From coercion to deception: the changing ature of poli

interrogation in America i.
,

RICHARD A_ LEO
Universizy of Cjidifornia, 2.240 Piedmont Avenue, Berkeley, CA 94720, USA
Our police, with no le,gal sanction whatever, employ duress,
threat, bullying, a vast amount of moderate physical abuse and a
certain degree of outright torture; and their inquisitions custom-
arily begin with the demand: "If you know what's good for you,
you'll confess. (Ernest Jerome Hopkins, 1931)' ))
Today, Ness Said, in is not a matter of forcing suspects
to confess but of "conning" them. "Rea11y, what we do is just to
bullshit thenn'' (William Hart, 1981)2
There is an interesting irony at work. here: restrict police use of
coercion, and the use of deception increases_ (Gary Marx, 19g8Y
in both popular discourse and academic scholarship one contin-
ually encounters references to the "tradition-bound" police. who
are resistant to change. Nothing could bcfurther from the truth.
The history of the American police over the past. MO years is the
hisLory of drastic, if not radical , change. (Sarnuei Walker, 1977y
Introduction
Gary Marx has written a fascinating and sociologically astute account of
undercover police work in America,' As the first social scientist to system-
atically identify and comprehensively analyze the development. of covert polic-
ing, Marx has opened up an exciting field of inquiry for socio-legal scholars,
Although Undercover contains many themes and speaks to many audiences,
Its most noteworthy contribution — from my pe.rspective as an academic
sociologist -- lies in its provocative analysis of the emergence of new forms of
social control in policing, and the inescapable. moral dilemmas associated with
their use.. Manipulation and deception have. replaced force and direct coercion
as the strategic underpinnings of information-gathering techniques that police
now employ during criminai investigation_ The "new surveillance" represents
.A. longer vorsion of this Ram: vas iprest:racd at ihe Annual Meeting of the American
Society of Criminology in November., 1991.
36
a broad cultural shift horn harder to softer processes of control. 'These di ang61.i .. :.
raise important, though difficult ethical questions about the appropriate rda- l'
tionship between individual rights and state. power in democratic society that .
is formally committed to the rule of law. Indeed, as Marx recognizes in his
careful and balanced analysis of the ethics of police deception, the pursuit cA
virtue in the. normative context of policing is vexed by the ironies, trade-offs,
and paradoxes that underlie the competing imperatives of crime control and
due process.
Police surveillance and custodial into are complementary, yet
distinct stratesies for obtaining evidence of crime: thu,' former relies on obser-
vation of, and participation with, potential suspects; the latter depends on
questioning of., and admissions from, the criminally accused. The relationship
between the two may be clarified once we. conceive of the detecting process as
consisting of three sequential stages: investigation, interrogation, and testimo-
ny,6 Whereas undercover police. work usually occurs at the investigatory stage.
of detection and prior to arrest., custodial interrogation typically begins after
formal identification or arrest. While surveillance is covert and completely
deceptive, interrogation is typically overt and variably deceptive. Legally,
both undercover police. work and custodial interrogation are. controlled by the
constitutional law of criminal procedure: yet covert investigation is governed
by fourth amendment jurisprudence and the law Of entrapment, white custo-
din] interrogation is regulated b the filth amendment and contemporary
conceptions of substantive due process,
The purpose of this paper is to describe and explain changes in the nature of
police interrogation that have occurred during the last. half-century in Amer-
ica. 'fhese developments are closely related to many of the themes raised by
Marx, for the history of interrogation parallels that of covert policing, Softer
forms ot. social control have replaced harder ones as violent and non-violent
strategies or criminal inve.stigation have become uncourded, Like. undercover
police. vfork , interrogation has become increasingly subtle and highly sophisti-
cated. Thesc. developments are. related to more general transforma-tions in the
organization and ideology of policing, social per of crisis in the crimi-
nal justice system, and the elaboration and enforcement of judicial restric-
tions. Moreover, like, covert means, deceptive, interrogation practices are
fraught with moral ambiguity. Just as undercover police activity challenges
democratic ideals of civil liberties fair play, and police accountability, so too
does custodial interrogation. Although the courts have actively prohibited
physical and psychological forms of coercion, they have been reluctant to lay
down bright. lines about the use of deceptive police, methods. Consequently,
police are permitted by law to engage widely in trickery and deceit during both
the. investigatory and the into stages of detection,
i will argue that during the. last fifty to sixty years there has been a profound
37
transformation in the methods, strategies, and consciousness of police in-
terrogators r Psychological deception has replaced physical coercion as one of
the most salient, defining features of contemporary police interrogation,
Where once custodial interrogation routinely involved physical violence and
duress, police questioning now consists of subtle and sophisticated psycholog-
ical ploys, tricks, stratagems, techniques and methods that rely on manip-
ulation, persuasion, and deception for their efficacy. Not only do police. now
openly and strongly condemn the. use of physical force during interrogation,
they also belie.ve that psychological tactics are far more effective at eliciting
confessions.' The use, of deception has, in effect, become a functional alterna-
tive to the use. of coercion. With this ciaange, police, power in the context of
interrogation has accpiired new lincroing: it has become more. subtle, more
invasive, and more. lotal, effectuated through psychological manipulation
rather than physical violence. There is, indeed an interesting irony at work
here.
It is difficult to empirically investigate coercive, deceptive, or, for that
rnauer, any interrogation practices, for we know very little. about what. actually
happens during police interrogation, The historical record is highly incom-
plete, for interrogation has always been, and continues to be, shrouded in
secrecy and mystery, Police departments still maintain a separate back room
for interrogation; police officers continue to be, trained to question suspects
alone in a secluded environment; and, although there. may be. significant
exceptions,8 most police departments still do not record interrogation sessions
in thc viake of the controversial Supreme Court rulings in the. 1960s, when
of complained bitterly of being "handcuffed" by legal rules in an escalating
war against crime,' and against the backdrop of a pervasive code. of siienee and
defensive police culture3w police are generally reluctant to discuss interroga-
tion methods or strategics with outsiders or potential critics. Not surprisingly,
only two observational studies of police interrogation exist in the American
literature, and both are more than two decades oid.11
Nevertheless, there. exists enough historical and contemporary data with
which to c,onstruct an empirical account of American interrogation practices.
My analysis in this paper relies on a variety of primary and secondary sources
that. date back as far as the late nineteenth century, These, include published
court eases, government documents, case, studies, interrogation training
manuals and materials, attendance. at local and national interrogation training
seminars and courses, interrogation transcripts and tapes, interviews with
policc officers, and academic and popular essays, articles and books. Although
my data has not been drawn in any statistically representauve manner, and
aithough.my research is ongoing, I have tried to be as systematic and compre-
hensive as possible in my analysis of these materials. Since. so Utile empirical
study has been done in this area (although law libraries are overflowing with
38
doctrinal analyses.), it is my hope that this paper: ‘viil stimulate sociological
research. about police interrogation.
