Interrogation, Confession, and Truth: Comparative Studies in Criminal Procedure [43, 1 ed.] 374890438X, 9783748904380

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Schriften zum Internationalen und Europäischen Strafrecht

43

Lutz Eidam | Michael Lindemann | Andreas Ransiek (eds.)

Copyright 2020. Nomos Verlagsgesellschaft mbH & Co. KG. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law.

Interrogation, Confession, and Truth Comparative Studies in Criminal Procedure

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Schriften zum Internationalen und Europäischen Strafrecht  Edited by Professor Dr. Martin Heger, Humboldt-Universität zu Berlin Professor Dr. Florian Jeßberger, Universität Hamburg Professor Dr. Frank Neubacher, M.A., Universität zu Köln Professor Dr. Helmut Satzger, LMU München Professor Dr. Gerhard Werle, Humboldt-Universität zu Berlin Volume 43

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Lutz Eidam | Michael Lindemann | Andreas Ransiek (eds.)

Interrogation, Confession, and Truth

Comparative Studies in Criminal Procedure

Nomos

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The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.d-nb.de ISBN

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Library of Congress Cataloging-in-Publication Data Eidam, Lutz / Lindemann, Michael / Ransiek, Andreas Interrogation, Confession, and Truth Comparative Studies in Criminal Procedure Lutz Eidam / Michael Lindeman / Andreas Ransiek (eds.) 214 pp. ISBN

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1st Edition 2020 © Nomos Verlagsgesellschaft, Baden-Baden, Germany 2020. Printed and bound in Germany. This work is subject to copyright. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. Under § 54 of the German Copyright Law where copies are made for other than private use a fee is payable to “Verwertungs­gesellschaft Wort”, Munich. No responsibility for loss caused to any individual or organization acting on or refraining from action as a result of the material in this publication can be accepted by Nomos or the editors.

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Introduction

Originally, the defendant’s interrogation was regarded mainly as an element of her or his right to be heard in criminal proceedings. Although this concept is still appealing in theory, the picture has changed in reality. Nowadays, interrogation follows a different purpose: a confession of the crime shall be obtained. The purpose of criminal procedure is to convict the guilty and protect the innocent – but the innocent only. Many prosecutors and judges seem to assume that somebody voluntarily confessing a crime clearly must be guilty. This is not only true for an inquisitorial system of criminal procedure but for the adversarial process as well. If the defendant confesses in the early stages of criminal proceedings, especially while being interrogated by the police, things are clear before the trial even starts. The cat is out of the bag and the defendant generally stands no chance to successfully revoke her or his admission of the crime. By interrogating the defendant the truth shall be found. To this end some pressure on the defendant and some trickery if not outright deceptions are deemed appropriate to uncover the true events that took place and constitute the crime. This does not mean that police brutality is generally welcomed. But when it comes to the prevention of terroristic attacks or the rescue of an innocent party, even brutality is not necessarily considered absolutely banned. On the other hand, both in Europe and the United States, the privilege against self-incrimination is guaranteed as a basic right of the accused, explicitly guaranteed by the 5th Amendment to the U.S. Constitution and mandated by both the protection of human dignity and by the rule of law of Germany’s Basic Law. It is a necessary element of a fair hearing according to the European Court of Human Rights. It is “one of our nation’s most cherished principles” as Chief Justice Earl Warren wrote for the majority opinion in Miranda v. Arizona. While it is widely accepted, too, that a defendant’s rights should not “handcuff” the police, it is common opinion that torture to obtain a confession is forbidden in regular criminal proceedings. Any recourse to physical force by the police which has not been made strictly necessary by the person’s conduct diminishes human dignity and is a violation of the European Convention of Human Rights according to the European Courts.

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Introduction

However, the legal demands are ambiguous when it comes to more subtle means of obtaining a confession. Does slapping a person once or twice constitute torture? Even if the answer is affirmative, we still have to consider what Fred Inbau wrote in 1961: “I am unalterably opposed to the use of any interrogation technique that is apt to make an innocent person confess. (…) I do approve of such psychological tactics and techniques as trickery and deceit (…) to secure incriminating information from the guilty.” So maybe, as a German law professor wrote in the 1970s, the defendant’s choice to remain silent is nothing but an artful “trick” obstructing the truth finding process and the administration of justice. Thus, the question is where the line has to be drawn. Is it sufficient to warn defendants that they have a right to remain silent and to have the assistance of a lawyer for their defense? What is the current status of the privilege against self-incrimination? Should a resulting confession be inadmissible if warnings were not given like Miranda v. Arizona stipulated in 1966 and the German Federal Criminal Court acknowledged some 25 years later as well? When has someone’s will been overborne and governing self-direction is lost, as Justice Felix Frankfurter put it in 1961? When, on the other hand, is truth discovered? More fundamentally: what is this thing called truth? Scholars from the Unites States, the Netherlands, and Germany have discussed these issues from their respective legal backgrounds and experiences in May 2019 at Bielefeld University and have contributed the papers you find in this volume. We were delighted to have you here for such a successful workshop!

Andreas Ransiek Michael Lindemann Lutz Eidam

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Content

List of Contributors The Suspect as a Source of Information

9 11

Thomas Weigend Pretrial Self-Incrimination, Miranda, and Truth

29

Anthony O’Rourke Contemporary Problems of the Right to Remain Silent in Germany

49

Lutz Eidam The Legality of Trickery During Interrogation

61

Christopher Slobogin The Mr. Big Method: On or Beyond the Boundaries of Lawfulness and Reliability?

87

D.A.G. van Toor / R. Horselenberg Erosion of the Right to Silence in Dutch Criminal Justice?

123

J.H. Crijns / M.J. Dubelaar Self-Incrimination Privilege and Interrogation. A German and Comparative View

151

Andreas Ransiek Structural Police Deception in American Police Interrogation: A Closer Look at Minimization and Maximization

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Richard A. Leo Report on the Comparative Conference on Criminal Procedure at Bielefeld University, Interrogation, Confession, and Truth, 21 – 22 May 2019

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Alexandra Westermann / Matthias Newerla

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List of Contributors

Crijns, Jan H., Faculteit der Rechtsgeleerdheid, Universiteit Leiden, Nederland. Dubelaar, Marieke J., Faculteit der Rechtsgeleerdheid, Radboud Universiteit, Nijmegen, Nederland. Eidam, Lutz, Fakultät für Rechtswissenschaft, Universität Bielefeld, Deutschland. Horselenberg, Robert, Faculteit der Rechtsgeleerdheid, Universiteit Maastricht, Nederland. Leo, Richard A., University of San Francisco School of Law, USA. Newerla, Matthias, Fakultät für Rechtswissenschaft, Universität Bielefeld, Deutschland. O’Rourke, Anthony, Advocacy Institute, University at Buffalo School of Law, USA. Ransiek, Andreas, Fakultät für Rechtswissenschaft, Universität Bielefeld, Deutschland. Slobogin, Christopher, Vanderbilt University Law School, Nashville, USA. Toor Dave van, Willem Pompe Institute for Criminal Law and Criminology, Utrecht University, Nederland.

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List of Contributors

Weigend, Thomas, Rechtswissenschaftliche Fakultät, Institut für ausländisches und internationales Strafrecht, Universität zu Köln, Deutschland. Westermann, Alexandra, Fakultät für Rechtswissenschaft, Universität Bielefeld, Deutschland.

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The Suspect as a Source of Information Thomas Weigend

I.

Why Should the Suspect Serve as a Source of Information?

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II. A Brief Journey to the Past

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III. The Role of the Suspect before Trial

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IV. Mechanisms Protecting the Suspect?

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V.

1. Presumption of Innocence

19

2. Privilege against Self-Incrimination

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The Suspect as a Co-Equal Party to the Pretrial Proceedings

21

1. Non-Controversial Consequences

22

2. Problem Areas

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a) Suspects and Non-Suspects

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b) Interrogation

24

3. Exclusion of Illegally Obtained Evidence VI. Concluding Remarks

26 28

I. Why Should the Suspect Serve as a Source of Information? In this chapter, I wish to explore the basic question what role the suspect is to play in the criminal process, especially before trial. I will start with a short trip into the distant past and will then take a brief foray into procedural theory. These steps may not be of immediate help in resolving any of the practical problems of police interrogation. But sometimes it is useful to take a step back from case law and to ask a few naive questions. The first question of this kind is: Why should the suspect be obliged to serve as a source of information for law enforcement agencies in the criminal process? In the German legal literature, one can often find ambivalent statements about the role of the suspect: on the one hand, he must be treated as a subject, not a mere object of the proceedings; on the other

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Thomas Weigend

hand, he can be forced to participate in the process and serves as evidence.1 The suspect’s obligation to participate includes an enforceable duty to appear for interrogations at the prosecutor’s office (§ 163a s. 3 German Code of Criminal Procedure [Strafprozessordnung, StPO], and it extends to presenting his body for medical examinations (§ 81a StPO), to tolerate searches of his person, his home and his property (§ 102 StPO), and to be subjected to all kinds of secret measures of surveillance (§§ 100a et seq. StPO). There is also pretrial detention, exclusively provided for persons suspected of crime (§ 112 StPO). Although not per se a device for collecting evidence, detention has the welcome side-effect of making suspects more willing to talk in order to regain their freedom. Since the danger of tampering with evidence is one of the grounds permitting pretrial detention (§ 112 s. 2 no. 3 StPO), suspects may be encouraged to confess and thereby to minimize the risk that any destruction of evidence could prevent a conviction, which would remove that grounds for detention. Looking at the totality of obligations the law imposes on the suspect, one is hard-put not to conclude that he is an „object“ of the criminal proceedings. The situation is not fundamentally different in Anglo-American procedural systems. Suspects are subject to arrest and detention before trial, they can be held for interrogation, their person and effects can be searched, and their telephones and computers may be placed under secret surveillance. Whatever the suspect says under questioning2 can be introduced as evidence against him at his trial. The fact that the suspect is subject to intrusive measures of investigation may come as a surprise, because in an adversarial system the defendant is styled a co-equal party to the proceedings. One would therefore expect the suspect (and future defendant) to have a stronger legal position, on more or less the same level as the prosecutor. Such a position would also square with the notion of “equality of arms”, which implies that the defendant must have adequate means to defend himself effectively and to offer evidence.3 However, it is only at the trial that the defendant is afforded this kind of procedural equality; at the critical phase of the investigation, even

1 Roxin/Schünemann, Strafverfahrensrecht, 28th ed. 2014, p. 106; Rogall, in: Wolter (ed.), Systematischer Kommentar zur Strafprozessordnung, 5th ed. 2016, vor § 133 notes 123, 129; Meyer-Goßner/Schmitt, StPO, 62nd ed. 2019, Einl note 80. 2 In England, even the fact that the defendant declined to answer certain questions put to him can be used as an argument for disbelieving any defense he may present later. See Police and Criminal Evidence Act 1984, Code C, s. 10.5. 3 See, e.g., ECtHR, Borgers v. Belgium, no. 12005/86, Judgment of 30 Oct. 1991, §§ 24-29; Kuopila v. Finland, no. 27752/95, Judgment of 27 April 2000, §§ 37-38;

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The Suspect as a Source of Information

the Anglo-American system does not treat the suspect as a co-equal party but limits his protection to certain civil rights, such as the freedom from unreasonable searches and from oppressive interrogations.4

II. A Brief Journey to the Past Looking for an explanation, let us take a brief journey back into history. In both systems, there may exist similar traditions dating far back in history, which could explain the similarity of the present situation. Let us first look at the European Continent5: In the early Middle Ages, “proof” in criminal cases was provided by oaths being sworn to support the claim of the plaintiff (i.e. the victim) or the defendant, or in the absence of sufficient community support for the defendant by ordeals (Gottesurteile), such as touching brand hot iron or being submerged into water to show guilt or (very rarely) innocence.6 By contrast, in canonic (ecclesiastical) courts bishops or their representatives relied on a rational investigation of the facts, based on procedures used in ancient Rome. At the 4th Lateran Council of 1215, the church withdrew its support from the execution of death sentences and the use of ordeals in secular courts.7 Jurisdiction of secular courts in criminal matters gathered importance due to the interest of local and regional authorities in administering criminal justice, partly in order to show and enforce their political power, partly to profit from the confiscation of the property of executed felons.8 In order to establish a plausible system of fact-finding, secular authorities borrowed the ecclesiastic style of searching for the truth by interrogat-

4 5 6 7 8

Zhuk v. Ukraine, no. 45783/05, Judgment of 21 Oct. 2010, §§ 25-28: Kasparov et al. v. Russia, no. 21613/07, Judgment of 3 Oct. 2013, §§ 64-65. For a comprehensive treatment, see Sidhu, The Concept of Equality of Arms in Criminal Proceedings under Article 6 of the European Convention on Human Rights, 2017. See, for the United States, the rights listed in the 4th, 5th and 6th amendment to the Constitution. For a short overview see Ambos, Jura 2008, 586. See the description of practices in Blackstone, Commentaries on the Laws of Englands in Four Books, 1893, vol. 2, Book IV, pp. 342 et seq. Decisions of the IVth Lateran Council, Canon 18 (http://www.intratext.com/IXT/E NG0431/). In a process that took centuries, local and regional authorities exercising criminal jurisdiction pushed aside the individual victim, who in former centuries had been the formal prosecutor, and presented themselves as both prosecutors and judges; see Weigend, Deliktsopfer und Strafverfahren, 1989, pp. 86 et seq.

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Thomas Weigend

ing suspects and witnesses under oath. Problems started when courts began to follow the Biblical exhortation9 that two (male) eye witnesses to the crime are needed for a conviction. Since many crimes were not committed in public, the means of proof required for a conviction were often not available – which led to a fateful reliance on the only alternative path to conviction, that is, the suspect’s confession. We all know that legal systems were incredibly inventive in devising means for encouraging suspects to confess, and the famous 16th century German code of criminal law and procedure, the Constitutio Criminalis Carolina of 1532,10 was full of rules indicating under what circumstances the „painful“ interrogation of a suspect was permissible.11 Technically, the result of the suspect‘s interrogation under torture was never to be used as evidence; only a confession made in open court was legally valid, but if the defendant refused to confess he faced further torture. An in-court confession made the presentation of further evidence unnecessary; the defendant could immediately be convicted and sentenced.12 It is no wonder that the widespread use of torture to obtain confessions initiated a tradition that regarded the suspect mainly as a source of information. The situation in England was quite different.13 Relying on a tradition starting with the Magna Carta of 1215 (ironically the same year in which the inquisitorial tradition began to take hold on the Continent), 14th century royal legislation established a jury of peers as an important bulwark against abusive prosecution and conviction. Originally, the jury was understood as a self-informing body of members of the suspect’s community who would already have, or be in a position to quickly obtain, the information necessary for deciding on the guilt or innocence of the defendant. The rule that findings of guilt by the trial jury had to be unanimous worked as a powerful protection. On the other hand, there was originally no procedural law that would regulate the taking of evidence before the jury, which functioned as a mysterious black box. In the 16th century, the process of urbanization made it no longer feasible for jurors to base their verdict on what they happened to have learned about the case and the person of the defendant. At the same time, laws be-

9 5 Mos. 19, 15; see also 2. Corinthians 13, 1. 10 For a comprehensive account of the Carolina and further developments see Ignor, Geschichte des Strafprozesses in Deutschland 1532–1846, 2002, pp. 41 et seq. 11 Carolina arts. 57-61. 12 Carolina arts. 58, 60. 13 The account on English developments is based on sources presented in Langbein/ Lerner/Smith, History of the Common Law, 2009, pp. 58 et seq., 578 et seq.

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The Suspect as a Source of Information

gan to regulate the process of gathering evidence before trial. The central figure came to be the Justice of the Peace, who was commissioned by the King to deal with legal matters in the community in the intervals between the half-yearly visits of the higher royal judges of the assize, who were authorized to conduct trials in felony matters.14 Originally, Justices of the Peace simply recorded complaints, including statements made by the victim (who at the trial served as prosecutor) and any witnesses the victim might bring along, as well as statements made by the suspect. The Justice of the Peace also decided on whether the suspect was to be taken into detention until the trial. At the jury trial, conducted before the judge, the prosecution was represented by the private victim or, in matters of importance to the Crown, by the Attorney-General. It should be mentioned that, although criminal punishments in 18th century England were no less cruel and severe than on the Continent, British judges – with the exception of a short period in the 17th century – never resorted to torture as a means of making the suspect confess. Nor was a confession necessary for conviction – the trial jury was not bound by the Biblical two-eyewitnesses rule but was free in its evaluation of the evidence, under the guidance of the trial judge. The defendant was precluded from testifying and thus reduced to the role of a silent observer at his own trial. It was only in the course of the 18th century that the assistance of a lawyer became available to defendants, and originally only to those accused of a felony.15 It took until 1898 for the defendant to be able to testify in his own behalf.16 But what about the suspect’s role as a source of evidence? In the middle of the 18th century, some Justices of the Peace, especially in metropolitan London, took it upon themselves to actively search for evidence, and to proactively interrogate the suspect and witnesses with a view toward preparing evidence useful for the trial. Some of these Justices employed detectives who helped them gather information. But it was only with the early 19th century development of an organized urban police force – which also adopted the role of prosecutor at the criminal trial – that questioning of suspects became a regular feature of the pretrial process.17 Yet, with the advent of a state interest in the effective prosecution of crime, the temptation to use the suspect as a main source of evidence seemingly became irresistible even in English-

14 15 16 17

Langbein/Lerner/Smith, History of the Common Law, 2009, pp. 665-671. Langbein/Lerner/Smith, History of the Common Law, 2009, pp. 690-692. An Act to Amend the Law of Evidence, 1898, 61 & 62 Vict. c. 36. Langbein/Lerner/Smith, History of the Common Law, 2009, p. 706.

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Thomas Weigend

speaking jurisdictions. Restrictions and regulations of police efforts to obtain confessions were implemented only through the jurisprudence of the U.S. Supreme Court in the 1960s18 and 1984 legislation in England.19

III. The Role of the Suspect before Trial After this look into the past, let us return to the more fundamental question: Should the suspect be obliged to provide information, even passively, in a process that is conducted against him and is likely to lead to his conviction and punishment? How, if at all, can this obligation against his clear interest be justified? Would it not be preferable to grant the suspect the right to stay completely aloof from the investigation? Several arguments can be made in favor of the status quo. There is, first of all, the obvious fact that the suspect is a prime source of relevant information. One might argue that the police must be able to collect information from the suspect (and secretly from other sources as well) in order to catch up with the offender, who after all knows best about all circumstances of the crime and thus has every opportunity to conceal relevant evidence. But this argument is flawed in two respects: first, it assumes that the suspect is in fact the offender – which is contrary to the presumption of innocence. More importantly, the mere fact that a person may possess relevant information does not confer any legal authority upon the State to obtain that information; in other words, the fact that the suspect may be a rich source of information is not a sufficient normative argument for overruling his interest in being left alone, especially where an investigation is likely to lead to his conviction. A more powerful argument differentiates between the trial and the pretrial phases of the criminal process. At the trial, the defendant has a specified role. In the Continental criminal process, he may actively contribute to the court’s efforts to determine the truth.20 In the Anglo-American pro-

18 See the landmark decisions of the U.S. Supreme Court in Escobedo v. Illinois, 378 U.S. 478 (1964); Miranda v. Arizona, 384 U.S. 436 (1966). For a comprehensive treatment, see Ransiek, Die Rechte des Beschuldigten in der Polizeivernehmung, 1998, pp. 23 et seq. 19 Police and Criminal Evidence Act 1984, ss. 58-60, 76-78. 20 See especially § 244 ss. 3-6, § 245 StPO (right to request the taking of additional evidence and to present evidence at trial), § 257 StPO (right to comment on any piece of evidence), § 258 s. 3 StPO (right to have the „last word“ at the end of the trial).

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The Suspect as a Source of Information

cess, he may make use of party rights to present and challenge evidence on an equal level with the prosecutor. The defendant also may choose a passive defense strategy and then need not do anything beyond being physically present.21 Before trial, by contrast, the suspect neither has a defined role nor any affirmative rights beyond the right to remain silent (§ 136 s. 1 2nd sent. StPO). In both the German and the Anglo-American systems, the pre-trial investigation has the purpose of collecting information and evidence in order to determine whether there is sufficient cause to make the suspect stand trial.22 Therefore, so the argument goes, investigators should have access to all information needed to enable the prosecutor to make an intelligent decision on whether to prosecute, which includes information in the possession of the suspect. But that argument more or less restates the present law and fails to explain why the state’s interest in investigating crime should override the suspect‘s right to be left alone. The missing element in this line of argument may be the proposition that citizens generally rely on and benefit from a functioning police and criminal justice system and therefore are obliged to support the state in its efforts to determine the truth about crime by providing any relevant information they may have.23 This line of argument explains the general obligation of everyone to offer his time and effort if summoned to appear as a witness, and to submit documents and other objects if they are needed as evidence. Does this general reciprocal obligation of active cooperation extend to the person whose (possible) crime is the object of the investigation? In a recent monograph, Luna Rösinger states that the suspect must be exempted from this obligation. By labeling him a suspect, she claims, the state conditionally excludes him from the community of morally co-equal persons; the state hence cannot expect him to continue to fulfil the civic duty of cooperating in the criminal process.24 This argument is interesting; but it is precarious in that it lets the mere suspicion of having committed a crime suffice to change the suspect’s status to the extent of dispensing him from normal civic obligations. If the presumption of innocence can be taken se-

21 See § 230 s. 2, § 231 StPO (defendant’s duty to be present at trial), § 243 s. 5, 1st sent. StPO (judge must inform the defendant of his right to remain silent). 22 In Germany, the prosecutor is expected to consider both incriminating and exonerating evidence (§ 160 s. 2 StPO). 23 See for this argument (Aufopferungsgedanke, „solidarity principle“) Rösinger, Die Freiheit des Beschuldigten vom Zwang der Selbstbelastung, 2019, pp. 171 et seq. 24 Rösinger, Die Freiheit des Beschuldigten vom Zwang der Selbstbelastung, 2019, pp. 153 et seq., 189 et seq.

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riously, it should work as a sufficient counterweight against a premature degradation of the suspect, thus preserving his status of a responsible participant in the process. But I concede that it is questionable to use the presumption of innocence as a basis for imposing obligations on the suspect.25 Even if we regard the suspect as being obliged to provide some cooperation, the fact that the investigation is directed against him – triggering his strong interest in self-preservation – suggests a strict limitation of any civic duty to serve (even passively) as a source of information in the criminal process. The suspect’s obligation to cooperate can certainly not be more extensive than the obligation of persons not targeted by the investigation. German procedure law, however, permits infringements of a suspect’s personal sphere to a much larger extent than with regard to third parties. Only suspects may be detained before trial (§ 112 StPO); incisive measures such as secret telephone surveillance and acoustic surveillance of the home may be directed only against suspects (§§ 100a III, 100c II StPO), and searches of suspects and their possessions are permissible to a greater extent than searches of other persons (§§ 102, 103 I StPO). This places the suspect at a double disadvantage: The state uses its power for gathering information and evidence against him; and the suspect is obliged to cooperate and serve as a personal source of information. The fact that there exists a suspicion against him – whatever its source and its strength – can hardly be regarded as a sufficient reason for turning the suspect into a primary source of information for the prosecution. The traditional distinction between the suspect’s role of an object of investigation before trial and of a party at the trial fails to reflect the fact that most cases today are disposed of without trial and that the outcome of the trial – where it takes place – is largely determined by the results of the investigation. The law should therefore recognize the suspect’s rights as a person from the very beginning of the investigation and should strive to assimilate his status to that of a party, that is, an agent of the process rather than a person subject to someone else’s investigatory efforts.

25 Rösinger, Die Freiheit des Beschuldigten vom Zwang der Selbstbelastung, 2019, p. 199 note 429, argues that the presumption of innocence (which is meant to protect the suspect) must not be abused for obliging the suspect to participate in the process like any other person.

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The Suspect as a Source of Information

IV. Mechanisms Protecting the Suspect? Present law does not meet that standard. But its proponents claim that two principles protect the suspect against overbearing by the State even during the investigation: the presumption of innocence and the privilege against self-incrimination. But do these principles really establish a reliable basis for safeguarding the suspect’s position as an autonomous person?

1. Presumption of Innocence We can give short shrift to the presumption of innocence. The number of times the presumption is cited in legal journals is quite out of proportion with its practical impact. According to the Anglo-American tradition, the presumption of innocence is used – counter-intuitively – as an abbreviation for the high standard of proof needed for conviction,26 which Germans express by the Latin maxim in dubio pro reo. Beyond that, the presumption of innocence denotes a prohibition of denouncing or treating someone as „guilty“ before his guilt has been established by a court.27 Evidently, the rules of the pretrial investigation remain largely unaffected by either meaning of the presumption. In fact, there is general consensus that the presumption does not prohibit anyone from drawing negative consequences from the existence of a suspicion against a person – as long as the term „guilty“ is not being used.28 Hence the presumption of innocence is

26 See, e.g., Bergman/Hollander, Wharton’s Criminal Evidence, 15th ed. 2005, vol. 1, pp. 23 et seq. This approach has been adopted by the European Court of Human Rights; see, e.g., ECtHR, Salabiaku v. France, no. 10519/83, Judgment of 7 Oct. 1988 § 28; Barbéra, Mességué and Jabardo v. Spain, no. 10590/83, Judgment of 6 Dec. 1988, § 77; Telfner v. Austria, no. 33501/96, Judgment of 20 March 2001; § 15. For criticism of this approach, see Weigend, in: Stein et al. (eds.), Systematik in Strafrechtswissenschaft und Gesetzgebung. Festschrift für Klaus Rogall, 2018, p. 739 at 753 et seq. 27 BVerfGE 74, 358; BVerfG NStZ 1992, 289; Roxin/Schünemann, Strafverfahrensrecht, 28th ed. 2014, p. 67; for an extensive discussion see Stuckenberg, Untersuchungen zur Unschuldsvermutung, 1998, pp. 67 et seq. 28 See, e.g., ECtHR, Allenet de Ribemont v. France, no. 15175/89, Judgment of 10 Feb. 1995, §§ 38 et seq.; Daktaras v. Lithuania, no. 42095/98, Judgment of 10 Oct. 2000, §§ 41 et seq.; Garycki v. Poland, no. 14348/02, Judgment of 6 Feb. 2007, §§ 67 et seq.; Fatullayev v. Azerbeijan, no. 40984/07, Judgment of 22 April 2010, §§ 159 et seq.

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of little value to a person that has become the target of a criminal investigation.

2. Privilege against Self-Incrimination What, then, about the privilege against self-incrimination? The right to remain silent, which in the German tradition is expressed by another Latin maxim, nemo tenetur seipsum accusare, certainly is relevant for our topic, not least because the privilege attaches early in the criminal process and limits the authority of the state to enforce a suspect’s active cooperation. Much has been written about the possible historical and doctrinal sources of the privilege against self-incrimination, and in the end its basis remains somewhat shaky.29 In Germany, the Constitutional Court and many legal writers have drawn a connection between the privilege and the supreme constitutional value of human dignity.30 But it remains unclear what exactly violates human dignity if the law obliges a person to actively contribute to his accusation or conviction. If one uses the popular „object“ formula, that is, human dignity is violated if a person is treated not as an end in himself but as a mere object of the interests of others, it must be acknowledged that any witness in the criminal process is mainly used as an object, more particularly: an object for promoting the state’s interest in discovering the truth.31 Others have claimed that the privilege against self-incrimination must be recognized in order to protect the freedom to conduct one‘s defense32 – but that freedom is limited in many ways, and an obligation to provide certain information does not necessarily make it impossible for the defendant to devise and conduct an effective defense at the trial. Finally, one may argue that a forced production of self-incriminatory evidence would go against a natural urge to protect oneself from harm. But that argument can be questioned on the ground that legal obligations of all kinds 29 For a comprehensive discussion, see Rösinger, Die Freiheit des Beschuldigten vom Zwang zur Selbstbelastung, 20919, pp. 8 et seq., 123 et seq. 30 BVerfGE 56, 37, 41 et seq.; BVerfG NJW 2005, 352, 353; BGHSt 34, 324, 326; 45, 367, 368; Kühne, Strafprozessrecht, 8th ed. 2010, p. 71; Roxin/Schünemann, Strafverfahrensrecht, 28th ed. 2014, p. 190; Rogall, in: Wolter (ed.), Systematischer Kommentar zur Strafprozessordnung, 5th ed. 2016,, vor § 133 note 132. 31 See Weigend, in: Albrecht et al. (eds.), Internationale Perspektiven in Kriminologie und Strafrecht. Festschrift für Günther Kaiser, 1998, vol. 2, p. 1481, 1482 et seq. 32 Bosch, Aspekte des nemo-tenetur-Prinzips aus verfassungsrechtlicher und strafprozessualer Sicht, 1998, pp. 103 et seq.; Lesch, ZStW 111 (1999), 624, 638; Böse, GA 2002, 98, 117, 121.

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The Suspect as a Source of Information

limit a person’s selfish desire to protect his interests, so that this self-interest cannot be regarded as a normative principle.33 Perhaps the most cogent explanation of the privilege against self-incrimination is to derive it from a person’s legally protected option to distance himself from a criminal investigation directed against him. But that option could not well be limited to the withholding of activities but should logically extend to all kinds of conduct (including passive conduct) that might further the investigation of a crime provisionally ascribed to the suspect.34 Given the uncertain foundation of the privilege, it does not come as a surprise that its extent is doubtful. Comparing different jurisdictions, we realize that in the United States the privilege is said to cover only testimonial evidence,35 whereas in Germany it is supposed to extend to all kinds of „activities“,36 including the provision of a breath sample by exhaling into a device for measuring the alcohol content of air. But if we understand the privilege against self-incrimination as protecting the autonomy and privacy of the suspect against forced participation in the investigation against him, a limitation of the privilege to „active“ conduct makes little sense: Why should it be a violation of human dignity (or autonomy or privacy or whatever other ultimate legal position is supposed to be involved) to be obliged to exhale or provide a voice sample, but not to submit to an extraction of a blood or saliva sample?

V. The Suspect as a Co-Equal Party to the Pretrial Proceedings A broad privilege against self-incrimination reflects a concept of the suspect as a co-equal party in pretrial proceedings rather than as a mere source of information.37 It is this concept that I would like to sketch in the last part of this chapter. The starting point of my argument is the assumption that the suspect should be treated as a person with a legitimate interest in protecting himself from the possible negative consequences of the investigation. This interest is legitimate even though it may (and often will) run

33 Lesch, ZStW 111 (1999), 624, 637-8; von Freier ZStW 122 (2010), 117 at 128-9. 34 For a further explanation of the „distancing“ interest see Rösinger, Die Freiheit des Beschuldigten vom Zwang der Selbstbelastung, 2019, pp. 153 et seq. 35 See Schmerber v. California, 384 US 757 at 766 et seq. (“evidence of a testimonial or communicative nature”) (1966); Fisher v. U.S., 425 U.S. 391 (1976). 36 Rogall, in: Wolter (ed.), Systematischer Kommentar zur Strafprozessordnung, 5th ed. 2016, vor § 133 note 142. 37 For a similar conclusion see Weßlau, ZStW 110 (1998) 1 at 33 et seq.

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counter to the state’s interest in discovering the truth. Respect for the suspect’s autonomy and his interest in self-protection makes it necessary to permit the suspect to withhold cooperation in the process if he thinks (rightly or wrongly) that a course of non-cooperation better serves his interests.

1. Non-Controversial Consequences Thinking through the consequences of this assumption will lead us into difficult decisions and value judgments as to the suspect’s procedural role. But before we approach the more difficult parts of a “suspect as party” model, let us remember some basics that apply under any understanding of a fair investigation and that have therefore been enshrined in the European Convention of Human Rights. There is, first, the right of any suspect to be informed, in the words of the European Convention, „of the nature and cause of the accusation against him“ (Art. 6 (3) (a) ECHR). This information must be provided promptly and in detail, since it is a necessary prerequisite for any defense effort the suspect may wish to undertake.38 The time of informing the suspect of the accusation is tied to the inception of the status of „being charged“, since the rights under Art. 6 (3) ECHR are granted only to persons „charged with a criminal offense“. The European Court of Human Rights has equated „charging“ with any official information of the suspect that criminal proceedings are conducted against him.39 This leads to a possible minimization of the information right: § 163a sec. 1 German Code of Criminal Procedure provides that the suspect shall be interrogated „at the latest, before the close of the investigation“ – which means that an investigation against him can be conducted secretly without the suspect even knowing about it until the very end. If that occurs, the suspect is never „charged“ in accordance with the definition of the ECtHR, and hence has no right of being informed of the accusation until his first interrogation very late in the process. This certainly has not been the intention of the authors of Article 6 (3) (a) ECHR; and it should indeed be re-

38 See ECtHR, Pelissier and Sassi v. France, no. 25444/94, Judgement of 25 March 1999, §§ 52-54; Drassich v. Italie, no. 25575/04, Judgment of 11 Dec. 2007, § 32. For an overview of the ECtHR jurisprudence see Weigend, in: Spinellis et al. (eds.), Europe in Crisis: Crime, Criminal Justice, and the Way Forward. Essays in Honour of Nestor Courakis, vol. II, 2017, p. 937. 39 ECtHR, Imbrioscia v. Switzerland, no. 13972/88, Judgment of 24 Nov. 1993, § 36; John Murray v. United Kingdom, no. 18731/91, Judgment of 8 Feb. 1996, § 62.

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quired that the information on the accusation be given as early as is possible without jeopardizing the effect of the first steps of an investigation. A suspect without legal assistance is the paradigmatic „mere object“ of the investigation; he is unaware of his rights and practical options and subject to possible overbearing and abuse. In a system that takes the suspect seriously as a participant in the pretrial process, it should be beyond doubt that he needs to have access to the assistance of counsel from the very start, and that includes especially the initial interrogation by police. Both the European Court of Human Rights40 and the European Union in its latest Directive on the matter41 have strengthened the suspect’s right to counsel, and Germany has– in 2017 at last – complied by affording the suspect’s lawyer the right to be present during his client’s police interrogation (§ 163a s. 4 StPO). But Germany still hesitates to abandon its outdated system of „necessary defense“, which provides counsel only for some groups of suspects and defendants (§ 140 StPO) and leaves many suspects without legal assistance because they cannot afford to pay for a lawyer. It is high time that the German system be brought up to the European and American standard, and a switch to a Legal Aid scheme would be the most promising way of achieving this goal.42

2. Problem Areas a) Suspects and Non-Suspects What further consequences flow from a re-thinking of the role of the suspect in the pretrial process? First, we should reconsider the extent to which the suspect must serve as a passive source of information. As mentioned above, there is no good reason for granting investigators access to his body, home and communications under easier conditions and to a broader extent than with other persons who may have relevant information. The suspect should not be exempt from investigatory measures altogether, because such a rule would reduce too radically the scope of information available

40 ECtHR, Salduz v. Turkey, no. 36391/02, Judgment of 27 Nov. 2008, §§ 54-55. 41 Directive (EU) 2016/1919 of 26 Oct. 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings. 42 Art. 4 of Directive (EU) 2016/1919 regrettably qualifies a suspect’s right to Legal Aid by the clause “when the interests of justice so require” (s. 1) and permits both means testing and merits testing of a suspect’s claim to Legal Aid (s. 2).

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to the police and ultimately the court. But the same restrictive rules – beyond the ineffectual requirement of judicial authorization of intrusive measures – should apply to infringements of the privacy of suspects as of non-suspects. As a consequence, examinations of the suspect’s body under German law should be restricted to the taking of blood samples and traces directly related to the commission of the crime under investigation (cf. § 81c StPO). The rules on secret surveillance of telecommunications and homes should be reviewed; the law should retain only those interferences with privacy that can as well be imposed, for the sake of an effective investigation, upon non-suspects. The mere fact that a person is suspected of having committed an offense that happens to be included in an ever-growing statutory list of offenses certainly is not a sufficient reason for permitting the State to continuously snoop in that person’s private communications. If anything, it is the importance of the investigation as such – not a person’s status as a suspect – that may legitimize such far-reaching measures.

b) Interrogation The purpose of interrogating a suspect has been described with admirable precision in § 136 sec. 2 of the German Code of Criminal Procedure: the suspect shall be provided with an opportunity to remove the grounds of suspicion against him and to point out facts speaking in his favor. One might think that this provision is an aberration based on misguided 1970s liberalism; but in fact it can be found, almost verbatim, in the original version of the Imperial Code of Criminal Procedure of 1877. It reflects an enlightened concept of the role of the suspect: he is regarded and respected as a partner in the effort to discover the truth, and he consequently has a right to be heard and to present his version of the relevant facts. If that is at least one important function of the interrogation, this is a further argument for involving the suspect as early as feasible in the investigation. An early interview of the suspect may be an important step toward presenting the police with a more complete picture of the events in question and toward guiding the investigation in the right direction. It may also be beneficial to the suspect who wishes to make a confession, because he may be given extra credit in sentencing for confessing at an early point in time before the police independently collected incriminating evidence. For a suspect who wishes to contest the charges against him, speaking with the police will certainly not be the only, and probably not the preferred avenue toward avoiding a conviction. His main concern will be to 24

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collect evidence on his behalf. The German legal system – like most other legal systems today – permits the defense to do so. Yet the suspect and his lawyer are denied any meaningful assistance, especially any means of coercion.43 This state of affairs is not satisfactory. A system that is willing to recognise the suspect as a party in statu nascendi should extend at least some amount of „equality of arms“ to the pretrial process, which would imply granting the suspect access to a judge for the purpose of having witnesses interrogated and warrants for seizures and possibly searches authorized, after proper examination of the plausibility and proportionality of the suspect’s claim for the evidence in question.44 Having cited the German provision on the purpose of the interrogation of the suspect, I am aware that reality at the police station does not quite reflect the idealist concept of the 19th century authors of the Strafprozessordnung. This raises the issue of how to protect the suspect under police interrogation against unfair attempts to elicit from him incriminating information or, in the optimal case from the police perspective, a full confession. Clearly, unfair and oppressive interrogation practices can have no place in a system that treats the suspect not as a mere source of information but as a legitimate participant in the pretrial process. Respect for the suspect’s wish to remain silent, and the prohibition of the interrogation methods listed in § 136a StPO thus reflect no more than an absolute minimal standard of decency. In fact, it is time to seriously discuss two furtherreaching issues: First, should it be permissible to use as trial evidence a suspect‘s statements that have been made in police custody after the suspect had waived his right to consult with counsel and to have a lawyer present at the interrogation? The questionable voluntariness of a waiver of rights in police custody and the importance of the assistance of a lawyer in this critical situation should be strong arguments against admitting such statements. Second, should it be permissible to use as evidence, against the defendant’s will, the testimony of undercover police agents or informers operating on behalf of the police about information they had obtained from the suspect? In a procedural model that I am advocating here, it ought not to be permissible for the state to circumvent the rules of fair warning in connection with an interrogation by having police agents pose as 43 § 163a s. 2 StPO permits the suspect to request the prosecutor to take specified evidence; but that provision is not helpful because it leaves it to the prosecutor to decide whether any evidence indicated by the defense is „relevant“. 44 For a relatively broad authorization of the defense to investigate before trial, see Art. 319bis et seq. Italian Codice di procedura penale.

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„friends“ and to elicit information from the suspect on the basis of this deceit. Although the Strafprozessordnung does not provide any explicit basis for such police tactics, German courts have accepted it on the grounds that an undercover agent does not openly “interrogate” a suspect, so that the provisions protecting the suspect in an interrogation do not apply.45 The Federal Court of Justice has, however, acknowledged an exception where an undercover police agent pretended to befriend the suspect who had previously told the police that he wished to remain silent.46 The latter case shows that granting police officers a license to commit fraud on a suspect in order to make him confess was a wrong step; in a fair proceeding that respects the suspect’s autonomy such tactics should generally be forbidden or should at least lead to the inadmissibility of any evidence they engender.

3. Exclusion of Illegally Obtained Evidence This takes us to the thorny issue of the consequences of a violation of the suspect’s rights in the course of a police investigation. There has been an extensive discussion as to the role of the exclusion of evidence in adversarial and inquisitorial procedural systems,47 with the latter being principally opposed to excluding evidence that might help the trial court discover the truth.48 In some jurisdictions (especially in the United States) exclusion of illegally obtained evidence has been introduced in order to make police comply with the rules of procedural law49 – which leads to the question whether exclusion of evidence has any deterrent effect on police, who may not even be aware of a court’s later decision to exclude certain evidence, or may in any event not care much about the outcome of a trial that takes place a long time after they have „cleared“ a case.50

45 BGHSt 40, 211, 218; 42, 139, 145. 46 BGHSt 52, 11, 14. See on this case Engländer, ZIS 2008, 163; Rogall, NStZ 2008, 110. 47 For a comparative discussion, see Turner/Weigend, in: Gless/Richter (eds.), Do Exclusionary Rules Ensure a Fair Trial? 2019, p. 255. 48 See BVerfG NJW 2010, 2937, 2938; NJW 2011, 2417; NJW 2012, 907, 910; BGHSt 38, 214, 219; 56, 127, 132. For further references, see Meyer-Goßner/Schmitt, StPO, 62dn ed. 2019, Einl notes 55, 55a. 49 See,e.g., Kastigar v. United States, 406 US 441, 460 (1972); Nix v.Williams, 467 US 431 (1984) (concerning derivative evidence after a violation of the law by police). 50 For a discusssion of the costs and benefits of excluding evidence when Miranda rules were violated, see Turner, in Gless/Richter (eds.), Do Exclusionary Rules Ensure a Fair Trial? 2019, p. 93, 122 et seq.

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The Suspect as a Source of Information

In discussing exclusionary rules, one should keep in mind that even in inquisitorial systems law enforcement officers and suspects will often pursue opposite interests. If we recognise the suspect as a co-equal participant, it becomes more plausible as a rule of fairness to deprive the opposing side of advantages it has obtained through illegal practices. That principle might allow for exceptions, but it should in general extend to the exclusion of derivative evidence unless it would inevitably have been discovered within a short period of time. By the same token, if a suspect was deprived of the assistance of counsel – for example, because police withheld information on an available legal aid system or blocked counsel’s effort to reach the suspect – this fault should be corrected by assuming that counsel would have advised the suspect to take the most beneficial course of defense, and to place the suspect in the position he would have had if he had taken the course proposed by a well-qualified defense lawyer. In many cases, this would mean that a selfincriminating statement the suspect made will be excluded from the evidence.51 But there may also be cases where a suspect, lacking legal advice, missed the opportunity to reduce his sentence (through plea bargaining or otherwise) by making an early confession. In such cases, the defendant should be afforded the sentence reduction that he would have obtained if he had been advised by a competent lawyer.52 A practical problem sometimes precludes defendants from successfully claiming the benefits flowing from the exclusion of incriminating evidence: they may not be able to carry the burden of proving police misconduct in the context of their interrogation, especially when the interrogation took place in police custody. German courts still uphold a presumption that the pretrial process followed the course prescribed by law, which implies that the burden is on the defendant to prove any deviation from that course.53 This doctrine, which has no identifiable source in the law, has rightly been criticized as unfair.54 It may go too far to demand that the state prove beyond a reasonable doubt that any claim of police illegality made by the defendant is false. Yet, if there are even minor indications that the police had violated the suspect’s rights, the ensuing evidence should be excluded unless the prosecution can show by a preponderance of the evidence that the defendant’s claim is false. 51 Even German courts have excluded evidence of self-incriminating statements in these cases; see BGHSt 47, 172; 58, 301; BGH NStZ 2006, 114. 52 For a persuasive argument in this regard see Albrecht ZStW 131 (2019), 97. 53 BGHSt 16, 164, 168; BGH NStZ 2008, 643. 54 See Gleß, in Löwe/Rosenberg, StPO Kommentar, 26th ed. 2007, § 136a note 78.

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VI. Concluding Remarks My somewhat outlandish proposal for recognizing the suspect as a quasiparty of the proceedings may well find favor with academics. But in the real world of law enforcement, I am afraid that I would be faced with an exasperated outcry of „This will never work! We would have to let all suspects go free!“ Is there a response to this criticism? Would it still be possible to have offenders convicted if my proposals became law? I am quite confident that criminal justice would not come to a halt. In the future (and that is starting already) there is likely to be a shift away from the confession – in the past famously called the „queen of proofs“ – to evidence that can be gathered without involving the person of the suspect: both Big Data and advanced scientific methods of finding traces of crime are waiting to be employed, discretely and effectively, for proving facts that the suspect may not be willing to disclose. These data may well have been collected before the status of suspect had been ascribed to anyone, so that it is not necessary to use the suspect as a source of information. This development may inevitably tilt the field of proof against the defendant; but it may at the same time create an opportunity to re-design the pretrial process in a way that respects the suspect as a co-equal player in the struggle about truth.

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Pretrial Self-Incrimination, Miranda, and Truth Anthony O’Rourke

I.

Criminal Procedure Litigation, Sentencing, and Pretrial Self-Incrimination

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1. Litigating the Exclusionary Rule

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2. Punishing Litigation of the Exclusionary Rule

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II. Pretrial Self-Incrimination and the Constitutional Status of Miranda

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III. Pretrial Self-Incrimination and Truth

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1. Miranda’s Truth-Seeking Function

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2. The Questionable Accuracy of Pretrial Obstruction Punishment

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American criminal procedure scholarship is rich with contributions that bring institutional considerations to bear on doctrinal and policy questions.1 Yet there is a surprising lack of scholarship examining the processes by which criminal procedure rights are litigated and what those processes reveal about the nature of the rights themselves. This chapter examines one of these heretofore unexamined processes: the litigation of the exclusionary rules that are used to enforce the Fourth and Fifth Amendments to the U.S. Constitution.2 As criminal defense practitioners are almost instinctively aware, this process imposes a hidden cost on defendants: a risk of pretrial

1 For a collection of prominent scholars taking stock of such scholarship, see The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Napatoff, eds., 2017). 2 The Fourth Amendment of the U.S. Constitution protects against unreasonable searches and seizures, while the Fifth Amendment protects against self-incrimination. Evidence obtained in violation of these rights may, under certain circumstances, be excluded from trial. See Herring v. United States, 555 U.S. 135, 144 (2009) (explaining that the Fourth Amendment exclusionary rule applies when it “serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence”); United States v. Patane, 542 U.S. 630, 644 (2004) (plurality opinion) (explaining that “statements taken without sufficient Miranda warnings are presumed to have been coerced only for certain purposes and then only when necessary to protect the privilege against self-incrimination”).

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self-incrimination that, ironically, inheres in the assertion of the Fifth Amendment right against self-incrimination. In everyday criminal cases, as this chapter explains, defendants are required to incriminate themselves in order to assert their Fourth and Fifth Amendment rights in open court. This is because defendants must obtain a pretrial suppression hearing in order to successfully invoke the exclusionary rule. To obtain a suppression hearing, the defendant typically must offer testimony in the form of a sworn affidavit that describes the circumstances of their encounter with law enforcement officials. If the defendant’s testimony is deemed false, U.S. sentencing regimes authorize—and the federal system at one time required—judges to punish the defendant for their testimony. The protections against self-incrimination set forth in Miranda v. Arizona3 do not protect against this type of self-incrimination. To the contrary, the litigation of Miranda claims forces defendants to engage in pretrial self-incrimination, and sometimes to be severely punished as a result. Thus, in order for a defendant to protect his first-order criminal procedure rights—including the right against self-incrimination—the U.S. criminal adjudication process requires defendants to self-incriminate. By examining this irony, one can gain new insights into the doctrinal and practical scope of Miranda. On the doctrinal side, the phenomenon of pretrial self-incrimination sheds light on a long-running debate as to whether Miranda established a constitutional right, or simply announced a prophylactic rule that is subject to legislative override.4 Any intervention in this theoretical debate, I argue, must contend with the facts that (1) defendants often must self-incriminate to litigate Miranda claims, and (2) U.S. jurisdictions have no qualms about punishing defendants on the basis of this self-incrimination. These harms are difficult to reconcile with the view the Miranda established a constitutional right, rather than a subconstitutional safeguard. On the practical side, pretrial self-incrimination draws attention to a truth-seeking function of Miranda, while at the same time working to undermine that function. In some quarters, it is common wisdom that the right against self-incrimination reduces the accuracy of the criminal pro-

3 384 U.S. 436 (1966). 4 The United States purported to resolve this debate in Dickerson v. United States, 530 U.S. 428, 440 (2000), but fails to offer a satisfying, and theoretically necessary, account in that opinion of whether Miranda was a constitutionally legitimate decision. See Mitchell N. Berman, Constitutional Decision Rules, 90 Va. L. Rev. 1, 25-29 (2004).

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Pretrial Self-Incrimination, Miranda, and Truth

cess with respect to the question of guilt or innocence.5 Recent scholarship has forcefully challenged that assumption.6 Beyond the question of guilt or innocence, however, there is another truth-aiding function that Miranda was meant to serve. Specifically, Miranda was meant to improve the judiciary’s capacity to assess whether or not a police interrogation was conducted in a coercive manner. By announcing a clear set of rules that law enforcement officials must honor, Miranda was meant to compensate for what the Supreme Court called the judiciary’s “gap” in its “knowledge as to what in fact goes on in the interrogation rooms.”7 The risk of pretrial self-incrimination harms this secondary truth-aiding function of Miranda in two important ways. First, obstruction enhancements are likely to deter meritorious suppression claims by at least some of the defendants who anticipate that a judge will disbelieve their testimony. This is a particularly serious concern if, as I argue below, the structure of suppression litigation makes it likely that judges will disbelieve truthful testimony and apply unmerited obstruction enhancements in a wide range of cases. Second, for those defendants who choose to raise a suppression claim, obstruction enhancements will incentivize the submission of strategically vague testimony that obscures the reality of what occurred during an arrest or interrogation. This chapter is organized as follows. Part I lays out the structural features of criminal adjudication in the United States that establish the conditions for pretrial self-incrimination. Part II examines the theoretical implications of pretrial self-incrimination with respect to the constitutional status of Miranda in U.S. law. Part III examines the ways in which the threat of pretrial self-incrimination erodes Miranda’s truth-aiding function, and more generally creates the risk of undeserved punishment on the basis of unreliable judicial findings.

5 See, e.g., Joseph D. Grano, Confessions, Truth, and the Law (1993). 6 See especially Lisa Kern Griffin, Silence, Confessions, and the New Accuracy Imperative, 65 Duke L.J. 697, 734 (2016). In a similar vein, scholars including Richard Leo have argued for changes in the admissibility standard for interrogations in order to improve their reliability. See Richard A. Leo, Peter J. Neufeld, Steven A. Drizin & Andrew E. Taslitz, Promoting Accuracy in the Use of Confession Evidence: An Argument for Pretrial Reliability Assessments to Prevent Wrongful Convictions, 85 Temp. L. Rev. 759, 792 (2013). 7 Miranda, 384 U.S. at 448.

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Anthony O’Rourke

I. Criminal Procedure Litigation, Sentencing, and Pretrial Self-Incrimination Two basic features of criminal adjudication in the United States make pretrial self-incrimination inherent in the enforcement of criminal procedure rights. First, American exclusionary rules are enforced through a pretrial litigation process that essentially requires defendants to testify by means of affidavits. Second, and often overlooked, judges are free to punish a defendant for giving such testimony if the judge deems it false. Together, these features work in tandem to create a self-incrimination risk that has gone unrecognized by scholars, while perhaps being so obvious to practitioners that it is barely earns complaint.

1. Litigating the Exclusionary Rule To varying degrees and for varying purposes, both inquisitorial and adversarial criminal justice systems use exclusionary rules to remedy violations of criminal procedure rights.8 These systems diverge, however, with respect to the processes by which they adjudicate exclusionary rules. Significantly, in the United States, pretrial suppression hearings are the vehicle by which defendants can exclude evidence obtained in violation of the Fourth or Fifth Amendments. Consider the protections against self-incrimination established in Miranda.9 Many scholars, including myself, sometimes speak of Miranda as a rule designed to regulate police behavior.10 Ultimately, however, Miranda merely creates a privilege-based right to exclude certain forms of evidence at trial.11 If a defendant’s post-arrest statement was obtained in violation of Miranda, his attorney can move to suppress the statement and thus prevent the government from using it at trial. If the government does not concede to the defendant’s version of the facts, the attorney must first obtain a hearing at which she can cross-examine the arresting officer and establish that a Miranda violation occurred.

8 See Jenia Iontcheva Turner & Thomas Weigend, The Purposes and Functions of Exclusionary Rules: A Comparative Overview, 74 IUS Gentium 255 (2019). 9 384 U.S. 436. 10 See, e.g., Eric J. Miller, Putting the Practice into Theory, 7 Ohio St. J. Crim. L. 31 (2009); Anthony O’Rourke, Structural Overdelegation in Criminal Procedure, 103 J. Crim. L. & Criminology 407, 411 (2013). 11 See Steven D. Clymer, Are Police Free to Disregard Miranda?, 112 Yale L.J. 449 (2002).

