Wisconsin Criminal Justice Study Commission
Summary of Commission meeting held on 5/16/06 at the UW Law School in Madison,
WI.
Present for Commission meeting: Kelli Thompson, Dan Blinka, Penny Beerntsen, Keith
Findley, Michael Smith, Fred Fleishauer, Gerry Mowris, Nanette Hegerty, Ken
Hammond, Scott Horne, Jerry Buting, Emily Mueller, John Charewicz, Floyd Peters,
Noble Wray, Suzanne O’Neill, Cheri Maples
Not Present: Bob Donohoo, Steve Glynn, Gerard Randall, Mike Malmstadt, Walter
Dickey, Dan Bach, Enrique Figueroa, Bill Grosshans
Chaired by: Dan Blinka (filling in for Mike Malmstadt)
Staffed by: Byron Lichstein
Presentation by Neil Nelson
The Commission first heard a presentation from Neil Nelson, a Commander with the St.
Paul Police Department (1).
Nelson said that he has been a police officer in St. Paul, MN, for 29 years. He said that
he began incorporating electronic recording into his suspect interviews when he was
working large narcotics cases. In those cases, he would interview 18-20 suspects in a
single crack house. Without an electronic recording, he found that he couldn’t remember
enough of the necessary details of the interviews. 1-2. So, even though there was no
legal requirement to record, Nelson began recording voluntarily because he found it
necessary for his investigations.
Then, in 1994, the MN Supreme Court mandated electronic recording of all suspect
interviews. 2. Nelson said that his fellow officers in the homicide unit thought recording
was “the end of the world,” but Nelson reassured them that recording was an excellent
tool for solving and proving cases. Nelson said that, in the ten years immediately
following the recording mandate, the unit in which he worked had an 85% solve rate in
gang and drug murders. Nelson said many of those murders would have gone unsolved
without recording.
Nelson said that he has developed a method for interviewing tailored to the recorded
environment. He calls this method the R.I.P. technique, which stands for Rapport,
Investment, and Partnership. He conducts training in several states and jurisdictions
about how to conduct recorded interviews. 2.
Nelson teaches officers that a recorded interview is a production targeted at a future
audience, the judge and jury. He teaches that the first goal of a recorded interview is to
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appear professional, truthful, ethical, and fair. Thus, if an officer makes a promise on
tape, he/she should keep it. 3.
One way that Nelson's technique differs from other techniques is that he tries to elicit a
free narrative, in which he lets the suspect talk without interruption. He does not cut off
denials, because he believes that cases are solved with information, not with confessions.
He doesn't get many “confessions”; rather, he gets lies that he uses to prove his case. If
he cuts suspects off, he can’t elicit their lies.
After the free narrative, Nelson conducts a Q&A with the suspect. Nelson’s approach to
the Q&A was designed for hardened criminals, people who are used to lying their way
out of trouble. He said that, with that kind of suspect, it doesn’t work to try to intimidate
them into a confession; rather, it’s better to follow along with their story, forcing the lies
to become more elaborate, and eventually eliciting lies that can be disproven and used
against the suspect in court. 3.
Nelson said Minnesota has a rule that police cannot manufacture evidence that would
make an innocent person confess. 4. He said some kinds of lies about fingerprints or
DNA would be prohibited. Thus, he doesn’t overtly lie to suspects; instead, he asks
questions like: “what would you say if I told you your fingerprints were in the house?”
Nelson said he thinks the recording mandate will solve most of the problems with
interrogation practices, and he therefore does not favor the Commission’s proposed rule
on deception. 6. He expressed concern that the proposed rule would prevent the use of
any of the suspect’s statements, even lies, after deception was used. 4-5. Nelson also said
he believed the proposed rule on deception would increase litigation and court costs. 5.
He said this would counteract the savings in court time that will be brought about by the
recording mandate. He said the rule would create arguments over verbiage, such as
arguments about what constituted “deception” in a particular case.