A typology of coercive interrogation
Not very long ago American police routinely beat, tortured , and threatened
criminal suspects in order to extract confessions of guilt , some employing
methods that left external signs of abuse, but more commonly using physical
force in ways that did not. Through at least the early 1930s, perhaps longer,
coercive it tactics were commonplace. in an station houses
across the country,' General public outcry over corrupt and lawless practices,
however, steadily mounted during the Progressive Era, culminating in the kite
1920s.0 Partially in response. to the charges of progressive. reformers, and
partially in response to a perceived crime wave, President Hoover appointed
former Attorney General George Wickersham to chair the National Cimmis-
sion on Law Observance and Law Enforcement in 1929, in 1931, the Wicker-
sham Commission issued its famous "Report on Lawlessness in Law Enforce-
ment," volume. eleven in a comprehensive fourteen volume report on criminal
justice in America, Documenting various incAlstody abuses, the Wickersham
Commission concluded that police use of brke physical force, threats of harm,
intimidation, and protracted, incommunicado detention during interrogation
was widespread, In short, the "third degree" nourished in most American
police departments,'
The third degree appears to have become synonymous with coercive in-
terrogation in popular parlance around the turn of the century,'' Defined Rs
the infliction of pain or suffering to extract information, the "third de.gree" is
one type of police brutality. Its characteristic features are: (1) that it typically
occurs during custodial detention; (2) that it involves the use of physical force.
or psychological duress; and (3) that its fundamental purpose is to cxEort
admissions and confessions of guilt from criminal suspects. More generally,.
the third (kg-et, is a recent American variation of coercive inquisition in a
sordid history of judicial torture that dates back to the(Ancient Greeks and
,....,
reached its apogee during t..b[ medieval era.Th The use of to-rture during official
questioning by legal authorities has varied not only historically, but also across
cultures, continuing unabated in many countries to this day,17
Although force and duress were common police interrogation tactics
through the first three decades of this century, the use of coercive methods
began to decline. in the1.930s and1940s. By the 1980s and1990s, into
practices have become psychologically oriented, relying on the strategic use of
manipulation, persuasion, and deception to induce. admissions and confes-
sions from reluctant suspects_ Although one, occasionally reads or hears about
39
abuses during custodial questioning ,1' police critics agree that use of the third
degree. during interrogation is now relatively infrequent. To appreciate the
profound change that has occurred in police ideology and practices durinQ the.
Iast fifty to sixty years, it behooves us to take a closer look at the various tactics,
methods, and stratagems that comprised the third degree. The following
typology is thus offered for illustrative purposes and to provide historical
grounding for the argument developed in this paper, We can identify six
general forms of third degree police. interrogation.
Brute physical force: be whippings, punchings
Most fundamentally, coercive interrogation entailed direct and explicit use of
physical violence. Suspects were beaten under the kneecaps, across the ab-
domen, the throat, the head, the. shoulders, above the kidneys, on the but-
tocks, and on the legs; kicked in the shins, stomach, abdomen, torso, and
crotch; clubbed with nightsticks; hit with blackjacks and pistol butts; whipped
with leather straps; and punched in the face, most commonly with clenched
fists, sometimes with brass knuckles, less frequently with boxing gloves,'9
According to one .writer, hanging a suspect by the neck was a common method
of coercive interrogation shortly after the Civil War,m Another author writes
that, "Arrested persons were observed going into police stations and seen tater
with swollen faces, bruises and cuts, their clothes bespattered with blood
spots.' New York police reponer Ernanual Lavine, who spent twenty-five
years observing the. police in action, reported that the application of physical
force was routine and systematic during station house questioning. In--custody
suspects were. regularly beaten, whipped, punched, kicked, and mauled by
their in The. more intransigent the suspect, the more. physical
punishment he received: "The so-called roughneck is hit with every[hing but
the. foundation of the buiIding."22
Physical torture: the sweat box, the water cure, etc.
The infliction of pain or anguish during interrogation was sometimes more
subtle than the direct application of brute for though no less coercive, The ,
famous Sweat Box treatment dates back to the Civil War7-3 and was a standard
interrogation tactic in. some police departments.' This involved placing a
suspect in a dark cell — sometimes for hours or days at a time — that was
adjoined by a stove in which old bones, pieces of rubber, and other matcrials
were used to stoke a fire that produced scorching heat and pungent odors.
Sickened, perspiring, and not able to endure the rising temperature, the
40
suspect was compelie.ci to confess in order to escape these, unbearable condi-
tions. The Water CUFe consisted of holding a suspect's had in water until he,
almost drowned, or forcing a suspect to lay on his back and pouring water into
his nostrils, sometimes from a dipper, until he was »early strangled,'' Other
documented forms of physical torture. used during interrogation included
rubbing lighted cigars against a suspect's arm or neck }'?7 lifting, kicking,
squeezing, or twisting a suspect's testicies;28 dragging, pulling, or lifting a
woman by her .hair ;1` .ippiying acid to a suspect's genitals;3r) subjecting a
suspect to electric shocks3, and enlisting a dentist to grind down and drill into
the nerves of a suspect's tnolars,32
Deo-liable physical and psychological coercion
Many physically or psychologically • coercive interrogation tactics were in-
tended to be deniable in a court of law, The most we11-known of these tactics
was the use of a rubber hose to beat a confession out of a reluctant suspect. A
variation of this tactic was known as giving someone "the taps": at thirty-
second in the suspect was struck with a rubber hose on the side. of. the
head. Although the blows were not hard enough. to bring on unconsciousness
and although the welts disappe2red within a few hours, they caused consid-
erable pain, and thc, point of contact remained sensitive for many months
hereafteuspects were also flogged with blackjacks through telephone
books, or were-poked in the ribs with a blackjack.'pther prominent forms of
—deniable coercion included administering tear gas OD a suspect; tightening a
necktie. to choking point; and bringing a suspect to the morgue to view and
touch. the body of the individual whom they were accused of- murdering :15
. incom Tri unicado interrogation-
...
According to the Wickersham Report., the most common form of coercive
interrogation consisted of prolonged, incommunicado questioning under con-
dition's of extreme psychological pressure.'' Suspects wer detained for long
periods — often 2.4 to' 96 hours at a time, sometimes longer — and questioned in
relal itbout cease . 37 It was not uncommon for suspects to be transported
,
irom one county station to another until they confessed28 Such exhaustive
relay questioning may have been accompanied by merciless and seve,re verbal
bullying of the. accused, One common and weil-known tactic was to shine a
bright, blinding strobe light continuously on a suspecfs face , though some-
times alternating it on in (.1 off, Another strategy was to require a suspect to
remain standing upright for hours on end, slapping or jolting him whenever his
41
knees sagged. Sometimes suspects were confined in cold, dark, and airless
"incommunicado" cells. Some suspects were held in solitary confinement or in
crowded and unsanitary cells for days and weeks at a time until they con-
fessed • '
hysical duress: food and sleep deprivation, etc,
Related to incommunicado in was the use of physical duress to
induce admissions and confessions, particularly through the deprivation of
food, drink, sleep, or toilet facilities. By preying on. a suspect's physicai
dependencies, a skillful interrogator could break down resistance to confes-
sion. A suspec['s food and drink could he withheld for days at a time; a suspect
may have been kept awake to the point of extreme exhaustion, or regularly
. woken atler brief periods of sleep. Another tactic was to keep drugs from an
addict until he. confessed.' in one case a suspect was iptpxicated to produce a
confession ;4] in another, a suspect wiai injected with Chloroform andScopola-
mine.42 , -, .....
\,. ...-... .
,
Threats of harm
The coercive power of thz-cats rests on the psychological intimidation and fear
they producet Suspects were often threatened with death or severe bodily
injury if they did not confess: the were hung out of windows or down
staircases, sometimes upside, down and manacled as may be. well-known ..to
viewers of police cinema.), threatened with mob violence, or were told at
gunpoint that they would be,shot and killed instantiy, Lavine v,itnessed
interrogations in which officers placed a gun against the tern le of a suspect,
discharging n.i cartridges until the suspect c.onfessed.' A variation of this
threat was to have loud shrieks and-groans. emanatc from an adjacent room,
....
suggesting that the. suspect woilld receive comparable are if he did not
confess,'' any suspects, especially men , were threatened with physical as-
sault, as the officer roiled up his sleeves, retrieved a rubber hose, or clenched
.
his fists.° Other suspects were threatened .with incorrirnunicado detention or
imprisonment if they did not confess,' Fe ale suspects typically were threat-
en.ed with violence to their family or children.