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Pretrial Self-Incrimination, Miranda, and Truth

This requires the defendant to request a suppression hearing. However, a defendant does not get such a hearing as a matter of right. A trial judge is not required to conduct an evidentiary hearing on a motion to suppress unless the defendant establishes that there are contested issues of fact. This requires the defendant to make allegations that are “sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact.”12 In practice, this will usually require the defendant to submit an affidavit containing sworn factual allegations that are based on personal knowledge. To establish a contest of fact, these allegations must contradict whatever story the arresting law enforcement officers are likely to provide. Thus, to assert the right against self-incrimination, a defendant often must swear to a version of his arrest that diverges from the government’s version. Ironically, then, defendants must testify in order to invoke Miranda’s self-incrimination protections.13 The same obligation to testify exists if the defendant wishes to obtain a hearing on whether to exclude evidence that was seized in violation of the Fourth Amendment’s prohibition against unreasonable searches. For example, because Fourth Amendment rights are personal to the defendant, a court may not exclude evidence as the fruit of an unlawful search unless the defendant has a possessory interest in the object.14 Thus, before holding an evidentiary hearing to determine whether the government unlawfully seized, say, cocaine from a shared apartment, the defendant may have to submit an affidavit asserting ownership of the cocaine. In practice, judges vary in terms of what sort of admissions they require from a defendant before granting a hearing. It therefore pays to know your judge, and to admit to no more than what that judge would require. Ultimately, however, the defendant may have to admit to unlawful conduct to argue that evidence should be excluded at trial.

12 United States v. Watson, 404 F.3d 163, 167 (2d Cir. 2005). 13 Laurent Sacharoff has made this point in a different context. See Laurent Sacharoff, Miranda’s Hidden Right, 63 Ala. L. Rev. 535 (2012). 14 Rakas v. Illinois, 439 U.S. 128 (1978). The government frequently misuses this rule to assert that a possessory interest is required where the evidence is the fruit of an illegal seizure. But the seminal suppression case involved a search where the defendant had no such possessory interest. See Wong Sun v. United States, 371 U.S. 471, 492 (1963).

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Anthony O’Rourke

2. Punishing Litigation of the Exclusionary Rule Testimony in a pretrial suppression hearing would not in any meaningful respect involve self-incrimination if a defendant could not be punished for offering it. However, a defendant’s testimony in pretrial suppression hearings can, if deemed false, substantially increase his punishment upon conviction. Traditionally, in the United States, judges had the discretion to increase a defendant’s sentence if he gave false testimony during the course of his trial.15 This discretion was an aspect of the highly individualized and indeterminate sentencing regimes that were the hallmark of the American criminal justice system for much of the 19th and 20th centuries.16 In Williams v. New York,17 for example, the U.S. Supreme Court upheld highly discretionary sentencing regime that embodied what Justice Black called a “modern philosophy of penology that the punishment should fit the offender and not merely the crime.”18 Under this sentencing philosophy, because a defendant’s candor at trial might be “probative of his attitudes toward society and prospects for rehabilitation,” it was deemed relevant to the punishment he deserved.19 Gradually, punishment enhancements for perjury became routinized. In federal cases, the United States Sentencing Guidelines imposes a significant sentencing enhancement for defendants who are found to testify falsely during a pretrial suppression hearing. For those unfamiliar with U.S. federal sentencing: a defendant’s prison sentence is likely to fall within a narrow range that is recommended by the United States Sentencing Guidelines. Before imposing a sentence, a trial judge is statutorily required to calculate the defendant’s Guidelines range, which reflects defendant’s offense conduct as well as other enhancements or reductions that are designed to assess relative culpability.20 The United States Sentencing Guidelines once bound trial judges to sentence a defendant to a term of imprisonment within the calculated Guidelines range. In United States v. Booker,21 the Supreme Court held that this mandatory sentencing regime violated the

15 United States v. Grayson, 438 U.S. 41 (1978). 16 See Rachel E. Barkow, Recharging the Jury: The Criminal Jury’s Constitutional Role in an Era of Mandatory Sentencing, 152 U. Pa. L. Rev. 33, 71 (2003). 17 337 U.S. 241 (1949). 18 Id. At 247. 19 Grayson, 438 U.S. at 50; see also Douglas A. Berman, Conceptualizing Booker, 38 Ariz. St. L.J. 387, 389-91 (2006). 20 18 U.S.C. § 3553(a)(4), (a)(5); United States v. Booker, 543 U.S. 220, 264 (2005). 21 Id.

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Pretrial Self-Incrimination, Miranda, and Truth

Sixth Amendment right to a jury trial. Under Booker, however, trial judges are still required to calculate a defendant’s Guidelines range, and to provide justifications on the record for any sentence that falls outside this range.22 The Guidelines therefore have significant gravitational pull on district court sentencing decisions. Indeed, in the vast majority of cases federal sentencing judges continue to impose sentences that are within the Guidelines range.23 Under the U.S. Sentencing Guidelines, a defendant’s level of cooperation with his prosecution is deemed relevant to his sentence. For example, if the defendant “clearly demonstrates acceptance of responsibility” — meaning, he pleads guilty—his offense level under the Guidelines is decreased by two levels.24 On the flip side, if a defendant lies in the course be being convicted, the Guidelines recommend additional punishment.25 Specifically, a defendant’s offense level is increased by two levels if a judge finds that the defendant “willfully . . . attempted to obstruct or impede[] the administration of justice” with respect to his prosecution. Under this obstruction enhancement, if a trial judge concludes that a defendant submitted a perjurous affidavit in support of a suppression hearing, the judge is supposed to increase his Guidelines range.26 This sentencing enhancement exposes defendants to significant potential punishment. For example, a defendant convicted of being a felon in possession of a firearm may face an initial Guidelines range of 41-51 months’ imprisonment.27 If a

22 Id. at 245, 259-65; see also Rita v. United States, 551 U.S. 338 (2007) (holding that appellate courts may apply a presumption of reasonableness to sentences within the Guidelines range); Gall v. United States, 552 U.S. 38, 50 (2007) (holding that before a judge “decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance”). 23 See Ryan W. Scott, Inter-Judge Sentencing Disparity After Booker: A First Look, 63 Stan. L. Rev. 1, 18 (2010); Mark W. Bennett, Confronting Cognitive “Anchoring Effect” and “Blind Spot” Biases in Federal Sentencing: A Modest Solution for Reforming A Fundamental Flaw, 104 J. Crim. L. & Criminology 489, 519-29 (2014). 24 US. Sentencing Guidelines Manual § 3E1.1 (US. Sentencing Comm’n 2018). 25 Id. § 3C1.1. 26 See United States v. Lincecum, 220 F.3d 77 (2d Cir. 2000) (per curiam); cf. United States v. Thompson, 808 F.3d 190, 194 (2015) (addressing the findings a judge must make before applying obstruction enhancements). 27 This range would apply in the not-unusual circumstance that the defendant was in criminal history category III based on his prior record, see U.S. Sentencing Guidelines Manual § 4A1.1 (U.S. Sentencing Comm’n 2018), and at base offense level of 20 because one of the defendant’s prior convictions was for a violent felony, see id. § 2K2.1(4)(A).

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Anthony O’Rourke

judge finds that this defendant lied in an affidavit in order to obtain a suppression hearing, his Guidelines range would jump to 51-63 months’ imprisonment. Notably, the United States Sentencing Guidelines sever the obstruction enhancement from the longstanding justification for increasing a defendant’s sentence on the basis of false testimony. The Guidelines expressly reject rehabilitation as a legitimate purpose for imprisonment.28 Accordingly, the U.S. Supreme Court has recognized that the obstruction enhancement can no longer be justified in terms of its relevance to whether a defendant is capable of rehabilitation.29 The Supreme Court nevertheless justified the enhancement (and rejected a constitutional challenge to it) on the ground that a “perjuring defendant’s willingness to frustrate judicial proceedings . . . suggests that the need for incapacitation and retribution is heightened.”30 However, application of the obstruction enhancement is mandatory regardless of whether a judge is of the opinion that a defendant’s false testimony is in fact probative of a heightened need for incapacitation or retribution.31 Unlike traditional sentencing regimes, the Guidelines severely circumscribe judicial discretion to make an individualized assessment of whether a defendant’s lack of candor merits increased punishment. If a district court judge finds that a defendant committed perjury in the course of being convicted, the judge is theoretically required to apply an obstruction enhancement and factor it into her calculation of the defendant’s Guidelines range.32 Even in the current, discretionary regime of the Guidelines, such a requirement is likely to have a significant effect on the defendant’s ultimate sentence.33 This feature of criminal punishment in the United States—namely, that judges may factor a defendant’s candor at trial into his ultimate sentence— ensures that a risk of self-incrimination inheres in the litigation of criminal procedure rights. As a matter of constitutional doctrine, testimony at a pre28 29 30 31

18 U.S.C. § 994(k); see Mistretta v. United States, 488 U.S. 361, 367 (1989). United States v. Dunnigan, 507 U.S. 87, 97 (1993). Id. at 97. To be sure, a district judge is obligated to consider whether a sentence is “sufficient, but not greater than necessary” to comply with those purposes of punishment that the Guidelines sanctions. 18 U.S.C. § 3553(a). However, the judge turns to this task only after calculating the defendant’s Guidelines range. See Gall v. United States, 552 U.S. 38, 49-50 (2007). 32 See id. at 98; see also United States v. Napolitan, 762 F.3d 297, 315 (3d Cir. 2014) (explaining post-Booker that “[a]pplication of § 3C1.1 is not discretionary”). 33 See supra note 23 and accompanying text.

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trial suppression hearing, when offered to establish standing to assert a Fourth Amendment claim, may not later be used against a defendant at trial.34 This safeguard is necessary, the Supreme Court has held, because a defendant should not be “obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination.” “In these circumstances,” the Court concluded, it would be “intolerable that one constitutional right should have to be surrendered in order to assert another.”35 When it comes to sentencing, however, U.S. courts find it perfectly tolerable to require this tradeoff of constitutional rights. In order to have evidence suppressed as the product of unlawful police tactics, a federal defendant must submit a sworn affidavit that provides the basis for obtaining a suppression hearing.36 If the judge finds this affidavit perjurious, she is obliged to apply an obstruction enhancement that has significant effects on her overall sentence. 37 Trial courts routinely tolerate this type of pretrial self-incrimination, and the Supreme Court has not condemned it.

II. Pretrial Self-Incrimination and the Constitutional Status of Miranda Self-incrimination is essentially, and ironically, a compulsory feature of how United States courts enforce the exclusionary rule. This phenomenon arguably reveals a great deal about the constitutional status of Miranda v. Arizona’s protections against self-incrimination.38 Miranda’s protections have become one of the United States’ most significant and celebrated constitutional exports.39 The Supreme Court’s analysis in Miranda—which is rooted in “the respect a government . . . must accord to the dignity and integrity of its citizens”40—makes its holding particularly compatible with the constitutional values animating the German Grundgesetz and other European constitutional frameworks.41 Domestically, however, the U.S.

34 35 36 37 38 39

Simmons v. United States, 390 U.S. 377, 390 (1968). Id. at 390. See supra Part I.1. See supra Part I.2. 384 U.S. 436 (1966). See Charles D. Weisselberg, Exporting and Importing Miranda, 97 B.U. L. Rev. 1235 (2017). 40 384 U.S. at 460. 41 See Weisselberg, supra note 38, at 1288.

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Anthony O’Rourke

Supreme Court has narrowed Miranda in ways that, as Professor Charles Weisselberg has argued, sacrifice the value of human dignity in order to further other institutional priorities.42 The United States’ tolerance for pretrial self-incrimination might be yet another reflection of these institutional priorities. At a more fundamental level, tolerance for pretrial self-incrimination may reveal something about the constitutional status of the Miranda right itself. In the United States, scholars and judges have long engaged in what Professor Mitch Berman describes as a relentless battle over whether Miranda was a legitimate act of constitutional interpretation.43 One side argues that Miranda announces a subconstitutional rule that serves to over-enforce a genuine constitutional right, and is therefore subject to legislative override.44 Against this view, scholars have offered a diverse and theoretically sophisticated set of arguments to defend Miranda’s exclusionary rule as a legitimate act of constitutional lawmaking.45 The U.S. Supreme Court has come down on different sides of this debate at different points in time. In 1974, then-Justice Rehnquist once wrote for the Court that a non-Mirandized interrogation “did not abridge . . . [the] constitutional privilege against self-incrimination, but departed only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege.”46 Almost a decade later, Rehnquist opined for the Court that, because Miranda’s warnings requirement is prophylactic, Miranda’s exclusionary rule “sweeps more broadly than the Fifth Amend-

42 Id. 43 See Berman, supra note 4, at 13. This is sometimes posed as a debate as to whether Miranda announced a “prophylactic rule.” However, some scholars concede that Miranda announced such a rule but still defend it as constitutionally legitimate. See, e.g., David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. Chi. L. Rev. 190 (1988). 44 This position was first set forth by Henry Monaghan in his influential 1975 foreword to the Harvard Law Review. See Henry P. Monaghan, The Supreme Court, 1974 Term--Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1 (1975). 45 See Berman, supra note 4, at 43-50 (summarizing this literature). For his part, Berman argues that Miranda announced what he calls a “constitutional decision rule” governing how law enforcement actors are to comply with the Fifth Amendment’s “operative proposition.” The “operative proposition,” is that a suspect’s statement is inadmissible in court if it is not ‘truly free’” in the sense that (1) “it issues from psychological pressures incompatible with the Court's vision of appropriate freedom or dignity” and (2) “was elicited by police pressure exerted for the specific purpose of overcoming the suspect's unwillingness to talk.” Id. at 123. 46 Michigan v. Tucker, 417 U.S. 433, 445-46 (1974).

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Pretrial Self-Incrimination, Miranda, and Truth

ment itself.”47 In 2000, however, Chief Justice Rehnquist wrote for the Court in Dickerson v. United States that Congress does not have the constitutional authority to supersede Miranda by statute.48 Over a vociferous dissent by Justice Scalia,49 the Court held that, notwithstanding the weaknesses of Miranda’s “reasoning and its resulting rule,” “the principles of stare decisis weigh heavily against overruling the opinion.”50 But, as Professor Berman has explained, the Supreme Court’s opinion in Dickerson does little to address Justice Scalia’s argument that Miranda was a constitutionally illegitimate exercise of judicial power and thus inappropriate to preserve on stare decisis grounds.51 The phenomenon of pretrial self-incrimination suggests that Dickerson did not eliminate the doctrinal legacy of cases that treat Miranda as subconstitutional. The workaday realities of criminal litigation in the United States require criminal defendants to incriminate themselves in order to invoke their Miranda rights through suppression hearings. In these routine cases, courts stand willing to punish criminal defendants for a sort of compulsory self-incrimination that is analogous to what Miranda was designed to protect. In routine cases, this has the practical consequence of pressuring defendants to waive their Fifth Amendment rights. This cost would be unacceptable if Miranda’s warnings requirement were constitutional in stature—as the Court held they were in Dickerson. By penalizing a defendant’s effort to obtain a suppression hearing, courts would be imposing an “intolerable” requirement that “one constitutional right should have to be surrendered in order to assert another.”52 Conversely, the risk of pretrial self-incrimination is arguably tolerable if, as the Supreme Court held prior to Dickerson, the failure to honor Miranda does not necessarily violate the Fifth Amendment, but instead “depart[s] only from the prophylactic standards . . . laid down by th[e] Court in Miranda to safeguard that privilege.”53 Accordingly, the phenomenon of forced, pretrial self-incrimination may say more than what the Supreme Court in Dickerson cared to reveal about how U.S. courts view the constitutional status of Miranda.

47 48 49 50 51 52 53

Oregon v. Elstad, 470 U.S. 298, 306 (1985). 530 U.S. 428, 440 (2000). Id. at 454 (Scalia, J., dissenting). Id. at 443. See Berman, supra note 4, at 25-29. Simmons v. United States, 390 U.S. 377, 390 (1968). Michigan v. Tucker, 417 U.S. 433, 445-46 (1974).

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Anthony O’Rourke

III. Pretrial Self-Incrimination and Truth In two different ways, pretrial self-incrimination exacerbates the tension between Miranda and the truth-seeking function of trials. First, pretrial self-incrimination deters some defendants from testifying about the circumstances of their arrest, and for all other defendants diminishes the quality of such testimony. Second, pretrial self-incrimination creates a significant risk that defendants will be improperly punished based on a judge’s misperception of the truth concerning their arrest or interrogation.

1. Miranda’s Truth-Seeking Function Miranda sought to address the structural inability of courts to know the truth of how criminal defendants are treated by the police. In justifying a warnings requirement as a prerequisite for police questioning, the Miranda Court pointed to its lack of institutional capacity to understand the degree to which any given police interrogation is coercive in nature. “Interrogation still takes place in privacy,” the Court explained.54 “Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.”55 By using obstruction enhancements to punish defendants who seek suppression hearings, courts risk worsening their capacity to understand what in fact goes on inside a police station house. For some defendants, it might be perfectly rational to forego a potentially meritorious suppression claim if a judge is unlikely to believe their (in fact truthful) testimony. This is because, in any criminal case with a potentially meritorious suppression claim, the defendant will have to weigh the benefit (in terms of a reduced sentence) of foregoing the suppression claim and immediately pleading guilty.56 Obstruction enhancements impose an additional cost that a defendant must weigh against this benefit.

54 384 U.S. 436, 448 (1966). 55 Id. 56 To be sure, the commentary to the Guidelines makes clear that the “acceptance of responsibility” provision “is not intended to punish a defendant for the exercise of a constitutional right.” U.S. Sentencing Guidelines Manual § 3E1.1 cmt. n.2 (U.S. Sentencing Comm’n 2018). As a practical matter, however, many prosecutors are known to be more generous in their plea offers to defendants who spare them the burden of litigating a suppression claim. Similarly, some judges are known by reputation to be less charitable toward defendants who

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Pretrial Self-Incrimination, Miranda, and Truth

In some cases, the risk of an obstruction enhancement is likely to change the plea decision of a defendant whose Miranda or Fourth Amendment rights have in fact been violated. Consider a case before a judge who has a reputation for disbelieving defendants with prior criminal convictions. Absent the threat of an obstruction enhancement, a defendant might be well served to litigate a Miranda claim before that judge rather than immediately take a plea of guilty. The threat of an obstruction enhancement, however, will change the defendant’s risk calculus. If litigating a Miranda claim is likely to increase the defendant’s potential penalty, the defendant might be more likely to forego the claim and immediately plead guilty in exchange for leniency. In these cases, the court will never become aware of the unconstitutional reality of a defendant’s arrest. Even when a defendant chooses to pursue a suppression claim, obstruction enhancements weaken the trial court’s grasp on the truth of the arrest. This is because the risk of an obstruction enhancement disincentivizes defendants from providing detailed or even accurate depictions of the police encounters they are challenging. If a suppression hearing is granted, the burden shifts to the government to demonstrate by a preponderance of the evidence that the defendant’s rights were not violated. There is therefore nothing to be gained by having a defendant swear to any facts that are not absolutely necessary to get a suppression hearing. Obstruction enhancements thus incentivize defendants to submit affidavits about their arrests that are as vague as a judge will allow. Indeed, depending on the judge, some attorneys will not include any affidavit from a defendant with their initial motion to suppress and will then submit one with a reply brief if the judge admonishes them to do so. This is not what doctrine requires, but it is smart lawyering. When a defendant submits a strategically vague affidavit, the court loses valuable information that it is unlikely to learn at the suppression hearing. Rarely will a defendant testify at the hearing about the circumstances of their arrest, because many defendants have prior criminal records that make them easy targets for impeachment. Moreover, choosing to testify at the hearing will expose a defendant to the risk of an obstruction enhancement if his testimony is disbelieved. If there are no third-party witnesses to testify—and often there are not—a suppression hearing will pit the defendant’s vague assertions from the motion to suppress against the more de-

plead guilty after losing a suppression claim than toward those who forego the claim in the first instance.

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Anthony O’Rourke

tailed and rehearsed account of the arresting officer that emerges from the suppression hearing. Such an asymmetry is likely to provide judges with a distorted picture of reality even if police officers are assumed to testify truthfully—a questionable assumption. The defendant’s success at a suppression hearing will inevitably depend on how effectively the arresting police officer testifies. If the defendant is fortunate enough to be arrested by an officer with an extensive disciplinary record, or who lacks experience testifying in open court, he might have a chance of prevailing. If the arresting officer is a well-composed, professional witness, as many are, the defendant will likely lose. Either way, the judge is likely to be presented with only a partial version of how a defendant was apprehended.

2. The Questionable Accuracy of Pretrial Obstruction Punishment An obvious response to concerns about pretrial self-incrimination is that there is nothing wrong with punishing those who lie under oath. The structure of criminal adjudication in the United States, one might argue, requires that defendants provide some evidentiary basis for putting the government through the burden of a suppression hearing. In most cases, the defendant’s own testimony, in the form of an affidavit, may be the only evidence available. And, as the Supreme Court explained when it rejected a constitutional challenge to the Guidelines’ obstruction enhancement, “a defendant’s right to testify does not include a right to commit perjury.”57 Thus, there is nothing objectionable about punishing defendants for falsely claiming their rights were violated. Perhaps, one might argue, the integrity of the right against self-incrimination requires that courts guard against such abuses. This argument assumes, however, that judges can accurately determine whether a defendant has lied to get a suppression hearing. But there is a substantial risk that courts are apt to misapply obstruction enhancements to punish defendants who are truthfully testifying about the circumstances of their arrest. Three features of the U.S. criminal system make this phenomenon likely. First, obstruction enhancements ensure that police officers control the narrative of an arrest. As mentioned, obstruction enhancements require defendants to use strategically vague affidavits to obtain a suppression hear-

57 United States v. Dunnigan, 507 U.S. 87, 96 (1993).

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ing. If a hearing is granted, the success of the defendant’s suppression claim will boil down to a contest between the defendant’s vague account of the arrest, and the detailed testimony the arresting police officer. As professional witnesses, such officers often give composed and persuasive testimony. However, given the rampant and well-documented problem of police perjury at suppression hearings, that testimony will often be false.58 Second, the Guidelines require judges to apply the obstruction enhancement even when there is some doubt as to whether the defendant lied. The burden of proof at sentencing is more relaxed than that for establishing guilt for the underlying offense. For example, consider the differences between an obstruction enhancement and a formal conviction for making false statements. An obstruction enhancement under the Guidelines could easily expose a defendant to greater punishment than she would receive for a separate false statements conviction.59 However, a conviction for making false statements requires proof beyond a reasonable doubt.60 To apply the obstruction enhancement, by contrast, a judge need only find by a preponderance of the evidence that the defendant willfully and gave false testimony on a material matter.61 Thus, even when it is a relatively close call as to whether a defendant lied, an unsympathetic judge might nevertheless apply an obstruction enhancement. Third, appellate judges must defer to a trial judge’s factual determination as to whether a defendant lied. Granted, trial judges are not supposed to apply the obstruction enhancement unless they find that “a defendant

58 Professor Chris Slobogin was one of the first scholars to identify and address the rampant problem of police perjury, or “testilying” in criminal trials. See Christopher Slobogin, Testilying: Police Perjury and What to Do About It, 67 U. Colo. L. Rev. 1037, 1040 (1996). Years later, Judge Jack Weinstein recognized the phenomenon in an opinion denying a motion to dismiss a civil rights suit against New York City. See Colon v. City of New York, No. 09-CV-8, 2009 WL 4263362, at *2 (E.D.N.Y. Nov. 25, 2009) (“Informal inquiry by the court and among the judges of this court, as well as knowledge of cases in other federal and state courts, has revealed anecdotal evidence of repeated, widespread falsification by arresting police officers of the New York City Police Department.”). 59 The base offense level for a violation of 18 U.S.C. § 1001 is 6. See U.S. Sentencing Guidelines Manual § 2B1.1 (U.S. Sentencing Comm’n 2018). The Guidelines range for someone with a criminal history category III is 2-8 months. An obstruction enhancement might increase a similar defendant’s Guidelines range by 10-12 months. See id. ch. 5, pt. A. 60 In re Winship, 397 U.S. 358 (1970). 61 United States v. Agudelo, 414 F.3d 345, 349 (2d Cir. 2005).

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‘has clearly lied’ in a statement made ‘under oath.’”62 Once the trial judge makes such a finding, however, an appellate court must accept it as true unless it is clearly erroneous.63 This deference, combined with the low burden of proof to establish an obstruction enhancement, makes it possible for trial judges to go unchecked if they use the enhancement to punish defendants for exercising their suppression rights. Consider an example drawn from my experience litigating suppression claims. A defendant whom I’ll call Mr. Doe was charged with being a felon in possession of a firearm. By definition, such defendants will have prior criminal records that make it difficult for them to testify. Should such a defendant choose to testify, it may be perfectly reasonable for a factfinder to treat their assertions with skepticism. Mr. Doe is an African American man who was stopped in a predominately black urban neighborhood. According to the arrest report, two plainclothes police officers were driving with their window down at night, in the middle of winter, and spotted Mr. Doe smoking marijuana. They stopped him in an allegedly dangerous neighborhood, 64 and he ran. At that point, the officers chased Mr. Doe and recovered a firearm that the officers claim he dropped while he was running. Without reading Mr. Doe his Miranda rights, the police asked him why he ran. In response, he allegedly asked whether they had any rap on him—in other words, whether an informant had told them he was carrying a gun. We filed a suppression motion arguing that the initial stop was unreasonable, that the officers lacked probable cause for the arrest, and that he was questioned in violation of Miranda. To win the Fourth Amendment claim—which is the claim that truly mattered—we needed to show that the officers were lying when they claimed that Mr. Doe was smoking marijuana. We submitted an affidavit that left open the possibility that he was smoking something—but not marijuana.

62 Id. at 349 (quoting United States v. Linecum, 220 F.3d 77, 80 (2d Cir. 2000) (per curiam)). 63 Id. at 348. 64 Under Illinois v. Wardlow, 528 U.S. 119, 124 (2000), a suspect’s presence in a highcrime area is relevant to whether a police officer has reasonable suspicion to stop and search the suspect. Therefore, police officers frequently describe the sites of their arrests as “high crime areas” to justify their initial decision to stop the defendant. Recently, two prominent scholars have determined that an officer’s description of a location as a “high-crime area” is nearly uncorrelated with the actual crime rate in that area. See Ben Grunwald & Jeffrey Fagan, The End of IntuitionBased High-Crime Areas, 107 Calif. L. Rev. 345 (2019).

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Pretrial Self-Incrimination, Miranda, and Truth

Mr. Doe is not the most sympathetic defendant, but I do not think he was smoking marijuana when he was stopped. Mr. Doe was on parole when he was arrested, and had never failed a drug test. Prosecutions for smoking marijuana were rare in the district where Mr. Doe resided. (Indeed, a few months after Mr. Doe’s arrest, the district attorney announced a formal policy of declining to prosecute such cases.) While police officers might nevertheless target marijuana smokers for discipline, it would have been odd for plainclothes police officers, whose mandate is to combat serious and violent felonies, to prioritize such a low-level offense. More tellingly, the police never recovered a marijuana cigarette at the time of arrest. Simply put, I think the police were lying about their reasons for stopping Mr. Doe. Perhaps the police had an informant who snitched on Mr. Doe. Perhaps they were simply engaging in racial profiling and conducted the stop without having reasonable suspicion for doing so. Or perhaps there was another reason for the stop that would not have held up in court. In any event, I think the police created a false narrative about the stop. Such lies are not uncommon. Nevertheless, Mr. Doe lost his suppression hearing. The arresting officer’s partner had a disciplinary record for misconduct, but the prosecution chose not to have him testify. The arresting officer, however, was an experienced and likeable witness. The trial judge, a former prosecutor, believed his account wholesale. Fortunately, Mr. Doe did not receive an obstruction enhancement. However, this is likely because he entered a plea bargain where the Government stipulated to a Guidelines range that does not include the enhancement. If Mr. Doe had not reached such a plea deal, an enhancement would have been quite possible. From the judge’s perspective, Mr. Doe’s affidavit— though intentionally vague about whether he was smoking any kind of cigarette—might have contained a material lie. If she had been asked to apply an enhancement, she may well have done so. (The prosecutor, it bears saying, was a prudent and experienced attorney who may have thought it inappropriate to seek an obstruction enhancement under the circumstances. Not all prosecutors are so restrained.) *** Mr. Doe is precisely the type of defendant who is at risk of being wrongfully exposed to an obstruction enhancement. If Mr. Doe had been falsely convicted of making false statements, the constitutional harm would be legible to even casual observers. However, if he had wrongly received an obstruction enhancement, the injustice would have gone under the radar. It would have been yet another example of the understudied practice of a 45

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Anthony O’Rourke

defendant self-incriminating in order to assert his right against self-incrimination—and being punished for doing so. However, even those defendants who are not punished for pretrial selfincrimination are harmed by how obstruction enhancements obscure the truth of police encounters. Indeed, obstruction enhancements are likely to disproportionately harm the most vulnerable defendants. A longstanding criticism of Miranda is that it rewards sophisticated criminal suspects while doing little to help vulnerable ones.65 As Bill Stuntz famously argued, “[b]ecause of Miranda, sophisticated suspects have a right to be free from questioning altogether—not simply free from coercive questioning—while unsophisticated suspects have very nearly no protection at all.”66 Pretrial self-incrimination worsens this tendency. Obstruction enhancements are most likely to impact those defendants whose prior criminal records make their testimony easy to discredit. Among such defendants, sophisticated criminals will know to remain silent, and will thus avoid having to litigate the issue of whether their post-custodial statements were involuntary. Vulnerable suspects, by contrast, will find themselves needing to seek judicial intervention after they gave panicked statements following an arrest. The obstruction enhancement imposes an additional risk for these defendants—that they will face increased punishment if they lose their suppression hearings. Obstruction enhancements pose less of a threat to defendants who have the means to hire, or are fortunate enough to have been appointed, sophisticated lawyers. An experienced attorney will be more likely to avoid the pitfall of encouraging his client to sign an affidavit that would support an obstruction enhancement. By keeping an affidavit as vague as the trial judge will allow, a defense attorney can often (but not always) protect her client from being punished for invoking her suppression rights.67 Thus, if you are not a particularly experienced criminal suspect, it helps to have a

65 Kate Levine, Police Suspects, 116 Colum. L. Rev. 1197, 1216 (2016); see William J. Stuntz, Miranda’s Mistake, 99 Mich. L. Rev. 975 (2001). 66 Id. at 977. 67 United States v. Agudelo, 414 F.3d 345, 350 (2d Cir. 2005) (“The risks inherent in extending Lincecum even to Agudelo’s vague affidavit are significant. First, any time a defendant like Agudelo submits an affidavit that is sufficient to justify a suppression hearing, he would automatically be subject to an enhancement for obstruction of justice if the suppression motion is denied. Such a rule effaces Dunnigan, where the Supreme Court held that an enhancement is appropriate only where the defendant acts ‘with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory.’”) (quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)).

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Pretrial Self-Incrimination, Miranda, and Truth

particularly sophisticated defense attorney. If you are a vulnerable suspect who happens to have an inexperienced attorney, you might suffer an unexpected penalty for invoking your suppression rights. Perhaps these costs are outweighed by the need to preserve the integrity of the processes by which we litigate and ultimately safeguard defendants’ rights. Regardless, the phenomenon of pretrial self-incrimination merits greater attention than it has received. At the very least, judges and scholars must better attend to the workaday process of litigating criminal procedure rights in order to better safeguard the purposes of those rights—however those purposes may be defined.

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Contemporary Problems of the Right to Remain Silent in Germany Lutz Eidam*

I.

Introduction – making sense of „Comparative Criminal Law“

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II. „Nemo tenetur se ipsum accusare“ – some basics

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III. (Selected) Contemporary Problems

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1. § 133 StPO – Summons / Citation to appear without giving details about the Criminal Investigation

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2. § 133 StPO – Summons / Citation of a suspect that chose to remain silent

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3. Medical Examination – Case (BGH NStZ 2019, 36)

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4. The “Proberichter” – Case (BGH NJW 2019, 789)

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5. Actual Policy: § 163g StPO-E

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IV. Conclusion

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I. Introduction – making sense of „Comparative Criminal Law“ Long time ago, back in 1876, the German Criminal Law scholar Karl Binding said that when it comes to developing our Criminal Law System we shouldn’t go begging abroad.1 It was a time of national pride and nationalism, in Europe and especially in Germany. Everybody thought that a certain interest in foreign legal systems was simply not necessary and – above all – could be sensed as undermining the own legal affairs. However, from a historical point of view there is no doubt, that nationalism never really stopped the interest of German Criminal Law scholars with regard to foreign Criminal Law. Even before and after Binding, such interest existed and

* Professor for Criminal Law, Criminal Procedure and Comparative Criminal Law, Bielefeld University, Faculty of Law. The presentation-style has been kept. The author would like to thank Jessica Hawickenbrauck and Jonas Koschmieder for helpful comments and for reviewing this article. 1 Binding, Die drei Grundlagen der Organisation des Strafgerichts, 1876, 95.

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formed up in certain movements.2 Good examples are the activities of Paul Johann Anseln Feuerbach and Franz von Liszt3, two famous German scholars of the 19th century. Today, it is fair to say that nobody really doubts a certain value of a Comparative Approach, however, it seems to me there is still no consensus as to the task and the preferred methods of Comparative Criminal Law.4 It is my strong hope that this conference will be another cornerstone to strengthen and to outline the high value of Comparative Criminal Law. It is at the same time an experiment to do some comparative work at a very detailed topic out of the field of Criminal Procedure, the topic of “Interrogation, Confession and Truth”. I am confident to find decent impulses to many questions that are still in my head. And maybe we will, after some work, be able to get closer to answers for the very basic questions as to the task and the method of Comparative Criminal Law. So let’s get to work.

II. „Nemo tenetur se ipsum accusare“ – some basics As already mentioned, I will be talking about the privilege against self-incrimination, the rule „nemo tenetur se ipsum accusare“, and will try to present some contemporary problems in Germany that should be interesting for a perspective from abroad and for our big topic. Before that, let me give you some basics with regard to the nemo tenetur-principle. This privilege is not a modern one but deeply grounded in history. Written down in the fifth amendment of the U.S. federal constitution, there can be no doubt that this privilege has some strength in the U.S., because it has the constitution as a backbone. In Germany, however, the federal constitution, our Grundgesetz, does not explicitly mention the right against self-incrimination. But our federal constitutional court, the Bundesverfassungsgericht, clearly reads the right against self-incrimination into some central provisions of our constitution, so that we have the same situation

2 For a quick overview cf. Weigend, in: Handbuch des Strafrechts, Band 1: Grundlagen des Strafrechts, 2018, § 23 Rn. 1 ff. 3 Pictured at Weigend, in: Handbuch des Strafrechts, Band 1: Grundlagen des Strafrechts, 2018, § 23 Rn. 1. 4 A first and from today’s point of view „classical“ work in that context constitutes the work of Jescheck, Entwicklung, Aufgaben und Methoden der Strafrechtsvergleichung, 1955. For the modern discussion cf. Burchard, Perspektiven pluralistischer Strafrechtsvergleichung, Rechtswissenschaft 2017, 277 ff.

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Contemporary Problems of the Right to Remain Silent in Germany

in Germany as we have in the U.S.: The right against self-incrimination has constitutional rank. Also, European law such as the European Convention for Human Rights as well as the International Pact for Human and Political Rights back up the nemo tenetur-principle with the additional strength of supranational law. As we will see soon, the basic understanding of the right against self-incrimination will be an important key for all the questions and problems I will be presenting today. These questions are very specific, but they will all come back to some basics regarding the nemo tenetur-principle. And even today in our modern times, there are still no undoubted answers to these general issues. That’s why Leonard Levy in his great book about the Fifth Amendmend in the U.S. is absolutely right when he states: „Without doubt the right against self-incrimination is the most misunderstood, unrespected, and controversial of all rights.“5 I will come back to that. Let’s turn to Germany. Today, we see two ways of judging the current status of the privilege against self-incrimination in Germany. On the one hand, we have scholars mourning and criticizing an erosion of the nemo tenetur-principle. And on the other hand, we have scholars complaining about a misinterpretation of the privilege against self-incrimination that leads to a too broadly interpreted outreach of nemo tenetur.6 I belong to the first group.7 So let’s turn to some contemporary problems of nemo tenetur in Germany.

III. (Selected) Contemporary Problems Traditionally, the discussion involving the nemo tenetur-principle circles around § 136 and § 136a of the German Criminal Procedure Code (StPO). Both sections don’t explicitly lay down the right to remain silent, however, they presuppose this right when they obligate German authorities to give certain instructions to suspects during – or to be precise: before – their first interrogation. So here, our Miranda rights are laid down. Furthermore, the all-important procedural position of each and every suspect as a subject re-

5 Levy, Origins of the Fifth Amendment, 1968, Preface, at X. 6 Buchholz, Der nemo-tenetur Grundsatz, 2018, 7 (Erosion vs. Überhöhung). 7 See Eidam, Die strafprozessuale Selbstbelastungsfreiheit am Beginn des 21. Jahrhunderts, 2007, passim.

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sults out of these sections that – without doubt – has a principle meaning in German law.8 Today, however, I will not start with these two very important sections of our procedural law. I will rather start with a section that does not automatically come to mind when speaking about the right to remain silent. I will start with § 133 of the German Criminal Procedure Code (StPO) and show that this hidden place also contains problems connected to nemo tenetur.

1. § 133 StPO – Summons / Citation to appear without giving details about the Criminal Investigation On the basis of § 133 StPO, a suspect might be summoned to appear in court or at the state attorney’s office (cf. § 163a Subsection 3 S. 2 StPO). In the official letter, sent to the suspect, it must be said, that the person receiving the summons is to be seen as a suspect in a criminal case. German authorities, however, are not obligated to tell the person what the investigation is about, such as the crime committed or further details (cf. No. 44 Subsection 1 S. 2 RiStBV). Why is that so? Well, I sense, that detailed information of the investigations will raise the fear that the suspect will be careful and might even consider to invoke his right to remain silent. By not telling him anything, we have an uninformed and curious suspect that will more likely comply with the summons than somebody that knows what is going on. This, from my point of view must be criticized. It is, at first, kafkaesk.9 I agree with certain voices in literature that get reminded of Kafka’s great novel „The Process“ where the main figure Josef K. never really knows why the criminal authorities come upon him. But: As a suspect in German Criminal Procedure, you are entitled by law to know what is going on. Out of general personal rights laid down in our constitution10 and out of the fair trial principle11, every suspect is entitled to get detailed information concerning the criminal investigations against him. If you hold back that information, as German authorities might in a first official letter

8 Löwe/Rosenberg/Gleß Vorbem. Zehnter Abschnitt Rn. 3; KMR/Pauckstadt-Maihold Vorbem. zu §§ 133 ff. Rn. 1. Also cf. KK-StPO/Diemer Vorbem. Zehnter Abschnitt Rn. 1. 9 SSW-StPO/Tsambikakis § 133 StPO Rn. 4. By tendency also Radtke/Hohmann/ Kretschmer § 133 StPO Rn. 2. 10 SK-StPO/Rogall § 133 StPO Rn. 5. 11 HK-StrafR/Jäger § 133 StPO Rn. 8.

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Contemporary Problems of the Right to Remain Silent in Germany

asking the suspect to appear for interrogation, it is not only a breach of law but also an attempt to circumvent, or to be precise, to keep down the right to remain silent in an early stadium of criminal investigations.

2. § 133 StPO – Summons / Citation of a suspect that chose to remain silent Let’s stay with § 133 StPO a little longer. Consider a suspect, receiving a letter based on § 133 Subsection 1 StPO that immediately chooses to invoke his right to remain silent. In other words: There will be no interrogation, because the suspect won’t say anything. We all know that every suspect has the undoubted right to do so. Would it make sense to make the suspect appear in court or in front of the state attorney anyhow? Well, certain court decisions as well as the vast majority in German Criminal Procedure literature say yes, the obligation of the suspect to appear remains in force.12 And if the suspect doesn’t comply, he might be brought to the court or to the state attorney by force. Quite naturally, the question might be asked and is asked: Why? There will be no examination, or to put it in better words, no interrogation. Well, German literature provides a simple answer: The summons for the purpose of interrogation might be used for different purposes, such as a police line-up13 or to read a suspect his rights.14 Also, the judge or the state attorney should have the opportunity to give some de-

12 BGH Beschl. v. 4.1.1993 – StB 27/92, BGHSt 39, 96 (98) (summons according to § 163a Subsection 3 S. 1); LG Hannover Beschl. v. 12.12. 1966 – 24 Qs 179/66, NJW 1967, 791 (791); LG Köln Beschl. v. 22. 5. 1967 – 37 Qs 68/67, NJW 1967, 1873; Lampe MDR 1974, 535 (538); BeckOK-StPO/Monka § 133 StPO Rn. 3; Löwe/ Rosenberg/Gleß § 133 StPO Rn. 9; Meyer-Goßner/Schmitt § 133 StPO Rn. 5; MüKoStPO/Schuhr § 133 StPO Rn. 5; KMR/Pauckstadt-Maihold § 133 StPO Rn. 5; HK-StPO/Ahlbrecht § 133 StPO Rn. 5; SK-StPO/Rogall § 133 StPO Rn. 10; KKStPO/Diemer § 133 StPO Rn. 8; HK-StrafR/Jäger § 133 StPO Rn. 10; AnwK-StPO/ Walther § 133 StPO Rn. 7; Pfeiffer § 133 StPO Rn. 3. For a detailed analysis: Eb. Schmidt JZ 1968, 354 (355 ff.). 13 BGH Beschl. v. 4.1.1993 – StB 27/92, BGHSt 39, 96 (98 f.); LG Hannover Beschl. v. 12.12. 1966 – 24 Qs 179/66, NJW 1967, 791 (792); KMR/Pauckstadt-Maihold § 133 StPO Rn. Rn. 5; HK-StPO/Ahlbrecht § 133 StPO Rn. Rn. 5; SK-StPO/Rogall § 133 StPO Rn. Rn. 10; KK-StPO/Diemer § 133 StPO Rn. Rn. 8; HK-StrafR/Jäger § 133 StPO Rn. Rn. 10; AnwK-StPO/Walther § 133 StPO Rn. Rn. 7. Dissenting opinion: Grünwald JZ 1981, 423 (426) as well as Löwe/Rosenberg/Gleß § 133 StPO Rn. Rn. 9 (referring to § 165 StPO). 14 HK-StrafR/Jäger § 133 StPO Rn. 10; SK-StPO/Rogall § 133 StPO Rn. 10. Also cf. Lampe MDR 1974, 535 (538).

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Lutz Eidam

tails and the current state of the proceedings to the suspect, and this might make him reconsider his decision to remain silent.15 I belong to the authors that do not agree with these arguments and the strict adherence to an obligation for suspects who chose to remain silent to appear in court or at the state attorney’s office for the purpose of – let me emphasize this – an interrogation. For me, these arguments are some kind of cloaking device to put some pressure on a suspect not to remain silent. And if the suspect withstands this kind of pressure, the obligation to appear might be used as some kind of payback for invoking his right not to say anything. To be precise: The argument that a summons for the purpose of interrogation might be used for a different purpose such as a line-up is against the law. § 133 Subsection 1 StPO clearly states that the suspect may only be summoned for an examination which is an interrogation. That is all. The law is very clear at that point. So a line-up does not fall under § 133 Subsection 1 StPO.16 Apart from that, a suspect might be advised of his rights in different and milder ways, such as in an official letter. It’s simply not necessary to make a suspect appear in front of a judge or a state attorney just to read him his rights. And lastly, it should be the task of a defense attorney to tell the suspect what is really going on and what kind of investigations are in progress against him. The criminal justice system must accept a decision to remain silent. So from my point of view, the strict adherence to appear in court or at the state attorney’s office for an interrogation, even for a suspect that chose to remain silent, is against the law. 3. Medical Examination – Case (BGH NStZ 2019, 3617) Let us now turn to an actual case I am calling the Medical Examination – Case. It is connected to the warnings that must be given to each and every suspect based on § 136 StPO. It’s a decision from our Federal Court of Justice, the Bundesgerichtshof in Karlsruhe.

15 Roxin/Schünemann, Strafverfahrensrecht, § 32 Rn. 25; Löwe/Rosenberg/Gleß § 133 StPO Rn. 9; KMR/Pauckstadt-Maihold § 133 StPO Rn. 5; HK-StPO/Ahlbrecht § 133 StPO Rn. 5. Also LG Nürnberg-Fürth Beschl. v. 5. 6. 1967 – 3 Qs 116/66, NJW 1967, 2126 (2127). 16 Löwe/Rosenberg/Gleß § 133 StPO Rn. 9. 17 With critical commentary from Vogler NStZ 2019, 38.

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Contemporary Problems of the Right to Remain Silent in Germany

The facts are rather simple. A building burnt down during the night and the suspect stood aside the burning building watching it. When the police arrived, they instructed the suspect that she is suspected of arson and has the right to remain silent. The suspect clearly answered that she would like to invoke this right and not say anything. After that, it seemed the suspect needed medical attention because she seemed hurt from the fire. So a female police officer, not a patrol officer but a detective who did not wear a uniform, offered to take the suspect to a nearby hospital. The police officer kept talking to the suspect about the fire during the whole car ride and in the waiting area of the hospital, although the suspect had invoked her right to remain silent. At first, the suspect was not quite aware of the identity of the police officer, as she asked her if she was a doctor. The officer, however, denied that and told the suspect she is with the police. As it was their turn at the hospital a doctor called the suspect, who was not officially arrested, into a medical examination room. The officer at that time also entered the medical examination room together with the doctor and the suspect. Even when the suspect was asked to undress, the officer stayed in the room. In the progress of the medical examination and treatment, the suspect told the doctor she had consumed a lot of medical pills and breathed a lot of smoke when she was lighting up the fire with gasoline. The police officer overheard everything. Later at trial, the officer testified against the suspect. The Federal Court of Justice (BGH) took a – from my point of view – good decision. The court argued that the principle of nemo tenetur se ipsum accusare has been violated by the police. The main argument of the court was that there has been a compulsory situation for the suspect. In order to get medical help, she had to talk to the doctor and give him certain details about what happened. The police, the court reasoned, exploited this situation. This led the court to the conclusion that all evidence that was obtained this situation should be inadmissible at trial. The court also came up with the question if a conversation between a medical doctor and a patient is protected by the so-called core-area of personal rights and should therefore make all evidence inadmissible at trial. It, however, left this question open because it was not needed to come to a final decision. As indicated, I concur with that decision. German literature, however, does not. One of the commentaries, written about that decision, argued that this decision lays down a too broadly interpreted privilege against self-

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incrimination.18 The facts of the case do not concern a severe violation of nemo tenetur and it was not the duty of the police officer to leave the room. She should have been asked out by the suspect or by the doctor, which did not happen.19 Also, there was no compulsory situation for the suspect because she was not subject of a legal obligation to incriminate herself.20 I already made clear that I concur with the decision. The contradiction in German literature shall show us that there is mostly no consensus as to cases involving the privilege against self-incrimination. 4. The “Proberichter” – Case (BGH NJW 2019, 78921) We will now turn to the all-important and famous section § 136a StPO, a cornerstone of the culture of our criminal proceedings, founded by the lawmaker in the year 1950 to put some safeguard in the positively written law in order to make sure that all the horrible things that happened in criminal proceedings during the years 1933 until 1945 will forever be banned and never happen again. In order to put some light on today’s status of § 136a StPO, I chose another very recent case dealing with § 136a StPO. I call this case the “Proberichter-Case”. The – from my point of view – best translation of the word “Proberichter” should be testjudge. In Germany, if somebody gets appointed to be a judge, the first years in his job are a testing time before getting appointed for life time. This test time follows the purpose to make sure that one is up to the job. Well, it seems, in this case, our “Proberichter” is not qualified whatsoever to do this job, as the facts of the case tell us. The testjudge was confronted with an exhibitionism-case. He was eager to get a confession from the defendant, because he thought he would need it for purposes of the trial. The defendant, however, denied the charges. In order to get a confession, the judge told the defendant in court that he might go to jail if the things he is charged with will happen again, and in

18 Vogler NStZ 2019, 38 ff. For a different view cf. Jahn NJW 2018, 1988 or Dorneck HRRS 2018, 511 f. 19 Vogler NStZ 2019, 39. 20 Vogler NStZ 2019, 39. 21 With critical commentary from Leitmeier NJW 2019, 793. See also the commentary from Berghäuser NStZ 2019, 281 f.

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Contemporary Problems of the Right to Remain Silent in Germany

jail nobody can guarantee for his safety. He might even be subject to sexual violence by other male inmates. The defendant still did not comply with the pressure of the court to confess. Next, the judge told the defendant to please come with him to the basement of the court building, telling the other parties of the trial to stay and wait in the courtroom. He said to the defendant: “Now I am going to show you what your future will most certainly look like.” In its basement, the court was equipped with several detention cells. Standing in front of these cells, the judge commanded the defendant, who got frightened and intimidated, to walk into one of the cells. The defendant did so, asking the judge if he might use the lavatory in the detention cell. The judge said “No”, because he wanted to avoid the obligation to clean the cell afterwards. He told the defendant that he can use another lavatory when all of this is over. Next, the judge ordered an officer of the court to close and lock the door of the cell to put even more pressure on the defendant. He told the defendant he might knock if he wants the door to reopen. After a short amount of time, the officer of the court opened the door and the judge took the defendant back upstairs to the courtroom. Before, he was allowed to use a restroom. Back at trial, the defendant was still not willing to confess. That is why the judge ordered the public reading of a psychological assessment of the defendant, which was against criminal procedure law. The defendant was indirectly signaled he might even get a court order to go to a mental hospital. At that point of time, the defendant confessed to the charges and the trial rapidly ended with a rather mild sanction and a court order to get an ambulatory therapy within the next two months. The defendant officially declared he will not appeal against the court’s decision. He also said, “Boy, that trial really shook me up”. Afterwards several courts had to find an answer to the question as to whether or not the judge’s way of “handling things” was criminal. This question is closely connected to § 136a StPO. Because if there is a violation of § 136a StPO, this will lead the way to at least two criminal offenses in the German Criminal Code called perversion of justice (§ 339 StGB) and extortion of statements (§ 343 StGB). The Federal Court of Justice, our Bundesgerichtshof, however, didn’t want to go that far. The court – in short – ruled, that there is no clear violation of § 136a StPO. Out of an overall assessment respecting the degree of pressure that was put on the suspect, the court was not willing to see a violation of § 136a StPO that might even lead to a punishment of the judge. A prominent commentary on that ruling, written by Lorenz Leitmeier, a judge himself, shows how controversial that view is evaluated in German 57

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literature. Leitmeier talks about an – we hear that argument for the second time already – kafkaesk scenery which includes the court rulings in that case.22 He argues that a behavior like this constitutes a very drastic violation of basic procedural rights of the defendant.23 And as a consequence, it needs to be criticized that the Bundesgerichtshof is so reluctant in voting for a clear violation of § 136a StPO. I do agree with Leitmeier here. Again, we see that the principle against self-incrimination that is symbolized and contained in § 136a StPO has a very weak standing. There is insecurity as to its range and a controversy among professionals and scholars. Of course, a supplementary explanation in that case is that judges regularly don’t like to punish one of themselves. However, all that comes back to the nemo tenetur-principle and leaves that important cornerstone of our procedural law in a doubtful situation.

5. Actual Policy: § 163g StPO-E In my last example, I am now turning to politics. Since March 2019, the German community is debating a draft by our federal government to create a new section in our Criminal Procedure Code, § 163g StPO-E. The draft was first published online by the netzpolitik.org service24 and carries the big name “IT-Security-Law 2.0”. In this bill § 163g StPO-E is – accompanied by other and many more suggestions – a legal provision that shall give our government the legal possibility to make a criminal suspect surrender his passwords for his virtual identity, so that police and other government agencies are able to log into what they call virtual identity. Ronen Steinke from the Sueddeutsche Zeitung wrote, that in this case, the government would be able to look through the eyes of the suspect, speak in his voice and fool other people.25 And if a suspect does not comply with the order to give up his passwords, the new legal bill connects to § 70 StPO which gives the state the possibility to use pressure and force to make the suspect comply even through imprisonment. My colleague Tobias Singelnstein from

22 Leitmeier NJW 2019, 793. 23 Leitmeier NJW 2019, 793. 24 https://netzpolitik.org/2019/it-sicherheitsgesetz-2-0-wir-veroeffentlichen-den-entw urf-der-das-bsi-zur-hackerbehoerde-machen-soll/ (last visited Nov 18th 2019). 25 https://www.sueddeutsche.de/digital/passwort-beugehaft-sicherheit-seehofer-geset z-it-paragraf-1.4404205 (last visited Nov 18th 2019).

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Contemporary Problems of the Right to Remain Silent in Germany

the Ruhr-Universität Bochum says that this feels as if someone beats with an axe against the nemo tenetur-principle.26 And he is right. The government shows no sensitivity whatsoever as to the privilege against self-incrimination. If it allows force against a suspect in criminal proceedings to make him actively give away the entry key for his personal identity, this clearly violates the nemo tenetur-principle. And furthermore, allowing force to get to a result like this changes the structure of our criminal process. It is for sure and self-understanding that measures out of § 70 StPO may only be applied to witnesses, not to suspects or defendants. So all of this would constitute a dramatic change of structure if this legal bill ever comes into force. I will stop here and try a short conclusion.

