On November 13 I had the privilege of participating in a panel discussion at the Massachusetts School of Law. The discussion included Chief Paul Tucker of Salem P.D. and Chief Lisa Hayes of Newbury P.D., Attorney John Morris as well as a host of others. The focus was on the impact of the major Miranda-based decisions from the Supreme Court this year and their impact on interrogation practices by Police departments.
The audience was comprised of practicing attorneys and law students. It was my hope that we could provide more insight and attempt to clarify the many misconceptions held by people regarding interrogation and police practices. The incorrect information that exists is sad and scary. Among the issues that were raised that I hope we finally addressed (at least in the minds of those present) included a number of issues I want to outline here.
First, we addressed the concern that a non-English speaking arrestee is left to the mercy of the police with regards to Miranda. We discussed this and clarified that police officers have a duty to notify the consulate of national origin, as well as language lines to ensure the arrestee fully understands the information being given.
Next, the ethics of providing false information to the arrestee being interrogated were discussed at length. The short answers can be found in the DiGiambatista case from the summer of ’04. Expert testimony of false confessions dominated a large portion of the debate as well and whether there should be evidence of false confessions mandated in all cases where a confession is a key piece of evidence.
Professor Alan Hirsch of Williams College presented his arguments as to why evidence of false confessions should be included whenever testimony is presented regarding a confession by an accused. His legal points were interesting, but curious as to not only what they included, but also what they excluded. His presentation included numerous false confessions, including a case study in which a man confessed to a murder despite having not committed it. His confession was convincing enough and included so much detail that it lead to his conviction. The specifics of the confession that convinced them of his guilt revolved around his description of the apartment where the crime took place, and its decorations. The problem was that he obtained these facts from photos that the officers had shown him in an earlier interrogation. Although concerning, the case seemed a bit of an outlier in terms of concern over its results. By that I mean that the facts were a bit unique, and the likelihood of its reoccurance not particularly high. Dr. Hirsch’s suggested resolution was the inclusion of expert testimony on the instances and effects of false confessions (of which he is one). However, had that testimony been included, it likely would not have led to a different conclusion in the previous conviction that he himself cited. The question that did seem to come up was whether it was “fair” for police to be able to lie to a defendant regarding the level of evidence against them during an interrogation. After citing a few cases, I thought it funny that the implication they suggested was that the police supply a steady stream of information to the suspect regarding the evidence against them. A proposition that has been rejected time and again by the SJC.
The problem in his altruistic but unrealistic argument for the inclusion of the evidence is the one of pragmatism and proper use of the courts time. Professor Hirsch explained the phenomenon of false confessions and was also heavily critical of the so called “Reid” technique as taught by the Wicklander and Zulawski group. However, in being asked what he would proffer as a solution to the problems he cited in the technique, he sidestepped and admitted he did not have one. The issue of including the false confession evidence is one of relevance. How many of the total confessions does the “numerous” false confessions amount to? Also, is that percentage significant enough to warrant inclusion into every trial and the resultant extra costs for the expensive “experts”? I’m not sure the answers warrant the inclusion of the evidence at this point.
Attorney Ronald A. Sellon