The meaning of the third degree
As the brief discussion above, indicates, the third degree is a catchall phrase for
42,
variety of coercive interrogation strategies. However, if we analytically
distinguish three ideal types of third degree interrogation, an ;apparent histor-
ical progression emerges. What we rnight call the "traditional" third degree
consisted of the direct application of physical violence, such as beating, whip-
ping, or mauling the suspect until he or she confesses. This type of coercive
interrogation appears to have been most common during the. late nineteenth
and early twentieth centuries, before some courts beRan excluding obviously
compelled and involuntary confessions with any regularity, and before the
third degree first became a media issue in 191.0.' What we might call the
"covert" third degree. consisted of physical torture during questioning that did
not leave any external signs of abuse, such as heatings with rubber hoses or
blackjacks through rolled telephone books, food and sleep deprivation, and
protracted relay questioning. Deniable in a court of is and exercised with
complete. impunity, the "covert" third degree appears to have been the most
common form of coercive interrogation from around 1910 to the time of the
Wickersham Report Finally, what we might call the "psychological" third
degree consists of non-physical forms of coercion, such as intimidation, threats
of harm, duress., and promises of leniency. Although psyc.hological pressure
was often used as an adjunct to physically violent questioning hi earlier years,
the "psychological" third degree became the most common form of coercive
interrogation in the immediate decades following the in Wickersham
Report,' As interrogation has become increasingly subfle and sophisticated in
recent decades, the use of coercive intm-ogation methods ippears to have
dropped sharply....
The history of coercive interrogation practices thus follows a sequential path
of decline, both quantitatively and qualitatively. Like. the developments in.
undercover policing- analyzed by Gary Marx, the ascendance of nonviolent
interrogation strategies may be related to a cultural evolution in civility norms.
The shift from harder -to softer forms of control in policing appears to be part of
a more general social trencL5t) This is consistent ‘vith Norbert Elias' thesis that
the civilizing process in Western societies has generated modern sensibilities
that abhor the open expression of physical violence and deliberate brutality.'
As inteRoga_tion strategies relying on coercion are. rephiced by deceptive ones,
the exercise of police power becomes less visible. Yet we must not rule out the
possibility that the use of force during interrogation has been displaced onto
the pre-arrest: stage, as the Rodney King incident may illustrate, or that it has
been delegated to other, less visible and accountable actors in the. criminal
justice system, such as private police,'
The shift from coercive to deceptive. tactics may signify a greater special-
ization in control strategies, The sociological significance of the third degree
was not. merely that it consisted of abusive police methods that violated
constitutionally protected civil liberties. Rather, the. third degree represented
43
an entrenched system of dispensing summary justice: by formally accusing
suspects of criminal activity, police usurped the prosecutorial function of
district attorneys; by adjudicating the guilt or innocence. of suspects, police
usurped the fi--Ictfincling function of juries; and by employing physical force Or
psychological duress against suspects, police usurped the punitive functions of
courts, In this sense the third degree represented nut merely a set of violent
tactics} but a political practice. As psychological deception has replaced phys-
ical coercion in policing, social control strategies have become more special-
ized and technical, a point Gary Marx has made about covert police work 5'4
An empirical typology of deceptive interrogation
The first rule of modern police interrogation is that the officer must project a
sympathetic, friendly, and compassionate personality image The officer ma-
neuvers to show the suspect that he respects his dignity and will not condemn
his behavior, By winning the suspect's trust the officer thus creates a conversa-
tional rapport with him. At the same time, however, the interrogating official
exudes an "air of confidence" in the suspect's guilt. The interrogator firmly,
relentlessly, and systematically implores the suspect to confess. The, interroga-
tor will try to sell the merits of confessing to the suspect, a kind of salesmanship
that may crescendo into a fervent campaign of wheedling, coaxing, and cajol-
ing the. suspect to confess. In this process, the interrogator relies on psycholog-
ical techniques and appeais involving manipulation, persuasion, and decep-
tion.'' The goal of the interrogation is to create a psychological atmosphere
that will facilitate. the act of confessingT
Contemporary interrogation is shot through v,ith deceptive techniques,
to and stratagems. By "cleception" I mean any act, role, or statement that
misleads a suspect or misrepresents the true nature of questioning. however
subtly. As Fred Inbau andilohn Reid succintly stated in the 1962 edition of
their well-known interrogation training manual, Criminal Interrogation and
Confessions: "Deceit is inherent in every question asked to the suspect, and in
every statement made by the it In this section I take a closer look
at the forms of interrogatory deception, We can identify eight general types of
deceptive interrogation,
Misrepresenting the nature or purpose o queslloning57
One of the most fundamental and overlooked deceptive stratagems police
employ is.; questioning the suspect in a "non-custodial" setting so as to circum-
vent any legal necessity of ren.dering Mirancla warnings. The C:ourt in Afliranda
posited that warnings must be given only to a suspect. who is in custody or
Whose freedom has otherwise been significantly deprived. Somewhat para-
doxically, subsequent courts have ruled that police questioning outside of the
station may be custodial,s8 just as police questioning inside the station may be
non-custodial.' Although the (sometimes very fine) line, between the two is
legally defined as the "objective" restriction on a suspect's freedom, it. may in
fact have more to do with a suspect's state of mind than with the location of the
questioning!' By informing the suspect that he is free to leave at any time., and
by having him acknowledge that he is voluntarily answering their questions,
police will transform what otherwise would be considered an in
ire to an interview. Although recasting the interrogation as an interview is more
ot:iega! than a factual deception, it has the effect of virtually removing police
N
questioning from the realm of judicial control,
Miranda warnings ,
1..f the form of questionine qualifies as custodial, howe,ver, police. must recite
the familiar warnings. The Court declared in. Miranda that police. cannot trick
ar deceive a suspect into waiving his Miranda rights.' The California Supreme
Court has additionally ruled that police cannot "soften up" a suspect prior to
administering the warnings.' However, police routinely deliver the it
warnings in a perfunctory tone, of voice and ritualistic be manner,
effectively conveying that these warnings are, little more. than a bureaucratic
triviality To the extent that police undermine the import of Miranda, or
negate the potential significance of the warnings, these verbal and behavioral
mannerisms are deceptive. While it may be inevitable, that police will deliver
Miranda warnings less than enthusiastically, some investigators very con-
sciously recite the warnings in a trivializing manner so as to maximize the
likelihood of eliciting a waiver. It is thus not to surprising that police are so
generally successful in obtaining ikvaivers.63
Misrepresenting the nature orseriousness of the offense
,
Another kind of deceptive stratagem police employ is misrepresenting the
nature or seriousness of the offense -for which the suspect is under questioning,
Police typically accomplish this ploy by either withholding or exaggerating the
information they present to the suspect. They may, for example, tell a suspect
that the murder victim is still alive, hoping that this knowledge. will compel the
suspect to talk. Or police may exaggerate the seriousness of the offense --
overstating, for example, the. amount of money embezzled— so that the suspect
45
feels compelled to confess to his smaller role in the offense. Or the police may
st_tggest that they are only interested in obtaining admissions to a minor crime,
when in fact they are really investigating a separate serious crime. For exam-
ple., in a recent case, federal agents interrogated an individual on firearms
charges and parlayed his confession into ill additional, seemingly unrelated
and unimportant, admission of first degree murder,' Despite their pretense to
the contrary, the offense federal agents were in fact investigating was the
murder, not the firearms charge.