IV. Conclusion As we might have seen out of the material I presented, there is some uncertainty as to the practical range of the nemo tenetur-principle. Uncertainty starts with police work and goes all the way up into court decisions. The reason, or one of reasons for that, is from my point of view that there is still no consensus with regard to a deeper legal basis and the actual range of nemo tenetur. Also, it strikes my mind that actors in the criminal justice system do not agree with and furthermore simply don’t like the right of suspects to remain silent. This right constitutes some kind of obstacle for their work to investigate the truth. It is in their way. What’s more, you can find a modern view all over the place, that especially the victims and also the society itself deserve some remorse from a suspect, or when it comes to trial from a defendant. And remorse is not possible without saying a word. All of this, as we saw, already reached the level of legal politics, that is either not aware of nemo tenetur or is ready to sacrifice the principle in a rather crucial way. So there is a lot of pressure against the nemo teneturprinciple and also some uncertainty as to a deeper legal basis. The consequence out of all this should not be a cutback of nemo tenetur. The privilege against self-incrimination marks a cornerstone of our modern inquisitorial criminal process. It is not only a legal obligation but also part of our culture to protect a defendant from a powerful government that uses force to make him incriminate himself. And when it comes

26 Via Twitter under @tsingelnstein.

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to cultural aspects, more is at stake than simple legal questions connected to certain cases.

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The Legality of Trickery During Interrogation Christopher Slobogin*

I.

Is Trickery Necessary to Obtain Confessions?

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1. Trickery and True Confessions

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2. Trickery and False Confessions

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3. Detection of False Confessions

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II. Does Trickery Impermissibly Undermine Dignity?

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III. Is Trickery Coercive?

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1. Manipulative Techniques That Are Impermissibly Coercive

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2. Manipulative Techniques That Are Not Impermissibly Coercive

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3. The Rights Predicate and State Action

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4. Summary

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IV. Is Trickery Illegitimately Fraudulent?

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V.

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Conclusion

May police use deception during interrogation? In the United States, the judicial answer to that question has often been a resounding “yes.” According to one review, American courts have permitted police interrogators to lie about a wide array of facts, including “witnesses against the defendant, earlier statements by a now-deceased victim, an accomplice’s willingness to testify, whether the victim had survived an assault, ‘scientific’ evidence available, including DNA and fingerprint evidence, and the degree to which the investigating officer identified and sympathized with the defen-

* Milton Underwood Professor of Law, Vanderbilt University. This article is partly based on Christopher Slobogin, Manipulation of Suspects and Unrecorded Questioning: After Fifty Years of Miranda Jurisprudence, Still Two (or Maybe Three) Burning Issues, 97 B.U. L. Rev. 1157 (2017) and on Christopher Slobogin, Lying and Confessing, 39 Texas Tech L. Rev. 1275 (2007).

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dant.”1 This chapter assesses the arguments against such tactics, in an effort to pinpoint the circumstances, if any, under which police may resort to trickery during interrogation. First, it is necessary to provide a bit more detail about the types of deception that could play a role during interrogation. In their well-known manual Criminal Interrogation and Confessions,2 Fred Inbau and his colleagues discuss a variety of interrogation techniques (although they do not endorse all of them).3 These techniques can be categorized in a number of ways. Here they will be reduced to four types: (1) “impersonation” (e.g., showing sympathy for the suspect, posing as a friend, using an informant to question the suspect); (2) “rationalization” (e.g., suggestions to the effect that a confession will make the suspect or the victim feel better, or that the crime was accidental or justified); (3) “fabrication” (e.g., false statements that a co-defendant or forensic evidence has inculpated the suspect, or bluffing and other means of insisting the suspect is guilty); and (4) “negotiation” (e.g., erroneously stating that, if the suspect confesses, more lenient punishment or release from detention is likely). These categories overlap to some extent, but they are different enough conceptually to provide a useful taxonomy. The question then becomes whether any of these techniques may be used during interrogation. The literature suggests four possible objections. The first is empirically-based: deception is simply not necessary to get confessions. The other three objections assume that, in some cases, deception is necessary, but posit that, nonetheless, it must still prohibited in all or many cases. Objection number two is that lying to suspects undermines the suspect’s dignity and therefore ought to banned completely. The third objection is that, even if the dignity concern can be overcome, deception is often impermissibly coercive. The fourth objection is that, separate and apart from concerns about dignity, even non-coercive trickery ought to be prohibited when it constitutes fraud, which is inherently immoral and perhaps a crime. This chapter concludes that, while all of these objections have some merit, some types of interrogation trickery are justified.

1 Paul Marcus, It’s Not Just About Miranda: Determining the Voluntariness of Confessions in Criminal Prosecutions, 40 Val. U. L. Rev. 601, 612-14 (2006). 2 The most recent edition is Fred E. Inbau, John E. Reid, Joseph P. Buckley & Brian C. Jane, Criminal Interrogations and Confessions (5th ed. 2011) (hereafter Inbau et al.). 3 Id. at 185-329.

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The Legality of Trickery During Interrogation

I. Is Trickery Necessary to Obtain Confessions? There is some dispute over whether any type of interrogation–deceptive or not–is a necessary police tool. Paul Cassell, an avid supporter of the interrogation process, concedes that confessions are “essential” in only some 22% of the cases,4 and other analyses have produced even lower estimates.5 But most would probably agree that even if only 5% of all serious criminal acts necessitate a confession to ensure successful prosecution, that number is sufficiently high to warrant a continuation of interrogation as a police investigative technique. That does not mean, of course, that trickery is necessary to obtain useful confessions. And even if trickery is a crucial means of eliciting incriminating statements in some cases, its effectiveness would still be called into question if it produces more than a trivial number of false confessions— unless, perhaps, those confessions can be identified before they are used by the prosecution. These issues are taken up in turn.

1. Trickery and True Confessions Research over the past 30 years indicates that most incriminating statements are obtained during interviews lasting fewer than 30-60 minutes, relying on straightforward questioning and confrontation with the evidence.6 However, these studies also found that “persuasion” or “psycholog4 Paul G. Cassell & Bret S. Hayman, Police Interrogations in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L. Rev. 839, 906 (1996). 5 See, e.g., Michael Wald et al. Interrogations in New Haven: The Impact of Miranda, 76 Yale L.J. 1519, 1585, 1593-96 (1967) (finding that confessions were “important” or “essential” in 13% of cases, although they also occasionally were crucial in “clearing” other crimes and in discovering patterns of criminal activity); Richard H. Seeburger & R. Stanton Wettick, Miranda in Pittsburgh—A Statistical Study, 29 Pitt L. Rev. 1, 23 (1967) (confessions important in less than 10% of cases studied). 6 John Baldwin, Policing Interviewing Techniques: Establishing Truth or Proof? 33 Brit. J. Criminol. 325 n.35 (1993); John J. Pearse & Gisli H. Gudjonsson, Policing Interviewing Techniques at Two South London Police Stations, 3 Psychology, Crime and Law 63 (1996); Richard A. Leo, Inside the Interrogation Room, 86 J. Crim. L. & Criminol. 266, 279 (1996) (35% of interrogations lasted less than 30 minutes; 71% less than one hour); Barry Feld, Police Interrogation of Juveniles: An Empirical Study of Policy and Practice, 97 J. Crim. L. & Criminol. 219, 316 (2006) (“Police in this study concluded three-quarters of interrogations in thirty minutes or less, and one exceeded one and one-half hours. These findings are consistent with every other study of routine interrogation.”).

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ical manipulation” was used in a non-trivial percentage of cases.7 Although this latter finding does not establish that deception is necessary in the latter cases, it does indicate that police sometimes conclude that straightforward questioning is not working. A United Kingdom study of the interrogations in 20 cases involving rape, arson, armed robbery and murder charges makes the point: in all 20 cases, police used an array of deceptive techniques because the suspects were initially resistant to making admissions.8 Another way of getting at the effectiveness issue is to compare the success rate of police who use deception and those who do not. For instance, Dr. Gudjonsson asserts that the confession rate is higher in the United Kingdom than in the United States even though fewer deceptive and oppressive tactics are used in the U.K.; based on these two assertions, he suggests that such tactics may not be necessary.9 Yet both of Gudjonsson’s assumptions (that the U.K.’s confession rate is lower than the U.S.’s and that U.K. interrogation practices are less manipulative) are suspect.10 Furthermore, any confession rate differential that does exist between the U.K. and the U.S. may be due to significant legal differences. In contrast to legal practice in the U.S., police in the U.K. are permitted to continue questioning a suspect even after the suspect has indicated a desire to remain silent, and are also allowed to tell suspects that their silence may be used against them.11 Given the obstacles it must overcome, “American-style” questioning might well be better at producing confessions. Consistent with this

7 Pearse & Gudjonsson, supra note 6, at 65 (“psychological manipulation” used in 8% of 173 cases); Leo, supra note 6, at 277 (police used impersonation techniques in 11% (friendly touching) to 30% (flattery) of 182 cases; rationalization in 23% (appeals to conscience/minimization of offense) to 34% (offering justifications/ excuses) of cases; fabrication of evidence in 30% of cases; and negotiation in an undetermined number of cases). 8 Gisli H. Gudjonsson, The Psychology of Interrogations and Confessions: A Handbook 86-87 (2003). 9 Id. at 620-23. 10 The confession rate in the United Kingdom at the time Gudjonnson was writing was about 55 to 60%, see id. at 156, which is similar to or lower than the confession rate found in American jurisdictions. See George C. Thomas III, Plain Talk About the Miranda Debate: A “Steady State” Theory of Confessions, 43 UCLA L. Rev. 933, 958 (1996) (estimating a conservative rate of 52 to 55%); Leo, supra note 6, at 300-01 (finding a rate of 64%). As to police tactics, Gudjonnson’s own research indicates that, at least where serious crimes were involved, English police often resorted to “American-style” tactics. Gudjonnson, supra note 8, at 114. 11 See Royal Commission on Criminal Justice: Report 56-57 (1993) (permitting continued questioning after assertion of right to silence); Code of Practice for Deten-

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The Legality of Trickery During Interrogation

conclusion, several studies of practice in the field indicate that manipulative inquiries tend to produce more incriminating statements than straightforward questioning about the evidence.12 Additional support for the proposition that deception during interrogation can be important comes not from observation of actual interrogations, but rather from innovative analogue studies that attempt to simulate the interrogation environment. In the leading experiment of this type, Russano and her colleagues told the subjects that they would be involved in research comparing individual and group decision-making processes.13 Those who agreed to participate were then informed that they would be solving logic problems, some alone and some with another individual who would be in the same small room with them. Unbeknownst to the subjects, the person with whom they were paired was a member of the research team. With some of the subjects, the research confederate asked for, and often received, help in solving one of the problems that was supposed to be solved individually, while with other subjects no attempt at rule violation occurred, thereby creating a “guilty” group and an “innocent” group. After the testing was complete all of the subjects, guilty and innocent, were accused of improperly solving as a pair one of the individual logic problems and were subjected to one of three conditions: (1) “minimization-plus-deal” tactics (i.e., being told that a confession would settle the matter quickly but that a denial would mean the professor would become involved and things would get worse); (2) minimization-alone tactics (such as empathizing with the subject and minimizing the seriousness of the cheating); or (3) straightforward questioning. Both of the specialized

tion, Treatment and Questioning of Persons by Police Officers, 1991, § 10.4 (permitting adverse use of silence caution). 12 Lesley King & Brent Snook, Peering Inside a Canadian Interrogation Room: An Examination of the Reid Model of Interrogation, Influence Tactics and Coercive Strategies, 36 Crim. Justice & Beh. 674, 690 (2007) (finding that manipulative techniques increased the probability of a confession); Stravoula Soukara et al., What Really Happens in Police Interviews with Suspects? Tactics and Confessions, 15 Psych., Crime & L. 493 (2009) (same); David Dixon (with Gail Travis), Interrogating Images: Audio-Visually Recording Police Questioning of Suspects 228-29 (reporting survey of police, prosecutors, defense attorneys and judges in England indicating that the first three groups, on average, believed that the PEACE technique—which avoids deception and relies on confrontation of the suspect with evidence—decreased the number of confessions, although it also increased guilty pleas). 13 Melissa B. Russano et al., Investigating True and False Confessions with a Novel Experimental Design, 16 Psychological Sci. 481 (2006).

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tactics–which could easily be, and in this case were, lies–vastly increased the proportion of “confessions” from guilty subjects, from 46% in the notactic condition to 87% in the pressure condition and to 81% in the minimization-only condition.14 Other research using various methodologies has produced similar results.15 In sum, the behavior of the police, comparative studies, and studies in the laboratory suggest that deception might be very useful in obtaining confessions. A broad definition of effectiveness, however, must also look at a technique’s “diagnosticity,” that is, the ratio of true confessions the technique produces to the number of false confessions it causes.

2. Trickery and False Confessions Even if manipulative techniques generate more true confessions, they may also cause more false confessions. Trickery might lead an innocent person to confess because it causes fear, confusion, or a belief that the police must be right.16 In fact, researchers conducting studies in the laboratory, including the Russano study just mentioned, have found that false confessions rates are often many times higher when trickery and other forms of psychological interrogation are used than when they are avoided.17

14 Id. at 484 (tbl. 1). 15 See, e.g., Jennifer T. Perillo & Saul M. Kassin, Inside Interrogation: The Lie, the Bluff, and False Confessions, 35 L. & Hum. Behav. 327, 330 (2011) (finding that the bluff technique increased true confessions from 26% to 89%). One study using the same methodology as Russano et al., supra note 13, claimed to produce over 90% true confessions using either approach, but it appears that the interrogators in the study, like police in the real world, switched to manipulative techniques if they did not get a confession using “non-coercive” techniques, which would mean that interrogations were in fact “unsuccessful” in this subset of cases. See Fadia M. Narchet, Christian A. Meissner & Melissa B. Russano, Modeling the Influence of Investigator Bias on the Elicitation of True and False Confessions, 35 L. & Hum. Behav. 452, 457 (2011). 16 Saul M. Kassin & Lawrence S. Wrightsman, Confession Evidence, in The Psychology of Evidence and Trial Procedure 67-94 (Saul M. Kassin & Lawrence S. Wrightsman eds., 1985). 17 Russano et al., supra note 13, at 484, tbl. 1 (manipulative techniques increased false confessions from 6% to 14%, 18% or 43% depending upon which techniques were used); Perillo & Kassin, supra note 15, at 334 (bluff technique increased false confessions from 45% to 70%); Narchet, Meissner & Russano, supra note 15, tbl. 3 (manipulative techniques increased false confessions from 3% to 11%, 22% or 43% depending upon the technique used).

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The Legality of Trickery During Interrogation

These dramatic results need to be interpreted with caution, however, given the simulated nature of the research. Virtually all of it relies on “interrogations” of college students and similar populations, who are accused of minor infractions that at most will lead to some type of academic penalty and who are not given Miranda-style warnings.18 Not surprisingly, the generalizability of these findings to the false confession rates of innocent defendants who are given Miranda warnings, charged with serious crime, and potentially subject to imprisonment has been called into question even by those most opposed to deceptive techniques.19 Research on deceptive interrogations involving actual criminal defendants has greater relevance. But it can suffer from suspect internal validity, because the “ground truth” of whether a confession is in fact false is usually unknown. Some researchers have avoided this problem by focusing on the small number of proven wrongful conviction cases in which confessions were obtained, and their work suggests a correlation between false confessions and techniques such as negotiation and evidence fabrication ploys.20 However, because these latter techniques occur in a large number of interrogations, most of which produce confessions not known to be false, and because in many of the wrongful conviction cases the techniques were combined with prolonged interrogation sessions or were aimed at highly vulnerable individuals who might have confessed in any event,21 this re-

18 For instance, in one study the “penalty” was a phone call from the principal investigator, Saul Kassin & Katherin L. Kiechel, The Social Psychology of False Confessions: Compliance, Internalization, and Confabulation, 7 Psychol. Sci. 125, 126 (1996), in another it was a loss of 1 credit hour, Perillo & Kassin, supra note 15, at 333-34, and in the Russano study, supra note 13, it was a threat to tell the professor about the failure to confess. In none of the studies were the subjects given warnings. 19 See Gisli Gudjonnson, The Psychology of False Confessions, A Review of Current Evidence, in Police Interrogations and False Confessions: Current Research, Practice and Policy Recommendations 43 (G. Daniel Lassiter & Christian Meissner eds., 2012) (stating that “this kind of research has little ecological validity in terms of applying it to real-life individual cases.”). 20 See, e.g., Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051 (2010) (reporting 40 cases involving confessions that were proven false by DNA analysis); Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in a Post-DNA World, 82 N.C. L. Rev. 891 (2004) (reporting 125 cases purportedly involving confessions proven false through DNA analysis or other methods). 21 Garrett, supra note 20, at 1064, found that 65% of false confessions were by juveniles or people with mental disability, groups that should be subject to special interrogation rules. See infra text accompanying notes 79-81.

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search is still ambiguous about the extent to which deceptive techniques, by themselves, cause false confessions.

3. Detection of False Confessions Nonetheless, it is highly likely that deceptive techniques produce more false confessions than non-deceptive techniques, even from normal-functioning adults. Assuming so, does that mean the former techniques must be abandoned? Perhaps not, if the legal system can detect false confessions in a timely fashion. Richard Leo and Richard Ofshe have suggested a method that could be extremely helpful in this regard. They recommend that interrogators and courts consider: “(1) whether the confession contains nonpublic information that can be independently verified, would be known only to the true perpetrator or an accomplice, and cannot likely be guessed by chance: (2) whether the confession led the police to new evidence about the crime; and (3) whether the suspect’s post-admission narrative fits the crime facts and other objective evidence.”22 A rule could be established that, if the prosecution is unable to show that one or more of these factors are present, the confession should be discarded. By the same token, if such proof is forthcoming, the confession could be assumed to be reliable, with the important caveat that the prosecution must also show that interrogators did not feed the suspect the relevant information or simply fraudulently assert that he or she knew it.23 If that were the law, police would make sure they do not contaminate a confession by providing the suspect information only the perpetrator would know; or, if their confrontation tactics make that impossible, police would at least need to withhold one such piece of information until a confession is forthcoming so as to provide a double-check (a practice endorsed by the FBI).24 With this set of protections against false confessions in place, the diagnosticity of manipulative techniques might well be superior to straightforward questioning: the former techniques appear to obtain more true con-

22 Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Mis-carriages of Justice in the Age of Psychological Interrogation, 88 J. Crim. L. & Criminol. 429, 438-39 (1998). 23 See Garrett, supra note 20, at 1066 (noting that in 36 of 38 false confession cases suspects’ confessions were contaminated by information from the police or media accounts). 24 Michael Napier & Susan H. Adams, Criminal Confessions: Overcoming the Challenges, 72 FBI L. Enforcement Bull. 9, 14 (2002).

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The Legality of Trickery During Interrogation

fessions, and any false or suspect confessions they produce should usually be discovered before use at trial. In any event, this chapter will assume that, within these constraints, trickery is necessary to obtain confessions when non-deceptive methods have failed. Even so, several impediments to the use of interrogation trickery remain, the first of which is the argument that trickery cannot be allowed no matter how useful it is, because it denigrates the dignity and autonomy of the suspect.

II. Does Trickery Impermissibly Undermine Dignity? To some commentators, none of the foregoing discussion matters. They argue that deception during interrogation should be categorically forbidden, regardless of its efficacy, because of more intangible factors. Eugene Milhizer states that “police deception and trickery, even short of outright lying, can damage the dignity of suspects [and thus] it is incumbent upon all— the Court, the legislature, and the executive, as is constitutionally fitting for each—to condemn unconditionally and prohibit the morally illicit deception of a suspect by the police in order to obtain a confession. . . “.25 George Dix explains that trickery “intrudes on a suspect’s dignity interests” because it deprives him or her of the ability to make decisions based on full and accurate knowledge.26 The German scholar Klaus Bernsmann agrees that statements by a suspect who is led astray by law enforcement cannot be said to be the type of free and morally self-determined conduct required by the fundamental human right to be treated with dignity.27 Several authors also charge that trickery during interrogation undermines the dignity of the police, because it creates a culture of deceit and undermines trust in law enforcement.28 These statements about the dignitarian harms of interrogation trickery are reasonable in isolation. But if these harms are sufficient grounds for a complete ban on interrogation deception by the police they might also re-

25 Eugene R. Milhizer, Rethinking Police Interrogation: Encouraging Reliable Confessions While Respecting Suspects’ Dignity, 41 Val. U. L. Rev. 1, 88 (2006). 26 George C. Dix, Federal Constitutional Confession Law: The 1986 and 1987 Supreme Court Terms, 67 Tex. L. Rev. 132 344-45 (1988). 27 Klaus Bernsmann, Die List in der Vernehmung und Befragung des Beschuldigte (dissertation, Nov. 14, 2002). 28 See, e.g., Rinat Kitai-Sangero, Extending Miranda: Prohibition on Lies Regarding the Incriminating Evidence, 54 San Diego L. Rev. 611, 623 (2017) (“Lies harm the integrity of the police and the criminal justice system.”).

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quire prohibition of a number of other deceptive investigative techniques that have long been accepted. Police informants and undercover agents routinely insinuate themselves into relationships under false pretenses, lie and dissemble to maintain that relationship, and then betray confidences. Electronic surveillance covertly intercepts phone and email communications. Police often use minor infractions, such as traffic stops, as a pretext for searching for evidence or asking questions about more serious crime. All of these practices hide relevant information from citizens, immerse the police in deceit, and could aggravate the police-citizen relationship. Yet all of these deceptive techniques are permitted in most countries, if certain predicates are met. In the United States, federal informants can be deployed if there is reason to believe the target is up to no good.29 Electronic surveillance is permitted if there is a warrant.30 And pretextual actions can take place if the police have a legitimate reason for the pretext, for instance, in the traffic stop example, probable cause for the stop.31 Should all of these practices be banned, or is interrogation trickery somehow different? Relevant here is the work of noted moral philosopher Sissela Bok.32 Bok argued that lying is generally to be avoided, because it denigrates the dupe, coarsens the liar, and diminishes the level of trust in society as a whole.33 However, Bok was willing to recognize at least two narrow exceptions to this prohibition that might apply to the police. The first exception occurs when lying is necessary to avert a serious crisis, such as in a hostage situation.34 The second arises when lying is necessary to protect society from an “enemy”—one who is willing to lie to succeed and whose deception is likely to harm the public—a category in which Bok included criminals.35 More specifically with respect to the enemy exception, Bok stated that “the more openly and clearly the adversaries, such as crimi-

29 Guidelines on FBI Undercover Operations V.B(4) (2013), available at https://www. justice.gov/sites/default/ files/ag/legacy/2013/09/24/undercover-fbi-operations.pdf (requiring, before any inducements by an undercover agent, occur that “(i) there is reasonable indication that the subject is engaging, has engaged, or is likely to engage in the illegal activity proposed or in similar illegal conduct; or (ii) The opportunity for illegal activity has been structured so that there is reason to believe that any persons drawn to the opportunity, or brought to it, are predisposed to engage in the contemplated illegal conduct.”). 30 See 50 U.S. § 1881a. 31 Whren v. United States, 517 U.S. 806 (1996). 32 Sissela Bok, Lying: Moral Choice in Public and Private Life (1978). 33 Id. at 21-28. 34 Id. at 108-109. 35 Id. at 138-144.

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nals, can be pinpointed, and the more justifiable, therefore, the criteria for regarding them as hostile, the more excusable will it be to lie to them if honesty is of no avail.”36 Although it is not clear that Bok would agree,37 one could argue, building on this criminal-as-enemy concept, that police could use deception during interrogation of any person who has been arrested. An arrest is an open and a clear statement that the state has probable cause to believe the individual is a criminal, a determination that, at least under American law, must be affirmed by a judge within 48 hours of any arrest not already authorized by a warrant.38 This rule would prohibit deception aimed at witnesses and others not in custody, but would permit necessary deception of persons whom the police have validly arrested. One objection to this approach is that, at least when allowed to make a warrantless arrest,39 police might be encouraged to arrest in the absence of cause, in the hope that post-arrest interrogation will help them subsequently justify the arrest to a judge.40 If so, the law could require—consistent with proposals designed to regulate all interrogation, deceptive or not—that questioning cannot take place unless authorized by an “interrogation warrant” issued by a judge who has found both that the arrest is valid and that interrogation is necessary.41 This requirement would make the enemy designation even more visible. It also aligns interrogation law with the law of electronic surveillance,42 and suggests that rules governing undercover agents and pretextual searches and seizures should be modified accordingly.43

36 Id. at 144. 37 Bok ultimately was unsure whether enemies can be identified in an unbiased manner. Id. at 152-53. She also wanted the enemy designation to be made after public debate, id., a condition that a warrant does not satisfy. 38 I make this argument in detail in Christopher Slobogin, Deceit, Pretext, and Trickery: Investigative Lies by the Police, 76 Or. L. Rev. 775 (1997). The 48-hour rule comes from Riverside Cty. v. McLaughlin, 500 U.S. 44 (1991). 39 In the U.S., an arrest warrant is required before non-exigent arrests in the home, Payton v. New York, 445 U.S. 573 (1980), but is not required for most arrests made in public. United States v. Watson, 423 U.S. 411 (1976). 40 See Robert Mosteller, Moderating Investigative Lies by Disclosure and Documentation, 76 Or. L. Rev. 833, 849-50 (1997). 41 See Russell D. Covey, Investigation Warrants, 26 Cardozo L. Rev. 1867 (2005) (arguing that interrogations are akin to fourth amendment searches). 42 See 18 U.S.C. § 2518(3) (requiring that, before an electronic surveillance warrant may issue, a judge must find probable cause that an offense has been or is being committed, that surveillance will obtain information about the offense, and that “normal investigative procedures” have failed or are not likely to succeed). 43 For arguments to this effect, see Slobogin, supra note 38, at 802-810.

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Of course, the arrest/interrogation-warrant threshold would not ensure the suspect is a criminal, nor would it eliminate the insult to dignity that interrogation deception visits on suspects. But note that the dignitarian harm associated with such deception is far less palpable than the harms to suspects routinely permitted in other contexts upon a probable cause showing. Solely on their own determination of probable cause, law enforcement officials in the United States may detain individuals for up to 48 hours.44 Assuming cause and exigency, they may also ransack homes looking for evidence.45 And, if a warrant is obtained, police are even permitted the ultimate intrusion, electronic eavesdropping. If probable cause is sufficient to justify these types of actions, it should be enough to justify deception during interrogation. Deception undermines the dignity of the dupe whenever it occurs. But that should not necessarily mean it is always barred. At least some diminishment of dignity may be justified when a judge has found probable cause that the person has committed a crime and that interrogation is necessary to gain evidence of that crime, and when straightforward questioning has been unsuccessful. Identifying the specific types of deception allowed, however, requires further analysis, beginning with an inquiry into whether the practice in question is coercive.

III. Is Trickery Coercive? Despite a clear prohibition against “compelled testimony” in the Fifth Amendment to the U.S. Constitution, United States caselaw has always been vague about the precise meaning of “involuntariness,”46 understandably so given the extent to which the concept of coercion has perplexed moral philosophers.47 Rather than replicate that literature here, I propose a test that does not try to define coercion, but rather compares the pressure a 44 Riverside County v. McLaughlin, 500 U.S. 44, 56 (1991). 45 Minnesota v. Olson, 495 U.S. 91, 100 (1990). 46 Eve Brensike Primus, The Future of Confession Law: Toward Rules for the Voluntariness Test, 114 Mich. L.Rev. 1, 1 (2015) (“the voluntariness test is a notoriously vague standard”). 47 See generally, Michael Kates, Markets, Sweatshops and Coercion, 13 Geo. J. L. & Pub. Pol’y 367, 368 (2015) (“Coercion is a philosophically contested concept. Indeed, the problem is even worse than that. For not only is there sharp disagreement in the philosophical literature as to what is the correct definition or meaning of coercion but the nature of that disagreement ranges over a number of different dimensions as well.”).

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The Legality of Trickery During Interrogation

deceptive interrogation practice visits on an individual with the pressure non-deceptive practices produce. More specifically, I suggest that, once a person is told about the right to remain silent and has acknowledged an understanding of that right (as required by the U.S. Supreme Court’s opinion in Miranda v. Arizona48 and the law in most other Western countries as well49), police deception during interrogation amounts to impermissible coercion when, but only when, the deceptive statements would be impermissibly coercive if true, a principle I call the “equivalency test.” A police statement that, if it were true, is not impermissibly coercive does not become so simply because it is in fact false. Conversely, all deceptive police statements that, had they been true, would be considered coercive, should be outlawed. Applying the equivalency test to the four categories identified earlier suggests that negotiation tactics should be banned, but that impersonation, rationalization and fabrication techniques are not any more coercive than permissible non-deceptive practices.

1. Manipulative Techniques That Are Impermissibly Coercive Aside from lies about one’s rights (e.g., “You do not have a right to remain silent”), which would be a direct violation of the privilege against self-incrimination, the most obviously coercive deceptive practices under the equivalence test are those that smack of negotiation. Clearly coercive, for instance, are false threats that harsh punishment or treatment will occur if a confession is not forthcoming, or false promises of leniency if one is forthcoming, as these threats and promises would be coercive if true. The U.S. Supreme Court’s Fifth Amendment jurisprudence has long prohibited imposition of penalties, even those that fall well short of enhanced prison time, for refusing to make self-incriminating statements.50 Of course, police rarely are so blatant. More likely are vague statements to the effect that “Things will get worse” if silence or counsel rights are as-

48 384 U.S. 436 (1966). 49 See Jason Mazzone, Silence, Self-Incrimination, and Hazards of Globalization, in Comparative Criminal Procedure 308 (Jacqueline E. Ross & Stephen C. Thaman, eds., 2016). 50 See, e.g., Uniformed Sanitation Men Ass’n, Inc. Comm’er of Sanitation of City of New York, 392 U.S. 280 (1968) (striking down statute that penalized a refusal to talk with termination of employment); Spevack v. Klein, 385 U.S. 511 (1967) (loss of professional license); Lefkowitz v. Turley, 414 U.S. 70 (1973) (ineligibility for government contracts).

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serted.51 Often these descriptions of the suspect’s legal plight might turn out to be true.52 Nonetheless, whether true or false, they are imposing a serious penalty on assertion of the right to silence, and should be considered coercive. Even the Inbau, Reid, Buckley & Jane manual (hereafter, simply Inbau manual) emphasizes that suspects should not be told that they face certain punishment if they do not confess, or be promised leniency if they do.53 Sophisticated police are likely to resort to more subtle tactics. One technique that the Inbau manual recommends is to intimate that the suspect will have some type of defense if he or she confesses.54 Or police might suggest that the suspect will get to go home if incriminating information is provided, or engage in extremely long interrogations that imply the same thing.55 The inquiry here becomes more difficult, but should ultimately depend on the extent to which police condition better legal treatment on a confession. For instance, questions such as “Have you done this many times before or was this just the first time?” or “Was this whole thing your

51 See David Simon, Homicide: A Year on the Killing Streets, 194-195 (1991) (noting that Baltimore detectives routinely tell a suspect that an invocation of rights will “make matters worse for him, for it would prevent his friend the detective, from writing up the case as manslaughter or perhaps even self-defense, rather than first degree murder”); Rose v. Lee, 252 F.3d 676, 686 (4th Cir. 2001) (involving “the cryptic promise that ‘things would go easier on [the suspect] if he confessed,” but holding, contrary to the argument above, that this did not amount to “unconstitutional coercion”); Richard A. Leo, Police interrogation and American Criminal Justice 158 (2008) (describing cases where interrogators promised lighter sentences if the suspect confessed). 52 Cf., Nancy J. King et al., When Process Affects Punishment: Differences in Sentences After Guilty Plea, Bench Trial, and Jury Trial in Five Guidelines States, 105 Colum. L. Rev. 959, 992, 1005-1009 (2005) (finding increases in sentences for those who refuse to plead guilty and instead go to trial ranging “from 13% to 461% in Washington, from 58% to 349% in Maryland, and from 23% to 95% in Pennsylvania”). 53 Inbau et al., supra note 2, at 344-345. 54 See id., at 345 (stating that an interrogator may say to a suspect “if this is something that happened on the spur of the moment, that would be important to include in my report”); id. at 296 & 299 (recommending that, at the climactic stage of the interrogation, the suspect who continues to deny the crime be given only two alternatives, e.g. “If you’ve done this dozens of times before, that’s one thing. But if this was just the first time it happened, that would be important to establish” or “Joe, this is very critical. When you pulled that trigger were you just trying to slightly injure him or were you aiming for his heart?”). 55 See Leo, supra note 51, at 132 (providing examples).

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idea or did you get talked into it?”56 involve rationalization, not negotiation; they give the suspect a reason to feel less guilty about the offense, but do not suggest that real legal consequences will flow from a confession. In contrast, both direct and indirect indications that a confession will mean more lenient treatment by the court (“You are not to blame, but you have to tell my why”) or by the police (“We can make this short or long”) should lead to exclusion.57 In such cases the police are telling the suspect that a confession is the only way to avoid significant criminal liability or physical detention. One defense of negotiation techniques—at least those that focus on promises of legal leniency—is that they are very similar to the process of plea bargaining, 58 which the U.S. Supreme Court has enthusiastically sanctioned.59 It is true that the Supreme Court has held that “[d]efendants advised by competent counsel and protected by other procedural safeguards

56 See Inbau et al., supra note 2, at 296 (discussing and approving these techniques). 57 Three tough cases that illustrate the thin line between negotiation and rationalization are: Fundaro v. Curtin, 2015 WL 357012 *7 (E.D. Mich.) (finding no coercion when police statements “were conditional: if Petitioner acted in self-defense, then he should explain his side of the story. The statements did not inform him that he in fact acted in self-defense.”); People v. Holloway, 91 P.3d 161, 178 (Cal. 2004) (holding that the detective’s “general assertion that the circumstances of a killing could ‘make[] a lot of difference’ to the punishment” did not invalidate the confession), and Miller v. Fenton, 796 F.2d 598, 609 (3rd Cir. 1986) (finding no coercion where the officer, posing as someone who wanted to help the suspect, stated “you are not responsible” and “you are not a criminal,” because the detective “never stated that anyone but he thought that Miller was ‘not a criminal,’ nor did he state that he had any authority to affect the charges brought against Miller”). In the first two cases, the police were only suggesting the circumstances under which lenient treatment would occur, not that lenient treatment would be forthcoming if the suspect confessed. In the third case, the officer, in a part of the transcript that the court does not discuss, tied the suspect’s entitlement to help to a confession (“Frank, I can’t help you without the truth”). Thus, the officer came much closer to suggesting leniency in exchange for a confession, and impermissible coercion should have been found. 58 See Lawrence Rosenthal, Against Orthodoxy: Miranda is Not Prophylactic and the Constitution is Not Perfect, 10 Chapman L. Rev. 579, 600-01 (2007) (“under the guilty-plea cases, even if the accused and his counsel misapprehend the strength of the prosecution’s case or the availability of defenses, a guilty plea is still considered a valid waiver. A Miranda waiver is certainly no less valid if the suspect somehow misapprehends his own best interests”); Albert W. Alschuler, Miranda’s Fourfold Failure, 97 B.U. L. Rev. 849, 862-63 (2017) (same). 59 Santobello v. New York, 407 U.S. 257, 260 (1971) (stating that plea negotiation “is an essential component of the administration of justice” and that “[p]roperly administered, it is to be encouraged.”).

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are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation.”60 But, as this language makes clear, the legality of plea bargaining is dependent on the participation of counsel, both the defense attorney and the prosecutor, as well as on the supervision of the judge at the plea colloquy. More importantly in terms of compulsion concerns, “pre-plea bargaining” is impermissible because of its implicit or explicit message that if counsel is consulted, the deal is off the table; that message directly undercuts both the right to silence and the right to counsel.

2. Manipulative Techniques That Are Not Impermissibly Coercive While the equivalency principle bars lies about rights or deceptive negotiation, it permits impersonation, rationalization, and fabrication techniques. These techniques often or always involve deceptive statements by the police. But they are not impermissibly coercive, because the same statements would not be considered impermissibly coercive if true. Take impersonation, or what Welsh White has called the “pretended friend” technique.61 Officers expressing sympathy for the suspect’s plight or informants pretending to be the suspect’s new best friend can be highly deceptive.62 But these agents are not acting coercively, or at least no more coercively than a friend acts. Whether or not the interrogator is in fact a friend or colleague in crime, the pressure to talk in this situation is virtually non-existent. As Bill Stuntz put it, these scenarios merely encourage the suspect to “forget” about the existence of the rights encapsulated in the Miranda warnings.63 The friendly cop might also be joined by a tougher one, as in the infamous Mutt and Jeff routine.64 However, so long as Mutt does not engage in the third degree or negotiation techniques and Jeff does not 60 Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). 61 Welsh S. White, Police Trickery in Producing Confessions, 127 U. Pa. L. Rev. 581, 614 (1979). 62 See, e.g., Illinois v. Perkins, 496 U.S. 292 (1990) (questioning by an undercover officer posing as a jail inmate does not violate Fifth Amendment). However, this technique might run afoul of fraud principles if carried too far. See infra text accompanying notes 92-93. 63 William Stuntz, Waiving Rights in Criminal Procedure, 75 Va. L. Rev. 761, 823 (1989) (deception “avoids the confession-or-perjury dilemma either by convincing the suspect that truthful statements will not have incriminating consequences, or by making him forget temporarily that they will”). 64 See Miranda, 384 U.S. at 452-53 (describing the technique).

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offer protection from those techniques or offer leniency, impermissible coercion has not occurred. The equivalency test would also permit rationalization tactics. For instance, police might proffer psychological benefits to confessing, such as alleviating feelings of guilt, showing concern for the victim’s family, or assuring forgiveness from God,65 or they may wonder whether the crime was accidental or the fault of someone else (including the victim). These sentiments would not be considered coercive if the police sincerely voiced them.66 That they are often voiced pretextually should not change the analysis. The important caveat is that such techniques cannot merge into negotiation tactics promising legal relief if the person talks.67 More controversially, the equivalency test sanctions evidence fabrication ploys under most circumstances. Confrontation of a suspect with actual forensic evidence, eyewitness accounts, or incriminating documents obviously produces pressure to confess (in the case of guilty people) or explain (in the case of innocent ones). Yet it is not considered unconstitutionally coercive, and in fact is thought to be the gold standard of interrogation practice. If instead the evidence is made-up, the pressure to talk is, at worst, no more intense and is probably much less, since the suspect, whether guilty or innocent, can often smell out the ruse. For the same reason, po-

65 See Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Den. U. L. Rev. 979, 1060 (1997) (providing these examples and distinguishing between the “moral” and “psychological” consequences of not confessing and the “legal” consequences of not doing so); Inbau et al., supra note 2, at 289 (suggesting, inter alia, that suspects be told to tell the truth “for the sake of everyone concerned”). 66 Indeed, Milhizer, supra note 25, who focuses on protecting the dignity of suspects, recommends that police make such statements to give subjects positive reasons for confessing. Id. at 99-100. 67 See examples supra note 57. Consistent with these distinctions are findings of a study in which participants given various interrogation scenarios perceived explicit threats and promises to be more coercive than indirect maximization and minimization techniques, which tended to be seen as no more coercive than simple questioning. Saul M. Kassin & Karlyn McNall, Police Interrogations and Confessions: Communicating Promises and Threats by Pragmatic Implication, 15 L. & Hum. Beh. 231, 238 (1991). In a separate experiment, participants were much more likely to find that minimization techniques combined with the statement “If you just tell me the truth, we can get this straightened out” were a form of negotiation than when the latter sentence was not included. See id., at 240-41 (describing three scenarios, one without the statement and two with the statement).

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lice “bluffing” about how certain they are about guilt should not be considered impermissibly coercive.68 Even if the police go to the trouble of fabricating evidence that can be shown to the suspect, the pressure to talk is generally no greater than in cases where the evidence actually exists. One caveat to that conclusion might arise if the suspect comes to believe that, if the police are willing to manufacture evidence, they might be willing to do much worse.69 At that point, the situation comes much closer to negotiation; it might also be impermissible for reasons explored further below connected with concerns about fraud.70

3. The Rights Predicate and State Action As noted earlier, even if not coercive under the equivalence test, lies about the rights encased in the warnings are per se impermissible, a conclusion most courts have reached.71 Less clear is the result if the police neither lie nor mislead about the Miranda rights, but rather underplay them, or allow misimpressions about the rights to continue uncorrected. Since Miranda, the Supreme Court has held admissible a number of confessions obtained after the police accurately give the warnings to a suspect who indicates he understands them, but who is apparently confused about what the warnings really mean. For instance, in North Carolina v. Butler72 and Connecticut

68 See Arthur S. Aubry, Jr. & Rudolph R. Caputo, Criminal Interrogation 85-86 (1965) (recommending “bluffing” the suspect by saying he was seen at the scene of the crime or that a co-defendant had confessed). 69 This is one reason Inbau et al. caution that the presentation of false evidence should be “a last resort.” Inbau et al., supra note 2, at 352. 70 See infra text accompanying notes 92-93 (discussing the fraud objection, and suggesting that such a ruse might constitute obstruction of justice). 71 See, e.g., Hart v. Attorney Gen. Of Fla., 323 Fl.3d 884, 894-95 (11th Cir. 2003) (excluding statement from suspect who was told “honesty won’t hurt you”); State v. Stanga, 617 N.W.2d 486, 490-91 (S.D. 2000) (excluding statement from suspect who was told statements would just be “between the two of [us]”); Commonwealth v. Peters, 373 A.2d 1055, 1058-63 (Pa. 1977) (excluding statements made after suspect was told they would only be used against other suspects); Ex parte Johnson, 522 So.2d 234, 235-36 (Ala. 1988) (excluding statement after suspect was told it could not be used in a criminal case). 72 441 U.S. 369, 371 (1979) (where suspect, after receiving warnings and saying he understood them, stated “I will talk to you but I am not signing any form”).

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v. Barrett,73 the defendant appeared to believe that statements not reduced to writing and signed are inadmissible, in Berghuis v. Thompkins74 the defendant might have believed that by merely remaining silent he had asserted his right to silence, and in Colorado v. Spring75 the defendant may have believed that he could not refuse to answer a question about a murder after talking volubly about a firearms violation. In all of these cases, the Court found no violation of Miranda. Assuming that during their interrogations these suspects had the beliefs just ascribed to them, were their statements coerced? The dissenters in some of these cases and many commentators believe so, on the ground that any misunderstanding about the Miranda rights means that subsequent statements are compelled.76 But this commentary has given insufficient consideration to the fact that the pressure to talk, if there was any (possible in the latter two cases, but unlikely in Butler and Barrett, where the suspects didn’t even realize they were “confessing”), came not from the police but from the defendant’s own confusion about rights that had been read to him and that he said he understood.77 In Butler, Barrett, and Thompkins, at least, the police clearly did not “overreach” or coerce, they merely took advantage of a suspect’s befuddlement. The issue is closer in Spring, where the police affirmatively lied about the full scope of the interrogation by

73 479 U.S. 523, 525 (1987) (where suspect said he understood his rights and then said he would not give a written statement without a lawyer being present, but had “no problem” talking). 74 560 U.S. 370, 375-76 (2010) (where suspect who was given warnings said very little for the first two hours and 45 minutes of the interrogation, at which point, in answer to the question “Do you pray to God to forgive you for shooting the boy down?” said “Yes”). 75 479 U.S. 564, 567 (1987) (where suspect waived his rights on the understanding police would question him about a firearms charge, and at some point during the 90-minute interview answered affirmatively when asked if he had ever shot someone). 76 See, e.g., Thompkins, 560 U.S. at 404 (Sotomayor, dissenting) (“Today's decision bodes poorly for the fundamental principles that Miranda protects”); Spring, 479 U.S. at 579 (Marshall, J., dissenting) (“requiring the officers to articulate at a minimum the crime or crimes for which the suspect has been arrested could contribute significantly toward ensuring that the arrest was in fact lawful and the suspect’s statement not compelled because of an error at this stage alone”); see generally, Yale Kamisar, The Rise, Decline and Fall (?) of Miranda, 87 Wash. L. Rev. 965, 1008-1021 (2012) (criticizing Butler, Barrett, and Thompkins). 77 The key case on this point is Colorado v. Connelly, 479 U.S. 157, 170 (1986) (holding that neither the Fifth Amendment nor the Due Process Clause is violated unless the police engage in “overreaching” that led to the statement).

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suggesting it would focus on a minor charge, probably in an effort to surprise Spring with their question about the murder midway through the interview. But that lie was not about the rights to silence or to counsel. While its timing might have taken advantage of Spring’s erroneous belief that, once he started talking, he had to keep talking, that belief was Spring’s “fault” (especially since he had also been told that he had a right to cut off questioning at any time78). A second, practical reason to accept the results in these cases is the difficulty of determining when a real misunderstanding has occurred. When a suspect claims the rights should have been clarified, courts would need to ascertain not only whether the police “did enough” to clarify but also whether the defendant actually needed the clarification. The temptation to malinger confusion retroactively is very high in such situations. In short, despite their underhanded treatment of the Miranda warnings, these cases make sense both as a matter of doctrine and as a practical matter.79 But they should be distinguished from those situations where psychological characteristics of the suspect make the warnings irrelevant. This situation is most likely to arise with very young children (below 15) or individuals with intellectual disability. Because of their susceptibility to authority figures and their difficulty understanding abstract concepts, these people are very likely to believe that they should talk to police regardless of how carefully the Miranda warnings are delivered or how honest the police are.80 In other words, the mere act of questioning these sorts of people in the absence of counsel “compels” them to talk despite being told about the right to silence. Further, in contrast to intellectually intact adults, whose 78 479 U.S. at 853-54. 79 Closer cases occur when police immediately proceed to questioning after giving the warnings and eliciting an indication of understanding, without asking the suspect whether he or she wants to invoke the rights, or when police downplay the rights as mere bureaucratic boilerplate. See Leo, supra note 51, at 125, 127 (describing such ruses). In these situations more is involved than a failure to clarify, and a court might find that police affirmatively led the suspect to believe he was supposed to talk. 80 Kimberly Larson, Improving the “Kangaroo Courts”: A Proposal for Reform in Evaluating Juveniles’ Waiver of Miranda, 48 Vill. L. Rev. 629, 657 (2003) (summarizing psychological research reporting that “children are more compliant and suggestible than adults”); Morgan Cloud et al., Words Without Meaning, The Constitution, Confessions and Mentally Retarded Suspects, 69 U. Chicago L. Rev. 495, 513, 576 (2002) (finding extremely low understanding of the Miranda warnings among people with an IQ below 80 and noting that “[n]umerous participants involved in our study [of interrogation] answered yes to questions that they neither understood nor were able to answer.”).

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actual understanding of the rights can be difficult to discern, the cognitive deficits of young children and people with intellectual disability are wellknown and relatively reliably ascertained by appropriately trained individuals.81

Copyright 2020. Nomos Verlagsgesellschaft mbH & Co. KG. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law.

4. Summary One way of deciding whether manipulative interrogation techniques are permissible is to analyze whether they would be impermissibly coercive if the police statements at issue were in fact true. Under this equivalency test, deceptive negotiation tactics involving threats or promises about a suspect’s legal situation should be banned. Impersonation, rationalization and fabrication would usually not be. The legal effect of a failure to clear up confusion about rights once they have been recited and the suspect claims to understand them is less clear but can be justified on the ground that the failure does not amount to state-created coercion. Of course, most interrogations, at least those that are contested, usually involve a mishmash of techniques, not just a single tactic, often over a several-hour period.82 Figuring out which technique, if any, “caused” an incriminating statement is virtually impossible. Probably the best approach is to presume that any interrogation in which negotiation tactics are used is coercive. Unless the prosecution can proffer solid evidence that coercive tactics, once shown to have occurred, did not influence the suspect, the confession should be excluded. At this point, one must circle back to the effectiveness issue: if negotiation techniques are barred, will the usefulness of deception disappear? Recall that, in the leading laboratory study comparing manipulative techniques to straightforward questioning, the technique most likely to obtain true (and false) confessions was the “minimization-plus-deal” scenario.83 Minimization involved “sympathy,” “concern” and “face-saving excuses,” all

81 See Thomas Grisso, Evaluating Competencies: Forensic Assessments and Instruments 149-192 (2003) (describing methods for evaluating waivers of rights by, inter alia, juveniles and people with intellectual disability). 82 See, e.g., State v. Turner, 847 N.W.2d 249, 261 (Neb. 2014) (refusing to exclude confession despite use of a negotiation tactic—misrepresenting that a lesser sentence would be imposed for felony murder—because the confession was immediately preceded by rationalization techniques—telling suspect he was not an evil person, exhorting him to “do the right thing,” and discussing the fate of his soul). 83 Russano et al., supra note 13, at 484, tbl. 1.

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of which are non-coercive under the equivalency test. But the “deal” part of this technique involved negotiation: subjects were told that if they did not confess the professor would be called in and things would get worse, while if they confessed they would still receive their research credit and only have to return for another session.84 Under the foregoing analysis, the latter technique should be banned, despite its apparent effectiveness. However, the same study found that minimization, on its own, was also much more successful at obtaining valid confessions than standard questioning (at the same time it was much better at avoiding false confessions than the minimization-plus-deal technique).85 Combining the research on effectiveness with the analysis of coerciveness proffered here, it remains the case that impersonation, rationalization and fabrication should be permissible when straightforward questioning fails, as long as they are not combined with negotiation techniques.

IV. Is Trickery Illegitimately Fraudulent? A final argument against trickery during interrogation—even non-coercive trickery needed to obtain a true confession from a lawfully arrested suspect —is that it should be banned because of its fraudulent nature. This objection is not focused on the effect of deception on the suspect, as is principally the case with the dignity and coercion objections, but rather on the motivation of the police. The rationale is that fraud by the police is immoral, and perhaps even criminal. If one adheres to the position that knowingly misleading a person is always immoral and that the police may never act immorally, the fraud objection to interrogation trickery is insurmountable. However, as with the dignity objection, when framed this broadly the fraud objection would require prohibition of undercover activity, pretextual actions, and perhaps electronic surveillance as well. Assuming that is not the preferred result, the more practical focus should be when, if ever, interrogation trickery constitutes the crime of fraud or something close to it. Under most American statutes, criminal fraud only occurs when, with intent to deceive, a person knowingly makes false statements of material 84 Id. at 483. 85 Id. at 484 tbl. 1 (indicating that minimization-plus-deal produced an 87% true confession rate and a 43% false confession rate, and that minimization alone produced an 81% false confession rate and only an 18% false confession rate, compared to 46% and 6% figures, respectively, for the “no tactic” condition).

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fact that caused the victim to lose, and the perpetrator to gain, money or property.86 Under this definition, even showings that the police intended to deceive a suspect and that the deception caused a confession does not prove the crime of fraud, because a confession is neither money nor property. More modern, expansive definitions of fraud would also allow prosecution for that crime if the defendant merely fraudulently obtains information, if that information can be considered business property.87 Even if this holding were stretched to the interrogation context, however, the police could still assert a justification defense, as long as the deception was necessary to obtain information that would help solve or prevent a crime. A similar immunity exists with respect to crimes committed by undercover agents, for instance.88 If one assumes, contrary to the foregoing analysis, that fraud statutes do apply to policing during interrogation, liability might still depend on a distinction between an affirmative misrepresentation and a failure to correct a misimpression, on the well-accepted ground that thoughts and omissions cannot form the basis for criminal liability unless there is a duty to act.89 Under this framework, the cases discussed earlier in which the police took advantage of confusion about rights the suspect has acknowledged would not sound in fraud, unless the law adopts a duty on the part of the police to clarify, which for reasons already discussed would be very difficult to implement.90 German law appears to be in accord with the proposition that, whereas affirmative lies are generally forbidden, “passive” failures to

86 Wayne LaFave, Criminal Law 1006, 1016-1017 (5th ed. 2010) (describing the property requirement of the crime of “false pretenses”). 87 See Carpenter v. United States, 484 U.S. 19 (1987) (upholding fraud conviction of person who, through deceit, obtained confidential business information, which the Court construed to be “property”). 88 See, e.g., Guidelines on FBI Undercover Operations, supra note 29, § H (permitting undercover agent involvement in non-violent illegal activity, inter alia, “if necessary for the success of the investigation and not reasonably available without participation in the otherwise illegal activity”). 89 Chiarella v. United States, 445 U.S. 222 (1980) (holding that mere nondisclosure of relevant information can be deceptive only if there is some preexisting duty to speak—that is, a fiduciary or quasi-fiduciary duty). But see James Kent, 2 Commentaries on American Law 377 (1827) (stating that, in civil contract cases, “each party is bound in every case to communicate to the other his knowledge of material facts, provided he knows the other to be ignorant of them, and they be not open and naked, or equally within the reach of his observation.”). 90 See Robert P. Mosteller, Police Deception Before Miranda Warnings: The Case for Per Se Prohibition of an Entirely Unjustified Practice at the Most Critical Moment, 39 Tex. Tech L. Rev. 1239, 1270 (2007) (arguing that “passive deception” at

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Christopher Slobogin

correct misimpressions are not.91 This distinction might also allow electronic surveillance and pretextual actions, although it still would not permit most undercover activity. The assumption that is most consistent with the traditional definition of fraud, however, is that criminal fraud statutes do not apply to interrogation at all. At the same time, certain types of fraudulent actions might violate other criminal statutes. For instance, while impersonation techniques are not coercive under the equivalency test, posing as the suspect’s lawyer or doctor would violate licensing and unauthorized practice laws.92 While evidence fabrication is not unconstitutionally coercive, manufacturing physical documents or forensic tests, as opposed to simply lying to the suspect about them, comes perilously close to obstruction of justice or abuse of the judicial process, because it creates evidence that might later be misconstrued by other officials not involved in the hoax.93 Where the fraud implicates a separate criminal statute, the case for prohibition is much stronger.

