Reviewing Human Rights In The Justice System Criminology Essay
When a crime is committed, the job of the investigating officer is to gather firsthand knowledge at the crime scene and try to fit the pieces together just like a jigsaw puzzle. Apart from that, the officer needs to establish who is the suspect of the offence (Mighty Students), thus, when a person is a suspect of a crime, he/she is often brought in by the investigators to commence with an interrogation (Brown, 2001, p151). In the interrogation process, the investigator tries to attain a significant amount of information from the suspect regarding that particular case (2001, p151). Thus, the interrogation process is usually designed according to the specific suspect to acquire a confession (Chamelin, Swanson, Territo, 2003, p122).
In the majority of TV criminal series, the job of the investigating officers seem to be very easy, as from the crime scene they usually find all the clues, then arrest the suspect, interrogate him and put him in jail (Inbau, 1961, p16). However, according to Inbau (1961, p16), this is all fiction as in reality investigators do not find all evidence that can lead them to a suspect, thus, the only possible solution to try and apprehend the suspect is by conducting an interrogation. Therefore, since the police do not have enough evidence to seizure the suspect they usually engage themselves in unethical behaviour by using deceptive tactics (1961, p16). Hence, since, confession evidence is one of the strongest tools in a trial, regularly, police use deceptive techniques to obtain information (Goldstein, Kassin, Savitsky, 2003, p187). According to Kopel, such deceptive techniques may be, putting a suspect in a “small, isolated, soundproof room which is designed to make him/her talk.” Thus, when the suspect comes out of the room, he/she would be willing to talk (Kopel). The suspect would be in a position to talk, as by leaving the suspect for an amount of hours in isolation he/she feels ignored, as a result the suspect would be very happy when he/she sees the investigating officer (Kopel). Therefore, the interrogation procedure may be open to police abuse as the investigators believe that they have a moral duty to extort a confession and they are usually assured that they have the right suspect (Williams, 1961, p55). However, since the Miranda warning was established which is the obligation to have the right to remain silent and the right to counsel, police officers try to shun deceptive techniques but as an alternative they use other methods which may not be inadmissible unless it can be proved in court (Khasin, 2009).
Throughout history especially in the 18th and 19th Century, the judicial concerns regarding mistrustful interrogation were increasing (Khasin, 2009). Khasin continues to add that, it was in 1783, that England issued the first resolution regarding any coercive confession. The American courts followed the English footsteps and by the mid-1800 the former started to introduce commissioned police instead of the “traditionally private role of apprehending and detaining criminals” (Khasin, 2009). Consequently, in 1884 in the case of Hopt v. Utah, the Supreme Court acknowledged that coercive techniques in the interrogation process are limiting the suspect’s free will to make a voluntary confession (Khasin, 2009). Yet, the police still carried on with their usual methods of interrogation and as a result, the case of Brown v. Mississippi in 1936, brought a definite exclusion of the “rack and torture chamber” (Magrid, 2001). Therefore, there was a change from the “individual characteristics of the offender to the reprehensible nature of the police questioning’ (Khasin, 2009). It was only in 1959, that the Supreme Court addressed police deception (Khasin, 2009).
Deception is often regarded as a divergence from the norm and infringement of trust but apart from that it also breaches the “moral values and professional ethics;” thus, “it can also undermine the professional alliances and the quality of services that results” (Doner Kagle, 1998, p234). Otenberger states that, deception is a custom in law enforcement agencies and this is going to linger as it is effectual. In addition, deception is usually an expected behaviour amongst citizens and it is very omnipresent as it takes a number of forms (1998, p235). Doner Kagle (1998, p235) continues to add that, deception is not restricted to lying but unfortunately lying is one of the major deceptive techniques. Immanuel Kant states that, there should be no lies as a lie can topple over the theory of truthfulness (Garrett, 2006). Over the last fifty to sixty years, there was a transformation in the American police interrogation methods. These methods where changed from “physical coercion to psychological persuasion” (vLex United States). Contemporary Police questioning, most often than not is deceptive and this can lead to forged declaration of guilt (vLex United States). This article continues to state that, in America, deceptive techniques are regulated by the “Fourteenth Amendment’s due process clause.” Despite the fact that police make use of misleading procedures, there may be an enhancement of doubt in the majority of police officers and as a result there can be a reduction in their efficiency as managers of crime (vLex United States). Unfortunately, police deception is more ingenious than coercive means (vLex United States).