Nelson added, however, that he does not use deception with seasoned criminals because
he thinks it can backfire if the interrogator gets caught in a lie. 8.
Nelson said another reason the accusatory interrogation technique will be used less is
that, when interviewers directly accuse every alternate suspect of committing the crime,
this creates an opportunity for defense lawyers to argue that even the police thought
someone else committed the crime.
In response to a question about duration of interviews, Nelson said he does not believe
there should be a flat rule about the length of interviews. 11. He said he trusts his
judgment about when an interview has gone on too long.
Smith and Nelson discussed how to set standards for other police officers about when an
interview has gone on too long, when to use deception, and other issues. 12.
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Hegerty said she thinks guidelines for interviewing are inappropriate because every
interview is different. 12. She said she believed recording will solve the problems of
interviews.
Presentation by Saul Kassin
The next presenter was Saul Kassin, a professor at Williams College and an expert on
false confessions. 13.
Kassin began by emphasizing that the suspect is not always the perpetrator, and therefore
some interrogations are conducted with innocent suspects.
He then said that he has believed for years, and still believes, that electronic recording is
the most important reform for interrogations. 14.
Kassin then described the Central Park jogger case. In that case, a woman was raped in
Central Park, and five boys between the ages of 14 and 16 confessed within 72 hours.
The boys were interrogated for a range of 14 to 30 hours. Police recorded the 20-30
minute confessions of four of the five boys, but not the interrogations that preceded the
confessions. The confessions were detailed and told generally the same story. There was
semen found in the vagina of the woman who had been raped: it did not match the boys,
but they were convicted nonetheless. Then, years later, a serial rapist confessed to the
crime, saying he had committed the rape alone. The police were able to match the semen
to the serial rapist, and he provided details of the crime that the police had not known
about previously. The five boys who had confessed were released. 15.
Kassin said that the Central Park jogger case illustrated the importance of recording the
entire interrogation that leads to a confession.
Kassin then discussed the Reid technique. He said the Reid technique begins with a preinterrogation interview, in which the interviewer is taught to evaluate “behavioral
symptoms” to see if the suspect is telling the truth. (If the interviewer decides the suspect
is lying, then the interviewer can commence an interrogation of the suspect). Kassin said
that, although Reid & Associates claim to be able to produce interrogators that can detect
deception at 85% accuracy, social science research proves that people are poor lie
detectors, and that even experts can only detect deception at 55-60% accuracy. 17.
Kassin said that many detectives believe they are very good lie detectors, and therefore
believe that they only interrogate guilty people. Kassin said the studies show that this
confidence is misplaced, and that detectives therefore sometimes do interrogate innocent
people. 18.
Kassin then described some of the fundamental elements of interrogation: isolation,
stress, confrontation, cutting off denials, and minimization. 19.
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Kassin also discussed the “post-admission narrative,” which he described as the process
of moving from an admission of “I did it” to a detailed description of the crime. 20. He
said that many false confessions have contained convincing post-admission narratives
with details of the crime, expressions of remorse, physical reenactments, and even
correction of errors. 20.
Kassin discussed risk factors for false confessions. He noted that most false confessions
occurred after a long period of interrogation: one study of 125 false confessions found an
average period of interrogation of 16.3 hours. Very few false confessions occurred after
short interrogations. 21.
Kassin said that another risk factor is confronting the suspect with false evidence. One
main reason people confess is because they feel trapped by the evidence; thus, guilty
people will be trapped by true evidence, while innocent people may be trapped by false
evidence. 21. Kassin said this has occurred frequently with polygraphs: when an
innocent person passes a polygraph but is told he/she failed, then that innocent person
sometimes falsely confesses. 22.
Kassin also said we should recognize that innocence is actually a risk factor: innocent
people waive their rights and submit to interrogation because they believe their innocence
will eventually prevail. Innocent people sometimes confess because they believe that
their innocence will ultimately overcome the false confession. 24. Thus, rights such as
Miranda will be of little help to the innocent.