V. Conclusion Some researchers suggest that non-deceptive interrogation techniques are being developed, or already exist, that can be just as effective as manipulative techniques at obtaining incriminating statements in otherwise difficult-to-solve cases.94 If so, deceptive techniques of the type discussed in this chapter should be banned, because it is indisputable that deception during

91 92

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the time of the warnings is permissible, but that “affirmative, false statements” are not). BGH Strafverteidiger 419, 421 (1988) (police do not have to clarify error about the existing evidence); BGHSt. 39, 335, 348; BGH Neue Zeitschrift für Strafrecht (NStZ) 1997, 251. St. (non-disclosure of facts is not deception). See, e.g., N.Y. Stat. § 6512 (providing that “anyone not authorized to practice . . . who practices or offers to practice or holds himself out as being able to practice in any profession in which a license is a prerequisite to the practice of the acts . . . shall be guilty of a Class E felony”). See e.g., State v. Cayward, 552 So.2d 971, 974 (Fla. Dist. Ct. App. 1989) (excluding confession produced after police showed suspect fabricated report indicating that the semen stains on the victim’s underwear belonged to the suspect, in part because “such reports have the potential for finding their way into the courtroom”); State v. Patton, 826 A.2d 783, 804 (N.J. Super. Ct. App. Div. 2003) (same). Cf. Fink v. Gomez, 239 F.3d 989, 991 (9th Cir. 2001) (holding that attorneys can be sanctioned for reckless abuse of process). The two most prominent alternatives are the “PEACE” method (for Preparation and Planning; Engage and Explain; Account; Closure; and Evaluation), which re-

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The Legality of Trickery During Interrogation

interrogation compromises the dignity of the suspect and the police, constitutes immoral (albeit probably not criminal) fraud, and is sometimes impermissibly coercive. In the meantime, however, this chapter has argued that these techniques should be permitted under limited circumstances. Specifically, they should be permitted if: (1) a judge has determined there is probable cause to believe the person interrogated has committed a crime and that interrogation is necessary to help solve that crime; (2) the police have been unable to obtain a confession through non-deceptive questioning; (3) the police do not engage in negotiation techniques (unless a defense attorney is present), or in fraudulent techniques that verge on criminal actions; and (4) police ensure that they refrain as much as possible from feeding the suspect facts that only the perpetrator would know, so that the reliability of any confession produced can be corroborated. To help monitor police adherence to these rules, any interrogation using trickery, like all interrogations, should be taped.95 In an ideal world, police would not need to use interrogation trickery to solve crime. But, in an ideal world, people would immediately confess their crimes (or not commit crime at all). Since neither world is at present realistic, accommodations should be made. Those suggested here still significantly limit the use of interrogation trickery, but do not entirely deprive the police of an investigative tool that can sometimes prove invaluable in ferreting out crime.

lies on exposure of discrepancies in the suspect’s story with actual evidence, see Brent Snook, Joseph Eastwood & Todd Barron, The Next Stage in the Evolution of Interrogations: The PEACE Model, 18 Can. Crim. L. Rev. 219, 230-35 (2014), and the approach developed by the High-Value Interrogation Group Research Unit established by President Barack Obama in 2010 as part of the counter-terrorism effort, which is similar to PEACE but relies more explicitly on practices that produce “cognitive load,” the idea that liars have a much harder time than truthtellers at keeping their story straight. See High-Value Interrogation Group Research Unit, Science-Based Interrogation: A Reference Guide (2016). 95 See Christopher Slobogin, Toward Taping, 1 Ohio St. J. Crim. L. 309 (2003) (providing three constitutional bases for a requirement that interrogations be taped).

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The Mr. Big Method: On or Beyond the Boundaries of Lawfulness and Reliability? D.A.G. van Toor PhD LLM BSc* / R. Horselenberg PhD MSc#

I.

Introduction

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II. Setting the stage: Introduction of the Mr. Big method

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III. The Mr. Big method and the psychology of (falsely) confessing

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1. The misclassification error

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2. The coercion error

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a) Confrontation with (false) evidence during the interrogation

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b) The use of violence

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c) The use of psychological coercion

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3. The contamination error

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4. Content analysis of the confession

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5. Personality traits of the suspect

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a) Suggestibility

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b) Compliance

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6. Conclusion

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* D.A.G. (Dave) van Toor works as an assistant professor in Criminal (Procedural) Law at Utrecht University. He studied Law (LLM, LLB) and Psychology (BSc) at the Radboud University Nijmegen (the Netherlands). He defended his doctoral thesis on a human rights assessment of the Concealed Information Test in April 2017, also in Nijmegen. Afterwards, he worked as a postdoctoral research at Bielefeld University (Germany) and the Open University (the Netherlands), before being appointed at Utrecht University. His expertise is on the human rights analysis of the use of (new) police investigatory methods. # R. (Robert) Horselenberg works as an assistant professor in Psychology and Law at Maastricht University. He studied mental health sciences at Maastricht University and defended his doctoral thesis on false memories and confessions in 2005 at the same university. Since then he worked as assistant professor at the Open University and Maastricht University at the psychology faculties. He is currently working at the Faculty of Law.

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D.A.G. van Toor / R. Horselenberg IV. The Mr. Big method and the right to silence

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1. The right to silence and the privilege against self-incrimination

V.

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a) Reliability of the statement

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b) Autonomy

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c) Dignity

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d) Conclusion

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General conclusion

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‘Why confessions trump innocence’ S. Kassin (2012)

I. Introduction Cold cases pose difficult dilemmas for the police. The investigations into these cases often have been standing still for years or even decades and the initial investigation has provided no or insufficient evidence for a (successful) prosecution. Especially for such cold cases, the Royal Canadian Mounted Police developed a major crime homicide technique in the late 1980s, which is known in the rest of the world under the name the Mr. Big method.1 In short, the Mr. Big method is an undercover operation in which criminal investigators establish friendly contact with the suspect in a cold case, and then have him perform semi-legal or illegal work in a non-existent, police-established and managed (semi-)criminal organization. In recent years, the method has been used in the Netherlands to investigate the Posbank murder (case of 2003, and judged upon in first instance in 2017, cassation in 2019)2 and the homicide / manslaughter of Goedhart (case of

1 http://bc.rcmp-grc.gc.ca/ViewPage.action?siteNodeId=23&languageId=1&contentId=6941, last retrieved on 29 May 2019. See for a propaganda-style FAQ: http:// bc.rcmp-grc.gc.ca/ViewPage.action?siteNodeId=23&languageId=1&contentId=6943, last retrieved on 29 May 2019. 2 Rb. Gelderland (first instance) 7 June 2017, ECLI:NL:RBGEL:2017:3030; Hof Arnhem-Leeuwarden (appeal) 15 March 2018, ECLI: NL: GHARL: 2018: 2416; PHR (conclusion advocate-general before cassation) 25 September 2018, ECLI:NL:PHR: 2019:648; Supreme Court (Hoge Raad (short HR)) 17 December 2019, ECLI:NL: HR:2019:1983.

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The Mr. Big Method: On or Beyond the Boundaries of Lawfulness and Reliability?

2010, and judged upon in first instance in 2016, cassation in 2019).3 In these two cases, as well as in the general discussion about the method, there is doubt as to whether reliable4 and voluntary5 statements are obtained with this method. The central question that is answered in this chapter is whether, and if yes, under what conditions the Mr. Big method can be used reliably and lawfully from a psychological and legal perspective. To be able to answer this question, it is necessary to introduce the Mr. Big method (par. 2). The method and the results of this method are the subject of discussion, and it is important to understand the method correctly before the lawfulness and the conditions for a reliability analysis can be discussed, with some examples of especially Dutch cases to clarify the application of the method. Paragraphs 3 and 4 successively discuss the problematic aspects of the method from a psychological and legal perspective, focusing on the statements made by the suspects during the Mr. Big method. In paragraph 5 we conclude that the Mr. Big method harbors all factors that can contribute to false confessions mentioned in psychological research and, in addition, that the Mr. Big method violates the right to a fair trial.

II. Setting the stage: Introduction of the Mr. Big method A Mr. Big operation goes through four stages: (i) intelligence probe; (ii) social introduction; (iii) scenario development; and (iv) evidentiary scenario.6 The application of the Mr. Big method is mainly aimed at denying suspects – in some literature these suspect are also referred to as recalcitrant suspects – whereby the police and prosecution are convinced of the guilt of a certain individual but there is no conclusive (forensic) evidence.

3 Rb. Zeeland-West-Brabant (first instance) 23 May 2016, ECLI: NL: RBZWB: 2016: 3060; Hof Den Bosch (appeal) 5 February 2018, ECLI:NL:GHSHE:2018:421; PHR (conclusion advocate-general before cassation) 25 September 2018, ECLI:NL:PHR: 2018:1042; HR 17 December 2019, ECLI:NL:HR:2019:1982. 4 For example T.E. Moore, P. Copeland & R.A. Schuller, ‘Deceit, betrayal and the search for truth: legal and psychological perspectives on the mr. Big strategy’, The Criminal Law Quarterly 2014, 3, p. 348-404. 5 For example T. Moore & K. Keenan, ‘What is voluntary? On the reliability of admissions arising from Mr. Big undercover operations’, Investigative Interviewing: Research and Practice 2013, 5, p. 46-56. 6 For example K. Luther, B. Snook & T.E. Moore, ‘Lingering problems with the Mr Big technique’, Crest Security Review 2018, 8.

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D.A.G. van Toor / R. Horselenberg

Before the undercover agents come into contact with the suspect, the police gather information about the suspect so that the Mr. Big application can be adjusted to the character and lifestyle of the suspect. This is the socalled intelligence probe. Here, particular attention is paid to the lifestyle and financial situation of the suspect, in order to gain insight into whether the suspect is potentially susceptible to financial advances.7 In the Goedhart case, the suspect lost his job as a self-employed computer programmer at a telecom company in Brussels (and the police is suspected to have had a hand in this),8 while shortly before he was offered an extension of his contract. This is dramatic change in the financial situation, which can be used by the police to initially offer the suspect legal jobs within his expertise to build up a relationship of trust. After sufficient information has been gathered to tailor the operation to the individual suspect, a “random” meeting is organized: the so-called social introduction stage. In the True East case,9 the agent asks for a lift from the suspect because he has left his locked keys in his car, which is parked next to the suspect’s car. In the Goedhart case, the undercover agent damages the suspect’s car with his bicycle, causing contact between the two to take care of the insurance issue. After the meeting, contact is intensified and a friendship is developed, whereby the suspect is given the opportunity to get involved in a (criminal) organization, of which the newly acquired “friend” is also a member. The organization is a fiction and is fully run by the police, and the ins and outs of the organization are scenarios created for the suspect. In that sense there is “reverse” infiltration: it is not an agent who infiltrates a criminal organization, but a suspect who ends up in a fictional criminal organization. Normally, the suspect participates in a number of criminal activities (scenarios) in a Mr. Big operation, often starting with something that is not clearly illegal, but gradually scales up. The suspect is paid for the work done and the undercover agents promise more or more lucrative work if the suspect is fully accepted in the organization. In the Goedhart case, the suspect received an offer to develop track-and-trace systems for private indi-

7 K. Luther & B. Snook, ‘Putting the Mr. Big technique back on trial: a re-examination of probative value and abuse of process through a scientific lens’, Journal of Forensic Practice 2016, 2, p. 132. 8 P.J. van Koppen & R. Horselenberg, ‘Van toneelspelende politiemensen en onwetende verdachten die bekennen tegen Mr. Big’, Strafblad 2018, 2, par. 1. 9 See the Netflix true crime series The Confessions Tapes as well as some episodes of the Canadian The Fifth Estate (via www.cbc.ca).

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The Mr. Big Method: On or Beyond the Boundaries of Lawfulness and Reliability?

viduals, and the work is undeclared.10 The Dutch newspaper het Brabants Dagblad reports that the same suspect was asked, among other things, to manipulate images from surveillance cameras, in order to help the organization out.11 In the next phase, the suspect will eventually be given the opportunity to actually be included in the organization as a full member, but only on the condition that he passes an interview with the alleged boss of the organization known as Mr. Big. The evidentiary scenario is played out here. The conversation is intended to obtain a confession, sometimes using an interview style that would not be acceptable in an interrogation situation,12 and is similar to the jail house snitch method.13 Prior to or during the interview with Mr. Big, the suspect learns that the police investigation into his previous criminal activity has been reopened. Mr. Big tries to convince the suspect that the organization can help to remove any charges with regard to the suspicion (often tangible – but sometimes fictional – evidence is shown).14 That help, however, depends on the suspect because it only happens if the suspect meets the values of trust, honesty and loyalty of the organization by confessing he committed the crime. A Mr. Big operation is an expensive, complex and extensive illusion that is created for an individual suspect. The costs per operation in Canada are estimated to be higher than one million Canadian dollars.15 The organization must namely convince the suspect that he ends up in a world where

10 https://www.bd.nl/loon-op-zand/hoe-wim-s-een-moord-in-kaatsheuvel-bekendedie-hij-absoluut-niet-wilde-bekennen-een-reconstructie~a3d173d6/, last retrieved on 5 June 2019. 11 https://www.bd.nl/loon-op-zand/hoe-wim-s-een-moord-in-kaatsheuvel-bekendedie-hij-absoluut-niet-wilde-bekennen-een-reconstructie~a3d173d6/, last retrieved on 5 June 2019. 12 Advocate-General at the Dutch Supreme Court (PHR) 25 September 2018, ECLI: NL:PHR:2018:1042, rn. 4.4. 13 Advocate-General at the Dutch Supreme Court (PHR) 25 September 2018, ECLI: NL:PHR:2018:1042, rn. 6.8 and on. 14 For example in the aforementioned True East case. 15 Luther & Snook 2016, p. 133. A. Iftene, ‘The Hart of the (Mr.) Big Problem’, Criminal Law Quarterly 2016, p. 156 states that some Mr. Big operations costed more than four million dollars.

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D.A.G. van Toor / R. Horselenberg

there is no shortage of money16 (and violence17). Short and simply stated, the Mr. Big method comes down to the old “carrot and stick method”. The suspect is made susceptible to (doubtful, illegal) financial advances, work and money (the carrot), but only if he declares honestly about his criminal past. If he does not, the organization breaks the contact (the stick).18

III. The Mr. Big method and the psychology of (falsely) confessing As discussed above, the conversation between Mr. Big and the suspect is the final part of the operation. In this “interview”, which does not meet the formal requirements of an interrogation accordance to Dutch law because it is unclear to the suspect that he is dealing with an investigating officer, the criminal past of the suspect is the topic of conversation. The result of a Mr. Big method is therefore ultimately a confession (or a denial). However, whether the statement made by the suspect to Mr. Big is reliable19 is by no means certain in advance. This section examines which factors (may) contribute to false confessions in general, and how these factors relate to a Mr. Big operation. The next factors will be discussed below: misclassification of the suspect, coercion, contamination and personality traits of the suspect. As in the last paragraph, use is made of the in the Netherlands administrated Mr. Big operations as examples.

16 See for example the reference of the Court of First Instance in the Goedhart case (our translation): ‘the use of expensive car’s, the hint of luxury and money in the VIP world’. Rb. Zeeland-West-Brabant (first instance) 23 May 2016, ECLI: NL: RBZWB:2016:3060, below the header Eerlijk proces?. 17 See for example the Posbank case, Advocate-General at the Dutch Supreme Court (PHR) 18 June 2019, ECLI:NL:PHR:2019:648, rn. 118. 18 In various Canadian operations, the suspect may also legitimately come to the conclusion that breaking the contact with the organization is life-threatening. In the True East case, the murder of witnesses who made incriminating statements about the organization is mentioned causally and on numerous occasions. In Dix, a murder is even staged in the room next to where the suspect is located. 19 The term validity better grasps what is meant, namely if the confession corresponds to what actually happened (and is called validity in all other sciences). However, legal scholars and judges use reliability for the truthfulness and correctness of a confession. Because of the general usage of the term reliability for this in legal literature, we use it as well (because this not the place to go in a detailed discussion about the two concepts).

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The Mr. Big Method: On or Beyond the Boundaries of Lawfulness and Reliability?

1. The misclassification error In his seminal article, Leo describes the three most important (co-)causes for false confessions.20 He calls one of them the misclassification error. This misclassification occurs when the police incorrectly assume the guilt of a suspect. Vanderhallen and colleagues refer to this misclassification as a start point of a chain reaction that increases the risk of a false confession.21 Before the chain reaction can take place, it is necessary for a person to be designated as a suspect and to be questioned with regard to his involvement in an offense. If the person is not considered a suspect and is not questioned, it is unlikely that he will make a (false) confession. So, the starting point of the chain reaction must be the misclassification by the police of a person as a suspect. This misclassification may be justified by the fact that the information gathered up to that point gives rise to a reasonable suspicion (but, as it turns out later, the person is not the perpetrator). This is insurmountable in criminal investigations because, in principle, the authorities always operate under some degree of uncertainty regarding the involvement of several persons in a criminal offense. However, the misclassification is potentially dangerous if the authorities ignore or suppress exculpatory information, if an unreasonable and narrow focus is placed on a particular hypothesis or theory from the outset and alternative scenarios are ignored and / or ambiguous information is interpreted in a colored way. If this is the case, the misclassification is unjustified because the authorities put a certain focus in their investigation that is not based on a neutral valuation of the information. Unjustified misclassification of a person as a suspect creates the danger that the authorities approach the person with a guilt-presumptive frame of mind.22 This is a potential pitfall for probably all Mr. Big operations because the method “requires a lot of staff and resources [and therefore DvT/RH] the

20 R.A. Leo, ‘False Confessions: Causes, Consequences, and Implications’, The Journal of the American Academy of Psychiatry and the Law 2009, 3, p. 333 and further. See also M. Vanderhallen et al, Rechtsbijstand en de waarde van het verhoor. Een studie naar de te verwachten gevolgen op de verklaringsbereidheid en de opsporing en bewijsvoering in strafzaken van het verlenen van rechtsbijstand voorafgaand en tijdens het verhoor, Maastricht: Maastricht University 2014, p. 78. 21 Vanderhallen et al 2014, p. 78. 22 See also Maegherman, E., Horselenberg, R., Ask, K., & Van Koppen, P.J. (2019). From pervasive beliefs to wrongful convictions, The Inquisitive Mind, 39

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D.A.G. van Toor / R. Horselenberg

interest in obtaining a confession is very big.”23 Furthermore, the Mr. Big method is applied in situations where a reasonable suspicion of guilt has existed over years – the method is only applied in cold cases – but no convincing (forensic) evidence has been found in all those years. However, even without “the smoking gun”, the police only remain focused on the suspect. This determination and guilty presumptive frame of mind can,24 as a starting point for the chain reaction, lead to a false confession when the interrogators assume that the person is guilty before they start the interrogation, and during the interrogation seek information that confirms this hypothesis as they avoid information that invalidates their hypothesis. However, the misclassification in itself cannot lead to a false confession because the “simple” misclassification is nothing more than wrongly give an innocent person the formal status of a suspect.

2. The coercion error The mere fact that a person is mistakenly regarded as a suspect is not an insurmountable problem in itself. It may well be the starting point for a chain reaction that leads to a false confession if the misclassification leads the interrogators to a bias that persists during the interrogation (and they do not adjust their theory and hypothesis as they perceive new information). If, after the misclassification error, improper action is taken during the interrogation, for example by applying unlawful coercion to the suspect, false confessions may arise. This means that what happens after the misclassification is of paramount importance if false confessions want to be avoided. In the aforementioned article by Leo, the second link in the chain reaction of false confessions, is the application of coercion to the (incorrectly classified) suspect.25 Precisely in cases where there is no convincing (forensic) evidence available for the suspect’s involvement in the offense – that absence is a logical consequence of the fact that the suspicion is based on a misclassification –, the obtaining of a confession is most likely of decisive importance for further investigation and any subsequent prosecution. After all, a confession is still referred to as the queen of evidence (regina pro23 Advocate-General at the Dutch Supreme Court (PHR) 25 September 2018, ECLI: NL:PHR:2018:1042, rn. 4.4. 24 Saul Kassin refers to this phenomenon as the guilty bias. See Kassin (2015), The social psychology of false confessions. Social Issues and Policy Review. 25 Leo 2009, p. 334.

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The Mr. Big Method: On or Beyond the Boundaries of Lawfulness and Reliability?

bationis). This places great pressure, certainly in the case of serious offences that lack forensic evidence, on the interrogators to resolve the matter by obtaining a confession. Research into miscarriages of justice shows that the use of coercion during the interrogation leading to a confession is one of the most common grounds related to miscarriages of justice.26 It should be noted that the application of the coercion does not ipso facto lead to a miscarriage of justice; for a miscarriage of justice it is necessary that during the trial the reliability of the statement remains beyond any doubt. However, in order not to confront judges (and / or juries) with the queen of evidence, and thereby run the risk that a “confession trumps innocence”,27 the chain reaction leading to a possible false confession can be (or: should be) interrupted by the interrogators by not applying coercion. How coercion can lead to a false confession is explored in more detail below. Note, however, that according to the Dutch Interrogation Manual, some pressure is always present during an interrogation.

a) Confrontation with (false) evidence during the interrogation One way in which coercion can be exercised on the suspect is the confrontation with evidence. According to the Dutch Interrogation Manual (which is used as the manual at the Dutch Police Academy), confrontation is a suitable means if there is a contradiction between tactical instructions and technical evidence on the one hand and (the absence of) a statement of the suspect on the other hand.28 These tactical and technical pieces of evidence, however, can be tainted and led the investigative team to believe that the suspect is the perpetrator. By letting the suspect know how the police interpret the evidence, the suspect can reconsider his position and decide whether or not to make a statement. The authors of the Manual recommend to state the source of the tactical instruction to the suspect.29As a result, the interrogator remains seemingly neutral. If the evidence actually exists and is presented correctly, there is nothing against it (from a legal point of view); the suspect can make an informed

26 https://www.innocenceproject.org/dna-exonerations-in-the-united-states/, last retrieved on 17 June 2019. 27 S.M. Kassin, ‘Why confessions trump innocence’, American Psychologist 2012, 6, p. 431-445. 28 A. van Amelsfoort & I. Rispens, Handleiding Verhoor, Den Haag: SDU 2017, p. 470. 29 Van Amelsfoort & Rispens 2017, p. 471.

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decision about his position (possibly in consultation with his lawyer). In that sense, a confrontational interrogation tactic can be better understood as offering an opportunity to the suspect to reflect on his position, in regards to the available evidence and known facts. However, this is different when it comes to fabricated or false evidence – or even bluffing about the existence of evidence.30 This tactic is an essential part of the Reid interrogation technique,31 developed and frequently used in the United States of America, for example by showing the suspect a full folder of blank pages. In English-language literature, confrontation with non-existent evidence is referred to as police trickery and is in principle not prohibited.32 With regard to Dutch cases, no literature or case law has been found which makes clear that police trickery is used in the Netherlands (on the same scale) as in the United States of America. The Interrogation Manual does leave the option open to use evidence that have not yet been analyzed during a confrontation, such as the fingerprint found at the crime scene, but interrogators must refrain, among other things, from using confrontation based on fabricated evidence.33 During the Mr. Big method, however, use is being made of fabricated evidence, especially in the final scenario (in Canada). The fabricated evidence is used to substantiate the renewed attention for the cold case investigation. As described above, when the suspect is confronted with incriminating evidence he can (re)consider his position and determine whether or not to make a statement. The theoretical foundation of this tactic is that the suspect rationally weighs his position: which position (making or withholding a statement) is most useful in view of the evidence already collected against me? However, it can be argued that the suspect (or maybe all humans) cannot make rational choices under ideal conditions, and being present in an interrogation room does not qualify for ideal conditions.

30 Perillo & Kassin (2011). Inside interrogation: The lie, the bluff, and false confessions. Law and Human Behavior. 31 D. van Toor, J. Mischie, M. Odekerken & M. de Rade, ‘The Making a Murderer Files: een analyse van de door toepassing van de Reidverhoortechniek verkregen bekennende verklaring in de zaak-Dassey’, EeR 2017, 4, p. 149 and further; as well as M.S. Gohara, ‘A Lie for a Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques’, Fordham URB. L.J. 2006, 3, p. 808. 32 Gohara 2006, p. 798 e.v. 33 Van Amelsfoort & Rispens 2017, p. 473-474. Things get blurry when it comes to the interpretation of evidence, for example of phone records. Most technical evidence is not as clear cut and can be interpreted in such way that they become very guilt implying whereas they are actually not.

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The Mr. Big Method: On or Beyond the Boundaries of Lawfulness and Reliability?

Two arguments can be made against the presumed rationality approach of confrontation with evidence. First of all, it can be doubted whether determining to cooperate during the proceedings and the decision to make a statement are a (fully) rational decision. Secondly, if a rational assessment can be made, the innocent suspect can be placed in a situation where falsely confessing is the best rational choice on the short term. These two points are elaborated below. The rational choice theory is no longer the leading theory in research into human decision-making.34 Kahneman, among others, demonstrated that people have difficulty making a rational decision under normal circumstances. Certainly, if a person is heard as a suspect and the interrogators mention that a lot of evidence has been gathered against him, it is difficult to make a rational assessment. Being under the attention of the police normally causes stress. Being directly questioned about the involvement of a criminal offense, usually after the suspect is forced to go to the police station, is a stressful situation. If during the interrogation the suspect is also confronted with (non-existent) incriminating evidence, the stress level only increases. A confession is a possibility to cope with the direct stress of the interrogation and to reduce the stress level (cf. the same logic applies when confessing under torture to stop the violence). Scientific research supports the foregoing description. Stress can be a cause that a person no longer thinks rationally and analytically, but rather intuitively.35 A short-term goal can be reducing the stress by ending the interrogation and, thus, giving a statement.36 This means that the confrontation with incriminating evidence may lead to a desire to reduce the stress level or avoid the stressful situation, whereby a (false) confession is the means to reach that goal. If a rational assessment is nevertheless made, the innocent suspect may also be placed in a situation in which confessing to the offense – and therefore making a false confession – is the best rational decision. If the innocent suspect believes there is sufficient and convincing evidence against him and also knows that cooperating in the investigation and making

34 D. Kahneman, Thinking, fast and slow, London: Penguin Group 2011. 35 L. Furby & R. Beyth-Marom, ‘Risk taking in adolescence: A decision-making perspective’, Developmental Review 1922, 1, p. 1-44; L.P. Spear, ‘The adolescent brain and age-related behavioral manifestations’, Neuroscience & Biobehavioral Reviews 2000, 24, p. 417-463; R. Yu, ‘Stress potentiates decision biases: A stress induced deliberation-to-intuition (SIDI) model’, Neurobiology of Stress 2016, 3, p. 83-95. 36 S.M. Kassin & G.H. Gudjonsson, ‘The psychology of confessions: A review of the literature and issues. Psychological Science in the Public Interest, 2004, 5, p. 56.

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statements about regretting the harm done works to mitigate the sentence, then making a false statement could ultimately result in a lower sentence in comparison with refusing any cooperation. The cost-benefit analysis37 of a suspect changes dramatically when incriminating evidence is added to the analysis. So, it is certainly not the case that denying is always the best rational choice for innocent suspects. Confronting the suspect with evidence is like playing a (macabre) game, in the sense that the suspect can make a (new) cost-benefit assessment of his position, and rethink his cooperation. This manipulation of the suspect contains several potential pitfalls. Firstly, it is based on the idea that the suspect (and possibly his counsel) can make a rational assessment during the interrogation. The scientific literature shows that even under ideal conditions people do not make rational decisions, and that stress is a factor that determines whether decisions are made rationally and analytically or intuitively. Secondly, the innocent suspect can be put in a position in which it is better to confess than to deny. This can be done with fabricated evidence as well as with incorrect inferences from existing evidence (a trace of DNA at a certain location can have arrived there in many ways and does not necessarily mean that the source of the DNA is the culprit). Confrontation with evidence therefore puts the suspect under pressure and can lead to false confessions. Only with clear, unambiguous tactical instructions does confrontation appear to be a suitable means during an interrogation or conversation between suspect and (undercover) agent.

b) The use of violence In addition to the confrontation with evidence, a threat with and the application of violence can contribute to the “decision” to confess. We assume that it is generally known that a statement made under physical violence gives no guarantee whatsoever that the statement is the truth. In contrast with the confrontation of evidence as a coercive interrogation technique, the threat of violence or the application of violence during an interrogation situation is forbidden. In the countries that signed and ratified the European Convention to Human Rights, that kind of behavior is a viola-

37 J. Bull, ‘Interrogation and Evidence Fabrication’, Economics Research Working Paper Series, 2013, 4.

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The Mr. Big Method: On or Beyond the Boundaries of Lawfulness and Reliability?

tion of Article 3 of the ECHR.38 The use of the incriminating statement obtained through an infringement of Article 3 of the ECHR is a violation of Article 6 of the ECHR.39 Legally speaking, this treatment infringes the suspect’s right to silence. In addition, it also leads to a high risk of false confessions, because the suspect confesses to relieve the pressure and not because the statement is the truth. The use or suggestion of violence clearly tangible or mentioning violent act of gang members of the Mr. Big organization to the suspect are applied throughout almost all Mr. Big operations. The lawyer of one of the suspects in the Posbank murder (which is one of the Dutch cases where the Mr. Big method is applied) outlines the following situations that would have occurred during the Mr. Big operation: “For example, the suspect, together with undercover agent 3, had to pick up a group member who would have just shot someone, he had to help wipe out powder marks and blood and he had to take pictures of a transfer of an envelope for someone who had provided an alibi to one of the gang members. The suspect also saw undercover agent 3 leave his car with a firearm, to deal with a group of "white trash". Furthermore, the undercover agents staged a situation in which undercover agents 1 and 2 arrived in a car that was covered with blood, and told the suspect that undercover agent 1 just shot someone” (our translation).40 These situations are used by the undercover agents to imprint on the suspect the belief that he is dealing with a violent organization,41 and that belief of course influences his decision to make a confession. If the costs of denying to Mr. Big include the possibility that members of the organization will apply violence, the suspect can legitimately believe that he himself may be a possible victim of the organization. If the innocent suspect believes that trial judges later on notice that his confession is false – there is no other evidence in his eyes because he is innocent –, the benefits of false confessions are high – the suspect becomes a member of an organization in which he can earn a lot of money, and he does not risk violence used against him – while the costs are low. Conversely, the costs of denial can be high – the suspect runs a life-threatening risk according to his own perspective – while the benefits disappear completely because he has to leave the organization42.

38 ECtHR (GC) 1 June 2010, ECLI: CE: ECHR: 2010: 0601 JUD 002297805, par. 166 (Gäfgen vs. Germany). 39 ECtHR 31 October 2017, ECLI:CE:ECHR:2017:1031JUD002276708. 40 PHR 18 June 2019, ECLI:NL:PHR:2019:648, rn. 118, 131. 41 PHR 18 June2019, ECLI:NL:PHR:2019:648, rn. 131. 42 PHR 18 June 2019, ECLI:NL:PHR:2019:648, rn. 119.

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c) The use of psychological coercion The same argumentation, as set out above, also applies to the use of psychological coercion. With psychological coercion as well as with physical coercion, an attempt is made to put the suspect in a position where he chooses to admit to relieve the pressure. It is therefore that the Dutch Interrogation Manual, and the therein set out Standard Interrogating Strategy, prescribe restraint in applying pressure (also because “the suspect already experiences pressure by the situation in which he finds himself in”), but that it is allowed to question the suspect in a piercing way to put internal pressure on the suspect.43 Psychological coercion is normally much more subtle than physical coercion, and that is partly why it may be seen as less invasive. For example, Beenakkers discusses psychological coercion under the name “psychological influence”,44 a term that we know is never used for physical coercion (or thus physical influence) and is not appropriate at all. Showing sympathy is an influencing strategy,45 but it cannot be said that it exerts pressure to break one’s mental resilience. Coercion is a form of influence, but not every psychological influence strategy exerts coercion. This subsection concerns the application of psychological coercion that is intended to break the suspect’s mental resilience. One of the most problematic forms of psychological coercion that is applied in interrogation situations is the use of minimalization and maximization. Maximization usually uses harsh techniques or scare tactics that are confrontational in nature and are designed to emphasize the seriousness of the situation in order to make the non-disclosing suspect talk.46 Examples of maximization are expressing absolute certainty with regard to the guilt of the suspect, exaggerating the seriousness of the offense, and bluffing about evidence. A concrete example of maximization is: “We have already gathered so much evidence, denying makes no sense at all.” With

43 Van Amelsfoort & Rispens 2017, p. 356-357. The authors don’t make clear what is meant with that. 44 E.M.Th. Beenakkers, Bijzondere verhoormethoden, Den Haag: WODC Onderzoeksnotities 1998/6, par. 2.3.1. 45 For a description of the six most often used manipulations: R.B. Cialdini, Influence: Science and Practice. Boston: Pearson Allyn and Bacon 2009. 46 S.M. Kassin & K. McNall, ‘Police Interrogations and Confessions. Communicating Promises and Threats by Pragmatic Implication’, Law and Human Behavior 1991, 3, p. 233.

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The Mr. Big Method: On or Beyond the Boundaries of Lawfulness and Reliability?

minimization, all kinds of aspects are trivialized,47 such as the seriousness of the fact, the suspect is told that something similar happens to everyone or that confessing will not have a major influence on the process. Kassin and McNall described that a minimization and / or maximization strategy manipulates the suspect’s perception of the consequences of confessing and is interpreted by the suspect as the equivalent of an expectation of leniency (if a confession becomes provided) or a threat of harsher punishment (if no confession is given).48 It is precisely minimization strategies that lead to more false (but also correct) confessions,49 and innocent suspects are sensitive to offers of leniency.50 Thus, although both techniques make more guilty suspects confess, also the innocent will confess more easily therefore making these tactics useless when it comes to establishing the veracity of a confession. These two strategies are frequently used in Mr. Big operations. The final scenario of the operation consists of the confrontation with the suspect that the criminal investigation into the cold case is a danger to the organization run by Mr. Big (maximization strategy; the consequences for the organization are exaggerated and, given the organizations violence, the life of the suspect is endangered). Because of this, Mr. Big requires all information that the suspect has about the offense so that he can manipulate the criminal investigation (minimization strategy; the value of the confession is trivialized). In the investigation of the Posbank murder (according to the lawyer) “the undercover agents told the suspect that they had understood that he was suspect in the investigation of the Posbank murder and that he had better leave if he had anything to do with the case, because he would pose a risk to the organization. [...] The suspect was also promised that he would be helped to flee to Spain with a new passport, but only after he admitted what he had done.”51 In a stereotype Mr. Big operation maximization is applied, for example by exaggerating the danger to the organization or exaggerating the role of

47 Kassin & McNall 1991, p. 233. 48 Kassin & McNall 1991. 49 M.B. Russano, C.A. Meissner, F.M. Narchet & S.M. Kassin, ‘Investigating true and false confessions within a novel experimental paradigm’, Psychological Science, 2005, 6, 481-486. 50 J.F. Sigurdsson & G.H. Gudjonsson, ‘The relationship between types of claimed false confession made and the reasons why suspects confess to the police according to the Gudjonsson Confession Questionnaire (GCQ)’, Legal & Criminological Psychology 1996, 1, 259-269. 51 PHR 18 June 2019, ECLI:NL:PHR:2019:648, rn. 119.

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the conversation with Mr. Big to join the organization, and minimization is applied to downplay the legal consequences of the confession. If the suspect makes a cost-benefit analysis solely on the basis of these maximization-minimization principles (a lot of financial gain, no repercussions of the organization, a flight plan versus minor or no legal consequences), confessing seems the only logical conclusion. In addition, losing the carrot also adds weight to this analysis.

3. The contamination error It has been written above that Leo sees three important (co-)causes for false confessions,52 of which the misclassification error and the coercion error have already been discussed. The last cause that Leo mentions is the contamination error. On the basis of misclassification, the suspect comes or remains the focal point of an investigation. Coercion can be used to explain why a suspect feels pressured to confess. With the contamination error, it can be explained why many false confessions are considered true, and false confessions with more information about the crime and the crime scene (content cues) as more reliable.53 Content cues are information that only a perpetrator can know of and that an innocent person cannot possibly know about.54 The fact that the suspect produces content cues, however, does not mean that he is the original source of the knowledge. It is, of course, essential that the suspect independently and autonomously spills out the knowledge: second-hand knowledge immediately casts doubt on the actual involvement of the suspect. Content cues in false confessions can create the illusion that suspect is the real perpetrator. Fiske and Kassin reported that more than one-third of the proven false confession contain accurate content cues (what can explain why some false confessions are considered truthful and reliable).55 The problem briefly mentioned above plays an important role in false con-

52 R.A. Leo, ‘False Confessions: Causes, Consequences, and Implications’, The Journal of the American Academy of Psychiatry and the Law 2009, 3, p. 333. 53 S.C. Appelby, L.E. Hasel & S.M. Kassin, ‘Police-induced confessions: an empirical analysis of their content and impact’, Psychology, Crime & Law 2013, 2, p. 111-128. 54 J.T. Israëls & P.J. van Koppen, ‘Daderkennis, politiekennis en sturend verhoren’, R&R 2006, 1, p. 8. 55 S.T. Fiske & S.M. Kassin, ‘False Confessions: Causes, Consequences, and Implications for Reform’, Policy Insights from the Behavioral and Brain Sciences 2014, 1, p. 117.

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The Mr. Big Method: On or Beyond the Boundaries of Lawfulness and Reliability?

fessions. If the suspect is innocent, how can he demonstrate content cues? After all, accurate content cues in a confession seems to point directly towards the perpetrator. To be able to assess the diagnostic value of a statement, it is important to be able to assess the interrogation in its context. A police report drawn up in (recontextualized) monologue style usually does not make clear which questions have been asked in which way and how often. Content cues can, using leading questions, easily be fed to the suspect and be presented in a monologue as his own knowledge, for example when the suspect answers affirmatively to a closed question. Certainly, during lengthy interrogations or trajectories, such as a Mr. Big operation,56 it is (at least on the basis of the limited documentation57 in Dutch criminal procedure of the operation) impossible to determine how the suspect knows content cues and whether he has produced the cues independently of inter alia leading questions. To be able to establish the involvement of the suspect, it is necessary that everything during the Mr. Big operation is well documented (or even better wire tapped).

4. Content analysis of the confession In itself, a false confession is not problematic if the person who ultimately has to make a judgment about the suspect's guilt checks the statement for its diagnostic value. The diagnostic value of a piece of evidence determines to what extent the evidence has a discriminatory effect between different hypotheses, and a false confession has in theory sufficient errors or contains omissions with which it can be concluded that the suspect has little or no knowledge of content cues and therefore could not be the perpetrator. In order to draw that conclusion, the confession must be examined, besides in terms of the interrogation and tactics deployed during those interrogations, in the light of the known facts and circumstances under which the offense was committed and found at the crime scene (or other locations). In theory, only the perpetrator knows everything about the criminal offense, and the police know enough discriminatory facts and circumstances on the basis of their investigation and the judge on the basis of the case-file (as the judges in the Dutch criminal procedure extensively use the

56 PHR 18 June 2019, ECLI:NL:PHR:2019:648, rn. 129. 57 Van Koppen & Horselenberg 2018, par. 6.

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case-file) to distinguish innocent people from the perpetrator.58 The purpose of using a confession should then be, among other things, to distinguish false confessions from correct confessions. A false confession should, by thorough analysis of the statement, then be exposed for what it is (unless a high degree of contamination has taken place). Even in the case of contamination, the relationship between correct facts and incorrect facts should show a diffuse picture, because it seems impossible to transfer the complete situation as knowledge to the suspect. Leo and Ofshe therefore advise analyzing mundane details in the confession.59 The work of Garrett, where he analyzed the content of proven false confessions, showed that almost all of the confessions possessed guilty knowledge.60 Ideally, a confession is always tested for its diagnostic value based on analyzing new unique information handed over within the confession. Certainly in the case of serious crimes where the confession is an important means of evidence and / or the suspect has changed his story several times and / or the circumstances in which the confession was made are problematic from a psychological perspective. The confession made in a Mr. Big operation meet this standard by definition. All three factors – the focus on a suspect years later while little or no forensic evidence was initially found (classification error), the potentially violent nature of the fictional organization (coercion error) and the uncontrollable conversations between the undercover agents and the suspect (contamination error) – that can contribute to false confessions are part of the Mr. Big operation. The court of first instance in the Goedhart case was apparently aware of these problems and of the possibility of assessing the diagnostic value of the confession by post-narrative assessment of the confession, when it stated that they “reject the defence that the confession [...] should be excluded, because the court is of the opinion that a confession, that has been lawfully obtained, can be used as evidence if it is sufficiently and in essential aspects confirmed in the other pieces of evidence. The fact that a confession is

58 Cf. W.A. Wagenaar, De diagnostische waarde van bewijsmiddelen, Amsterdam: Noord Hollandse 1995, serie Koninklijke Nederlandse Akademie van Wetenschappen, Mededelingen van de Afdeling Letterkunde, Nieuwe Reeks, deel 58 no. 3. 59 According to Leo & Ofshe, non-offense relevant facts and circumstances should be taken into account in the analysis of the confession, because they are almost never leaked. R.A. Leo & R. J. Ofshe, ‘Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation’, J. Crim. L. & Criminology 1998, 2, p. 439. 60 Garett (2010). The substance of false confessions. Stanford Law Review, 62, 1051 – 1119.

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The Mr. Big Method: On or Beyond the Boundaries of Lawfulness and Reliability?

withdrawn at a later time does not change this. The condition is, however, that all the evidence do not contain a plausible alternative scenario in which a perpetrator other than the suspect emerges.”61 In this case, the court finds that there “is no unique, very specific content cues present in the suspect’s statements”,62 but that they will use the statement as evidence because it is plausible, logical and credible. Apparently, the court is not aware that this is a contradictio in terminis, because they use highlight the importance of the diagnostic value of the confession but still use a confession which does not include any content cue. Given the inherent problems of the Mr. Big method, and the fact that the suspect’s involvement does not follow from any other evidence than his own statement, the use of the statement does seem problematic in Mr. Big cases.

5. Personality traits of the suspect It is not only the behavior of the interrogators that contributes to the truthful realization of the statement. The personality of the suspect is also a factor that partly determines the likelihood of the suspect making an incorrect confession.63 As the description of the method in paragraph 2 shows (and what is excellently documented in the episodes about the True East case in Netflix’ docuseries The Confession Tapes), extensive preparatory research is done into the personal circumstances of the suspect so that the Mr. Big team can respond to certain character traits, personal preferences or situational circumstances. In the investigation into the death of Goedhart, the love for certain cars (and the associated jet-set life) plays an important part of the scenario to intensify contact with the suspect.64 In the investigation of the Posbank murder, the financial vulnerability of the suspect seems to have been exploited65 and the lawyer points out that the suspect

61 Rb. Zeeland-West-Brabant (first instance) 23 May 2016, ECLI:NL:RBZWB:2016: 3060. 62 Rb. Zeeland-West-Brabant (first instance) 23 May 2016, ECLI:NL:RBZWB:2016: 3060. 63 J.P. Blair, ‘The roles of interrogation, perception, and individual differences in producing compliant false confessions’, Psychology, Crime & Law 2007, 2, p. 173-186. 64 https://www.bd.nl/loon-op-zand/hoe-wim-s-een-moord-in-kaatsheuvel-bekendedie-hij-absoluut-niet-wilde-bekennen-een-reconstructie~a3d173d6/, last retrieved on op 5 June 2019. 65 PHR 18 June 2019, ECLI:NL:PHR:2019:648, rn. 130.

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consumed a lot of alcoholic beverages paid for by the undercover agents.66 Mr. Big method is therefore tailor-made based on the personality of the suspect and his preferences, but certain personal traits also increase the change that a person falsely confesses. Two important personal characteristics that partly determine whether a person is susceptible to making a false confession are the suggestibility and compliance.67 Suggestibility is the extent to which a person accepts received information as the truth and incorporates it into his own memories, thereby influencing their subsequent behavioral response. A person with a high degree of compliance has a tendency to look up to authorities, to follow their guidelines and advice, and tries to avoid confrontations and conflicts with others as much as possible. Our hypothesis is that persons who are susceptible for the illusion created by the Mr. Big team, are persons with a higher than average score on suggestibility and compliance, therefore – due to these personality characteristics – increases the change that a Mr. Big operation (which in itself is already problematic) leads to a false confession. Both factors are, as mentioned above, important for the contact between the undercover agents and the suspect in a Mr. Big operation. First, it is our assumption that the suspects who get involved in a Mr. Big operation scores above average for suggestibility. All kinds of illusions are spun by the undercover agents, which the suspect must accept as true. A suspicious person is most likely less susceptible to fall into the Mr. Big trap.68 During the intelligence probe (at least in Canada69), characteristics of the suspect are mapped, and in the True East case, this led to one of the co-suspects being targeted because the authorities assumed that the other co-suspect would not be susceptible to be advances. Secondly, it is our assumption that suspects who get involved in a Mr. Big operation also scores above average on compliance. They must accept the authority of the leading figure (Mr. Big) from the fictional organization, follow the guidelines of the organization and avoid confrontations within the organization to be successfully integrated into the organization. In short, two characteristics

66 PHR 18 June 2019, ECLI:NL:PHR:2019:648, rn. 133. 67 G.H. Gudjonsson, J.F. Sigurdsson, O.O. Bragason, A.K. Newton & E. Einarsson, ‘Interrogative suggestibility, compliance and false confessions among prisoners and their relationship with attention deficit hyperactivity disorder (ADHD) symptoms’, Psychol Med. 2008, 7, p. 1037-1044. 68 Cf. G.H. Gudjonsson, ‘Interrogative Suggestibility and Compliance’, in: A.M. Ridley, F. Gabbert & D.J. LaRooy (eds.), Suggestibility in Legal Contexts, Chichester: Wiley-Blackwell 2013, p. 51. 69 See the True East case on The Confession Tapes (Netflix).

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that are known to contribute to a suspect falsely confessing also determine whether the suspect is susceptible to Mr. Big. These two characteristics, suggestibility and compliance, are explained in more detail below.

a) Suggestibility People differ in the extent to which they are, in short, open to suggestions from others and accept them as true or correct. In the sense of interrogative suggestibility, this specifically concerns the extent to which the person being interrogated accepts the facts with which he is confronted during the interrogation – for example, the confrontation that several witnesses have seen the suspect at the crime scene – as true, and possibly incorporates in its own memory as true.70 Suggestibility is a personal trait71 – not everyone is equally open to accepting suggestions as true72 – but actually accepting suggestions as true depends on situational circumstances.73 Gudjonsson's theory of suggestibility in police interrogations is based on the interplay between two circumstances that may arise during the interrogation: leading questions and giving negative feedback,74 whereby it seems that negative feedback has a greater influence on suggestibility.75 Using leading questions, interrogators raise the suspect’s expectations, either by suggesting that a certain answer is correct or desirable, or by including new information in the question that is subsequently reproduced by the suspect.76 Negative feedback is any form of interpersonal feedback that criticizes the suspect about how he has responded in order to ensure

70 Gudjonsson 2013, p. 46. 71 H.J. Eysenck, ‘Personality, Primary and Secondary Suggestibility, and Hypnosis’, in: V.A. Gheorghiu, P. Netter, H.J. Eysenck & R. Rosenthal (eds.), Suggestion and Suggestibility, Berlijn: Springer 1989, p. 57. 72 M.J. Dubelaar, Betrouwbaar getuigenbewijs (dissertatie Leiden), Deventer: Kluwer 2014, par. 5.3.5. 73 J. Baxter, K. Charles, M. Martin & A. McGroarty, ‘The relative influence of leading questions and negative feedback on response change on the Gudjonsson Suggestibility Scale (2): Implications for forensic interviewing’, Psychology, Crime & Law 2012, 1, p. 1. 74 G.H. Gudjonsson, ‘Interrogative Suggestibility and Compliance’, in: A.M. Ridley, F. Gabbert & D.J. La Rooy (eds.), Suggestibility in Legal Contexts, Chichester: Wiley-Blackwell 2013, p. 48-49. 75 Baxter et. al. 2012, p. 6-7. 76 Baxter et. al. 2012, p. 1.

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that the suspect gives a different answer to the (re)asked question.77 It is Gudjonsson’s assumption that leading questions and negative feedback respond to the coping strategies that people can generate and implement when confronted with (i) uncertainty and (ii) expectations.78 In an interrogation situation, this specifically concerns the suspect’s uncertainty about the answer expected by the interrogator. People who are naturally suspicious are less sensitive to the pressure imposed by creating uncertainty and creating expectations, while people with poor memory or under-average intelligence are more sensitive to the same pressure.79 Anxiety and low selfconfidence also make a person more susceptible to suggestions.80 In an interrogation, the suspect is uncertain about the information that the police have collected about him. He is being interrogated as a (formal) suspect and it follows that at least some information indicates his involvement in the offense. This applies to both innocent and guilty suspects. If interrogators then create expectations by (i) stating that they already know everything and have gathered sufficient evidence and that confessing is the best strategy for the suspect, and /or (ii) concrete leading questions (e.g. closed questions where content cues has been incorporated into the question), the preconditions for a false confession have been created. The suspect is in uncertainty about the evidence against him, while the interrogators expressed expectations about the desirable answers. A person susceptible to suggestibility is sensitive to this form of psychological coercion of uncertainty and expectations, and therefore makes an (false) confession based on the suggestions made by the interrogators. The chance is very likely that the suspects who get involved with a Mr. Big operation score higher on suggestibility than the average population. The undercover agents create an illusion adapted to the personal preferences of the suspect, and for the Mr. Big operation selected suspects must accept the suggestions made by the undercover agents about the ins and outs of the organization as true. Also, the influence that Mr. Big can exercise on the investigation against the suspect, as well as the influence on the trial – which is part of the argument used by Mr. Big in the final scenario why the suspect should confess – must be accepted as true. For example, the suspect in R. v Franz was told that the organization had found a Mexi-

77 Baxter et. al. 2012, p. 1. 78 Gudjonsson 2013, p. 48-49. 79 G.H. Gudjonsson, ‘Theoretical and Empirical Aspects of Interrogative Suggestibility’, in: V.A. Gheorghiu, P. Netter, H.J. Eysenck & R. Rosenthal (eds.), Suggestion and Suggestibility, Berlijn: Springer 1989, p. 139. 80 Gudjonsson 2013, p. 51.

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can prisoner who was already imprisoned for another crime, was willing to admit the murder, so that he would end up in a Canadian cell instead of a Mexican one, but that Franz had to give the details of the murder as to make the confession credible.81 In R. v Mentuck, the suspect is presented with a similar scenario, but the person who wanted to take the murder charges is a prisoner who will die soon in jail because of his illness.82 Rationally, there should be some mistrust in these scenarios, but certain people seize such “opportunities” with both hands. Furthermore, the Mr. Big operation is an interplay between uncertainty and expectations. The organization creates uncertainty about both his acceptance in the organization and the renewed interest in the old criminal case. In the final scenario, during the meeting with Mr. Big, expectations are created. If the suspect wants to take advantage of the financial benefits that the organization offers as well as the influence that the organization can exert on the investigation or criminal proceedings, the suspect must confess. All this together – the targets of a Mr. Big operations score higher on suggestibility and are subsequently confronted with carefully chosen expectations and uncertainty – which means that there is a good chance that the suspect will accept the suggestions of the undercover agents as true.

b) Compliance In addition to the suggestibility as a personality trait, the degree to which a person is compliant is also a determining factor for making false confessions.83 The degree of compliance relates to how a person responds to authority. This attribute relates to the extent to which the person agrees with presented information, based on the fact that he feels obliged to do so because the information is presented by an “authority”. This obligation arises because of the social situation, for example because the person does not want to contradict an authority or conforms to the group opinion. Unlike suggestibility, the suspect does not internalize the suggestion made on the

81 R. v Franz (B. C. T. C. 439 2000). 82 R. v Mentuck (MBQB 155 2000). 83 J.R. Klaver, Z. Lee & V.G. Rose, ‘Effects of personality, interrogation techniques and plausibility in an experimental false confession paradigm’, Legal and Criminological Psychology 2008, 1, p. 80; R. Horselenberg, H. Merkelbach & S. Jacobs, ‘Individual differences and false confessions: A conceptual replication of Kassin and Kiechel (1996)’, Psychology, Crime & Law 2003, 1, p. p. 1-8.

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basis of compliance.84 The contribution that compliance makes to confessing falsely therefore seems easier to understand: the suspect confesses, since he does not want to contradict the interrogating authority, but knows that the confession is false. A false confession made based on suggestibility is mainly made because the suspect thinks that he really committed the crime. The importance of compliance for Mr. Big operation is evident. The suspect is ultimately led before the powerful boss of the organization, and depending on the interview it is determined whether the suspect is accepted into the organization. Mr. Big is clearly presented as an authority and has a major influence on the future of the suspect in the organization. In this situation, it is likely that suspects will make false confessions, so not to dissatisfy Mr. Big.

6. Conclusion Several factors have been discussed above that can contribute to a suspect making a false confession, and especially in the Mr. Big operation, many if not all of these factors are found. The focus is on a suspect who has been in the picture for years, but against whom little or no (forensic) evidence was found (this can be a classification error); the organization uses minimization and maximization techniques by trivializing the consequences of confessing against Mr. Big and exaggerating the consequences to join the organization and the impact the organization can exercise on the investigation (coercion error); and the conversations between the undercover agents and the suspect are not recorded, which makes it uncontrollable how the suspect gets certain information and whether he actually said certain things as the undercover agents later verbalized (contamination error). In addition, the fiction that is created by the Mr. Big organization will especially trap persons with the two personality traits that are known to contribute to the chance of false confessions: namely, suggestibility and compliance. The target of the Mr. Big method must be open to the suggestions made by members of the organization and ultimately to be compliant with the by Mr. Big formulated requests prior to joining the organization. In other words, the Mr. Big method exploits personality traits sensitive to false confession.