Role playing: manipulative appeals to conscience
Police are taught that effective psycho[ogical interrogation often demands the
ability to convincingly feign different personality traits or to act out a variety of
roles. As police trainers Robert Royal and Steven Schott have written: "]I o be
truly proficient . .. the interviewer/interrogator requires greater histrionic skill
than the. average actor Interrogators routinely project sympathy, under-
standing, and compassion in order to play the. role of the suspect's friend, a
brother or father figure, or even to act as •ii therapeutic or religious counselor_
The most well-known role. interrogators may feign is, of course, the good
cop/had cop routine, an act which may he contrived by a single. officer. While
playing one. or more of these various roles, the investigator importunes —
sometimes relentlessly — the suspect to confess for the good of his case, for the,
good of his family, for the good of society, or for the good of his conscience_
These tactics are deceptive in as they create the illusion of intimacy
between the suspect and the officer and misrepresent the, adversarial nature of
custodial interrogation. The pu:'pose of emulating a primary Or intimate role is
to exploit the trust inherent in these. relationships. In such a context , appeals to
conscience. become a powerful means of persuasion.
Misrepresenting the moral seriousness of the offense
Another widely used deceptive stratagem police employ is to misrepresent the
moral seriousness of an offense.a6Interrogating officials offer suspects psycho-
logical excuses or moral justifications for their actions in order to psycholog-
ically facilitate the act of confession, Such excuses and justifications ll-e
intended to provide the suspect with an external attribution of blame that will
allow him to save face while confessing_ Police. may, for example, attempt. to
convince an alleged rapist that he. was only trying to show the. victim love or
that she was really asking for it; or they may persuade an alleged embezzler
that low pay or poor working conditions are to blame, for his actions, By
1
The use of promises
The 'systematic persuasion — the wheedling, cajoling, coaxing, and importun-
ing— that officers employ to induce conversation and elicit admissions may rest
on convincing the suspect to confess for the good of his conscience., for the
good. of his family, for the good of society, or for the good of his case. Such
invocations often involve, if only implicitly or indirectly, the use of promises.
Although promises of leniency have been presumed coercive since '1897,67
courts continue to permit vague and indefinite. promises. The admissibility of a
promise thus seems to turn on its specificity, For example, in one recent case,
the suspect was repeatedly told that he had mental problems and thus needed
psychological treatment. rather than punishment.68 Although this approach
implicitly suggested a promise of leniency, the court upheld the. validity of the
resulting confession. Courts have also permitted officers to tell a suspect that
his conscience will be relieved only if he confesses; that they will inform ale
court of the suspect's cooperation; that "a showing of remorse," will be a
mitigating factor; or that they will help the suspect out in every way they can if
he confesses.° Such promises are deceptive insofar as they create expectations
that will not be met..
Misrepresentations of identity
Police officials sometimes conceal their identity or pretend to be someone else
while interrogating a suspect, This deceptive tactic goes beyond mere role
playing, for the interrogator is not simply misrepresenting the circumstances
surrounding the interrogation, but rather is misrepresenting the very act of
interrogation itself. This type of interrogatory deception becomes cotermi-
nous with undercover policing. As Gary Marx notes, police officials have.
posed as priests, newspaper reporters, lalruyers, psychologists, meter readers,
and students .1° in other areas of American iaw this deceptive technique
qualifies as fraud.' Nevertheless, it is legally permissible [or the police to
misrepresent their identity so long as no constitutionally protect rights or
constitutionally recognized norms of fairness are violated. While courts have
traditionally not allowed. officers to pose as lawyers or priests, they have.
permitted undercover police to pose as prison clans at for the purposes of
obtaining a confession through the pretense of friendly questioning.' Thus.,
47
the profession or social group with which an undercover officer or agent
identifies during the actual questioning may be more significant to the result-
ing legal judgment than the deceptive a.ct itse1C3
Fabricated evidence
• viewers of the television program Columbo are aware.; police may of
a suspect ‘pith false evidence of his guilt. This stratagem consists of five
particular physical evidence ploys. One is to falsely inform the suspect that an
accomplice has identified him. Another is to falsely state that existing physical
evidence — such as fingerprints, bloodstains or hair samples — confirms the
suspect's guilt. Yet another is to assert that an eyewitness Or the actual victim
hm identified and implicated the suspect. Perhaps the most dramatic physical
evidence ploy is to stage a lineup, in which a coached witness faIseiy identifies
the suspect. Finally, one of the most common physical evidence ploys is to
have the suspect take a lie-detector test and regardless of the. results — which
are scientifically unreliable. and invalid in any event:" — inform the suspect that
the polygraph confirms his guilt. All of these tactics are legally permissible.
Although one lower court has ruled that manufactured documentation vio-
lates due process, the law uniformly permits false verbal assertions, artifices,
or subterfuges. The. Supreme Court has yet to lay down any clear rules about
interrogatory deception, effectively allow' ing, police to define the outer limits
of permissible trickery and deceit!'
The iriumph of professionaIism
Both historically and sociologically, the movement from coercive to deceptive
interrogation outlined above represents a remarkable metamorphosis in po-
lice ideology and practices. Yet no scholar has either identified or analyzed this
I development, even though, as journalist William Hart observes, "[NE) law
enforcement function has been more visited by controversy, confusion and
court decisions than that of the interrogation of criminal suspects" during the
last half-century.76 In 1ittle more than fifty years, a profound transformation
has occurred in the. methods, strategies, and consciousness of American police
interrogators, as the use of force and duress has given way to more subtle,
sophisticated, and manipulative psychological appeals. While this evolution in
police practices may hardly seem surprising — psychological persuasion and
deception are. widely believed to he far more effective at eliciting truthful
statements than physical coercion — it remains to be explained. In the remain-
der of this paper, I will argue that police professionalization, changes in public
48
attitudes., and the development of court-driven legal doctrine, largely account
for the shift from coercive to deceptive styles of interrogation.
Police professionalization
Symbolized by the formation of nascent police or the movement
for police professionalization in America began to take form shortly before the.
turn of the twentieth century. Robert Fogelson has argued that the impetus for
professional reform came in two waves: the first, which he roughly dates from
1890 to 1.930, was primarily led by progressive reformers outside of policing;
the second, which he dates from .1930 to 1970, came from within police
circles?' The desire to professionalize the police represented, above all, an
attempt to separate politics — the source of incompetence, in and
corruption in the eyes of reformers — from policing. It was an ideoloaical
movement that, for the first time in American history, offered an occupational
vision for the police role in American society. The ideal of a profession
contained within it the prospect of formal training and expertise, a career
Orientation, administrative, efficiency, and a public service ideal, These, in
turn, implied full-time work, fixed beats, job tenure, the centralization of
authority, the rationalization of command and control procedures, the formal-
ization of hilernal rules, and an improvement in the quality of police person-
nel Significantly, professionalization oriented police to abstract and general
legal norms that abhor the use of extra-legai violence to extract information.78
In the nineteenth and early twentieth century, the third degree appeared to
many as a normal, if not inevitable, aspect of policing. Local and highly
decentralized, early American police enjoyed wide personal discretion; nei-
ther directly accountable to the, public nor to the judiciary (but only to the
urban machines that dominated political life) police broke rules with impunity
and often intimidated and harassed citizens.79Early American police frequent-
ly employed physical force and violence to solve their problems.' This is
hardly surprising, for American police were born into a society with an
enduring legacy of individual, social and political violence .81 Moreover, Amer-
ican police. of this era were not widely accepted or respected by the. public, but
instead were often subjected to ridicule and hostility in a frontier society that
emphasized individualism, self-protection, and an anti-authoritarian ideol-
ogy!'1 Often alienated and frustrated, early American police used force not
only instrumentally to put down riots and control. the "dangerous classes," hut
also symbolically to establish and assert their moral authority.
