Poll Ulerh of COURT SUPREME COURT UF OHIO MEMORANDUM in SUPPORT of RECONSIDERATION

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, Case No. 2012-2109 Plaintiff-Appellee, On Appeal from the Hamilton V. County Court of Appeals First Appellate District KENYA GILLIAM, Hamilton County Court of Appeals Defendant-Appellant. Case No. C-110587

APPELLANT KENYA GILLIAM'S MOTION FOR RECONSIDERATION

JOSEPH T. DETERS OFFICE OF THE OHIO PUBLIC DEFENDER Hamilton County Prosecutor

JAMES MICHAEL KEELING # 0068810 KENNETH R. SPIERT # 0038804 Assistant Hamilton County Prosecutor Assistant State Public Defender (Counsel of Record)

230 East Ninth Street, Ste. 7000 250 East Broad Street - Suite 1400 Cincinnati, Ohio 45202 Columbus, Ohio 43215 (513) 946-3178 (614) 466-5394 (513) 946-3021 (Fax) (614) 752-5167 (Fax) [email protected]

COUNSEL FOR PLAINTIFF-APPELLEE COUNSEL FOR DEFENDANT-APPELLANT STATE OF OHIO KENYA GILLIAM

NOR ^b -poll ULERh OF COURT SUPREME COURT UF OHIO MEMORANDUM IN SUPPORT OF RECONSIDERATION

A. This Court should reconsider its decision denying review, because the propositions of law are vitally important to ensuring accurate determinations of guilt and innocence.

The trial court found Kenya Gilliam guilty of committing horrible crimes and sentenced her to life without the possibility of parole, plus four consecutive life sentences, on a record that casts grave doubt on the accuracy of the guilt-determination. This Court should reconsider its March 13, 2013 denial of review because Kenya's case is a disturbing example of how the doctrine in State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, and State v. Treesh, 90 Ohio St.3d 460, 2001-Ohio-4, 739 N.E.2d 749, undermines the accuracy of guilt/innocence findings by eliminating the requirement that Ohio courts consider the totality-of-circumstances test when evaluating a false-confession claim. Applying Treesh, the court of appeals refused to apply the totality-of-circumstances test to evaluate the voluntariness and reliability of Kenya's "confession," the linchpin of the State's case.

The totality-of-circumstances test serves a vital role in promoting accurate determinations of guilt and innocence, and this Court's adherence to Perez and Treesh will continue to undermine confidence in guilt/innocence determinations. That precedent puts blinders on the courts just when light is most needed. Continuing to follow Perez and Treesh will unnec- essarily risk convicting the innocent and will erode public confidence in the justice system.

Requiring an accused to prove the police used an inherently coercive tactic before the court can apply the totality-of-circumstances test allows great numbers of confessions to avoid review simply because no such tactic was used to obtain them. Yet, many things can happen in an interrogation that might not be considered "inherently coercive" under Perez

and Treesh, but that, in fact, are coercive when the totality of the circumstances are consid-

ered. Perez and Treesh only recognize physical abuse, threats, and deprivation of food, med- ical treatment, or sleep as inherently coercive tactics. Treesh, 124 Ohio St.3d at 472.1 Unless one of those tactics is used, courts will not evaluate the totality-of-circumstances as due process requires. That means the voluntariness and reliability of confessions will not be fully reviewed in a broad array of situations, including, but not limited to, confessions extracted by: psychological manipulation or abuse of young or mentally deficient suspects; promises of leniency or other incentives, such as immediate release; and interrogations of inordinate length, intensity, or frequency. The accuracy of the guilt-determination in such cases will suffer as a result.

Kenya's case is representative of a large number of cases this Court should bear in mind when deciding whether to reconsider Perez and Treesh. Large numbers of developmen- tally and intellectually disabled people are drawn into the criminal justice system every day.

Like Kenya, many of these people are functioning at a very low intelligence level. The record shows that Kenya was in "slow classes" and, even then, progressed no further than the ninth grade; she was diagnosed with obsessive-compulsive disorder and was receiving So- cial Security benefits as a teenager. There are many others in the system suffering similar disabilities. They include people who are born with developmental disabilities, and people who become similarly disabled as a result of traumatic brain injuries sustained in auto acci- dents, in the workplace, or as a result of a serious illness. This broad class of people is at risk of falling victim to the truncated voluntariness analysis prescribed by Perez and Treesh.

B. Proper application and review of the totality-of-circumstances test was particularly important in Kenya's case because of the factors in the record that cast doubt on the accuracy of the finding of guilt.

1 Perez suggests that threats to arrest a suspect's family member may be inherently coercive if the police lack probable cause to arrest that person, but did not decide that question. Perez at ¶ 71-75.

2 The record in Kenya's case contains troubling indicia of an inaccurate determination of guilt. Each on is addressed below.

1. There is a substantial risk that Kenya's limited intellect rendered her more vulnera- ble to psychological and emotional manipulation and significantly impacted her decision to cooperate with the detectives.

Kenya was in "slow" classes in school and could progress no further than the ninth grade.2 She told the police she was "kicked out" of school in the tenth grade, but couldn't remember why.3 She had been diagnosed with "that OCD stuff[,] i4 and she was receiving a Social Security check in her teen years. 5 As will be shown below, the detectives' interrogation strategy exploited Kenya's infirm intellect.

