MEMO
To: Wisconsin Criminal Justice Study Commission
From: Byron Lichstein, staff attorney
5/1/06
RE: Law and practice in other countries concerning police interrogation
At this Commission’s meeting on 2/23/06, several members requested further
information about the law and practice in other countries concerning police interrogation.
This memo summarizes my research on that topic. I have focused on examples of other
countries that provide greater protections against false confessions than America does,
and therefore this memo does not include examples of countries that provide lesser
protections.
I. The United Kingdom
Statutes and court decisions
In response to a series of proven false confessions, Britain’s legislative body
passed the Police and Criminal Evidence Act (PACE) in 1984.1 PACE states that,
If, in any proceedings where the prosecution proposes to give in
evidence a confession made by an accused person, it is represented to
the court that the confession was or may have been obtained—
a) by oppression of the person who made it; or
b) in consequence of anything said or done which was likely, in
the circumstances existing at the time, to render unreliable any
confession which might be made by him in consequence thereof,
the court shall not allow the confession to be given in evidence against
him except in so far as the prosecution proves to the court beyond
reasonable doubt that the confession (notwithstanding that it may be
true) was not obtained as aforesaid.
A few points about this statute warrant further discussion. First, several of the
statute’s vague terms (such as the term “oppression” and the phrase “likely to render the
confession unreliable”) have been clarified by British court decisions. A few significant
cases include:
R v Mason [1987] 3 All E.R. 48l: Interviewer obtained defendant’s confession
by falsely telling defendant and defendant’s lawyer that his fingerprints had
See Tom Williamson, “Towards greater professionalism: minimizing miscarriages of justice,” p. 150-153
in “Investigative Interviewing: Rights, Research and Regulation,” edited by Tom Williamson, Willan
publishing (2006).
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been found at the crime scene. Court held that evidence obtained through this
deception was inadmissible, and further stated: “[W]e hope never again to
hear of deceit such as this being practised on an accused person, and more
particularly possibly on a solicitor whose duty it is to advise him, unfettered
by false information from the police.”
R v Kirk [2000] 1 WLR 567: Defendant questioned about a bag-snatching, but
not told that the victim eventually died as a result of injuries sustained during
the crime. Because defendant was deceived about the potential severity of the
charges against him, his confession was held inadmissible.
R. v Glaves [1993] Crim.L.R. 685: Under questioning by police, a 16 year-old
denied involvement 9 times, but the interviewers did not accept his denials
and repeatedly pressured him to confess. The court excluded the confession
under the “oppression” and “unreliability” prongs of PACE.
R. v Paris (1993) 97 Cr App R 99: A man of low intelligence was interviewed
over a period of 13 hours, and denied participating in the crime over 300
times. Interviewers refused to accept his denials, shouted at him, told him that
the interrogation would continue until he “got it right,” offered him scenarios
under which he might have committed the crime but forgotten it (such as the
possibility that he might have committed the crime in a drug-induced state),
threatened him with a life sentence, exaggerated evidence against him and
falsely claimed that his alibi had been “blown away,” and, after he had
admitted involvement, provided him with details of the crime so that he could
repeat them back to the interviewers. The court concluded that all of these
factors contributed to the conclusion that the confession was obtained through
“oppression” and under circumstances likely to render it unreliable.
R v Cox [1991] Crim. L.R. 226: A confession was deemed unreliable because
the confessor had an IQ of 58. In at least two other cases, R v McKenzie,
[1993] 1 WLR 453, and R v Wood, [1994] Crim LR 222, British courts have
relied heavily on the confessor’s low intelligence to conclude that a
confession was made under circumstances likely to render it unreliable.
PACE’s approach to reliability is different than the approach taken in this
Commission’s draft rule. Although the focus of PACE (like the draft the Commission
will consider) is on reliability, PACE (unlike the Commission’s draft) does not allow
British courts to consider whether the confession that resulted was actually reliable;
instead, PACE limits British courts to considering whether the circumstances that
preceded the confession were likely to render it unreliable. In other words, a confession
obtained using methods that increase the risk of unreliability cannot be saved by proof
that the resulting confession was reliable.2
See Peter Mirfield, “Silence, Confessions, and Improperly Obtained Evidence,” p. 99, Oxford University
Press (1997)(discussing cases illustrating this principle).
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Finally, it should be noted that the above statute imposes a more demanding
burden of proof on the prosecution than the burden imposed by the draft the Commission
will be reviewing. For the British statute, once a defendant alleges that the confession
was obtained through oppression or behavior by the interviewer likely to render the
confession unreliable, then the burden shifts to the prosecution to disprove the
defendant’s claims “beyond a reasonable doubt.” This is a more difficult burden than the
“preponderance of the evidence” burden imposed on the prosecution by the
Commission’s test.
