The Routledge International Handbook of Legal and Investigative Psychology

Ray Bull, Iris Blandón-Gitlin, Ray Bull, Iris Blandón-Gitlin

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000692594
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

The Routledge International Handbook of Legal and Investigative Psychology explores contemporary topics in psychological science, applying them to investigative and legal procedures. Written by recognized scholars from around the globe, this book brings together current research, emerging trends, and cutting-edge debates in a single comprehensive and authoritative volume.

Drawing from both research and practice, this handbook highlights many important issues such as: how to investigate and prosecute rape; the value of emotional affect in homicide investigations; and factors affecting jurors' and suspects' decision making. By considering current research, the authors inform both legal and investigative professionals of findings that are of direct relevance to them, and the steps that can be taken to improve efficiency.

This collection will inform investigative and legal professionals, advanced psychology students, academics, researchers, and policy makers. It will also be of great interest to researchers from other disciplines, including criminology, policing, and law.

1

The right to remain silent

Realities and illusions

Saul M. Kassin, Kyle C. Scherr, and Fabiana Alceste

Most Western democracies recognize the right to remain silent and embody that right through warning-and-waiver requirements adapted from the US Supreme Court opinion in Miranda v. Arizona (1966) (Weisselberg, 2017). In that opinion, the Court ruled that police must inform suspects who are in custody of their constitutional rights to remain silent and have a lawyer present. Aimed at protecting citizens from the “inherently compelling pressures” of an American-style police interrogation, the Court offered a remedy: Any statement taken from a suspect in custody without a knowing, intelligent, and voluntary waiver of these rights would be considered unlawful and hence inadmissible at trial. One year later, In re Gault (1967) extended these rights and procedures to youth appearing in juvenile court.

For three reasons, the Supreme Court’s opinion in Miranda has stood as a shining symbol in criminal justice. First, by cloaking Miranda in the Fifth Amendment privilege against self-incrimination, the Court declared that the constitutional rights of the accused pertain not only in the courtroom but in the police station as well. Second, by expressing concern about the trickery and deceit that underlies modern-day police tactics, the Court acknowledged the potentially coercive nature of a psychological approach to interrogation (“To be sure, this is not physical intimidation, but it is equally destructive of human dignity”). Third, the Court articulated a chain of mechanisms to ensure compliance and enforcement—namely, (1) custody triggers the requirement that police recite a warning that informs the suspect facing interrogation of his or her rights; (2) police must then obtain from the suspect a knowing, intelligent, and voluntary waiver before commencing an interrogation; (3) if a suspect invokes these rights, interrogation must stop; and (4) any statements otherwise taken shall be excluded from evidence.

At the time, the Court’s ruling in Miranda set off a firestorm of criticism from law enforcement officials, prosecutors, and “law-and-order” politicians who argued that criminal offenders would routinely invoke their rights, refuse to answer questions, seek counsel, and escape prosecution. Several years ago, Cassell (1996)—an outspoken critic who argued in Dickerson v. United States (2000) that Miranda should be overturned—cited data from pre-post and international comparisons to claim that Miranda had lowered clearance rates because of confessions that are “lost” whenever offenders invoke their rights or suppressed because of warning-and-waiver violations. However, others were quick to note that Cassell’s sampling and analysis of these naturalistic data were seriously flawed (e.g., see Donohue, 1998; Schulhofer, 1996) and that the costs to law enforcement, if they do exist, are outweighed by social benefits such as curbing police misconduct and increasing the public’s awareness of its constitutional rights (e.g., Leo, 1996a; Thomas, 1995).

