Evidence Collection | Confrontational Interrogations and Evidentiary Value
The amount of effort to achieve a confrontational interview can feel deceiving to reach, and is even trickier to control once you’ve reached that point. Documenting confrontation can present some serious challenges. All in all, there’s a major problem on our hands and we must solve it quickly, because the most important interview we conduct in a case is our confrontation, if our case comes to that. And we want that to be a home run from the moment our tape is rolling.
Revisiting Interview vs. Interrogation
Let’s quickly revisit our interview and interrogation definitions. First, an interview is a stand-alone process, whereby we are soliciting information from people who may have knowledge about an incident. Interviews are always non-confrontational, whether we know or ultimately develop that the person we are talking to is the suspect. We want all parties to be thoroughly vetted as to their credibility, both in their content and in their base-line demeanor. Yes, there are times where starting this step with your known suspect is not necessary, but that is less likely the case in modern times.
Second, an interrogation can be either non-confrontational, or confrontational, but the sole purpose of any interrogation is fact-check a person’s story. Keep in mind that by these definitions, you could very well be carrying out interrogations of witnesses and victims, to ensure their version of events is the most accurate, or at least not containing outright deception. As the wheels of justice continue to grind away, we are seeing more examples of witnesses who interject themselves into an event much further than what their actual involvement was. Maybe it’s the notoriety, maybe it’s the possibility of repeated access to media, both local and national, or perhaps it’s fascination with the whole story as it unfolds, but regardless, it’s a problem we in law enforcement must mitigate time and again, and interrogation practices are a method of vetting the truth that a witness offers. Further, there are some victims that leave key parts of the story out, that are important to include, but have no actual merit to the actions involved in their victimization, but in leaving them out, they leave a gigantic window open for defense attorneys to pick apart an otherwise great case. It may be that the victim knew the suspect previously, but that the incident that occurred was unrelated, other than that both knew each other previously. Victims may decide to leave that out because they believe we will see that as a point to discredit them. It’s important for us to be supportive of victims in coming forward, and ensuring they know we don’t judge their relationships. We leave that to the courts, but more accurately, defense will be the only people in the court looking to make prior relationships valid in a crime, but that’s another story. With victims and witnesses, you should always be non-confrontational in your interrogation approach. With suspects, aiming for a non-confrontational interrogation should be our preferred method, but confrontational interrogations are an option, but we must set them up properly.
The Confrontational Interrogation
Now that we’ve reviewed our options, let’s look at the basics of a confrontational interrogation. First, we have to consider our documentation process. Ideally, we should be recording our confrontation with video and audio. Some agencies have gone so far as to hire video and sound engineers to man control booths on the adjacent walls of their interrogation rooms. If you have this luxury, you probably have a corresponding policy saying to use it every time you’re working in the rooms. In that case, your process is settled. For those working in less glamourous settings, you may be serving as your engineer while simultaneously conducting the interrogation.
In setting up a camera, you want to be sure of two things. One, you want the clearest picture possible with the camera you are using. That means setting it up ahead of time, going through some test shooting to ensure you’re getting the picture necessary. It’s not only necessary to get a clear picture of the suspect, but it’s equally important that the frame is capturing all or as much of their facial expressions, body language, and movement as possible. Keeping this mind, investing in a quality camera is the absolute first step. In justifying this expense to leadership, the point that needs to be expressed is the evidentiary value of high quality video. The more tools you have going into a courtroom, with the best quality possible, makes the job of prosecutor that much easier. Likely, it’s going to be so overwhelming that your suspect will want to plea before trial. A plea is a win, because even though it’s not a trial, and it doesn’t lead to that sexy moment the judge hands down the maximum sentence, it’s acknowledgement that the hard work and attention to detail we put into our interview process led to the suspect admitting that we did a great job, and their best option is to accept our findings and pray for leniency.
There’s a lot of things to consider in gaining the clearest picture, like frame rates, brightness, lighting in the room, and so forth. Those are issues to confront independent of interrogation considerations, because anything you record will be susceptible to room conditions, and you should be addressing that long before this moment.