“Codes of Practice” for questioning suspects
Apart from the text of PACE and cases interpreting it, the British government also
implemented “Codes of Practice” designed to give police specific rules for interviewing
suspects. Several noteworthy provisions state:
No police officer shall indicate, except in answer to a direct question, what
action will be taken on the part of the police if the person being interviewed
answers questions, makes a statement or refuses to do either. If the person
asks the officer directly what action will be taken in the event of the person
answering questions, making a statement or refusing to do either, then the
officer may inform the person what action the police propose to take in that
event provided that the action is itself proper and warranted. PACE, Code C,
“A Code of Practice for the Detention, Treatment, and Questioning of Persons
by Police OfficersӤ 12.3.
A juvenile or a person who is mentally disordered or mentally vulnerable,
whether suspected or not, must not be interviewed or asked to provide or sign
a written statement in the absence of the appropriate adult unless there is an
immediate risk of harm to other persons or serious harm to property. § 13.1.
It is important to bear in mind that, although juveniles or persons who are
mentally disordered or mentally vulnerable are often capable of providing
reliable evidence, they may, without knowing or wishing to do so, be
particularly prone in certain circumstances, to provide information which is
unreliable, misleading or self-incriminating. Special care should therefore
always be exercised in questioning such a person, and the appropriate adult
involved, if there is any doubt about a person’s age, mental state or capacity.
Because of the risk of unreliable evidence it is also important to obtain
corroboration of any facts admitted whenever possible. § 13B.
In any period of 24 hours a detained person must be allowed a continuous
period of at least 8 hours for rest, free from questioning, travel or any
interruption arising out of the investigation concerned. This period should
normally be at night. The period of rest may not be interrupted or delayed
unless there are reasonable grounds for believing that it would (i) involve a
risk of harm to persons or serious loss of, or damage to, property; (ii) delay
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unnecessarily the person’s release from custody; or (iii) otherwise prejudice
the outcome of the investigation. § 11.2.
Breaks from interviewing shall be made at recognised meal times. Short
breaks for refreshment shall also be provided at intervals of approximately
two hours, subject to the interviewing officer’s discretion to delay a break if
there are reasonable grounds for believing it would (i) involve a risk of harm
to persons or serious loss of, or damage to, property; (ii) delay unnecessarily
the person’s release from custody; or (iii) otherwise prejudice the outcome of
the investigation. § 11.7.
An officer not below the rank of Inspector will formally review the
circumstances of the detention of all persons held in custody without charge
within 6 hours of their detention. He or she will endorse the custody record
and may authorise further detention up to a maximum of 9 hours from the
time of the review where appropriate. Further reviews may be conducted by a
review officer extending periods of detention to a maximum of 24 hours from
commencement of detention. An Inspector may, in addition, informally
review the circumstances of the detention of all persons in custody at least
once during their tour of duty, endorsing the custody record. § 16.4
The detention of any person for a period in excess of 24 hours must be
authorised by an officer of the rank of Chief Inspector or above, and the
custody record will be endorsed to that effect. The officer conducting that
review will endorse the custody record and may authorise further detention up
to a further 12 hours from the time of the review. § 16.5.
Training on interviewing
Please see the attachment titled “Article_on_British_interviewing” for
information on British training concerning interviewing.
II. Italy
In Italy, a defendant’s statement to police (custodial or otherwise) cannot be
admitted into evidence unless defense counsel was present during the questioning.3
However, the fruits of the statement may be admitted regardless of whether counsel was
present.4
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Stephen C. Thaman, “Miranda in Comparative Law,” 45 St. Louis L.J. 581, 592-3 (2001).
Personal communication with Stephen Thaman, 4/13/06.
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III. Germany
In Germany, a statute explicitly prohibits police from using “deceit” during an
interview with a suspect.5 If deceit is used, any statement made during the interview is
inadmissible. However, the fruits of such statements are generally admissible.6
German law also requires that the accused should be allowed a full opportunity to
remove any suspicion against him and point out those circumstances which are favorable
to his defense.7
IV. Spain
In Spain, no evidence produced by custodial questioning can be admitted unless
defense counsel was present during the questioning.8 However, evidence produced from
non-custodial questioning can be admitted if the suspect is advised of his/her right to a
lawyer and right to remain silent and validly waives those rights.9
5
German Criminal Procedure Code, Section 136(a)(1).
StV 3/98, at 119, 120-21; and Personal Communication with Ralph Grunewald (German criminal defense
attorney), 4/17/06.
7
Barbara Huber, “Criminal Procedure in Germany,” chapter at p. 118 in “Comparative Criminal
Procedure,” ed. by John Hatchard, Barbara Huber, and Richard Vogler, 1996.
8
Stephen C. Thaman, “Miranda in Comparative Law,” 45 St. Louis L.J. 581, 593 (2001).
9
Id. & personal communication with Stephen Thaman, 4/13/06.
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