The. movement for police professionalism marked the beginning of an
organizational self-consciousness on the part of the police. Reformers became.
increasingly concerned about the public image of the police, and the attempt to
49
professionalize represented in large part an attempt to enhance the status of
the police. Non-partisan policing — as manifested in the neutral goals and
techniques of modern administration -- slowly began to undermine the power
of political machines Internal rules became increasingly formalized, as polic-
ing became part of a more elaborate bureaucratic structure. Scientific forms of
policing emerged in the. second decade of the twentieth century, as crime
control replaced social service as the primary function of policing, With the
development of scientific techniques of crime detection, police. began to
perceive that violent interrogation tactics were no longer necessary to obtain
confessions.
By the end of the .1930s, police were no longer considered a mere, adjunct to
partisan politics r Civil service had largely eliminated political patronage from
policing: selection, promotion, and -appointments were no vv merit-based,
With higher Educational requirements, formal training, and a commftment. to
abstract ideals, policing began to develop the occupational autonomy neces-
sary for professional status. Progressive reforms had centralized authority,
rationalized command and control structures, raised the quality of police
personnel, improved administrative efficiency, and narrowed the police func-
tion. Moreover, the increasing emphasis on higher education and formal
training provided police with a greater a_wareness of moral and legal standards
of behavior. One of the great accomplishments of police reform was to
increase formai control over the. rank and file. By the. mid-11.940s, most police
chiefs i.n America openly condemned the use of. third degree practices,
Public attitudes and police behavior
When the Wickersham Commission Report was released in 1931 it caused a
public uproar. Thoroughly documented, the Wickersham Report revealed
that police brutality in general, and the third degree in particutar, acre
practiced extensively in police departments .a.cross the country_ its findings
were immediately popula_Ozed by journalist Ernest Jerome Hopkins', Our
Lawless Police, as well as by many newspaper and magazine stories. Although
journalists, grand juries, legislative. committees, bar associations, and civil
liberties' groups had all levelled such charges against police in the past, none'
provoked nearly as much public controversy or exercised nearly as great an
impact on public attitudes as the influential Wickersham Report.83
The previous decade of the 1920s had laid the basis for this subtle, but
profound change in public expectations about the police role. The 1920s have
been referred to as "the age of the crime commission," a decade in which
police organizations were repeatedly in Whether it was a result of
the triumph of progressive. ideology in American politics, or simply because
50
members of the middle class were exposed to the criminal justice system in
large. numbers for the first time in American history,8) or for other reasons, the
public. began to view the police as part of the larger criminal. justice system,
rather than a mere adjunct to partisan politics. Within a very short period of
time, public expectations about appropriate police behavior, especially about
the third degree, began to decisively change. Increasingly, citizens began to
insist on a professional model of policing and began to expect officials to
comply with constitutional standards of behavior, The Wickershain Commis-
sion report thus reflected changing popuiar attitudes in the widespread contro-
versy and outrage ii provoked.
The graphic revelations of routine police misconduct represented a threat. to
the institutional legitimacy of police. Police administrators, chiefs and sup-
porters quickly realized the need to eliminate flagrant abuses in order to
enhance their status among the public. Police chiefs could no longer brazenly
deny that the third degree existed, as some had previously done. Accordingly,
police, became increasingly concerned with their public, image, especially in the
media. it was at this time that the professional model of policing, long encour-
aged by progressive reformers, gained ascendance in police, circles. Reform-
oriented police. chiefs and leaders capitalized on the changing atmosphere to
enact or enforce departmental policies against abusive police behavior, The
Wickersham Report thus not only exercised an enormous impact on the
public, but, reciprocally, it also had a profound influence on the police them-
selves, Its impact. would he felt for many decades to come, as police struggled
to overcome popular stereotypes of third degree interrogation.
Following the unsettling revelations of the Wickersham Report, J. Edgar
Hoover immediately launched both an internal and external attack on third
degree practices. Hoover and the Federal Bureau of Investigation began to
redefine the meaning of police professionalism in the 1930s. Hoover actively
promoted more professional (Le., non-abusive) forms of interrogation real-
izing not only that public perceptions of police abuse undermined the image of
poLicing necessary for its success, but also that it undercut the ultimate goal of
conviction. To this end, the FBI emphasized scientific forms of criminal
investigation — which was reflected in such innovations as the crime lab-
oratories, fingerprinting technology, and the Uniform Crime Reports — so as
to render coercive interrogation altogether obsolete. As one FI31 agent wrote
in 1.936, "The third degree isn't necessary when you've got the facts. Special
agents get the facts,""
Following the. Wickersham Commission's recommendation of greater edu-
cation in policing, the FBI began a national police training academy in the
1930s, which provided an impetus to improve training programs elsewhere,
With the goal of furthering national, and thus higher, standards of police
behavior, the FBI promoted three advances: college-level educational pro-
51
grams; regional training programs; and police academy programs. In 1930,
only a dozen departments had large scale policz. academies. By the late 1940s1
however, virtually every urban police departmeht. had a training facility. No
agency did_ more than the FBI in promoting law enforcement and crime control
as the main function of po1icing.7
Professionalism was the most salient issue in police circles during the
1950s.88 Police norms concerning the use of violence continued to change in
subtle but profound ways. Responding to adverse media publicity and nega-
tive stereotypes, police training and education consciously sought to transform.
the attitudes and professional norms of policing, so as to improve the public.
image and standing of police, The ethics of police work, as well as the.
constitutional civil liberties of criminal defendants, were now widely discussed
in police academy training courses. "the third degree wa.s no longer consWred
merely an ineffective method of interrogation; it was also considered an
unethical one. Although police. training manuals were outspoken in both their
practical and moral condemnation of coercive questioning tactics, police con
tinued to receive adverse. media publicity for third degree interrogation when
and where it occurred. Police attitudes increasingly dictated that no end could
justify employing coercive or abusive means during custodial questioning.
Although we have little direct empirical data about interrogation practices
at this time, the third degree, still existed in some places, though its use. appears
to have diminished considerably since the Wickersham Commission's report
twenty years .earlier_ William Westley's pioneering ethnography of a small
Indiana police department in the early 1950s revealed that a minority of
officers continued to employ physical force in some. cases. Although the police
chief had publicly denounced its use, the third degree was legitimated by a
subcultural norm when police felt their authority was under challenge; when
they felt certain of a suspect's guilt; when the suspect was a repeat offender
from a lower status, class, or racial group; and in egregious cases, such as child
molestation. Although most officers did not employ coercive or abusive meth-
ods, those who did justified it as a necessary means of crime control. Never-
theless, the. use of physical force had become a generally disfavored means of
eliciting information, for all officers realized that it undermined public rela-
tions, and believed that psychological approaches to interrogation were gener-
ally more of
Police attitudes and behavior continued to change much more quickly in the
1960s, as the police became more educated, formal training programs expand-
ed, and the ideology of police professionalism became more entrenched,
especially among local police. Although by 1.961 the third degree was still
practiced in each of its various forms as the Commission on Civil Rights
reported,'" it was by no means common. One study of a medium-sized city
found that police interrogation practices changed significantly in a five year
52
interval during the early 1960s: by 1966 the New Haven police department no
longer engaged in physically coercive interrogation, though psychologically
coercive methods were employed in a minority of cases.' Whereas the Wicker-
sham Commission had found the third degree to be widespread and routine
throughout American police departments in 193:1, by 1967 the President's
Commission on Law Enforcement and Administration of Justice barely men-
tioned the third degree, as observers concurred that it had ceased to be a
problem in most areas.' The use of third degree interrogation tactics, especial-
ly physical abuses, bad declined significantly in tittle more than thirty years. By
the .1980s, physically coercive practices appear to be. relatively infrequent, as
psychologically deceptive strategies have become a standard means for elic-
iting information during interrogation.
