A Consideration of the Criminal Investigation Process — Part Two
by El Inglés
The Significance of Interrogation
Interrogation is an absolutely crucial part of virtual all criminal investigations. The difference between obtaining a confession and not obtaining a confession is often the difference between securing a conviction and seeing a suspect walk away free. Much crime cannot be definitively assigned to specific individuals on the basis of what we have referred to thus far as bottom-up sweeps. Top-down sweeps are rarely sufficient in and off themselves to secure a conviction because they do not, in and of themselves, constitute direct evidence that someone has committed a crime, establishing instead only the plausibility of a given person as a possible suspect.
Here we have an asymmetry. Prudence with respect to the top-down sweep is crucial for the criminal, as it will effectively rule the perpetrator out as a suspect (erroneously, from the perspective of the police). But it will be hard to maintain in the event of dedicated and consistent criminal activity. Prudence with respect to the bottom-up sweep predominantly serves a different role, serving to make the securing of convictions difficult even when the top- down sweep has already correctly identified the perpetrator, and the police are confident that they have their man. As has already been pointed out, if perpetrators are foolish or unlucky, slackness with respect to the bottom-up scan could by itself lead to them being identified. But let us assume that people are careful enough to avoid such errors. What then?
Even if a criminal of a given sort has come to the attention of the police and has been identified as a troublemaker, there is still the not unimportant question of whether the police can gain a conviction. Sometimes their bottom-up sweeps will have yielded some appreciable amount of evidence, in which case they may be able to secure a conviction without a confession. But this will often not be the case. If the evidence is weak and/or circumstantial, the prosecuting authorities may decide not to proceed without a confession. From the point of view of the discerning criminal, understanding the process of police interrogation therefore becomes crucially important, constituting as it does the final part in a three-part system for would-be criminals who would remain at liberty: understanding and confounding the top-down sweep, understanding and confounding the bottom-up sweep, and understanding and confounding the process of interrogation.
Now, interrogation is not just one thing. There are different schools of thought on this subject, as anyone researching it will quickly discern. It is hardly surprising that the process of interrogation cannot be boiled down to a single approach, due to its fundamentally paradoxical nature, to wit, that it attempts to get a criminal to confess to having committed crimes when any 'normal' cost-benefit analysis (a term I shall explain below) would indicate that they should either say nothing or lie.
Given that confessing and pleading guilty to a crime will often bring reductions in sentences and other special considerations too, there will be times when a criminal, faced in the interrogating room with the weight of the evidence against them, will see that the jig is up and that confessing is the optimal course of action (this is what I mean by a 'normal' cost-benefit analysis). This much is clear. However, we will concern ourselves in this essay with that type of situation in which the case of the police is far from made and much will depend on what they can get the suspect to admit to.
This layman will now be so presumptuous as to try and introduce the reader to some of the main dynamics and techniques used by law enforcement agencies in their attempts to extract confessions and/or intelligence. The reader is hereby warned that the author has no expertise in or experience of this area; he simply presents his own understanding of his readings on the subject in the hope that they may prove to be of some interest.
Criminal interrogation, also referred to herein as standard interrogation, is that type of interrogation practiced within the bounds of the restrictions imposed on criminal investigators during normal criminal investigations. Its most obvious characteristics are the right of interrogatees to have a lawyer present during questioning, the right to silence, restrictions on how long interrogation can take place for without a break, guaranteed hours of sleep a day, restrictions on the use of physical coercion, and short permissible periods for keeping interrogatees in custody. It stands in marked contrast to what is charmingly referred to as 'enhanced interrogation', which for our purposes basically refers to counter-terrorist interrogation in which some or all of these restrictions are lifted.
As stated above, a great paradox lies at the heart of the process of interrogation. Given that we are concerning ourselves with cases in which the extant police case is still too weak to have much chance of securing a conviction by itself, it is not at all obvious why anyone should ever confess to anything at all under interrogation short of torture. There are, it seems, two ways in which interrogators can try and crack this problem. The first is to convince the interrogatee that there is already a watertight case against him and he is only making things worse for himself by holding out. The second is to build up a degree of psychological pressure during interrogation that overwhelms the interviewee and induces him to do whatever he has to bring it to an end, i.e. confess. The two approaches will not be used in isolation, and there is some functional overlap between them, but we will discuss them separately here for the purpose of clarity.
