ࡱ > ^ bjbjtt f V ' $ P L Q3 l ^ R " t t t O O O 2 2 2 2 2 2 2 , 5 o8 b 2 O O O O O 2 t t 3 O F t t 2 O 2 p- / 9g F . 2 !3 0 Q3 . 8 8 ( / / O O O 2 2 O O O Q3 8 O O O O O O O O O : The Inside Information Checklist (IIC) By Gregory DeClue, PhD, ABPP (Forensic), Independent Psychology Practice, Sarasota, Florida; and Charles Skip Rogers, Owner and Lead Instructor, The Interviews and Interrogations Institute When the probative force of evidence depends on the circumstances in which it was obtained indications of conscientious police work will enhance probative force - Kyles v. Whitley, 514 U.S. 419, 446 & n. 15 (1995). On September 2, 2014, North Carolina Superior Court Judge Douglas Sasser vacated the sentences of Henry Lee McCollum and Leon Brown and ordered that they be released. The two men had been convicted for the 1983 rape and murder of an 11-year-old girl. Evidence leading to McCollums and Browns releases included a DNA match to a man who has been convicted for a similar rape and murder in the same town. At the time of their release, McCollum had been on death row for 30 years, and Brown was serving a life sentence. Both McCollum and Brown told confession stories to police during lengthy interrogations. Police records and testimony convinced juries and appellate courts, including the U.S. Supreme Court, that they were guilty. Police records and testimony were so convincing that, years later, Justice Scalia invoked McCollums case as a reason to continue to impose the death penalty in future cases. Now we know what the police did wrong in McCollums and Browns cases, and we know what police interrogators can do to prevent future wrongful convictions stemming from false confession stories. It is imperative that police agencies come to understand what we have learned from wrongful convictions, and then revise their policies and procedures as needed. The following three questions can guide police, prosecutors, defense attorneys, judges, and juries as they consider confession evidence: Whats on the Holdback List? Whats on the Disk? Whats on the IIC? We will return to these questions later in this article. False Confession Stories Among DNA Exonerees In our October 2012 article in Police Chief, we described Professor Brandon Garretts analysis of the 40 false confession cases within the first 250 DNA exonerations. [1] Since that time, Garrett has continued to analyze known cases of false confessions, and the results continue to demonstrate the problem of contamination during police interrogation: In just the last five years [2009 to 2014], there has been a new surge in false confessionsa set of 23 more false confessions among DNA exonerations. [2] All but two of these new cases of wrongful conviction show evidence of contamination during police interrogation. Again, police said that these innocent people gave rich, detailed, and accurate information about the crime, including what police described as inside information that only the true culprit could have known. This is illustrated in the following table. Table 1: The Frequency of Contamination in False Confessions Contaminated with Inside InformationNumberPercent40 False Confessions (1989-2009)3895%23 False Confessions (2009-2014)2191%63 False Confessions (Total)5994% Garrett recommends a number of policy and procedure changes regarding confession evidence, and we strongly encourage police officers to read Garretts work. Here, we focus on an approach that is currently being taught by interrogation trainers and is employed by conscientious police interrogators. This involves use of a Holdback List, and the Inside Information Checklist (IIC). Safeguards In our October 2012 article in Police Chief, we presented safeguards designed to reduce contamination during interrogations, reduce the risk of getting a false confession story, and make it unlikely that a person would be wrongfully convicted due to a false confession story. Now that we know that there was police contamination in over 90% of the DNA exonerations following false confessions, how can we avoid making the same mistake in current and future cases? The short answer is to use a written Holdback List, record the entire interaction with the suspect, avoid telling or showing crime details to the suspect, get a detailed statement from the suspect if he or she confesses, and independently compare the details of the suspects statement to other evidence in the case. We now revisit the three questions we presented early in this article. The Holdback List The importance of a Holdback List is well recognized by police interrogation trainers. For example: Prior to an interview, and preferably before any contact with the suspect, the investigator should attempt to become thoroughly familiar with all the known facts and circumstances of the offense. [3] Upon arriving at a crime scene, the lead investigator should decide and document on the case folder what information will be kept secret. [4] After a suspect has related a general acknowledgment of guilt, the investigator should return to the beginning of the crime and attempt to develop information that can be corroborated by further