Interviewing and investigation PDF

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week 1-4 with Prof. Boyd...

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PFLP-3003-- interviewing and investigation Week one- friday, september 25th Chapter one- introduction to interviewing and investigation Introduction Investigation - a search for the truth Investigators bring: - Reason, experience, dedication - Biases, preconceptions, cognitive limitations, personal motivations - Context: pressure to “figure it all out” Goudge inquiry (2008) - State of forensic pathology in ontario - Avoiding errors that produced wrongful convictions - Chief tenet: think truth vs. (think dirty) - Importance of evidence based approach and collecting all evidence - Hypothesis vs. knowledge Identifying key witnesses: 1. At the crime scene ● First officer duties: - Protect life and property - Preserve the scene - Potential witnesses, name, contact information, observations 2. -

Beyond Neighbourhood canvas Electronic canvas Conventional news media Crime stoppers Revisiting the scene

Managing witnesses First contact ● Prevent contamination ● Personal and preliminary information- no detailed discussion/unnecessary conversation ● Separate multiple witnesses

Witnesses, informants, confidential informants, agents ● Witness- someone who was present at a place where they personally observed or experienced something relevant to the commission of a crime and who volunteers information ● Informant- someone who gives information for something in return, such as money (Give information, don’t go to court, cannot be identified) Confidential informant (CI) ● confidential Informant (CI): An informant who has been given an assurance of confidentiality ● Agent: Someone who, directed by police, meets with people thought to be involved in the crime and reports back ● An agent works for the police, but is not a police officer can be directed and do have to testify in court. They put a lot more at risk. Can go into witness protection Witnesses in court ● Subpoena to ensure attendance (except pi’s) ● Arrest warrant possible for failure to appear ● Note: subpoena cannot be used to compel an interview Competence and Compellability ● Canada Evidence Act : determines whether an individual will be permitted or compelled to testify Two factors: 1. Competence: being legally permitted to testify ● Excludes: certain mental conditions 2. Compellability: ability of the state to require a person to testify in a court proceeding ● Excludes: Legally married spouses ● Any conflict with the right against self-incrimination (Charter, s. 11) Admissibility of Witness Testimony Morris v. The Queen : Nothing should be admitted into evidence unless it is relevant to the charge Admissible: Facts within witnesses’ own knowledge, observation, and experience Inadmissible: - Hearsay evidence - Opinion evidence (some exceptions)

● Expert witnesses and evidence — exception to opinion ban ● No opinions regarding mindset or intention of accused

WEEK 2- CHAPTER 2- TECHNIQUES FOR INTERVIEWING WITNESSES INTRODUCTION Interview basics ● Effective interviewing requires communication skills ● Primary objective of an investigation: elicit information ● Treat all witnesses politely/respectfully ● Avoid all confrontation ● Active listening - Eye contact - Nodding your head, smiling, agreeing - Leaning forward - Not interrupting - Restating what was said The role of the interview in an investigation Statement: permanent record of a witness’s observations Disclosure: process in which the crown is required to reveal its evidence to the defence ● R v. stinchcombe: crown obligated to provide defence with relevant evidence ● Witness statement is not evidence; cannot be read in court The need for interview training ● Don't assume witnesses can accurately describe events ● Results of inquiry into police interviews: - Need a set of interview protocols - Interviewers need more training - All police interviews should be video recorded The evolution of modern interview techniques Hypnosis: technique that puts subject into a tracelike state in which the subject’s actions and responses are under the hypnotist’s control ● Hypnosis can be used to enhance witness recall ● Hypnotically refreshed testimony often includes inaccurate details ● Hypnotism helps create rapport between hypnotist and subject Encoding specificity: how much we remember is based on the similarity of conditions between the event and memory retrieval

● Recreating physical and psychological conditions helps witnesses remember Misleading postevent information: memories are distorted by information acquired after the original memory formed ● Witnesses incorporate external information into their own accounts of events ● Eye witness identification Research on police interview techniques Typical flaws: ● Too many closed or leading questions ● Not giving witnesses time to answer questions ● Frequent interruption of witness ● Not encouraging witness to recall information Models of memory and their implications for interviewing Freudian model ● Unconscious processes primarily memories of traumatic childhood experiences that influence current behaviour Videotape model ● Memories stored in chronological form, can be replayed at will Biological model ● Memories stored in the brain cells so can decay overtime Cognitive model ● Information processed in discrete stages ● “Cognitive economy” maximizes efficiency of cognitive capabilities ● Memories stored in overlapping networks of neutral connections Stages of information processing - two memory types: short term and long term Cognitive economy: brain takes shortcuts to store and retrieve memories ● Similar memories blend together ● Help witnesses distinguish events of interest The connectionist model ● Facilitate memory by getting witnesses to consider: - Variety of details - Context of memory The enhanced cognitive interview Cognitive interview (CI): Four techniques 1. Report everything (no detail is too small)

