POLICING IN CENTRAL AND EASTERN EUROPE: Comparing Firsthand Knowledge with Experience from the West,
© 1996 College of Police and Security Studies, Slovenia


DEFENCE STRATEGIES AND TECHNIQUES OF INTERROGATION: RESULTS OF EMPIRICAL RESEARCH

Darko Maver

Regardless the ever more important role of real evidence and forensic laboratory expertises in contemporary criminal proceedings, the information that suspects/defendants give to police, investigative magistrates and judges are still of greatest value, so from gnoseological (hevristical) as from legal point of view.

The research conducted by the author focused on how statements of suspects change in pre- trial and trial procedure, what are the reasons for this changes, what is their role for the position of defendant and what can be done to avoid mistakes in interrogation. One hundred criminal cases of murder, robbery, rape and burglary were selected and statements of offenders were analysed: from the first statement to police officer, through the phase of investigation to testimonies at the trial.

It was proved that statements change during the investigation, that they differ with different criminal offences, different types of offenders as well as different investigative situations. It can be said that offenders develop typical defence strategies that are also changing according to available evidence, legal position of offender, time, rationalisation and other psychological factors etc. It is a clear tendency that the longer the investigation, the more different are the statements, with minimising the guilt of defendant, maximising the provocation or contribution of the victim, bringing up details that are in clear favour of defendant and cannot be really denied by police or prosecutor (therefore - in dubio pro reo).

It is important that with having these typical strategies of defence in mind, the police and investigators could avoid mistakes and with good interrogation techniques and correct questions from the beginning of investigation prevent later successful false defence. The role of penal procedural law must also be considered as important factor and Slovenia has some unique provisions that make situation even more complicated.

1 INTRODUCTION

In general it could be argued that the techniques of criminal investigation used in different European countries in the pastand in the did not differed much in their practical use. However, they have been more or less publicly exposed and known to the general population (and even to professionals in the field of Criminal Justice) and explained as such in professional literature. Therefore, mostly from political reasons, it was possible to talk about the "socialist" in contrast to the "capitalist "criminalistics, their different nature, methods and goals etc. 1

Even the name of the science, it's status, structure, methodology and role in criminal procedure differed considerably, which becomes most obvious by examining relevant literature in East, West or Central European countries.It was also quite 2 clear that the socalled "socialist" criminalistics was mostly theoretically, politically and philosophically oriented, while in the West European countries they basically looked for its practical applications.3 The integration of both orientations is, in my opinion, most evident in the current German criminalistics, where the theory is combined with practice.4 In other words, in Eastern Europe the focus of scientists was on theoretical issues (including the classical tripartite classification of criminalistics to criminal investigation technique, tactics and methodic), while on the West they were trying to develop (for the most efficient practical use) a so called "scientific police".5

As already mentioned, in the recent years the general orientation of studying crimialistics has changed and become more practically and less theoretically based. Yet, the two main fields of criminalistics are still present: the scientific (forensic) and practical investigative area.

Regardless of the ever more important role of real evidence and forensic laboratory expertises in contemporary criminal proceedings, the information that suspects/defendants give to the police, investigating magistrates and judges are still of the greatest value, so from gnoseological (heuristic) as from the legal point of view.

No matter how important are latent fingerprints, body fluids (blood, saliva, odour, etc.), traces of nails, hair and other parts of the body or clothing or personal belongings to identify a perpetrator, it is still very important what the suspect/defendant himself tells about the crime he had committed.

The famous O.J.Simpson case is the best proof, how even the most convincing circumstantial evidence is not enough for a conviction if there is no direct personal testimony or even confession. The only possible reason why Simpson himself did not testify is - because he was guilty.6

The purpose of a research study conducted by the author was to establish how statements of suspects change in pre-trial trial procedure and trial, what are the reasons for these changes, what is their role for the position of a defendant and what can be done to avoid mistakes in interviews and interrogation.

Since there are some important differences between a criminal procedure in Slovenia regarding statements given by a suspect to the police, investigating judge and the trial judge and the related legislation in other countries, it could be interesting to explain the results of research more in detail for further comparison.

We are sure, however, that many of our findings apply also to other legal systems and are therefore comparable to similar studies carried out in other countries.

