By John E. Reid & Associates
National statistics would readily support the claim that, in the
last decade, children are increasingly involved in more serious
crimes. It no longer shocks the average listener to learn that a
12-year-old shot and killed his teacher, two 13-year-old boys gang
raped a girl after a school dance or a 14-year-old robbed a
classmate of his lunch money at knife point. Along with these
incidents are reports alleging that police obtained false
confessions from children involving very serious crimes. We have
been consulted on a number of such cases. In our opinion, some of
them were clearly truthful confessions while others were probably
false.
Several myths exist within the uninformed public concerning crimes
committed by children. One is that, because of limited cognitive
abilities, a child guilty of a crime would readily confess after a
short period of questioning. If anything, children are more
resilient in maintaining and selling lies than a socially
responsible adult. A related myth is that children are unable to
comprehend the consequences of their crime. While the concept of
long-range times, such as a 10 to 15 year prison sentence, may be
incomprehensible in an eleven-year-old's mind, the child has enough
awareness of future consequences associated with his crime to lie
about it. After all, if a child believed that it was alright to set
fire to his 5th grade teacher's car he would readily
admit to the arson. Finally, experienced adolescent criminals are
very aware of the juvenile criminal justice system. The belief that,
as a juvenile, the worse thing that might happen to them is
supervision or probation offers an incentive to fight the system and
force the government to prove its case, i.e., not confess. Under
this circumstance, when a juvenile is waived to adult court and now
faces serious consequences, there is public outrage that the
prosecution did not try hard enough to offer a plea bargain which
would have given the juvenile a chance at rehabilitation and a
productive life.
The preceding, of course, applies only to the child who is guilty of
a crime. A professional investigator must conduct his interviews and
interrogations always with the possibility in mind that the suspect
may be innocent. In this regard, the common-sense guideline offered
by professor Fred Inbau should be heeded, "Could what I am about to
do or say cause an innocent person to confess?" This guideline does
not refer to an innocent person in general, but the person presently
sitting in front of the investigator. Consequently, even if a
juvenile is being interrogated on the issue of homicide, the
investigator must appreciate that he or she is still a child.
A general distinction can be made between childhood (1 - 9) and
adolescence (10 - 15). While both groups will be motivated to lie to
avoid consequences associated with acts of wrong-doing,
psychologically they are operating at quite different levels. It is
our general recommendation that a person under the age of 10 should
not be subjected to active persuasion techniques during
interrogation (themes, alternative questions). At this age the child
is susceptible to suggestion and is motivated to please a person in
authority. The interaction between the investigator and child should
be limited to a question and answer session which is centered on
factual information and simple logic. While children in this age
group generally have good memory skills, it is selective and the
investigator must be cautious in forming opinions of deception based
on inconsistent recall. In this younger age group the primary
difficulty with respect to interrogation is the child's undeveloped
level of social responsibility and inability to comprehend the
concept of future consequences; their lives focus around "here and
now" concepts.
On the other hand, most adolescents have developed a sense of social
responsibility to the extent that they know if they admit committing
a serious crime they will suffer some future consequence. For this
reason a confrontational interrogation may be used with this age
group involving some active persuasion. The extent of persuasive
tactics should not be dictated by the seriousness of the crime, but
rather the maturity of the child.
In general, courts have not established steadfast rules regulating
the admissibility of confessions offered by children. Rather, they
look at the totality of circumstances including the child's age,
maturity, intelligence and previous experience with authority. Some
states have passed statutory requirements affecting the interview or
interrogation of juvenile suspects. In some states a parent or
guardian must either give permission to allow their child to be
interviewed or permitted to be present during the interview. Other
states require legal representation when interviewing a child who
has become the focus of an investigation. Investigators, therefore,
should be familiar with respective state laws which may impact on
their interview or interrogation of a child in their state.
