To: Wisconsin Criminal Justice Study Commission

To: Wisconsin Criminal Justice Study Commission From: Byron Lichstein, staff attorney 5/1/06

RE: Law and practice in other countries concerning police interrogation

At this Commission’s meeting on 2/23/06, several members requested further information about the law and practice in other countries concerning police interrogation. This memo summarizes my research on that topic. I have focused on examples of other countries that provide greater protections against false confessions than America does, and therefore this memo does not include examples of countries that provide lesser protections.

I. The United Kingdom

Statutes and court decisions

In response to a series of proven false confessions, Britain’s legislative body passed the Police and Criminal Evidence Act (PACE) in 1984.1 PACE states that,

If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained—

a) by oppression of the person who made it; or

b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.

A few points about this statute warrant further discussion. First, several of the statute’s vague terms (such as the term “oppression” and the phrase “likely to render the confession unreliable”) have been clarified by British court decisions. A few significant cases include:

R v Mason [1987] 3 All E.R. 48l: Interviewer obtained defendant’s confession by falsely telling defendant and defendant’s lawyer that his fingerprints had been found at the crime scene. Court held that evidence obtained through this 1 See Tom Williamson, “Towards greater professionalism: minimizing miscarriages of justice,” p. 150-153 in “Investigative Interviewing: Rights, Research and Regulation,” edited by Tom Williamson, Willan publishing (2006).

1 deception was inadmissible, and further stated: “[W]e hope never again to hear of deceit such as this being practised on an accused person, and more particularly possibly on a solicitor whose duty it is to advise him, unfettered by false information from the police.”

R v Kirk [2000] 1 WLR 567: Defendant questioned about a bag-snatching, but not told that the victim eventually died as a result of injuries sustained during the crime. Because defendant was deceived about the potential severity of the charges against him, his confession was held inadmissible.

R. v Glaves [1993] Crim.L.R. 685: Under questioning by police, a 16 year-old denied involvement 9 times, but the interviewers did not accept his denials and repeatedly pressured him to confess. The court excluded the confession under the “oppression” and “unreliability” prongs of PACE.

R. v Paris (1993) 97 Cr App R 99: A man of low intelligence was interviewed over a period of 13 hours, and denied participating in the crime over 300 times. Interviewers refused to accept his denials, shouted at him, told him that the interrogation would continue until he “got it right,” offered him scenarios under which he might have committed the crime but forgotten it (such as the possibility that he might have committed the crime in a drug-induced state), threatened him with a life sentence, exaggerated evidence against him and falsely claimed that his alibi had been “blown away,” and, after he had admitted involvement, provided him with details of the crime so that he could repeat them back to the interviewers. The court concluded that all of these factors contributed to the conclusion that the confession was obtained through “oppression” and under circumstances likely to render it unreliable.

R v Cox [1991] Crim. L.R. 226: A confession was deemed unreliable because the confessor had an IQ of 58. In at least two other cases, R v McKenzie, [1993] 1 WLR 453, and R v Wood, [1994] Crim LR 222, British courts have relied heavily on the confessor’s low intelligence to conclude that a confession was made under circumstances likely to render it unreliable.

PACE’s approach to reliability is different than the approach taken in this Commission’s draft rule. Although the focus of PACE (like the draft the Commission will consider) is on reliability, PACE (unlike the Commission’s draft) does not allow British courts to consider whether the confession that resulted was actually reliable; instead, PACE limits British courts to considering whether the circumstances that preceded the confession were likely to render it unreliable. In other words, a confession obtained using methods that increase the risk of unreliability cannot be saved by proof that the resulting confession was reliable.2

Finally, it should be noted that the above statute imposes a more demanding burden of proof on the prosecution than the burden imposed by the draft the Commission 2 See Peter Mirfield, “Silence, Confessions, and Improperly Obtained Evidence,” p. 99, Oxford University Press (1997)(discussing cases illustrating this principle).

2 will be reviewing. For the British statute, once a defendant alleges that the confession was obtained through oppression or behavior by the interviewer likely to render the confession unreliable, then the burden shifts to the prosecution to disprove the defendant’s claims “beyond a reasonable doubt.” This is a more difficult burden than the “preponderance of the evidence” burden imposed on the prosecution by the Commission’s test.