Finally, Kassin discussed what he referred to as the “tough call”: the fact that limiting
certain techniques in order to protect the innocent will also prevent obtaining accurate
confessions from the guilty. He discussed a recent laboratory study in which
experimenters tried to measure whether certain interrogation techniques increase the rate
of true confessions without also increasing the rate of false confessions. The study found
that 1) with no interrogation technique, 46% of guilty people confessed while 6% of
innocent people confessed, 2) with a promise of leniency, 72% of guilty people confessed
while 14% of innocent people confessed, and 3) with a promise of leniency and
minimization techniques, 87% of guilty people confessed while 43% of innocent people
confessed. 25.
Buting asked whether jurors will need the help of experts to interpret and understand the
tapes. Kassin said he’s been studying the issue (in a preliminary way), and his research
suggests that seeing the entire interrogation makes jurors more accurate judges of
whether a suspect’s confession is true. 26.
Presentation by Dorothy Doheny
Noble Wray then introduced the next set of presenters. 27. He explained that he, Gerry
Mowris, and Michael Smith had met as a sub-committee in order to explore whether the
Commission might address the false confession problem most effectively through internal
law enforcement policies and procedures, rather than through an exclusionary rule. He
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said that the sub-committee identified several issues for the Commission to consider.
First, Wray noted the variation in interviewing techniques around the state, and the
variation in the kinds of encounters that result in interviews. Second, Wray noted that the
public may be more accepting of certain techniques (such as deception) when police use
those techniques on potentially dangerous suspects. Third, Wray said that the subcommittee thought the Commission should hear from actual police interviewers and
interviewing trainers. 28. This led the sub-committee to arrange for presentations from
three investigators.
Wray introduced Detective Dorothy Doheny, a trainer from the Madison Police
Department. Doheny discussed the 4-hour training she gives to Madison officers. She
said she fully supports videotaping entire interviews. She said the goal of an interview is
to collect information by getting the suspect to talk freely. She trains officers to
understand that some suspects are innocent, and that all interviewees need to be treated
with respect. She teaches investigators to cover legal issues such as Miranda and the
right to counsel, and she teaches that those issues should be dealt with differently with
juveniles and people with mental health problems. She teaches that interviewers cannot
make promises and cannot coerce confessions. She teaches that interviewers should
prepare for an interview by gathering as much information as possible before the
interview. 29.
Doheny agreed with Nelson that goal of an interrogation is to get the suspect talking in
order to gather information that can either be refuted or substantiated.
Doheny said she would very rarely present a case to a district attorney based on a
confession alone. 30.
Doheny teaches interviewers to make sure that any information about the crime is
brought up by the suspect, not the interviewer.
Doheny said she does have a short portion of training about detecting deception through
behavioral analysis, but she said it is not a substantial part of interviewing. 30. She said
that she does not endorse lying to suspects because she does not think deception looks
good to juries and because she does not believe it is necessary. She also agreed with
Nelson that deception can be risky because suspects can catch police in lies. 30. She
said that promises are prohibited, but that it’s okay to tell a suspect she’ll inform the
District Attorney of the suspect’s cooperation, as long as the interviewer also tells the
suspect that the prosecutor, not the interviewer, makes the final charging decision.
Doheny said she teaches interviewers to use themes (ie excuses and justifications for
committing the crime), because she believes they are very effective. However, she said
that she only uses themes when she has developed a reason, based on comparing the
evidence to the suspect’s answers, to believe that the suspect committed the crime. 32.
Doheny said length of interrogation is a difficult factor to regulate because of the
variation in different cases. She said her longest interrogation was 5 hours.
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Maples said that the only false confession she remembered being involved in occurred
after deception was used on a vulnerable suspect. 33. She also asked whether the other
Madison detectives share Doheny’s enthusiasm about recording interrogations. Doheny
said they do.
Presentation by Brian O’Keefe
The next presenter was Deputy Chief Brian O’Keefe from the Milwaukee Police
Department. 34. O’Keefe first said that, unlike Detective Doheny, he uses deception.