investigation. He should seek from the suspect full details of the crime and also information about his subsequent activities. What should be sought particularly are facts that would only be known by the guilty person (for example, information regarding the location of the murder weapon or the stolen goods, the means of entry into the building, the type of accelerant used to start the fire, and the type of clothing on the victim, etc.). [5] Appendix 1 presents a Holdback List with two parts. [6] The lead investigator is responsible for completing both parts of the Holdback List prior to the start of the interview/interrogation of a suspect. The first part, Known Details of the Crime/Allegation, includes details known to police prior to the interview/interrogation. These details can come from witness statements, crime-scene photos, direct observations by police officers of the crime scene, etc. For example: HB1. Victim was shot in the back of the head with a small-caliber weapon. HB2. Victims hands were bound in the back. HB3. The binding was done with duct tape. HB4. The victim had a small superficial laceration to the left side of the throat. HB5. The victim had defensive wounds on both hands. The second part of the Holdback List, Unknown Details of the Crime/Allegation, is a list of details that a true perpetrator would likely know, but are not known to the police at the time of the interview/interrogation. Examples could include the location of a weapon used in the crime, the location of stolen goods that were stored or sold, when and where the suspect purchased items that were used in the commission of the crime, etc. After the investigator completes the Holdback List, he or she signs it, noting the date and the time, and has a witness do the same. This helps to show that the Holdback List was actually completed prior to the beginning of the interview/interrogation. In custodial interviews, that fact can also be preserved on the recording itself. When the lights are turned on in the interview room and the recording is started, prior to bringing the suspect into the room, the investigator can hold the Holdback List up to the rooms camera for a few seconds, and then read the Holdback List aloud. The Disk Increasingly, police interrogation trainers recommend that interviews/interrogations of suspects be electronically recorded in their entirety. In a Memorandum dated May 12, 2014, the U. S. Department of Justice announced a new policy that establishes a presumption that the Federal Bureau of Investigation, the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and the U. S. Marshals Service will electronically record statements made by individuals in their custody. The policy also encourages agents and prosecutors to consider electronic recording where the presumption does not apply. [7] Remarkably, only 1 of the 63 exonerees in Garretts combined studies had an interrogation recorded in its entirety (and that person was unable to say anything about the crime beyond, I guess I did it). Garrett notes that, in order to prevent future wrongful convictions due to false confession stories, Recording entire interrogations is an important first step. [8] Garretts careful analysis of the case files shows why this is an essential step. A total of 59 of 63 false confessions by DNA exonerees to date were contaminated by such allegedly inside information. Almost without exception, these confession statements were contaminated with crime scene details, which in retrospect, we now know that these innocent suspects could not have themselves been familiar with until they learned of them from law enforcement. (Page 13) In these recent exonerations, the detectives similarly denied having disclosed any such information to the exonerees when asked by the defense about the source of the details contained in the confession statements; they did so in all but one of the fourteen cases in which there was a trial. After all, police training on the subject is very clear: one does not ask leading questions or disclose key facts concerning the crime. The leading manual on police interrogations is quite emphatic that officers are to withhold from the public key facts and then ask non-leading questions to solicit that information, without disclosing them to the suspect. (Page 14) In these most recent 23 cases, 19 of the cases included facts inconsistent with crime scene information. Had there been complete recordings of the interrogation statements, one might have been able to observe that, when asked non-leading questions, these innocent people volunteered incorrect information, and that they could only offer correct information when prompted. Absent such a recording, prosecutors could and did argue that these people were purposefully lying about some aspects of the crime, but that the inside information they offered betrayed their guilt. (Page 15) Only by carefully examining the contents of a complete recording of police contact with a suspect can we know which, if any, details were first mentioned by the suspect. This is particularly effective when a written Holdback List appears on camera near the beginning