Investigative, Interrogation, And Testimonial Processes During The Process Of Law - Essay Example

DECEPTION IN THE INVESTIGATIVE, INTERROGATION, AND TESTIMONIAL PROCESSES Detection happens in a milieu, supposedly inspired by or in line withthe tradition of due process of law, but actually guided by unclear interpretations of individual rights by the police, who perform the detecting (Skotnick, 1982). The courts and the social organization of policing allow this practice according to their own moral perceptions and constraints, framed within an adversary system of justice. The norms set down by the practice are often contradictory, quite understandably because the detective is not a mere observer or one who wants to treat the suspect but one who often deceives in order to gather grounds to convict and punish. Detectives may relish principles of fairness and dignity but which are often unclear, gleaned from consequences and justification. The fact is that the law often supports police detection, although police action is limited without an arrest or search warrant. The police conduct detection within a contradictory moral order wherein certain fidelities fuse with certain betrayals (Skotnick). The detection process has three stages and deception can and does occur in any or all of these (Skotnick, 1985). These are investigation, interrogation and testimony. Within the policeman's broad moral cognition, the acceptability of deception depends on the level of criminal process: It is most acceptable to the police and the courts at the investigation stage, less during interrogation and least at the testimonial stage in the courtroom. Increasingly stringent normative constrains account for the differences among the levels and stages. Courtroom testimony is given under oath, whereby witnesses sweat to tell only the truth and nothing but the truth. It is the norm to accept that a witness is telling the truth in court. Courtroom lying violates the basic justice system, which all the parties are assumed to uphold. A policeman who lies in the courtroom can work his way out of his predicament by insisting that judicial interpretations of his limitations can get on the way of his ability of performing his job. This appears to be true within the context of the forces, which operate within the investigative stage of an adversary system, wherein the end justifies the means. The policeman seems to have the "privilege" of lying to get to the truth in achieving justice through due process (Skotnick). It may be quaint and a contradiction of values and norms but it is also factual that police freely admit to deceiving suspects and defendants to catch them, yet lying policemen and detectives do not admit to committing perjury (Skotnick, 1985). Perjury is as systematic as police work and police know among themselves that they perjure as a norm rather than as an individual error. A study, conducted by Columbia law students on the effect of Mapp v. Ohio on police practices in New York City, on certain search and seizure cases showed that uniformed police fabricated grounds for arrest in narcotics cases in meeting the requirements of Mapp. This does not justify but only explains how police who falsely witness justify the practice for the sake of greater persuasiveness. They resort to lying as routine of shaking themselves out of a predicament or helping one another out of it and because of a skeptical attitude towards a system, which is disinclined towards the truth that would be favorable to the criminal. The law allows a policeman to lie during the investigative stage but forbids it during the testimonial stage in the courtroom where and when he is certain of the guilt of the suspect, unlike during the investigative stage. The lying policeman puts more value on a short-term objective of suppressing evidence than on the long-term principle of due process in protecting the dignity of the accused. The policeman's pursuit is to legitimize the evidence he presents rather than weigh and analyze its sufficiency. He is merely after complying with the arrest laws, although this compliance often involves manipulation of facts. He may not do it in public but any hesitation to perjure in the court room is commonly perceived as less likely because of moral convictions on truth and more out of fear of perjury charges (Skotnick). The courts allow the police to trick and deceive suspects during the investigative stage and even train them on how to do it (Skotnick, 1985). In effect, the police are encouraged or expected to lie to suspects of contraband or illegal materials and burglars to entrap suspects and perform acceptable police conduct. Objective tests on government activities in cases such as these may illustrate a high-minded vision of the limits of police deception, which prohibit it even in the interest of maintaining a civilized or moral force. But this vision blurs or is negated when it uses concepts like "common feelings" or the conscience of the community" and flexibility is not always justifiable. Objective or subjective entrapment permits police to resort to routine deception, especially in victimless crimes, wherein the police are even advised to use effective deceptive techniques and strategies during the investigative stage or process. A judicial acceptance of deception in the investigation process thus becomes equivalent to a moral acceptance or justification of deception by detectives in the interrogation and testimonial stages as well as raises its probability of occurrence (Skotnick). Interrogation is a method of interviewing a source person in obtaining information, which the source would not otherwise willingly provide in other situations (Wikipedia 2006). The purpose is not to force the information from the source but to establish sufficient rapport, which will incline him or her to freely give the information. It does not usually involve torture. Methods of interrogation include deception, increasing susceptibility and the use of mind-altering drugs. Among the methods in increasing susceptibility are moderate sleep deprivation, exposure to constant white noise, and the Reid technique. There is no prohibition against lying or making misleading statements or from implying that the suspect has already been implicated by someone else. As a matter of fact and practice, deception is an important part of effective or vigorous interrogation. There is a current trend for the mandatory electronic recording of all custodial interrogations, a process of recording interrogations from beginning to end. This is in contrast with taped or recorded confession, which typically only includes the final statement of the suspect. What used to be taped analog interrogation has now evolved into the electronic recording of interviews or interrogations and has the protection of law and use by scholars. Alaska, Illinois, Maine, Minnesota, Wisconsin and New Jersey are the only States requiring taped