We have all likely heard the phrases “I plead the 5th” or “I don’t have to talk to you,” but what do they really mean? When someone pleads the “5th,” they are invoking the Fifth Amendment to the U.S. Constitution, which protects individuals from self-incrimination. This means a person can refuse to answer questions or provide information that could potentially incriminate them in criminal matters.
This right is commonly referred to as “Miranda Rights” to the public, while law enforcement officers (LEOs) provide individuals with their “Miranda Warnings” to ensure they are aware of their rights when being questioned. Law enforcement must follow specific exceptions and requirements regarding Miranda warnings, especially when an interview turns into an interrogation. Miranda warnings are essential for protecting suspects’ rights and play a critical role in determining the admissibility of statements or confessions in a court of law.
The distinction between interviews and interrogations is crucial because interrogations require reciting the Miranda Warnings to the suspect to ensure that legally obtained evidence will be admissible in court. This article will focus on the most effective and efficient techniques for the law enforcement community to apply during the interview phase, as Miranda warnings are not typically required during interviews.
These approaches have fundamentally different methodologies but share the same objective of determining relevant criminal liability. Understanding this difference is essential for LEOs to apply an organizational approach during the interview phase that ultimately utilizes and enhances the finding of admissible evidence during the interrogations that lead to a confession.
An interview is a conversation aimed at gathering information, typically conducted in a relaxed and informal setting. As the interviewer (investigator), it is essential to create a safe and comfortable space for the interviewee, whether they are a suspect, accomplice, or witness. This environment is critical as it directly affects the accuracy of the information provided. When the interviewee feels at ease, they are more likely to share freely, providing valuable information, opinions, facts, and alibis directly or indirectly to help the interviewer enhance relevant information or eliminate unnecessary and irrelevant details from their working theory.
When conducting a fact-finding interview, thorough preparation and prepared open-ended questions are crucial for a cooperative conversation. The investigator should have a strong working theory and answers to these questions, instilling confidence in their ability to understand the interviewee’s statements or story. It is important to approach the interview in a non-confrontational manner, seeming sympathetic and caring by encouraging detailed responses from the interviewee. This approach can significantly enhance the fact-finding mission.
During the interview, it is vital for the investigator to actively listen to the interviewee’s responses and ask follow-up questions to indirectly explore specific points or areas of interest based on the investigator’s prior knowledge. Maintaining a neutral and non-confrontational posture and attitude is imperative to create an environment where the interviewee feels comfortable sharing detailed and confidential information. If the investigator suspects that the interviewee is not being transparent or truthful, taking a moment away from the interview and resuming the conversation can allow the interviewee to reflect on the situation before continuing.
Following a pause, it is advisable to offer an apology in order to regain the interviewee’s trust and attention. If the interviewee had been telling the truth, the interruption would not pose a problem, as they would be able to continue their story seamlessly. Furthermore, if the investigator wishes to conduct a more thorough verification. In that case, they can request the interviewee to start from the beginning of the story and watch for any inconsistencies in their detailed account. If the investigator remains uncertain, they can ask the interviewee to begin at a specific point in the story, as accurate details will remain consistent throughout.
If the person is not being honest, a well-timed pause can create the impression that you are aware of more information than you have revealed. This may prompt them to offer additional details or even begin to provide explanations for unasked questions. In some cases, they may even start to make excuses or preemptively address questions the investigator has not yet posed.
This approach’s essential yet frequently neglected aspect of the interview is the behavior analysis component that should be included in every interview phase to identify possible deception. It is necessary to remember that Miranda warnings are strictly enforced when the interview transitions into an interrogation. If it does, it is advisable to take the time to properly admit them immediately. A stern rule to follow is always to avoid reciting the Miranda warnings from memory; instead, each warning should be read individually, and upon understanding each right, have the interviewee (suspect) initial after each one of them, and at the completion, the interviewee(suspect) should sign and date the document. The LEO should also comply with all other legal obligations and requirements.
The investigator should take detailed notes on interviewees’ mannerisms and behavior as they answer recorded open-ended questions. Observing the interviewee’s responses to structured behavior-provoking questions can reveal signs of truth or deception. The investigator should pay particular attention to the interviewee’s mannerisms, starting from the general questions as the baseline to their behavior and taking detailed notes on the behavior when moving on to specific points in each answer with more detailed questions. Signs of nervousness, agitation, discomfort, body language, or micro-facial expressions should be observed and noted. Using the baseline behavior and genuinely curious questions allows the investigator to observe and listen. For example, instead of saying, “I think I understand, but what led up to the incident?” or “How can this situation have been prevented?”
These types of question approaches can be used in interviews and interrogations, enabling the investigator to note the volume, tone, speed, pitch, and body language of the interviewee’s voice, body language, and other mannerisms noted earlier. Using the baseline mannerisms and speech patterns from the general questions will assist the investigator in identifying deception leaks that do not confer with the original mannerisms and do not match when asked precise, detailed, open-ended questions related to the working theory. Some other signs of deception to look for during an interview or interrogation include crossing arms or becoming agitated when questioned by sudden changes in behavior or demeanor. The earlier noted behavior is not the same as when during specific lines of questioning that the interviewee or suspect is uncomfortable with or about.
It is important to note that these signs may not indicate deception individually, but when observed together, they can raise red flags and warrant further investigation, especially into the facts at that moment the mannerisms or behavior changed or if interview (suspect) statements turn from an interview straight into an interrogation.
References
NCJRS Virtual Library, Basics of Interviewing and Interrogation | Office of Justice Programs. Available at: https://www.ojp.gov/ncjrs/virtual-library/abstracts/basics-interviewing-and-interrogation (Accessed: 17 May 2024).
Criminal investigation course (no date) Criminal Investigation Course – NYPD. Available at: https://www.nyc.gov/site/nypd/bureaus/administrative/training-criminal-investigation-course.page (Accessed: 20 May 2024).
Current state of interview and interrogation (2019) FBI. Available at: https://leb.fbi.gov/articles/featured-articles/current-state-of-interview-and-interrogation (Accessed: 18 May 2024).