It is now clear that the dreaded effects feared by critics never materialized. Opposition among law enforcement groups and prosecutors quickly subsided; police continued to solve cases by confession; judges continued to allow these confessions into court. In his opinion that affirmed Miranda in Dickerson v. United States (2000), Chief Justice Rehnquist noted that the warnings themselves have become part of our national culture. Indeed, one might argue that this experiment has proved so successful, at least on the surface, that 108 countries—in the Americas and the Caribbean, East Asia and the Pacific, Europe and Central Asia, the Middle East and North Africa, South Asia, and Sub-Saharan Africa—have gone on to implement similar protections that require police to warn suspects of the rights to silence and to counsel (Global Legal Research Center, 2016).

Although Miranda is here to stay, research has cast serious doubt as to the protection, if any, that it affords (Smalarz, Scherr, & Kassin, 2016). Among legal scholars, White (2001) complained of “Miranda’s waning protection” in light of follow-up court rulings that proved narrowing and erosive. Weisselberg (2008), “on record as an estranged former supporter” (2017, p. 1236), wrote of “Mourning Miranda”—which he declared dead, noting that it now functions as a safe harbor for police. Kamisar (2012) lamented the politicization of Miranda and concluded that it had been “downsized and weakened in various ways” (p. 1021).

Weisselberg (2017) notes that Miranda has fared poorly on two levels: “on the books” and “on the ground” (pp. 1248–1249). On the books, the US Supreme Court has steadily retreated from its original mission to protect citizens facing police interrogation from infringements of their constitutional rights by weakening the safeguards put in place. In a series of decisions, for example, the courts have ruled that police may skirt Miranda by creating situations that are not technically “custodial;” that police are not required to obtain a waiver before commencing an interrogation, advise suspects that a lawyer is seeking them out, or advise suspects of their rights at all if public safety is at risk. In addition, the courts have lowered the bar as to what constitutes an adequate warning—and what constitutes a waiver. And even if police do violate a suspect’s narrowed rights, thereby excluding the confession from evidence, the state may still use the statement taken to impeach the defendant’s credibility at trial or obtain admissible physical evidence (see Friedman, 2010; Kamisar, 2012; Weisselberg, 2008).

Empirical assessment: How protective is Miranda ?

Despite all the attention that Miranda warning and waiver requirements have received, one empirical fact looms above all others: Very few suspects invoke their rights. This tendency was apparent at the outset (Wald et al., 1967). Later direct and indirect observational studies more specifically indicated that roughly four out of five suspects waive their rights and submit to questioning (Cassell & Hayman, 1995; Leo, 1996b). In more recent observational studies in the US, the waiver rates have exceeded 90% (Feld, 2013; Domanico, Cicchini, & White, 2012; Kassin et al., 2018).

In contrast to analyses of how the law pertaining to Miranda has changed since 1966, our objective is to examine this phenomenon and 50-plus years of psychological research that has addressed the basic question of how protective Miranda is. First, we examine studies that assess the language of Miranda warnings and the extent to which people can comprehend the warnings and know how to implement them. Second, we address questions concerning usage and the extent to which the decision to invoke or waive one’s rights is made voluntarily or subject to the same pressures that bear on suspects throughout the process of interrogation. Third, we address what we call the “innocence problem,” whereby suspects who are innocent, believing that the truth will prevail, are particularly unlikely to invoke their rights. Fourth, we examine the psychological state of “custody”—how it is defined by the courts and how it is perceived both by suspects and observers. Fifth, we examine the potential cost to suspects who invoke their rights to silence and/or an attorney in terms of the adverse inferences others may draw. Our review of this research will lead us to suggest reforms to Miranda and reinforce a proposal, frequently made, that all interviews and interrogations be video recorded in their entirety. Although we frame arguments in terms of Miranda, we focus on pervasive issues that may undermine protections across legal systems (e.g., impaired comprehension; Cleary & Vidal, 2016; Vanderhallen et al., 2016; Whittemore & Ogloff, 1994) while simultaneously highlighting important differences (e.g., in the trigger point of administering interrogation rights and the use of manipulative tactics abroad versus in the US; see Slobogin, 2001).