84 J.T. Perillo & S.M. Kassin, ‘Inside Interrogation: The Lie, The Bluff, and False Confessions’, Law Hum Behav 2011, 4, p. 331.

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The Mr. Big Method: On or Beyond the Boundaries of Lawfulness and Reliability?

It is the interplay of the factors inherent in the method that confession made to Mr. Big should be treated cautiously, and ideally an extensive postnarrative test should be performed on the diagnostic value of the confession. Due to the aforementioned interplay of factors, it is almost by definition that the reliability of the statement should be doubted. It is therefore not surprising that both in the Goedhart case and in the Posbank murder, the defense argued that the statements are not reliable and should therefore be excluded,85 but the courts so far have rejected these arguments (whereby the court in Goedhart concludes that the statement is reliable, despite the explicit consideration that “there is no mention made in the statement of unique content cues”86). On the basis of the problematic psychological background of the method, a general prohibition could be envisaged, such as the case with torture. However, torture is not prohibited solely because statements made under torture are unreliable but also because torture violates the right to human dignity and the right to a fair trial. In the next section, we will examine if the Mr. Big method violates the right to a fair trial.

IV. The Mr. Big method and the right to silence A full analysis of the Mr. Big method requires more than just assessing the method from a psychological perspective. In the final scenario of the Mr. Big method, the suspect is asked to confess everything about his alleged involvement in a criminal offense to Mr. Big. Despite the fact that these questions do not meet the conditions for a (formal) interrogation within the meaning of the Dutch Code of Criminal Procedure (mainly because the suspect is not aware of the status of the undercover agent), the statement must still be made freely. The use of a coerced statement as evidence, regardless of the statement is made during a formal interrogation or against an undercover agent, is a violation of right to a fair trial (Article 6 of the European Convention on Human Rights (ECHR)). In this chapter we examine if the circumstances of the Mr. Big method interfere unlawfully with the suspect’s right to silence and the privilege against self-incrimina-

85 Hof Den Bosch (appeal) 5 February 2018, ECLI:NL:GHSHE:2018:421; Hof Arnhem-Leeuwaarden (appeal) 15 March 2018, ECLI:NL:GHARL:2018:2415. 86 Rb. Zeeland-West-Brabant (first instance) 23 May 2016, ECLI:NL:RBZWB:2016: 3060.

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tion (which are seen by the European Court to Human Rights as two sides of the same coin, and are not distinguished in the case-law of the Court).

1. The right to silence and the privilege against self-incrimination The application of the Mr. Big method is a means to obtain a statement from the suspect (as a goal). Because of the absence of forensic evidence in the cold case, the case has not been solved. The Mr. Big method must solve those two problems: to obtain a confession from the suspect and therewith to solve the case. It is for these reasons that the circumstances in which the statement is made deserves special attention. As mentioned before, the suspect is not aware of the formal status of the undercover agent, and therefore the “conversation” with Mr. Big is not considered an interrogation; therefore the agent is not required to read the suspect’s rights and the suspect cannot exercise his right to legal aid and his right to silence at that time.. Bleichrodt (Advocate-General at the Dutch Supreme Court) advises in his conclusion to the Posbank murder to set aside the judgment of the Court of Appeal, in which the suspect is convicted mainly on the basis of the suspect’s confession to Mr. Big, because the Court's reasoning regarding the rejection of the defense that the suspect’s right to silence and privilege against self-incrimination has been violated is incomprehensible87.88 However, it remains unclear why some pressure is said to be coercive in the sense that it constitutes a violation of the suspect’s decision to remain silent and other forms of pressure are allowed. It is unclear where the boundary lies between permissible and unlawful coercion on the choice to remain silent (in abstracto),89 and the Supreme Court’s ruling does not change that. Below an attempt is made to answer the question whether the Mr. Big method in abstracto uses unlawful coercion to influence the suspect’s decision to make a statement. We focus this section on the rationales of the right to remain silent and the privilege against self-incrimination. With these rationales it can be argued when (in abstacto) coercive behavior is unlawful. Three legal grounds for the right to remain silent (and the

87 The Dutch Supreme Court is a court of cassation (bases on the French system), and can only judge on legal matters and not on factual matters. So, they cannot assess the reliability of a statement (which is a matter of fact), but can rule that the reasoning to find a statement reliable incomprehensible (which is a legal matter). 88 PHR 18 June 2019, ECLI:NL:PHR:2019:648, rn. 133-137. 89 Th.O.M. Dieben & J. Boksem, ‘Zwijgrecht’, in: T&C Strafvordering, online, actueel tot 1 juli 2019, aant. 3b.

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nemo-tenetur principle) are frequently mentioned in the literature and will be discussed below: (a) the importance for the right to remain silent of the reliability of the statement; (b) the autonomous position of the suspect in the procedure and; (c) the suspect’s right to human dignity.90

a) Reliability of the statement A rationale that is recognized by many authors finds its foundation in the interest of the criminal procedure in the discovery of truth. The evidence presented at the trial must be reliable so that the judges do not err on the facts. The right to remain silent in this sense is a protection against unreliable evidence. The evidentiary value of the evidence can decrease if the suspect is coerced to make an active contribution to the finding of truth. A clear example is a confession made by the suspect under physical and / or psychological torture. It is important that judges can be confident that the evidence that is presented and on which they base their decision is reliable. The rationale that is based on the discovery of truth examines the right to remain silent from the position and task of the judiciary,91 which is unexpected. Why would the suspect be given any right (as a means) to improve judges fact-finding (the end)? However, viewing the right to remain silent from the reliability of the evidence fits well with a pure or strong inquisitorial system. In an inquisitorial process, the interests of the suspect – after all, he is the object of investigation – are made subordinate to the public interest of finding the truth. When investigative methods contribute to the finding of truth, then violations of fundamental rights are justified. If the right to remain silent is viewed solely from this rationale, there would be nothing to prevent the judge from using reliable evidence, regardless of the (un)lawful acquisition of the evidence. After all, the importance of finding the (legal) truth is paramount and reliable evidence is a necessary condition for finding the truth. If unlawfulness does not affect the reliability of the evidence, why should it not be used? The reliability of a statement can be determined “simply” (and decisively) by verifying (or falsifying) the facts and circumstances mentioned in the statement in other

90 See also D.A.G. van Toor, Het schuldige geheugen? Een onderzoek naar het gebruik van hersenonderzoek als opsporingsmethode in het licht van eisen van instrumentaliteit en rechtsbescherming, Deventer: Kluwer 2017, par. 7.1 91 See T.M. Schalken, annotated case-law HR 2 July 1990, NJ 1990, 751 (Wangslijm); B.J. Koops, Verdachte en ontsleutelplicht: hoe ver reikt nemo-tenetur?, Deventer: Kluwer 2000, p. 45-46.

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(objective forensic) evidence. The reliability of a statement is a purely factual analysis and not a normative judgment, and therefore it would not be logical to find the rationale of the right to remain silent in the reliability of the statement.

b) Autonomy In addition to the reliability of the evidence, (procedural) autonomy is distinguished as one of the rationales of the right to remain silent. In this context, the suspect is seen as an autonomous party to the proceedings and not just as an object of investigation (as with the rationale reliability of evidence, where the suspect as an “object” who must deliver reliable evidence). Of course, a suspect is an important source of information about his possible involvement in a criminal offense. However, that is not his only role in the criminal investigation against him. After all, the suspect is also an autonomous party to the proceedings. This means that he (and his lawyer) must be given the opportunity to take a certain position vis-à-vis the charge. The suspect must be able to determine his position during the preliminary investigation and at the trial. Granting rights to the suspect, such as the right to remain silent, contribute to the possibility of determining this position. The ECtHR puts it as follows: ‘the right not to incriminate oneself, in particular, […] that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent.’ (our underlining).92 In this sense, the right to remain silent offers the suspect the opportunity to decide whether he wants to make a statement. This choice must depend on his will, and this choice cannot be influenced by coercion or repression in defiance with his will. In the previous section, the rationale of the right to remain silent was sought in the interest of the discovery of truth. However, the importance of finding truth cannot fully justify the right to remain silent, since it opens the door widely for the use of reliable but unlawfully obtained evi-

92 ECtHR 17 December 1996, NJ 1997, 699, par. 68-69, (Saunders vs. the United Kingdom).

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dence.93 The balance must be sought in the autonomy of the suspect. The starting point is that the parties in criminal proceedings are (as far as possible) equal. It is not appropriate that one party to the proceedings, the prosecutor, can force the other party to the proceedings, the suspect, to hand over evidence. The importance of the finding of truth is not made superior to the position of the suspect at trial, but a balance must be sought between the two grounds.94

c) Dignity However, not only from the status as a participant in the proceedings does it follow that the suspect may decide autonomously. His status as a human being also must lead to that conclusion. Human dignity as a rationale for the right to silence stems from “the respect that must be shown for the suspect”.95 In the literature, there are (mainly) two arguments made why the suspect, as a human being, deserves respect. The first argument stems from a self-protection idea. The argument is as follows.96 Mandatory self-discrimination is taken as a starting point. The (moral) rule is that every citizen discloses information about his involvement in an offense, when requested by the authorities. The privilege against self-incrimination and the right to remain silent do not exist in this fictional situation. Self-discrimination is the only option and everyone should comply with that rule. But if a person is asked to voluntarily follow the rule, then nobody, including non-guilty citizens, would like to comply with the rule just proposed. Compliance with the self-discrimination rule means that the person “hangs himself”. No person from an instinctive drive for self-protection would want to comply with the self-discrimination rule. Dolinko therefore calls this argument ‘the hypocritical argument’.97 The right to remain silent in this perspective includes that every person can protect himself by not being obliged to cooperate in an investigation that

93 G. Knigge, annotated case-law ECtHR 17 December 1996, NJ 1997, 699 (Saunders vs. the United Kingdom). 94 Cf. M.S. Groenhuijsen & G. Knigge, ‘Algemeen deel’, in: M.S. Groenhuijsen & G. Knigge (red.), Afronding en verantwoording, Deventer: Kluwer 2004, p. 52. 95 G.J.M. Corstens, M.J. Borgers & T. Kooijmans, Het Nederlandse strafprocesrecht, Deventer: Kluwer 2018, p. 322. 96 Cf. D. Dolinko, ‘Is there a Rationale for the Privilege against Self-Incrimination’, UCLA L. Rev. 1986, 4, p. 1095-1096. 97 Dolinko 1986, p. 1101.

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is directed against him. Reijntjes also points to the self-protection idea. He asks whether we believe “that every citizen has the right to protect himself – even if that is at the expense of finding the truth?”98 It is humane to initially offer the suspect – and possibly at the expense of finding the truth – the opportunity to protect himself to prevent a conviction. That a person does not have to hang himself is a justification of the right to remain silent that fits within a biological approach to man. According to Gontier, existing life is primarily focused on self-preservation.99 Initially, an organism wants to stay alive. Only when self-preservation is endangered does the organism evolve. When the death penalty was still being carried out, co-operating in one’s own conviction could actually lead to “self-destruction”. Nowadays the death penalty is no longer carried out in most countries and protection against physical violence and access to sufficient food, water and oxygen are normally sufficient for a person to stay alive. Self-discrimination no longer leads to self-destruction. Self-preservation in this sense – that criminal proceedings (at least in most countries) cannot end with the death penalty – is guaranteed. Because self-preservation is certain for a suspect in criminal proceedings, the self-protection idea (in the strictest sense) deserves adjustment. The justification for the existence of the right to remain silent is changed to an argument on “decent self-preservation”. Not only self-preservation is sufficient, but everyone wants a decent life. So, not only staying alive is the goal anymore, but also a certain quality of life – in other words a decent life –, of which physical freedom is an important part. Without physical freedom, exercising other components that promote the quality of life becomes more difficult. In this sense, the right to remain silent contributes to the fact that a person is not deprived of his self-protection against deprivation of liberty. After all, the suspect cannot be forced to cooperate in his deprivation of liberty because his self-protection/self-preservation. The self-preservation argument can take another form as well. Central to this adjustment is not the physical but the mental self-preservation.100 By this, we mean that a forced confession does not contribute to the recognition of the suspect’s error and therefore does not contribute to the healing effect that the voluntary making of a confession has on the mental health

98 J.M. Reijntjes, ‘Nemo tenetur: een holle leus?’, in: J.M. Reijntjes (red.), Nemo tenetur, Arnhem: Gouda Quint 1996, p. 18. 99 N. Gontier, De oorsprong en evolutie van het leven, Brussel: VUBPress 2004, p. 358. 100 D.A.G. van Toor, ‘Een schuldig geheugen? Het belang van het zwijgrecht voor de geestelijke gezondheid van de verdachte’, Ars Aequi 2018, 4 p. 343-347.

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The Mr. Big Method: On or Beyond the Boundaries of Lawfulness and Reliability?

of a person (cmp. Raskolnikov in Dostojevksi’s Crime & Punishment101 and Mitja in Dostojevksi’s The Karamazov Brothers). This argument is based on the role of confession in Christianity and later on the insights of voluntary re-experience on mental well-being in mental health care.102 By confessing sins, a priest can forgive a sin. The voluntary confession of a sin is a form of self-condemnation. This is necessary in the process of forgiveness and is supposed to relieve conscience, improve mental health. ‘[C]onfession and repentance are a medicine for the soul.’103 Confessing a crime causes mental self-preservation, so that the suspect does not struggle with the absurdity and futility of life and confronts the consequences of his choice. A ban on forced self-increment offers the suspect the opportunity to heal, despite his sin(s). The rationale human dignity can therefore be viewed from a self-protection or self-preservation idea because every organism wants to stay alive and the human being pursues a certain quality of life. “Hanging yourself” and thereby losing your physical freedom does not fit with that idea. For the sake of self-preservation, self-protection and mental well-being, this means that any action that coerces the suspect to confess should be prohibited.

101 In part II (after the murder of the two sisters Ivanovna), Raskolnikov clearly struggles with his mental “self-preservation.” Chapter 6 can be used as an example in which Raskolnikov, for the first time after he has been sick in bed, goes outside again. He argues that ‘all this must be ended today, once for all, immediately that he would not return home without it because he would not go on living like this’. In the course of the chapter he tries to obtain as much information as possible about (the police investigation into) the murders through newspapers. When he is reading some newspapers in a cafe, the chief police clerk Zametov comes to sit with him. A few times, Raskolnikov is about to confess his crimes (and thereby alleviate his worry and mental unrest). After deciding to see a woman attempting suicide, he finally decided to go to the police station: ‘that’s loathsome… water… It’s not good enough. […] Nothing will come of it, no use to wait. What about the police…?’ Apparently, for his own position, he finds a suicide attempt by jumping into the water “not good enough.” The only redemption is by confessing the crime. 102 For example, forced re-living a traumatic experience is an absolute no-go in psychological therapy. 103 R.S. Gerstein, ‘Privacy and Self-Incrimination’, Ethics 1970, 2, p. 93.

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d) Conclusion When assessing whether the right to remain silent has been unlawfully infringed, it must, in our opinion, be assessed whether the personal and independent choice to make a statement has been influenced. Legal psychology and law come together on this topic, because it is precisely with the legal psychological factors discussed above that it can be argued that the free choice to confess is influenced (which may also affect the reliability of the statement). Strategies such as minimization and maximization, which the Mr. Big method used extensively, influences how the actual situation is perceived by the suspect and on the basis of which he determines his choice to speak. Responding to personal preferences and making use of and responding to the personality traits of suggestibility and compliance also influence the free choice. By trivializing the consequences of confessing (minimization), exaggerating the consequences of denying (maximization) and selecting targets for the operation while creating a tailor-made fantasy world are all used to prevent the suspect to perceive reality accurately but live in a fantasy world where confessing to a crime is the only logical possibility. This means that the target in a Mr. Big operation does not make an informed, independent and personal decision. The suspect is not shown the respect he deserves as a human being, but is only used as a means to an end: namely to confess and, because the absence of forensic evidence in the cold case, deliver the decisive evidence himself. The suspect lives, at least in part, in a fantasy world, created especially for him, sparing no expense or effort to respond to his personal preferences and personality traits. Who wouldn’t confess in such a fantasy world, with potentially high benefits (including money and status) and low costs (he explains to friends; consequences of acquaintances are trivialized; the organization helps with getting rid of the case or with an escape plan; the inaccuracy of the statement would be established in court)? In our opinion, the Mr. Big method abuses in a subtle but very intense way the situation in which the suspect is brought and the personality of the suspect so that it cannot be said that in the final scenario the statement against Mr. Big is made freely. (This may be different if the authorities can prove that the initiative for the statement actually comes from the suspect and contamination can be ruled out, as required in Canada.104)

104 R. v. Hart (2014) SCC 52, at 85.

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The Mr. Big Method: On or Beyond the Boundaries of Lawfulness and Reliability?

V. General conclusion The Mr. Big method is used in the Netherlands (and abroad) in situations where there is no conclusive (forensic) evidence, and the confession made during the operation must be the “smoking gun” (from a law enforcement perspective). The starting point for the use of the method is that, according to the police and the prosecutor’s office, there is insufficient evidence for prosecution, namely that the suspect cannot be linked to the criminal offense, but they have a strong suspicion (based on circumstantial evidence alone) of the guilt of the suspect. The Mr. Big method is used to contact the suspect without the safeguards present during a formal investigation, and law enforcement hope that this will lead to a cooperative, in the sense of talkative, suspect. No expense or effort is spared to put the suspect in the ideal situation; a (fantasy)world is adapted to the personality and personal preferences of the suspect, and the organization in that world offers the possibility of obtaining high benefits within a short period of time and has few disadvantages. However, exactly the opposite is true: not confessing means that the organization breaks the contact with the suspect, and most Mr. Big organizations previously hinted that it will deal violently with defectors. To be eligible for the benefits the organizations offers and to no longer fear for his life, the suspect simply has to say that he has committed a criminal offense against his new best friends and then everything is (financially) possible. And if problems arise with the prosecution of the offense, Mr. Big offers a solution. The suspect is brought into this situation is by no means able to make a free decision to confess in a reliable way. In addition, the entire operation – and therefore it is important to look at the entire process – uses all conceivable strategies that scientific research has shown to (significantly) reduce the chance of obtaining a reliable confession. The suspect is put under pressure by the (implicit) threat with physical violence that emanates from the organization, the consequences of confessing are completely trivialized (minimization) and the benefits of confessing are exaggerated (access to a profitable organization). All in all, the only (rational) option is to confess, because it only has advantages and almost no disadvantages. This is also true for innocent suspects, because they can trust the discriminatory capacity of the judiciary as a safety net. In addition, the Mr. Big methods (mis)uses the suspect’s suggestibility and compliance, two personality traits that also increase the chance of a false confession. Because of all this – the fact that the suspect is forced (legal argument) to make an unreliable statement (psychological argument) – and the fact that a statement is still seen as decisive evidence (a confession 119

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trumps innocence), we believe it is important that a general prohibition of the Mr. Big method is necessary. The Dutch Supreme Court recently decided differently on 17 December 2019.105 A general ban on a method is not in line with the general Supreme Court’s decisions on investigatory misconduct, namely that the Court almost always tests the execution in concreto (only certain interrogation techniques and torture always lead to the exclusion of evidence). However, the Supreme Court did provide a clear framework to judge the execution of the Mr. Big operation, and especially how the circumstances influenced the free decision to make a statement, which renders the method almost useless. In the two cases (the Posbank murder and Goedhart) before the Court, the Court decided that lower courts, when confronted with a Mr. Big method, must assess whether the statement made by the suspect in the context of such an operation were not obtained in violation of his right to remain silent. For the purpose of assessing whether the suspect’s right to remain silent in such a case has been violated the lower courts must assess inter alia the circumstances under which the method is executed, the extent of ( psychological) pressure exerted on the suspect in the operation, the extent and method of misleading applied within that operation and the influence the undercover agents had on the content of (essential elements of) the statement made by the suspect. In this assessment it is also important to consider the duration and intensity of the operation, the scope and frequency of the contacts and the positive (e.g. future payouts of the criminal organization) or negative consequences (e.g. the use of violence against defectors) the undercover agents mentioned if the suspect does or does not make a statement. In order to enable lower courts to assess all this, it is of great importance that law enforcement gives insight into the concrete execution of the method and the interaction with the suspect that took place. Partly for this reason, a sufficiently accurate reporting is necessary. In addition to reporting by means of verbalization, it is reasonable that, insofar as this is possible during the execution, that communication is recorded audibly or audio visually. In the Posbank murder, the Supreme Court ruled that the Court of Appeal did not judge the suspect’s right to remain silent in accordance with the abovementioned principles. The Supreme Court emphasizes the staging of violence by the organization (negative consequence for not confessing; a maximization strategy) and the prospect that the suspect would earn

105 This article was submitted on the 20th of December 2019.

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The Mr. Big Method: On or Beyond the Boundaries of Lawfulness and Reliability?

75,000 euros after confessing (positive consequence; also a maximization strategy).106 In the Goedhart case, according to the Supreme Court, it is not verifiable what influence the undercover agents had on essential elements of the statement, and therefore it cannot be assessed at all to what extent the suspect has (voluntarily) declared.107 The Supreme Court quashed the appeal decisions in both cases, and referred to another appellate court for a retrial. Although not exactly as we hoped, the Supreme Court ruling is favorable for the defense and leaves very little room for the appellate courts to use the statements made during the Mr. Big operation in both cases. Because the poor verbalization in Goedhart and the absence of audiotaping, it is impossible to assess the influence the undercover agents had on essential elements of the statement. In the Posbank murder, the maximization strategy is used as a major argument to judge the right to remain silent violated, which will remain the same in a retrial. Furthermore, for future cases, it may be that the concrete requirements the Supreme Court sets for the reporting of the method makes it almost impossible to execute the Mr. Big method. Dutch criminal proceedings are, to a large extent, a paper-based trial in which judges make extensive use of statements made against the police, which are verbalized by the police. That is also the case with the Mr. Big method. The undercover agents verbalize their actions after any contact with the suspect, but many of those police reports in the Posbank murder and the Goedhart case contain only global comments about the length of the contact and what has been said in general terms by the undercover agents and the suspect, and hold no verbatim description of the conversations. There is no question that the reporting is inaccurate at the moment, and without auditory and visual aids this would also seem impossible in view of the Supreme Court’s requirement. Because wiretapping the undercover agents and / or rooms is a big risk in exposing the secrecy of the law enforcement operation, it can be that the ruling of the Supreme Court of the Mr. Big method in concreto leads to an impossibility in abstracto to implement any other Mr. Big operations.

106 HR 17 December 2019, ECLI:NL:HR:2019:1983, par. 5.4.3. 107 HR 17 December 2019, ECLI:NL:HR:2019:1982, par. 5.3.3.

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Erosion of the Right to Silence in Dutch Criminal Justice? J.H. Crijns* / M.J. Dubelaar#

1.

Introduction

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2.

Interrogation of the suspect or accused in Dutch criminal justice

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3.

Origins and rationale of the right to silence

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4.

Exploring the scope of the right to silence in the Netherlands

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5.

Ways to circumvent the right to silence

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5.1 Use of trickery

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5.2 The ‘Mr. Big’ technique

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5.3 Adverse inferences

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5.4 Evidentiary presumptions

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Conclusion

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6.

1. Introduction The right to silence is one of the corner stones of criminal procedural law and is embedded in many jurisdictions in one way or another. This is also the case in the Netherlands, where the right to silence has a firm legal basis in the Dutch Criminal Code of Procedure (hereafter: DCCP). As a result of the Salduz case law of the European Court of Human Rights1 and European legislation on the right of access to a lawyer2, the right to silence has * Jan H. Crijns is Professor of Criminal Law and Criminal Procedure at Leiden University. # Marieke J. Dubelaar is Associate Professor of Criminal Law and Criminal Procedure at Radboud University Nijmegen. 1 See e.g. Salduz v. Turkey, ECtHR (GC) 27 November 2008, no. 36391/02. 2 See Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, OJ 2013, L 294/1.

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been further strengthened in the Dutch legal order by granting the defendant the right to consult a lawyer before police interrogations start and to have a lawyer present during these interrogations, who can protect his client against involuntary self-incrimination. In 2016, the importance of the right to silence as a fundamental right was further stressed by adopting the EU Directive on the presumption of innocence.3 However, at the same time Dutch case law increasingly seems to allow for more practices that infringe on the right to silence. Examples of such practices are the use of trickery to elicit a statement from the suspect or accused or the drawing of adverse inferences from a refusal of the suspect or accused to give a statement. This chapter focuses on the right to silence and the many ways in which the right to silence can nowadays be restricted and circumvented in the Netherlands (§ 5), as seems to be the case in many other Western criminal justice systems also.4 At the end of the chapter, we will raise (and provide a beginning of an answer to) the question which rationales of the right to silence are still protected in the Netherlands, given the many ways to circumvent it or to minimize its effects (§ 6). First, we will discuss the important role of the interrogation of the suspect or accused in the Netherlands and the position of the right to silence in Dutch criminal procedure (§ 2), the origins and the rationale of the right to silence in general (§ 3) and the scope of the right to silence in Dutch criminal procedure (§ 4).

2. Interrogation of the suspect or accused in Dutch criminal justice The Dutch criminal justice system – like many continental criminal justice systems – is based on the inquisitorial tradition.5 Although the case law of the European Court of Human Rights has ‘forced’ the Dutch system to

3 See Directive 2016/343/EU of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, OJ 2016, L 65/1. 4 See e.g. H. Quirk, The Rise and Fall of the Right of Silence, London and New York: Routledge 2017, where she describes the implications of the curtailment of the right to silence in England, Wales and Northern Ireland as a result of the Criminal Justice and Public Order Act 1994. 5 See for a comprehensive introduction into the Dutch criminal justice system: P.H.P.H.M.C. van Kempen, M. Krabbe and S. Brinkhoff (eds.), The Criminal Justice System of the Netherlands. Organization, Substantive Criminal Law, Criminal Procedure and Sanctions, Antwerp: Intersentia 2019. See also J.H. Crijns and M.A.H. van der Woude, ‘The Criminal Justice System‘, in: J. Chorus, E.H. Hondius and W.J.M. Vo-

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Erosion of the Right to Silence in Dutch Criminal Justice?

adopt several adversarial elements, the inquisitorial character of the Dutch system is still recognizable.6 As in most inquisitorial systems, the statements of the suspect or accused play a very important role in proving someone’s guilt. Despite the rise of all kinds of sophisticated forensic techniques, the confession is still regarded by many as the Regina Probationum (‘the Queen of Evidence’). And although criminal justice actors are aware of the fact that some confessions might be false, the defendant often provides valuable information for the process of truth-funding. For this reason, in Dutch criminal justice the suspect or accused is questioned at all stages of the proceedings: from the very beginning during police investigations until the very end at trial. At all stages of criminal proceedings, the suspect or accused is not only regarded as the defending party with his own legal position, but also – and at the early stages of the proceedings, almost primarily – as a useful source of information in the process of establishing the truth. At this point, something of a paradox arises: at trial the defendant is instructed that he does not need to answer any question, but nevertheless questions are being asked by the same judges who later on will pass a verdict. The defendant does not need to take an oath, however. In this respect, the Dutch and the German systems differ, for example, from the criminal justice system of England and Wales. In that system if the defendant decides to give a statement, he has to take an oath and risks being prosecuted for perjury when he does not tell the truth.7 In the Netherlands, the defendant cannot perjure himself, but once he decides to give a statement, his statements can be used against him. Given the importance of the statements of the suspect or accused in Dutch criminal proceedings, it is of utmost importance to have certain safeguards in place that can protect the suspect or accused from involuntary self-incrimination. Therefore, the right to silence – as part of the privilege against self-incrimination – has a prominent place in the Dutch Code of Criminal Procedure. The right to remain silent is set forth in article 29 DCCP, which provides as follows:

ermans (eds.), Introduction to Dutch Law, Alphen aan den Rijn: Kluwer Law International 2016, p. 441-474. 6 See for the consequences this inquisitorial character has for the process of truthfinding C.H. Brants and S. Field, ‘Truth-finding, procedural traditions and cultural trust in the Netherlands and England and Wales: When strengths become weaknesses’, The International Journal of Evidence and Proof 2016 (20), 4, p. 266-288. 7 See ‘Perjury by Defendants: The Uses of Double Jeopardy and Collateral Estoppel’, Harvard Law Review 1961, 4, p. 752-764.

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1. In all cases where a person is being questioned as a suspect or defendant, the judge or official who is conducting the questioning, shall refrain from any act aimed at obtaining a statement which cannot be said to have been freely given. The suspect or the defendant shall not be obliged to answer any questions. 2. Before the suspect or the defendant is questioned, he shall be informed that he is not obliged to answer any questions. In other words, not only can the suspect or accused exercise his right to remain silent during any interrogation (article 29, paragraph 1), he must also be informed of this right before the questioning starts (article 29, paragraph 2), which may be understood as the continental manifestation of the Miranda-warning. On top of that, paragraph 1 expressly forbids the use of coercion during questioning. It is clear that this provision excludes the use of any form of torture or inhuman or degrading treatment during interrogation within the meaning of Article 3 ECHR. According to the Dutch Supreme Court, however, this provision does not entail a ban on any form of pressure during the interrogation. This provision does not necessarily preclude very long interrogations or the practice of ‘informing’ the suspect or accused of the consequences of his choices during interrogation. However, the line with threatening or intimidating the suspect or accused, which obviously is not allowed, is rather thin. And, as we will discuss later on in the chapter, some amount of trickery during interrogation may also be overlooked by the Dutch Supreme Court.8 As a result, the exact scope of the prohibition of coercion during the interrogation is rather vague and subject to continuing debate in the case law.9 The right to remain silent is closely connected to the right to have access to a lawyer and to have him present during the interrogation. Early access to a lawyer puts the suspect or accused in a position to choose whether or not to give a statement and provides for some form of monitoring over the way the suspect or accused is interrogated. At the supranational level also, the lawyers’ role is, among other things, to protect his client against involuntary self-incrimination.10 Historically, in the Netherlands, there has been resistance against the idea of having a lawyer present during police interro-

8 See e.g. Supreme Court of the Netherlands 9 January 2018, ECLI:NL:HR:2018:18. See for further details section 5.1. 9 See e.g. G.J.M. Corstens, Het Nederlands strafprocesrecht, 9th edition, updated by M.J. Borgers and T. Kooijmans, Deventer: Wolters Kluwer 2018, p. 323-324. 10 In the words of the ECtHR: ‘Early access to a lawyer is part of the procedural safeguards to which the Court of Human Rights will have particular regard when ex-

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Erosion of the Right to Silence in Dutch Criminal Justice?

gations, which has to do with the Dutch criminal justice system’s inquisitorial roots and the important role that the confession of the suspect or accused plays in the process of truth-finding. As already mentioned in the introduction, thanks to influence of European guidelines and the case law of the ECtHR, Dutch suspects nowadays have the right to consult a lawyer before the first police interrogation starts and to have him present during all interrogations (articles 28c-28d DCCP). In theory at least, protecting the right of access to a lawyer at the time of questioning serves to strengthen the right to silence, especially since the lawyer is not only allowed to be present, but also to participate effectively, meaning that he is also entitled to advise his client during interrogation, for instance on exercising his right to silence.

3. Origins and rationale of the right to silence Although the right to silence is considered one of the corner stones of modern criminal justice, its origins and rationale(s) are much more blurry than its present status would suggest.11 It is not the purpose of this chapter to discuss the history of the right to silence in the Netherlands extensively, but it is important to stress here that the legal protection of the right to silence is a relatively new development. As a relic of true inquisitorial times, until the end of the nineteenth century, in the Netherlands, the suspect was obliged to give statements, although this obligation was no longer enforceable since the abolition of the rack in 1789. Nevertheless, it was not until 1926 – when the current Dutch Code of Criminal Procedure came into force – that the right to silence was officially recognized in the Dutch criminal justice system. The main reason for this was the wish to prevent the suspect or accused from methods of oppression or coercion during interrogation, and, by doing so, to further ‘humanize’ criminal justice.12 Further, there was a growing awareness that the right to silence need not only

amining whether a procedure has extinguished the very essence of the privilege against self-incrimination’. See e.g. Salduz v. Turkey, ECtHR (GC) 27 November 2008, no. 36391/02, § 54. 11 See e.g. Quirk 2017, p. 11-15. See extensively on the history of the right to silence in the Netherlands, L. Stevens, Het nemo-teneturbeginsel in strafzaken: van zwijgrecht naar containerbegrip (diss. Tilburg), Nijmegen: Wolf Legal Publishers 2005, p. 40-55. 12 See Parliamentary Papers II 1913/14, 286, no. 3 (Explanatory Memorandum), p. 71. See also Stevens 2005, p. 66.

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hamper the process of truth-finding, but may also contribute to it, since a strict obligation to give statements may also lead to false statements, with all that this entails. In the course of the twentieth century, under the influence of the case law of the ECtHR, the foundations of the right to silence became even stronger, with the ECtHR considering the right to silence to be an indispensable part of the right to a fair trial. Nowadays, generally speaking, three different but interrelated rationales for the right to silence may be distinguished: 1) Preventing the suspect or accused from undue pressure during interrogation; 2) Securing the reliability of the statements of the suspect or accused and preventing miscarriages of justice; and 3) Granting autonomy to the suspect or accused during criminal proceedings as part of the right to a fair trial.13 In the following paragraphs we will briefly explain each of these three rationales. The strong wish to prevent the suspect or accused from undue pressure during interrogation may be considered the moving force behind the right to silence. Even before the realization of the ECHR there was a growing awareness that a criminal justice system should not allow recourse to violence and threats during the interrogation of the suspect or accused. Granting him the right to silence was considered the most effective way to prevent the suspect or accused from torture or other inhuman interrogating techniques. Needless to say, this rationale for the right to silence became even stronger after the realization of the ECHR, which, among other things, provides protection against torture and inhuman or degrading treatment. Apart from granting the suspect or accused the right to silence as an individual right, in most criminal justice systems this rationale is further strengthened by an explicit prohibition for the authorities to exercise undue pressure during interrogation.14 As a mirror image, this instruction norm for the authorities may be understood as providing for an individual right of the suspect or accused to be protected from undue pressure while being interrogated.

13 See Corstens 2018, p. 322. See also Saunders v. United Kingdom, ECtHR (GC) 17 December 1996, no. 19187/91, § 68. 14 See for the Dutch criminal justice system article 29, paragraph 1, DCCP. See also Ibrahim and Others v. the United Kingdom, ECtHR (GC) 13 September 2016, no. 50541/08, § 267: ‘It is important to recognise that the privilege against self‑incrimination does not protect against the making of an incriminating statement per se but, as noted above, against the obtaining of evidence by coercion or oppression. It is the existence of compulsion that gives rise to concerns as to whether the privilege against self-incrimination has been respected.’

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However, the wish to protect the suspect or accused from undue pressure while being interrogated is not the only rationale underlying the right to silence. The importance of this right can also be sought in epistemological reasons. When truth-finding is considered to be one of the main goals of criminal procedure,15 it would not make much sense to force a suspect or accused to answer questions during interrogation. Forcing a suspect or accused to give answers raises the risk of unsafe convictions and miscarriages of justice (quite apart from the question of the legality of the means adopted to achieve this), since the suspect or accused who cannot invoke the right to silence would be placed with a dilemma: either give true statements or lie (with all that this entails in those jurisdictions providing for the crime of perjury).16 One could argue that only those who are actually guilty will consider this a true dilemma, since innocent persons will always choose to tell the truth given that it is in their interests to do so. However, this argument overlooks the fact that people can have many other reasons to withhold a statement or to give false statements, even when they are innocent of the crime of which they are suspected or accused. Accordingly, from the perspective of the quality of the process of truth-finding (as one of the main goals of criminal proceedings) also, it is essential to take the right to silence seriously. The third rationale for the right to silence is the wish to grant the suspect or accused a certain degree of autonomy to determine his own position during criminal proceedings, as a concrete manifestation of the right to a fair trial. In this respect, the right to silence – although not expressly provided for in article 6 ECHR – is often mentioned in connection with such other essential fair trial rights as the privilege against self-incrimination and the presumption of innocence.17 However, the answer to the question of how these fundamental rights interrelate is not self-evident and subject to ongoing debate in the legal scholarship.18 What this connection with these other fundamental rights shows, however, is that, nowadays, the 15 See e.g. L. Laudan, Truth, Error, and Criminal Law. An Essay in Legal Epistemology, New York: Cambridge University Press 2006. 16 See also M. Redmayne, ‘Rethinking the Privilege Against Self-Incrimination’, Oxford Journal of Legal Studies 2007, 2, p. 221-222. 17 See e.g. Quirk 2017. 18 See in this regard e.g. two recent Dutch dissertations: J.H.B. Bemelmans, Totdat het tegendeel is bewezen. De onschuldpresumptie in rechtshistorisch, theoretisch, internationaalrechtelijk en Nederlands strafprocesrechtelijk perspectief (diss. Nijmegen), Deventer: Wolters Kluwer 2018; and A. Zeeman, Dulden of meewerken? Een onderzoek naar de toepassing van het nemo tenetur-beginsel bij de sfeerovergang van controle naar opsporing (diss. Rotterdam), ’s-Hertogenbosch: Gompel & Svacina 2019. See also

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right to silence is tied up with the right to a fair trial as provided for in Article 6 ECHR.19 Although not always supported by public opinion, there is a strong communis opinio among legal scholars that the right to refuse to answer questions during interrogation is a matter of fairness. At the same time, it is unclear why this is the case, i.e. why compelling the suspect or accused to answer questions during interrogation should be considered unfair (aside from the illegality of the methods adopted to achieve this). As will be explained in section 4, Dutch administrative law is based on the obligation to cooperate, including the obligation to give certain information upon request.20 In the context of criminal justice, however, compelling a suspect or accused to answer is out of the question. The main rationale for this seems to be the wish to afford the suspect or accused a certain degree of autonomy with regard to his own position, for as long as he is involved in criminal proceedings. It is here that the relationship with the presumption of innocence, pursuant to which the suspect or accused is to be considered innocent until proven guilty and the burden to establish guilt is on the prosecution, becomes clear. From the perspective of this presumption, it would not make much sense to oblige the suspect or accused to cooperate with the prosecution and to compel him to answer to questions during interrogation. Therefore, taking the presumption of innocence seriously also implies recognizing the right to silence. In this line of reasoning, it is principally up to the suspect or accused whether he cooperates in his own prosecution. However, according to the case law of the ECtHR, this is only true when it comes to information which is dependent for its existence on the will of the suspect or accused, i.e. his statements. on the interrelation of the right to silence and the privilege against self-incrimination Stevens 2005. 19 See Saunders v. United Kingdom, ECtHR (GC) 17 December 1996, no. 19187/91, § 68, where the ECtHR describes the right to silence and the privilege against selfincrimination as ‘generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6’. The right to remain silent is also acknowledged by the Court of Justice of the European Union. See A.H. Klip, European Criminal Law. An Integrative Approach, 3rd edition, Cambridge: Intersentia 2016, p. 274, with reference to inter alia Limburgse Vinyl Maatschappij and others v. Commission, CJEU 15 October 2002, C-238/99 P. See also Article 7 of the Directive 2016/343/EU of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, OJ 2016, L 65/1. 20 Although an administrative punitive sanction cannot be grounded on information obtained by means of enforcing the obligation of cooperation, because of the privilege against self-incrimination and the right to silence. See for references and further details section 4.

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When it comes to information that has existence independent of the will of the suspect or accused, the privilege against self-incrimination does not provide much protection. 21 As a result of this case law, the privilege against self-incrimination and the right to silence overlap significantly. It is not the purpose of this chapter to determine the exact relationship between the presumption of innocence, the privilege against self-incrimination and the right to silence,22 but it is important to point out that the right to silence is strongly connected to these fundamental rights and to the right to a fair trial more generally. For the remainder of this chapter, the three rationales for the right to silence set out above will serve as analytical tools in explaining, interpreting and assessing the various ways in which the right to silence may be circumvented or curtailed. At the end of this chapter, we will discuss the extent to which these rationales may (still) be discerned in the Dutch criminal justice system, given the apparent curtailment of the right to silence in the case law.

4. Exploring the scope of the right to silence in the Netherlands In the next section we will shift our focus to the various ways in which the right to silence may be circumvented in the Netherlands. In this section, we will take a closer look at the wording of article 29 DCCP itself, from which some inherent limitations of this right already emerge. First, this right is only applicable when someone is considered a suspect. As long as someone is not considered a suspect, law enforcers – including police officers – can ask any question without having the legal duty to inform the person of his right to remain silent. This has important consequences for investigations in the context of other legal domains than criminal law, such as administrative law. In this context, citizens are obliged to cooperate with the law enforcement authorities by sharing information, without being able to invoke the privilege against self-incrimination or the right to silence. This obligation can put individuals in a difficult legal position when this information ultimately could lead to a suspicion of a crime. Is the legal obligation to cooperate still applicable and enforceable in such a situation, despite the fact that the individual concerned might incriminate himself by providing information? The answer is affirmative; he

21 See for further details section 4. 22 See further on this interrelation Bemelmans 2018, p. 99-101.

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still has to cooperate. However, when this information ultimately gives rise to criminal proceedings or to a punitive administrative sanction (e.g. an administrative fine), the information which has been obtained under the threat of this legal obligation to cooperate may not be used as evidence in the context of this criminal charge.23 Furthermore, logically the right to silence only applies to (oral) statements. Here it should be recalled, however, that the overarching privilege against self-incrimination is also limited in its scope. According to case law of the ECtHR, material obtained from the accused through recourse to compulsory powers but which has an existence independent of the will of the suspect – such as documents, breath, blood and urine samples, and bodily tissue for the purpose of DNA-testing – falls outside the scope of the privilege.24 This means that the suspect has to cooperate or at least refrain from resisting against the exercise of compulsory powers in relation to material that has an existence independent of the will of the suspect. Therefore, the right to silence and the related privilege against self-incrimination are at the outset significantly limited in their scope. Although this distinction may be self-evident, it may also lead to rather curious and somewhat arbitrary situations, for instance when it comes to unlocking a smartphone. Because of the right to silence, a police officer cannot force a suspect to give the password of his smartphone; according to some lower courts in the Netherlands, however, a police officer is entitled to unlock the same smartphone by pressing the suspects finger(print) on the device.25

23 See Saunders v. United Kingdom, ECtHR (GC) 17 December 1996, no. 19187/91, § 74: ‘It is noteworthy in this respect that under the relevant legislation statements obtained under compulsory powers […] cannot, as a general rule, be adduced in evidence at the subsequent trial of the person concerned.’ See for further details R. Stijnen, Rechtsbescherming tegen bestraffing in het strafrecht en het bestuursrecht. Een rechtsvergelijking tussen het Nederlandse strafrecht bestraffende bestuursrecht, mede in Europees perspectief (diss. Rotterdam), Deventer: Kluwer 2011, p. 616-627. 24 See Saunders v. United Kingdom, ECtHR (GC) 17 December 1996, no. 19187/91, § 69, and O’Halloran and Francis v. the United Kingdom, ECtHR (GC) 29 June 2007, nos. 15809/02 and 25624/02, § 47. 25 See e.g. District court of Noord-Holland 28 February 2019, ECLI: NL: RBNHO: 2019:1568, § 3.4.

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5. Ways to circumvent the right to silence As we have discussed earlier, the right to silence is considered a fundamental right, which also has a firm legal basis in the Dutch Code of Criminal Procedure. This does not mean however, that this right is absolute and does not allow for any exceptions.26 As will become apparent in this section, several ways exist to circumvent this right or to limit the effects of a defendant invoking his right to silence. Examples are the use of (some forms of) trickery or the drawing of negative inferences from the defendant’s decision not to give a statement or to provide additional information to substantiate his version of what happened.

5.1 Use of trickery One example of circumventing the right to silence is the use of trickery during the investigation. In the Netherlands, much debate arose over a particular case in which the police tricked the defendant into providing incriminating information. It concerned a robbery on a house during the night where the inhabitants were threatened. Because the police had not made any progress in the investigation of the crime, they decided to make mention of an imaginary loot in the interrogation of the suspect for the sole purpose of getting the conversation going between him and the other suspect in this case (who were brothers) afterwards. Before doing so they placed monitoring equipment in the taxi which brought them both home following the police interrogations. The monitored conversations showed that both brothers were indeed involved in the robbery, as the police suspected.27 In the Netherlands, the technique or strategy employed by the police is known as the ‘ruisstrategie’ (literally translated: ‘noise strategy’). This method is characterized by the police giving false information to the suspect in order to elicit incriminating information from the suspect that could help forward the investigation. In other words, the police creates ‘noise’ or disturbance in the hope that the suspect acts upon it, for example by speaking to others or looking on the internet. The noise or disturbance

26 See e.g. John Murray v. the United Kingdom, ECtHR (GC) 8 February 1996, no. 18731/91, § 47; and Ibrahim and Others v. the United Kingdom, ECtHR (GC) 13 September 2016, no. 50541/08, § 269. 27 See Supreme Court of the Netherlands 9 January 2018, ECLI:NL:HR:2018:18.

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is part of a technical plan in which the police monitors the behavior of the suspect by using monitoring equipment, for which permission of the public prosecutor and in some cases the investigative judge is necessary. There is no information available on how often the police uses this type of strategy, and it surfaces in newspaper articles and in the jurisprudence only occasionally. Apparently, the police employ a wide variety of tactics, mostly in cases in which the investigation is deadlocked. Another tactic employed by the authorities is the publication of fake news. In a case involving a prostitute who had been badly beaten up while being robbed, the police used this tactic by publishing a fake article in the local newspaper, which reported a possible breakthrough in the case.28 To make sure that the suspect would read the paper, the police delivered the paper to the suspect’s house themselves, already unfolded at the page of the article, to ensure that the defendant would see it. In the following days, the police intensively monitored the suspect’s telephone and internet communications, in the hope that he would incriminate himself, without success however. Another tactic is to create disturbance among family members of the suspect by giving them false information in the hope this would lead the suspect to talk. For example, the police used this tactic in a case of maltreatment of a baby, leading to its death. In this case, the police withheld the autopsy report for some time, placed monitoring equipment in the house and bedroom of the suspects (the parents of the baby), and then sent a letter to the parents stating that the autopsy report was ready and expressing the wish to discuss this within the family circle. The meeting never took place, but the Court of Appeal ruled that this type of (mild) deception was allowed in light of the severity of the accusations.29 On 9 January 2018, the Dutch Supreme Court ruled in the case of the imaginary loot set out above that the use of this tactic within the formal context of an interrogation to elicit information from the suspect is permitted under certain circumstances, although this method does not have a statutory basis.30 This is because the tactic entails only a limited violation of the rights of the suspect and, in this form, moreover, does not pose a risk to the integrity and controllability of the police investigation. The Supreme Court highlighted the fact that it concerned a very serious offence in which other investigative measures did not have the desired effect, 28 See District Court Noord-Nederland 18 May 2017, ECLI:NL:RBNNE:2017:1824. See for another example in which the police published a fake online article: District Court Oost-Brabant 8 December 2016, ECLI:NL:RBOBR:2016:6805. 29 See Court of Appeal Amsterdam 8 March 2019, ECLI:NL:GHAMS:2019:787. 30 See Supreme Court of the Netherlands 9 January 2018, ECLI:NL:HR:2018:18.

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that the prosecutor had given permission to use this method and that there was an adequate report, which enabled judicial scrutiny. In other words, the Supreme Court gave its approval to this type of method in the specific circumstances of the case, where there is a lot at stake. The fact that the police lied and that they elicited a statement against the will of the suspect was not considered a violation of article 29, paragraph 2 DCCP (setting forth the prohibition on the use of coercion). However, this was a rather mild form of deception, not accompanied by any form of pressure. Whether the suspect would speak or how things would develop, was outside the range of influence of the police and the prosecutor.31

5.2 The ‘Mr. Big’ technique Another form of trickery used to elicit a statement and thereby circumvent the right to silence, is the use of the so-called ‘Mr. Big’ technique.32 This technique is of an entirely different order and scale. Where the police in the previous strategy only uses noise or fake information to disturb the status quo and set things in motion, in this type of method the police actively tries to obtain a confession, by creating a fake criminal organisation in which the unknowing suspect gradually can secure a position for himself. After undercover agents befriend the suspect and the suspect becomes more involved, he is seduced into confessing to the leader of this fictitious organisation (the so called ‘Mr. Big’) who can make all his problems disappear. This kind of undercover operation was developed in Canada and can appropriately be characterized as a ‘non-custodial interrogation procedure’.33 In so far as can be derived from published case law, the Mr. Big technique has been employed in at least two cases in the Netherlands.34

31 However, in these cases there is a certain risk, since the fact that one person believes that the other has secretly taken part of the loot, may lead to repercussions. 32 See also C. Ganzeboom, ‘De Mr. Big-methode: een uitzondering op het zwijgrecht?’, DD 2019/52 en P.J. Van Koppen en R. Horselenberg, ‘Van toneelspelende politiemensen en onwetende verdachten die bekennen tegen Mr. Big’, Strafblad 2018/19. 33 See in more detail S.M. Smith, V. Stinson & M.W. Patry, ‘Using the ‘Mr. Big’ technique to elicit confessions: Successful innovation or dangerous development in the Canadian legal system’, Psychology Public Policy and Law 2009, 15/3, p. 168-170. See also: E.W. Kruisbergen, Combating organized crime: A study on undercover policing and the follow-the-money strategy (diss. VU Amsterdam), 2017. 34 See Court of Appeal ’s-Hertogenbosch 5 February 2018 ECLI:NL:GHSHE:2018: 421 (Kaatsheuvel case) with conclusion of Attorney General Machielse 25 Septem-

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One of these cases was the Kaatsheuvel case, which concerned the murder of a woman, mother of two children. In this case the husband was suspected due to – among other things – the incongruities in his statement and the fact that he was having an affair with another woman who was pressuring him to choose between her and his wife. The suspect had been put in pre-trial detention, but there was not enough evidence to prosecute him and he had to be released after three months. From that moment the investigation apparently stopped. Three years had passed, when two persons, Katja en Joep (in reality undercover agents of the Dutch police), rang at the suspect’s door telling him that they had accidentally collided with his car. After this initial contact was made, they gradually became friends and the suspect did more and more assignments for the security company owned by Joep. When, after some time, the suspect asked for a permanent position within the company, Joep told him that he first had to have an interview with the big boss of the company, Philipe, who lived in a villa in Marbella. Both men travelled to Spain. During their trip, Joep told the suspect that he had once run over and killed a woman and Philipe solved all his problems with the authorities. In the interview, Philipe asked the suspect to give full disclosure on the case of the murder of his wife, which Philipe had heard about via corrupt sources within the Dutch police. Philipe told the suspect that he could only work for him if he told Philipe the whole story, in order to avoid any future surprises, and Philipe offered to help the suspect arrange an alibi or to fabricate evidence against someone else. At the same time, Philipe warned the suspect that if he did not tell him what had happened, he would lose his position within the organization and the lucrative jobs he was doing. At first, the suspect did not make a confession to Philipe, but during a second interview – after having spoken to Joep – he finally did. Altogether, the whole operation took a year. After the police arrested the suspect, he retracted his confession saying that Philipe pressured him into confessing and he had just put up a show.35

ber 2018, ECLI:NL:PHR:2018:1042 and Court of Appeal Arnhem-Leeuwarden 15 March 2018, ECLI:NL:GHARL:2018:2415 (Posbank case) with conclusion of Attorney General Bleichrodt 18 June 2019, ECLI:NL:PHR:2019:648. 35 The details of the case are partly derived from D. Aben, ‘De twee sirenen van het bewijs: over daderkennis en over ongewilde bekentenissen (aan Mr. Big)’, Expertise en Recht 2020/1; and from Van Koppen en Horselenberg 2018. See for more details: Court of Appeal ’s-Hertogenbosch 5 February 2018 ECLI:NL:GHSHE:2018: 421 with conclusion of Attorney General Machielse 25 September 2018, ECLI: NL:PHR:2018:1042.

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The problem with this kind of operation, apart from the fact that they are very costly and time-consuming, lies in the relatively high risk of eliciting false statements in comparison to interrogations that take place within the normal setting of a police station. Part of the technique is that the suspect is lured into a situation in which he has much to gain when he confesses and much to lose when he refuses to do so. In other words, the incentive to confess is very large, especially because the suspect might feel obliged to do something in return for all the benefits he has already received and might feel intimidated by an organization with a history of violence.36 Not only is the reliability of the confession at stake, there is also the problem that it is not easy for a suspect to just walk away, because of the financial and social allurements of being part of this organization and the possible consequences of leaving. This raises the question of whether the confession could be considered to have been made voluntarily. Recently, the Dutch Supreme Court ruled in both cases in which the Mr. Big technique was employed, annulling both decisions and referring them back to the Court of Appeal.37 In both cases, the evidence rested heavily upon the confession made during the undercover operation. The Dutch Supreme Court attaches importance to the following factors when determining whether the confession was made voluntarily or not: a) the course of the investigation; b) to what extent the police put psychological pressure on the suspect; c) if applicable, the position originally taken by the suspect in relation to the facts he was suspected of (i.e. whether he exercised his right to silence); d) the degree and form of trickery used during the operation; e) the degree of interference of the undercover agents regarding the content of the statement made by the suspect; f) the duration and intensity of the operation; g) the tenor and frequency of the communications with the suspect; and h) the positive or negative consequences of clarifying or not clarifying certain aspects of the case, as portrayed to the suspect. 36 See the conclusion of Attorney General Machielse 25 September 2018, ECLI: NL:PHR:2018:1042, § 27. In these type of undercover operations agents make also use of minimization and maximization strategies in which the severity of the crime and the consequences of confessing are minimalized (because Mr. Big will help to dispose of the evidence or solve the problem with justice), while the consequences of denial are maximized (because then the defendant cannot reach the higher echelons of the organization and might lose his friends and lucrative business). See W.D. Woody and K.D. Forrest, Understanding police Interrogations: Confession and Consequences, New York: New York University Press 2020, p. 100. 37 See Supreme Court of the Netherlands 17 December 2019, ECLI: NL: HR: 2019: 1982 and ECLI:NL:HR:2019:1983.

