MEMO
To: Wisconsin Criminal Justice Study Commission
From: Byron Lichstein, Staff Attorney
RE: Discussion of the Sub-Committee on Remedies for False Confessions following
Police Deception
4/27/06
At this Commission’s meeting on February 23rd, 2006, members discussed potential
reforms designed to enhance the reliability of confession evidence obtained during police
questioning of suspects. The Commission agreed to review a draft of a pre-trial
exclusionary rule which would make confession evidence inadmissible if it is obtained as
a result of police deception, unless the prosecution establishes that the evidence is reliable
(the precise rule has been provided in a separate attachment). In addition, a subcommittee made up of Gerry Mowris, Michael Smith, and Noble Wray was charged with
exploring whether the Commission, rather than adopting an exclusionary rule, might
more effectively reduce the risk of false confessions by recommending protocols for
interview and interrogation of suspects—protocols which could be adopted by local
police managers and adapted to local circumstances. I attended the sub-committee’s
meeting on April 26th, 2006. This memo summarizes some of the key points covered in
the discussion.
- Exclusionary rules are intended to force police managers to change policies and
practices in order to avoid suppression of evidence obtained by a disfavored method. For
an exclusionary rule to have effect, it must operate through the making, promulgating and
enforcing of agency policies. If police managers voluntarily implemented and enforced
policies aimed at preventing false confessions, an exclusionary rule would be
unnecessary.
- Although exclusionary rules are sometimes effective in changing police practice and
protecting defendants’ rights, they suffer from several drawbacks: 1) they sometimes
result in suppression of important evidence against guilty defendants, reducing the
likelihood that the guilty will be convicted and undermining the legitimacy of the
criminal justice system, 2) because exclusionary rules sometimes require suppression of
evidence against guilty defendants, courts tend either to interpret them narrowly or to
create exceptions which leave under-protected the interests the exclusionary rules were
designed to protect, 3) because exclusionary rules apply statewide, they are unlikely to
allow adequately for variations among localities.
- For these (and other) reasons, changes in policy and practice at the local level, made
without the courts requiring them, are generally preferable to statewide exclusionary
rules. However, to be effective, such local, uncompelled policy changes need to be
endorsed not only by agency executives (e.g., chiefs and sheriffs) but also by prosecutors
and police officials managing the detective function.
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- Several recurring features in the proven false confession cases are: 1) use of deception
by the interrogator, 2) vulnerabilities of the person being interviewed or interrogated,
[e.g, youth, mental disability, drug addiction]; 3) very long, uninterrupted periods of
interrogation; and 4) explicit or implicit threats or promises conditioned on whether the
suspect confesses. However, research has not yet revealed to what degree each of these
factors raise the risk of false confession either singly or in combination, nor has research
to date shown any specific interrogation technique to be necessary for obtaining true
confessions.
- There has been no systematic inquiry into standard interviewing practices in Wisconsin
(or variations from the standard). Therefore, the commission cannot know 1) whether
and under what circumstances Wisconsin investigators use deception, or whether these
investigators and their superior officers believe deception is necessary, 2) to what extent
Wisconsin investigators take special precautions with vulnerable suspects, 3) what
guidelines Wisconsin investigators follow regarding length of interrogations, or 4)
whether Wisconsin investigators utilize techniques that convey threats or promises
conditioned on the suspect’s confession.
- Nor has there been systematic inquiry into standard training on interview and
interrogation techniques in Wisconsin. Therefore, the Commission cannot know what
police and Sheriff investigators are taught about these issues.
- Before mounting an effort to draft model protocols which local law enforcement
agencies might adopt, it might be desirable for the Commission to gather and consider
information about current interviewing and interrogation practices, and about current
training in these areas. Unfortunately, it is not feasible (nor would it necessarily be
effective) for this Commission to survey all Wisconsin police agencies on these topics.
But it seems possible and desirable to ask the law enforcement executives on the
Commission to gather such information about their own agencies and to report what they
find to the other members. The members from law enforcement agencies could provide
this kind of information in any of a number of possible ways —oral or written
summaries, written agency policies, or brief presentations by agency investigators and
their supervisors or by those who train agency personnel in interviewing and
interrogation techniques. (Chief Wray, for example, agreed to provide at the next
Commission meeting: 1) the Madison Police Department’s policy on the use of deception
by interrogating detectives, 2) a brief description of some common practices used by
Madison police interviewers, and 3) a brief presentation from his Department’s primary
trainer on interviewing practices).
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