When a child is taken into custody and advised of his or her Miranda
rights, the question of whether the child is capable of making a
knowing and voluntary waiver of those rights may arise. Certainly a
child under the age of 10 is incapable of fully understanding the
implications of waiving Miranda rights. Younger adolescents also may
fall into this category. When older adolescents waive their Miranda
rights, it may be helpful to have the suspect repeat back to the
investigator what the rights mean. This insight will help the court
decide if the waiver was valid.
Courts routinely uphold the use of trickery and deceit during
interrogations of adult suspects who are not mentally impaired.
Within the area of trickery and deceit, clearly the most persuasive
of these tactics is introducing fictitious evidence which implicates
the suspect in the crime. Because of its persuasive impact, this
tactic should not be used during questioning of children under the
age of 10. Caution should be exercised when introducing fictitious
evidence during the interrogation of an adolescent. Factors such as
the adolescent's level of social responsibility and general maturity
should be considered before fictitious evidence in introduced.
The ultimate test of the trustworthiness of a confession is its
corroboration. The admissions, "I shot and killed Mr. Johnson" or,
"I forced Susie Adams to have sex with me" may be elicited from an
innocent juvenile (or adult) suspect. These admissions only become
useful as evidence if they are corroborated by (1) information about
the crime the suspect provides which was purposefully withheld from
the suspect, and/or, (2) information not known by the police until
after the confession which is subsequently verified.
It must be recognized that historically innocent people have
confessed to crimes they did not commit. A disproportionate number
of these suspects are children and mentally impaired adults. While
the exposure of a false confession is always detrimental, the stigma
attached to a law enforcement agency that allegedly induced a false
confession from a child is tremendous. Consequently, the interviews
and interrogations of child suspects should be conducted by
investigators trained in that area of expertise with the admonition
that an uncorroborated confession, especially by a juvenile, is
likely to be suppressed. Credit and Permission Statement: This
Investigator Tip was developed by John E. Reid and Associates Inc.
Permission is hereby granted to those who wish to share or copy the
article. For additional 'tips' visit
www.reid.com;
select 'Educational Information' and 'Investigator Tip'. Inquiries
regarding Investigator Tips should be directed to Janet Finnerty
johnreid@htc.net.
For more information regarding Reid seminars and training products,
contact John E. Reid and Associates, Inc. at 800-255-5747 or
www.reid.com.
by Rick Rosenthal –
ILEETA Media Advisor
Trainers are experienced ―Go-To guys and gals. As leaders, you have
influence over decisions that are made within your organizations,
including decisions on how to handle relations with mainstream news
reporters. Here are Ten Top Tips to help you and your agency win
with the media.
-
DWI! When the media show up, Deal With It.
Engagement with the media is inevitable; victory is only
optional. Resolve to work with them and they won‘t work on you.
-
Feed the animals! It‘s not always easy, but it is
pretty straightforward. All the media will ever want from you is
information, a quotable
sound bite, and video/pictures.
-
The Rule of 7 Ps. Proper Prior Planning Prevents
Pathetically Poor Performance. Give media relations a little
thought, a little preparation (maybe even a little training!)
-
Build relationships. Get to know the reporters who
cover you regularly. Build that Stephen Covey bank of good will‘
that you can draw on when the going gets tough.
-
K.I.S.S.S. Keep It Smart, Short, and Simple. Media
relations doesn‘t have to be rocket science. Stay focused on the
basics.
-
No spin! Spin erodes credibility and shreds
relationships. Play it straight.
-
Never lie to the media.
-
Never speculate. Talk about what you do know, not
what you think you know.
-
Always stay on the record. There is no such thing
as off the record.
-
Work from the basic principle that you are not a punching
bag, that your relationship with the media will be based
on mutual respect and mutual effectiveness.
The best-practices agencies of law enforcement recognize the value
of positive media relations; applying these tips will go a long way
toward helping you ―Win with the Media. Rick can be reached at
847-446-6839; or email:
rarcomm@sbcglobal.net.
by Brian S. Batterton, Attorney
Question:
After a person is charged with a crime and the police are conducting
lineups post
charging, does a lawyer representing the defendant have a right to
be present in the lineup room with the witnesses viewing the lineup?