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In both cases, the Courts of Appeal had ruled that the confessions were made voluntarily. In light of the foregoing criteria, however, the Dutch Supreme Court found that the appellate courts had not adequately motivated their decisions. The question is whether, in light of the Supreme Court’s findings in these cases, this type of method fits within the Dutch criminal justice system and could be employed in the future. Looking at the foregoing criteria and the strictness with which the Supreme Court evaluated the reasoning adopted by the appellate courts, there does not seem to be much leeway for the police in this regard. At the same time, the Supreme Court did not rule that these methods are by definition incompatible with the right to silence. When looking at the recent jurisprudence on the noise strategy and the Mr. Big method, it is clear that the Dutch Supreme Court does not object to the use of techniques aimed at eliciting involuntary and incriminating information from the suspect in cases in which the suspect had previously elected to remain silent. The use of undercover methods always involves an element of deception. Illustrative in this regard is the (older) jurisprudence on the jail-informant.38 What is new, however, is that the Dutch Supreme Court allows for (mild forms of) trickery or deception within the formal setting of the interrogation and that in the Mr. Big cases, the Supreme Court set boundaries for the police in this regard. The question is now which rationale for the right to silence the Dutch Supreme Court is protecting in the Mr. Big case law. From the aforementioned case on the imaginary loot we may deduce that the protected rationale is not the autonomy of the suspect to decide whether or not to cooperate with the authorities by making a statement. Most likely, the concerns of the Supreme Court have more to do with the reliability of the information the police so cunningly obtained. In the case of the imaginary loot, this was not a problem because the police could rely on the fact that only a truly guilty person would act upon this information (others would not have known what the perpetrators took away). As we already addressed, the Mr. Big method does pose a serious risk to the reliability of the information provided, especially because that information cannot be said to have given spontaneously. There are of course strategies that courts can use to assess the reliability of the confession, for example, assessing whether the information provided by the suspect is information that only a true

38 See Supreme Court of the Netherlands 9 March 2003, ECLI: NL: HR: 2004: AN9195.

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perpetrator could possess (so called ‘guilty knowledge’).39 If the remains in a murder case are missing and the confession of the suspect leads to their discovery, the reliability of the confession can be established in retrospect. However, the fact that the Supreme Court does not mention reliability as a factor to be taken into account in determining whether the confession was made voluntarily, might suggest that this is not the only rationale that the Supreme Court is seeking to protect.40 Perhaps we must also consider this in relation to what a suspect, who is presumed innocent until proven otherwise, has to endure. The right to silence and the presumption of innocence also protect the innocent suspect from constant and endless harassment by the police. The methods used in the Mr. Big cases encroach deeply on the personal lives of the suspects involved, while there is no certainty as to their guilt. If that certainty were to exist, there would be no need for such a costly and time-consuming operation.41 In other words, the right to silence (as a counterpart of the prohibition on the use of coercion directed to the police), may also be viewed as a right not to be pressured by the police, at least not unduly so. In our view, this is a different rationale to the autonomy rationale, which is concerned with the suspect’s ability to choose whether or not to cooperate with the investigative authorities.42

5.3 Adverse inferences Another example of circumventing or at least limiting the effects of a suspect or accused invoking his right to silence is the drawing of adverse inferences (negative conclusions) from his decision to remain silent or not provide information to support his version of the events. The right to silence implies that the accused can choose freely whether to give a statement and that that choice should not be used against him. When judges deduce from the accused’s silence that there is nothing to count in his favor and use this to establish the accused’s guilt, moreover, they discourage those who may

39 In the Posbank case the Court of Appeal had explicitly explained that the confession was reliable because it was corroborated with other independent evidence and the defendant had so-called ‘guilty knowledge’. See Court of Appeal ArnhemLeeuwarden 15 March 2018, ECLI:NL:GHARL:2018:2415. 40 See also Aben 2020, p. 8. 41 This would not meet the criteria of proportionality and subsidiarity the legislator and the Supreme Court set for the use of undercover operations. 42 See section 3.

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rely on it from doing so.43 Nevertheless, although the use of adverse inferences encroaches on the right to silence, the ECtHR allows for it under certain circumstances on the basis that the right to silence is not an absolute right. Adverse inferences are permitted, as long as they do not violate article 6 ECHR and the fairness of the procedure as a whole. The Court does, however, state that the right to silence lies ‘at the heart of the notion of a fair procedure under article 6’44 and therefore limits the ability of domestic courts to draw adverse inferences from the silence of the accused. While the ECtHR stipulates that ‘it is incompatible with the right to silence to base a conviction solely or mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself’, it is allowed in situations ‘which clearly call for an explanation’.45 Put differently, adverse inferences are permitted ‘provided that the evidence is such that the only commonsense inference to be drawn is that the accused has no answer to the case against him’.46 The question remains as to what exactly the silence of the accused proves. That the accused does not wish to give a statement does not mean he is guilty. He could well have other motives for not giving a statement. Interesting in this regard is the research of Kassin suggesting that ‘actual innocence’ can be more of a handicap in the procedure, because – among other things – innocent people may believe naively ‘in the transparency of their innocence’.47 In other words, courts should be careful not to place too much weight on the fact that the accused has not provided a satisfactory explanation. In any case it is clear that the fewer limitations there are on the use of adverse inferences, the more the right to silence is eroded. It is

43 See Bemelmans 2018, p. 253-258. 44 See for example John Murray v. the United Kingdom, ECtHR (GC) 8 February 1996, no. 18731/91, § 45 and Bykov v. Russia, ECtHR (GC) 10 March 2009, no. 4378/02. 45 See e.g. John Murray v. the United Kingdom, ECtHR (GC) 8 February 1996, no. 18731/91, § 47; Telfner v. Austria, ECtHR 20 March 2001, no. 33501/96, § 18; and Natunen v. Finland, ECtHR 31 March 2009, no. 21022/04, § 54. 46 See Telfner v. Austria, ECtHR 20 March 2001, no. 33501/96, § 17; Krumpholz v. Austria, ECtHR 18 March 2010, no. 13201/05, § 33. The ECtHR uses the first criterion (clearly calls for an explanation) in cases from common law systems, and the second in relation to civil law countries. See G.H. Meijer en R. ter Haar, ‘Zwijgrecht en procesopstelling: het toenemende belang van het uitblijven van een aannemelijke verklaring op de bewijsbeslissing’, TPWS 2018, § 2. 47 According to this research innocent persons also ‘elicit highly confrontational interrogations’, despite or because of their denials. See S.M. Kassin, ‘On the Psychology of Confessions: Does Innocence Put Innocents at Risk?’, American Psychologist, 2005-3, p. 215–228.

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understandable, therefore, that under the case law of the ECtHR, the case against the accused must be quite strong before courts are allowed to take the accused’s silence into account adversely. The ECtHR speaks of a ‘formidable’ or ‘prima facie’ case in this regard.48 According to the ECtHR, the expression ‘prima facie case’ in the Anglo-Saxon context was intended ‘to denote a case which is strong enough to go to a jury – i.e. a case consisting of direct evidence which, if believed and combined with legitimate inferences based upon it, could lead a properly directed jury to be satisfied beyond reasonable doubt ... that each of the essential elements of the offence is proved.’49 Somewhat paradoxically, therefore, the ECtHR appears to permit the use of adverse inferences in circumstances in which they are not needed to secure a conviction.50 According to the ECtHR, the fact that the accused did not give an explanation may only ‘be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution’.51 In the case law of the Dutch Supreme Court, however, it seems that adverse inferences may play a greater role than that envisaged by the ECtHR. In the Netherlands, the position adopted by the accused in terms of whether to give a statement has become increasingly important in the past years. Although the Dutch Supreme Court explicitly states that the silence of the accused is not considered to constitute evidence as such, the Court has, in recent case law, highlighted the fact that if the accused cannot (or will not) give a reasonable explanation that could refute the probative value of the evidence against him, the court may take this into consideration.52 The question that then arises is whether the silence can also be used to ‘mend’ a hole in the ‘evidentiary construction’. In other words: is the use 48 See regarding the (subtle) difference between both criteria Meijer & Ter Haar 2018, § 3. See in this regard also Supreme Court of the Netherlands 5 May 2012, ECLI:NL:HR:2012:BW7372. 49 See John Murray v. the United Kingdom, ECtHR (GC) 8 February 1996, no. 18731/91, where lord Mustill from the Irish court is quoted. 50 See about this contradiction also the concurring opinion of Wojtyczek in the case of O’Donnell v. the United Kingdom, ECtHR 7 April 2015, no. 16667/10: ‘The explanations of the accused are simultaneously seen as necessary, as the situation calls for an explanation, and unnecessary, as there is other strong evidence on which to base his conviction. If in a specific case there is sufficient evidence to decide a case without drawing any inferences from the accused’s silence, then there is no need to resort to any adverse inferences from his silence in deciding the case.’ 51 See John Murray v. the United Kingdom, ECtHR (GC) 8 February 1996, no. 18731/91, § 47 (emphasis added). 52 See Supreme Court of the Netherlands 28 November 2017, ECLI: NL: HR: 2017: 3022 and Supreme Court of the Netherlands 5 July 2016, ECLI: NL: HR: 2016: 1315.

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of adverse inferences allowed in cases in which the available evidence does not (provisionally) prove the guilt of the accused? In his concurring opinion in the ECtHR case of O’Donnell v. the United Kingdom, Judge Wojtyczek reflected on this question as follows. ‘From the viewpoint of the protection of various public interests, limitations on the right to silence might only have an added value if there are difficulties with establishing the facts, especially if the evidence produced is insufficient for the guilt of the accused to be ascertained whereas there is a serious risk that an offence may go unpunished. In other words, inferences from the silence of the accused may appear necessary only if, in some types of cases, they may tip the balance in the process of establishing the facts.’53 It is difficult to discern from the case law of the Dutch Supreme Court and the ECtHR how strong a case must be before a court is allowed to draw adverse inferences and what weight can be attached to the suspect’s silence. It is clear, however, that the Supreme Court is sailing close to the wind on this matter. The case law on participation or co-perpetration (entailing the cooperation of two or more people in committing an offence) is particularly illustrative in this regard. According to the case law of the Dutch Supreme Court, a person may be held liable as a full perpetrator (or co-perpetrator) if his intellectual and/or material contribution to the criminal act is of sufficient weight.54 If not, he can only be convicted as an accomplice or be acquitted. This case law poses serious evidentiary problems in cases in which it was not quite clear what the exact role of each person involved was. In those cases, the position adopted by the accused plays an important role. This is illustrated by a case regarding the burglary of a dentist’s surgery where a laptop was taken away.55 A short time after the burglary, the police discovered a car near the surgery with several passengers in it.

53 See the concurring opinion of Wojtyczek in the case of O’Donnell v. the United Kingdom, ECtHR 7 April 2015, no. 16667/10. 54 According to Supreme Court of the Netherlands 16 December 2014, ECLI: NL: HR:2014:3637, § 3.2.1-3.2.3, relevant factors in this regard are: ‘the intensity of the cooperation, the division of tasks in the criminal enterprise, the role of the accused in the preparation, the execution or settlement of the crime and the importance of the role of the accused and his presence at key moments’. This translation is extracted from Van Kempen, Krabbe & Brinkhoff 2019, p. 91. 55 See Supreme Court of the Netherlands 28 November 2017, ECLI: NL: HR: 2017: 3022.

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When the police officers followed the car, the driver tried to shake them of, while the passengers threw burglars’ tools out of the window. After stopping the car, the police found the laptop from the surgery in the car and arrested all of the passengers. The Court of Appeal convicted the accused as a co-perpetrator of the burglary, taking into account that he had not given a reasonable explanation for his presence in the car. The Dutch Supreme Court confirmed this conviction, although there was no direct evidence placing the accused at the crime scene, nor was there direct evidence that more than one person had committed the theft. From this case law, we can conclude that, under certain circumstances, the silence of the accused can be essential for securing a conviction. This is especially so when the court is unable to establish whether the accused has made a significant contribution, which is a prerequisite for a conviction as a full perpetrator. Since, in those cases, the accused is the only one who can clarify his role, the choice to remain silent can be detrimental to the accused’s case.56 As a result, someone who is actually an accomplice, can be considered a full perpetrator unless he can show that his role was minor.57 However, this is only possible within strict conditions, e.g. when the suspect has been found in very suspicious circumstances shortly after the offence has occurred.58 In the case of the dentist’s surgery, it seems the Supreme Court even went a step further, because in that case, there was no direct evidence of the accused’s involvement. It might have been the case that the accused did not have any part in the theft (for example, because he had remained in the car while his friends went out stealing). However, when the accused does not wish to give a statement and there are no indications that he was not involved, under this case law, he can be convicted as (full) perpetrator.59 The question is why, in its recent case-law, the Dutch Supreme Court has given more leeway to judges to draw negative inferences from the position of the accused. It might be due to the sharpening of the criteria on co-perpetration in 2014, pursuant to which, in order to be convicted as a

56 See also Meijer & Ter Haar 2018, § 9. 57 See also the annotation of Wolswijk under the ruling of the Supreme Court of the Netherlands 28 November 2017, ECLI:NL:HR:2017:3022, NJ 2018/310. 58 See Supreme Court of the Netherlands 5 July 2016, ECLI:NL:HR:2016:1315, and Supreme Court of the Netherlands 5 July 2016, ECLI:NL:HR:2016:1323, § 4.3.2. 59 See Supreme Court of the Netherlands 28 November 2017, ECLI: NL: HR: 2017: 3022, § 2.3.3. In Supreme Court of the Netherlands 5 July 2016, ECLI: NL: HR: 2016:1319, there were contraindications because the accused did not fit the description of the persons who committed the theft.

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full perpetrator, there should be a contribution of significant weight. The purpose of this sharpening was to delineate more clearly the roles of the full perpetrator and the accomplice, but it also raises the standard for all cases in which more than one person is involved in the criminal act. The sharpened criteria could lead to problems (and perhaps acquittals) in cases in which the defendants elect to remain silent and the court can establish neither capacities, because each person’s part remains unclear. The approach of the Dutch Supreme Court helps to overcome these evidential problems. Another explanation that is perhaps more plausible, is the fact that since 2010, the suspect has access to a lawyer before the interrogations starts. Research has shown that the police are of the impression that suspects are increasingly invoking their right to silence, which they attribute (in part at least) to the aforementioned development. Although the research on this topic is somewhat ambiguous, the willingness of suspects to give a statement does seem to have diminished in recent years.60 The question is whether the Supreme Court has been compensating for this or has had other reasons to loosen the reins somewhat. Arguably, it is more justifiable (or at least: less problematic) to allow for the drawing of adverse inferences if this person has had the benefit of legal assistance and has had the opportunity to make an informed decision as to whether to invoke his right to silence. Nevertheless, all this remains speculative in the absence of an explanation from the Supreme Court, but it is hardly surprising that this case law has come at this point in time.

5.4 Evidentiary presumptions Another way of circumventing the right to silence, and lighten the burden of proof on the prosecution, is the use of an evidentiary presumption (also called a presumption of fact). These allow courts to assume a fact is true unless there is evidence to prove otherwise. The basis of this presumption are the other facts at hand that make the presumed fact more likely, because there is an (assumed) causal or statistical connection between the established facts and the assumed fact.61 The fact that it is a presumption implies that the court must take into account that things could be different than they appear to be at first sight. However, it is up to the accused to re-

60 See C.M. Klein Haarhuis, Lange termijnmonitor raadsman bij het verhoor, Wetenschappelijk Onderzoek- en Documentatiecentrum Cahier 2018-16. 61 See Bemelmans 2018, p. 137.

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but the presumption and to claim that it does not apply in his specific case. Therefore, it shifts the burden of proof from the prosecutor to the accused and has, in this regard, direct consequences for the exercise of the right to silence. After all, it means that the innocent accused cannot invoke his right to silence without risking a wrongful conviction.62 The question is when the use of this type of evidentiary presumption is permitted. The case law of the ECtHR allows quite a lot leeway in this regard, as long as the use of these presumptions stays within reasonable limits.63 At the same time, however, the case law of the ECtHR gives little guidance to national courts as to when these limits will have been exceeded.64 The Dutch system also lacks a clear framework for answering these type of questions. In the Netherlands, courts explicitly use evidentiary presumptions in cases of money laundering. The law states that to convict someone for money laundering, the money or goods in question must have originated from a criminal offence (see article 420bis of the Dutch Criminal Code). However, the court does not need to establish the specific criminal offence from which the money or goods have originated.65 When it is not possible to establish a direct connection with a specific criminal offence (such as theft), the court may nevertheless establish that the object at stake has a criminal origin if there is no other reasonable conclusion.66 Another prerequisite for a conviction is that it is established that the accused was trying to conceal the origins of the money or goods. Because this is difficult to prove, judges may use so called ‘money laundering typologies’; these are specific circumstances or characteristics which are indicative of laundering. From these more or less objective characteristics, a suspicion of money laundering may be derived. For example, when the police stops someone at the border with a large amount of cash, this might be an indication that he is involved in money laundering. The line of reasoning is that normally people do not carry such large amounts of cash because of the safety risks involved. This, therefore, calls for an explanation. If the accused fails to provide such a reasonable explanation, the presumption of money laundering will easily shift to

62 63 64 65

See Bemelmans 2018, p. 377. See for example Salabiaku v. France, ECtHR 7 October 1988, no. 10519/83. See Bemelmans 2018, p. 252. See Supreme Court of the Netherlands 27 September 2005, ECLI: NL: HR: 2005: AT4094. 66 See Supreme Court of the Netherlands 29 March 2011, ECLI: NL: HR: 2011: BO2628 and Supreme Court of the Netherlands 18 December 2018, ECLI: NL: HR:2018:2352.

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proof of money laundering. The judge is justified in doing so, since the assumption is that an innocent person would provide a reasonable explanation for carrying such a large amount of money. However, the judge can only call for an explanation from the accused after the prosecution has provided enough evidence to establish a justified suspicion of money laundering. Moreover, when the accused gives such an explanation, it is up to the prosecutor to further investigate the given scenario.67 After all, a conviction is only possible when the court can reasonably exclude the possibility that the money or goods at stake had a legal origin. Nevertheless, the duty of the prosecutor to initiate further investigations only exists if the accused provides a concrete and verifiable explanation that is not highly unlikely at first sight.68 If the accused remains silent or does not provide such an explanation (such as to trigger the duty to conduct further investigations), the burden of proof will be met and the alleged fact may be established. Although the case law of the Dutch Supreme Court provides some guidance for the judge, it remains unclear in which circumstances the judge may use an evidentiary presumption or draw adverse inferences from the silence of the accused. In particular, it remains unclear how strong the case needs to be before the judge may use these methods. The lack of clarity may partly be explained by the inquisitorial roots of the Dutch criminal justice system, in which the judge has historically played an active role and is therefore not (solely) dependent on the information provided to him by the parties and the stance they take in relation to that information.69 Although the prosecutor is expected to make his case and to provide incriminating evidence, there is no formal burden of proof. Nor is there an obligation for the defence to actively contribute to the process of truth-finding or to provide exculpatory evidence. In the case of the money laundering, one could argue that, strictly speaking, there is no actual reversal of the burden of proof. After all, if the accused provides a reasonable explanation, it is up to the prosecutor to initiate additional investigations to verify this explanation.70 At that point, the defence is not expected to make any further ef-

67 If he does not wish to investigate further, the case probably will result in an acquittal, because the court cannot reasonably exclude the possibility that the money had legal origins. 68 See Supreme Court of the Netherlands 13 July 2010, ECLI:NL:HR:2010:BM0787. 69 See Bemelmans 2018, p. 86. 70 The Supreme Court also states that the accused cannot be required to prove that the object does not have a criminal origin. See Supreme Court of the Netherlands 18 December 2018, ECLI:NL:HR:2018:2352.

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Erosion of the Right to Silence in Dutch Criminal Justice?

fort.71 Initially, however, it is up to the accused to provide some information. If the accused does not provide a concrete and verifiable explanation which is not highly unlikely at first sight, the prosecutor may remain passive, because the judge has enough reasons to convict. The fact that the accused has to provide some information when there is a strong suspicion against him, may in itself be an infringement of the right to silence, but it is not a (full) reversal of the burden of proof.

6. Conclusion In light of the various ways in which the right to silence may be circumvented – as set out in the previous section – the question arises as to what is left of the meaning of the right to silence in the Netherlands. Put differently: What could be said about the rationale for the right to silence, given the apparent acceptance of these circumventions in European and Dutch case law? Are these rationales still wholeheartedly embraced as interests worthy of protection through the right to silence, or has their (relative) weight gradually changed in the course of time? And if the latter is the case, which factors could explain this development? In this final section, we will try to give a beginning of an answer to these questions. First of all, it is important to note that the right to silence itself and the way it is embedded in the European and Dutch legal framework have not changed recently. The right to silence is still considered a fundamental right, with strong ties with other fundamental principles, such as the right to a fair trial, the presumption of innocence and the privilege against selfincrimination. In 2016, the importance of the right to silence as a fundamental right was even further stressed by adopting the EU Directive on the presumption of innocence.72 Furthermore, it should be stressed that although the ECtHR considers the right to silence to be fundamental, it does not constitute an absolute right. The John Murray-case law of the EC-

71 See the annotation of Reijntjes under the decision of the Supreme Court of the Netherlands 9 July 2019, ECLI:NL:HR:2019:1137, NJ 2019/350. 72 See Article 7 of the Directive 2016/343/EU of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, OJ 2016, L 65/1.

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tHR on the admissibility of drawing adverse inferences, which dates from the mid-nineties of the last century, is a case in point.73 The proper question, therefore, is in which direction the right to silence is moving in the Netherlands: towards a stricter interpretation or towards a looser attitude? In light of the foregoing, it should come as no surprise that the answer to this question is not entirely clear-cut. On the hand, the right to silence has effectively been strengthened by introducing the right of access to a lawyer at the time of questioning, while on the other hand, the case law of the Dutch Supreme Court increasingly allows for the circumvention or infringement on the right to silence. As discussed in the previous section, this case law undoubtedly reveals a more liberal approach to the right to silence. Not in terms of the question of whether the suspect or accused is allowed to invoke his right to silence – which he certainly is – but in terms of the admissibility of means to circumvent his silence or of attaching negative consequences thereto. There are certainly limitations, but the analysis of the recent case law shows that the Supreme Court allows the trial judge quite a lot of leeway in adopting methods that in one way or another erode, circumvent or infringe on the right to silence. As to what this all says about the rationales underlying the right to silence, looking to the European and Dutch case law, protecting the suspect or accused against undue pressure still seems to be considered of paramount importance. For instance, in the two Mr. Big cases discussed above, the Dutch Supreme Court annulled the previous decisions of the Courts of Appeal, because the grounds on which they had decided that the statements of the accused elicited by the Mr. Big technique were made voluntarily, fell short. These decisions of the Supreme Court seem to reveal that the need to protect the suspect or accused from undue pressure still carries much weight in determining whether the right to silence has been respected. They also underline that undue pressure need not be the result of violence or threats during the interrogation, but may also be caused by a combination of specific circumstances, as was the case in the Mr. Big cases. The same holds true for the interest of reliable truth-finding and the prevention of miscarriages of justice. When the reliability of the outcome of a certain method is at stake, courts will be prepared to exclude these outcomes for epistemological reasons. This does not mean, however, that any method posing a certain risk to the reliability of the statements made by the suspect or accused will be set aside by the court. When the statements

73 See John Murray v. the United Kingdom, ECtHR (GC) 8 February 1996, no. 18731/91.

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Erosion of the Right to Silence in Dutch Criminal Justice?

of the suspect elicited by the contested method are corroborated by other sources of evidence, the statements may well be allowed as evidence anyway, provided that the statements do not have to be excluded because of other reasons, such as the exercise of undue pressure. The fact that the interest of reliable truth-finding is still considered of paramount importance may further be illustrated by the case law on the use of adverse inferences and of evidentiary presumptions. As explained in the previous section, these instruments are only allowed in evidentially strong cases, as apparent from the ECtHR’s case law in particular. To a certain extent, this restraint may be explained by the wish to grant the suspect or accused a certain degree of autonomy to determine his own position during criminal proceedings – only in strong cases would it appear to be reasonable to demand that the suspect or accused gives a statement – but it certainly also has an epistemological background. Using adverse inferences and evidentiary presumptions rashly would undoubtedly increase the risk of unsafe convictions. In that perspective, it is quite worrisome that the Dutch Supreme Court appears to have loosened the reins when it comes to using adverse inferences and evidentiary presumptions. The rationale for the right to silence which seems to have ‘suffered’ most under the recent case law, is respect for the autonomy of the suspect or accused to choose his position and strategy in criminal proceedings, as an indispensable part of the right to a fair trial. The Supreme Court’s case law on the use of trickery is particularly illustrative in this regard; had the Supreme Court attached more importance to the autonomy rationale, it would have taken a less liberal approach to milder forms of trickery as used in the case of the imaginary loot and would have imposed an outright ban on more serious forms of trickery such as the Mr. Big technique. It did not, however, which may be interpreted as a signal that the wish to grant the suspect or accused full autonomy during criminal proceedings when it comes to his own strategy or position, certainly has its limitations in the sense that this desideratum may be balanced against other interests, such as the interests of the investigation or the prosecution. The practice of drawing adverse inferences and evidentiary presumptions also show that respect for the autonomy of the suspect or accused is not endless. Provided the case is strong enough from an evidentiary perspective, it is not considered unreasonable to expect the suspect or accused to speak up. The next question is why the Dutch Supreme Court seems to have taken a more liberal approach with regard to the autonomy of the suspect or accused to choose his own strategy. The grounds given in the various judgments of the Supreme Court do not shed much light on this, but the fact that the legal position of the suspect or accused has been strengthened in 149

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terms of assistance of a lawyer may well be an important factor in this regard. It is not unlikely that the Supreme Court is of the opinion that a suspect or accused who has been assisted by a lawyer from the very beginning, while deserving of respect for his autonomy to make his own choices with regard to his strategy, may be held to these choices once they have been made. In this line of reasoning, it would not be considered unfair to attach consequences to the choice to remain silent, for instance, by drawing adverse inferences when all the other evidence clearly calls for an explanation. The assumption is that a suspect or accused who is assisted by a lawyer will be properly warned regarding these possible consequences and that a persistent choice to remain silent should therefore be made consciously. From the perspective of the Dutch inquisitorial system, where judges have their own responsibility for establishing the facts, this is a somewhat uncomfortable line of reasoning, given also that the suspect or accused cannot be said to bear responsibility for the process of truth-finding. By contrast, in more adversarial systems, in which the process of truthfinding is a joint responsibility of both parties, this is far more common.74 Now that, under the influence of ECtHR case law, Dutch criminal procedure is slowly but surely moving in a more adversarial direction, the Dutch Supreme Court seems to be of the view that it is justified in increasingly holding the suspect or accused to his previous procedural choices, provided that, from an evidentiary perspective, the case is strong enough to do so. To a certain extent, this encroaches on the respect for the autonomy of the suspect or accused as one of the underlying rationales for the right to silence. On the other hand, however, it would be an exaggeration to say that the foundations of the right to silence have been undermined to the extent that they are now devoid of meaning in the Netherlands. The right to silence still rests firmly on the pillars of the wish to protect the suspect or accused against undue pressure during interrogation and the quality of the process of truth-finding. Nevertheless, the more liberal approach to the rationale of respect for the autonomy of the suspect or accused to choose his own strategy does create some leeway to circumvent or curtail the right to silence. In this sense, and to this extent, it may well be appropriate to speak of the erosion of the right to silence in Dutch criminal justice.

74 See Bemelmans 2018, p. 100.

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Self-Incrimination Privilege and Interrogation. A German and Comparative View Andreas Ransiek*

I.

Interrogating the Defendant

152

1. German Police Manuals on Interrogation

152

2. Police Interrogations Techniques before the Federal Criminal Court

156

II. The Self-Incrimination Privilege in Germany 1. Statutory and Constitutional Law 2. Illegal Interrogation Techniques after Waiving the Right to Remain Silent

159 161

a) Unlawful Promises and Threats

162

b) Deception and Trickery

163

c) Severe Infringements of Free Will

166

III. Manipulative Interrogation Methods and the Truth Finding Process

168

1. Truth: Interpretation of Events

169

2. The Reality of False Confessions

174

IV. The Need to Control

V.

159

175

1. Videotaping the Interrogation

176

2. Presence of Defense Counsel

176

Conclusion

177

References

178

Abbreviations

181

* Prof. Dr. Andreas Ransiek, LL.M. (Berkeley), Professor für Strafrecht und Strafprozessrecht, insb. Wirtschaftsstrafrecht, Bielefeld University. The author would like to thank Donovan Babin, International Office, Bielefeld University, for editing this paper.

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I. Interrogating the Defendant 1. German Police Manuals on Interrogation Some scholars argue that under the Code of Criminal Procedure which came into force in 1879 for the then German Reich, the defendants’1 interrogation originally served only one purpose. It was to give defendants the opportunity to dispel suspicion.2 However, as time went on, the picture changed. Seeking the truth became another objective of interrogation, especially when the Nazis took over in 1933.3 Nevertheless, section 136 Code of Criminal Procedure continues to state that the defendant has to be given the opportunity to eliminate suspicion and to present facts in his or her favor. Whether this historical view is accurate or not,4 police manuals at least until the late 1970s show something else entirely. The defendant is hunted until he stumbles and finally lays down his arms after four or five days of interrogation.5 A German police manual from the mid 1950s characterizes police interrogation in this manner. In 1977, a German law professor advises interrogators to checkmate the defendant in order to elicit the hidden secret.6 A manual from 1970 mentions morally degenerate defendants who have to be convinced of their desolate and despicable state and who should be encouraged to confess candidly as a first proof of their remorse.7 As late as 1979, interrogation is described as besieging an impenetrable castle that has to be made ripe for attack.8 Generally, the defendant was regarded not as someone suspected of having committed the crime but as the one who actually did. Thus, he or she should be made to confess the truth. Certainly, it is difficult to tell if police or prosecutors’ interrogations actually were carried out like this with some

1 According to German law, a person either must have been formally charged by the police or the suspicion must have focused on a person to consider her or him a defendant (Beschuldigter). This is the case, e.g., if a person is under preliminary arrest for having committed the crime or if his premises have been searched because he is a suspect. Cf. BGH NStZ 2015, 291; BGH NJW 1997, 1591, 1592. 2 Degener GA 1992, 455; Weßlau ZStW 110 (1998), 34-35. 3 Degener GA 1992, 455. 4 Lesch ZStW 111 (1999), 624 et seq., 630 et seq. does not share this opinion. 5 Meinert Vernehmungstechnik, pp. 133, 180. 6 Herren Archiv für Kriminologie 1977, 131, 133. 7 Bauer Verbrechensbekämpfung, pp. 333-334. 8 Gössweiner-Saiko Vernehmungskunde, p. 13.

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Self-Incrimination Privilege and Interrogation. A German and Comparative View

success.9 Quite clearly, though, interrogation tactics meant to overwhelm the guilty defendant were (and maybe still are) only employed when serious crimes were involved not in minor cases.10 Since then, things have changed, at least in part. To be sure, it is still claimed that especially in murder cases a confession is essential because the substantive criminal law requires specific intents and other subjective elements to qualify a knowing and willful killing as murder with the sentence of lifelong imprisonment. For example, it has to be proven if someone killed out of greed, to cover up another crime, or out of other detestable motives. These subjective elements are near impossible or, at best, extremely difficult to prove, though, if the defendant remains silent and declines to give any explanation why the victim was killed.11 In any case, the focus of police manuals has shifted at least partially from obtaining a confession to obtaining the defendant’s statement.12 For example, it is clearly stated that outright deceptions like presenting a murder case as an accident to obtain the defendant’s confession is a clear violation of the Code of Criminal Procedure.13 The endeavor to overcome the fixation on confessions is emphasized.14 Interrogation methods like the Reid15 method promising to enable police officers to distinguish guilty from innocent persons and proposing, e.g., deceptions are now regarded critically,16 although they were taught at police academies until recently.17 Nonetheless, guilty defendants shall be motivated to confess.18 A police officer, quite prominent for his success as an interrogator with his peers, is reported to claim that after seventeen hours of interrogation he could convince the defendant to confess because only then the defendant could re9 Cf. Gohara 33 Fordham Urb. L.J. 791, 820 (2006). 10 Eisenberg Beweisrecht, margin no. 627. 11 König/Deckers/et al Stellungnahme des Deutschen Anwaltvereins zur Reform der Tötungsdelikte, Nr. 1/2014, pp. 5, 9-10 with reference to Eser Gutachten zum DJT 1980, pp. 31, 43, 72; cf. Fuchs Kriminalistik 2016, 658. 12 Weber/Berresheim/Capellmann Kriminalistik 2011, 169, 173-174: willingness to talk is to be promoted and upheld; Adler/Hermanutz Kriminalistik 2009, 535, 536: important to obtain a comprehensive statement; cf. Milne/Bull Pschychologie der Vernehmung, p. 86. 13 Artkämper/Schilling Vernehmungen, margin no. 437-438. 14 Hermanutz/Seibold Vernehmung in Theorie und Praxis, p. 122.; Sticher Kriminalistik 2016, 659, 661. 15 Inbau/Reid/Buckley/Jayne Criminal Interrogation and Confessions, pp. 185-327. 16 Hermanutz/Seibold Vernehmung in Theorie und Praxis, pp. 120-121. 17 Hermanutz/Seibold Vernehmung in Theorie und Praxis, p. 72; Weber/Berresheim Kriminalistik 2001, 785, 788 et seq. 18 Schröer Kriminalistik 2004, 523, 525.

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ceive psychiatric treatment and thus the chance to get well again – finally the defendant broke down.19 Over the period of a year this defendant had been interrogated four or five times before, at first as a witness.20 Later, the defendant seemed to have been afraid that the officer would end their relationship that had developed if he did not confess.21 The willingness to confess shall be encouraged22 and to achieve this goal, e.g., rationalizing or minimizing the crime is considered an appropriate technique23. The defendant may be told that everybody in your situation would have (…); accidents happen;24 it seems that you really did not want this to happen and you would rather have everything undone.25 In the same line is the suggestion police officers offered in Frazier v. Cupp that the victim himself might have started the fight after making homosexual advances.26 So it doesn’t come as a big surprise that American police officers, too, suggest that defendants’ actions were spontaneous, accidental, provoked, or peer pressured while interrogating them.27 It is discussed, what to do if a person, who is supposed to make a statement, offers resistance,28 let alone declines to make a statement.29 The motivation of guilty defendants not to make comprehensive and truthful statements should be explored.30 Confessions are harvested.31 The art to make murderers confess is discussed.32 Although a fixation on obtaining a confession is generally discouraged, it is deemed appropriate if the officer

19 20 21 22 23 24 25 26 27

28 29 30 31 32

Schröer Kriminalistik 2004, 523, 525. Schröer Kriminalistik 2004, 523, 526. Schröer Kriminalistik 2004, 523, 526. Hermanutz/Seibold Vernehmung in Theorie und Praxis, p. 120. Gohara 33 Fordham Urb. L.J. 791, 821 (2006). Hermanutz/Seibold Vernehmung in Theorie und Praxis, pp. 120, 123; Leo 34 Law Hum. Beh. 3, 18-19 (2010); Milne/Bull Pschychologie der Vernehmung, pp. 84-85. Hermanutz/Seibold Vernehmung in Theorie und Praxis, p. 123; cf. Kassin 17 Current Directions in Psychological Science, 249, 250 (2008). Frazier v. Cupp, 394 U.S. 731 (1969). Kassin 17 Current Directions in Psychological Science, 249, 251 (2008); Inbau/ Reid/Buckley/Jayne Criminal Interrogation and Confessions, pp. 210 (sympathizing with suspect), 211 (minimizing seriousness of crime), 214 et seq. (trickery), 224 (primary blame belongs to other person), 230 (flattery). Hermanutz/Seibold Vernehmung in Theorie und Praxis, p. 22; Berresheim/Capellmann Kriminalistik 2013, 93, 97; Weber/Berresheim/Capellmann Kriminalistik 2011, 173; Milne/Bull Pschychologie der Vernehmung, p. 90. Berresheim/Capellmann Kriminalistik 2013, 93, 96. Heubrock/Palkies Kriminalistik 2008, 602, 604. Artkämper/Schilling Vernehmungen, margin no. 553. Artkämper/Schilling Vernehmungen, margin no. 566 et seq.

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Self-Incrimination Privilege and Interrogation. A German and Comparative View

has convincing evidence that the defendant committed the crime.33 Officers trying to obtain a confession are considered generally as highly motivated.34 “Door-openers” for a communicative approach are sought after.35 At the beginning, before or after warnings have been given that the defendant may remain silent and consult with a lawyer, a “neutral” topic should be discussed to identify a potentially different behavior when the interrogation moves on to the actual crime.36 Preliminary conversations are mentioned, followed by another set of now “formal” warnings.37 The warnings should be integrated skillfully in the phase of building a communicative relationship38. Sometimes it seems to be hard to decide whether an interrogation or a friendly consultation is taking place.39 Before the required warnings are given, a phase of contact and orientation to establish a working relation and “to engage and explain” is scheduled.40 Thus, the actual crime can be disregarded in the beginning to develop a relationship and establish rapport;41 slowly, the link to the crime is established resulting in stating: I personally believe that you committed the murder. It’s your choice if you confess or not, but maybe it would be better for you to make a clean sweep.42 Trick or suggestive questions are considered illegal in trial proceedings but advisable or even mandatory in other interrogation settings although it is pointed out that the answers have to be assessed with care.43 In white collar crimes the interrogating officer can express (or fake) understanding for the defendant by declaring that he had no choice but to commit the crime in order to secure deserved benefits others were trying to withhold

33 34 35 36

37 38 39 40 41 42 43

Hermanutz/Seibold Vernehmung in Theorie und Praxis, p. 124. Hermanutz/Seibold Vernehmung in Theorie und Praxis, p. 124. Artkämper/Schilling Vernehmungen, margin no. 542, 525. Heubrock/Palkies Kriminalistik 2008, 602, 605; Adler/Hermanutz Kriminalistik 2009, 535, 537, 538-539; Hermanutz/Adler Kriminalisitik 2012, 363-364; Heubrock/ Palkies Kriminalistik 2008, 602, 604; Berresheim/Capellmann Kriminalistik 2013, 93, 97. BGH, 29.4.2010 – 3 StR 63/10 margin no. 9. Heubrock/Palkies Kriminalistik 2008, 602, 604. Schröer Kriminalisitk 2004, 523, 527. Artkämper/Schilling Vernehmungen, margin no. 456, 451; Soiné ZIS 2016, 319, 323; cf. Heubrock/Palkies Kriminalistik 2008, 602, 603, 604. Cf. Kassin 17 Current Directions in Psychological Science, 249, 250 (2008). Artkämper/Schilling Vernehmungen, margin no. 560. Artkämper/Schilling Vernehmungen, margin no. 524, 595; Reinhold/Schweizer/ Scheer Kriminalistik 2016, 120, 121.

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him from.44 The police may employ a “confessor” tactic45 and probably were allowed to give a “Christian burial speech” like the one in Brewer v. Williams.46

2. Police Interrogations Techniques before the Federal Criminal Court The Federal Criminal Court (Bundesgerichtshof) outlaws outright lies by the interrogating officers to minimize the crime, recognizing the ban on deception stated in section 136a Code of Criminal Procedure. Although there were no facts supporting a strong suspicion that an intentional killing might be qualified as murder, the police officer declared that he personally didn’t believe the defendant to be a murderer but that the crime sure looked like a real, classic murder if the defendant did not set the record straight and made a statement.47 At the time of interrogation, the police officer himself did not believe the crime to be murder.48 Only after the confession it became clear that, indeed, a murder had been committed. Although the impact of the police officer’s statements on the defendant is doubtful, the Court’s opinion hardly comes as a huge surprise. The Code of Criminal Procedure explicitly prohibits deception as an interrogation technique. Likewise, it was viewed quite critically – though not declared outright illegal, rendering the defendant’s statements inadmissible – that a defendant suspected of murder was asked several times over a short period of time if he wanted to make a statement.49 The facts reported reveal that the suspect repeatedly declared that he wanted to remain silent and consult with a lawyer. Warnings were given at least twice – the defendant still declared that he only wanted to make a statement if so advised by counsel. The police officer nonetheless asked if they could talk while waiting. The defendant finally agreed and talked about personal matters and the background of the crime. Being asked if he did not want to make a statement on the crime, too, he declined but declared that “it was done what had to be done”. Later, asking about the murder weapon, the police officer pointed to the fact that playing children might be endangered if the weapon was

44 45 46 47 48 49

Artkämper/Schilling Vernehmungen, margin no. 553. Eisenberg Beweisrecht, margin no. 596. Brewer v. Williams, 430 U.S. 387 (1977). BGH NJW 2017, 1253 margin no. 22-23. BGH NJW 2017, 1253 margin no. 23. BGH NStZ 2006, 286 margin no. 2-3.

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not found.50 A comparable interrogating officer is more vividly recited by the U.S. Supreme Court in Rhode Island v. Innis: “(…) there’s a lot of handicapped children running around in this area, and God forbid one of them might find a weapon with shells and they might hurt themselves”.51 There are other cases making clear that defendants’ wish to remain silent is not respected – to be sure, not by threats or promises but by simply repeating questions and continuing to talk.52 In 1992, e.g., the Federal Court didn’t have any concerns that police officers succeeded to persuade the defendant to make further statements before his attorney arrived53. In 1997, the Court didn’t find it offensive that the interrogation was continued after the suspect had expressed his wish to remain silent or to talk to his lawyer.54 After another defendant had declared that he didn’t want to make any statement without a lawyer present three times and the interrogation had been suspended for a short time, respectively, he finally agreed to give personal information and later on to talk about the charge.55 The Court, again, admitted the confession into evidence. In a recent case a police officer just stayed in a hospital room where the suspect – who had declared that she did not want to make a statement – was medically treated and listened to the suspect talking to her doctor about the crime.56 The officer had asked if she should leave the room but had received no answer.57 The Federal Court held that the statements were inadmissible. The defendant’s right to remain silent had never been honored by the police and she had actually been continually questioned.58 It is certainly not only police officers who are interested in the defendants’ statement and there are not necessarily tricks employed to overcome defendants’ wishes. For example, during arraignment, a judge warned the defendant of his right to consult with a lawyer. The defendant declared that he wanted the assistance of an attorney whom the judge unsuccessfully tried to reach on the phone. The judge told the defendant so, who declared that he wanted to remain silent. Spontaneously the defendant added that he knew a person named in the arrest warrant. The judge took that as

50 51 52 53 54 55 56 57 58

BGH NStZ 2006, 286 margin no. 4. 446 U.S. 291 (1980). BGH NJW 2018, 1986 margin no. 12, 14, 15. BGH NJW 1992, 2903, 2904. BGH NStZ 1997, 251, 252. BGH NJW 1996, 2242. BGH NJW 2018, 1986-1987 margin no. 13. BGH NJW 2018, 1986 margin no. 13. BGH NJW 2018, 1986 margin no. 25.

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an invitation to ask further questions and finally the defendant confessed.59 The Federal Criminal Court, however, decided that spontaneous statements may not be used to ask further investigative questions. The Federal Court, on the other hand, did not object to the police interrogating a detainee several times before being brought before a judge.60 To be sure, the Code of Criminal Procedure61 explicitly prescribes that a person placed under arrest without a warrant has to be presented before a judge without delay. If this judge orders pre-trial arrest to be enforced, counsel for the defendant has to be appointed immediately.62 Thus, the defense argued that no interrogation was allowed in the interim between preliminary arrest and judicial arrest order.63 The Federal Court, however, ruled that it is appropriate to interrogate such a defendant before seeing the judge because the police still have to decide whether there are sufficient reasons to request an arrest warrant or not and might need additional information. In addition, it is not clear whether the Court would have excluded the defendant’s statements even if the conduct had been considered illegal.64 Summarizing, it seems fair to conclude that even if police officers do not necessarily try to obtain a confession when interrogating a defendant, they clearly want to communicate with the defendant and elicit statements.65 This, however, does not happen if a defendant has consulted with a lawyer prior to interrogation. It is still true what Justice Robert Jackson wrote 70 years ago: “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.” 66 To be sure, the police’s aim is to bring to justice the guilty.

59 BGH JuS 2013, 1047. 60 BGH NStZ 2018, 734; Cf. Corley v. United States, 556 U.S. 303 (2009); McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957). 61 Art. 104 para. 2 cl. 2 GG, Art. 5 para. 3 cl. 1 EHC, Sect. 128 StPO. 62 Sect. 140 para. 1 number. 4 StPO. 63 BGH NStZ 2018, 734, 735; cf. BGH NStZ 2014, 722. 64 BGH NStZ 2018, 734, 735; cf. Berghäuser NStZ 2018, 736. 65 Cf. Hermanutz/Seibold, Vernehmung in Theorie und Praxis, p. 75. 66 Watts v. Indiana, 338 U.S. 49, 59 (1949), Jackson, J., concurring.

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II. The Self-Incrimination Privilege in Germany 1. Statutory and Constitutional Law The applicable law in Germany is quite clear. Section 163a, 136 Code of Criminal Procedure67 prescribe police warnings that are almost identical to the Miranda68 warnings the U.S. Supreme Court devised in 1966 to safeguard the 5th Amendment to the U.S. Constitution. Defendants have to be warned that they are free to refrain from talking to the police about the crime they are charged with and that they may choose and consult with defense counsel at any time. They have to be informed that defense counsel can be appointed according to the rules of the Code of Criminal Procedure when serious crimes are at hand. If the defendant has to be informed of these rights by law, these rights naturally must be granted. What is more, legal scholars and the Federal Court do not just refer to the Code of Criminal Procedure but to the mandates of the European Convention on Human Rights – binding law in Germany – and the selfincrimination privilege of the German Constitution (Grundgesetz) as well. The warnings, at least as far as the right to remain silent and the general access to defense counsel is concerned, are regarded unanimously by both courts and legal scholars as mandated by the privilege.69 Unlike the United States, the privilege is not codified in the Grundgesetz (or in the Convention of Human Rights) but nevertheless it is derived from the Constitution’s guarantee of the rule of law and fundamental rights of the accused.70 Until 1992, however, one and the most important step was missing in German law, the exclusionary rule when warnings were not given. Until then, the Federal Court regarded section 136 as a “second rank”- provision which did not justify excluding a confession when not complied with.71 Citing Miranda with approval, the picture finally changed in 1992 and the Federal Court acknowledged the inadmissibility of a confession if the de67 Sect.136 para. 1: At the commencement of the first examination, the accused shall be informed of the offence with which he is charged and of the applicable criminal law provisions. He shall be advised that the law grants him the right to respond to the charges, or not to make any statement on the charges, and the right, at any stage, even prior to his examination, to consult with defence counsel of his choice (…). 68 Miranda v. Arizona, 384 U.S. 436 (1966). 69 EGMR NJW 2019, 1999 margin no. 129. 70 BVerfG NJW 2013, 1058, 1061; BVerfGE 38, 103, 113-114; BVerfGE 55, 144, 150-151; BVerfGE 56, 37, 43. 71 BGHSt 31, 395.

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fendant had not been informed of his or her right to remain silent and objected to use the statement at trial.72 This was held not only for in-custody interrogations of the defendant73 but for all interrogations, the Court being well aware that to this respect it expanded the Miranda rule. The Court later held a confession to be inadmissible as well if the warning was missing that defense counsel may be consulted.74 Recently, however, a confession was not excluded75 when the warning was not given that in serious matters defense counsel may be appointed at least temporarily free of cost for the defendant.76 Even if the defendant expressively declares that he has no money to pay a lawyer the confession is not excluded.77 It is not clear, whether the Court would exclude a confession made without the required warnings if the defendant actually knows the right to remain silent or that he or she may consult with a lawyer. To be sure, a defendant who knows his or her rights certainly does not need to be informed of these rights in order to be able to exercise them. Today, everybody who has ever watched an American crime series on TV can be expected to know about the right to remain silent, at least that such a right exists in the United States. Everybody who has been convicted before will know about the rights for future cases.78 Thus, an argument can be made that there is no reason not to admit a confession in such a case.79 The Federal Court argues, however, that the warnings have to be given as a rule whereas not giving the warnings is meant as a rather rare exception.80 Above all, warnings have another, more important purpose than just informing the ignorant. They compensate for pressure resulting from the mere fact of interrogation as such. For defendants who feel that they are unable to stand interrogation because they are too nervous, too intimidated, have difficulties to express themselves, or do not understand what’s going on, it is made clear that they do not have to answer questions or only with a lawyer assisting them.81 They learn that they do not have to answer

72 73 74 75 76 77 78 79

BGHSt 38, 214; BGH, 3.5.2018 – 3 StR 390/17 margin no. 26. Cf. Howes v. Fields, 565 U.S. 499 (2012). BGHSt 47, 172. BGH StV 2019, 159 with annotation Ransiek. If convicted, the defendant has to pay his defense counsel. BGH NStZ 2006, 236, 237. Cf. Berresheim/Capellmann Kriminalistik 2013, 93, 97. BGHSt 38, 214, 220; 47, 172, 173; Roxin/Schünemann Strafverfahrensrecht, § 24 margin no. 32, 37. 80 BGHSt 38, 214, 225; BGH, 3.5.2018 – 3 StR 390/17 margin no. 26. 81 BGHSt 38, 214, 222; BGH, 29.4.2010 – 3 StR 63/10 margin no. 13.

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Self-Incrimination Privilege and Interrogation. A German and Comparative View

questions here and now.82 This is important because in everyday terms an innocent person does not have any reason to refuse cooperating with the police and for not truthfully answering questions. The mere fact of interrogation creates pressure because of the social rules of question and answer.83 Of course, this is a far cry from police brutality. It is certainly nothing the interrogating police officer can be blamed for – but warnings point out that the everyday rules of communication do not apply in the legal setting and that it is acceptable to refuse communication with the police altogether. In a comparable situation, this is exactly the reason why it is impermissible to regard somebody as a suspect because he declines to give a sample for DNA analysis if the law precisely grants the right to refuse to give such a sample.84

2. Illegal Interrogation Techniques after Waiving the Right to Remain Silent To be sure, warnings given at the outset of interrogation can eliminate the pressure to feel obliged to answer questions of police officers. They can eliminate pressure to start talking to the police. They cannot compensate for interrogation techniques such as promises, threats, or trickery employed after the defendant waives his or her right to remain silent and decides to talk to the police. Thus, warnings cannot offset impairments of self-responsibly deciding what to tell in the course of interrogation. The warnings give no or little protection once the interrogation has started.85 In deciding to talk to the police, defendants do not waive their right to be free of compulsion to confess, they do not waive their privilege against selfincrimination. They waive their right to remain silent. Like Justice Marshall wrote: it is hard to imagine that a sane person knowingly relinquishes a right to be free of compulsion.86 German law makes this quite clear. Extorting statements is a felony under German criminal law.87 After the warnings have been given and the de-

82 Schulhofer 54 U.Chi.L.Rev. 435, 447-448 (1987). 83 As a consequence the Federal Court, as a general rule, restricts the necessity of warnings to formal interrogations. The defendant must realize that he is talking to the police, a prosecutor, or a judge. BGHSt 42, 139, 145-146; but cf. BGH NJW 2018, 1986. 84 BVerfG NJW 1996, 1587, 1588; BGHSt 49, 56. 85 The Miranda Court had a different view, 384 U.S. 436, 467 (1966). 86 Schneckloth v. Bustamonte, 412 U.S. 218 (1973), Marshall, J., dissenting. 87 Sect. 343 StGB.

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fendant decides to talk to the police, section 136a subsection 2 Code of Criminal Procedure explicitly prohibits interrogation techniques that infringe the defendant’s understanding and capacity to decide rationally. His memory may not be impaired.88 The wording of subsection 2 thereby gives a strong argument that it is relevant only if the defendant’s capabilities were impaired, but irrelevant if measures were meant to achieve this purpose. Likewise, it is prohibited by the statute to impair defendants’ free will by ill-treatment, fatigue, infringement of physical integrity, administering of substances, brutal treatment, deception, or hypnosis.89 If section 136a is not complied with, the exclusion of the resulting statements is explicitly prescribed.90 Threats and promises are prohibited as well, however, to be clear, not all threats and promises but only those threats with unlawful measures and promises with illegal advantages for the defendant.

a) Unlawful Promises and Threats As already mentioned, to induce a statement by promising an advantage provided for by law is not forbidden by section 136a subsection 1 Code of Criminal Procedure. For example, hinting at a lighter sentence in case of a confession is, as a rule, regarded legal91 because the sentence in fact may be reduced if there is a confession. On the other hand, even the Reid manual, generally not reluctant to advise manipulative interrogation techniques to obtain a confession, emphasizes that defendants should not be promised leniency if they do confess.92 Everybody would agree that there is grave danger to elicit a false confession if a defendant would be offered a sentence of ten years imprisonment in case of a confession but would poten-

88 Sect. 136a para. 2 StPO: Measures which impair the accused’s memory or his ability to understand shall not be permitted. 89 Sect. 136 para. 1 StPO: The accused’s freedom to make up his mind and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, administration of drugs, torment, deception or hypnosis. Coercion may be used only as far as this is permitted by criminal procedure law. Threatening the accused with measures not permitted under its provisions or holding out the prospect of an advantage not envisaged by statute shall be prohibited. 90 Sect. 136a para. 3: (…) Statements which were obtained in breach of this prohibition shall not be used, even if the accused consents to their use. 91 Cf. BGH NStZ 2018, 419; Monka in BeckOK-StPO, Sect. 136a margin no. 25. 92 Cf. Slobogin Vanderbilt University Law School Public Law and Legal Theory Working Paper, 1, 12 (2016).