He said that Milwaukee has about 250 detectives. For suspect interviews, the detectives
get training on a technique that is a hybrid of the Reid technique and Neil Nelson’s
technique. O’Keefe said he agrees with Nelson that an interrogator should never stop
someone from talking, in part because lies can be a very effective way to prove a case.
34.
O’Keefe disagreed with Kassin that cops think they never interrogate innocent people.
35. He said cops sometimes interrogate people whom they know are innocent because
they need information besides a confession. This doesn’t put an innocent person at risk
of being charged though, because police already know the person is innocent.
O’Keefe said deception should be used sparingly but should not be banned. 36.
O’Keefe said the use of deception can sometimes backfire if the suspect catches police in
a lie. 35. He said that implying evidence exists is a useful technique, such as saying “Is
there any reason your DNA is going to be on that victim?” O’Keefe also said the rapport
building process is a form of deception, because, in order to build rapport, he might tell
the suspect: “I’m your buddy. I’m your best friend. Nothing you say in here is going to
offend me.” 35. These statements are all untrue, and therefore deceptive.
O’Keefe also said that Milwaukee interviewers use minimization frequently, often in
place of confrontational techniques. 36. He said highly confrontational techniques are
often ineffective: if the interviewer immediately accuses or insults the suspect, the
suspect is unlikely to talk to the interviewer. 37. However, if the interviewer
sympathizes with the suspect or minimizes the seriousness of the crime, the suspect will
be more likely to talk.
O’Keefe said he’s been in many very long interrogations. 37. He noted several
examples, in cases involving multiple victims, when the interrogation lasted a long time.
37-38. He doesn’t think it would work to put a time limit on interrogations.
O’Keefe reiterated that he thinks an exclusionary rule about deception would not be a
good idea. 38.
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O’Keefe noted another concern he has with the Commission’s proposed admissibility
rule. He said that the provision discussing “information otherwise made public” is
problematic because the police have no control over what information the media makes
public, and the media often investigates immediately and publicizes a great deal of
information. 40. He said this is especially difficult in cases with multiple defendants,
because the police may catch one defendant at one point and then catch another defendant
months later; in such situations, the media will have already publicized many of the
details of the crime before the second interrogation takes place.
Finally, O’Keefe said that he believes polygraphs and voice stress analyzers are useful
interrogation tools and should not be banned. 40.
Presentation by Dale Okray
The last presenter was Lieutenant Dale Okray, from the Portage County Sheriff’s
Department. 40.
Okray said that his department has been electronically recording in interviews for years,
at the behest of the district attorney. 41. He said recording helps memorialize the exact
details of an interview, use lies to prove a case, and improve professionalism. He said he
also encourages road officers to record witness statements when possible.
Okray said the most important part of the interview is building rapport. 41. This is
especially true in a small community where police encounter the same suspects
repeatedly. The importance of building rapport means interviewers usually shouldn’t rely
on highly confrontational tactics right off the bat. However, he said it is sometimes
necessary to probe suspects’ or witnesses’ stories to find out the truth.
Okray said minimization and appearing to empathize with the suspect are important and
effective techniques. 42.
He said interviewers in his department have received different kinds of training programs
(including Reid), but that individual interviewers learn to pick and choose from different
training programs, selecting those tactics that work for them and rejecting others. 42.
Blinka asked if Okray’s department uses deception. Okray said the patrol level officers
use mainly information-gathering techniques, not including deception. Furthermore, he
said most interrogators learn early on that outright deception is not a good idea, because
an interviewer can easily get caught in a lie and lose all credibility. He said his agency
doesn’t have a policy banning deception, but he thinks his agency uses deception rarely
because it can backfire. 42.
Hammond asked about storage and transcription of recordings. 43. Okray said his
agency is switching to digital, which will help with storage. He also said all recordings
are transcribed by Sheriff’s Department secretaries. 43.