1) Watertight Case
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We have already stipulated that we discuss here interrogations in which the police do not have a watertight case, and do not necessarily have a particularly strong case against the suspect at all. What then, is meant, by the watertight case approach? Simply put, it refers to the systematic attempts of the police to project a sense of omniscience in an attempt to convince the suspect that resistance is futile and will only guarantee them a longer prison sentence.
The police will commence this approach by presenting the case they do have as forcefully as possible to impress on the suspect that he is really up against it. Answers given by the suspect to the police's questions will be checked against the background information the police will have already assembled, from witnesses, acquaintances, family members, CCTV footage and other sources, and any discrepancies or disagreements ruthlessly exposed as deceit on the part of the suspect. This allows the police to psychologically dominate the suspect, cutting off his evasions time and again, and allowing him to incriminate himself through his continued lies. This process of cross-checking what the suspect says is a very powerful interrogative technique. Though it does not establish the guilt of the suspect in an explicit manner, it allows huge psychological pressure to be exerted on him above and beyond what the police actually know or can actually prove. This is the functional overlap referred to above, i.e. the construction of a desire to escape, which we will discuss in the next section.
Arguably the most powerful type of cross-checking is that in which the answers given by the suspect are cross-checked and found wanting by comparison with information obtained from, or presented as being obtained from, the suspect's accomplices (assuming they exist). The double blow of being betrayed by a trusted accomplice and realizing that incontrovertible evidence of one's crime is now in the hands of the police is huge. However, it is important to reiterate that we are talking about cases in which the police do not have a watertight case, and in which, therefore, such betrayal has not taken place or is not reliable. A technique the police can use in such cases is to convincingly pretend that the betrayal has taken place by revealing information that the suspect erroneously believes could only have been acquired through an accomplice. If this deception on the part of the police is effective, the effects can be devastating. After all, if one's accomplices are informing on one to try to get better deals for themselves, what is there to do but return the favour?
Even in the absence of betrayal, denying a crime that one has in fact committed will require a suspect to lie, and, in a crime in which three suspects have been arrested and are undergoing interrogation, it is improbable in the extreme that their lies are going to be consistent with each other. This too will provide the police with ammunition for cross-checking, though they will not at first know which lie is closest to the truth, nor exactly when people have started to tell the truth.
Perhaps the moral of the story is that one should always commit crimes by oneself. However, in a final demonstration of the cross-checking principle, the police will simply cross-check a suspect's testimony against itself by repeatedly running through essentially the same list of questions, probably formatted and ordered differently to render it difficult for the suspect to simply stick to a script. By getting the suspect to give his account of events over and over again, the police can compare each subsequent account with the one(s) that preceded it, and pounce on any discrepancies that emerge in the same manner as discussed above. The principle here is that someone who is telling the truth will give the same account each time, irrespective of how he is asked, whereas someone who is lying will eventually trip himself up by forgetting or inadvertently altering part of his lie.
Lastly, the police can attempt a bogus cross-check, which would consist of falsely claiming, for example, that an eyewitness existed to a murder. The legality of such outright deceit on the part of the police appears to depend on the legal jurisdiction in question, with one of the obvious problems being the danger of eliciting false confessions. Either way, this can, in principle, be a powerful tactic. Claiming that there was a hidden CCTV camera at the scene of the crime or that a DNA sample (hair, saliva) was inadvertently left behind will put an otherwise confident suspect on the back foot at the very least, especially if there is no way, even in principle, for him to know whether the claim is true or not.
Let it be noted that the police will have ready answers to questions such as 'If you already know everything, why are you interrogating me?'. They will claim that they have all the evidence they need and that they are obliged to interrogate you for procedural/legal reasons, or that they have all the evidence they need but that they want to give you a chance to confess to free up court time and help you cut your sentence (you seem like a swell guy deep down inside, etc.). These stock responses and deeply ingrained procedural savvy are good examples of the futility of trying to outsmart the police in an interrogation. Regardless of one's confidence in one's intelligence or deviousness, the deck will be stacked against one if one tries to beat them at their own game.