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tially face the death penalty (supposed there were a death penalty in German law)93 if he does not confess.94 Similarly, compulsion may be used if admitted by the Code of Criminal Procedure. Thus, it is argued, that not all pressure on the defendant to confess or to give a statement is inadmissible. The self-incrimination privilege, on the other hand, guarantees that a defendant may not be compelled to be a witness against himself – there is no distinction between permissible and impermissible pressure. Thus, the answer to what is permitted under section 136a Code of Criminal Procedure is more or less confusing.

b) Deception and Trickery The same is true when it comes to deciding what constitutes an impermissible deception in the meaning of the section. The Federal Criminal Court and legal scholars distinguish unlawful deception from lawful trickery.95 In view of the more brutal interrogation methods prohibited by section 136a Code of Criminal Procedure, a general ban on deception is considered as too broad and thus what constitutes deception is interpreted narrowly.96 In the light of the self-incrimination privilege neither trickery nor outright deception compels a defendant to make a statement. Even if the police threaten the defendant with torture in case he does not confess, but never intend to actually do so, the focus is on the illegal threat, not on deception.97 A threat is a threat regardless, whether it shall be carried out or not. What is important is that the defendant believes it will. Whereas police brutality or threatening brutality certainly is a violation of due process, the case is far less clear when the defendant is deceived by false facts.98 It is still the defendant’s own deliberate decision whether to make a statement or not, even after having been lied to, e.g., that his accomplice already confessed to the crime involving the defendant.

93 The German Constitution bans the death penalty, Art. 102 GG. 94 North Carolina v. Alford, 400 U.S. 25 (1970). 95 BGH NJW 2017, 1253, 1255 margin no. 23; Diemer in KK-StPO, Sect. 136a margin no. 20; LR-Gleß, Sect. 136a margin no. 41; Monka in BeckOK-StPO, Sect. 136a margin no. 15; cf. different views at Eschelbach in Satzger/Schluckebier/Widmaier, Sect.136a margin no. 30, 32; Rogall in SK-StPO, Sect. 136a margin no. 56. 96 BGH, 31.3.2011 – 3 StR 400/10 margin no. 10; BGHSt 42, 139. 97 Cf. Slobogin Vanderbilt University Law School Public Law and Legal Theory Working Paper, 1, 11 (2016). 98 Beulke/Swoboda Strafprozessrecht, margin no. 135.

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The defendants’ ability to decide rationally and knowingly whether to confess or not99, however, is impaired when the decision is made on the basis of material false facts presented by the police. Defendants are not protected to be able to make a wise or prudent choice but to realize the significance of their decision to confess. They have to know and understand what they confess to. To be sure, somebody eating a chocolate candy will know that he eats a candy. But he certainly does not kill himself voluntarily if he does not know that the candy is deadly poisoned. To enable defendants to make a rational and understanding choice, realizing the significance of what is said, is, as I see it, the rationale of the self-incrimination privilege. Proscribing coercion and compulsion is meant to ensure that defendants’ free will whether to confess or not is protected. This is why pursuant to Section 136a subsection 2 Code of Criminal Procedure defendants’ capability of understanding has to be respected. Thus, deception is banned by the privilege as well. For example, the courts prohibit the police to wrongly claim that there is overwhelming evidence against the defendant making a later acquittal impossible so that the defendant’s only chance to improve things is a truthful confession.100 Nonetheless, what is trickery and what constitutes unlawful deception is hard to decide. Tricks may disguise or downplay the real significance of a resulting statement, may give the impression that not only the officer but the law, as well, will understand the defendant’s reasons for committing the crime. The officer’s statements may be interpreted by the suspect as a promise of leniency. The officer may flatter the defendant to make him talk. Just like the fable of the fox and the crow: the crow has found a piece of cheese and retires to a branch to eat it. The fox, wanting the cheese for itself, flatters the crow, calls it beautiful and wonders whether its voice is as sweet to match. When the crow lets out a caw, the cheese falls down and is devoured by the fox. Trickery is meant to manipulate the defendant’s choice as well, only without using outright lies. So why should there be a difference at all and where should the line be drawn? The prosecutor with the Federal Criminal Court argued in the case just cited that the interrogating officer by wrongly claiming that there was overwhelming evidence had only given a wrong prognosis on the outcome of trial. In the above mentioned murder case, where the defendant was told that everything looked like a classic murder, the interrogating officer admitted

99 Cf. BVerfGE 49, 289, 298. 100 BGHSt 35, 328.

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that he himself did not believe that the murder rules applied. To be sure, if the investigation into a killing is still going on or even has just started, there is always a fair chance that the aggravating circumstances qualifying the killing as murder are present. In everyday language murder is used to describe all intentional killings. Thus, one cannot be sure if the defendant understood the officer’s use of the word murder in the strict legal sense as an aggravated intentional killing. The trial court, anyway, had admitted the confession into evidence. If the interrogating officer would have claimed that he personally believed that the aggravating circumstances might be present, the Federal Court probably would have held the confession admissible. It is regarded impermissible not to disclose that the brutally injured victim had died and to just reveal that the investigation is directed to the “bad things” the defendant did to his wife – but the Federal Criminal Court declines to hold the resulting confession inadmissible,101 although the defendant obviously hoped (quite unrealistically) that the victim still might be alive. According to the Court, a deception requires an intentional misleading of the suspect and does not include good faith mistakes.102 Since the police officer is not a lawyer, he or she certainly cannot be blamed for mistakenly assuming that a murder took place or that the evidence is overwhelming. In the same line of reasoning, the Federal Criminal Court held that the exclusionary rule only will apply if the police intentionally do not bring an apprehended defendant before a judge immediately to circumvent the appointment of counsel.103 Again, good faith is emphasized. In this case the Court believes that probably the police just wanted to be able to present sufficient facts and therefore interrogated the defendant first so the judge could make an informed decision whether to enforce the arrest warrant or not.104 This is certainly a sympathetic interpretation of the events.105 If the defendant is mistaken about the existing evidence, the police do not have to clarify the error.106 Thus, one might argue, like the majority of the U.S. Supreme Court did, that the police’s failure to inform a defendant of his attorney’s efforts to reach him is harmless as well and does not war-

101 BGH, 6.3.2012 – 1 StR 623/11 margin no. 23 et seq., 32 et seq. 102 BGH StV 1989, 515; Rogall in SK-StPO, Sect. 136a margin no. 59; cf. Ransiek Die Rechte des Beschuldigten, p.14. 103 BGH NStZ 2014, 722 margin no. 13. 104 BGH NStZ 2014, 722 margin no. 13. 105 Knauer NStZ 2014, 722, 725. 106 BGH StV 1988, 419, 421.

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rant suppressing an otherwise voluntary confession.107 However, this is hard to justify if all arguments are based on the protection of defendants’ self-responsibility and capability of understanding. Above all, why should the officer’s good or bad faith be relevant when the defendant’s capacity for a rational choice is protected? From the defendant’s point of view, it certainly makes no difference if she decides to confess after receiving wrong information that was either intentionally or innocently presented by the interrogator. In both alternatives she decides on the basis of wrong facts.

c) Severe Infringements of Free Will Be that as it may, there are rulings by the Federal Criminal Court restricting section 136a Code of Criminal Procedure to severe impairments of the defendant’s will. Only fundamental violations of due process, the right to a fair trial, shall be outlawed.108 The illegal methods enumerated in section 136a Code of Criminal Procedure are characterized as grave violations at least partly subject to severe criminal sanctions or as brute infringements of the rule of law.109 For example, if a defendant has not slept for at least 38 hours, is under extreme physical and psychic duress,110 and has been interrogated several times with increasing vigorousness, her resulting confession is excluded.111 A restriction to grave violations of defendants’ rights could explain why resulting statements are inadmissible according to section 136a subsection 3 Code of Criminal Procedure, even if the defendant consents that they may be used. This, however, is not a strong argument because in this regard subsection 3 is a “lame duck” anyway: of course, the defendant may repeat a confession if he or she so wishes. This may sound quite familiar for lawyers from the United States. It could be an offspring of Justice Felix Frankfurter’s test of voluntariness under the 14th Amendment in Culombe v. Connecticut.112 Frankfurter asked: “Is the confession the product of an essentially free will and unconstrained choice of its maker? (…) If it is not, if his will has been overborne and his

107 108 109 110

Moran v. Burbine, 475 U.S. 412 (1986). Diemer in KK-StPO, Sect. 136a margin no. 8. BGHSt 31, 395, 399-400. Because she just gave birth to her child without medical aid under difficult circumstances. 111 BGH, 21. 10.2014 – 5 StR 296/14 Rn. 3-4. 112 Culombe v. Connecticut, 367 U.S. 568, 602 (1961).

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capacity for self-determination critically impaired, the use of the confession offends due process.” The Justices, however, concurring with Frankfurter’s reasoning dissented in the result. The Justices not sharing his opinion, agreed with the outcome of the case.113 Justice Douglas, not concurring with Frankfurter’s arguments, even called the case a simple one.114 “Petitioner, then a 33-year-old illiterate mental defective of the moron class who was suggestible and subject to intimidation, was taken into custody by state police officers on Saturday afternoon and held without benefit of counsel, though he requested counsel, without the prompt arraignment required by state law, and without being advised of his constitutional rights. He was questioned intermittently by police officers until Wednesday night, when, after being upset by seeing his wife and sick daughter and being urged by his wife to tell the truth, he confessed to participation in a holdup in which two men were murdered”.115 Thus, we possibly should not keep our expectations too high that a clear rule and distinction can be found. Unfortunately, there is no way to ascertain if someone’s will has actually been broken or overpowered. There is no “breaking point” that we can reliably define. We can only determine if the decision to talk was probably influenced by the interrogation techniques applied. But it is always the defendant who still decides whether to talk to the interrogator or not. A defendant may prefer to endure torture over confessing, another may react to more subtle influences to confess. However, at least, it could be a guideline to ask if the interrogator’s misconduct is so offensive as to deprive a defendant of fundamental fairness and if it rises to a “level of misbehavior that (…) shocks the sensibilities of civilized society” as Justice O’Connor put it.116 Then, however, not only the violation of the defendant’s free will would be a relevant factor in deciding which interrogation techniques are illegal but the criminal law system’s standing in a free society as well. One may still raise the question if it is disrespectful to the rule of law or due process to deceive a defendant. What, if he is guilty? Trying to restrict prohibited interrogations methods to severe infringements of the law may, in addition, serve one important aspect of criminal procedure – that is to convict the guilty. In all cases cited, American and German alike, it certainly would be unfair to claim that the police wanted

113 114 115 116

Culombe v. Connecticut, 367 U.S. 568, 641 (1961). Culombe v. Connecticut, 367 U.S. 568, 637 (1961), Black, J., concurring. Culombe v. Connecticut, 367 U.S. 568 (1961). Moran v. Burbine, 475 U.S. 412, 433-434 (1986).

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to nail an innocent person to the cross. The German police manuals, which are cited in the first chapter, clearly have in mind to make guilty persons confess and to elicit secrets from the true offenders. Thus, one might argue, the police should not be “handcuffed” when trying to bring to justice the guilty.

III. Manipulative Interrogation Methods and the Truth Finding Process Unlawful deception or legal trickery, illegal threats or legal promises, and other interrogation tactics would not constitute a problem at all if only guilty persons were tricked into a confession and not the innocent. This would be the case if the police could accurately distinguish those telling the truth from those lying and apply manipulative interrogation techniques only to the liars. Due process would still proscribe torture or bodily harm to make guilty persons confess but not psychological techniques to bring to justice the guilty. In 1961, Inbau’s police manual clearly stated and still states today that the authors are unalterably opposed to the use of interrogation techniques that could make innocent persons confess but that they approve of psychological tactics to secure incriminating statements from the guilty.117 Unfortunately, the police cannot reliably distinguish a guilty person from an innocent one. 118 To be sure, if they actually could do so, we would have to wonder why there should be public trials at all to establish guilt or innocence. The very existence of the criminal law system makes it quite clear that we do not rely on whom the investigating authorities believe to be guilty. Trying to distinguish between legal and illegal pressure or deception and trickery implies that respecting the defendant’s ability to make a rational choice and truth finding are mutually exclusive. I will argue that this conflict does not exist. On the contrary: we should protect defendants’ rational choice in a broad sense to make sure that truth is found. Protecting defendants’ capability of understanding the relevance of what he or she says serves the purpose of truth finding and punishing the guilty – but the guilty alone.

117 Cf. Inbau/Reid/Buckley/Jayne Criminal Interrogation and Confessions, p. XI. 118 Kassin 17 Current Directions in Psychological Science, 249, 250 (2008).

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1. Truth: Interpretation of Events The events that constitute the crime are the mutually shared inter subjective interpretation of the events by the persons involved and potential witnesses. They give sense to a situation by choosing words to comprehend and to describe them. Events are seen, thought, and recognized in words of our language. Without using words we are unable to grasp and understand a situation. Words represent traditional, pre-learned and mutually shared standards of reality. To see and experience situations or events means creating linguistic comprehension and linguistic order. Watching or taking part in events means interpreting situations. When persons choose the same interpretations for events, they become reality. Thus, sense is given to a situation and is not just understood as something unchangeably pre-given or fixed. Because reality is interpretation, it is dependent on the persons who interpret. Reality evolves if there is consensus in attributing meaning to events. The truth to be found in criminal procedure is the search of the joint original interpretation by participants and bystanders. The search for the original interpretation necessarily creates a new interpretation. Of course, the original one is not available as such but has to be remembered. Different words may be given to describe the past events. Things may be forgotten. Things may be added. Questions asked may focus attention on new aspects and thereby possibly change the original view. Reality can be influenced and changed. Thus, truth is not something simply to be uncovered like unveiling a painting, but rather comes into being in a dynamic process as a result of communication. It can be established only under the condition that the individuals who define the events can give their own, true interpretation. It does not help if they just repeat and adopt the interpretations expected, offered, or suggested by others. If the defendants’ statements shall contribute to this process of defining truth, it is essential that they actually are the defendants’ perception of the events, not a perception offered or forced upon them by the interrogating officers.119 If the police rattle the suspect, manipulate her, or claim that her story is wholly unbelievable and that there is only one way out to avoid a more severe punishment, a defendant may be made to give up her own view of the events. Police officers expressing sympathy, pretending to be the suspect’s best friend, or emphasizing the psychological benefits of confessing may lure the defendant into telling them what they want to hear,

119 Lesch ZStW 111 (1999) 639, 644-645.

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not wanting to disappoint a friend expecting a certain answer.120 No explicit promises are needed if police officers suggest that acts were spontaneous, accidental, provoked, peer-pressured, or otherwise justified and defendants infer that leniency will follow from a confession.121 They may accept the interrogator’s definition of the past events. This is particularly true, if defendants have little communicative abilities and are not able to persist on their own interpretation of events. For example, if police officers affirm a defendant’s mistaken belief that he was videotaped during a bank robbery,122 all subsequent statements in the further course of interrogation will or may be influenced by this belief. It becomes quite probable that the definition of the events offered by the interrogator will be more easily accepted or at least influence the defendant’s statement because the defendant believes they are are on tape, anyway. If an alcoholic and homeless defendant is made to believe that there is overwhelming evidence that he committed the crime and that his only chance to improve his situation is to give a full confession,123 the resulting confession is wholly unreliable. For the defendant it appears to be futile to continue to deny the crime. In the case just cited, even the interrogating police officers had the impression that the defendant did not realize what he was confessing to and did not understand the significance of what he was saying. If a defendant is interrogated for thirteen hours with the purpose to unsettle her, to make her aware of the hopelessness of her situation, and to elicit a confession,124 the resulting statement may be correct. The confession may have been correct in the aforementioned case. But in both cases the danger is palpable that they are not.125 If defendants are tricked into believing that they are giving statements as a witness and not as suspects and that they may go home afterwards, they might give the police what they want to hear no matter if it is true or not.126 The short term benefits may outweigh the long term harm. In the so called “Mallorca murder case”127 an undercover agent was the suspect’s only social contact outside jail; the suspect was serving time for

120 BGHSt 52, 11; cf. Slobogin Vanderbilt University Law School Public Law and Legal Theory Working Paper, 1, 15 (2016). 121 Kassin 17 Current Directions in Psychological Science, 251 (2008). 122 BGH StV 1988, 421. 123 BGHSt 35, 328, 329. 124 LG Ravensburg NStZ-RR 2008, 45; cf. Ransiek/Winsel GA 2015, 637. 125 Gohara 33 Fordham Urb. L.J. 791, 809 (2006). 126 Gohara 33 Fordham Urb. L.J. 791, 792 (2006). 127 BGH NJW 2007, 3138; cf. Illinois v. Perkins, 496 U.S. 292 (1990).

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another crime. Over the course of a year, the agent visited the suspect, who had asserted his right to remain silent when he was formally interrogated, thirteen times and accompanied him when he was granted prison leave and holidays. The contact with the agent was crucial to gain these privileges. They were talking about the murder, the suspect at first denying to have committed the crime. While on prison leave for a week, spending his time in an apartment the agent provided, the agent asked the defendant about the crime, again, and urged him to tell the truth. Thus, it seems quite plausible that the defendant might have conceded at last what the agent apparently wanted to hear in order not endanger their relationship for the future. If the defendant offers information only a guilty person can have, we can only deduce that the defendant must somehow be involved in or at least have knowledge of the crime. What we do not know is how other parts of his statement were influenced by manipulative interrogation tactics. Even if a defendant apparently knows where the victim’s body is buried, we do not know if the rest of his confession is true as well. For example, if a defendant leads the police officer to the burial site, we already have to be careful in deciding if this is actually proof of guilty knowledge or maybe only the result of the police officer’s interaction with the defendant.128 In the case just mentioned, the police already suspected that the victim was buried in a certain area. Defendant and police officer went there to look for the body and finally found it. The defendant later claimed that he had no knowledge of the burial site and that the investigating officer drove him to the general area where the body was hidden. Thus, it is even doubtful if only the defendant knew where the body was hidden or if the defendant’s and police officer’s combined information and efforts led to the discovery of the grave. In the “Mallorca murder case”, the undercover agent repeatedly asked about details of the crime the defendant later confessed to. However, if the agent asked for specific details and mentioned these details in his questions, the defendant’s matching answers might be suggested.129 If only the murderer knows that the victim was shot twice, it is of no or little evidentiary value if the suspect gives an affirmative answer when being asked if he killed the victim with two shots. Even if the defendant knows the burial site, this does not guarantee that the confession is correct overall. In the case cited, it could be proven by the

128 Stern Der Geständniswiderruf in der Strafverteidigerpraxis, p. 119, 189; cf. the case presented by Strate in FS Eisenberg, p. 529, 532. 129 Cf. the case presented by Strate in FS Eisenberg, p. 529, 537.

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defense counsel that other parts of the confession were wrong or at least extremely doubtful.130 Viewing the crime scene with the investigating police officer two years after the crime, e.g., the defendant claimed for the first time that he carried the victim through a hole in a surrounding fence from a parking lot to an adjacent forest. At that time a gate in the fence was permanently closed and bolted. It was visible, however, that the fence had been repaired sometime in the past. In an earlier confession the defendant had not mentioned the fence at all. It could be established that at the time the crime was committed there was no hole in the fence. The gate, however, was not bolted and might have stood open. Of course, the defendant may have climbed the fence. In his later confession, he may have called the open gate a hole in the fence. But quite easily a wholly innocent person visiting the crime scene for the first time might have realized that an explanation was required how the victim was carried to the forest to verify the earlier confession. If an existing gate is bolted but some repair has been completed in the past, it is a quite plausible explanation that the hole could have been invented to make a wrong story convincing. If we know that the confession is at least partly wrong or imprecise, then, of course, we wonder if other parts of the confession are wrong too. We will never know for sure which part of a confession was influenced by manipulative interrogation tactics and which was not. It is impossible to distinguish when there is no clear other evidence. The same is true if a police officer is sympathetic to the murder suspect telling him repeatedly that he wants to help him unburden his mind and that the defendant is not a criminal but desperately in need of psychological treatment: “It’s got to come out (…) It’s hard for you, I realize that, how hard it is, how difficult it is, I realize that, but you’ve got to help yourself before anybody else can help you. And we’re going to see to it that you get the proper help. This is our job, Frank. This is our job. This is what I want to do (...) First thing we have to do is let it all come out. Don’t fight it because it’s worse, Frank, it’s worse. It’s hurting me because I feel it. I feel it wanting to come out, but it’s hurting me, Frank.”131 From the defendant’s perspective it becomes quite clear that the police are convinced that he committed the crime and he may believe that he stands no chance to be acquitted because everybody will share the police’s view. If the police offi-

130 Stern Der Geständniswiderruf in der Strafverteidigerpraxis, p. 82, 119, 196-197, 257. 131 Miller v. Fenton, 741 F.2d 1456, 1459 (3d Cir. 1984).

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cer suggests that a defendant may feel better before God if he confesses this may convey that the defendant does not stand a chance to be acquitted. The resulting confession may be true. Miller actually may have unburdened himself. He may have collapsed in a state of shock after the interrogation because he actually did commit the brutal murder he was charged with. But we will never know. To be sure, it is not one specific question or statement by the police officer that is suspect. We cannot nail it down to one specific remark that should be impermissible. Like Christopher Slobogin put it, it is a mishmash of techniques, maybe employed over a severalhour period.132 It is not the fact alone that the officer seems to be or actually is friendly or sympathetic. It is the design of an interrogation as a whole intended to elicit a statement and thereby suggesting a certain version of the events that may produce the undesired consequences. This is especially the case for defendants vulnerable to manipulation and with little language skills.133 The version a defendant presents without being tricked, manipulated, or forced may be nothing but a fairy-tale. Without employing interrogation tactics the defendant may lie when claiming not to have been involved in the crime. However, things do not improve if the defendant is made to accept another’s definition of the events. If a certain version is forced upon the defendant, it becomes impossible to decide afterwards which part of a statement is not the defendant’s own view but the interrogator’s. The dangers are a lot greater, though, if the defendant takes over the offered view of the events. Persons condemning themselves have no reason to do so apart from telling the truth. Thus, if a crime is conceded there seems to be little reason to scrutinize the events too closely. What is more, the substantive criminal law is usually built and dependent on rather subtle distinctions that the defendant usually does not realize. Thus, from his perspective he may have no reason to insist on his own version of the events. Did the defendant have the required mens rea or not, did he realize the dangers involved or not, did he intend to kill the victim or to keep the stolen goods, and so on. Thus, it is not sufficient to know that a defendant somehow was involved in the crime.

132 Cf. Slobogin Vanderbilt University Law School Public Law and Legal Theory Working Paper, 1, 20 (2016). 133 Cf. Artkämper Krimininalistik 2007, 517, 518.

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2. The Reality of False Confessions This is not just a theory. The empirical data on false convictions clearly suggest that in quite a lot of cases – 15 to 25% – false confessions were involved.134 The U.S. Supreme Court acknowledges that “the pressure of custodial interrogation is so immense that it ‘can induce a frighteningly high percentage of people to confess to crimes they never committed’”.135 It is acknowledged that witnesses of a crime should not be influenced in their testimony by questions offering a certain answer because choosing the suggestive question tends to produce false recollections compared to an open question.136 People tend to adjust their opinion of situations and things to the majority opinion.137 To be sure, the questioning officer out of necessity has to offer a certain interpretation of the events. Interrogating a defendant at all implies that there are sufficient reasons to consider him or her to be involved in the crime. Thus, there is a certain version of the events the police deem probable. But the more confident the police appear to be that their view is correct, that they already know that the defendant actually committed the crime, that the defendant’s situation is hopeless without a confession, the greater the danger is that the defendant might accept this view. We know that it is even quite easy to plant false recollections in somebody’s mind because remembering is a social process. For example, persons who never committed a crime in their youth can nevertheless be made to believe that they did. Twenty-one out of thirty test persons confessed to something that never had happened.138 Recollections of events are subject to change by talking about them. A new story emerges. Thus, the more that defendants are influenced in what they say and admit by the interrogating officer, the greater the risk is that they are made to adopt a

134 Leo 50 U.Mich.J.L.Ref. 693, 699 et seq. (2017); Kassin/Drizin/Grisso/Gudjonsson/Leo/Redlich 34 Law Hum. Beh., 3 (2010); Ofshe/Leo 74 Denv.U.L.Rev. 979 (1997); cf. Gohara 33 Fordham Urb. L.J. 791, 826 et seq. (2006). For an overview on German research on wrongful convictions cf. Kölbel/Puschke/Singelnstein GA 2019, 129 et seq. 135 VJ. D. B. v. North Carolina, 564 U. S. 261 (2011); Corley v. United States, 556 U. S. 303 (2009). 136 Loftus Eyewitness Testimony, p. 77 et seq., 83-84; cf. Ransiek, Die Rechte des Beschuldigten, p. 81; Milne/Bull Pschychologie der Vernehmung, p.103-104. 137 Driver 82 Harv.L.Rev. 42, 52 (1968). 138 Dworschak, Der Spiegel Nr. 1 2016, p. 15 on Elisabeth Shaw’s experiments; Leo 34 Law Hum. Beh. 3, 16 (2010); Milne/Bull Pschychologie der Vernehmung, p. 112; cf. Kassin 17 Current Directions in Psychological Science, 249, 250 (2008).

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new interpretation of the events. Playing on the mental, emotional, or physical weakness of suspects, tricking or cajoling defendants into a confession or statement may produce a new story – but not necessarily a true one. In conclusion, I believe the U.S. Supreme Court in Bram held correctly: "The law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted."139 A confession must not be “extracted by any sorts of threats or violence, nor obtained by any direct or implied promises, however slight”.140

IV. The Need to Control A whole set of legal rules for police interrogation is useless when violations of due process cannot be made visible. This is especially true when the whole atmosphere of an interrogation is in question. Regardless of whether the defendant has to prove if his statement was influenced by improper interrogation techniques or whether the state has to prove the opposite, the result is a swearing contest between defendants and police at what took place during the interrogation. It may not be the rule that interrogating officers admit that they did not consider the crime to be a murder but told the defendant otherwise.141 It is certainly not sufficient to have a written report to understand what was going on during interrogation. For example, a police officer telling a juvenile defendant that he is too fat and should lose some weight, might humiliate him, he might give some wellmeant friendly advice, or he might even be joking if he himself is a little chubby. It is impossible to reconstruct the atmosphere of an interrogation by testimonial evidence. Thus, police interrogation has to be controlled either by mandatory defense counsel for the defendant or through videotaping the interrogation.

139 Bram v. United States, 168 U.S. 532, 565 (1897) citing Russell on Crimes; cf. Brady v. United States, 397 U.S. 742, 754 (1970). 140 Bram v. United States, 168 U.S. 532, 542, 543 (1897). 141 BGH NJW 2017, 1253, 1255.

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1. Videotaping the Interrogation For the United States, videotaping the interrogation is certainly not a new idea. For example, the Supreme Court of Alaska has required since 1985 that in-custody interrogations are to be taped as a mandate of the state constitution’s due process clause.142 Effective from January 2020, section 136 of the German Code of Criminal Procedure prescribes that in homicide cases interrogations must be audio-video taped as a rule. The taping is also mandatory if the interests of juvenile or mentally impaired defendants are better served by such a recording. Restricting the rule to murder cases and special defendants is, of course, rather narrow. Moreover, exceptions are provided for, e.g., if an interrogation in a homicide case has to be conducted instantly. At least, an important step in the right direction has been made by the legislature. To be sure, audio-video tapes not only work in favor of (maybe guilty) defendants but in favor of the interrogating officers as well. If there is no influence exercised besides the mere fact that questions were asked, there is no or little chance for the defendant to successfully claim that the confession was unfairly elicited and is unreliable.143

2. Presence of Defense Counsel As an alternative, in those cases in which defense counsel is mandatory for trial proceedings, counsel should be appointed earlier, before the first interrogation takes place. In these cases defense counsel is deemed necessary by the German Constitutional Court to ensure a fair trial. Defense counsel is considered as a guarantee and a prerequisite to make sure that truth is found and justice done at the trial stage.144 Therefore, defense counsel cannot be regarded as a hindrance to justice at the investigative level. The

142 Stephen v. Sate, 677 S.W.2d 42 (Tex. Crim. App. 1984); Leo 34 Law Hum. Beh. 3, 25 (2010); Kamisar 12 Ohio St.J.Crim.L. 645, 649 (2015); cf. Slobogin Vanderbilt University Law School Public Law and Legal Theory Working Paper, 1, 31 et seq. (2016). 143 Cf. Leo Police Interrogation and American Justice, p. 293; Reinhold/Schweizer/ Scheer Kriminalistik 2016, 120, 123. 144 BVerfGE 65, 171, 174 (no highlighting in original).

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rights of the accused guaranteed in the mansion of trial proceedings, must be honored in the gatehouse of police interrogation as well.145 It is to be welcomed that a draft to reform the law of court-appointed mandatory defense counsel transposing directives of European law146 into national law explicitly provided that defense counsel has to be appointed, at the latest, before questioning by the police. Again, exceptions from this general rule were provided for, but, nevertheless, this was considered to be a tremendous amendment of the Code of Criminal Procedure.147 Nevertheless, to be sure: the draft ran into strong headwinds by the state secretaries of justice who were afraid of unacceptable consequences because there would be fewer confessions; they feared that the reputation of the rule of law would be damaged.148 Thus, the original draft was watered down considerably by a later version which became the law.149 An answer to such criticism has already been given by Justice Goldberg in 1965 writing for the majority of the U.S. Supreme Court in Escobedo v. Illinois: “No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise these rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system.”150

V. Conclusion Based on the self-incrimination privilege, all manipulative interrogation techniques like deception, trickery, flattery, or minimizing the seriousness of the crime charged should be banned. They do not serve the truth finding process of criminal procedure, but rather enhance the danger of false

145 Kamisar Police Interrogation and Confessions, p. 27 (reprint); cf. Kamisar 12 Ohio St.J.Crim.L. 645 (2015). 146 Art. 4 para. 5 Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings. 147 Schoeller StV 2019, 190, 194. 148 See https://www.bild.de/politik/inland/politik-inland/barley-will-prozesskosten-h ilfe-massiv-ausweiten-59241390.bild.html. 149 Cf. Jahn/Zink StraFo 2019, 318, 325-327. 150 Escobedo v. Illinois, 378 U.S. 478, 490 (1964), opinion delivered by Justice Goldberg.

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confessions. In hindsight, it is generally impossible to decide which part of an induced confession was actually influenced by manipulative tactics.

References Adler, Frank/Hermanutz, Max: Strukturierte Vernehmung im strafrechtlichen Ermittlungsverfahren – Hinweise für die polizeiliche Praxis, Kriminalistik 2009, pp. 535 et seq. Artkämper, Heiko: Belehrung und Vernehmung von Beschuldigten, Kriminalistik 2007, pp. 517 et seq. Artkämper, Heiko/Schilling, Karsten: Vernehmungen, 5. Ed., Hilden/Rhld. 2018. Bauer, Günther: Moderne Verbrechensbekämpfung, Band 1, Lübeck 1970. Berghäuser, Gloria: Praxiskommentar zu BGH, Urteil v. 28.6.2018 – 3 StR 23/18 – Beschuldigtenvernehmung im Vorfeld der Vorführung vor dem Ermittlungsrichter, Neue Zeitschrift für Strafrecht 2018, p. 736 (cited: Berghäuser NStZ 2018). Berresheim, Alexander/Capellmann, Michael: Personen mit und ohne Aussagewiderstand – Taktische Kommunikation im Rahmen der Strukturierten Vernehmung, Kriminalistik 2013, pp. 93 et seq. Beulke, Werner/Swoboda, Sabine: Strafprozessrecht, 14. Ed., Heidelberg 2018. Degener, Wilhelm: § 136a StPO und die Aussagefreiheit des Beschuldigten, Goltdammer’s Archiv für Strafrecht 1992, pp. 443 et seq (cited: Degener GA 1992). Driver, Edwin D.: Confessions and the Social Psychology of Coercion, Harvard Law Review vol. 82 (1968), pp. 42 et seq. Dworschak, Manfred: Das eingebildete Leben, Der Spiegel Nr. 1 2016, pp. 14 et seq. Eisenberg, Ulrich: Beweisrecht der StPO, 10. Ed., München 2017. Fuchs, Bernd: Die lange Nase des Pinocchio, Kriminalistik 2016, pp. 658 et seq. Gohara, Miriam S.: A Lie for a Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques, Fordham Urban Law Journal vol. 33 (2006), pp. 791 et seq. Gössweiner-Saiko, Theodor: Vernehmungskunde, Graz 1979. Graf, Peter (publisher): Beck’scher Online-Kommentar Strafprozessordnung, 35. Ed. 2019 (Stand 1.10.2019) (cited: author in BeckOK-StPO). Hannich, Rolf (publisher): Karlsruher Kommentar zur Strafprozessordnung: StPO, 8. Ed., München 2019 (cited: author in KK-StPO). Hermanutz, Max/Seibold, Sven: Vernehmung in Theorie und Praxis, 3. Ed., Stuttgart 2012. Hermanutz, Max/Adler, Frank: Strukturierte Vernehmung mit Vernehmungskarten, Kriminalistik 2012, pp. 363 et seq. Herren, Rüdiger: Die Vernehmung als soziale Kommunikation – Strategie und Gegenstrategie, Archiv für Kriminologie vol. 159 (1977), pp. 129 et seq.

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Self-Incrimination Privilege and Interrogation. A German and Comparative View Heubrock, Dietmar/Palkies, Petra: Der Rapport – Grundlagen und Anwendung eines taktischen Kommunikationsmittels in der Beschuldigten- und Zeugenvernehmung, Kriminalistik 2008, pp. 602 et seq. Inbau, Fred E./Reid, John E./ Buckley, Joseph P./Jayne, Brian C.: Criminal Interrogation and Confessions, 5. Ed. 2013. Jahn, Matthias/Zink, Sarah: Lage und Perspektive für die Beschuldigten- und Verteidigungsrechte in Europa, Strafverteidiger Forum 2019, pp. 318 et seq (cited: Jahn/Zink StraFo 2019). Kamisar, Yale: Police Interrogation and Confessions: Essays in Law and Policy, 1980. Kamisar, Yale: A Look Back at the Gatehouses and Mansions of American Criminal Procedure Commentaries, Ohio State Journal of Criminal Law vol. 12 (2015), pp. 645 et seq. Kassin, Saul M.: False Confessions Causes, Consequences, and Implications for Reform, Current Directions in Psychological Science vol. 17 (2008), 249 et seq. Kassin, Saul M./Drizin, Steven A./Grisso, Thomas/Gudjonsson, Gisli H./Leo, Richard A./ Redlich, Allison D.: Police-Induced Confessions: Risk Factors and Recommendations, Law and Human Behavior vol. 34 (2010), pp. 3 et seq. Knauer, Christoph: Anmerkung zu BGH, Beschl. V. 20.10.2014 – 5 StR 176/14 – Pflichtverteidigerbestellung im Ermittlungsverfahren, Neue Zeitschrift für Strafrecht 2014, pp. 722 et seq (cited: Knauer NStZ 2014). Kölbel, Ralf/Puschke, Jens/Singelnstein, Tobias: Zum Stand, zur Notwendigkeit und zu den Aussichten der Prozessfehler- und Fehlerurteilsforschung, Goltdammer’s Archiv für Strafrecht 2019, pp. 129 et seq (cited: Kölbel/Puschke/Singelnstein GA 2019). König, Stefan/Deckers, Rüdiger/et al.: Stellungnahme des Deutschen Anwaltvereins zur Reform der Tötungsdelikte, Nr. 1/2014. Loftus, Elizabeth F.: Eyewitness Testimony, 1979. Leo, Richard A.: Police Interrogation, False Confessions, and Alleged Child Abuse Cases, University of Michigan Journal of Law Reform vol. 50 (2017), pp. 693 et seq. Leo, Richard A.: Police Interrogation and American Justice, 2008. Lesch, Heiko Hartmut: Inquisition und rechtliches Gehör in der Beschuldigtenvernehmung, Zeitschrift für die gesamte Strafrechtswissenschaft 111 (1999), pp. 624 et seq (cited: Lesch ZStW vol. 111 [1999]). Löwe, Ewald/Rosenberg, Werner: Kommentar zur StPO, 26. Ed., Berlin 2007 (cited: LR-author). Meinert, Franz: Vernehmungstechnik, 4. Ed., Lübeck 1956. Milne, Rebecca/Bull, Ray: Pschychologie der Vernehmung, Mannheim 2003. Ofshe, Richard J./Leo, Richard A.: The Decision to Confess Falsely: Rational Choice and Irrational Action, Denver University Law Review vol. 74 (1997), pp. 979 et seq. Ransiek, Andreas: Die Rechte des Beschuldigten in der Polizeivernehmung, Heidelberg 1990.

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Andreas Ransiek Ransiek, Andreas/Winsel, André: Die Selbstbelastung im Sinne des „nemo tenetur se ipsum accusare“-Grundsatzes, Goltdammer’s Archiv für Strafrecht 2015, pp. 620 et seq (cited: Ransiek/Winsel GA 2015). Reinhold, Sandra/Schweizer, Claudia/Scheer, Guntram: Suggestion – Die Bedeutung des Phänomens im Rahmen polizeilicher Vernehmung, Kriminalistik 2016, pp. 120 et seq. Roxin, Claus/Schünemann, Bernd: Strafverfahrensrecht, 29. Ed., München 2017. Satzger, Helmut/Schluckebier, Wilhelm/Widmaier, Gunter: StPO – Kommentar, 4. Ed., Köln 2020 (cited: author in Satzger/Schluckebier/Widmaier). Schoeller, Sven: Das neue Recht der Pflichtverteidigung – richtlinienkonformer und praktikabler Prozesskostenhilfeersatz?, Strafverteidiger 2019, pp. 190 et seq (cited: Schoeller StV 2019). Schröer, Norbert: Das Dominanzgefälle in polizeilichen Beschuldigtenvernehmungen – Und das Problem der Geständnismotivierung, Kriminalistik 2004, pp. 523 et seq. Schulhofer, Stephen J.: Reconsidering Miranda, University of Chicago Law Review vol. 54 (1987), pp. 435 et seq. Slobogin, Christopher: Manipulation of Suspects and Unrecorded Questioning: After 50 Years of Miranda Jurisprudence, Still Two (or Maybe Three) Burning Issues, Vanderbilt University Law School Public Law and Legal Theory Working Paper (2016), pp. 1 et seq. (Boston University Law Review vol. 97 (2017), pp. 1157 et seq.). Stern, Steffen: Der Geständniswiderruf in der Strafverteidigerpraxis, Bielefeld 1986. Sticher, Birgitta: Erwerb und Erhalt von Vernehmungskompetenz während des gesamten Berufslebens, Kriminalistik 2016, pp. 659 et seq. Soiné, Michael: Identitätsfeststellung und Vernehmung festgenommener Personen im Anschluss an grenzüberschreitende Nacheile im Schengen-Raum, Zeitschrift für Internationale Strafrechtsdogmatik 2016, pp. 319 et seq (cited: Soiné ZIS 2016). Strate, Holger: Das falsche Geständnis – zum Fall Holger Gemser, Festschrift für Ulrich Eisenberg zum 80. Geburtstag, Berlin 2019, pp. 529 et seq (cited: Strate FS Eisenberg, 2019). Weber, Annette/Berresheim, Alexander/Capellmann, Michael: Die Strukturierte Vernehmung – Die Methode für die Praxis der Polizei in NRW, Kriminalistik 2011, pp. 169 et seq. Weber, Annette/Berresheim, Alexander: Polizeiliche Vernehmungen – Oder: Schon aus Erfahrung gut?, Kriminalistik 2001, pp. 785 et seq. Weßlau, Edda: Zwang, Täuschung und Heimlichkeit im Strafverfahren – über die Mitwirkungsfreiheit des Beschuldigten und deren Grenzen, Zeitschrift für die gesamte Strafrechtswissenschaft 110 (1998), pp. 1 et seq (cited: Weßlau ZStW vol. 110 [1998]). Wolter, Jürgen (publisher): SK-StPO - Systematischer Kommentar zur Strafprozessordnung mit GVG und EMRK, 5. Ed., Köln 2016 (cited: author in SK-StPO).

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Abbreviations BGH BGHSt BVerfG BVerfGE EGMR JuS LG NJW NStZ NStZ-RR StV U.S.

Bundesgerichtshof Entscheidungen des Bundesgerichtshofes in Strafsachen Bundesverfassungsgericht Entscheidungen des Bundesverfassungsgerichts Europäischer Gerichtshof für Menschenrechte Juristische Schulung Landgericht Neue Juristische Wochenschrift Neue Zeitschrift für Strafrecht Neue Zeitschrift für Strafrecht Rechtsprechungs-Report Strafrecht Strafverteidiger United States Supreme Court Reports

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Structural Police Deception in American Police Interrogation: A Closer Look at Minimization and Maximization Richard A. Leo*

I.

Introduction

183

II. The Structural Logic of Police Deception During American Interrogation

185

III. False Evidence Ploys

188

(A) Simple Evidence Ploys

189

(B) Orchestrated Evidence Ploys

192

IV. Minimization and Maximization Interrogation Techniques

195

V.

201

Conclusion

References

204

I. Introduction On September 7, 1988, Martin Tankleff, a 17-year-old high school senior in Long Island, New York, discovered his parents had been attacked in the bed of their home: his mother had been stabbed to death, but his father, who had been severely beaten, remained alive but comatose. Tankleff immediately called the police, who took him in for questioning after an ambulance with his parents had departed from their home. Suspecting that Tankleff had been involved in the brutal attack on his parents, Long Island detectives interrogated Tankleff for five hours and ultimately elicited a confession of guilt from him. During the lengthy, unrecorded interrogation, they told Tankleff that his hair was found in his mother’s hand, that they had performed a “humidity test” showing he had showered to wash off blood from the attack, and that his father had regained consciousness at the hospital after being pumped full of adrenaline and that his father had identified Tankleff as his parents’ attacker. But these were all outright lies:

* Hamill Family Professor of Law and Psychology, University of San Francisco.

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Tankleff’s hair had not been found in in mother’s hand, there had been no “humidity test,” and Tankleff’s father never regained consciousness and would die less than a month after the attack. Tankleff, however, assumed these assertions to be true because he trusted the police, did not know it was legal for them fabricate evidence against him, and believed that his father would never lie. As a result, Tankleff came to believe during the interrogation that he must have committed the brutal attack on his parents despite having no memory of doing so. Despite substantial evidence of innocence (Leo and Ofshe, 1998, 2001), based on his interrogation induced confession, Tankleff was convicted of murdering his parents and would spend more than 17 years in prison before his conviction was vacated and he was exonerated (Firstman and Salpeter, 2008)). The interrogation technique Long Island detectives used when telling Martin Tankleff that his mother’s hair was in his hand, he had failed the “humidity test,” and that father had regained consciousness and identified him as the assailant is known as a false evidence ploy, a term that Richard Ofshe and I coined in 1997 (Ofshe and Leo, 1997a, 1997b) but which has become so widely used in the academic literature that it is no longer accompanied by any citation (see, e.g., Kassin et al., 2010). Whether police should be allowed to use false evidence ploys is controversial in American scholarship, but in practice they are recommended by police interrogation training manuals (Inbau et al., 2013; Zulawski and Wicklander, 2003), routinely used in American police interrogation rooms (Leo, 1996a; Feld, 2013) and are legally permitted in America almost without limitation (Frazier v. Cupp, 1969; Illinois v. Perkins, 1991), though they are not allowed in many other democratic countries, including Germany. Empirical scholarship about police deception during interrogation tends to focus almost exclusively on the use, effects and morality of false evidence ploys (see, e.g., Stewart, Woody and Pulos, 2016; Woody, Forrest and Yendra, 2014; Wright, Wade and Watson, 2013; Forrest, Woody, Brady, Batterman, Stastny, and Bruns, 2012; Nash and Wade, 2009; Woody and Forrest, 2009) as opposed to other types of deceptive interrogation techniques. These analyses of false evidence ploys are often treated in isolation from the larger psychological and adversarial logic and contradictions of American police interrogation more generally. In this chapter I will argue that police deception during interrogation in the United States should be understood in the broader context of the American adversary system, and, after a brief literature review, I will focus specifically on the deceptive aspects of minimization and maximization interrogation techniques. More specifically, in Part II of this chapter, I will discuss the structure, psychology and context of American police interroga184

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tion in which the use of deceptive techniques occur. I will discuss how and why American police interrogation is structurally -- and thus inherently -deceptive. In Part III, I will discuss the psychology of evidence ploys generally and different types of false evidence ploys in particular. In Part IV, I will focus on a different type of deceptive technique that scholars tend to overlook when discussing police deception during interrogation: minimization and maximization techniques that implicitly, but deceptively, communicate through pragmatic implication that a suspect will receive more lenient treatment from criminal justice officials and/or the legal system if he or she confesses (minimization), but that he or she will receive harsher treatment from criminal justice officials and/or the legal system if he or she does not (maximization) (Kassin and McNall, 1991). I will discuss why minimization and maximization interrogation techniques should be studied not only as a form of psychological coercion (implicit promises and threats via pragmatic implication) and risk factor for false confession (as has been well documented), but also as a deceptive interrogation technique that is integral to the psychology and structure of modern American police interrogation. Finally, in part V, I will offer some concluding observations about the implications of my analysis in this chapter.

II. The Structural Logic of Police Deception During American Interrogation As mentioned earlier, most empirical scholarship about the use of police deception during interrogation is about the use, effects and/or morality of false evidence ploys (Stewart, Woody and Pulos, 2016; Woody, Forrest and Yendra, 2014; Wright, Wade and Watson, 2013; Forrest, Woody, Brady, Batterman, Stastny, and Bruns, 2012; Perillo and Kassin, 2011; Nash and Wade, 2009; Woody and Forrest, 2009). This is how social science and legal scholars, particularly empirical researchers, typically research and write about police deception during interrogation. It is also the way that courts have typically conceptualized police deception during interrogation (i.e., as lies about evidence). But there is a much deeper level of deception that rarely gets talked about: structural (as opposed to technique) police deception during interrogation. As I have argued elsewhere (Leo, 2008), American police interrogation is strategically manipulative and deceptive because it occurs in the context of a fundamental contradiction. On the one hand, police need incriminating statements and admissions to solve many crimes, especially serious ones; on the other hand, there is almost never a good reason for suspects to provide them. Police are under tremendous organizational and social pressure 185

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to obtain admissions and confessions. But it is rarely in a suspect’s rational self-interest to say something that will likely lead to his prosecution and conviction. American police in the modern era have succeeded in eliciting confessions by developing methods that rely on fraud, persuasion, and impression management in order to overcome the fundamental contradiction. Their goal is to elicit incriminating statements from suspects in order to build the strongest possible case against them and thereby assist the prosecution in securing conviction. The fundamental contradiction of American police interrogation occurs in an adversarial context. Police interrogation in America is adversarial in the sense that it is embedded in a particular set of adversarial rules, values and practices. American police interrogators are highly partisan, strategic and goal directed agents of the prosecution. The entire process of interrogation is structured to advance the penal interests of the state and secure a conviction. Yet, unlike courtroom lawyers, police interrogators do not represent themselves as the suspect’s adversary. Instead, they portray themselves as the suspect’s advocate. To advance the state’s interests, American interrogation is designed to create a number of illusions: that the suspect has no meaningful option other than to comply with the interrogator’s wishes and demands; that the interrogator’s motivation is really to help the suspect; and that the suspect is better off by admitting some version of guilt than by denying culpability or terminating the interrogation. To persuade a suspect of these illusions, American police regularly rely on psychological interrogation techniques that involve deception, trickery and manipulation (Leo, 2008; Inbau et al, 2013; Zulawski and Wicklander, 2003). American police interrogation is thus steeped in two types of deception: individual interrogation technique-level deception, such as inventing or falsifying case evidence against a suspect, and structural-level interrogation deception, such as pretending to be the suspect’s advocate rather than adversary and trying to create the illusion that interrogators share a common interest with the suspect and that he can escape or mitigate punishment by cooperating with them and providing a full confession. Although the suspect’s self-interest would usually best be served by reaming completely silent, interrogators seek at every step to convince him that what is in their professional self-interest is actually in his personal self-interest. The entire interrogation process is carefully staged to hide the fact that police interrogators are the suspect’s adversary, and that it is not in his best interest to confess but in the state’s. While police investigators portray themselves as seeking only to “collect the facts” and help the suspect if he cooperates, they, of course, try to construct a damning case against him. Besides ob186

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scuring the purpose of the interrogation, pretending that their motivation is really to help the suspect, and conveying that he is best served by confessing, detectives regularly lie to suspects about why suspects are being questioned, the seriousness of the crime, the evidence the police possess, and sometimes even about the consequences the suspect faces. The structure, culture and practice of American police interrogation are orchestrated to maximize the state’s ability to prosecute the suspect and to undermine his ability to present a successful defense later in the trial process. The adversarial model of American police interrogation can only succeed if police keep their agenda hidden, not only from suspects, but also from courts, the media and the public. American police treat interrogation as a game (Leo, 1996b). As in other games, the aim is to win. Winning involves outsmarting the suspect, overcoming his resistance, obtaining compliance, and eliciting an admission or confession. Contrary to the myths of American justice, the goal of police interrogation is not necessarily to determine the truth. From the detective’s perspective, a confession ideally will consist of the truth and thus confirm the accuracy of his presumption of guilt, but the interrogation process does not always achieve its ideal result; it is structured to promote incrimination, if necessary, over truth-finding. As I have written elsewhere (2008), and as Christopher Slobogin alludes to in his chapter in this volume (2020), the logic of American police interrogation and that of plea bargaining are remarkably similar: both are based on creating resignation, fear and the perception that the only way to mitigate punishment is by accepting the state’s deal. In both plea bargaining and interrogation, the state attempts to extract a confession to a crime scenario that it believes is at least partially untrue by persuading the suspect or defendant that the state already has strong enough evidence against him to win a conviction at trial; that if the state must take his case to trial, it will extract the maximum punishment possible; but that if the suspect or defendant spares the state the time and expense of proving his guilt at trial, it will reward him with reduced punishment. Yet both create the appearance of allowing the accused to negotiate how the facts of his crime will be constructed, and how his culpability will be framed, in order to receive leniency. Both interrogation and plea bargaining allow police and prosecutors to rationalize the accused’s acceptance of the deal as an act of contrition rather than a response to the state’s coercive powers. The American system of plea bargaining is fundamentally a system of deal-making in exchange for self-incrimination – a process that begins during the investigative state of detective work, well before the filing of any charges by the

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prosecutor, the negotiation of any reductions by defense counsel, or the ratification of any two-party deals by the judge. American police interrogation is therefore a kind of pre-plea bargaining because it resembles the potentially coercive psychology of plea bargaining but occurs prior in time (Leo, 2008). At the root of virtually every interrogation is the message, whether implicit or explicit, that the suspect will receive intangible or tangible benefits in exchange for his confession that he must act on the opportunity to tell his side of the story will expire along with the benefits. Psychological interrogation is, by necessity, based on the appearance or reality of bargaining because the suspect can only come to see the act of confessing as in his self-interest if he perceives that there is a benefit to gain from it or a harm to avoid. Although American detectives do not possess prosecutorial powers, they often imply or overstate their ability to influence the prosecutor’s decision-making and negotiate a charge or sentence reduction. The use of deception is an adaptive strategy that American police have developed over the years to move away from the “third degree” (the use of physical and psychological coercion and distress to obtain confessions) and achieve maximum strategic advantage over the suspect while remaining within the mostly vague and highly discretionary constitutional guidelines that constrain them. It is employed to rationally achieve their goals of incrimination and conviction (Leo, 2008). It is in this context that we must understand the use of individual interrogation techniques that are deceptive.