of the recording and the investigator reads the Holdback List aloud; then the suspect enters the room and is continuously recorded (including at least audio recording of restroom breaks or other times out of the interview room); the police never mention items on the Holdback List; and the suspect accurately reports details consistent with the Holdback List in response to nonleading questions and/or the suspect provides details unknown to the police prior to the interview/interrogation but corroborated by subsequent investigation. The Inside Information Checklist Imagine that, in a particular case, the police investigated before they interrogated. The police developed both parts of a Holdback List, listing some known details that would be kept secret from the public, witnesses, persons of interest, and suspects; and also listing unknown details that the true perpetrator would likely know. After completing the Holdback List, a detective engaged the suspect in an interview/interrogation, and the suspect eventually made an admission. The detective continued the interview/interrogation, asking nonleading questions to elicit a detailed post-admission narrative. That is, the detective encouraged the suspect to tell the complete story in his own words. The entire interaction between the suspect and police was electronically recorded. Now what? What we want to know is, did the suspect provide inside information regarding the details of the crime? Did the suspect include some or all of the Known Details that were included on the Holdback List? If so, which of those details were never mentioned by the police during their interaction with the suspect? Did the suspect provide the details in response to open-ended questions, or only in response to leading questions? For each detail provided by the suspect, was the detail an accurate match to independently collected evidence? Did the suspect provide information regarding details not known by the police prior to the interview/interrogation? If so, has subsequent investigation corroborated the suspects story? Does each detail provided by the suspect accurately match independent evidence, or not? If the police have conducted the investigation conscientiously, these are very straightforward questions. The Inside Information Checklist (Appendix 2) provides a way to organize the details of an investigation, including the details of the suspects statement, so that we can see whether the suspect provided accurate, independently verified details that show that he knew inside information about a crime to which he has confessed. Generally, we expect that, when a suspect gives a voluntary, true confession during police interrogation, the suspect should be able to provide accurate inside information. If he cannot provide accurate details, that raises serious doubts about the reliability of his statement. If he will not provide accurate details, that may raise questions about whether he is providing a voluntary confession. Conscientious or Slovenly Work? Earlier, we mentioned three questions that can guide police, prosecutors, defense attorneys, judges, and juries as they consider confession evidence: Whats on the Holdback List? Whats on the Disk? Whats on the IIC? As we begin our focus on these three questions, it is helpful to expand the quote from Kyles v. Whitley (1995) by including the next six words in the Courts decision: When the probative force of evidence depends on the circumstances in which it was obtained indications of conscientious police work will enhance probative force and slovenly work will diminish it. Among DNA exonerees, nearly every wrongful conviction stemming from a false confession has been due in large part to contamination during the interview/interrogation. We now know a straightforward procedure to avoid such wrongful convictions in present and future cases: develop a Holdback List, electronically record the entire interaction, and use an Inside Information Checklist to determine whether the suspects confession story shows knowledge of inside information. As police learn about the problem and effective solutions, it becomes clear that, broadly speaking, the approach described in this article constitutes conscientious police work. When police follow the procedures described in this article, it will enhance the probative value of the evidence they generate, and it should be very unlikely that their work would contribute to a wrongful conviction. Police interrogation trainers should tell trainees that failure to take this approach is slovenly police work, which will diminish the probative force of confession evidence. When police have failed to take this approach in a criminal case, expert testimony should point out that failure and explain its significance, both at pretrial motions and at trial. [9] Jury instructions should help jurors understand the importance of a recording showing uncontaminated, inside information, in order to assist them in deciding how much weight to give to confession evidence. What else can police agencies do to prevent future wrongful convictions stemming from false confessions? As mentioned