The Reid technique of interrogation (developed by John Reid) is used throughout Oregon and the United States, and is the highly effective method of eliciting confessions from suspects, both guilty and innocent. With the Reid technique, arm-twisting is replaced with mind-twisting. One out of four post-conviction DNA exonerations involve a false confession.
“In 1962, Reid and his mentor, a Northwestern Law professor named Fred Inbau, co-wrote the first edition of Criminal Interrogation and Confessions. Criminologists and law historians credit their method with defining the culture of police-interrogation training for the past half-century. The procedure basically involves three stages meant to break down a suspect’s defenses and rebuild him as a confessor. First, the suspect is brought into custody and isolated from his familiar surroundings. This was the birth of the modern interrogation room. Next the interrogator lets the suspect know he’s guilty—that he knows it, the cops know it, and the interrogator doesn’t want to hear any lies. The interrogator then floats a theory of the case, which the manual calls a ‘theme.’ The theme can be supported by evidence or testimony the investigator doesn’t really have. In the final stage, the interrogator cozies up to the subject and provides a way out. This is when the interrogator uses the technique known as ‘minimization’: telling the suspect he understands why he must have done it; that anyone else would understand, too; and that he will feel better if only he would confess. The interrogator is instructed to cut off all denials and instead float a menu of themes that explain why the suspect committed the crime—one bad, and one not so bad, but both incriminating, as in ‘Did you mean to do it, or was it an accident?’”
Because of it’s demonstrated unreliability and the frequency with which it elicits false confessions, the Reid Technique has been renounced in Canada and Great Britain. With the Oregon Supreme Court’s courageous and scientifically rigorous stand against suggestive eyewitness identifications in State v. Lawson (link to blog), the next frontier for Oregon criminal defense lawyers will be to convince judges and juries to see Reid technique-induced confessions for what they are: unacceptably unreliable.
Falsely accused of everything from DUII to rape, Clients have told me that there is nothing more frightening than to know they are innocent, and know that the investigating officers firmly believe that they are not. False arrests and wrongful convictions do not normally happen because a police officer intends to make a false accusation. The vast majority of injustices occur as a result of tunnel vision and confirmation bias — a phenomenon by which well-intentioned police and prosecutors jump to a conclusion about someone’s guilt, and view evidence through a distorted, “guilty” lens.
Tunnel vision is human nature, so what can be done about it, to minimize false arrests and convictions? Law Professor Brandon Garrett offers some good ideas:
(1) Require police officers and detectives to keep notes about how their thinking evolves or doesn’t during the course of an investigation.
(2) Require police and prosecutors to open their complete files to the defense.
(3) Give the defense more opportunity and resources to do their own investigations.
Former CIA director David Petraeus’s failure to keep his emails private makes clear how easily the government can know virtually anything about anyone in the name of investigation. Because of the 1986 Electronic Privacy Act (18 USC §2703), with an administrative subpoena, the government can obtain all emails except unopened emails sent within the last 6 months (in which case a search warrant is required).
The New York Times’ excellent recent article summarizes the steps we can take to make it more difficult to allow the government to monitor us, and retain some measure of privacy. However, “the reality is if you don’t want something to show up on the front page of The New York Times, then don’t say it.”
On November 29, 2012, the Oregon Supreme Court issued a landmark
opinion on the admissibility of eyewitness identification, reversing
the aggravated murder conviction of Samuel Lawson. With the opinion,
the Oregon Supreme Court became one of the first states to make use of
decades of scientific research establishing the frequently unreliable
nature of eyewitness identification. The opinion gives guidance to
Courts and attorneys alike, to exclude evidence and caution jurors
about unreliable eyewitness identifications.
False eyewitness identifications have long been the cause of innocent
people being convicted and executed for crimes they did not commit.
