I’m starting to question my faith . . . in the excellent detectives of the New York Police Department as portrayed on the various Law & Orders.

Over the holidays, a lot of us got caught up in the Netflix series Making a Murderer, the story of accused Wisconsin murderer Steven Avery.  **SPOILER ALERT**  What follows contains spoilers from the documentary.

In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate (and sometimes fabricate) crime (planting evidence, contaminating the crime scene, coercing false confessions); and the district attorneys, who prosecute the offenders (in between sexting victims of domestic abuse and smirking at the camera every chance they get). These are their stories.

The show details the story of Steven Avery who was incarcerated for 18 years for a rape he didn’t commit.  DNA evidence finally absolved him and resulted in his release, after which, he decided to sue the police department for their wrongful and seemingly systematic targeting and prosecution of him.  The woman who falsely accused him described the police showing her pictures of Avery and telling her that this was the person who did it; this coaching helped create a false memory for her, resulting in her eye witness statements that he was her attacker.  When the evidence showed that another man was responsible, she was so appalled at her role in jailing an innocent man, that she became involved in the Innocence Project, helping to overturn convictions of guilty men.

In a bizarre twist, with a $36 million law suit pending, Avery was arrested and charged in a new crime:  the murder of Teresa Halbach, a local woman who went missing after visiting his home to take pictures for an auto sales magazine.  Although the local police claimed to recuse themselves due to the obvious conflict of interest, turning the investigation over to a neighboring police team, they were subsequently given free and open access to all crime scenes and searches, and the key pieces of evidence were all coincidentally found by that same local police department.  But the real nail in Avery’s coffin was the confession of his nephew and next door neighbor Brendan Dassey who gave horrific details of the rape and murder of Teresa Halbach and his participation in the crime side-by-side with his uncle.

The problem is, the confession didn’t match anything at the supposed crime scene.  The interrogation, in which 16 year old Brendan had no parental or legal representation, was filled with coercion, false information, and pressure.  His numerous denials were shut down, and he was given false evidence that he was guilty.  Details were fed to Brendan, who is mentally slow and eager to please, and he anxiously kept feeding answers back until the detectives were “pleased” with his answers. Incapable of understanding the ramifications of his confession, Brendan actually asked if he could return to his next class to do his report that was due.  As is usually the case whenever there is a confession, both he and Steven Avery were convicted.

The video of the confession was a classic example of the Reid Technique which is the most common interrogation technique used in the US, the same one used by our beloved Law & Order detectives.

The Reid Technique is hotly contested.  In fact, most other western countries have abandoned it because it is notorious for resulting in false confessions.  The technique is designed to prompt a confession using several techniques:

  • Establish through non-verbal cues that they are lying.  The investigators should look for non-verbal cues that a subject is anxious such as crossed arms, looking away, tapping a foot, or touching the face.  However, most investigators interviewed admitted that they usually skipped this stage of the questioning, going straight into the coercive techniques.
  • Give false evidence.  Investigators amp up the pressure to confess by telling the subject that they have evidence that the person did it, and it will be better for them to cooperate.
  • Override denials.  If the subject denies they committed the crime, every attempt to deny is overridden so that the subject can’t articulate their innocence.
  • Minimization.  Investigators reframe the crime in a way that minimizes the severity of the crime or makes the criminal feel that they empathize, such as telling them the victim had it coming or that anyone would have done the same thing in their shoes.

An article from the New Yorker on the Reid Technique gives more information, including tips from a Reid Technique trainer, Senese:

“Never allow them to give you denials,” Senese told us. “The key is to shut them up.”

Allowing a suspect to deny the crime is like giving the defense an opportunity to present another theory of the crime.  It’s something prosecutors would like to shut down.  Since the suspect is also the defense, investigators who believe they already have the right suspect in custody want to keep only one version of the “truth” in play:  the confession they are seeking.  The problem is that when a suspect is not allowed to deny they committed the crime, this increases their level of distress, which increases their suspicious non-verbal cues, which confirms to the interrogator that they are on the right track.  It’s self-reinforcing logic.  It’s reminiscent of the torture techniques used in the middle ages to prompt confessions of heresy.  When you begin with the premise that the person is guilty, then there is no need for restraint since whatever pressure you apply is in the name of justice.

Senese asked the class, “What do you think is more important, verbal or nonverbal behavior?” Intuitively, we responded, “Nonverbal.” “Yeah,” he said. “That’s the whole ballgame right there.” He told us that a video of an interview without sound would be more likely to reveal lying than one that included the audio. He showed us footage of a dark-haired woman being questioned about having changed her prescription for oxycodone from ten pills to forty. She gave equivocal answers, touched her face, and cast her eyes down and to the left. “I say that’s deceptive,” Senese pronounced.

The problem is that there is little actual correlation between non-verbal cues and lying as I pointed out in a previous post here.