2) Psychological Pressure
For this reason, the second basic approach is still crucially important. Though the interrogators will still carefully marshal all the evidence they have in advance and make they are fully acquainted with it to project as strong an air of omnipotence and infallibility as possible, they do so to help create an atmosphere of psychological pressure from which the interrogatee wishes to escape rather than a sense of the inevitability of conviction even if no confession is forthcoming. This needs to be explained.
The objective of this type of interrogation is to create such an unbearable degree of psychological discomfort on the part of the interrogatee that he will do virtually anything to escape it. This pressure is largely predicated on the following:
|1.||A strong sense of guilt over having committed the crime in question (this assumes that he is in fact guilty)|
|2.||An overpowering sense that the interrogator knows full well that he has committed the crime, if not every detail of how he committed it|
|3.||An adverse reaction to the intense scrutiny and complete lack of any physical or psychological privacy in the interrogation room|
|4.||An awareness that all of these psychological pressures can be made to disappear very rapidly if he only confesses|
Confession is the escape route from this potentially unbearable situation. Those who feel that such pressures would only affect them trivially should bear in mind that even these seemingly mild pressures induce false confessions at some small but non-negligible frequency. If confessions can be elicited even from the innocent, it becomes slightly clearer just how a skilled interrogator can elicit confessions from the guilty so successfully.
This psychological pressure will be reinforced by the subtle unpleasantness of the physical environment. Interrogation rooms tend to consist of small, featureless, claustrophobic environments in which the interrogatee is the uninterrupted subject of all attention. He may be seated on chairs without arms to heighten his physical lack of comfort, and he may have one interrogator facing him across a table and another hurling questions at him from 90 degrees to his left or right, heightening his sense of discomfort and forcing him to shift his focus repeatedly. There will be many variations on this theme of inducing physical discomfort, but the underlying objective is the same.
The following represents a collage of a variety of techniques used to heighten these pressures. Alas, lack of first-hand experience, on either side of the interrogation table, makes it difficult for me to determine precisely what combination of these approaches is likely to be used in any given jurisdiction, but I am hopeful that the following should give interested parties some idea of what might be brought to bear on interrogatees generally.
Much is predicated on the assumption that guilty suspects will feel a strong degree of guilt over what they have done, a desire to atone for it, come clean and, hopefully wipe the slate clean. I gather that those who feel no such emotions are extremely difficult to break under standard interrogation, as the extreme pressure that can otherwise be created is simply not obtainable.
The approach of the interrogator is therefore to create a great psychological pressure from which there is only one escape route, said route running, in effect, through the interrogator himself, as it is confession to him that removes the pressure. This being the case, it is extremely important that the interrogator generate a rapport with the interrogatee. He needs to come across as being sympathetic, as the type of person to whom one would want to confess. This does not preclude the possibility of his being harsh, dismissive, or abrupt as needs be, but such attitudes will always be presented as 'tough love', as being cruel to be kind. Ultimately, he will try to come across as being a father figure, someone looking out for the best interests of the interrogatee.
This rapport-building will often start outside the interrogation room. Casual conversation will be used to elicit truthful answers to simple questions ('See the match last night?'). Eliciting such truthful answers makes it harder for the interrogatee to switch to evasion and deceit once interrogation starts. The mere act of engaging in conversation will also help establish rapport and humanize the interrogator.
Once in the interrogation room, the interrogator will start to apply pressure by presenting the case that he has against the interrogatee. In doing so, he hopes to increase the sense on the part of the interrogatee that resistance is futile. We have already stipulated that this pressure will be insufficient in the type of interrogation we concern ourselves with here. Nonetheless, it is essential for the interrogator to apply as much pressure as he can in this fashion, overstating the strength of his evidence if necessary. ('We know that you were there around that time because you were seen in the vicinity a few minutes earlier. And we know that you had a motive to kill the guy. That gives us an awfully strong case against you.’) If he were to shrug and say, 'OK, fine, we have no real evidence on you one way or the other. But don't you feel terrible about what you did?', how many confessions would he be likely to get?