above, police interrogators should be properly trained, not just to try to obtain a confession from a guilty suspect, but also to follow a procedure that will protect innocent suspects from being wrongfully convicted. To that end, every police agency should designate persons to study and fully understand Garretts work regarding wrongful convictions. [10] Those persons should revisit the agencies formal policies and procedures regarding interviews and interrogations, to make sure that formal, written procedures are in place to prevent future wrongful convictions from false confessions. (Our view, as outlined here, is that such procedures should include a Holdback List, an Inside Information Checklist, and electronic recording of the entire interaction between police and suspect.) On an ongoing basis, police interrogators and their supervisors should be fully trained and monitored, and they should follow the agencys new procedures. Finally, we want to highlight an important challenge for police interrogation trainers. Consider the following: 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. With that in mind, police interrogation trainers should help trainees develop the habit of experiencing their internal victory dance or touchdown celebration, not at the moment when the suspect says, I did it, but at moments when the full investigation reveals whether or not this suspect shows knowledge of inside information. Those are the moments when a conscientious police interrogator experiences the feeling of a job well done. [1] DeClue, G., & Rogers, C. S. (2012). Interrogations 2013: Safeguarding against false confessions. The Police Chief: The Professional Voice of Law Enforcement, October Issue, pages 42, 44, 46. [2] Brandon L. Garrett, Contaminated Confessions Revisited, Virginia Law Review, Vol. 101, (2015 Forthcoming). Quotes are from the August 21, 2014 draft accessed from HYPERLINK "http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2485536" http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2485536 on September 16, 2014. [3] Inbau, F. E., Reid, J. E., Buckley, J. P., & Jayne, B. C. (2011). Criminal Interrogation and Confessions, Fifth Edition. Burlington, MA: Jones & Bartlett Learning. Page 10. [4] Inbau et al., 2011, p. 355. [5] Inbau et al., 2011, p. 306. [6] The forms in these appendices are currently being used by The Interviews & Interrogations Institute. HYPERLINK "http://www.getconfessions.com/" http://www.getconfessions.com/ [7] HYPERLINK "http://archive.azcentral.com/ic/pdf/DOJ-policy-electronic-recording.pdf" http://archive.azcentral.com/ic/pdf/DOJ-policy-electronic-recording.pdf [8] HYPERLINK "http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2485536" http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2485536 [9] At pretrial hearings, expert testimony regarding police procedures is relevant to the issue of voluntariness and to issues of fairness (due process). At trial, similar expert testimony can assist the jury in deciding how much weight to give to confession evidence. [10] See HYPERLINK "http://www.law.virginia.edu/html/librarysite/garrett_innocent.htm" http://www.law.virginia.edu/html/librarysite/garrett_innocent.htm Appendix 1: Holdback List (This is prepared prior to the interview/interrogation.) Agency Case No. _____________________ Known Details of the Crime/AllegationA. Holdback Details (Prepare a written list prior to the interview/interrogation, and do not reveal the contents to the public, witnesses, persons of interest, suspects, etc. If the suspect makes admissions, get a detailed statement from him or her without using leading questions.) HB1. HB2. HB3. HB4. HB5. HB6. HB7. HB8. HB9.HB10.HB11.HB12.HB13.HB14.HB15.HB17.HB18.HB19. Prepared by Witness Print Name Sign Name Date Time Print Name Sign Name Date Time Unknown Details of the Crime/AllegationB. Unknown Details: Likely known by the perpetrator, but not known by police prior to this interview/interrogation (If the suspect makes admissions, ask nonleading questions about these details location of a weapon, where stolen goods were stored or sold, etc.) UK1. UK2. UK3. UK4. UK5. UK6. UK7. UK8. UK9.UK10.UK11.UK12.UK13.UK14.UK15.UK16.UK17.UK18.UK19. Prepared by Witness Print Name Sign Name Date Time Print Name Sign Name Date Time Appendix 2: Inside Information Checklist (IIC) Agency Case No. _____________________ The IIC can be completed after a recorded interview/interrogation, based on a transcript of the recorded interview/interrogation, plus other case evidence. Although the IIC can be filled out by the prosecutor, defense attorney, or an expert witness, it is the investigator who gathers evidence and creates the records that make this analysis possible. A completed IIC helps to show whether the suspects statement includes inside information that was not provided to him or her during the interview/interrogation. Details mentioned by the suspect during interview/interrogationTimePageLineHB?UK?A?P?TimePageLine 1. 2. 3. 4. 5. 6. 7. 8. 9.10.11.12.13.14.15.16.17.18.19. HB: Detail is related to an item on the written Holdback List. 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