, however, some basic rules apply: Police cannot indulge in the hardball tactics so popular in Hollywood, from the sweat-them-till-they-talk ploy in the movie “Dick Tracy” to the slap-them-on-the-face approach in TV’s “NYPD Blue.” They are not allowed to use threats. And they are prohibited from offering a deal in exchange for a confession.
LAPD officers learn these rules mainly through an eight-hour course in detective school. The subject receives little attention in the basic Police Academy, and the official LAPD procedure manual does not cover interrogations, according to department spokesmen.
Detectives’ freedom to draft their own interrogation strategies alarms some defense lawyers. In theory, no amount of fake evidence should make an innocent person confess. But some attorneys fear that poor, uneducated suspects may figure the police are out to frame them, so they better confess to get a good deal.
Police draw their authority to fake out suspects from a 1969 U.S. Supreme Court ruling: “Strategic deception of the suspect by police, where it is not sufficient to overbear the suspect’s will but merely prompts him to act from a consciousness of guilt, does not make a statement involuntary.”
But what constitutes “overbearing” deception?
Legal experts agree that detectives cannot use physical pressure or psychological harassment to force a suspect to confess. Beyond that basic premise, however, “how much is too much is unclear,” said University of Michigan law professor Yale Kamisar, an expert in interrogation tactics.
For guidance, officers must turn to case law--which provides a confusing, and sometimes contradictory, jumble of rules:
Detectives cannot promise you leniency in exchange for a confession. But they can mention that courts look favorably on cooperative defendants.
They cannot threaten you or your family. But they can say you will make it easier on your loved ones by talking.
And they are not supposed to play off religious beliefs by suggesting that lying will doom you to hell. But they can tell you a guilty conscience will haunt your dreams.
In short, USC law professor Charles Weisselberg concluded: “It’s a fine line.”
California courts have tossed out a few confessions in recent years, most often because police denied suspects consultations with their lawyers. And nationally, judges have rejected some of the more sneaky techniques.
In the 1950s, the U.S. Supreme Court upbraided police in New York for bringing in a hypnotist to interview a suspect under the pretense of giving him a medical exam. And in a 1963 Illinois case, the justices ruled that police could not threaten to take away a mother’s children.
Judges also have ruled that police cannot strip or starve suspects, isolate them for long stretches of time or deprive them of sleep.
A federal judge in June criticized prosecutors’ attempts to coax a confession from Oklahoma City bombing suspect Terry L. Nichols by allegedly keeping his wife away for 34 days, sending two psychologists to interview him against his will and leaving the light on in his cell for a week.
Another Oklahoma City suspect, Timothy J. McVeigh, has complained that he was unable to contact his lawyer after his arrest--a possible violation of his constitutional rights.
Such charges haunt detectives, who know they can blow a case just by leaving out a clause in the standard Miranda warning. But overall, they have lots of leeway.
And they make the most of it.
The gambits that work in interrogation rooms can be as simple as the good cop/bad cop routine, which may prompt a suspect to confess to the softy rather than risk the wrath of the heavy. Another old favorite: telling a suspect his buddy has ratted on him. “Amazingly, we get a lot of confessions that way,” McBride said.
Lt. Sergio Robleto prefers to stay away from ruses, finding that other methods mesh better with his low-key style.
Robleto likes to smoke out the bad guys by impressing them with his detailed knowledge of the crime scene. He will drop details that only the criminal would know--and watch his suspect sweat.
Then he will start in on the interrogation, asking the suspect to tell his story over and over. No bluster, no threats, no thundering shouts of “Liar!” Robleto simply raises his eyebrows quizzically each time the suspect strays from his cover. A puzzled look, he said, can be as devastating as a blow: ‘It allows them to realize they’ve trapped themselves in a lie.”
Preferring a more dramatic approach, Lt. John Dunkin became an expert bluffer in the 18 years he worked as a detective before joining the public relations staff. He would pull a blank cassette out of a paper bag, mumble something about a security camera near the crime scene, and say in a tone of pleased wonder, “I can’t believe we caught it all on videotape.”