Legal doctrine
The development of court-driven legal doctrine has played an important role
in the movement from coercive to deceptive styles of interrogation. In the last
sixty years the courts have elaborated and enforced constitutional rights and
due process norms in order to restrict the discretionary authority that police
may exercise during custodial questioning, The use of force, threats of harm,
promises of leniency, denial of food and/or sleep, prolonged detention and
relay questioning are no longer condoned by legal officials. By excluding
confessions that are the product of physically or psychologically coercive
methods, the courts have reformed police. interrogation practices. By in-
culcating higher normative and professional standards of conduct, the courts
have oriented police to the rule of law. As a result, the courts have largely
succeeded in policing the third degree out of existence. From a comparative.
perspective it seems remarkable, perhaps even revolutionary, that such dra-
matic changes have. occurred in the American legal system in so brief a period
of Cirri e,93
Prior to 1936, no single standard governed the law of confessions in state
cases. In that year, the Supreme Court held in Brown v. Mississippi that
confession evidence obtained through physically coercive interrogation must,
as a matter of federal constitutional due process, be excluded in all state
cases.' Brown. set in motion a revolution in the constitutional jurispruden.ce of
criminal procedure that culminated in the Miranda decision thirty years later.'
.?..! p k-!,.:.? : ....„.... ;..... ..,: .::....., ...
Although Miranda is the most famous confession cage•was Brown that
exercised the greatest influence on coercive interrogationkactices: Brown set
the standard for all comparable state and federal cases, effectively disallowing
any court in America to uphold confession evidence that was explicitly co-
erced, Four years later the Supreme Court ruled that psychologically coerced
53
confessions were equally inadmissible yi During the 1940s and 1950s, the
interrogation cases coming before the high court virtually all involved psycho-
logical forms of coercion, as it. began to exclude coerced confessions not only
because of their inherent unreliability, but also if they were obtained by police.
methods that "shocked the conscience of the community."' In its watershed
Miranda decision, the Supreme Court ruled that interrogating officers must
recite to suspects the now familiar fourfold warnings before custodial ques-
tioning could legally commence, The declared purpose of these newfound
constitutional requirements was to dispel the compulsion that., no longer
explicit, had become "inherent" in American police interrogation. By 1966,
the. Warren Court_ argued, custodial interrogation in America consisted of
manipulative psychological pioys that were designed to overbear the will of
criminal suspects_96
Ironically, perhaps, the case law of criminal procedure has functioned not
only to restrain coercive interrogation practices, but. also to sanction the use of
deceptive methods. Historically , the law of confessions has been almost exclu
sively concerned with the use of coercion — not deception — during interroga
fion. Although American courts have strongly condemned coercive tactics,
they have rarely, and often only indirectly, addressed the issue of trickery and
deceit .9' By failing to lay down many bright lines, the courts have indirectly
encouraged the police to engage in deceptive practices. One reason police
trick and deceive suspects is to circumvent the legal restrictions placed on them
by court rulings. Another reason is that deceptive ta_:tics are perceived to be
highly effective in eliciting admissions and confessions, As with undercover
police work, once courts restrict the use of coercion, police deception seems,
inevitably, to increase.
Conclusion
The study of police interrogation practices is sociologically valuable because it
illuminates the way in which power is exercised, compliance obtained, and
deviance controlled in. a society's criminal justice system. it is also one way to
track and study changes in civility norms over time. I have tried to describe and
explain the historical shift from coercive to deceptive styles of interrogation
during the last fifty to sixty years in America, a transformation in which the use
of force and duress to elicit confessions has given way to psychologically
sophisticated tricks, ploys, and stratagems. I have. argued that police profes-
sionalization, changing public attitudes, and the development of court-driven
legal doctrine largely account for this change. Where once the relationship
between the state and the accused was characterized by open antagonism in
the interrogation room, now it is more likely to be one of cooperation,
54
manipulation, and deception. Softer forms of social control are viewed as both
more fair and more effective than the harder forms they have replaced, Like
the developments in undercover policing analyzed by Gary Marx, police
power in interrogation has become more subtle, more indirect, more manip-
ulative, and more likely to be effectuated through psychological processes.
Yet the end control result remains the same.
Like. covert mean.s, the use of deceptive interrogation techniques poses
ethical dilemmas in a democratic society that is committed to the values of both
crime control and due process of law. Unlike coercion, deception is fraught
with moral ambiguity. -While physical violence during police questioning is
repugnant to modern sensibilities, there is little shared consensus about wlicre
to draw the line between permissible and impermissible deceptive police
tactics, for the use of deception raises more subtle, complex, and morally
vexing issues than physical coercion,11)D Yet, at the same time, as Gary Marx
recognizes, trickery may be the ..functionai equivalent of coercion, since both
strategies may induce involuntary behavior,11'i
As with cove,ri means, deceptive interrogation techniques may be a neces-
sary evil in modern society. Despite the high-minded reasoning of the Miranda
Court, confessions are. often the only incriminating evidence against a guilty
suspect . lc, 'Moreover, in a democratic society that values community participa-
tion in the legal determination of guilt, it is significant that confesions are
generally regarded by jurors as the most conclusive form of inculpatory
evidence.'"3 'To the extent that we view the appropriate function of the police
as one of enforcing laws and combatting crime, interrogatory deception be-
comes legitimate so long as it remains both fair and legal. indeed, the move-
ment from coercion to deception represents a triumph in the rule of law: as
police have become. oriented to the abstract and universal legal norms of due
process, they no longer resort to physical violence or other extralegal interrog-
atory practices. Nevertheless, although crime control imperatives may justify
its use, and although it may, be legally permissible in virtually all of its forms,
interrogatory deception in entails morally troubling social costs. The
effect of permitting trickery and deceit during interrogation may he:
— to officially sanction the manipulation and exploitation of human relation-
ships;
— to authoritatively encouragepolice to he in other contexts;}"
— to undermine public confidence and social trust;'
and, in some instances,
— to provoke false confessions.'')6
Whether or not we wish to accept these trade-offs, they compel us to think
more carefully about the nature and consequences of psychologically decep
tive, interrogation. For we are, indecd, caught on the horns of a genuine moral
dilemma.
55
Acknowledgement
For offering helpful comments and criticisms on earlier drafts on this paper, I
would like to than the following individuals. Egon Bittner, David Dixon,
Lawrence Friedman, David T. Johnson, Dan Krisiov, Gary Marx, Sheldon
Messinger, Roy Roberg, Peter Sarria, Jerome Skolnick and Samuel Walker.
Notes
1_ Ernest Jerome Hopkins, Our Lawless Police: A Study of the Unlawful Enforcement of
the Law (New York; Viking Press, 1933.),. p_ 200,
2_ William Hart, "The Subtle Art of Persuasion,' Police Chief, 1981 (January), 15-16.
3, Gary T. Marx, Undercover: Police Surveillance in America (Berkeley: University of
California. Press, 1988), p. 47.
4. Samuel. Walker, A Critical Iiistoi of Police Reform : The Einergenee of
Proreviontilism (Ken•ucky: Lexington..., 1977), p.a..
5. Marx, op. cit_
6. Jerome H. Skolnick, "Deception by Police." Carnincrifuslice Ethics, 1982
(SinurneriFan), 40-54.
7. This perception., which is widely arExptc....d axiornatic. among police trainersand
intellectuals, is supported by Alfred Biderman's research on prisoners of war, which
demonstrated that psychologicalfsurt
tss were. more efCecti've. at eliciting confessions than physical punish..;(..... ...,..
menl. SeeA.1*.,51D, Bidermitn, "Social Psychological Needs and Involuntary' Behavior
as
f
Illustrated by Compliance in Interrogation." Sociornelry., 1960 (23), 120-147_ .