2 THE PURPOSE, METHODOLOGY AND HYPOTHESES OF A RESEARCH STUDY.

As previously mentioned, the main purpose of research was to find out what kind of statements give suspects to the police and judicial authorities, if (or how) these statements change during the different phases of procedure, what are the possible reasons for these changes, what is their effect upon the legal position of a defendant and what can be done to avoid some mistakes in interviewing and interrogation techniques of suspects and defendants. In other words, police and magistrates should see the results of their interviewing or interrogating suspects from the view of final decision of the trial court and verdict to get a feed back which would enable them to improve their work.

A method of case studies, interviews, examination of literature and observation of ongoing cases was used. 100 criminal cases which ended with conviction were randomly chosen and all statements of offenders from their first interview with the police to the final statement during the trial were analysed. Among these cases there were 25 homicides, 25 rape cases, 25 burglaries and 25 robberies. Since the method of case study was used we did not make any statistical evaluations. A large number of police officers, detectives, examining magistrates and judges was interviewed and asked about their practical experiences. Besides that, the relevant literature from the field of criminal investigation, psychology, forensic psychology, criminology, criminal procedural law, sociolinguistics etc. was examined.

The basic hypotheses were:

3 TYPES OF STATEMENTS AND THEIR ROLE IN INDIVIDUAL STAGES OF PROCEDURE

In general, the statements that the suspect/defendant can give to investigators (verbally, with gestures, with silence etc.) can be classified as:

Each of them has a lot of aspects and a very complicated structure, so it could be discussed in a separate paper. There are many open questions, like:

Finally, and of utmost importance is, in which stage of investigation and to whom the statement is given. To the police in their informal procedure? To the investigating magistrate during formal criminal investigation? Or at the trial itself?

There are also differences regarding investigative situation.8

At the beginning of many investigations, it is not clear, whether a certain person is a suspect or a witness, whether he/she has any information about a criminal offence, and if so, of what kind, nature and of what extent.

It is only later that the statements can be checked and proved as true or false, put more in detail or corrected. And which statement is more true - the first one given right after the offence happened, or the one given maybe weeks, months or even years later at the trial?

Sometimes it is very clear who is the suspect or witness, other times it is more important to get a clue, a hint, who could be either of them.

So, the police is normally faced with the minimum of information about the suspect and its role is primarily heuristic: to find all possible information: what happened, where, when, who did it etc.9

The role of the investigating magistrate or trial judge is more oriented towards details and gives more emphasis on checking formal evidence.

So, we come to the next important question: how the statements change during the proceedings, why and if there is any certain pattern in these changes.

4 CHANGING OF STATEMENTS AND TYPICAL DEFENCE STRATEGIES

In our empirical research we have analysed statements given by suspects and defendants in all stages of investigation. From the first statement to police a officer or detective to the formal statement given to a judge or to the jury at the trial.

We have tried to find out not only the changes in statements given to the same or different authorities (for example to the police in several interviews, to the investigating magistrate during different interrogations or at the trial) but also the patterns of such changes and reasons for them. In other word, we tried to determine the "typical defence strategies" of suspects and defendants.

In general, we found differences in statements given to the same agency ( the police, investigating magistrate, trial court) during more interviews or interrogations. They differed from minor changes to completely different statements (guilty - not guilty). Sometimes the suspect would tell one story to the police officer, change it while talking to the detective, give it the other way while being again interviewed etc. The same could be said for several interrogations before investigating magistrate or even on different trial sessions.

But the changes were even greater at different stages of criminal procedure. As expected, the major changes of statements happened in front of the police and judicial officials. The suspect confessed to the police (mostly right after the offence or when arrested) and denied it in interrogation before the judge. The longer the procedure and trial, the more different were the statements. This was quite normal and rational, especially regarding our code of criminal procedure, where statements given to the police have no legal value, while statements given at interrogation before investigating magistrate have a status of evidence.

It was interesting to notice that the changes were, of course, mostly in favour of the accused. Sometimes he would remember much more in accurately the facts that were in his favour even years after the offence happened, the other times he would forget incriminating details as time passes. Almost in all cases he would put more blame and responsibility on the victim.

The reason for these changes can be different: a shock immediately after the offence, police brutality, rationalisation that came later on, advice of the attorney, lack of memory, new evidence found (or lost), feeling of guilt, different legal situation etc.etc.

