Author Essays, Interviews, and Excerpts, Commentary, Law

Guilty Until Proven Innocent?: Marianne Mason, editor of “The Discourse of Police Interviews,” on the Guilt-Presumptive Nature of Interrogations

“Step up and tell the truth.” “No more lies.” “This is your chance to tell us what really happened.” Who hasn’t rooted for a TV detective when they’ve said these lines in an interrogation or when the detective managed to convince someone not to seek counsel? While these lines and manipulations have been played off on procedural shows as fairly benign, they actually represent an interrogation method that, instead of presuming innocence like the US justice system is meant to, actually presumes guilt and focuses on soliciting a confession. In her chapter in The Discourse of Police Interviews, “The Guilt-Presumptive Nature of Custodial Interrogations in the United States,” editor Marianne Mason investigates this interrogation style’s history, techniques, and tactics as well as loopholes past the Miranda warning and suggests areas for further research. We invited her to reflect on her chapter and bring to light its key points and place it within The Discourse of Police Interviews as a whole. It is past time that police interviews undergo such analysis and scrutiny.

Since the early 2000s I have been researching language and the law. I have examined language use in covertly-taped conversations of drug cartel members, such as the Cali Cartel, the bilingual courtroom in federal and state courts, and police-lay person exchanges in the United States. One of the most interesting cases I have worked on, and which started the journey of The Discourse of Police Interviews, involved a criminal case under appeal in which the unequivocalness of a suspect’s invocation for counsel during police interviewing was questioned. One may ask, why is a suspect’s invocation for counsel qualified as equivocal or unequivocal? The answer lies in the legal and institutional factors that shape police-lay person discourse.

In my chapter, “The Guilt-Presumptive Nature of Custodial Interrogations in the United States,” I tackle the Reid technique of interrogation. This technique is widely used in United States policing and is an institutional staple of the profession. John E. Reid, who was a police officer in the 1950s, developed a psychology-based interviewing method, popularly known as the Reid technique. Proponents of Reid claim that this technique trains police officers to detect whether suspects have committed a crime by observing their body language and the responses they provide (cooperative vs. non cooperative). In popular culture, Reid has been fictionalized as fairly benign (such as in Law & Order type shows) or portrayed in documentaries as highly problematic (When They See Us, based on the Central Park Five case). In my research, I find that Reid is used to direct suspects’ responses and thwart suspects’ denials from the onset of the interrogation. The law plays an important role in how Reid achieves some of these objectives.

In the United States, a custodial interrogation often starts with the Miranda warning which informs suspects of their right to silence and counsel. Once the Miranda warning has been read and suspects are informed of their Constitutional rights (Fifth and Sixth Amendment rights), suspects may invoke or waive such rights. This is the most pivotal point in a police interrogation, since invoking the right to silence or counsel may interfere with Reid’s main goal: getting suspects to talk with police.

In the landmark case Miranda v. Arizona (1966), the Supreme Court held that if suspects indicate in any manner, and at any stage of the custodial process, that they wish to consult an attorney, police questioning must cease. The ruling, however, did not specify how the invocation must be formulated to take effect. In Davis vs. United States (1994), the Supreme Court narrowed the scope in which a suspect can reasonably invoke legal counsel noting that invocations for counsel must be performed in a manner that a reasonable police officer deems unequivocal before they are given any legal effect. Legal precedence after Davis reveals that invocations that are formulated indirectly, such as “I think I need an attorney.” or “Can I talk to an attorney?” are often considered equivocal.

The Davis ruling created a dilemma for determining what constitutes an equivocal/unequivocal invocation for counsel in a legal context where linguistically no dilemma exists. An invocation, such as “Can I talk to an attorney?” is a type of speech act that can be formulated indirectly and have a direct intent. By creating a standard by which invocations for counsel/silence can effectively stop a police interrogation, the law created a loophole that allows police interrogations to continue, even when a suspect has invoked counsel. This legal ruling, hence, may interfere with suspects invoking their Miranda rights and sets the stage for the coercive interrogation strategies discussed in my chapter: confronting the suspect with evidence of guilt, appeals to self-interest with/without time limited offers, and empathy/minimization.

Confronting the suspect with evidence of guilt is one of the most popular strategies used in Reid. Police officers often confront suspects with ‘evidence’ that erodes the suspects’ denials, as for example: “The only person that I have knowledge about that has a gun is you.” In Reid, confrontation may be heightened using appeals to self-interest. This discursive strategy can include time-limited offers that stress the urgency for a confession such as “This is your opportunity to be a man and to tell the truth on everything that happened,” or “Right now is when you have to step up and tell us the truth. No more lies.” As with confrontation, this type of discursive tactic is met with the suspects’ denials often rendering it ineffective from an investigative standpoint.

Another strategy that stands out, but not for its overtly coercive nature, is empathy and minimization. Here, the interviewer appears empathetic and follows up questioning with suggestions on how the suspects may minimize the charges they may be facing: “No one is hanging you,” “You’re not a bad person,” “These things happen,” “Let us help.” In my chapter, other than denials, this strategy elicited brief responses that provided some investigatively useful information. Yet, the interviewers did not follow through and instead switched to confrontation—a common practice in Reid.

The Reid technique and interviewers’ reliance on confrontational tactics is based on the premise that the technique is effective in determining when suspects are lying and in obtaining investigatively useful information. As chapters in The Discourse of Police Interviews show, research does not support this view of the Reid technique. On the contrary, there is much to learn in the US from the reforms that led to the adoption of the cognitive-based PEACE method of police interviewing used in the UK and other jurisdictions abroad, including Canada which in the past used Reid-based methods. The PEACE method emphasizes obtaining accurate and reliable information from suspects, using an open minded (not guilt presumptive) approach. This method uses an information-gathering style that minimizes false confessions. PEACE is not false confession proof and interviewers don’t always follow best practices—as some chapters in the book show the need to obtain forensically useful evidence may hinder the consistent application of suggested interviewing guidelines. Yet, PEACE—unlike Reid—does not have as a guiding principle extracting a confession from a suspect.

The Discourse of Police Interviews examines Reid and PEACE in our time, while providing further  insights into areas of contemporary policing discourse analysis, including interviews with vulnerable populations (e.g., victims of sexual assault, children, and non-native speakers of English), interviewing best practices, the discursive journey of the police statement/record and its legal applications, and the role of reflexivity and bodily actions in constructing an interviewee’s narrative. Moving forward, more research that examines police interviews across jurisdictions and that promotes collaboration between forensic linguists and those in cognate disciplines (such as, law, criminology, and psychology) is needed to further research that focuses on best police interview practices. In the US, where police interviews need to undergo reform, a collaborative approach will also advance this endeavor. 

Marianne Mason is assistant professor of translation and interpreting studies and linguistics at James Madison University. She is the author of Courtroom Interpreting.

The Discourse of Police Interviews is available now from our website and your favorite bookseller.