The interrogator must, it seems, be alert to signs of emotional distress on the part of the interrogatee. Only when they emerge is the interrogatee likely to seek the escape route of confession. But confessions are unlikely to just spill out at random. They need to be coaxed out by the interrogator, and one key method of doing this is to construct and present narratives that reduce the psychological resistance to confession on the part of the suspect.
Consider a case in which a man has killed an old friend in a drunken fight and denies being at the scene of the crime at all. The police have concluded that he was there and that no one else could have been. Which of the following narrative approaches is most likely to elicit confession if the police have made a strong case on the basis of what they know and the suspect is clearly in a state of emotional turmoil?
A: You've got to come clean on this. You're an evil man and you stabbed your friend because you wanted to kill him. You're going away for a long time, mister. You are in deep trouble. All your family hates you now, and your friend's family wishes you were dead. You know that, right?
B: Look, we understand what happened here. Alcohol makes people do things they don't want to do. We've all done stupid things after we've had a few beers. You were just unlucky, that's all, you didn't mean to hurt him, he just hit his head when he fell. You can still make good here, tell us what happened. People get through things like this, but you have to let us help you.
Clearly, it is the latter that is likely to elicit confession, giving the suspect as it does a narrative which allows him a degree of exoneration, and a sympathetic interrogator to 'escape' through. However, this process must be managed by the interrogator, as there is often a process of denial that the interrogatee will start to verbalize if allowed the opportunity.
Following on from B above (S - suspect, I - interrogator):
|S:||You've got it all wrong. There's no way I could ever --|
|I:||Look, we've been through this. We know you were there, and that no one else was. Stop lying to us. You bull***t us, this goes to court, then you have to sit there lying and get found guilty anyway. Is that what you want?|
Here, the interrogator cuts off the attempt of the suspect to generate momentum with a counter-narrative. This can be disastrous for the interrogation, as psychological momentum and the maintenance of psychological pressure are crucial in all interrogations. That said, the interrogator must be careful not to try and force a false or unsatisfactory narrative on the suspect, as it will be rejected, and continued pressure along these lines will reduce the sense of infallibility of the interrogator and jar and aggravate the suspect. The interrogator must therefore present things speculatively and look carefully for signs of agreement, or at least tacit acceptance, before committing further to a given narrative. He must also be prepared to abandon narrative approaches that seem to going nowhere and start afresh.
Given the prevalence of special powers given to the police under anti-terrorism legislation, we hear a great deal these days about physical coercion of various sorts as used in interrogation. Length of detention, access to lawyers, and right to silence could all be quite different under such legislation. The implications of silence or refusal to cooperate could also be different, with such things being criminal offences in their own right. Further escalations of the severity of interrogation could result in the use of sleep deprivation, psychological abuse and humiliation, and physical duress up to and including torture.
Analyzing such intensive interrogations in depth is even further beyond the capabilities of the layman than analyzing standard interrogation techniques. This becomes all the more true given that the details of a specific enhanced interrogation protocol cannot be known in advance. Nonetheless, I would like to present here some preliminary ruminations on the nature of the psychological pressures likely to be brought to bear during them.
There is a convenient example to hand of the type of thing that one might expect during a relatively untrammeled enhanced interrogation, and one of particular interest and relevance to British readers. I refer to the seven-day interrogations that members of the IRA and, less frequently, loyalist paramilitaries were subjected to during the Troubles in Northern Ireland. Anyone who is interested in the nitty-gritty of exactly what these interrogations consisted of can consult the online versions of the IRA Green Book, which was clearly put together on the basis of extensive debriefing of those who had undergone the seven-day interrogations. It contains many fascinating insights into a) the physical violence used, b) the psychological pressures exerted, and c) the relationship between them. This ideological and operational manual was last revised in 1977, and it was so revised precisely in an attempt to counter the damage being inflicted upon the IRA by the seven-day interrogations mentioned above.
Unlike the earlier 1956 edition of the Green Book, which focuses on the operational details of the flying columns the IRA was still using in its Border Campaign of that year, the 1977 edition focuses on the ideological preparation and hardening of IRA Volunteers. This poses an interesting question in its own right. Let us bear in mind that IRA Volunteers were, virtually by definition, people who had accepted a very high risk of violent death or long periods of incarceration in their struggle to get the 'Brits out.' They were all physically brave and willing to undergo great physical, psychological, and financial hardship in pursuit of their political goals. What then might it mean for ideological weakness to be identified as a key problem for IRA members trying to resist extended interrogation? If they were ideologically weak, where did their commitment to their cause come from?