interrogation (Wikipedia). Whenever possible and practicable, interrogation should occur in the investigator's office or in another place of his choice where the subject will not have any psychological advantage (Skotnick 1985). The subject may feel confident, angry or resistant in his or her own home, more aware and persistent of his rights and unwilling or reluctant to talk about his or her criminal behavior. His family and friends may also be present or nearby to provide moral support. But at the investigator's office, he has all the advantages over the subject. The environment reflects the invincible forces of the law, is isolated and unfamiliar to the subject and the investigators show confidence and plain interest in securing facts. They pose comments and questions on why the subject may have committed the crime, as their operational manuals instruct them, rather on consider the subject's possible inclinations or reasons for committing it, such as the emotional or social conditions of his or her childhood and family, personality flaws or errors in personal judgment. These operational manuals also stress that the police should develop the major qualities of patience and perseverance and offer legal excuses for the subject's probable commission of the crime. Even when they inform the subject of his rights, they do so only in a formalized, bureaucratic way, which is a routine and meaningless legalism. Lawyers will automatically advise their client to remain silent and there can be no confession without a genuinely voluntary and knowledgeable waiver done after the subject has consulted a lawyer. People do not understand what speech means without legal consultation, that is why they are legally advised to remain silent (Skotnick). The polygraph or the lie detector is an instrument, which measures changes in blood pressure, pulse, respiration and perspiration, and it has been used by police in detecting lies during interrogation (Skotnick 1985). It derives inputs from the examination of physical change in the subject, is symbolically scientific and possesses technologically sophisticated properties the police consider commendable for detecting deception. Yet the polygraph has produced results, which convicted innocent people, and which means that the instrument has technical limitations. The police and the entire law enforcement community must be re-trained on these limitations, but this appears difficult, because the polygraph has already become a valuable tool of interrogation. Arguments against it are its false accuracy, the cool and non-reactions of some sociopaths and con-men and the inherent coerciveness of the police (Skotnick). Detection moves from investigation through interrogation and on to testimony, and deception can and does occur in any of these stages or in all of them (Skotnick 1985). Critics agree that all forms of deception increase the probability of a false confession, especially when the suspect is a young person (Irsay 2006). Advocates of modern interrogation claim that the use of deception is valid because police are just doing their work of getting to the guilty party. They say deception in itself will not cause a person to confess something he or she has not done (Irsay). It is similar in the testimonial stage when the accused or subjects gives his or her statement in court. The Sixth Amendment to the US Constitution is supposed to promote and protect the rights of the accused in a criminal proceeding by providing him or her with the right to confront all witnesses against him or her (Groscup and Jay 2006). Testimony includes statements to establish facts made to a government agent out of court and subjected to the adversarial justice system. The Confrontation Clause is used for out-of-court testimonies. Otherwise, a testimony is considered mere hearsay, a concern dealt with by the Sixth Amendment. It is excluded at trial because it is considered unreliable, but certain types of out-of-court statements are considered acceptable. Examples are "excited utterances" or statements made about a stressful event or while experiencing the event, which are non-testimonial but excludable under the Confrontation Clause. Excited utterances made under the stress of such an event may have probative value, which the jurors can discover and evaluate. Perception, memory and deception can be uncovered along with the utterances. The subject or witness may also withhold information for revelation later at trial, depending on his or her motivation. The court or juror then must evaluate these utterances' probative value along with or against testimonial evidence. The situations in which this potential testimony was given are also significant in the admission decision. People have common-sense beliefs about the potential use and admissibility of a large number of interactions with law enforcers. There is as yet little empirical research on these issues, which will be of interest to legal decision-makers, but psychologists may conduct studies on them and adapt their research design specifically on the issues and the decisions the court will face when encountering them in future cases (Groscup and Jay). It must be re-emphasized that the courts give the police much room and encouragement to deceive in all the stages of detection as a sub-culturally supported norm (Skotnick 1985). Professional detectives resort deceptive investigations or interrogations, not out of self-interest, but in the public interest, i.e., in the interest of eliciting truth. But this develops into a paradox. The professional detective uses deception in order to obtain truth and in the public interest and it must be limited. The detective equates the costs of deception against the benefits to the crime victim and the general public, but an advocate of civil liberties is concerned with the public interest, which he measures according to the extent of a citizen's long-range interest of avoiding punishment. This opposition has produced inconsistent standards of investigation and interrogation. The inconsistency makes the law look more like a game than a rational system of justice, wherein the police are unlikely to take the rules seriously and thus encouraged to conduct their own according to their own codes, which include and affirm the necessity of deception as a justified means to their end (Skotnick).# REFERENCES 1. Groscup, J and Joy, J. (2006). How Does Hearsay Affect a Trial Judicial Notebook, volume 32 # 2: American Psychological Association. http://www.apa.org/monitor/feb06/jn.html 2. Irsay, S. (2006). Fear Factor: How Far Can Police Go to Get a Confession Court TV: Courtroom Television Network LLC. http://www.courttv.com/trials/tuite/fearfactor.html 3. Skotnick, J. H. (1982). Deception by Police. Criminal Justice Ethics, vol 1 # 2. http://www.lib.jjay.cuny.edu/cje/html/sample1.html 4. Wikipedia. (2006). Interrogation. Media Wiki. http://en.wikipedia.org/wiki/Interrogation Read More