To answer this question, we will assume two things. First, we will
assume that the phrase
“post charging” refers to after the suspect has been “formally
charged.” Second, we will assume that the lineup is a physical
lineup rather than a photographic lineup. It should be noted that
photographic
lineups are not considered a critical stage in a prosecution;
therefore a suspect does not have a right
to counsel during a photo lineup.
Now we will consider physical lineups that take place after formal
charges (indictment, arraignment,
first appearance). In Gilbert v. California, the United
States Supreme Court addressed this very
issue. In Gilbert, the defendant was indicted for robbery and
murder and was appointed counsel.
Approximately sixteen (16) days after the defendant was indicted,
the police conducted a physical
lineup that included the defendant. The defendant’s attorney was not
notified and was not present
during the lineup. Details of the lineup are as follows:
The lineup occurred on March 26, 1964 after Gilbert had been
indicted and had
obtained counsel. It was held in an auditorium used for that purpose
by the Los
Angeles police. Some ten to thirteen prisoners were placed on a
lighted stage. The
witnesses (approximately 100) were assembled in a darkened portion
of the room
facing the stage and separated from it by a screen. They could see
the prisoners but
could not be seen by them. State and federal officers were also
present and one of
them acted as “moderator” of the proceedings.
Each man in the lineup was identified by number, but not by name.
Each man was
required to step forward into a marked circle, to turn, presenting
side profiles as well as
a face and back view, to walk, to put on or take off certain
articles of clothing. When a
man’s number was called and he was directed to step into the circle,
he was asked
certain questions: where he was picked up, whether he owned a car,
whether, when
arrested, he was armed where he lived. Each was also asked to repeat
certain
phrases, both in a loud and in a soft voice, phrases that witnesses
to the crimes had
heard the robbers use: “Freeze, this is a stickup; this is a holdup;
empty your cash
drawer; this is a heist; don’t anybody move.”
Either while the men were on the stage, or after they were taken
from it, it is not clear
which, the assembled witnesses were asked if there were any that
they would like to
see again, and told that if they had doubts, now was the time to
resolve them. Several
[witnesses] gave the numbers of men they wanted to see, including
Gilbert’s. While the
other prisoners were no longer present, Gilbert and 2 or 3 others
were again put
through a similar procedure. Some of the witnesses asked that a
particular prisoner say
a particular phrase, or walk a particular way. After the lineup, the
witnesses talked to
each other; it is not clear that they did so during the lineup. They
did, however, in each
other’s presence, call out the numbers of men they could identify.
Subsequently, at trial, various witnesses identified Gilbert as a
perpetrator. Gilbert’s attorney
objected, arguing that the witnesses’ in-court identification of
Gilbert was tainted by the illegal lineup.
Ultimately, the United States Supreme Court heard the case and
agreed with Gilbert. The Supreme
Court noted that, in the United States v. Wade, they held
that a post indictment physical lineup at
which the accused is exhibited to witnesses is a “critical stage” in
the criminal prosecution.
Defendants are afforded a Sixth Amendment right to counsel at
“critical stages” of their prosecution.
Additionally, they held that, if the police conduct such a lineup
without notice to the defendant’s
attorney and in the attorney’s absence, they are violating
the defendant’s Sixth Amendment right to
counsel. The rationale behind this rule is that a lineup in the
absence of counsel might deny the
accused his right to a fair trial by tainting the in-court
identification of the suspect. This is due to the
fact of the inherent danger of eyewitness identification, the
suggestibility of physical lineups, and the
unlikelihood that the accused to reconstruct what occurred at the
lineup. Therefore, in Gilbert, the
Supreme Court found that the police violated Gilbert’s Sixth
Amendment right to counsel by denying
him his attorney at the physical lineup. The case was sent back to a
lower court to determine if there
was some other basis for admission of the in-court identification.
©2010 Article published in the free PATC E-Newsletter: 800.365.0119
Link to Article online:
http://www.llrmi.com/articles/legal_questions/3-aug10.shtml
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