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Smith asked if Okray knows of any recorded interrogations that have resulted in
suppression, and Okray said no. 43.
[LUNCH]
Discussion of False Confessions and Police Interviewing
Blinka began the afternoon discussion. He explained that he was moderating because
Mike Malmstadt asked him to. He said that he would first give Kassin and Nelson a
chance to respond to the morning’s presenters, then move on to a discussion of funding
for electronic recording equipment, then perhaps discuss what course the Commission
would like to pursue on false confessions. 43.
Kassin discussed the presentations by Doheny, O’Keefe, and Okray. He first reiterated
that judgments about deception are often wrong, and therefore detectives should
recognize that they are sometimes interrogating innocent people. 44.
He then discussed deception, noting that the Commission’s discussion covered several
different kinds of deception. First, he thought he heard consensus that police should not
affirmatively lie about evidence. However, he said he has no concern about a second
kind of deception—the use of questions such as “What would you say if I told you your
fingerprints were on the weapon?—because he doesn’t think that would induce a
confession from an innocent person. 44. But he said he is concerned about a third kind
of deception—when police say they have fingerprints or DNA to test when in fact they
don’t—because innocent people may assume such evidence will exonerate them, which
may make them confess on the assumption that the evidence will eventually prove the
confession false. 45. Kassin said he would nix the first and third of these kinds of
deception.
Kasson discussed minimization. 47. He cited research suggesting that, when an
interviewer uses minimization, the suspect interprets it as a promise of leniency, which
means that minimization functions the same as an explicit promise of leniency. But
Kassin also said that he doesn’t believe minimization alone—unaccompanied by
deception or a very long interrogation—is going to cause a false confession.
Hegerty suggested that the purpose of recording is to determine whether the totality of all
these factors and techniques would have produced a false confession. Kassin agreed, but
he said that, at this point, it’s an open question whether juries will be able to discern false
confessions.
Kassin discussed the relative merits of audio versus video recording. 48.
Hammond asked about length of interviews, first noting the difference between the
aggregate length over multiple interviews and the length of a single interview. Kassin
agreed that the concern should be with the length of single sessions, because lengthy
single sessions cause stress, which can trigger a false confession. 48. He also said that
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the time factor is related to whether suspects are allowed meals, breaks, and social
contact. He said new health research has proven that lack of social contact greatly
increases stress. He noted that England requires breaks and meals during specific time
periods. He said that, because of the variation in interrogations, he would not favor a
blanket time limit on interrogations. 49.
Hammond said that he thinks the Commission may want to give the electronic recording
mandates time to take effect before recommending other reforms. 51. He also suggested
the Commission should consider other aspects of the system, besides police.
The Commission discussed whether judges and juries will be required to watch entire
recordings of very long interrogations. 51. Mowris said that, if police conduct long
interrogations, the legal system should be expected to review them. He said the practical
problems for the legal system might result in time limits.
Buting wondered whether judges will need expert testimony, or training, about the causes
of false confessions. 51. Findley said that one possible product the Commission could
produce is a report to the legal community about some of the issues surrounding false
confessions. 52.
Blinka then asked Nelson to respond to the discussion so far. 52. Nelson first said that
recording is going to change the way police interview.
He then pointed out that the Commission’s rule on deception would get bogged down in
semantics about the definition of deception, just as happened during some of the earlier
discussion of the proposal. 52. He said these semantic discussions would tax courts’
time and resources.
Nelson said that in his 12 years working with electronic recording in St. Paul, he’s only
aware of one false confession. 53. This leads him to believe that recording prevents false
confessions. Furthermore, with recording, if a false confession does occur, the recording
will make it possible for attorneys, experts, and juries to review it. 54.
Blinka said, however, that there’s no clear standard for lawyers or even experts to
determine whether a confession was accurate. 54-5. He also said that the legal doctrines
regulating police interrogation (such as Miranda and voluntariness) have always been
minimal and have been watered down by the courts in recent years.
