United States District Court, D. Rhode Island
OPINION AND ORDER
WILLIAM E. SMITH, CHIEF JUDGE.
Before
the Court is Defendant Jordan Monroe's Motion To Suppress
Statement (ECF No. 20), and the Government's Response in
Opposition (ECF No. 23).[1] The Court conducted an evidentiary
hearing on June 1, 2017, and heard argument the following
day. After considering the evidence and arguments presented
by the parties, for the reasons set forth herein,
Defendant's motion is DENIED in part and GRANTED in part.
I.
Background
The
facts underlying this Motion are largely not in dispute. The
Court gleans the following facts from the testimony at the
evidentiary hearing and recordings of Monroe's police
interviews.
On May
12, 2016, at approximately 6:00 a.m., law enforcement arrived
at Jordan Monroe's residence to execute a search warrant
for evidence of child pornography-related
crimes.[2] Monroe answered the door wearing a
bathrobe after agents knocked and announced their
presence.[3] About fifteen to twenty officers entered
the home to execute the search warrant.[4] Special Agent
James V. Richardson (“Special Agent Richardson”)
of Homeland Security Investigations, and Detective Adam
Houston (“Detective Houston”) of the Rhode Island
State Police, brought Monroe to the home's finished
basement.[5] Law enforcement began questioning Monroe
at 6:24 a.m. in his home. Questioning continued at the State
Police Barracks in Scituate, Rhode Island and ended sometime
after 12:50 p.m.[6]Monroe complains of multiple
Miranda and Due Process violations over the course
of these interrogations.[7]
At the
beginning of the first interview, which occurred at
Monroe's home at 6:24 a.m., Special Agent Richardson told
Monroe that he was not under arrest, but that Special Agent
Richardson was going to read Monroe his rights.[8] Special Agent
Richardson did so, but Monroe refused to sign the form
indicating he understood those rights.[9] Monroe, however,
did acknowledge his understanding by stating, “I get
it.”[10] Just after this acknowledgement, Monroe,
in hospitable fashion, expressed his regret that the officers
had not called ahead, stating that if they had, he
“woulda ordered pizza.”[11] Monroe then admitted to
downloading to his computer a large volume of child
pornography from the internet.[12]
The
interview continued and, after giving the officers a password
to his server, Monroe stated, “I don't even have a
[l]awyer, I don't know if I should be giving you
passwords.”[13]
Later
in the same interview, after Detective Houston accused Monroe
of being sexually attracted to children, Monroe stated,
“Oh ok conversation's over.”[14] Because
Monroe and Detective Houston were speaking concurrently when
Monroe said this, Special Agent Richardson testified that he
did not hear Monroe say, “conversation's
over.”[15]
The
interview continued until 6:59 a.m.[16] At this time, Special
Agent Richardson told Monroe, “let's end the
interview for now . . . I'll go speak to somebody and uh
maybe they're gonna let you go outside right there and
smoke a butt.”[17] A short time later, Defendant was
permitted to smoke in his side yard and patio
area.[18]
Law
enforcement recommenced questioning at Monroe's home at
7:34 a.m., and Monroe was not re-informed of his
Miranda rights.[19]During this interview, Monroe
consented to taking a polygraph test about the information he
had provided.[20] The interview at Monroe's home
concluded at 8:01 a.m.[21] Monroe was then formally arrested and
taken to the State Police Scituate Barracks.[22]
After
arriving at the Barracks, Special Agent Christopher Braga
(“Special Agent Braga”) of the FBI, and Special
Agent Richardson, conducted a so-called
“pre-polygraph” interview with Monroe, beginning
at approximately 9:27 a.m.[23] Within minutes, Monroe stated,
“I'm nervous now, because that other State Police
Detective was a douche bag to me, so, now I'm thinking,
maybe lawyer.”[24]
Shortly
after this interaction, Special Agent Braga began to create a
narrative for the interview that reassured Monroe that his
job was simply to determine whether Monroe was a
“predator” or “monster, ” while
reassuring Monroe that what Monroe did was “not the end
of the world.”[25]
Special
Agent Braga then read Monroe his Miranda rights at
approximately 9:50 a.m.[26] Monroe did not sign the
Miranda acknowledgement form but when asked if he
understood the rights, he answered in the
affirmative.[27] Shortly thereafter, Monroe stated,
“Because even if I ask for a lawyer at this point that
could [be] next fucking week before somebody showed up, who
knows?”[28] Special Agent Braga responded to this
statement by saying, “Well, I mean, it's your,
it's your right, but this makes it uhh, this makes [it]