The second step for an interrogation is to review the facts of the case. Since we’ve reached a confrontation, it means that we’ve established that the person we’re confronting has broken the law during the incident we’re investigating, and that it is necessary to speak frankly with them about what we’ve found, because they have not been forth coming up to this point. At this point, it should also be clear that this person is going to be in custody after our interrogation, at the latest, and if not, should be in custody as soon as they walk in the door at our agency. If we’ve reached this point, we’re certain of their culpability and there is no alternative. A confrontational interrogation is the equivalent of showing your cards in a hand of poker, and if we’re revealing all the evidence, we better have our suspect. If we don’t, then we risk exposing the entire case to someone who can’t be tied to the crime, and will undoubtedly leak all our case details to their counterparts, which could include the actual person or persons responsible. Being certain we have the right person, for what we’re confronting on should be well established before we do it. Our process to reach this point should offer us some checks and balances to be certain we’ve reached this point. But it’s also our job to review all the information collected before we call this person or persons in for the confrontation. If you can obtain a peer review of your case, this is a good time to access that option. Peer review prior to confrontation is a great way to ensure you’ve reached sound conclusions on the case, and know that the direction you’re headed is correct.
The third step is developing what you’re going to discuss, what questions may need to be asked, and how the confrontation will be revealed. You don’t want to go into this with a script, because the person you’re confronting will provide information that will appear to change direction, or cause additional questions, and so forth. Keep in mind that by this point, you should have a clear understanding of what happened. Anything a suspect is adding at this point is either material they should have already provided to you and you already determined, or it’s falsification meant to mislead your intentional confrontation. If you begin to determine that the suspect is providing credible information now, and it’s not already known, it is either information that only the person who has committed the crime would have knowledge of, or its key information that should have been developed, that was somehow missed, and that means you may not have the right person. This is simplified version of outcomes, it is possible to experience an exception to the rules, but this would be the absolute rarest of scenarios, but it would likely combine with evidence or material facts missed during investigation, and that’s a problem to deal with immediately. Another thing to consider we spoke about briefly in our last article, Direct Witnesses. We discussed and defined Indirect Witnesses, now let’s go over direct witnesses. The terms Direct and Indirect are meant to categorize witnesses to crime, separating those that have no idea who is involved and why they did what they did, and those who know the people involved, and know why the crime happened. You may be using different terminology in your agency, and that’s great. Direct Witnesses usually have some level of bias that can discredit the information they are providing, however, they usually have very excellent detail, once they become forthcoming about what occurred. Confrontational Interrogations are the time to use that evidence, if it’s been carefully vetted. There is nothing worse than using information in an interrogation you later don’t use in court. It’s a great opportunity to have your proverbial hind-end handed to you in court for coercing a confession, or attempting it. Not good. In our on-going example, say you had six witnesses with direct knowledge of one or both parties in the aggravated assault. You’ll easily find that four of them may give you great information, but are so good at discrediting themselves through bias, that what they provide is not usable. These are decision to make prior to the interrogation, but be certain that you give everyone their fair shake. If they provided quality information, there is a reason they provided everything that they did. It may not be that they intended on appearing bias, it can sometimes be as simple as a limited vocabulary. Getting people to explain their wording can make the difference between developing four witnesses from that six, or the two that we assumed. You make the call what you’re willing to put your effort into.
Once the first two steps are completed, it’s time to setup the confrontation. If your suspect is incarcerated, it may mean calling the correctional facility they are housed at and getting them ready for a transfer to your agency, or maybe the resources at the correctional facility are of equal standard, and you can simply drive over, walk in, and sit down. If your suspect is not incarcerated, calling them is in order, and that may turn into a week-long or more ordeal, depending on their internal knowledge of the incident. Once you have them in the interrogation room, reading Miranda at the outset casts the widest net for information, however, keep in mind that once that is done, this person is going to be on the defensive, and may not provide as much information as possible. For any interrogation, it’s better to read Miranda at the start. The Courts favor this approach, and while there are instances where Miranda may not need to be utilized until the end of an interrogation, there is likely a policy at your agency dictating when Miranda comes into play. Once this consideration is decided and acted upon, the story should unravel based on the notes you take into the room with you, and in most circumstances, your suspect will ultimately admit to the crime. There will always be instances where a suspect won’t admit to their acts, we will always expect that. But in following these steps, you’ll still conduct a great confrontation, seal your case, and process your suspect for arrest, charging, and incarceration pending trial.
By creating an organized, layered, and content-rich interview and interrogation process, we provide the best possible evidence for prosecutors to present, we get the best information because of our investigation tactics, and we get the most for our time and effort. The results will ultimately please our superiors, even if it’s a little more detail oriented than usual.
Be safe out there!