III. False Evidence Ploys A great deal has been written about the use of deception by police in the American scholarly literature (Klockars, 1980; Skolnick, 1982; Kleinig, 1996). Most of this literature focuses on the use, effects, and morality of evidence ploys. An evidence ploy has been defined as any attempt by interrogators to make the suspect believe they possess incriminating evidence against him (Leo, 2008). Evidence ploys are one of the most fundamental and common techniques of modern psychological interrogation (Leo, 2008). Repeated often, they are also one of the most effective (Kassin et al., 2010; Ofshe and Leo, 1997a, 1997b). Evidence ploys may be either true or false: if interrogators possess actual evidence against a suspect, they will confront him with it as they press him to confess; these are known as true evidence ploys. If interrogators do not possess any actual evidence against a

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suspect, they will often pretend that they do and confront him with it as if it exists; these are known as false evidence ploys. Evidence ploys are used to make a suspect perceive that the case against him is so overwhelming that he has no choice but to confess because no one will believe his assertions of innocence. Whether an evidence ploy is true or false, the psychological effects should be the same so long as the suspect believes that the alleged evidence is real. Most suspects, after all, do not know that police can lie about evidence when questioning people, and many are shaken when police tell them that evidence exists that proves their guilt and then begin to enumerate it. Evidence ploys informally shift the burden of proof away from the detectives to the suspect. Evidence ploys communicate that the suspect is caught, that his guilt is beyond dispute, that his fate is now certain, and that the case against him will not go away no matter how hard he tries to resist the interrogators’ accusations or argue against the evidence. There are many different types of evidence ploys (Leo, 2008). What I have previously called simple evidence ploys are those in which interrogators confront the suspect with one or more pieces of real or false evidence while expressing confidence in their belief in the suspect’s guilt. What I have called orchestrated evidence ploys are those in which interrogators confront the suspect with evidence from a situation that has been social orchestrated, typically by moving the suspect through a testing examination process that is intended to create the appears of more potent and thus irrefutable incriminating evidence. Within these two general categories, there are many different types of evidence that interrogators may draw on in their ploys, including what Feld (2013) and Woody, Forrest Yendra (2014) have called implied or implicit false evidence ploys (i.e., evidence ploys that ask suspects about potential or hypothetical false evidence without making a direct claim to possess the evidence).

(A) Simple Evidence Ploys Simple evidence ploys generally rely on three different types of evidence: demeanor evidence, testimonial evidence, and real or alleged scientific, medical or technological evidence. American interrogators are trained that they can accurately interpret whether a suspect is lying or telling the truth from his body language, speech, and nonverbal behavior (Inbau et al., 2013; Zulawski and Wicklander, 2003; but see Vrij, 2008). They will sometimes treat a suspect’s body language and demeanor as if it is evidence of his guilt, and then confront him with their perceptions as conclusive evidence of his 189

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guilt. Sometimes interrogators will tell a suspect that his body language is an indication of remorse (Leo, 2008). Another type of simple evidence ploy relies on testimonial evidence. Testimonial evidence may be the easiest type for interrogators to gather against a suspect when it exists and among the easiest to fabricate when it does not: investigators simply attribute statements of others implicating the suspect and confront him with them. Typically there are four types of testimonial evidence: statements incriminating the suspect made by victims; eyewitnesses and bystanders; co-perpetrators or accomplices; and other relevant third parties. Confronting a suspect with real or alleged statements from victims can be powerful, in part because American interrogators typically present victims as pure, with no involvement in the crime, and with no reason to lie. American interrogators often present the accusation by the victim as overwhelming evidence of the suspect’s guilt. The suspect’s repeated denial is thus pitted against the inherently more credible victim. The implication is clear: the suspect is the one who is lying, the victim’s statement will prove it, and therefore no one will believe the suspect. Interrogators shift the burden of proof onto the suspect, but then refuse to credit his denials. Often there is no way for the suspect to dispute the veracity of the victim’s accusations or identification other than to say that the victim is lying or mistaken. But interrogators will typically counter that the victim has no reason to lie and cannot be mistaken (Leo, 2008). Police interrogators routinely confront suspects with real or alleged eyewitness evidence, especially for crimes in public places or when it is possible for the police to make up an eyewitness. Interrogators often tell a suspect that an eyewitness, sometimes multiple eyewitnesses, witnessed the suspect commit the crime and accurately identified him (Leo, 2008). Typically interrogators tell a suspect that the eyewitness or eyewitnesses picked him out of a photo line-up or array, representing eyewitness testimony as potent and irrefutable (Leo, 2008). As evidence ploys go, eyewitness testimony tends to additive, especially when it is false, as interrogators can simply reference on eyewitness after another. False eyewitness evidence ploys are also often buttressed by alleged technological supports, such as hidden surveillance cameras or videos, which allow interrogators to tell the suspect that there is corroboration for the eyewitness identification when there is none (Leo, 2008). In multi-perpetrator crimes, interrogators often confront suspects with real or alleged statements by co-perpetrators or accomplices (Leo, 2008). American interrogators sometimes tell the suspect that his co-perpetrators or accomplices have identified him as participating in or even mastermind190

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ing the crime (Leo, 2008). This can have a powerful effect on a suspect who was either involved in the crime, knows who was involved, or was present at the scene. It can also have a strong effect on a suspect who is innocent but who comes to believe that he is being falsely identified or framed by the true perpetrators. Co-perpetrator evidence ploys can be especially potent because unlike most other evidence ploys, interrogators can use the real or alleged statements by co-perpetrators to attribute knowledge of the crime, a motive and specific activity to the suspect, thus implying that his conviction and punishment are certain (Leo, 2008). Interrogators who confront the suspect with co-perpetrator statements tend to suggest that if the suspect does not confess, he will go down for the crime alone and foreclose his only opportunity to make a deal. This posture is intended to feed the fear of exposure and the distrust of others that someone who actually perpetrated a crime may have. It is sometimes buttressed by supports – such as a co-perpetrator’s recorded or written statements implicating the suspect – if police actually possess such evidence. Interrogators will also confront suspects with opinion evidence of a third party whose views may matter to a suspect. It is common for interrogators to tell suspects not only that they do not believe his denials, but also that his family, parents, spouse, children, close friends or others in his social network do not believe them either (Leo, 2008). In addition to demeanor and testimonial evidence, simple evidence ploys often involve real or invented forensic, medial or technological evidence. This may be the most persuasive type of simple evidence ploy because it tends to carry the weight, authority, and presumed certainty of modern science and technology. Perhaps the most common type is print evidence, typically real or alleged fingerprints. Interrogators may allege that they have print evidence from virtually any part of their body, such as palm or hand prints, foot or shoe prints, head prints, teeth prints, and sometimes even penis prints. Police interrogators will occasionally tell suspects of special laser technologies that allow them to remove prints from any part of the human body (Leo, 2008). This type of evidence ploy trades on the popular mythology that print evidence is unique to each individual, never wrong, and therefore dispositive of a suspect’s guilt. Police interrogators also routinely confront suspects with other types of forensic evidence, such as ballistic or scent evidence (Leo, 2008). Interrogators will often confront suspects with real or alleged medical or scientific evidence, ranging from the opinions of doctors and other medical personnel (e.g., in sexual molestation cases where there is no actual evidence of sexual activity or assault) to physical evidence such as hair, blood, semen, and other bodily fluids. In many of these case that I have studied, 191

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interrogators will falsely tell the suspect that they have DNA evidence against him because of the aura of the infallibility of DNA evidence, even though some suspects do not know what DNA is (Leo, 2008). Police interrogators will confront suspects with evidence ploys that rely on modern or imaginary technologies. Such technologies often involve surveillance and photography of one sort or another that is alleged to have captured the suspect in the commission of the crime. Interrogators also tell suspects of technologies that supposedly allow police to retrieve evidence that the suspect does not know could exist (Leo, 2008). In murder cases, for example, interrogators may falsely tell suspects that through the use of modern technology they were able to retrieve images of the suspect killing the victim.

(B) Orchestrated Evidence Ploys The evidence ploys that interrogators represent as the most sophisticated tend to rely on so-called lie-detector technologies (Leo, 2008). Interrogators represent these technologies as scientific, sophisticated, and infallible (Lykken, 1998). Investigators orchestrate an examination process, sometimes lasting several hours, after which the suspect is confronted with the results of the test – invariably, that he failed – and again pressure him to confess based on this new information. Sometimes interrogators will ask suspects to take a lie detector test early in an interrogation. When this happens, they usually portray themselves as wanting to help the suspect and tell him that the purpose of the examination is to eliminate him from suspicion. It is far more common, however, for interrogators to ask the suspect to take a lie-detector test after he has repeatedly denied the interrogators’ accusations and refused to make an admission, usually one or more hours into the interrogation. At this point, detectives typically represent the lie-detector test as an opportunity for the suspect to prove his innocence, implying that if he does not take the test people will think he is guilty. Interrogators usually either assert or imply that this outcome will put an end to the interrogation and allow the suspect to go home. Not surprisingly, virtually all suspects consent to the lie-detection examination (Leo, 2008). Lie-detector evidence ploys are more orchestrated than the other types of evidence ploys mentioned above partly because interrogators need to involve third parties to administer the examination. Detectives typically either must pause the interrogation to find the administrator or reschedule this portion of the interrogation for a time when he is available. Interroga192

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tors tell suspects that the third party is a trained scientist or specialist in lie detection, or a neutral civilian or police employee who has no stake in the outcome of the test, and therefore is concerned only with finding the truth. More often than not, however, the lie-detection specialist is a police officer or detective dressed in civilian clothes, whose goal is to get a confession (Leo, 2008). There are two primary variants of lie-detection evidence ploys: the first relies on the traditional polygraph, or so-called lie detector, the second o the Computer Voice Stress Analyzer (CVSA) (Leo, 2008). With both, there are three phases: (1) the pre-lie detection phase in which the interrogating detective or technician educates the suspect about the supposedly scientific nature and near infallibility of the instrument, goes over the questions he is going to ask, and tries to impress upon the suspect the importance of telling the truth (sometimes telling the suspect what he believes the truth to be); (2) the actual administration of the examination; and (3) the postexamination interrogation in which the administrator of the exam or the interrogators confront the suspect with the alleged results and re-interrogate him. The post-examination re-interrogation is more forceful than before because the interrogators now confront the suspect with seemingly scientific results that they represent as virtually error-free (e.g., 99% accurate) and thus indisputable evidence that his denials are false and cannot withstand scrutiny. Like their counterparts, lie-detection evidence ploys are intended to break down a suspect’s resistance by persuading him that he has been exposed, that his denials are futile, and that there is no escape from the necessity of admitting guilt (Leo, 2008). The primary lie-detection instrument is the polygraph. Although many suspects have not heard of the word “polygraph,” most know a traditional lie detector is from television and the movies. Consistent with its portrayal in American popular culture, most suspects appear to believe in the near infallibility of polygraph results (Lykken, 1998). The polygraph may be administered in its traditional form or in its more modern computerized version, both of which involve attaching wires and straps to a suspect and generating graphically driven printouts of his physiological responses to different types of questions. When interrogators confront the suspect with his alleged failure of the test, they invariably tell him that the test’s alleged accuracy rate, sometimes showing the suspect the actual charges. Interrogators often represent the results of a polygraph as a pivotal point in the interrogation from which there is no turning back (Leo, 2008). Though used less frequently than the polygraph, the Computer Voice Stress Analyzer remains popular in some police departments. It is not well known among the public, however, and therefore is seen as more mystify193

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ing than the polygraph, a fact interrogators use to their advantage. Unlike the polygraph the CVSA is said to measure inaudible micro-tremors in the voice that register different decibels of stress based on whether a suspect is telling the truth or lying. Although no such micro-tremors actually exist, it is the perception, not the reality, that determines the success of evidence ploys during interrogation. The underlying principles and applications are the same as with the polygraph: police have a third party (again, usually another police officer or civilian employee whom they represent as neutral and concerned only with finding the truth) administer the exam, they tell the suspect he failed the exam, and then represent the results as scientific, infallible, and thus conclusive of the suspect’s guilt (Leo, 2008). Whether the orchestrated lie-detection evidence ploy is based on alleged polygraph or CVSA results, the effect is likely to be the same. Police use lie detection instruments during interrogation because they are believed to be the most potent evidence ploys available when the suspect refuse to stop denying his guilt. With both polygraph and CVSA results, interrogators strive to create the impression that the evidence against the suspect is indisputable (Leo, 2008). Regardless of their source, evidence ploys are powerful interrogation techniques because they can authoritatively back a suspect into a corner from which he cannot escape through denial. Used repetitively and in combination with other interrogation techniques, evidence ploys often help eliminate resistance to getting a confession (perhaps more than any other interrogation technique). Some evidence ploys, of course, are more persuasive than others, and their persuasiveness will also vary by the type of crime under investigation, the context in which the evidence ploy is used, and its timing and repetition. True evidence ploys are one of the primary techniques that lead suspects to confess in routine cases. False evidence ploys often cause innocent suspects to perceive their situation as hopeless (Ofshe and Leo, 1997a, 1997b), and thus are not only present but also a significant factor in virtually every police-induced false confession in America (Leo and Ofshe, 1998; Drizin and Leo, 2004; Leo, 2008). Evidence ploys are also highly successful at eliciting confessions because they are part of a general strategy of communicating omniscience, exposure and capture (Leo, 2008). Interrogators often tell a suspect they know all the facts but just need to hear what happened from the suspect, or that they know more than the suspect knows or thinks he knows, or even that they possible evidence against the suspect of which he is unaware. It is not uncommon, for example, for interrogators to tell a suspect that they know the answer to every single question they ask the suspect but just want to make sure he is not lying to them (Leo, 2008). Evidence ploys are embed194

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ded in representations about omniscience because interrogators want to communicate their full knowledge not only of the incriminating evidence against the suspect but also of what he did and how he did it, so that he comes to perceive that he cannot escape detection. Combined with appeals to omniscience, evidence ploys communicate that a suspect has been captured and therefore is powerless to resist the interrogators’ accusations or demands to confess (Leo, 2008). False evidence ploys are therefore the quintessential form or deception and trickery in American police interrogations. Though not regarded in law as coercive or likely to elicit involuntary confessions by themselves, empirical studies show that civilians regard false evidence ploys to be coercive (Leo and Liu, 2009; Blandon-Gitlin, Sperry and Leo, 2011).

IV. Minimization and Maximization Interrogation Techniques In 1991 Saul Kassin and Karlyn McNall coined the terms minimization and maximization. They defined minimization at “a soft-sell technique in which the police interrogator tries to lull the suspect into a false sense of security by offering sympathy, tolerance, face-saving excuses, and even moral justification, by blaming a victim or accomplice, by citing extenuating circumstances, or by playing down the seriousness of the charges” (Kassin and McNall, 1991: 235). They defined maximization as, “a hard sell technique in which the interrogators tries to scare and intimidate the suspect into confessing by making false claims about evidence (e.g., staging an eyewitness identification or a fraudulent lie-detector test) and exaggerating the seriousness of the offense and magnitude of the charges” (Kassin and McNall, 1991: 234-235). These definitions loosely described a technique from the Reid Method of interrogation known as Presenting the Alternative Question, (Inbau, Reid, and Buckley, 1986: 165). Inbau et al describe this technique as: “In the context of interrogation techniques, an alternative question is one that presents to the suspect a choice between two explanations for possible commission of the crime….To this point, the interrogator will have focused on such techniques as minimizing the moral seriousness of the crime or on offering psychological excuses or justifications for the suspect’s criminal behavior. The alternative question technique climaxes those basic concepts by presenting to the suspect a choice between an inexcusable or repulsive motivation for committing the crime and one that is attributable to error or the frailty of human nature. For example, in an armed robbery case in which the victim was shot, the alternative question may be: “Joe, 195

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did you shoot him on purpose, or did the gun go off accidentally?” Intentional shooting obviously presents an indefensible choice, whereas an accidental shooting constitutes an acceptable alternative.” What Inbau et al. call Presenting the Alternative Question is at the heart of the Reid Method of Interrogation (Inbau et al., 2013; Senese, 2005). It involves constructing two scenarios for each alleged crime: a good scenario that seeks to minimize the seriousness of the alleged act and its consequences by portraying the suspect’s intent and the cause of the act in their most sympathetic light (minimization) and a bad scenario that portrays the suspect’s intent in its worst possible light, thus exaggerating the seriousness of the act or its consequences (maximization). Interrogators use this strategy to persuade the suspect that if he fails to minimize his blameworthiness or culpability by adopting the good scenario, everyone who matters (e.g., friends, family, the victim, the police, the prosecutor, judge and jury) will come to believe the bad scenario, as it will become the official narrative of his crime and he will suffer the harsher consequences. While the Reid Technique of Presenting the Alternative Question describes minimization and maximization, it does not describe the use of the false evidence ploys, an entirely separate interrogation technique that the Reid manual has also advocated for decades, though Kassin and McNall conflated the two techniques (i.e., maximization with presenting false evidence) in their definition of maximization. Following Ofshe and Leo’s (1997a, 1997b) coining of the term false evidence ploy six years after Kassin and McNall’s 1991 article, empirical scholarship on deception during interrogation has focused almost exclusively on the technique of presenting suspects with false and non-existent evidence (Stewart, Woody and Pulos, 2016; Woody, Forrest and Yendra, 2014; Wright, Wade and Watson, 2013; Forrest, Woody, Brady, Batterman, Stastny, and Bruns, 2012; Nash and Wade, 2009; Woody and Forrest, 2009), not on minimization or maximization. Empirical scholarship on minimization and maximization has focused on the nature of the inducements – that is, the scenario-based appeals to self-interest if the suspect confesses and the scenario-based appeals to self-harm if he does not – that minimization and maximization imply, not on deception or false evidence (Russano et al., 2005; Narchet et al., 2011; Horgan et al., 2012). Kassin and McNall demonstrated that minimization techniques communicate implicit promises of more lenient treatment in exchange for confession through pragmatic implication just as maximization techniques communicate implicit threats of harsher treatment in the absence of confession. Numerous scholars have subsequently empirically documented, studied and analyzed minimization and maximization techniques in a wide variety of contexts (Ofshe and Leo, 1997a, 1997b; Russano, Meissner, Narchet 196

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and Kassin, 2005; Leo, 2008; Klaver, Lee and Rose, 2008; Davis and Leo, 2010; Horgan, Russano, Meissner, and Evans, 2012; Kelly, Russano, Miller and Redlich, 2019; Redlich, In Press). These techniques are commonly employed by police during interrogation in America (Leo, 1996a; Kassin, Leo et al., 2007; Katz, 1999; Feld, 2013) and Canada (King and Snook, 2009). Though scholars sometimes differ in how broadly or narrowly they use the terms minimization and maximization, every empirical study has found that minimization and maximization techniques often implicitly communicate promises of leniency and threats of differential punishment depending on whether the suspect confesses (promise) or continues to deny culpability (threat), though some minimization techniques do not (Ofshe and Leo, 1997a, 1997b; Leo, 2008; Horgan et al., 2012). Minimization and maximization interrogation techniques motivate suspects to confess – especially if they feel trapped and powerless by other interrogation techniques such as isolation, accusations, attacking denials, and various forms of interpersonal or social pressure that tend to precede the use of minimization or maximization -- by suggesting a chance to negotiate, mitigate or even escape punishment by choosing the least culpable and consequential of two opposing possible choices in exchange for agreeing to and/or admitting the interrogators’ accusations (Leo, 2008). In other words, minimization and maximization techniques work by changing the suspect’s perception of the consequences that will flow from confessing (positive) versus denial (negative) (Ofshe and Leo, 1997a, 1997b; Leo, 2008; Horgan et al., 2012). It is important to remember that from a psychological perspective, a person’s perceptions are his reality (Snyder, 1984): there is no difference between the two. Reality is only what we perceive it to be. Whether a promise or a threat is implicit or explicit therefore makes no difference if the suspect perceives the promise (in exchange for confession) or the threat (in the absence of confession) regardless of how implicitly or indirectly the promise or threat were communicated. If the suspect understands the message of the technique, then it is only a matter of how strongly he perceives the promise (in exchange for) or the threat (in the absence of) confession. Because minimization and maximization techniques have been empirically demonstrated to communicate promises of leniency and threats of harm, they should – to that extent -- be regarded as inherently psychologically coercive.1 Just like explicit promises and threats, minimization and maximization techniques that implicitly promise leniency or implicitly

1 Minimization and maximization techniques that do not imply leniency or threaten harm should not be regarded as psychologically coercive. For example, minimiza-

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threaten harm substantially increase the risk of causing a suspect to perceive that he or she has no meaningful choice but to comply with the interrogators’ demands and requests -- in order to avoid the implicitly threatened punishment and/or receive the implicitly promised leniency –and confess (Leo, 2008). For the same reason, minimization and maximization techniques should also be regarded as legally coercive to the extent they communicate that a suspect is more likely to receive lenient treatment or punishment if he confesses or more likely to receive harsher treatment or punishment if he does not. Like explicit threats and promises, which are regarded as coercive in American law and thus render subsequent confessions involuntary (Arizona v. Fulminante, 1991; Bram v. United States, 1897), minimization and maximization techniques substantially increase the risk of overbearing of a suspect’s will through frightening a suspect to perceive that the only way to mitigate, avoid or escape more punishment is by confessing. Thus, applying the 14th Amendment due process voluntariness test under American law, confessions elicited by police interrogations that rely on minimization and maximization techniques – to the extent these techniques communicate promises and threats, even if implicitly – should be ruled as inadmissible by trial courts properly applying the existing American constitutional criminal procedure and thus excluded from evidence at a defendant’s trial (Arizona v. Fulminante, 1991; Bram v. United States, 1891). Put differently, minimization and maximization interrogation techniques that communicate implicit promises and threats are, if interpreted correctly, legally impermissible under American law because they are coercive -- like all promises and threats, but unlike false evidence ploys2 – and thus result in involuntary confessions. Whether or not they are regarded as legally coercive by American courts in practice (and I suspect that they rarely are), minimization and maximization techniques are associated with, contribute to and/or cause false confessions from the innocent. Numerous experimental studies have empirically demonstrated that minimization and maximization techniques are not highly diagnostic of true confessions but instead substantially increase the risk

tion and maximization techniques rely on moral or psychological appeals to selfinterest, rather than legal inducements, typically do not communicate promise or threat by pragmatic implication (see Ofshe and Leo, 1997a, 1997b; Leo, 2008; Horgan et al., 2012; Kelly et al., 2019). 2 There has been recent movement among a few appellate courts toward considering false evidence ploys to be potentially coercive, and thus to have the capacity to elicit involuntary confessions, despite Frazier v. Cupp (1969). See, for example, People v. Thomas (2014) and In re Elias V. (2015). See also Heyl (2014)

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Structural Police Deception in American Police Interrogation

of eliciting false confessions (Russano et al 2005, Narchet et al 2010, Horgan et al 2012; For a review, see Kassin et al., 2010). For example, Russano et al. (2005: 484) found that the use of minimization techniques increased the false confession rate from 6% to 18%, decreasing the diagnosticity ratio of confession evidence (i.e., the ratio of true to false confessions) from 7.67 to 4.50. Minimization techniques plus an explicit deal increased the false confession rate from 6% to 43% (more than a 700% increase), and decreased the diagnosticity ratio of confession evidence from 7.67 to 2.02. Narchet et al (2011: 459) found that minimization techniques increased the false confession rate from 3% to 22% (reducing the diagnosticity ratio from 32 to 4.45), and maximization techniques increased the false confession rate from 3% to 11% (reducing the diagnosticity ratio of confession evidence from 32 to 8.36), but that the combined use of minimization and maximization techniques increased the false confession rate from 3% to 43% and reduced the diagnosticity ratio of confession evidence from 32% to 1.70%. Horgan et al (2012: 74) found that the use of minimization and maximization techniques that manipulated the suspect’s perceptions of the consequences of confessing (compared to minimization and maximization techniques that did not) increased the false confession rate by 100% -- from 21.2% to 42.4% -- and decreased the diagnosticity ratio of confession evidence from 4.58 to 1.93. These experimental studies show that minimization and maximization techniques -- especially those that manipulate suspect’s perception of tangible negative and positive consequences depending on whether he confesses or continues to deny -- substantially increase the risk of eliciting false confessions and substantially decrease the accuracy of confession evidence. Field studies of real world interrogations and false confessions provide evidence that is consistent with the findings from these experimental studies, and thus provide what empirical researchers describe as convergent validity (when two independent measures converge on similar findings). Studies of proven false confessions have shown that minimization and maximization interrogation techniques – communicating implicit promises and threats (if not explicit promises and threats) are almost always present in police interrogations leading to proven false confessions (Leo and Ofshe, 1998, 2001; Drizin and Leo, 2004). Studies of real world police interrogations have documented how minimization and maximization interrogation techniques (sometimes subsumed under the larger category of “inducements” or “incentives”) help move an innocent suspect from denial to admission by creating the perception that his situation is hopeless and that the most rational option available under the circumstances is to falsely confess (Ofshe and Leo, 1997a, 1997b; Leo, 2008). 199

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In sum, minimization and maximization techniques that communicate implicit promises and threats are psychologically coercive, lead to involuntary confessions under a proper interpretation of American constitutional law, and have been empirically demonstrated to be associated with, increase the risk of, and sometimes cause false confessions from the innocent (Kassin et al., 2010). The argument I am making in this chapter, however, is that minimization and maximization interrogation techniques need to be conceptualized not only as coercive but also as deceptive. They are deceptive on at least two levels: As interrogation techniques, they deceptively communicate that a suspect will receive (police, prosecutorial, judicial or juror) leniency in exchange for confessing and threaten harsher punishment (more and higher charges, a longer sentence, diversion from prison, for example) in the absence of punishment. But when police interrogators make (or imply) these representations, they cannot deliver on their (implied) promises. Nor do they have the control to issue or prevent their implied threats. In other words, the promises and threats police investigators communicate through pragmatic implication are lies just as representations about non-existent evidence in false evidence ploys are lies. This inherently deceptive feature of minimization and maximization interrogation techniques has been overlooked by scholars because it has been overshadowed by the more salient, coercive (implied promise/threat) aspect of minimization and maximization. But, on a more fundamental level, minimization and maximization interrogation techniques are structurally deceptive because they are part of parcel of the structure of adversarial American police interrogation, which, as I have described above, rests on a fundamental contradiction. On the one hand, police need incriminating statements and admissions to solve many crimes, especially serious ones; on the other hand, there is almost never a good reason for suspects to provide them because confessions are almost always against a suspect’s self-interest. Confessing to a crime, whether one is innocent or guilty, will almost certainly result in arrest, pre-trial deprivation of liberty, the filing of criminal charges, more and higher charges, a higher probability of conviction, less leverage in plea negotiations (if any at all), and a longer prison sentence. Confessing rarely, if ever, benefits or advantages a suspect during interrogation. As a result, police investigators must persuade the suspect to perceive that confessing is actually in his selfinterest and that denial somehow is not, when nothing could be further from the truth. Interrogators create the illusion that it is in the suspect’s best interest to confess in significant part by minimizing the blameworthiness, culpability and the consequences he will face if he confesses (implicitly promising leniency) and by maximizing the suspect’s blameworthiness, 200

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Structural Police Deception in American Police Interrogation

culpability and consequences if he does not (implicitly threatening harsher punishment). But police lack the ability or power to deliver on their implied promises, and they lack the ability or power to prevent their implied threats. They nevertheless intentionally mislead suspects to take on false beliefs in their efficacy and predictive powers, and then accuse suspects of “wishful thinking” when, consistent with research on the use of minimization and maximization techniques, suspects report that they inferred differential punishment outcomes depending on whether or not they confessed (Inbau, Reid, Buckley, Jayne, 2013). Minimization and maximization techniques are themselves a kind of pre-plea bargaining, but the implicitly promised reduction in punishment in exchange for confessing is a mirage. In this sense, minimization and maximization interrogation techniques – a sub-category of inducements that appeal to a suspect’s self-interest to confess more generally – are structurally deceptive. They are baked into the core structural logic of American, Reid-style (i.e., guilt-presumptive, accusatory, confirmatory, confession-driven) police interrogation as it is currently practiced – in which police detectives’ primary goal during interrogation is to build a case against a suspect in order to assist the prosecution in securing his conviction (Leo, 2008). Taking a big picture view of American police interrogation, one might say that false evidence ploys (what American investigators euphemistically call “ruses”) are relatively midrange interrogation lies whereas minimization and maximization techniques are part of the Big Lie that is inherent in American police interrogation.

V. Conclusion Police use of deception – misrepresentations, lies and trickery -- during interrogation has been controversial for many years. Though it remains legally impermissible in many European countries (including Germany), it is widely practiced in the United States (Leo, 1996a; Feld, 2013), sanctioned by a Supreme Court decision written more than a half-century ago (Frazier v. Cupp, 1969) by arguably the most liberal Supreme Court justice in the 20th century (Thurgood Marshall), and routinely recommended by American police interrogation training manuals and programs (Inbau et al., 2013). In America, deception may be the single most salient and defining feature of how interrogation is practiced. Along with the Reid Method, and a false confession problem that has been empirically unmatched anywhere else in the first world, deception is what is most distinctively American about police interrogation of suspects in criminal cases.

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Richard A. Leo

In this chapter, I have reviewed the primary way police interrogation deception has been conceptualized and empirically studied: through false evidence ploys, i.e., intentional misrepresentations about false and non-existent evidence by police. False evidence ploys may be simple or elaborate (i.e., orchestrated), implicit or explicit. They are psychologically designed to cause the suspect to perceive that he is caught, he will be convicted no matter his denials, and that his situation is hopeless unless he confesses. I have argued that scholars should conceptualize and study deception not merely as a set of police questioning techniques, but also as a structural feature of American police interrogation driven by a fundamental contradiction: It is never in a suspect’s best interest to confess to a crime because doing so will lead to a host of adverse consequences, most notably deprivation of liberty; yet police need confession evidence to solve serious crimes, and therefore must persuade suspect to believe, falsely, that it is in their best interest to confess. Police interrogators create the illusion that it is in the suspect’s selfinterest to confess through the use of inducements – moral, psychological and legal appeals that seek to persuade the suspect that he will mitigate his blameworthiness, culpability and/or penal consequences if he stops denying and instead confesses. I have specifically focused in this chapter on one type of inducement known as minimization and maximization (i.e., techniques often delivered through scenarios that downplay the seriousness of the offense if the suspect confesses and exaggerate the seriousness of the offense if he does not). Empirical scholars have demonstrated that some minimization and maximization interrogation techniques communicate implied promises and threats (Kassin and McNall, 1991; Ofshe and Leo, 1997a, 1997b; Horgan et al., 2012), and thus are legally coercive, eliciting confessions that should be ruled involuntary under American law and thereby excluded from evidence at trial. American researchers have also empirically demonstrated that minimization and maximization interrogation techniques are associated with, substantially increase the risk of, and appear to sometimes cause false confessions from the innocent (Kassin et al., 2010). Because researchers have focused on the psychological coercion underlying minimization and maximization (what I have elsewhere called the promise-threat dynamic) (Leo, 2008), they have overlooked how steeped these techniques are in deception. I have argued that minimization and maximization are structurally deceptive because they are necessary to resolve the fundamental contradiction of adversarial interrogation, and yet police interrogators lack to the power or ability to deliver on the promises they imply in exchange for confess (reduced blameworthiness, reduced culpability and/or reduced formal punishment) or to enact the penal harms they imply in the absence of con202

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fession (increased blameworthiness, increased culpability and/or increased formal punishment). Minimization and maximization need to be included front and center in the scholarly literature on, and lexicon of, police interrogation deception. They are every bit as deceptive as false evidence ploys, but even more dangerous (i.e., fare more likely to result in involuntary and/or false confessions) because in addition to communicating outright lies they often communicate promises and threats, indirectly but persuasively. In this chapter, I have not argued for or against the morality or legality of police deception during interrogation. Rather, my arguments have been descriptive and conceptual, not normative. My goal is to seek a broader and deeper conceptual framework with which to understand police deception during interrogation. There are, however, many normative arguments against the use of deception in interrogation. Among them: that deception by state officials, including police, is inherently wrongful; that deception by police undermines the integrity of police investigation; that deception by police diminishes the dignity and autonomy of the suspect; that deception by police erodes public trust and confidence in the police; that deception by police is not necessary to get confessions or solve crimes; that deception by police increases the risk of eliciting false and unreliable information, including false confessions; and that deception has a tendency to spread and to corrupt (Bok, 1978; Skolnick, 1982; Skolnick and Leo, 1992; Kleinig, 1996). There is, however, only one argument in favor of the use of police deception during interrogation: that the ends justify the means because otherwise criminals would not confess, and in some percentage of cases and thus lost confessions would lead to lost convictions, potentially endangering public safety. In other words, that police deception during interrogation is a necessary evil to prevent larger harms to society. Although we know from experimental studies that the use of deception during interrogation reduces the diagnosticity ratio of confession evidence (i.e., the ratio of true to false confessions) (Kassin et al., 2010; Perillo and Kassin, 2011), we currently lack, and will probably always lack, the real world data necessary to scientifically or meaningfully measure lost confessions, or lost convictions based on lost confessions, if police interrogation deception is prohibited (a counterfactual empirical). Since we cannot empirically measure either the quantitative cost (lost confessions/lost convictions) of banning interrogation deception or the quantitative benefit (gained confessions/ gained convictions) of permitting it, the side that bears the burden of proof will seemingly always lose the argument. In other words, proponents of interrogation deception cannot empirically prove that it is a necessary 203

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evil in the real world, just as opponents of interrogation cannot empirically disprove that that it is a necessary evil in the real world). The data simply do not exist to scientifically prove or falsify either argument. Regardless of this empirical stalemate, for historical reasons I am skeptical of American police claims that deception is necessary to secure confessions and prevent lost convictions. When the United States Supreme Court outlawed the “third degree” in the 1930s, American police complained that without third degree methods they would no longer be able to get confessions and convictions as they once had, in other words that the third degree was a necessary evil. When the United States Supreme Court handed down Miranda v. Arizona in 1966, requiring fourfold constitutional warnings as well as a voluntary and knowing waiver for interrogations to commence, American police once again complained that they would be “handcuffed” in their ability to get confessions, solve crimes and help prosecutors secure convictions. And in the 1990s, when full electronic recording of interrogations began to be proposed across the United States as a legal requirement prior to the admissibility of any confession evidence, American police complained that criminal suspects would not want to confess if they knew there were being recorded, and thus confession and conviction rates would dramatically decline. However, following each of these three reforms, American police investigators adapted to the new rules, often harnessing them to their advantage (Leo and White, 1999; Sullivan, 2004), until they no longer complained about declining confession and conviction rates. In effect, in each era – the 1930s, the 1960s, and the 1990s -- American police cried wolf with the “necessary evil” argument regarding these reforms. If police interrogation deception were to be banned in the United States as it is elsewhere, American police will once again make the same arguments they made about the third degree, Miranda and electronic recording, and they will likely once again adapt to the new rules, with no measurable decline in confession or conviction rates. However, the only way we can adequately assess the costs and benefits of the use of interrogation deception – and whether it should be permissible -- is if we first identify and then seek to fully understand the techniques, parameters and structure of police deception during interrogation.

References Arizona v. Fulminante, 499 U.S. 279 (1991) Bok, Sissela (1978). Lying: Moral Choice in Public and Private Life (New York, NY: Vintage Books).

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Structural Police Deception in American Police Interrogation Bram v. United States, 168 U.S. 532 (1897) Davis, Deborah, Leo, Richard A. and Follette, William (2010). Selling Confession: Setting the Stage with the Sympathetic Detective with a Time-Limited Offer. Journal of Contemporary Criminal Justice, Vol. 26, Pp. 441-457. Drizin, Steven and Leo, Richard A. (2004). The problem of false confessions in the post-DNA world. North Carolina Law Review, 82, 891-1007. Firstman, Richard and Salpeter, Jay (2008). A Criminal Injustice: A True Crime, A False Confession and the Fight to Free Marty Tankleff (New York, NY: Ballantine Books) Feld, Barry (2013). Kids, Cops and Confessions: Inside the Interrogation Room (New York: New York University Press) Forrest, Krista, Woody, William, Brady, Sara, Batterman, Keller, Stastny, Bradley and Bruns, Jennifer (2012). False-Evidence Ploys and Interrogations: Mock Jurors’ Perceptions of False-Evidence Ploy Type, Deception, Coercion and Justification. Behavioral Sciences and the Law, Vol 30, Pp. 342-364. Frazier v. Cupp, 394 U.S. 731 (1969) Horgan, Alyssa, Russano, Melissa, Meissner, Christian, and Evans, Jacqueline (2012). Minimization and maximization techniques: Assessing the perceived consequences of confessing and confession diagnosticity. Psychology, Crime & Law, 18, 65-78. Heyl, Dorothy (2014). The Limits of Deception: An End to the Use of Lies and Trickery in Custodial Interrogations to Elicit the Truth. Albany Law Review, Vol. 77, Pp. 931-953. Illinois v. Perkins, 496 U.S. 292 (1990). Inbau, Fred, Reid, John and Buckley Joseph (1986). Criminal interrogation and confessions (3rd ed.). Baltimore: Williams & Wilkins. Inbau, Fred, Reid, John, Buckley, Joseph and Jayne, Brian (20)13. Criminal Interrogation and Confessions. (5th ed.). (Burlington, MA: Jones & Bartlett Learning). In re Elias V., 237 Cal. App. 4th 568 (2015). Kassin, Saul, Leo, Richard, Meissner, Christian, Richman, Kimberly, Colwell, Lori, Leach, Amy, and LaFon, Dana (2007). Police interviewing and interrogation: A self-report survey of police practices and beliefs. Law and Human Behavior, 31, 381-400. Kassin, Saul and McNall, Karlyn (1991). Police interrogation and confessions: Communicating promises and threats by pragmatic implication. Law and Human Behavior, 15, 233-251. Kassin, Saul and Kiechel, Katherine (1996). The social psychology of false confessions: Compliance, internalization, and confabulation. Psychological Science, 7, 125-128. Kassin, Saul, Drizin, Steven, Grisso, Thomas, Gudjonsson, Gisli, Leo, Richard, and Redlich, Allison (2010). Police-induced confessions: Risk factors and recommendations. Law and Human Behavior, 27, 187-203. Katz, Jack (1999). How emotions work. Chicago: University of Chicago Press.

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Richard A. Leo Kelly, Christopher, Russano, Melissa, Miller, Jeanee and Redlich, Allison (2019). On the road (to admission): Engaging suspects with minimization. Psychology, Public Policy and Law, 25, 166-180. King, Lesley and Snook, Brent (2009). Peering inside a Canadian interrogation room: An Examination of the Reid Model of interrogation, influence tactics, and coercive strategies. Criminal Justice and Behavior, 36, 674-694. Klaver, J., Lee, Z. and Rose, G. (2008). Effects of personality, interrogation techniques and plausibility in an experimental false confession paradigm. Legal and Criminological Psychology, 13, 71-88. Klockars, Carl (1980). The dirty harry problem. The Annals. 452, 33-47. Kleinig, John (1996). The Ethics of Policing. New York, N.Y.: Cambridge University Press. Leo, Richard A. (1996a). Inside the interrogation room. Journal of Criminal Law and Criminology, 86, 266-303. Leo, Richard A. (1996b). Miranda’s revenge: Police interrogation as a confidence game. Law and Society Review, 30, 259-288. Leo, Richard A. and Ofshe, Richard (1998). The consequences of false confessions: Deprivations of liberty and miscarriages of justice in the age of psychological interrogation. Journal of Criminal Law and Criminology, 88, 429-296. Leo, Richard A., and White, Welsh S. (1999). Adapting to Miranda: Modern interrogators’ strategies for dealing with the obstacles posed by Miranda. Minnesota Law Review, 84, 397-472. Leo, Richard A., and Ofshe, Richard. (2001). The truth about false confessions and advocacy scholarship. The Criminal Law Bulletin, 37, 293-370. Leo, Richard A. (2008). Police Interrogation and American Justice. (Cambridge, MA: Harvard University Press). Lykken, David (1998). Tremor in the blood: Uses and abuses of the lie detector. (New York: Plenum). Leo, Richard A. (2008). Police Interrogation and American Justice (Cambridge, MA: Harvard University Press) Narchet, Fadia, Meissner, Christian, and Russano, Melissa (2011). Modeling the influence of investigator bias on the elicitation of true and false confessions. Law and Human Behavior, 25, 452-465. Nash, Robert and Wade, Kimberley (2009). Innocent but proven guilty: Eliciting internalized false confessions using doctored-video evidence. Applied Cognitive Psychology, 23, 624-637 Ofshe, Richard and Leo, Richard (1997a). “The social psychology of police interrogation: The theory and classification of true and false confessions.” Studies in Law, Politics and Society, 16, 189-251. Ofshe, Richard and Leo, Richard A. (1997b). “The decision to confess falsely: Rational choice and irrational action.” Denver University Law Review, 74, 979-1122.

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Structural Police Deception in American Police Interrogation People v. Thomas, 8 N.E.3d 308 (N.Y. 2014) Perillo, Jennifer and Kassin, Saul (2011). Inside Interrogation: The Lie, the bluff and false confession. Law and Human Behavior, 35, 327-337. Redlich, Allison (In Press). Pragmatic Implication in the interrogation room: A comparison of Juveniles and Adults. Journal of Experimental Criminology. Russano, Melissa, Meissner, Christian, Narchet, Fadia, and Kassin, Saul (2005). Investigating true and false confessions within a novel experimental paradigm. Psychological Science, 16, 481-486. Senese, Louis (2005). Anatomy of interrogation themes: The reid technique of interviewing and interrogation. Chicago, IL; John Reid Assoc. Skolnick, Jerome H. (1982). Deception by Police. Criminal Justice Ethics. 1, 40-54. Skolnick, Jerome H. and Leo, Richard A (1992). The Ethics of Deceptive Interrogation. Criminal Justice Ethics, 3-12. Slobogin, Christopher (2020). The legality of trickery during interrogation. Forthcoming in Andreas Ransiek, Ed. (2020). Interrogation, Confession, and Truth. Snyder, Mark (1984). When Belief Creates Reality. In Leonard Berkowitz (Ed). Advances in Experimental Social Psychology, Vol. 18. Pp. 247-305. New York: Academic Press. Stewart, Joshua, Woody, William and Pulos, Steven (2018). The Prevalence of False Confessions in Experimental Laboratory Simulations: A Meta-Analysis. Behavioral Sciences and the Law, Vol. 36, Pp. 12-31. Sullivan, Thomas (2004). Police experiences with recording custodial interrogations. Chicago: Northwestern University School of Law, Center on Wrongful Convictions. Wright, Deborah, Wade, Kimberley and Watson, Derrick (2013). Delay and déjà vu: Timing and repetition increase the power of false evidence. Psychonomic Bulletin Review, Vol. 20, Pp. 812-818 Woody, William, Forrest, Krista, and Yendra, Sandra (2014). Comparing the effects of explicit and implicit false evidence ploys on mock jurors’ verdicts, sentencing recommendations, and perceptions of police interrogation. Psychology, Crime & Law, Vol. 20, Pp. 603-617. Woody, William and Forrest, Krista (2009). Effects of False-Evidence Ploys and Expert Testimony on Jurors’ Verdicts, Recommended Sentences, and Perceptions of Confession Evidence. Behavioral Sciences and the Law,Vol. 27, Pp. 333-360 Vrij, Aldert (2008). Detecting lies and deceit: Pitfalls and Opportunities. 2nd Edition. London: Wiley. Zulawski, David and Wicklander, Douglas (2002). Practical aspects of interview and interrogation (2nd ed.). Boca Raton: CRC Press.

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Report on the Comparative Conference on Criminal Procedure at Bielefeld University, Interrogation, Confession, and Truth, 21 – 22 May 2019 Alexandra Westermann / Matthias Newerla

From 21 to 22 May 2019, a comparative law conference on the interrogation of defendants in criminal proceedings took place at Bielefeld University. Scholars from the USA, the Netherlands and Germany discussed this overarching topic. Andreas Ransiek formally started on the evening of 21 May with a welcome greeting, in which he paid tribute to the host city, with a hint to the “Bielefeld conspiracy”, and introduced the co-organizers, Michael Lindemann and Lutz Eidam, as well as the first speaker, Thomas Weigend from the Institute for Foreign and International Criminal Law at the University of Cologne. His opening lecture dealt with “The Suspect as a Source of Information”. The topic included questions regarding the extent to which a defendant is obliged to participate in his own conviction and a review of the different developments of English and German criminal proceedings from the 13th century onwards. The rights of the defendant, including the privilege against self-incrimination and the right to counsel, as well as the consequences of their violations, were also addressed in the following discussion in which differences between procedural law in the United States and Germany were outlined. On the morning of 22 May, Anthony O’Rourke of the Advocacy Institute at the University of Buffalo School of Law spoke about “Punishing Self-Incrimination”. His lecture concerned the issue that the sentencing guidelines for federal cases provide for increases in punishment, so called “obstruction enhancements”, if the defendant obstructs prosecution by making false statements. This fact often becomes problematic if the defendant is questioned early without legal assistance and, in order not to incriminate himself, does not tell the truth. These provisions are seen as particularly critically if the defendant's statement contradicts the statement of other witnesses, primarily police officers, and is found to be not credible, since the application of obstruction enhancements has less strict requirements than a formal conviction for giving false testimony, which had to be 209

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Alexandra Westermann / Matthias Newerla

proven “beyond reasonable doubt”. In such cases, the penalty could also be applied if the statement in question is a “panic statement” or if the acting officials did not sufficiently inform the accused about his rights (i.e. flawed Miranda warnings). Subsequently Lutz Eidam presented “Contemporary Problems of the Right to Remain Silent in Germany”. After a short outline on the history of German criminal law, he explained the basics of the German self-incrimination privilege, commonly labelled “nemo-tenetur-principle”. In addition to its origin in the principle of human dignity, it is also guaranteed by the European Convention on Human Rights and the International Covenant on Civil and Political Rights and roughly corresponds to the provisions of the Fifth Amendment of the US Constitution. The problems he referred to concern the legitimate purpose of formal summons and interrogations, the use and admissibility of investigative methods with a closer look at conflicts with the right to remain silent and guarantees of the doctor-patient-privilege, and dubious interrogation methods on the basis of the rather peculiar “probationary-judge-case” decided by the German Federal Supreme Court. Finally, a current draft law was discussed which allows law enforcement to obtain data connected with the use of the defendant’s virtual identity, e.g. social media accounts. The following discussion revealed that there was a similar debate in the United States considering possible violations of the Fourth and Fifth Amendment Rights. Christopher Slobogin’s lecture addressed “The Legality of Trickery during Interrogation”. He introduced two different, commonly used methods of interrogation: The “Reid-technique”, which allows trickery of the interrogator towards the suspect in some respects, and the PEACE-method, which focuses on a relaxed atmosphere of conversation and discussion of known facts with the suspect instead of confrontation and deception. He explained the frequently articulated criticism towards the Reid-technique by scholars despite its legality in US law of criminal procedure and outlined the criteria for permissible interrogation methods in the conflict area of admissible trickery and forbidden coercion. Afterwards he compared the results of both interrogation methods regarding the production of information and true and false confessions. The thin line between fraudulent behavior of authorities and inadmissible coercion was also the subject of the ensuing discussion. In this context, the circumstance that the defendant is not allowed to lie in a US-American criminal proceeding, as well as ethical concerns regarding truth obstruction as a major argument against trickery raised concerns among the discussants in the light of the trial’s fairness. 210

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Report on the Comparative Conference on Criminal Procedure at Bielefeld University

Just like in the morning, discussions on the individual lectures continued intensively in the early afternoon. Robert Horselenberg and Dave van Toor from the Netherlands started with their presentation regarding an exceptional investigation method: Interrogation by Undercover Agents: The Mister BIG Method from a Psychological and Legal Point of View. Both the German and American sides were particularly surprised by the apparently increasing popularity of the so-called “Mr. Big Method”. As Robert Horselenberg and Dave van Toor illustrated, investigators are using this controversial method if, especially in the case of homicide investigations, they do not make any progress with their usual investigative methods in proving the culpability of a person. The Mr. Big method is therefore used whenever investigators are convinced that a particular person committed the murder but the results of the investigation so far do not provide any evidence of the perpetrator. The task of the Mr. Big method is then to create a world of make-believe into which the suspect is gradually absorbed after he has lost all previous social contacts, mostly due to the previous investigative measures. The “undercover investigators” gradually form the suspect's most important and only social contacts. As Robert Horselenberg has pointed out, this construction of the world of make-believe involves a great deal of time and money. Its only purpose is to make the suspect end up revealing his entire past to the fictional Mr. Big in order to obtain a promising job. As the investigators want the suspect to confess to the homicide, they will make it quite clear that they want the suspect to be absolutely honest about any violations of the law when he is talking to Mr. Big. Once the suspect agrees to encounter Mr. Big, the investigators set up the scene in order to visually and acoustically record the meeting. If the suspect confesses to the crime, the recordings will be used as evidence in a trial to prove his perpetration. Due to the high cost and the immense time required to create this world of make-believe, American colleagues query whether other jurisdiction would use this method – which was developed in Canada – as an investigatory tool. In fact, however, Robert Horselenberg pointed out that England, Denmark and the Netherlands in particular use this method. In the Netherlands, as many as three cases involving this method are currently being heard in court, and in addition to this ten more cases are public knowledge. One of the American scholars tried to surmise the reason why this method was so popular among investigators. Ironically he said this was the only time investigators could drink alcohol and have a nice day at the Côte d’Azur while being on duty. The question arose why the USA would not use this Mr. Big method. Otherwise than expected, it was neither the high 211

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Alexandra Westermann / Matthias Newerla

cost nor the immense time required for this method, but rather the fact that the Americans are of the opinion that a confession obtained by this method is equatable to a “purchased” confession. To purchase a confession is totally inadmissible in the USA. Since some of the German participants questioned this point of view, they wondered whether this method was admissible in the USA provided that such a confession was not comparable to a purchased confession and if the suspect disclosed knowledge in his confession that only the perpetrator could know. As the participants had learned earlier that day, confessions that contain knowledge about details that only the perpetrator knows are treated as “true confessions” in the USA. Nevertheless such a confession is still inadmissible in court because it would violate the 14th Amendment. To sum it up, all of the participants were quite critical of the Mr. Big method. The construction of a world of make-believe is an improper deception which is not only performed to get at the truth. Rather, it is also used to collect evidence of the perpetration of a crime, meaning that the investigators are driven by the belief that their suspect is the true murderer. The following presentation “Ways to Circumvent the Right to Silence in the Netherlands and Implications for its Meaning” by Marieke Dubelaar and Jan H. Crijns, as well as the presentation “Self-Incrimination Privilege and Interrogation“ by Andreas Ransiek, gave the impetus for a new discussion, which focused on the conventional interrogation of suspects. Marieke Dubelaar pointed out that the admissibility of certain deceptions and the right to remain silent are in a charged relationship with each other. For this purpose she mentioned a case example in which a police officer told one of the two suspects that a lot more money was taken from the bank during a robbery than in actual fact. The police officer wanted the suspects to come into conflict over the stolen money so that the police would be able to prove their perpetration. Put another way, the officer´s only purpose was to circumvent the suspect´s right to remain silent. For the discussion, Dubelaar and Crijns then raised the question of whether the right to remain silent should still be understood as a fundamental right or rather as an “instruction rule”. Some of the discussion participants developed a differentiating approach by focusing on the recipients of the right to remain silent. For these people, this right was indeed a fundamental right. For the expert, and thus the interrogator, however, it is (at least as well) a standard of instruction. On the whole, however, all scientists agreed that the right to remain silent should not be reduced. However, the discussion that followed Andreas Ransiek's presentation clarified that, despite the fundamental support for the observance of the 212

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Report on the Comparative Conference on Criminal Procedure at Bielefeld University

right to remain silent, the actual design and scope of this self-incrimination privilege has national differences. German participants for example suggested that there should be an obligation to assist attorneys during police interrogation, in order to strengthen the self-incrimination privilege. The American colleagues did not share this opinion, because they feared a decline in confessions. However, the proposal to introduce an obligation to assist attorneys during police interrogation for certain groups of suspects, such as young people or mentally disabled persons, was overwhelmingly rejected, since once this right is granted, it should not be limited. In addition to this, the question was raised as to whether the presence of a defense attorney is necessary if the interrogated suspect exercises his right to remain silent. This was rejected by the German scientists, since if the suspect remained silent, there would be no danger of violating his rights. In this context, the question of the presence of a mandatory defense attorney during other investigative measures also arose. American participants feared that an obligation to present an attorney during the police interrogation would also lead to an obligation of the presence of a defense attorney at all other investigative procedures. American colleagues therefore wondered if the presence of an attorney was also necessary if the suspect agreed to the search of his house. This apprehension was dismissed by German participants. In contrast to the European participants, the American scientist attached importance to confessions in general. Richard Leo´s presentation about “Police Interrogation, Psychological Coercions and False Confessions in America” clarified this quite well. Although he indicated that the use of trickery during police interrogation would lead to rise in false confessions, it would at the same time increase the number of confessions in general. Therefore the Americans were of the opinion that some form of trickery could be used during police interrogation. The European colleagues disagreed and brought up the question whether the confession was necessary to convict the person. If it was not necessary, one could totally dispense with police interrogation. Referring to white collar crimes, a discussion participant remarked that since there were almost no confessions when it comes to white collar crimes but people get still convicted for committing such crimes, it proves that one could go well without confession and therefore without interrogations at all. However one American scholar picked up on this argument and reposted that the investigative procedure in the areas of white collar crimes cannot be used to draw conclusions about investigations in the context of homicide offences. As opposed to homicide offences, internal investigation play a huge role when it comes 213

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Alexandra Westermann / Matthias Newerla

to white collar crimes and therefore these internal investigations substitute the need of confessions. The European colleagues therefore agreed that one should not totally go without police interrogation. Finally, there is one main difference between the European and American jurisdiction when it comes to “interrogation and confession”. The European scientists do not permit any form of trickery whereas the Americans want to use some form of trickery because of its impact on the increased number of true confessions. Since the research findings presented by Richard Leo were solely based on laboratory studies, the validity of the results were questioned by the European colleagues. The discussion, and thus the entire conference, ended with the suggestion that European scientists should also carry out empirical studies on the impact of trickery on confessions.

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