quicker.”[29] To this, Monroe replied, “It's
my right to not have Mexican[s] take seven dollar an hour
jobs, ” and, moments later stated, “I'll just
vote for Donald, he'll build a wall.”[30]
After
the pre-polygraph interview proceeded for a while, Monroe
stated: “I'm still thinking in the back of my mind,
lawyer, lawyer, these guys are going to fuck
you.”[31] Questioning again
continued.[32] Later in the interview, at approximately
11:25 a.m., Monroe said: “[H]ave you ever heard of the
term, hypoglycemia? . . . I haven't eaten all
day.”[33] Special Agent Braga and Special Agent
Richardson told Monroe they would get him food before the
polygraph and after they finished the current
interview.[34] Shortly after this interaction, Monroe
admitted to having sex with his step-daughter when she was
fifteen years old.[35] Monroe received food between fifteen and
thirty-five minutes after requesting it, and the interview
concluded at approximately 12:15 p.m.[36]
Monroe
then submitted to an unrecorded polygraph examination,
followed by a recorded post-polygraph
examination.[37] The Government does not seek to admit
any of Monroe's statements during the post-polygraph
interview in its case in chief, but contends that such
statements may be used if Monroe chooses to testify at
trial.[38]Defendant seeks to exclude all of the
post-polygraph statements, regardless of their use.
During
the post-polygraph interview, Special Agent Braga told Monroe
that he failed the polygraph examination “in regards to
additional sexual contact . . . with minors[, ]” and if
he did not tell the truth, “people are going to draw
their own conclusions.”[39]Special Agent Braga also told
Monroe that if he was not a “predator” Monroe
should tell the agents what he was keeping from them and they
would not get mad at him.[40] Monroe stated,
“Lawyer.”[41]Special Agent Braga responded by
stating, “Right, you can have a lawyer anytime you
want. We, we advised you of that, ” and continued the
questioning.[42]
Shortly
after this interaction, Monroe then stated, “[L]awyer,
this, this is done.”[43] Nonetheless, Special Agent
Braga again continued the questioning.[44] At the
evidentiary hearing on this motion, Special Agent Richardson
conceded that he should have stepped in at this point,
stopped the interview, and clarified whether Monroe wanted to
continue.[45]
Defendant
alleges additional violations of his Miranda rights
after this point in the interrogation.[46] The Court
need not address these violations as the Court suppresses all
statements after this point, as discussed further below.
II.
Discussion
A. The
Interrogation at Monroe's Home
1.
Whether the Interrogation at Monroe's Home Was Custodial
Monroe
argues that the interrogation at his home was custodial
because he was separated from his family and he was not free
to leave.[47] Specifically, Monroe argues that when he
was permitted to go outside to smoke a cigarette and Special
Agent Richardson said, “maybe they're gonna let you
go outside . . . and smoke a butt, ” a reasonable
person in Monroe's situation would not have believed he
was in fact free to leave.[48] The Government counters that
the control exercised over Monroe in this interaction was
“a simple officer safety situation” and that
officers “have every right to control that environment
and to control for their own safety who is in the house and
where they are and where they're going and what
they're doing” during a search.[49] Additionally,
according to the Government, the interrogation at
Monroe's home was not custodial because they were in his
home, Monroe was not handcuffed or restrained, and Monroe had
been advised that he was not under arrest.[50]
Law
enforcement need only respect Miranda rights during
custodial interrogations.[51] “The determination [of
whether an interrogation is custodial] involves two distinct
inquiries: ‘first, what were the circumstances
surrounding the interrogation; and second, given those
circumstances, would a reasonable person have felt he or she
was not at liberty to terminate the interrogation and
leave.'”[52] While the Court must examine the
totality of the circumstances to determine custody for
Miranda purposes,
[the First Circuit has] identified several factors that guide
the analysis. Those factors include “whether the
suspect was questioned in familiar or at least neutral
surroundings, the number of law enforcement officers present
at the scene, the degree of physical restraint placed upon
the suspect, and the duration and character of the
interrogation.”[53]
The
original interrogation of Monroe occurred at his home, he was
not handcuffed, and the questioning lasted approximately an
hour and a half; it began at 6:24 a.m. and ended at 8:01 a.m.