2. Change order (truthful and deceptive) 3. Change perspective outside looking in, victims 4. Context reinstatement (returning to the scene of the crime, visualize or drawing Enhanced cognitive interview (ECI): combines four CI techniques with order, structure, instructions for interviews Preparing for an interview ● Read previous witness interviews ● Examine collected evidence ● Familiarize self with special characteristics of your interview subject (e.g., extreme youth or age, state of mind, etc.) Choosing the time and place ● Advise witnesses they may be conducted for interview ● Be flexible in choosing a location ● Avoid casual locations, such as in a police car. Unless you believe they will not come to you “Packaging” the witness’s statements ● Will say: formal witness statement for disclosure ● Statement should include basic information about interviewer and witness ● Begin interviews with KGB caution and chronology event ● Witnesses should read interviewer’s notes to ensure accuracy ● KGB statement ECI, step by step 1. Greet, personalize, and establish rapport (small talk, likability) 2. Explain the aims of the interview 3. Initiate a free narrative account (pure version) 4. Questioning (developing a statement) 5. Varied and extensive retrieval (relevant details) 6. Summary and review 7. Closure (leave door open) Differences in witness statements ● Multiple interviews with one witness can yield different statements Follow up interviews ● Repeatedly engaging in recall process leads to more details ● Witnesses shaken by a crime may be better able to recall events later (time and memory retrieval)

Key terms KGB caution : prepared statement to read an interviewee stating that the interview will be recorded/ interviewee is swearing to tell the truth Pure version: witness’s uninterrupted narrative of incident Context reinstatement: establishing background to put a statement into context Open ended question: invites detailed answer (TED) Closed question: invites a one word or short answer (did you do it) Witness compatible question: designed to take advantages of traits of a certain witness Varied retrieval: asking witnesses to recall events varied orders (truthful and deceptive)

WEEK 3 - CHAPTER 3- INTERVIEWING SUSPECTS I: LEGAL ISSUES AND PREPARATION Legal rights of persons who are detained or arrested Detention: suspension of individuals liberty by physical or psychological restraint Arrest: seizure or touching of individual by officer for detention Hybrid offence: offence that can be prosecuted as summary or indictable Investigative detention: officer’s limited ability to detain for investigative purposes Custodial interview: person has been arrested or detained Non-custodial interview: not arrested or detained (polygraph or suspect in crime) ● ● -

R v. grant decided detention doesn’t necessarily involve physical contact Legal rights when detained or arrested Be informed of reasons for detention/arrest Retain and instruct counsel without delay (informed of the right and given opportunity to speak to counsel Do not questions detainees without allowing them to speak to counsel (“hold off” duty Have validity of detention explained

Right to silence: not obligated to answer police questions ● Interviewers do not have to stop questioning suspects Requirement for diligence: interviewees required to exercise right to see counsel ● Accused can voluntarily waive right to counsel Cautioning suspects Primary caution should include : ● Officer is investigating a criminal allegation ● Nature of offences under investigation ● Accused’s rights (counsel, silence etc.) ● What suspect says can be used in court Secondary caution: given if investigator is not first officer (or “person in authority”) in contact with suspect ● Accused have right to re-consult counsel after new charges added ● Related cases: r v. Black and r v. Borden Enhanced rights of young persons ● Young persons include persons over 12 and younger than 18 ● Right to retain/instruct counsel any stage of interaction with police ● For statement from a young persons to be admissible: - Must be voluntary - Young person must understand his or her rights - Young person must know they can consult counsel/parents/others ● Young person may waive right to counsel, but must have written record or waiving ● If young person pretends to be over 18 and interviewer attempted to determine age, statement can be admissible ● Many police agencies have a detailed statement of a young person form Admissibility of statements Inculpatory: tends to establish a person's guilt Exculpatory: tends to clear a person of guilt Voir dire: “trial within trial” to determine admissibility of evidence ● For accused statement to be admissible, accused must: - Be aware of why authorities are speaking to him/her - Be advised of and understand rights - Freely speak to authorities Confession rule: no statement admissible unless given voluntary Person in authority: engaged in arrest, detention, etc. of accused (e.g. crown attorneys)

● Person of authority can be flexible e.g., a parent can be a person of authority to a child ● Rothman v. the queen: undercover officers not persons of authority Inducement: promise, favour, threat, or representation coercing accused into confessing ● Statements given to friends, colleagues, etc. admissible regardless of voluntariness “Off the record”: R. v. Smith - statements are admissible if accused's right to counsel is not violated False confessions lead to wrongful arrests ● R v. oickle: 5 kinds of false confession 1. Stress compliant 2. Coerced- compliant 3. Non coerced compliant 4. Coerced persuaded 5. Voluntary Four factors, presence of which determines voluntariness: 1. Threats or promises 2. Atmosphere of oppression 3. Operating mind 4. Police trickery Quid pro quo (something for something) often sign of inducement ● Moral spiritual promises okay (e.g. you will feel better after telling me the truth) ● -

Atmosphere of oppression: Prolonged interrogations Disregard for dignity/well being Excessive interviewers Fabricated evidence

No operating mind: suspect must be coherent Police deceit or trickery: acceptability measured by application of “community shock” test Planning for a suspect interview ● Having a plan/doing background research very important research: - Criminal record - Police reports on the suspect