Limits of comprehension

Early on, psychologists were concerned that some people—perhaps because they are young, cognitively limited, or facing the stress and uncertainty of interrogation—would not comprehend the Miranda warnings they were given. To evaluate this proposition, Grisso (1981, 1998) devised standardized objective instruments to assess Miranda comprehension (for reviews, see Goldstein & Goldstein, 2010; Goldstein, Zelle, & Grisso, 2012).

It is clear that the language of these warnings itself was concerning. Although the Supreme Court clearly defined the rights of which suspects must be informed, it prescribed no specific wordage, enabling police departments to devise their own. Similar discretion is found in jurisdictions across European countries (e.g., Belgium, Italy, Poland, and the Netherlands; Panzavolta et al., 2015). In a study that examined 560 Miranda warning forms used by police across the US, a host of variations in content and format were thus identified; metric analysis of the language revealed reading-level requirements ranging from third-grade level to the complexity of postgraduate textbooks (Rogers et al., 2007; also see Rogers et al., 2008; Kahn, Zapf, & Cooper, 2006). Such discrepancies also extend to methods of administering interrogation rights. Presentation differences are especially apparent in the ways that juveniles are informed across Europe, where methods range from a letter of rights (Belgium, Poland) to simple oral administrations (Netherlands) to both written and oral offerings (UK; Panzavolta et al., 2015). Not surprisingly, using oral administrations can introduce a host of problems. In one study, researchers noted that detectives spoke significantly faster while administering Miranda than before or afterward, thereby degrading comprehension even further (Domanico, Cicchini, & White, 2012).

Studies have shown that under benign testing conditions, most adults exhibit reasonably good understanding—but far from perfect. Even in favorable conditions, educated adults in the US (e.g., Grisso, 1998) and in Europe (e.g., Clare, Gudjonsson, & Harari, 1998) struggle to fully comprehend their rights; when actual detainees in the US and UK are sampled, comprehension levels fall dramatically (e.g., Cooke & Philip, 1998; Fenner, Gudjonsson, & Clare, 2002). Thus, despite exposure to TV and other popular media depictions that increase people’s confidence, people still harbor misconceptions about the meaning and function of the rights to silence and counsel (Rogers et al., 2010, 2013a). Moreover, the high-pressure circumstances under which real suspects are informed are less than ideal (Rogers et al., 2011; Scherr & Madon, 2012). Thus, comprehension deficiencies can stem from a range of factors, both personal and situational (see Smalarz, Scherr, & Kassin, 2016).

Adolescence is the most well-documented personal risk factor. Ov...

Table of contents

• Cover
• Endorsement
• Half-Title
• Title
• Copyright
• Contents
• Contributors
• Introduction
• 1 The right to remain silentRealities and illusions
• 2 Roar or “PEACE” Is it a “tall story?”
• 3 True and false memories in forensic contexts
• 4 Investigating and prosecuting rape Victims’ and criminal justice professionals’ perspectives
• 5 The probative value of emotional affect in homicide investigations
• 6 Investigative decision making
• 7 Cognitive fluency in the courtroom
• 8 Interviewing and interrogating minority suspects: Psychological science can help improve the process and outcomes
• 9 Interpreters in investigative interviewing contexts
• 10 Impact of alcohol and other drugs on eyewitness memory
• 11 Lay participation in legal decision making
• 12 Police interviewing of sexual assault victims Current organizational responses and recommendations for improvement
• 13 Reviewing the use of crime linkage evidence within a legal context
• 14 The Verifiability Approach Advances, challenges, and future prospects
• 15 Emotion Internal and external consequences for legal authorities
• 16 Stalking How perceptions differ from reality and why these differences matter
• 17 Establishing cooperation and eliciting information: Semi-cooperative sources’ affective resistance and cognitive strategies
• 18 Evidence of identification from eyewitnesses
• 19 From the ivory tower to the interrogation room: Training and field evaluation research on suspect interviewing
• 20 Introducing psychology to the justice system in Taiwan
• Index