The important heuristical and legal question is which statements could be more truthful: those given right after the event or those given weeks or months later, especially having in mind also the institution who is responsible for taking the statements (police or court officials). There are arguments for both options. 10

Are there typical defence strategies and their changes for different kind of offences?

Our research confirmed this assumption. We chose four criminal offences, three that presume strong personal contact between the perpetrator and his victim (homicide, rape, robbery) and one that is more or less impersonal (burglary).

Rape is a very personal criminal offence, since the contact between a perpetrator and victim is extremely close. So is a homicide and partly also a robbery. This is important not only from the point of view of possible physical (real) evidence, but also because of more emotional contact between a victim and perpetrator.

In cases of rape there are two basic investigative situations: the suspect would either deny any contact with the victim, or say that the victim had sexual relations with him voluntarely. In the first case, the offender would be probably unknown to the victim, while in the second, the victim and offender knew each other. In the first case it is important to prove physical contact between them (real evidence) and in the second the unwillingness of victim to have sexual relations with the suspect.

Especially problematic is the second kind of investigative situation. Even in cases when the offender was virtually taken off the victim, it was still hard to prove the criminal intent and rejection of the victim.11 The blame is usually put on victim, either that she encouraged the sexual act or that she was willing to do it, or that she was "known as a whore". There are several cases to prove this.12. The longer the trial, more blame is put on the victim.

Homicide is (usually) also very personal criminal offence. The typical strategies of defence in these cases are:

The strategies of defence vary according to the situation: denying being at the scene, blaming the victim or others, reducing the guilt etc. Sometimes it comes to the absurd situations: the defendant first confessed that he killed the victim by stabbing him with the knife.13 Then, he said that the victim was insulting him and made him so angry that he stabbed him. After that, he claimed that the victim threatened him, so he acted in self defence. And, finally the accused said that the victim accidentally fell on his knife.

A similar situation is in the cases of robbery. The offender will:

There is a special situation in cases of burglary. The offences are usually non-personal and there is no contact between the victim and offender. The offender is usually caught later on with or without the stolen goods.

The typical defence strategies are therefore:

The changes in statements can be totally different (to deny what he had already confessed) or only partly changed.

5 DEFENCE STRATEGIES AND TECHNIQUES OF INTERROGATION OR INTERVIEW

The basic question regarding the defence strategies and changes of statements during criminal proceedings is: is it possible to prevent false, unadequate or misssing statements with good interviewing and interrogation techniques?

Or, in other words, is it possible to preview all the facts that he accused will use in his favour at the trial at the earlier stage of investigation and in that way prevent him to use such kind of defence strategy? Can the investigator imagine all the possible excuses of the suspect or defendent and pose the right questions to him still on time?

It has been proved in many cases that the accused remembered during the trial (even after years) more and more details that were in his favour and which no one could deny with good argumentation because these facts were not searched for, found and documented at earlier stages of investigation.

Why? Because nobody thought about them, because nobody thought that the suspect would use such arguments later at the trial, because the investigators did not know the typical defence strategies of offenders for specific criminal offences.

And here is the trap. The investigation, including the interviewing and interrogating of the suspect or defendant, does it usual routine way. There is no feed-back what is the result of all these efforts, so no one can really say what to do to make it better.

But our short and only partial research has shown, that the mistakes are done, they are done in earlier stages of investigation and they cannot be corrected later on, because it is too late. What was gone, was gone for ever.

Therefore, we think that it is important, on the one hand, to make further research about typical defence strategies of offenders during criminal procedure and their changes, and, on the other hand to pay more attention to interviewing and interrogation techniques to prevent successful false defence of the accused.

From this view, the intuitive and logical thinking of investigators, the making of several versions or hypotheses of the offence and offender is of utmost importance for conducting good and successful investigation and to avoid mistakes that cannot be corrected. Everything that is missed during investigation can be turned in favour of the perpetrator. Why make him this favour? It is not only the question of proper interview or interrogation but also of other investigative acts like: crime scene investigation, reconstruction, forensic expertise, etc.etc. The main purpose is to avoid the mistakes that cannot be corrected later.

We believe that experience and the use of successfull but legitimate interrogation and interview techniques can help a lot to avoid mistakes and to make investigation more efficient.

The cognitive inteview, different tactiqes of interrogation, also cross examination can help to find the truth.