According to Webster (U.S. Department of Justice, 1978: 16-22) as cited by Barker (1996, p5), code of ethical behaviour is regarded as a specific manner to certain groups. He continues to add that, ethical behaviour is an aim to establish formal rules and avoid any doubt that may influence others of what is right and wrong actions (Webster as cited by Barker, 1996, p5). Dishonesty and deceiving systems are usually considered to make an essential part of the police force (Barker and Carter 1991 as cited by Barker 1996, p49). Barker carries on stating that, there is a variation in police “lying and deceptive practices” as some of these so-called lying are referred to as an “ethical violation” while others are believed to be vital for police officers to carry out their duty for instance in any undercover work (1996, p49). The tolerability of deception is mostly linked with the level of the “criminal process,” thus, officers may be authorised to lie in certain instances especially when they are undercover (Farlex). Even though they may not lie in an interrogation, “interrogatory lying are each justified on utilitarian crime control grounds,” however, law enforcement agents are not permitted to lie in court when they are witnesses of a crime (Farlex). On the other hand, police deceptive techniques that infringe the “substantive constitutional rights” are disallowed (Farlex). The Supreme Court has stated that, a police officer does not have the right to trick a suspect into waiving his/her Miranda rights, then again, if the suspect waives his/her rights, most of the deceptive techniques that are available will be used in the interrogation (Farlex). Further to this, DeClue articulates that a number of suspects waive their rights because they do not recognize that they have rights that may help them in avoiding needless prosecution as well as self-incrimination. Given that, the Miranda warning is supposed to be stated to a person who is in custody; police officers sometimes question a suspect in a non-custodial setting. Therefore, the police officers are not obliged to state the Miranda warning and thus, this is one of the most used deceptive stratagems (Farlex). Subsequently, if the court finds out that the interrogation procedure was deceptive, there are chances that the case would be inadmissible (White, 1979, p584). Nevertheless, there should be a creation of some guidelines to provide them both to the police and to the lower courts (1979, p586). Since, police questioning is carried out in secrecy, researchers know little about what really is going on (Farlex). Police deception is an intrinsically difficult task to detect and as a consequence, the “police induced confessions” can have “far-reaching and rippling effects on the disposition of cases and on the criminal justice system as a whole” (Meissner, Kassin, 2002, p469).
Police officers can have conflicting roles; that of working by the book in which Obenberger gives the impression that the police are sort of boy-scouts that they can never lie, while on the other hand, they have to attain a confession at all costs (Otenberger). According to W.D. Ross, there a number of “Prima Facie” duties that we are supposed to commit. He continues to add that, a prima facie duty is something which is obligatory to perform in a particular situation (Garrett, 2004). Therefore, law enforcement officer sometimes engage in deceptive techniques such as “showing false sympathy, manipulating the suspect’s perception of the culpability, deceiving the suspect regarding the circumstances, lying about the strength of the case and fabricating forensic evidence” (Khasin, 2009).
Sometimes police officers misinterpret the nature or the gravity of the crime. For instance, officers may tell the suspect that the victim in the murder crime is alive and that he/she has identified the suspect (Farlex). Another example would be that the interrogator would overstate the implications of the offence, such as “the amount of money embezzled,” so the suspect would confess to a less significant part in the crime (Farlex). This article gives the example of the Colorado v. Spring case, when the federal agents interrogated the suspect regarding firearms when in actual fact the investigation was about a murder and not the firearms charge (Farlex). Therefore, in a misrepresentation of the gravity of the offence a suspect may reconsider the interest of declaring the “rights outlined in the warning” (White, 1979, p613). There are occasions, where the officers misapprehend the moral seriousness of a crime. For instance, in rape cases, an officer may tell the suspect that the girl was “asking for it” or that the crime happened to show love (Farlex). These tactics are committed to provide the suspect “with an external attribution of blame that will allow him to save face while confessing” (Farlex). In other cases, the investigator may portray the role of a friend, counsellor or even a religious figure (1979, p615). In this case, the officer performing this particular role would show compassion to the suspect, in order for the latter to open up and state a confession (Farlex). This particular tactic would enhance a stint of intimacy between the suspect and the officer. The courts have legitimised this particular technique, however, in cases where the officer would imply something such as “God will punish you for not confessing” is deemed to be inadmissible (Farlex). In the case of State v. Reilly, the officer created an illusion that he was the father figure in the interrogation so that the eighteen year old would speak to him. On the other hand, in the case of State v. Biron, the officer portrayed the image of a “Fellow Catholic” and informed the suspect of the confession’s importance (1979, p615).