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Evidence linking suspect to crime Suspect background Social media

Recording: not mandatory, but courts strongly prefer suspect interviews to be recorded Number of interviewers : two interviewers means more chance suspect will bond with one Before an interview discuss ● Who starts questioning ● when/how officers transition from primary to secondary interviewer ● What evidence to use/not use and when to use it ● Who will check recording devices ● How officers will communicate with each other ● how/when interview will end ● Do not allow people except for suspect and officers into suspect interview - Unless suspect will only consent to interview with someone else present During the interview Practice active listening: goal of interview to get suspect talking; listening helps Techniques for active listening: ● Focus attention or interviewee ● Silence following interviewee’s response/statements ● Observation of interviewee’s body language/ emotions ● repeating/paraphrasing/summarizing interviewee ● Identifying apparent emotions associated with responses ● Use of verbal encouragers (e.g, uh huh or go on) Possible suspect responses ● denial : denial of knowledge involvement in matter ● Alibi: excuse, typically claim that a person was elsewhere ● Admission: statement conceding at least one fact proving suspect’s guilt ● Confession: statement taking responsibility for the offence and detailing who did it and why they did it ● Silence: refuses to engage with interviewer Changes to suspects jeopardy: ● Investigator believes a witness may be a suspect ● Suspect makes admission related to a separate offence ● Investigator is notified of a victims death ( assault is now homicide) ● Change of investigative technique (DNA swab: polygraph examination, evidence, or body recovery

WEEK 4- CHAPTER 4- INTERVIEWING SUSPECTS II- APPROACHES AND TECHNIQUES Introduction Interrogation: accusatory process intended to elicit a confession Interview: non accusatory process to gather information Investigative interview: process designed to maximize the amount of information obtained from a suspect The reid technique Reid technique: approach to questioning ● Three principle elements - Non accusatory fact finding interview - Behavioural analysis interview to detect deception - Accusatory, persuasive interrogation to get confession Fact finding interview: establish rapport, basic information, baseline responses Behavioural analysis interview (BAI): behavior provoking questions to detect deception Three methods for determining guilt in the stage: - observe/evaluate verbal/non verbal behaviour for deception indicators - Behaviour provoking questions (e.g. do you know why you are here?) - Baiting questions/dealing with alibi Nine steps of interrogation 1. Direct positive confrontation: you are responsible for 2. Theme development: offering an explanation or “moral excuse” for the crime 3. Handling denials: discourage suspect from repeating/elaborating on denials 4. Overcoming objections: overcoming reasons why suspect would/could not commit the crime 5. Procurement and retention of suspects attention: physical contact, moving closer, using first names 6. Presenting an alternative question: makes suspect choose between two scenarios, one more acceptable but both inculpatory 8. Having the suspect orally relate various details of the offence: develop admission from previous step 9. Converting an oral confession into a written confession

Criticism of reid technique 1. Lack of evidence showing effectiveness of technique 2. Potential of technique to contribute to false confessions 3. Validity of behavioural analysis interview 4. Reids advice to not record interviews/interrogations Common strategies for obtaining reid confession ● Minimization: minimize seriousness of offence/consequences of confessing ● Maximization: maximize seriousness of offence, exaggerate consequences of conviction The peace model ● Best practice approach, focus on information and using information to challenge suspect statements ● Research indicates reid and peace both generate confessions from suspects ● Unlike reid, peace does not contribute to false confessions ● Unlike reid peace does not contribute to false confessions 5 stages of peaces model: 1. Preparation and planning 2. Engage and explain 3. Account 4. Closure 5. Evaluation Stage 1: preparation and planning ● Consider how new information contributes to investigation ● Plan interview, develop timeline of event, plan for contingencies Stage 2: engage and explain ● Engage in conversation and explain process of interview Stage 3: account, clarification, and challenge ● Enhanced cognitive interview (ECI): cooperate suspects ● Conversation management (CM): uncooperative suspects ● Three substages to “account” stage 1. Uninterrupted account 2. Clarification 3. Challenge Stage 4: closure and evaluation ● Allow suspect to correct or add to statement ● Consider information acquired in terms of whole investigation

Conversation management: technique for interviewing uncooperative subjects, create relationships with interviewee Three core elements: reciprocity, response, management of conversation sequence reciprocity : form bond with suspect by being polite and decent (getting them a coffee) Response: - Respect - Empathy - Supportiveness - Positiveness - Openness - Non judgemental attitude - Straightforward talk - “Equals” talking to each other Management sequence: Manage course of interview ● Use stages of PEACE Manage conduct during interview ● Ensure interviewer/suspect speak and listen to each other Manage content ● Maximize information gathered, note, analyze, explore information Research and criticisms ● Peace does not overtly persuade suspects to confess but has been shown to be just as effective in generating confessions as reid ● Does not contribute to false confessions ● No drop in confession rates from using peace in britain Investigators must: ● Be skeptical of various investigative techniques ● Ask if there is any evidence to demonstrate they are valid and reliable ● Keep up to date on new investigative interviewing methods and related techniques...