Discussion of Funding for Electronic Recording Equipment
Blinka then switched to a discussion of funding for electronic recording. 55.
Hegerty said that setting up interview rooms for electronic recording in Milwaukee
County will cost $1.2 million for the first two years, followed by $200K-$300K per year
after that. 55.
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Okray (from Portage County) said his agency is transitioning to digital. They have two
interview rooms. For one room, it cost $4000 to add a new camera, digital recording
equipment, and a microphone. They also have 20 handheld digital recorders, which cost
$123 each. Okray also said all recordings are transcribed (at the request of the District
Attorney) by Sheriff’s Department’s secretaries. 56.
Hegerty discussed the expenses that contributed to Milwaukee’s cost estimate. 57-8.
Hammond pointed out that DOJ’s interpretation of the recording requirement is that “if
it’s a Miranda moment, it’s a recording moment,” which means that recording will have
to be done in the field, not only in stationhouses. 61.
Wray said that some of the funding will have to come from local municipalities and that
it would be useful for an entity like the Commission to inform local municipalities that
it’s important and necessary to fund recording, and that law enforcement isn’t just asking
for “new toys.” 61.
Buting and Hegerty agreed that, in Milwaukee County, convincing localities to fund
recording will be very difficult because of budget constraints. Hegerty said that,
sometimes with unfunded mandates, her Department is forced to do things “on the
cheap,” which ultimately results in having to pull officers on the street. She said she
can’t afford to do that at this point. 62.
The Commission discussed whether Milwaukee could reduce its initial costs, and whether
the funding provided through OJA will be adequate once the initial start-up costs no
longer exist. 62-3.
The Commission, and Steve Grohman (from OJA), discussed how long the funding from
the legislature will last. 64.
The Commission discussed how it could assist law enforcement with funding for
electronic recording. Blinka suggested that the Commission could produce a document
explaining the positive aspects of electronic recording in the criminal justice system and
expressing support for law enforcement’s funding requests. 65. Wray said that kind of
document could be useful in explaining to funding bodies that recording is not simply
another “toy.” The Commission discussed whether it could find statistics to prove that
recording reduces overtime costs by reducing court time.
The Commission discussed transcription. 67-9.
Blinka said he believed there was consensus that the Commission would draft a position
paper to support law enforcements’ funding requests. 70. Blinka also said members of
the Commission could testify before funding bodies in support of law enforcement’s
funding requests. 70.
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Blinka then asked the Commission members if they wanted to conclude the meeting or
continue the discussion on false confessions. He said the Commission’s next task should
be to decide what work product/proposal will emerge from the Commission’s discussion
on false confessions: the Commission should consider whether it wants to 1) propose an
exclusionary rule, perhaps like the draft focusing on deception, to address certain
interrogation techniques, or 2) instead of an exclusionary rule, address the false
confession problem through police training documents. He also suggested that the
Commission could set up some kind of research apparatus to track some of the important
issues such as: what kinds of interrogation techniques are used, whether recording causes
a decline in suppression motions, how many videotaped confessions are suppressed, etc.
70.
Hammond said that DOJ had already made efforts in training on eyewitness identification
and electronic recording, and he indicated there are other possibilities for training in the
false confession area. 72.
Findley followed up on Blinka’s idea of a research group and asked if the law
enforcement representatives would be willing to make electronic recordings available for
study. Wray and Hegerty said they’d be willing to provide materials and assistance for
that kind of research project. 72-3. Wray said that, although he thinks recording will
solve some of the problems, there may still be problems, in part because jurors may not
understand the effect of interrogation techniques like minimizing. 73.
Mowris and Smith said that defense counsel also needs to be trained about how to review
electronic recordings to detect possible false confessions. Mowris said that, in many
cases, defense counsel will be the first person to look at a recording and decide whether
there are any problems with the interrogation. 73. Maples said that the defense attorney
who reviews the tape will usually be someone making little money for the representation.
74.
Blinka closed the meeting by saying the Commission should take up these issues and
proposals at the next meeting.
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