with a roughly thirty-minute break midway, which qualifies as
a relatively short interview.[54] These facts weigh in favor of
finding the interview non-custodial.[55] Conversely, while only
Special Agent Richardson and Detective Houston conducted the
questioning, fifteen to twenty officers were present at the
scene.[56]Additionally, the questioning occurred
shortly after 6:00 a.m., Monroe, having been wrested from
sleep, was dressed in his bathrobe, and the officers, at
times, appeared to threaten and intimidate
Monroe.[57] For example, Detective Houston noted at
one point that he could make the search inconvenient for
Monroe's family, and later accused Monroe of being
sexually attracted to children.[58] These facts weigh in
favor of finding the interview custodial.[59]
Of
particular note, when Monroe asked to smoke a cigarette,
Special Agent Richardson stated, ”I'll go upstairs
and speak to somebody and uh maybe they're gonna let you
go outside right there and smoke a butt.”[60] The statement
informs the question of whether a reasonable person would
believe he or she were free to leave. As the First Circuit
stated in an analogous case:
The government argues that the physical control was necessary
to preserve potential evidence within the house and protect
the safety of the officers. While that may be so, this
justification does not answer the very different question of
whether a reasonable person . . . would believe he was not at
liberty to terminate the interrogation and
leave.[61]
The
fact that Monroe had to obtain permission to smoke on his own
patio, even if this control was solely for officer safety
purposes, when combined with having fifteen to twenty
officers in his home, at 6:00 a.m., while still in his
bathrobe, and after being separated from his family,
[62]
tips the scales in favor of concluding that this was a
custodial interrogation. A reasonable individual would not
believe he or she was free to terminate the interrogation and
leave. Accordingly, the Court finds that the interrogation at
Monroe's home was custodial, and Miranda
applies.
2.
Whether Monroe Waived His Miranda Rights
In
order for Monroe's statements to be admissible, the
Government must prove Monroe waived his Miranda
rights by a preponderance of the evidence and the waiver must
be made “voluntarily, knowingly and
intelligently.”[63] During the first set of questions,
Monroe was read his rights and stated, “I get
it.”[64]While Defendant argues that he was
distracted when his rights were read, [65] there is no
evidence of any distraction. Additionally, Defendant argues
that he did not understand his rights because later at the
police station, after being informed of his rights, he
remarked it would take a week for an attorney to get
there.[66]The Government, however, notes that
Monroe, later in the day, stated he was done and wanted a
lawyer, suggesting he understood his rights perfectly
well.[67] Monroe is an adult, and there is no
evidence suggesting he has an intellectual disability or is
of diminished capacity. When he stated, “I get it,
” officers were entitled to accept his statement. And,
as discussed below, Monroe's statements and comments
later in the day reveal he did, in fact, get it. The Court
therefore finds that Monroe understood his Miranda
rights at his home and made a knowing and voluntary waiver of
them.
3.
Whether Monroe Unequivocally Invoked His Right to Counsel at
His Home
Monroe
argues that he clearly and unambiguously invoked his right to
counsel in the first interview when he stated: “I
don't even have a lawyer, I don't know if I should be
giving you passwords.”[68] The Government argues that
Monroe's statement was not an unequivocal invocation of
the right to counsel.[69]
Once a
suspect waives the right to counsel, until the suspect makes
an “unequivocal” request for counsel, officers
may continue questioning the suspect.[70] “[A]
statement either is such an assertion of the right to counsel
or it is not.”[71] In determining whether an unequivocal
statement was made, the inquiry is objective: the suspect
“must articulate his desire to have counsel present
sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be a request
for an attorney.”[72] If the suspect does invoke, the
interrogation must cease.[73]
In the
instant case, Monroe stated, “I, I don't even have
a lawyer, I don't know if I should be giving you
passwords.”[74] Similar statements have not been held to
be clear invocations of the right to counsel.[75] As such, the
statement was equivocal and a reasonable police officer would
not have understood the statement as a clear invocation of
the right. Accordingly, Monroe's alleged Miranda
violation claim fails in regards to the statement: “I
don't even have a lawyer.”