The Oregon Supreme Court cited two recent studies establishing that
approximately 75% of convictions later overturned by DNA evidence
involved eyewitness misidentification. The Oregon Supreme Court put
into law what scientists and good attorneys have known for years –
that a witness’s confidence in their identification has nothing to do
with the accuracy of their identification, and that an eyewitness
identification must be handled with the same extreme care as other
forensic evidence such as DNA.
The case of Samuel Lawson was a powerful demonstration of the
unreliability of eyewitness identification. There, the sole
eyewitness twice failed to pick Lawson out of a photo lineup,
insisting that she hadn’t seen the killers’ faces. The lone
eyewitness didn’t identify Lawson in a photo lineup for a full two
years after the shootings — and did so only after she’d been taken by
a detective to Lawson’s pretrial hearing. Only then did the
eyewitness identify Lawson, further claiming that she would never
forget his (Lawson’s) face for as long as she lived.
The Oregon Supreme Court deserves great credit for bringing the
science regarding eyewitness identification into courtrooms, and
educating jurors, lawyers, and judges about the extreme caution needed
to handle and evaluate eyewitness identification.
The Oregon legislature created the DUII Diversion program in 1979, the same year that it made the crime of DUII a criminal offense. The legislature’s purpose in creating a diversion program was to allow people charged with DUII as a first offense the opportunity to do treatment — in exchange for their DUII charge being diverted and to avoid a conviction.
Since then, the legislature has shifted the focus of diversion from treatment to punishment, as the diversion program has become increasingly more costly, more difficult to complete, and available to fewer people. Oregonians enter diversion, complete treatment, and are revoked, convicted, and sent to jail for the most minor violations – such as not paying a $3 filing fee (State v. Reed).
Today, the legislature prohibits the recreational use of alcohol at any point during the one-year diversion period, even if treatment is determined to be unnecessary, or successfully completed. The legislature excludes from diversion anyone who holds a Commercial Driver’s License, as well as anyone with a prior DUII incident within 15 years.
The legislature’s newest punishment is in the requirement of an Interlock Ignition Device in any vehicle driven during the one-year diversion period. Attorneys and Judges agree that the Interlock Ignition Device requirement is a perfect example of the legislature’s preference for style over substance, aided by the monied influence of the IID manufacturers’ lobby. With some providers charging a $120 installation fee, and a monthly rate of $85 per month, the Interlock Ignition Device imposes a costly, time-consuming, and embarrassing punishment on those who need it the least — namely, first-time offenders who “voluntarily” install the IID.
As the legislature continues to limit and undermine the primary purpose of diversion (treatment), in favor of costly, unnecessary, inflexible and embarrassing punishments, people accused of their first DUII will more and more frequently give the state what it is asking for: a trial!
In March, 2011, the Oregon Criminal Justice Commission released an exhaustive study on the impact of Measure 11 since it was approved by voters in 1994.
The results of the study should lay the foundation for reform. Among the most important findings of the study: Measure 11 disproportionately targets people who are not “career criminals,” and who could be rehabilitated. Of those convicted of Measure 11 crimes, 70 percent had no prior felony record and weren’t considered “career criminals.”
Prosecutors use the threat of a Measure 11 sentence to coerce guilty pleas. Juries handled just 15 percent of cases involving Measure 11 crimes. Hispanics are 40 percent more likely than whites to be sentenced to prison. Blacks are 15 percent less likely.
Oregon would need 2,900 fewer prison beds if Measure 11 hadn’t taken effect. Defendants who hire private attorneys are 25 percent less likely to be convicted of a Measure 11 charge.
Criminal Justice Commission Study:
The discussion on Charlie Rose below focuses on the drug war, but the same logic applies to mandatory minimum sentences of all kinds. Our sentencing laws disproportionately warehouse minorities, youth, and under-educated people — those who have the least opportunity to succeed — instead of focusing on treatment and preventing recidivism.
In a moral and just society, all people should have a fair opportunity to succeed. Our sentencing laws, state and federal, fail to meet the standards of a just society, and need to be reformed.