I will speculate here on one particular way in which ideological weakness could have undermined IRA Volunteers under seven-day interrogation. Again, I refer interested parties to online versions of relevant parts of the document, which is a fascinating read for those interested in such subjects.
Ideological weakness is not, it seems, to be confused with cowardice or lack of mental fortitude. Imagine that the IRA stage a bombing attack on a Protestant target in Northern Ireland which kills eight Protestants, including a four-year-old girl (not now, but during the pre-1997 Troubles). The British security forces, confident that they know the identity of at least one of the bombers, arrest the man who actually triggered the bomb and proceed to conduct a seven-day interrogation on him. Now a seven-day interrogation will be physically and psychologically gruelling, quite irrespective of any other factors. As a brief perusal of the 1977 IRA Green Book will make clear, physical violence, psychological abuse, systematic humiliation, sleep deprivation and subtle psychological ploys were all employed against IRA volunteers. But what of the significance of ideological hardening?
There must have been some IRA members who could have remained completely unconcerned by the killing of infants by their bombs, but not, one suspects, all that many. It would have been a simple matter for interrogators to confront our hypothetical interrogatee with a photograph of the dead infant and start probing from there. Note that courage and mental fortitude are surely not sufficient to leave one unaffected by such lines of interrogation. Courage vis-à-vis the possibility of violent death and mental fortitude vis-à-vis the rigours of interrogation and incarceration are surely useless in the task of reconciling oneself with having killed a child. Only a mind fortified by a precise understanding of what is being fought for and why will be able to withstand the build-up of an intense sense of guilt over the killing of a child, unless the person in question happens to be some sort of genuine psychopath.
This emotional response would not be limited to cases in which children had been killed; this is simply the most obvious example. Other good examples would include the killing of old people, the killing of people in the wrong 'group' (such as the killing of Catholics by IRA bombs or Protestants by UVF bombs), and the killing of women. The psychological advantage enjoyed by the crews of bombers during the Second World War, who never even saw their victims, let alone their suffering, could not be enjoyed by an IRA member under interrogation of this sort. If our interrogatee is not a psychopath and can be exposed to this sort of interrogation, backed up with the presentation of a more conventional evidence-based case, they will need a very strong ideological base indeed to withstand the pressure of the interrogation, whether its objective is gaining a conviction or 'turning' them to work for the authorities. Of course, this ideological base is also likely to come in useful if one is having one's head banged repeatedly against the wall, but we will ignore that aspect of matters here.
The broad details of the ideological base that the IRA would have constructed are not difficult to imagine. A part of Ireland (Northern Ireland to the British, the Six Counties, in Republican terminology) was still occupied by British forces, and those forces were oppressing the original (i.e. Irish) population of the country and subjecting them to foreign rule. Peaceful attempts to address this injustice had proven themselves to be of limited or no utility, leaving the Irish people, north and south of the border, no option but to use physical force to achieve their legitimate goals. Though this state of affairs was regretted, and the infliction of violence of innocent civilians was regretted all the more, civilian casualties were simply a feature of all wars, including those historically conducted by the British themselves. If the only way of freeing the Irish people from oppression was violence, and violence would necessarily inflict some civilian or otherwise unwanted casualties, then the IRA would have no choice but to inflict them, as the British themselves did far more callously on Bloody Sunday and other days of infamy. Ultimate moral responsibility lay not with the IRA, but with the British state.
Something along these lines would have been the IRA's justification for violence of the sort in our hypothetical example, with minor variations existing for military casualties, inadvertent civilian casualties, and intentional civilian casualties. But it would be of little use to an IRA man who was merely vaguely familiar with it, and whose overriding thought on the subject of Northern Ireland was 'Brits out.' It would have to have been thoroughly understood and deeply internalized to be of any use when faced with a picture of a four-year-old girl whose legs he had just blown off.