4.
Whether Monroe Invoked His Right to Remain Silent at His Home
Monroe
next argues that he invoked his right to remain silent when
he stated, “Oh ok conversation's over, ” in
response to Detective Houston accusing him of being sexually
attracted to children.[76] The Government argues that
Monroe's statement was not an unequivocal invocation of
the right to remain silent because Detective Houston and
Monroe were speaking over one another and neither Detective
Houston nor Special Agent Richardson heard the
statement.[77] Additionally, according to the
Government, Monroe, “without pause, ” answered
Detective Houston's question following his statement, and
the statement was more indicative of a reactionary response
to Monroe being accused of being a child molester than it was
an invocation of the right to counsel.[78]
The
same standard applies for invoking the right to remain silent
as for invoking the right to counsel; invocation of the right
must be “unambiguous” and the inquiry into
whether the right was invoked is objective.[79] Again, the
question becomes whether “a reasonable police officer
in the circumstances would understand the statement to be [a
Miranda invocation].”[80] In this regard,
“[i]f no officer heard [an alleged invocation], it
could not have been a clear invocation [of the right] . . .
[because] officers could not have objectively understood a
statement they did not hear.”[81] Further, if “the
accused himself initiates further communication, exchanges,
or conversations with the police, ” questioning can
continue even after a previous invocation.[82]
Monroe's
statement, in context, is a close call. Monroe did state,
“Oh ok conversation's over.” Nevertheless,
the audio recording makes clear that Detective Houston was
speaking at the same time as Monroe. At almost exactly the
second syllable of the word “conversation,
” Detective Houston asked a follow-up question, to
which Monroe immediately responded.[83]
First,
given that Detective Houston and Monroe spoke concurrently,
and in light of Special Agent Richardson's testimony that
he did not hear the statement, the Court concludes that the
officers did not hear the statement.[84] This alone is adequate to
find that Monroe's statement did not require the officers
to stop the questioning because the “officers could not
have objectively understood a statement they did not
hear.”[85]
Second,
because Monroe continued to speak immediately after stating
“conversation's over, ” Monroe initiated
“further communication . . . with the
police.”[86] Therefore, even if Special Agent
Richardson and Detective Houston did hear Monroe's
statement, the officers still would not have needed to end
the questioning. If a suspect chooses to speak, officers
cannot be expected to cover their ears. Accordingly, there
was no Miranda violation during the interview at
Monroe's home.
B. The
Questioning at the Police Station[87]
1.
Whether Monroe's Miranda Rights Were Violated
During the Pre-Polygraph Interview
Monroe
argues that his right to counsel was violated because he
unambiguously invoked his right to counsel three times during
the pre-polygraph interview and, after each invocation,
officers continued to question him.[88]
Defendant
argues that he invoked first when he stated, “[N]ow
I'm thinking, maybe lawyer”, [89] and second,
when after being read his Miranda rights, he stated,
“Because even if I ask for a lawyer at this point, that
could [be] next fucking week before somebody showed
up.”[90] Regarding this later invocation, Monroe
further argues that Special Agent Braga's response,
“Well, I mean, it's your, it's your right, but,
this makes it uhh, this makes [it] quicker, ” is
evidence that the officers believed Monroe was invoking, that
Special Agent Braga tried to dissuade him, and that Special
Agent Braga misrepresented the right.[91] Finally,
Monroe argues that he also invoked his right to counsel when
he stated, “I'm still thinking in the back of my
mind, lawyer, lawyer, these guys are going to fuck
you.”[92] The Government, naturally, argues that
none of these statements are clear, unequivocal requests for
counsel, and as such, continued questioning was
permissible.[93]
As
stated above, an invocation of the right to counsel must be
“unequivocal, ” otherwise officers may continue
questioning a suspect.[94] Simply put, “a statement either
is such an assertion of the right to counsel or it is
not.”[95]
Monroe's
three statements, “now I'm thinking, maybe
lawyer”; “even if I ask for a lawyer at this
point, that could [be] next fucking week before somebody
showed up”; and “I'm still thinking in the
back of my mind, lawyer, lawyer, ” are all
equivocal.[96] The statements are simply not
unequivocal assertions of the right to counsel. As to the
argument that Special Agent Braga's response to the
second statement, arguably steering Monroe away from
invoking, demonstrates that Special Agent Braga thought
Monroe was asserting his right, this argument is
unpersuasive. The test is “objective, ” and does
not hinge on Special Agent Braga's subjective
view.[97] No objective officer would view that
statement as an unequivocal invocation.