8_ The State of Alaska requires, as a matter of sta to c.c_Institutional due. process, that all
custodial
interrogatioris be electronically recorded. See: Siephan 1J_ State, 711 P_2d 1156 (1985)_
9. Liva Baker, Miranda: Crime, Law, arid .Politic.s. (New York-. Athenum Press, 1985);
Freci P. Graham, The Self-Infticicd Wound (Nev York: Macmillan Company, 1970).
10_ Wi]liam A_ Wcstley, Violence and the Police: A Sociological Study of Law, Custom,
and Moratily (Carribridgc: [\t TI Press, 1970); Jercifne H. Skolnick, Jusfice TeVit•ow
Trial: Law Enforcement in a Democratk .Sociely. 2ndc...,dition (New York:. John Wiley
& Sons, Inc.., 1975); Robert Reiner, The i-}olitics of die Police (London: Basil Blackwell,
198.5).
11. Michael Wald, et al., "Interrogations in New Haven: The Impact of Miranda," Yale
Lim, Journal, 1967 (76), '1519-1648; Ned! Milner, The Court and Local Law
Enforcement: The impaci of Miranda (Newbury Park: Sage Publications, 1971).
12._ National Commission on Law Observance and Enforcement., "Report on
I....awle.ssness in Law Enforcement," 'Volume 11 (Washin.gtorr: United States
C+Overnment Printing Office, 1931)_ Hereinafter., "Wickersham Report"; Harvard
L(..Ew Review (1930), 617-62:3, 'I'he Third Degree.,,
13. Robert Fo gel s on , Big-City Police (Cambridge: Harvard University Press, 1977);
Sanipel. Walker, A Critical Hisory of Police Reform: The Emergence of Professionalism
(Kentucky: Lexington, 1977).
14. National Commission on Law Observance and Enforcement, "Report on. Lai.vless-
ne.ss in Law Enforcement," Volume II (Washington.: United Stares Government Printing
Office, 1931). liereinafter, "Wickersham Report."
15. Edwin Keedy, wInhe Third Degree and Legal Interrogation or Suspects,"
University of Pennsylvania Law Review, 1937 (85), 761-777_
56
16_ Edward Peters., Torture (New York: Basil Blackwell, Inc.. 1985); John Langbein,
Torture and the Law of Proof (Chicago: University of Chicago Press, 1.977); Amnesty in
t(-:1-n.gional, Torture in the Eighties (London: Amnesty international Publications, 1984).
17. Amnesty international, Annual Report (London: Amnesty International Public:obey-
RIF., 1990); Ibid, Amnesty International (1984); Ibid, Peters (1985),
18_ For exarnpk, 'Cordession at Gunpoint?", ABC News, 20/20, March 29, 1.991. See
also WelAh White, ".Defencling Miranda: A Reply to Professor Carlan," 39 Vander bill
Law Rev. jetvi 1986 (39), 1-22, footnote 73.
119. Charles Franklin, The Third De rue (Loodon: Robert flak, 1970), 50; Wickersham
Report,
op, di, . pp. 62.-63; Hopkins, op. cit. , p. 215; Harvard Law Review (1930), op. cit., p.
618. 20. Doc W. Sars, "Legal Consequences of the Third Degre..e." Ohio Static! Law
fo?...tinal, 1948
(), p, 515.
21_ Franklin, op. cit., p. 52.
22. Emanuel. La.vint.., The Third Degree: A Detailed and Appalling Expose of Police
Brutality (New York: Garden City Publishing, Co_ , 1930),. 3-5_
23. Franklin., op., cit.. , F. 42.
24. Marl.: I-LI-taller, "Historical Roots of Police Behavior: Chicago, 1890-1925," Law
& Society .Review., 1.976 (10), 319.
25, Wickersham Report, op. cit., p, 38; Franklin, op. cit., p_ 48; Haler, ibid,
26. 'Wickersham Report, op, cit., pp. 67-68.
27. Franklin, op. di..., F. 6I.,
28. Wickersham Report, op_ cit., p.118; Hopkins, op.. cit., pp_ 215-21.
?9. Hopkins, op. cit., p. 215; Lavine, op, cit., p. 152,
30. Hopkins, op. cit,, p. 21 9_
3 I _ Hopkins, op. cit. , p_ 2.20; Ariurvard Lou.' Review (1930), op. cit., p. 619_
32. I.,.nvine, op. cit., pp. 4, 61-65-
33.. Franklin, op_ cit,, p..6; Lavine, op. cit., pp. 61-62.,
34. Franklin, op. cit..,, p, 61.
35, Wickersham Report, op. cit., pp. 71-72; Hopkins, op_ cit., p. 25,
36. Wickersham Report, op. cit., p, 72.
37. Lavine, op. cit., pp. 7., 1.46; Franklin., op. cit., p. 51; Wickersham Report, op_ cit, ,
p. 72,
38. Wickersham Report, op. cit., „ p, 121.
39, Wickersham Report, op_ cit., p, 168; Hopkin!.:,, op, cit, pp. 130, 146; Harvard Law
Review (1930), op_ cit,, p, 620; Bates Booth (1930), "Confessions and Methods
Employed in Procurin Theni.„" Southern Cahfornia Low Review, (4), p. 90; Sears, op,
cit., p, 514.
40. Franklin, op. cit., p_ 53; IhVjckersliam Report, op, cit., p_ 69_
41. Booth, op_ cit., p, 99,
42. Wickersham Report, op, cit., p.157; Hopkins, op. cit., p. 190.
43. Franklin, op. cit., pp_ 49, 52., 54; WickeTshann Report, op. cit., pp, 63, 71.. 72_
44. Lavine., c_p, cit., p. 120.
45_ Franklin, op. cit., p. 53.
46. Wickffrsham Report, op. cit., p. 158_
47. Wickersham Rf,..,port, op, cit., p, 206,
48. Sec Walker, op_ cit., p, 58.
49.. To be sure, some suspects were still physically beaten or hit with rubber hoses, but
the emphasis shifted to psychological strategies relying on [car, intimidaLion, duress, and
exhaustion_
50. As Marx recognizes, Chest changes may be related to an increased conic-urn with.,
atiti general decline.. in, the use. of capital punishment, corporal punishment and larnily
ami sexual violence_ See Marx., op. cit.., I). 231 and footnote 42., p. 272.
57
51_ Norbert Hlin.s, The History of Manners: The Civilizing Process, Volume 1 (Ox[or(1:
Basil Blackwe]l, 1978); and Norbert Elias, State Formairion and Civilization: l'he
Civilizing Proce,vs, Volume 2 (Oxford: Basil flIackweit., 1982.). (Originally published ire
1939, Basel'. Hans Zurn Faiken,)
52.. Lawrence Friedman, personal communication, December 27, 1991..
53, Gary T. Marx., The TrIterweaving of Public and Private Police in Undercover Work,"
in Clifford D. Shearing arid Philip C, Sienning (eds.), Private Po!icing (Newbury Park:
Sage Pubrica.tions., 198.7).
54. Marx (1988), op_ cit.., p. 2,
55. A few social ;-.1m.1 clinical psychologi.sts have studied how 1.1-K... processes. of
influence, p ersuas.ion, arid rruiluipulation (luring interrogation combine to exert
pressures on the suspect to confess. See Edwin I)river, "Confessions and the Social
Psychology of Coercion," _Harvard La .Review, 1970 (82), 42-6i ; Philip ZirnImrdO.,
"Coercion and CompIiartee: The Psychology of Police Confessions," in C., Perucci and
IBC_ Pilisuk, The Triple Revohilion (Boston: Little, Brown, 1971)., 492-508; Gisli II.