There are also promises as a method of deception and the courts are still allowing indistinct and imprecise promises (Farlex). The court also permits police officers to inform a suspect that if he/she will confess his/her conscience would become lighten. Besides this, officers are also allowed by court to tell a suspect that with his/her co-operation, the former would be at a position to help the latter in every possible way. In this way, the suspect would feel that his/her position could be improved with the co-operation (White, 1979, p618). Though these promises are given, officers rarely perform what they have promised, as their main mission is to obtain a confession (Farlex). Another deceptive technique is when an officer covers up his identity and start to pretend that he is someone else (Farlex). In the case of Leyra v. Denno, the suspect was given a physician for “painful sinus attack” but in reality the physician was a police psychiatrist who constantly told the suspect that if he confessed he would be let go easily and as a matter of fact, the suspect confessed (Farlex). In another case, Illinois v. Perkins, the suspect confessed a murder to a prison inmate who in actuality was an undercover officer. In this case, the Rehnquist Court accepted the case as the confession was voluntary (Farlex).
There is also the possibility of false evidence which according to Khasin (2009) can take two forms; “deceptive oral assertions and fabrication of evidence.” In Florida this kind of practice is not admissible while in California and other states this is permissible (Gilbert, 1998, p124). In the first form of false evidence the officers make up facts so that the suspect would be obliged to speak up. For instance, the suspect would be told that his/her partners in crime have identified him/her as the main leader of the crime such as in the case of Frazier v. Cupp (Magrid, 2001), or that the crime weapon was found with his/her fingerprints such as in the case that happened in Payton (Khasin, 2009). However, in certain instances the suspect does not believe such accusations if not backed up by physical evidence and in most cases these particular suspects do not waive their rights (Farlex). Apart from that, sometimes officer fabricate evidence so they can show the suspect that they are on top of him/her (Khasin, 2009). In a particular case, Florida v. Cayward, a nineteen year old male was suspected of “sexually assaulting” his five year old niece. The police did not have enough evidence to charge him with the crime, so they showed the suspect two forged reports that they have found semen on the victim’s underpants. Soon after, Cayward confessed the crime (Farlex). Another, deceptive false evidence would be, putting a suspect in a line up and then tell him/her that the victim had identified him/her, as this will make him/her desperate (White, 1979, p618). Also, sometimes suspects are taken for a lie-detector test and no matter what the results are the officers tell the suspect that the polygraph has showed guilt (Farlex).
In almost every interrogation regarding a rape case, the interviewer uses a number of “effective face-saving rhetoric” measures to restore confidence in the suspect that “the victim caused it by wearing provocative clothes, by getting wasted and by being more than friendly” (Coughlin, 2009, p1606). Coughlin continues to add that, some officers may state to the suspect, that even though the girl said stop, the majority knows that when a girl says stops it means continue (2009, p1606). The author carries on stating, that officers sometimes use other tactics by stating to the suspect that “no woman should be on the street alone at night looking as sexy as she did” or in other instances the officer may also say “a woman who let men kiss and caress her, she is to blame for the rape” (2009, p1647). Apart from blaming the victim for the rape case, the investigating officer may also tell the suspect that they also once did what the suspect has done, for instance in this journal the author gives the example of a case where a 17 year old male was suspected of raping a girl. The interviewer told him that at his age he himself had “roughed it up” with a girl. At that moment the boy confessed to the crime he had committed (2009, p1650).
In most of the police manuals there is a classical deceptive tool titled the “Mutt and Jeff” (White, 1979, p625). In this particular interrogation scenario there would be two investigating officers conducting the interrogation. Jeff would be the good cop while Mutt would be the unfriendly officer (1979, p625). In the setting, both officers may start to argue with each other and the Mutt officer would tell the suspect that if he/she does not co-operate with Jeff he would be left alone with Mutt (1979, p625). Mutt officer would ploy a harsh attitude towards the suspect and start to refer to the latter as a “rather despicable character” (1979, p626). In a study, Leo performed a participant observation which he titled, “Miranda’s Revenge: Police Interrogation as a Confidence Game” (1996) to observe the behaviour of interrogators. During the observation, it showed that American police officers performed a strategic game to obtain data, as these officers believe that the Miranda rights would damage their chances of obtaining evidence. Leo believes that the American police interrogators use a “confidence game to the extent that they involve the systematic use of deception, manipulation, and the betrayal of trust in the process of eliciting a suspect’s confession” (1996, p261). Leo continues to add that, by time the officers become highly skilled manipulators to win the strategy. For example a particular detective stated that; “We are con men..and con men never tell the mark they’ve been had” (1996, p266).