Monroe's
argument that Special Agent Braga misrepresented Monroe's
rights and dissuaded him from invoking also falls flat. He
contends that Special Agent Braga's statement
“encourage[ed] his misconception, ” but as
discussed above, the Court concludes that Monroe did not
misunderstand his rights.[98] Additionally, Special Agent
Braga's statement was not untrue; undoubtedly Special
Agent Braga's task of gathering evidence against Monroe
was quickened by Monroe foregoing an attorney during
questioning; and Special Agent Braga's statement was a
reasonable reaction to Monroe's equivocal statement - it
left the door open for Monroe either to invoke his right
unequivocally or to continue talking.
With
respect to Special Agent Braga's purported dissuasion,
more than the comment, “[proceeding without an
attorney] makes it . . . quicker, ” is needed to
constitute a Miranda violation.[99] Accordingly,
the Court finds that Monroe's Miranda rights
were not violated during the pre-polygraph questioning and,
accordingly, no statements from this interview need be
suppressed.
2.
Whether Monroe's Miranda Rights Were Violated
During the Post-Polygraph Interview
Monroe
argues that he invoked his right to counsel and his right to
remain silent several times in the post-polygraph
interview.[100] The first invocation Monroe alleges is
when he stated, “Lawyer.”[101] Special
Agent Braga's response to this statement was,
“Right, you can have a lawyer anytime you want. We, we
advised you of that. But, understand this . . .
.”[102] To which Monroe replied, “No,
no.”[103] A short time later, Monroe stated,
“[L]awyer, this, this is done.”[104] Special
Agent Braga, however, continued the questioning once
more.[105] Monroe further alleges that he invoked
his rights at several other points during this questioning.
The Government, in rejoinder, says it does not seek to admit
any statements from the post-polygraph statement, but wishes
to reserve the right to use the statements on
cross-examination or rebuttal.[106]
The
framework here is once again clear: invocation of the right
to counsel must be “unequivocal, ” and if
invocation occurs, questioning must cease.[107]
Nevertheless, “[o]ne exception to the [exclusionary]
rule permits prosecutors to introduce illegally obtained
evidence for the limited purpose of impeaching the
credibility of the defendant's own
testimony.”[108] It is well established that:
a defendant “must be free to deny all the elements of
the case against him without thereby giving leave to the
Government to introduce by way of rebuttal evidence illegally
secured by it, and therefore not available for its case in
chief. Beyond that, however, there is hardly justification
for letting the defendant affirmatively resort to perjurious
testimony in reliance on the Government's disability to
challenge his credibility.”[109]
Monroe's
statement, “Lawyer, ” is an unequivocal
invocation of the right to counsel, and questioning should
have ceased immediately. That Special Agent Braga continued
the interview was a blatant disregard of Monroe's right
to an attorney. “[L]awyer, this, this is done, ”
was also a clear, unequivocal invocation. There is, in fact,
not much issue with this second statement: Special Agent
Richardson, at the hearing on this motion conceded,
“[a]t that one point I should have at least stopped the
interview and clarified with him what he wanted to
do.”[110]
This
aside, statements made after these invocations are suppressed
and may be admissible only to the extent they are used to
impeach Defendant and are otherwise admissible under the
Federal Rules of Evidence.[111]
C.