Ciudjonsson, "Suggestibility in. Police interrogation: A Social Psychological M.odel„"
Social Behavior, 1985 (1), 83-94; and Richard J. Ofshc-, "Coerced. Con[es!....iion,..i: The
Logic of Seemingiy Irration.a] Action," Cultic Studies Journa1,1989 (6), 6-1.5.
;56_ Citf.-.....cl in Gerald Caplan? "Questiouing Miranda," Vanderbilt Law Review, 1985
(38), 1458,
footnote an .
57.. This section draws from Jerome H. Skolnick and Richard A. Leo "The Ethics of
Deceptive Interrogation," Criminal Justice Ethics. forthf.:_orning.
58. Orozcol.... Texas, 394 U.S.. 324 0969).
.59.. See Beckwith v_ Uniied Slates, 425 U.S. 341 (1976), Oregon v. 114alhias6n, 429
U.S. 492 (1977), and California, 463 U.S. 1121 (1983).
60. In a recent case, the Supreme Court ruled that an incarcerated individual was not in
cu.stady for purposes of Arfiranda! Ifv, Per 110 S.Ct. 2.394 (1990).
1. However, police may dice ire. an attorney who attempts to invoke a suspect's-
constitutional rights., as to whether the suspect will be interrog,ated, and the police do not
have to ititorm a suspect that a third party has hired an attorney on his behalf. Moran v.
&II-bine 475 U.S. 41.2,
62. People V. Honeyruit (1970) 570 P.2.d 1050.
63. See Otis H. Stephens! Jr., The Snprome Cour, and Confessions of Guth (Knoxville:
University of Tf..m.nessee Press, .1973), 165-200_
64. Colorado r'. Spring, 107 S.Ct. 851 (1987).
65, Robert F. Royal and Steven R. Schutt, The Gentle A rI of In arid Interrogation: A
roicis.s-ional Manual and Guide (Nciiiv Jersey: Prentice-HaR, 1976).
66. This method lies at the heart of the inte.rrogation mEthods propounded the leading in-
terrogaion training manual in the United States_ See Fred E. In.bitu, John E. Reid, arid
Joseph P, Buckley, Criminal Interrogation and ConAissions, Third Edition (Baltimore:
William & Wilkins, 198).
67 _ Bra m v, United States, 168 U.S. 532 (1897).
68. Miller v. Fenton, 796 E.2d 598 (1986).
69. Judy Hails Kati and George E_ Rush, (February-March, 1988) "At What Price.
Will We 1) tai El Conressions," Judiraftere, 1988 (71: Febr./March), 256-2,57.
70. Marx, op_ eft_ , pp_ 2, 62,
71_ The distinction I have drawn in this paper between role-playing and
rnisrepresentation.s of identity corresponds to the difiere.rice in the law of rape between
"fraud in the indkiremen(" (misrepresentation as to the indumment for submitting) and
"fraud i 11 I- 1
_n _le ...ac.,_11.11-1" (misrep-
58
resenta.tion. of the nature of the act).. 'While the Latter iiu be grounds for prosecution in
rape cases, the former may not be.
72. Op_ cit., Illinois- v, Perkins,
71 See Fred Cohen, "Miranda and Police Deception in Interrogation.; A Comment on
Minor's v. Perkifis.:' Criminal Law Bulletin, 1990, 534_546,
74, Scc David Lykken, A 'Trertior in the Blood: Uses and A buses- of the Lie-Detector
(Neivivi York: McGraw-1E1,1981).
75. Welsh S. White, "Police Trickery in Inducing Confessions," University of
Pennsylvania Law Review, 1979 (127)„ 581-629,
76.. Hart, op.. cit, p.7,.
77 .. Fogelson, op, cit.
78,. Sec Haller 0976), op. cit.
79. Fogelson, op. cit.
80. David R _ Johnson, A?nericaei Law P.:nforrement: A History (St.. Louis: Forum
Press., 19 I ); Eric Monkonnen, Pi./ice in Urban An2crica, 1860-1920 (London:
Cambridge Univc.i.sity Press, 1981).
1- Richard Hofstadter and Michael Wallace, eds.., American Violence.. A Docicrneniary
History (New York: Vintage, 1971) ; see also Ted Robert Gurr and Hugh Graban-i, eds.,
Violence in America: Historical and Comparative Perspectives (Beverley Hills: Sage.
Publications, 1979),
82.. Fogelson, op, cit.; Johnson, op. cit..
83. According to Sarnuet Walker, "This represented a hisioric shift in public attitudes
toward the Police• rthe informed and articulate public.; was no lunges- willing to tolerate
the -misconduct that hall been a part of Arnerican policing for co long.." See SEinitiel
Walker, Popular Justice: A History of AmericanCriminal Justice. (New York:. Oxford
Unive.rsity Press, 1980),
84, Walker (1977), op. cit.
85. Friedman, op_ cit. .•.-
86. Melvin Purvis, American Ageia (New York.: Garden City Puhlishing, 193€). Cited
in Marx 0988), op.. cit.., p. 46,
87. Thomas J_ Deakin, Police Professionalism; The Renaissance of Law Enforcement
(Spring fielii: Charles C. Thomas, 1988),
88. James Q. Wilson, Varieties of Police Behavior; The Marlagement of Law and Order in
Eight Corrirnunitie..i. (Cambridge: Harvard University Press, 19168).
89, William. A_ Westley, Violence and the Police,' A Sociological Siudy of Law,
C.:Liston-2, and Moralhy (Cambridge: MIT Press, 1970), chapter 4.
90_ Cited in Miranda v. Arizona, 384 U.S. 436, 44( (1966).
91. Wald, et aL., op. eit„
92. Wilson, op, cit., p. 48.
91 Caplan (1984), op, cit.
94. Brown v. Mississippi, 297 U.S... 27 (1936)..
95. Mfr aura v.. 11.rizona, 384 U,S. 436 (1966).
96. Chambers v. Florida, 309 U_S_ 22? (19401-
97, ochin v. People of the State of Calxfornia, 342 U.S. .1 0952.).
98. Miranda, op, cit.
99. See Daniel W. Sasaki, "Guarding the Guardians: Police Trickery and Con
Cessions," Stanford Law Review., 1989 (40), 1593-1616,
100. Jerome H., Skolnick and Richard A. Leo, "The Ethics of Deceptive
Interrogation," in john Bizzack,, ed., /s cues in Policing: New Perspectives. (Ltxington:
Autumn House Publishing, 1992).
101. Marx (1988), op_ cit,, p.1.30_
102. David M_ Nissman and Ed Hagen, eds., The Law of Confessions (San Francisco:
Bancroft-
0.
59
hitney, 1985); Fred E. Inbau, "Police Interrogation — A Practical Necessity." Journal of
Criminal Law, Crimino1ogy and Police Science, 1961 (52); According to Zimbardo,
police claim t- at as many as 80% of their cases arc. solved by confessions_ Zimbardo
(197 I ), op. cit.
_ 503.
.103. 5.1vI, Kassin and L.S. Wrigbisina-n, "Confession Evidence," in S. M. Kassin and
L.S. rightsman, eds., The Psychology of Evidence and Trial Procedure: (Neirybury Park :
Sage Publication, 1985), 67-94.
104, Skolnick (19g2), op.. cit.
105. Sis:i7x.q.o. Bak... Lying: A4c)ral Choice in Public and Private Life (New York:
Vinta.ge Books, 1978)_
106_ Kassip ...10(1 Wrights-num., op ci.t_ ; Gudjons..son, op_ cit.., Ofshe., op. cit..:
Eimbardo, op. cit.