New Jersey Supreme Court puts NJ Police "on notice" over interrogation practices.

Earlier this week, the media reported that the NJ Supreme Court decided to order a new trial in the case of a woman accused of breaking the leg of a 9-month-old baby. This decision considered New Jersey’s stance with respect to addressing ambiguity and the administration of Miranda warnings, but the opinion sends a more direct message to police in this State as it relates to the use of deception in an interview setting. In his opinion, Supreme Court Justice Barry Albin wrote:

"we have to determine whether sanctioning deception and trickery in the interrogation process offends judicial integrity and whether the cost of potentially eliciting false confessions outweighs the benefits of eliciting a number of true confessions"

Those strong words raise a number of questions that need to be considered by police leaders in the Garden State.

So why do we use deception in an interview anyway?

Since the 1950’s, police in the United States have relied on predominantly accusatorial tactics when it comes to interviewing suspects. These approaches use psychologically manipulative tactics that are designed to overwhelm a guilty party and convince them that it is in their best interest to confess. Deception is only one of these tactics, but it is an incredibly powerful tool and is currently legal within the State of New Jersey. So, what is the issue with the use of this technique and why should police leaders be concerned?

What do we know about the use of deception?

Suggesting that you have evidence that directly implicates somebody has been shown consistently to cause people to confess to crimes. This is not in debate and would suggest that it’s a great strategy to be employed by police. The problem however is that under certain conditions, the use of deception can even cause innocent people to confess, something which is difficult for most of us to understand and accept. Why would somebody confess to a crime they didn’t commit? Decades of research by prominent scholars have shown that innocent people confess for various reasons that are directly associated with the police interview or interrogation.

Dr. Saul Kassin of John Jay College of Criminal Justice in New York has highlighted two especially problematic types of false confession cases. In the first instance, innocent people admit to committing a crime to relieve the intense psychological pressure that they are put under by detectives. They know they didn’t commit the crime but see confessing as the only way to stop the pressure. In these types of confessions, the subject typically recants at the very first opportunity but at that point, it is very difficult to change the direction of the case.

In the second type of confession, known as false internalization, innocent people become convinced of their guilt as they are presented with evidence and subjected to the tactics used by the interviewer. Typically, these cases involve subjects who are vulnerable, such as children, people with mental deficits, or those who are sleep-deprived or have been subjected to trauma. In these cases, the subjects become confused when presented with overwhelming evidence of their guilt and actually end-up believing that they are responsible for the crime. The various psychological tactics which are used are compelling enough but when a trusted police detective can lie about circumstances or evidence, that raises the stakes even higher.

Detectives are taught that they should only employ these types of techniques once they have established the guilt of the subject they are trying to interview but researchers have shown consistently that police are no better than laypeople at determining guilt over innocence in an interview. If we can’t determine who is guilty before employing deception, then we run the risk of potentially causing an innocent person to confess and a guilty person to walk free. In the decision by Justice Albin, this is the balance he suggests must be considered in this State.

Is there an alternative?

The real danger, from an operational standpoint, is that simply telling detectives that they can’t use deception does nothing to help them in their mission of finding out the truth. As an investigator who has spent my whole career working in New Jersey, I’m constantly amazed by the high caliber of the detectives with whom I’ve had the privilege of working. Our people are dedicated to this craft and are driven to obtain justice for those who have been harmed so as leaders, it is our responsibility to provide them with the tools they need to be successful.

It turns out that we can draw from history to find a path forward. Over 30 years ago, the United Kingdom found themselves in a very similar situation. The use of psychologically manipulative tactics resulted in a series of high-profile miscarriages of justice where innocent men were sent to prison and as a result, the public demanded a change. A new interviewing framework was developed that was designed to maximize the elicitation of information and was not focused on obtaining confessions. This framework has now been in place for three decades and has resulted in police forces that have continued to investigate crime and convict the guilty while reducing the danger of false confessions. It has allowed good cops to do their job without placing the innocent in jeopardy and shows that it is possible to adapt successfully. This model has now been adopted in the United States at the Federal level and efforts are underway now to draw attention at the State and local levels, showing that there is a path to follow. Once we accept that safe and effective alternatives exist, the balance question raise by Justice Albion becomes easier to answer. It shows that it’s possible to train our people in interviewing methods that are based upon science, are equally or more effective at eliciting information, and are less likely to compel a false confession.

I don’t claim to know all the details of this specific case and certainly don’t doubt the integrity of the detectives who conducted these interviews. I know that our people consistently do their very best in the search for justice using the tools and techniques that we have provided. Our job as leaders must now be to ensure that those tools and techniques are based upon the latest science and provide our people with the best possible chance of success. The costs of anything less are simply unacceptable.