Even though there are some speifics in Slovenian criminal procedure which make the task of investigators very difficult, there are already attempts to change the questionable 83 article and to give the role of the evidence also to the statements given to police during interviews, if accused was given all the proper instructions and guarantees (like Miranda warnings). It is, in our view. strange to give the suspect double protection, like he has now. Even in the case, that the suspect admits the crime to the police in the presence of his lawyer and is fully aware of the situation, his confesssion should be admitted as the evidence on trial - or else he should be denied of the priviledges he has as a suspect.

There are many cases that we have examined where mistakes in interviewing or interrogation were found, mostly because of the routine work of the investigators. These could be eliminated with better training.

Also, since the statements of suspects/defendents changes because of different reasons (another agency, change of situation, new evidence etc.etc.) it is much more important that the investigator reviews and analyses well all the previous statements and the reasons for them and use the methods and techniques to check the truthfulness of the answers through all posssible investigative tactics.14

Not last, the transfer of communication from one officer to the other or from one agency to the next is very important. Written reports have many insufficiences and lot of information is lost or wrongly interpreted. There is, therefore the "information deficit" if persons who conduct the interview or interrogation change. Also the characteristics of changing verbal to written statement must be put into account.

There is, unfortunatelly, not enough time to go into the details of our research but the general explanation has shown the problem and obstacles. We could have demonstrated our statements with many details from 100 files that we have examinded. Sometimes, I must admit, the stories were strange if not funny.

So, everything is possible and unfortunatelly many things cannot be corrected later on.

6 CONCLUSION

It was proved that statements of offenders change during the investigation, that they differ with different criminal offences, different types of offenders as well as different investigative situations. It can be said that offenders develop typical defence strategies that are also changing according to available evidence, legal position of offender, time, rationalisation and other psychological factors etc. It is a clear tendency that the longer the investigation, the more different are the statements, with minimising the guilt of defendant, maximising the provocation or contribution of the victim, bringing up details that are in clear favour of defendant and cannot be really denied by police or prosecutor (therefore - in dubio pro reo).

It is important that having these typical strategies of defence in mind, the police and investigators could avoid mistakes and with good interrogation techniques and correct questions from the beginning of investigation prevent later successful false defence. The role of criminal procedural law must also be considered as important factor and Slovenia has some unique provisions that make situation even more complicated.

Fortunately, there are already proposals to change some of the mentioned provisions and to improve the situation.

The criminals have no limits. They have no law, no borders, no morale. The other side, the law enforcement and justice institutions have a lot of limits. It is, of course, necessary to implement human rights and strictly apply the law, but on the other hand, to put this to the extreme (like it is done in many countries in the name of "new democracies") is also negative, not only for individuals but also for the whole society.

NOTES

  1. The author found out this by himself while studying Soviet Criminalistic for 3 months in St Petersburg in 1983. The most prominent criminalists that defended that stand were: R.S.Belkin, A.M.Larin, I.M.Luzgin, A.R.Ratinov.N.A.Selivanov, A.N.Vasilev, etc.

  2. Vodinelić,V.: Kriminalistika:otkrivanje i dokazivanje. Skopje, 19-- in Maver,D.: Kriminalistika na prehodu v 21. stoletje

  3. Maver,D.: Kriminalistika na prehodu v 21. stoletje...

  4. Kriminalistik št.5, more about this: Leonhardt & Schurich

  5. In the West they often talk about "police scientifique", "Forensic Sciences", "criminalistics" etc. meaning only the so called criminal Technique.

  6. Bugliosi,V. Outrage,p.25

  7. Maver,1988, p.61-64, also:Kassin and Wrightsman,p.68,69

  8. Maver,D: Kriminalistični spoznavni proces, s.64-73

  9. so called 9. golden questions of criminalistics (Vodinelič, 1985)

  10. Maver, 1988, p.138-142

  11. case: P.K. (267/86 Ljubljana)

  12. cases: I.K. (II.K. 267(86) Ljubljana, O.S.(IIK 618(82) etc.

  13. case T.A (VK no. 126(87) Court of Ljubljana.

  14. FBI:Interviewing and Interrogation, FBI Academy, 1996


Table of Contents | Child Sexual Abuse Investigations: A Joint Investigative Approach Combining the Expertise of Mental Health and Law Enforcement Professionals

The HTML conversion of this chapter was supported by the
National Institute of Justice/
National Criminal Justice Reference Service
Washington, D.C.