Whether Monroe's Due Process Rights Were Violated
Monroe
argues that his statements were involuntary because they were
obtained using the “Reid Technique;” officers
used threats and promises to gain his cooperation; and the
officers did not stop the questioning when Monroe invoked his
Miranda rights.[112]Monroe argues that
“[e]ach of these factors, separate and cumulatively,
combined to elicit involuntary
statements.”[113] The Government argues that the
interview at Monroe's home was voluntary because Monroe
was relaxed and loquacious and at times even directed the
conversation, for example, discussing the HBO television
program The Wire.[114] The Government also contends that
Monroe was similarly relaxed at the beginning of the
pre-polygraph interview and that Monroe's choice not to
sign the Miranda waiver forms both at his home and
at the station is demonstrative of a voluntary
choice.[115] Finally, the Government argues that
the Reid Technique does not violate Due Process and there is
no evidence that the technique was even used.[116]
The
Fifth Amendment bars the admission of involuntary
confessions.[117] To determine whether statements are
made involuntarily, “courts must inquire ‘whether
the will of the defendant had been overborne so that the
statement was not his free and voluntary
act.'”[118] In making this inquiry, the Court
considers the totality of the circumstances.[119] Relevant
factors include: “the length and nature of the
questioning, promises or threats made by investigators, and
any deprivation of the suspect's essential
needs.”[120] Also included are the suspect's
circumstances, such as: “age, education, intelligence,
and mental condition, [] as well as his prior experience with
the criminal justice system, ” and the suspect's
demeanor.[121] Because the Court has already
suppressed essentially all of Monroe's post-polygraph
statements, the Court focuses on whether Monroe's Due
Process rights were violated during the interview at
Monroe's home and during the pre-polygraph interrogation.
1.
Whether Threats Rendered Monroe's Statements Involuntary
Monroe
claims that his statements were involuntary because he was
subjected to threats and promises.[122] “Law enforcement
conduct which renders a confession involuntary does not
consist only of express threats so direct as to bludgeon a
defendant into failure of the will;” psychological
coercion may also make a confession
involuntary.[123] Courts must also consider whether law
enforcement made “threats of harsher punishment in
exchange for a defendant's failure to
cooperate.”[124]
Monroe
claims he was threatened with “harsher than normal
legal consequences” unless he made incriminating
statements.[125]While there may be statements
constituting threats of harsher punishment, [126] these
alleged threats occurred during the post-polygraph interview,
which the Court has suppressed for the reasons stated above.
The
remaining alleged “threats” at issue relate to
the inconvenience of executing the search warrant at his
home.[127] These statements, however, do not
qualify as the type of threats that would render Monroe's
statements involuntary, especially given the overall
circumstances.[128]
2.
Whether Promises Rendered Monroe's Statements Involuntary
Monroe
also claims that he “received constant reassurances
that his cooperation would be noted and conveyed to the
prosecutor and judge so that they may be more lenient in
their treatment of him.”[129] This argument is
unavailing. “It is well settled in the First Circuit
that an officer does not impermissibly overbear a
defendant's will by promising to bring the
defendant's cooperation to the prosecutor's attention
or by suggesting that cooperation may lead to more favorable
treatment.”[130] Therefore, Monroe's argument that
his statements were involuntary because officers made
promises in exchange for his cooperation must fail.
3.
Whether the Reid Technique Rendered Monroe's Statements
Involuntary
Monroe
also claims that the use of the Reid Technique rendered his
statements involuntary.[131] According to Monroe, he was
discouraged “from not admitting guilt by [officers]
presenting socially accepted alternatives . . . in order to
prod him into choosing the lesser guilt inferring
alternative.”[132]
The
Reid Technique is the most-used interrogation technique by
law enforcement in the United States.[133] John E.