If the court finds out that a confession was involuntary or it was articulated by means of deception, the confession is deemed to be inadmissible (White, 1979, p607). According to White (1979, p596), the court must do more to protect the suspect’s rights in an interrogation. He continues to add that, the court should opt for other alternatives rather than just decide “the extent which police trickery may be tolerated in a free society.” White (1979, p599), discusses the concept of “Per se rules,” which are guidelines for police officers to avoid trickery and manipulation and to prohibit any involuntary confessions. Therefore, White states that, there should be the introduction of “prophylactic rules” which according to him are created to deter police from conducting any inappropriate interrogation (1979, p600). In the case of Frazier v. Cupp, the court acknowledged that “police deception does not render a confession involuntary per se”, yet the court “deeply troubled by the police deception, distinguished between verbal assertions and manufactured evidence” (Farlex). On the other hand, the Moran court highlighted the importance that society has legitimate interest in providing a secure environment. Thus, “the need for police questioning as a tool for effective enforcement of criminal law cannot be doubted” (Magrid, 2001). Psychologists have started to analyse the procedure of false confession and they stated that the leading source of these confessions can be the cause of wrongful convictions (Farlex). In addition, Leo (1996) cited by Granhag, Hartwig, Kronkvist and Stomwall (2006, p604), states that when a suspect is presented with evidence whether true or forged, the likelihood is that the suspect will confess to the crime even if in reality he/she didn’t do anything. As a matter of fact, the court fears that allegations by the suspect which points out the unfairness of the interrogation may jeopardise the entire criminal justice system (Farlex).
According to Dempsey and Forst, ethics is identified as the analysis of what “constitutes good or bad conduct” (2008, p197). They continue to add that, this term is often used “interchangeably with morals,” since they come from the related roots (2008, p197). Nowadays, ethical concerns became an issue to a number of law enforcement agents and as a matter of fact “The International Association of Chiefs of Police (IACP)” provides courses in ethics such as “Ethical standards in police service” and “Value-centred leadership: A workshop on ethics and quality leadership.” They also state, that some police departments such as that of Santa Monica in California, are offering training in ethics as part of the community policing preparations (2008, p198). The English Parliament gave a lot of importance to wrongful convictions because of police deceptive techniques (Khasin, 2009). In consequence, in the “Police and Criminal Evidence Act (PACE) of 1984,” new guidelines were established to deal with these concerns and as a result these new laws emphasised the importance that deceptive techniques should be prohibited (Khasin, 2009). Apart from that, the PACE programme focuses on the guidance of proper “conduct of criminal investigation so the police and the public would know their respective rights and duties” (Khasin, 2009). The PACE guidelines focuses on the principles that a confession should be given voluntary through adequate police procedures (Khasin, 2009). Furthermore, under the PACE programme some police trickery is permissible, however, the English law established some “uniform standards for the police to follow when conducting interrogations” (Khasin, 2009). It continues to add, that even though deceptive techniques may seep into the interrogation there should be a prohibition of false evidence (Khasin, 2009).
As a result of the PACE instructions, some judges regularly excludes confessions if gained through deceptive manner. Due to the introduction of PACE, judges in court now are ready to exercise discretion to help the defence side, especially when the confession was obtained involuntary (Khasin, 2009). Therefore, the PACE guidelines, requires that all police interrogations have to be recorded and a violation of this procedure can lead to confession refusal (Khasin, 2009). Even though, police deception is prohibited in England, “the courts have found that some types of police deception do not warrant the exclusion of confession evidence” (Khasin, 2009). For example in the case of Bailey, the police could not obtain a confession from the two suspects, so they put both suspects in a bugged cell where the suspects made incriminating remarks. In this case, the court said that the “use of deception was merely a detail” so it refused “to exclude the admissions from evidence at trial” (Khasin, 2009). The English law states that, a society who views manipulation and trickery as a dishonest act may raise serious apprehensions (Khasin, 2009). The author continues to add that, the English system views false evidence as a mean to obtain information in a deceptive way and as a consequence, the suspect may start to “confuse reality with the story that the police officer presents” (Khasin, 2009). The PACE guidelines also requires that every single interrogation should be recorded in every setting even if the interrogation does not take place in a police station (Khasin, 2009). If the suspect objects to the proposal of being recorded, the interview has to be written and then transcribed and then it has to be produced as evidence (Khasin, 2009). Khasin (2009) states that, a number of Scholars discussed the concept of deception techniques and the harm that they can bring not only towards the suspect but also damages the honesty of the criminal justice system as a whole.