Another detective said her best bluffs came when she slid a fingerprint card across the table and let the suspect get a good long look. Just by implying she had identified the criminal, she said, she often managed to loosen tight lips.
Such ruses, of course, are risky, and some detectives shun them. If a suspect wore gloves, he will know the fingerprint story is a hoax--and he will realize the police have precious little evidence against him. Savvy criminals also know enough to stay silent during interrogations. “If you’ve got so much against me,” they’ll challenge the detectives, “make it stick in court.”
But a jumpy, small-time criminal may very well fall for the fibs. “He’ll throw up his hands and say, ‘You got me,’ ” Dunkin said. “Our job is made easier because we’re not dealing with rocket scientists.”
In formulating their snares, detectives assume that only the guilty will fall into their traps.
“If I go up to an innocent person and say, ‘I have your fingerprints in the safe of a [burglarized] bank,’ what are you going to say, ‘OK, you got me?’ No. You’re going to say, ‘That’s a bunch of crap’ ” Detective Rick Papke said.
But defense lawyer Laurence Labovitz is not as confident. An innocent suspect with no money for a lawyer--and no faith in the judicial system--may invent a confession out of “utter, total despair” if police say they can produce witnesses to finger him as the culprit, Labovitz said.
“He might try to cut the best deal for himself even if he didn’t do anything,” Labovitz added. “Ultimately, it gets down to the integrity of the system.”
To defense lawyers, that integrity is questionable.
Los Angeles lawyer Michael Stein represented a teen-ager who said San Bernardino sheriff’s deputies roused him from his house at dawn, drove him 45 miles to the County Jail, then surrounded him in the interrogation room and questioned him without reading him his rights. A judge recently ruled against the teen-ager’s claims of coercion.
Like Stein, lawyer Alvin Michaelson said his clients often insist “they did not confess and yet there’s a confession in their file.”
Michaelson, who specializes in drug cases, said he cannot confirm those complaints. But he worries that the judicial system works against defendants with genuine gripes. Many detectives tape-record interrogations only in murder cases. So if a defendant complains, it’s his word against the detective’s. And in a credibility contest, officers usually win.
Now, however, some defense lawyers believe they can take advantage of the misconduct allegations dogging the LAPD to cast doubt on interrogation tactics.
Defense lawyer Michael Brush filed a motion this month to reopen a 1991 kidnaping case on the grounds that Fuhrman coerced confessions by badgering two defendants even after they invoked their right to remain silent. He hopes the shocking Fuhrman tapes will add validity to his claims.
“It’s generally assumed by many defense counsels that police at the city level get evidence or confessions however they can and afterward sit down and write the report to fit the law,” Brush said. “I think in the long run that will change. I’m hoping against hope.”
Los Angeles lawyer Christine Vento shares that hope as she prepares to appeal a case in which, she says, police interviewed her client in the hospital when he was in pain, on medication and possibly in shock. Her client was convicted of vehicular manslaughter for a fatal car crash, based in part on his hospital bed confession that he, and not his friend, had been driving, Vento said.
“It was coercive, but not in the classic sense,” Vento said. “The police officers should have waited until the guy felt better.”
Even if a judge agrees that the confession was coerced, she may not win her client an acquittal. Both the U.S. and state Supreme courts have ruled that presentation of a coerced confession at trial may be considered a “harmless error,” unlikely to sway the verdict, if prosecutors have produced enough other evidence of guilt.
To avoid charges of coercion, police must respect four constitutional amendments protecting suspects’ rights.
A confession obtained after an illegal search or arrest--a violation of the 4th Amendment--is invalid. So is a confession gained by force, threat or promise of leniency--all of which breach the 14th Amendment guarantee of due process.