“Codes of Practice” for questioning suspects

Apart from the text of PACE and cases interpreting it, the British government also implemented “Codes of Practice” designed to give police specific rules for interviewing suspects. Several noteworthy provisions state:

No police officer shall indicate, except in answer to a direct question, what action will be taken on the part of the police if the person being interviewed answers questions, makes a statement or refuses to do either. If the person asks the officer directly what action will be taken in the event of the person answering questions, making a statement or refusing to do either, then the officer may inform the person what action the police propose to take in that event provided that the action is itself proper and warranted. PACE, Code C, “A Code of Practice for the Detention, Treatment, and Questioning of Persons by Police Officers”§ 12.3.

A juvenile or a person who is mentally disordered or mentally vulnerable, whether suspected or not, must not be interviewed or asked to provide or sign a written statement in the absence of the appropriate adult unless there is an immediate risk of harm to other persons or serious harm to property. § 13.1.

It is important to bear in mind that, although juveniles or persons who are mentally disordered or mentally vulnerable are often capable of providing reliable evidence, they may, without knowing or wishing to do so, be particularly prone in certain circumstances, to provide information which is unreliable, misleading or self-incriminating. Special care should therefore always be exercised in questioning such a person, and the appropriate adult involved, if there is any doubt about a person’s age, mental state or capacity. Because of the risk of unreliable evidence it is also important to obtain corroboration of any facts admitted whenever possible. § 13B.

In any period of 24 hours a detained person must be allowed a continuous period of at least 8 hours for rest, free from questioning, travel or any interruption arising out of the investigation concerned. This period should normally be at night. The period of rest may not be interrupted or delayed unless there are reasonable grounds for believing that it would (i) involve a risk of harm to persons or serious loss of, or damage to, property; (ii) delay unnecessarily the person’s release from custody; or (iii) otherwise prejudice the outcome of the investigation. § 11.2.

3 Breaks from interviewing shall be made at recognised meal times. Short breaks for refreshment shall also be provided at intervals of approximately two hours, subject to the interviewing officer’s discretion to delay a break if there are reasonable grounds for believing it would (i) involve a risk of harm to persons or serious loss of, or damage to, property; (ii) delay unnecessarily the person’s release from custody; or (iii) otherwise prejudice the outcome of the investigation. § 11.7.

An officer not below the rank of Inspector will formally review the circumstances of the detention of all persons held in custody without charge within 6 hours of their detention. He or she will endorse the custody record and may authorise further detention up to a maximum of 9 hours from the time of the review where appropriate. Further reviews may be conducted by a review officer extending periods of detention to a maximum of 24 hours from commencement of detention. An Inspector may, in addition, informally review the circumstances of the detention of all persons in custody at least once during their tour of duty, endorsing the custody record. § 16.4

The detention of any person for a period in excess of 24 hours must be authorised by an officer of the rank of Chief Inspector or above, and the custody record will be endorsed to that effect. The officer conducting that review will endorse the custody record and may authorise further detention up to a further 12 hours from the time of the review. § 16.5.

Training on interviewing

Please see the attachment titled “Article_on_British_interviewing” for information on British training concerning interviewing.

II. Italy

In Italy, a defendant’s statement to police (custodial or otherwise) cannot be admitted into evidence unless defense counsel was present during the questioning.3 However, the fruits of the statement may be admitted regardless of whether counsel was present.4

III. Germany

3 Stephen C. Thaman, “Miranda in Comparative Law,” 45 St. Louis L.J. 581, 592-3 (2001). 4 Personal communication with Stephen Thaman, 4/13/06.

4 In Germany, a statute explicitly prohibits police from using “deceit” during an interview with a suspect.5 If deceit is used, any statement made during the interview is inadmissible. However, the fruits of such statements are generally admissible.6 German law also requires that the accused should be allowed a full opportunity to remove any suspicion against him and point out those circumstances which are favorable to his defense.7

IV. Spain

In Spain, no evidence produced by custodial questioning can be admitted unless defense counsel was present during the questioning.8 However, evidence produced from non-custodial questioning can be admitted if the suspect is advised of his/her right to a lawyer and right to remain silent and validly waives those rights.9

5 German Criminal Procedure Code, Section 136(a)(1). 6 StV 3/98, at 119, 120-21; and Personal Communication with Ralph Grunewald (German criminal defense attorney), 4/17/06. 7 Barbara Huber, “Criminal Procedure in Germany,” chapter at p. 118 in “Comparative Criminal Procedure,” ed. by John Hatchard, Barbara Huber, and Richard Vogler, 1996. 8 Stephen C. Thaman, “Miranda in Comparative Law,” 45 St. Louis L.J. 581, 593 (2001). 9 Id. & personal communication with Stephen Thaman, 4/13/06.