The Reid interrogation technique is predicated upon an accurate determination, during Behavioral Analysis, of whether the suspect is lying. Here, too, social scientists find reason for concern. Three decades of research have shown that nonverbal signals, so prized by the Reid trainers, bear no relation to deception. In fact, people have little more than coin-flipping odds of guessing if someone is telling the truth, and numerous surveys have shown that police do no better. Aldert Vrij, a professor of psychology at the University of Portsmouth, in England, found that law-enforcement experience does not necessarily improve the ability to detect lies. Among police officers, those who said they paid close attention to nonverbal cues did the worst. Similarly, an experiment by Kassin showed that both students and police officers were better at telling true confessions from false ones when they listened to an audio recording of an interview rather than watch it on video. In the experiment, the police officers performed less well than the students but expressed greater confidence in their ability to tell who was lying. “That’s a bad combination,” Kassin said.

Not only are non-verbal cues an inaccurate depiction of whether someone is telling the truth, but law enforcement officers who are prone to rely on them are often the least accurate in determining whether someone is lying.  Why is that?  It’s due to their overconfidence in their own judgement, their belief in their ability to discern people’s intentions.  This is a trait that Mormon lay leaders are often guilty of as well, an over-reliance on their ability to discern worthiness without anything more than reliance on non-verbal cues which are often random or unrelated to supposed internal states.  In reality, there is more bias and prejudice at play than people are willing to admit.  It’s one reason we are taught that individuals determine their own worthiness in interviews with bishops rather than bishops going rogue.  Thank goodness they aren’t knowingly using the Reid Technique!

Gregg McCrary, a retired F.B.I. agent, told me that Reid-style training creates a tendency to see lies where they may not exist, with an unhealthy amount of confidence in that judgment. “They just assume they’re interviewing the guilty guy,” he said.

We’ve all heard the Law & Order detectives claim that only guilty people confess, as well as the push from the district attorney to get a confession in order to clinch the case.

“35 ears ago, a postdoctoral fellow in psychology named Saul Kassin began researching the psychological factors that affect jury decisions. He noticed that whenever a confession was involved, every juror voted guilty. Alibis and fingerprints didn’t matter in these cases.”

Unfortunately, people often do confess for reasons other than guilt.  For example, despite Miranda warnings, most suspects, particularly if they are innocent, waive their Miranda rights because they don’t want to appear guilty.  They want to show that they are innocent and cooperative.  But in waiving their right to counsel, they often succumb to the pressure tactics of detectives who think they have the right suspect in custody.

Richard Leo, a law professor at the University of San Francisco who had undergone Reid training – Leo has reported that the Miranda decision, which is supposed to shield suspects from involuntary confessions, generally does not: more than eighty per cent decline their Miranda rights, apparently in order to seem cooperative.

And while it feels like cheating for a detective to claim they have evidence that they don’t actually have, like an eye witness, a murder weapon, or an accomplice statement, it’s absolutely legal for investigators to do so.  It just might be ill-advised if it results in an untrue confession.

(Joseph Buckley who currently heads John E. Reid & Associates:  He argued—and judges have regularly agreed—that if a suspect infers leniency from an interrogator’s guise of sympathy, that’s the suspect’s problem. (Critics may not like the fact that police sometimes lie to suspects during interrogations, but a 1969 Supreme Court decision affirmed their right to do so.)

If the Reid Technique is faulty, what is a better approach?  Other nations use a technique called PEACE:  Preparation & Planning, Engage & Explain, Account, Closure, and Evaluate.

Training was provided for police departments throughout England and Wales, starting with major-crimes units. By 2001, every police officer in England and Wales had received a basic level of instruction in the method. . . Police were instructed not to try to obtain confessions but to use the interview as a way to gather evidence and information, almost as a journalist would. They were to focus on content rather than on nonverbal behavior, and were taught not to pay attention to anxiety, since it does not correlate with lying. Instead, police were trained to ask open-ended questions to elicit the whole story, and then go back over the details in a variety of ways to find inconsistencies. For the suspect, lying creates a cognitive load—it takes energy to juggle the details of a fake story. . . Bluffing about evidence was prohibited. “We were not allowed to lie, coerce, or minimize.”

When individuals are lying, the pressure to continue to provide details builds as they try to keep their story straight.  Eventually their story contradicts itself in telling ways.  The truth comes out.

But not when the investigator’s sole aim is a confession.

Although it is unknown whether Avery and Dassey committed the crime, it’s almost certain that the confession was not an accurate depiction of the crime, and further it’s an appalling illustration of how this technique fails.  Another problem it reveals is that those who are most vulnerable in society, the poor, the uneducated, the mentally ill, and those with a lower than average IQ, are easy targets for criminal investigations so long as we use coercive techniques.  It doesn’t seem like much has changed since the middle ages after all.