Under the 6th Amendment, police cannot interview a defendant after his arraignment without his lawyer present. And because of the 5th Amendment, which protects citizens against self-incrimination, police cannot compel a confession.
Probably the most famous, and most widely misinterpreted, protection involves the so-called Miranda rights. The U.S. Supreme Court ruled nearly three decades ago that police must tell suspects they have the right to remain silent and the right to legal counsel before they can be interrogated.
But there’s a loophole: Before arresting a suspect, detectives are free to detain and question him--without reading him his Miranda rights. Often, such interviews yield incriminating statements, if not confessions, because they take place before the suspect has been warned that every word he says can be used against him.
“One of the things I tell officers is, when you plan to arrest someone, before you indicate they’re under arrest, question them first,” said Papke, a 25-year LAPD veteran who teaches interrogation techniques to other detectives.
“It’s perfectly legal. . . . Many [suspects] give a lot of incriminating information that they probably would not have given if they had been advised of their constitutional rights,” Papke added.
If police fail to read the Miranda rights at the appropriate time, prosecutors cannot use the suspect’s confession or incriminating disclosures to prove guilt. They can, however, introduce the improperly obtained statements to rebut defense testimony--to prove, for example, that a suspect switched stories between his first interview with police and his swearing-in at the witness stand. They can also use the statements at sentencing or parole hearings.
Even after police inform them of their constitutional rights, many suspects talk willingly. O.J. Simpson, for example, disregarded his lawyer’s advice and chatted with officers for more than three hours on the day after the slayings of his ex-wife and her friend.
He told police a few nuggets that could be considered incriminating: He had not been at Nicole Brown Simpson’s condominium for a week and did not recall spilling blood there. Prosecutors have not introduced those statements during the trial because they do not want jurors to hear the rest of the taped interview, in which Simpson strenuously proclaims his innocence.
Simpson’s lawyers have built their defense around charges of police misconduct, but they have not questioned the LAPD’s interrogation techniques.
In general, jurors tend to cut the police some slack when it comes to dealing with suspects, police and prosecutors said.
“It’s like undercover police work. The public understands that we sometimes have to use . . . tricks to get guilty people off the street,” prosecutor Rutledge said.
Skilled interrogators can sometimes achieve the same result by applying a little psychology rather than concocting elaborate ruses.
To get one murder suspect to open up recently, Detective Carolyn Flamenco kept reminding him of his love for his 12-year-old son.
“You want to be a good role model,” she told him. "[If you’re] a man and tell me what really happened, your son’s going to be pretty proud of you.” While careful not to promise a short sentence, Flamenco said she also told the suspect that he would “get out of prison some day and could build a good relationship with his son.”
The sweet talk worked: “Before you know it, he was telling me what happened,” Flamenco said.
“They think they’re so good at lying, they think, ‘I can pull this off,’ but I’ve had the toughest of them in here crying” and admitting guilt, Flamenco said. “They’re big, they’re all buffed out, but they’ll pucker up and cry on you.”
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The Rules of Coaxing a Confession
Detectives enjoy a lot of freedom in coaxing confessions from suspects during interrogations. However, they must follow certain rules. If they overstep, a judge could rule that the confession was coerced and therefore inadmissible as evidence.
* Fabricate evidence.
* Forge witness statements.
* Lie to the suspect.
* Explain the real evidence against the suspect.
* Leave the suspect alone for short stretches of time.
* Bring in other detectives to interview the suspect.
* Question the suspect before an arrest without reading Miranda rights.
* Interview the suspect’s family to probe for weaknesses.
* Urge the suspect to confess for good of family.
* Beat the suspect.
* Threaten the suspect or his or her family.
* Promise better treatment in court.
* Strip the suspect’s clothes.
* Deny the suspect food, water, use of a bathroom or sleep.
* Question the suspect under arrest without reading Miranda rights.
* Question the suspect about the crime when he or she has invoked the right to remain silent or is waiting to consult with an attorney.
Source: Interviews with lawyers and police officers