The PACE codes advises that, the laws should include three fundamental principles. The first component should concentrate on the reliability of the confession and whether it is admissible or not; the second element focuses on deceptive techniques that will result in unreliable confessions and the third factor states that if any confession evidence is used not in line with the rules, it can be inadmissible (Khasin, 2009). The English system continues to state that, society is entitled some honesty particularly through the procedures committed by the guardians. Also, it carries on stating that, by obtaining a trustworthy statement from the guilty, the police can start to increase their admiration by the public (Khasin, 2009).
In Malta, the rules regarding the interrogation procedure are guided by the Police Act Fourth Schedule which is under chapter 164 of the Laws of Malta. This chapter states that this schedule must be present at all police stations, especially where interrogations are regularly carried out, in order for both the police officers as well as suspects to have the benefit to read it (Chapter 164, Laws of Malta). Article 1 of this schedule states that, the purpose of the interrogation is to gather enough data from the suspect, thus, article 2 continues to add that, since the interrogation process is of much importance then nothing should be done that may harm the process and put doubt on the validity and reliability of the statements (Chapter 164, Laws of Malta). In addition, article 2 is in collaboration with article 658 of the Criminal Code; that a confession should be given “voluntarily and not extorted or obtained by means of threats or intimidation, or of any promise or suggestion of favour” (Chapter 164, Laws of Malta).
Article 7, states that the interrogation should be recorded and the suspect should be informed about this procedure and if any interruptions take place a statement must be written. Apart from that, article 8 states that, there should be a transcription of the statements given by the suspect and the exact words should be used. After the transcribed document is completed the suspect is notified that he/she has to sign the document. If the document is not signed, the text may still be used as evidence but there should be an explanation verifying why the suspect has not signed the document (Chapter 164, Laws of Malta). Article 14 states that the use of stratagems are not prohibited in Malta, for example advising the suspect that his/her friends already stated everything against the former (Chapter 164, Laws of Malta). Article 16 states that no oppression should take place such as rope bounding or laughter and menacing gestures (Chapter 164, Laws of Malta). Therefore, since an interrogation is conducted in privacy, no lawyer is allowed to be with the suspect during the interrogation, visual recording are not used, then in actuality we do not know what is truly happening inside the interrogation room.
Article 19 of this chapter states that, “disciplinary proceedings may be instituted against persons who do not observe the provisions of this Code.” Finally, article 20 of chapter 164 Fourth Schedule states that; these rules are provided not only to prohibit any deceptive measures but also to prevent any allegations by the suspected persons “of any improper treatment during their arrest.” Further to this, the article states that by these rules the police could improve their image in the public eyes but apart from that “ensures less problems for the police to prove, in due course, the validity of statements made by arrested persons.”
Magrid (2001) states that, deceptive techniques should not be authorised when it may generate risk to an innocent person who would ultimately confess to a crime he/she did not commit. Deceptive methods are of an advantage to police interrogators as the suspect finds himself or herself not able to circumvent confession (Magrid, 2001). Magrid (2001) carries on stating that, some commentators stated that the limitation on deceptive techniques not only makes possible the relationship between the interrogator and the suspect but also establishes trust between the two. Even though suspects do not accept the ultimate truth from investigators, one must note that a suspect today may be a suspect tomorrow, and if a police officer breached the trust of the suspect once, there is the possibility that the suspect would not have faith in any other police officer (Magrid, 2001). The majority of suspects know that when a police officer start to ask questions regarding a case, there is more to the story than the police are telling you (Obenberger, 1998). Obenberger (1998), states that “if the game was already over” they would not be questioning anyone. In America, about 6000 false confessions are stated every year and the majority of innocent persons are convicted due to false confessions (Kopel). Hence, in most cases, deceptive procedures weaken the Criminal Justice System; therefore, this will make the jury more sceptical even when the police are telling the truth (Kopel).
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