Reid & Associates, Inc., the developer of the technique,
traces its origins to the 1940s.[134] The method consists of
a “Behavioral Analysis Interview” and an
“Interrogation.”[135] The Behavioral Analysis
Interview is largely intended “to determin[e] whether
the suspect is lying, which is generally indicative of
guilt.”[136] If, after the Behavioral Analysis
Interview, the investigator feels that the suspect is not
being truthful, an Interrogation generally
follows.[137] During the Interrogation, “the
insistence on the suspect's guilt . . . is to be hurled
persistently and unwaveringly, and [is to] be accompanied by
a flat and assertive rejection of the suspect's denials
of guilt.”[138] During this process, “the
interrogator must make the suspect perceive that confessing
is the most beneficial course of action available to
him.”[139] To achieve this, “the
interrogator must distort [the suspect's] perception of
the situation, namely by making confessing appear to be more
advantageous than refusing to confess.”[140] To this
end, “the Reid Method advocates the use of
interrogative techniques that have been labeled
minimization and maximization, which have
been deemed permissible by” courts.[141]
Minimization
involves
presenting the suspect with a theme that reduces the
import of the crime. Themes usually convey the
interrogator's opinion that the crime was not so serious,
that the victim deserved his fate, or that anyone else would
have acted in the same way. . . . [E]xperiments show that
minimizing themes are understood by lay people as implicit
promises of leniency.[142]
Maximization, on the other hand, involves
depicting the case against the suspect as being beyond any
doubt. The implicit message is that the suspect is bound to
be convicted even absent a confession, and that he faces
harsh consequences, especially given the seriousness of the
criminal charge . . . and the severity of the corresponding
punishment . . . . Cooperating with the interrogators is
portrayed as the only possible way to mitigate the direness
of [the suspect's] situation.[143]
Importantly,
the John E. Reid & Associates, Inc. website insists that
those conducting the Behavior Analysis Interview who are
“specifically trained and experienced in behavior
analysis assessment can correctly identify the truthfulness
of a person 85% of the time.”[144] According to at least
one leading scholar in the field, however, this claim is
substantiated chiefly by a flawed study.[145] The
aspect of the technique intended to decipher truth-teller
from liar has been termed “a cacophony of commonly held
but poorly diagnostic intuitions.”[146] The major
problem with all of this is that these interrogation tactics
can lead to - or are at least present in - false confessions,
[147] and false confessions are present in
up to a quarter of known exonerations of innocent people
wrongfully convicted of crimes.[148]
The
fact that the Reid Technique is the most widely used
interrogation method, and that up to a quarter of
exonerations involve false confessions, is no doubt a cause
for great concern in our criminal justice system; it is,
however, a different question from whether the technique, in
and of itself, overbears “the will of the
defendant” in the instant case.[149] The First
Circuit, in discussing the Reid Technique, plainly notes that
deception during questioning is permissible so long as it is
not extreme.[150] In that case, the court also noted:
[T]he agents' statements exaggerating the quality of
their evidence, minimizing the gravity of Jacques's
offense, and emphasizing the negative media attention that
would attend Jacques's trial all fall safely within the
realm of the permissible “chicanery” sanctioned
by this and other courts. Jacques points to no federal
authority supporting a finding of an involuntary confession
under similar circumstances.[151]
While
Monroe argues the Reid Technique was used “to
discourage [him] from not admitting guilt by presenting
socially accepted alternatives . . . in order to prod him
into choosing the lesser guilt inferring alternative,
”[152] there is nothing impermissible as a
matter of law with this interrogation approach; it falls
within the range of acceptable interrogation tactics
sanctioned by the First Circuit. Monroe offers no authority,
and the Court could not find any, for the contention that an
agent's minimization of crimes, under these facts,
renders a suspect's statements involuntary.[153] Thus,
Monroe's argument that the Reid Technique violated his
Due Process rights must fail.
The
problem with this result, of course, is that it implicitly
condones police interrogation tactics, such as lie detector
tricks and the minimization and maximization of crimes,
which, again, can lead to - or are at least present in -
false confessions.[154] Thus, the use of the Reid Technique on
most competent adults is lawful until and unless it fails,
and proving its failure is a herculean task to be sure.
Generally, it would require overcoming a finding of guilt on
a post-conviction claim of actual innocence.[155] The
solution to this problem is not to ban the Reid Technique by
holding, as Defendant would have it, that its use constitutes
a per se Fifth Amendment violation. But, at the same
time, law enforcement agents need to consider carefully
whether their tactics are appropriate in any given situation,
and they should be fully trained, using real science (not
company promotional propaganda), on the efficacy and
frailties of various interrogation techniques.[156]
Indeed,
all agents in the criminal justice system - prosecutors,
defense attorneys, and judges - want a system that does not
wrongfully convict innocent people. If law enforcement agents
are led to believe incorrectly that the Reid Technique
possesses a kind of special power to root out the
truth[157] - as the company's marketing
material implies[158] - they will be misled in certain
cases, resulting in false confessions and wrongful
...