Such matters are unpleasant to consider. Readers should understand that I offer no moral judgements on the IRA, the Troubles, the murder of civilians, or terrorist violence one way or the other in this essay. The point I wish to make is simply that ideological weakness has been shown by the Troubles (and undoubtedly other conflicts as well) to be an operational liability, which is to say that ideology cannot be left to one part of a paramilitary organization with operations being delegated to another. There is clearly a need for ideological hardening throughout the length and breadth of an organization, as the operational people are the most likely to be arrested, interrogated and subjected to the above psychological techniques, with potentially dire consequences not only for the interrogatee but for the organization as a whole. This is quite unrelated to the question of whether the operations people are involved in the formulation of ideology or strategy. They need, at the very least, to understand them and be committed to them.
The degree of ideological hardening that would be required of anyone who had engaged in a politically-motivated violent act and was undergoing intensive interrogation would be, most obviously, a function of the target of the violence. A British vigilante, say, who had executed some Pakistani serial rapist of white British women would need much less ideological hardening to withstand such interrogation than one who had tried to do so and killed the rapist’s law-abiding Pakistani next-door neighbour by mistake, or had killed some white British bystander in the crossfire whilst carrying out the assassination. Any vigilante/paramilitary organization, formal or informal, which planned to engage in any such violent activities would need to have a relatively clear physical force doctrine, not only for PR purposes, but also for the purposes of ideological hardening as outlined above.
In addition to the above considerations, the possibility must be considered that, even ignoring the risk of confession and/or collaboration as a consequence of interrogation, insufficient ideological hardening will increase the risk of abandonment of the cause by vigilantes/volunteers in the event of inadvertent civilian casualties. Of course, the relatively precise use of violence is already a goal of many non-state actors (though not all, see Al-Qaeda) seeking political change of some sort through violent means. But the impossibility of attaining complete precision introduces other considerations that may not be obvious at a glance.
Let us bring this consideration of the criminal investigation process to a close by listing the most obvious counter-interrogation measures, all of which follow fairly obviously from the preceding discussions.
|1.||Always insist on a lawyer if one is allowed (which they will be in any standard criminal investigation). Engage in no communication whatsoever with the police (other than required formalities such as identifying yourself) until a lawyer is present.|
|2.||Always treat the interrogators as enemies, however much you may respect the police as an institution or individual police officers as people. Be cordial as and when possible (if the mood takes you), but do not engage in any idle chat whatsoever, at any time.|
|3.||Following on from 2), ignore any and all claims on the part of the interrogators that they sympathize with your attitudes/politics while disapproving of your actions. This is an attempt to create rapport and get you talking, a) in the hope that you will let slip something detrimental to your own position, and b) to establish themselves as a sympathetic party to whom one might 'like' to confess. You do not need their sympathy, you need to engage in counter-interrogation. It must be reiterated that all interrogators are the enemy, always. There are no exceptions to this at all.|
|4.||Accept when interrogation starts that it will be, at the very least, a physically uncomfortable and draining process. Write this discomfort off. The maximum possible period of interrogation is likely to be a fraction of one percent of the time one will spend in prison if one is convicted of a serious criminal offence. The temptation to escape interrogation must be suppressed; interrogation must be endured, not escaped.|
|5.||Do not volunteer any information on any subject. Do not try and play with or 'outfox' the police. Most of the advantages in an interrogation are theirs; you must make the most of your own. The danger of revealing information that one could only have access to if guilty is too great, and will give the police too great a psychological advantage, to be worth risking. The danger of saying something untrue which the police can prove to be untrue, thus implicating oneself and, again, giving the police a massive psychological advantage, is also too great.|
|6.||One must formulate a strategy, either before the interrogation or soon after it begins, deciding whether to appear a) cooperative and innocent, or b) uncooperative and guilty. It is imperative that the full implications of both approaches are understood. The first option is high risk, high return. One may be able to throw the police off the scent but the risks of trying to deceive the police in this fashion are very considerable, and the likely benefits zero if they are already sure you are dirty in some fashion. The second strategy accepts that one's involvement in something illegal will be made clear to the police, but is not significantly incriminating in any regard. This decision will have to be made on the basis of the circumstances of one's arrest. If unsure, one should keep silent and refuse to cooperate at all.|