Kenya's limited intellectual functioning was on display throughout the interrogation, as she frequently had to ask the detectives to clarify basic questions. For example:

• When the police asked if she suffers from "[a]ny mental disorders," she asked, " [m] eaning?"6

• When asked "[t[hey don't have any sexual boundaries," she responded, "[w]hat do you mean by that?"'

• She did not know a polygraph is a lie detector test.8

• When asked "[w]hat's your earliest memory of it," she responded, "[m]eaning what, earliest memory?"9

Z Trp. of 1115111 Interview, pp. 5-6. Kenya cites to the transcript of the videotaped interview to demonstrate that her argument is rooted in the record. The transcript exceeds 200 pages and would be impractical to attach to this motion. However, selected excerpts of the transcript are reproduced in the attached appendix. 3 1/15/11 Tr. p. 5. 4 Id. at 6. 5 Id. at 18. 6 Id. at 9. ' Id. at 63. 8 Id. at 85. 9 M. at 119.

3 When asked "Just the sex, the intercourse, how many times would you say it happened without giving all the detail part of it? Is it like more, like ten times, like 30, like a hundred? You know what I mean," Kenya answered, "[n]o."lo

At the close of the interrogation, Kenya talked about the abuse she had suffered in her life, and her mother's role in allowing, or causing, it to happen. She expressed the frustra- tion she experience in trying to handle it due to her limited intellect. "You don't * * * know how I feel though, just to be * * * going through all this ***[k]nowing you *** read a piece of paper half the time you can't even comprehend it[.]"ll

2. Kenya's statement contains no information that corroborated the alleged victim's claims and that only the guilty party would know.

Kenya admitted to no information that corroborated the alleged victim's [SE] claims.

This is one of the most important factors that should be considered among the totality-of- circumstances. According to John Reid & Assocs., developers of the Reid Technique

("Reid"), "[o]ne of the primary safeguards to determine the authenticity of a confession is the corroboration provided by the subject.s12 They explain further, quoting from the Reid

Technique training manual and text:

[I]t is imperative that interrogators do not reveal details of the crime so that they can use the disclosure of such information by the suspect as verification of the confession's authenticity. In each case there should be documented "hold back" information about the details of how the crime was committed; * * * details about the specific activities perpetrated by the offender; etc. The goal is to match the suspect's confession against these details to establish the veracity of the statement.13

lo Id at 123. 11 Id at 103. 12 "Clarifying Misinformation About the Reid Technique," at p. 5; available at http://www.reid.com/pdfs/20120311.pdf (accessed 3/25/13) ("Reid"). 13 Id.

4 Detective Hodge testified at trial and at no point did she state that Kenya's statement included a single detail about the alleged crimes that only the offender would have known.14

In fact, a review of the transcript of the interrogation demonstrates that Kenya provided very few details.

The absence of this corroboration, this "primary safeguard" of authenticity, went en- tirely unnoticed at trial. This flawed analysis raises the specter of an inaccurate guilt- determination. Application of the totality-of-circumstances test on review would have resolved this concern.

3. The detectives violated basic tenets prescribed by the Reid interrogation technique in ways that increased the likelihood of an involuntary confession.

This is not an attack on the Reid Technique. That technique results in countless con- stitutionally valid confessions every day across Ohio - confessions that enhance the accuracy of the guilt-determination, because they were performed properly and in the appropriate circumstances. But, as John E. Reid & Assocs., Inc., ("Reid") the creators and proponents of the technique, emphasize, "[fjalse confessions * * * are usually caused by interrogators engaging in improper behavior that is outside of the parameters of the Reid Technique - using improper interrogation procedures[.]"ls Reid would not have countenanced the manner in which Kenya was interrogated. A number of errors or the manner in which the police emotionally exploited her painful history of being violated as a child, her mother's betrayal of her, and her abandonment by her family.

14 The detectives never stated that they were using Reid techniques in the interrogation. However, persons familiar with that form of interrogation can recognize its structure and the methods it employs, such as corroboration by "hold-back" information, fictitious evidence, bait-questions, soft-questions, and the like. Also, the caveats that Reid provides as to dangerous or improper interrogation techniques apply to interrogations conducted under any rubric, whether Reid or not. ls Reid at p. 1; available at http://www.reid.com/pdfs/2012031l.pdf (accessed 3/25/13).

5 a. The detectives improperly used powerful techniques against Kenya that are known to produce false confessions when applied to young people or people with diminished mental capacity. The detectives violated the Reid's repeated warnings regarding use of the technique on people with diminished mental capacity. "[F]alse confessions may be caused by the interrogator failing to properly modify their approach in view of the subject's mental, emotional or psychological attributes.i16 And "extreme care must be exercised when questioning these individuals and the investigator has to modify their approach with these individuals.i1" There is no indication that the detectives modified their approach in light of Kenya's mental, emotional, and psychological attributes.

Rather, the detectives went full bore when interrogating Kenya. They applied the full

complement of Reid Technique interrogation tools. Prominent among them was the use of

fictitious evidence, which Reid describes as "clearly the most persuasive" their techniques.lg

Reid teaches that "this technique should be avoided when interrogating a * * * suspect with

diminished mental capacity. These suspects may not have the fortitude or confidence to

challenge such evidence and *** may become confused as to their own possible involve-

ment if police tell them evidence clearly indicates they committed the crime. That is ex-

actly what happened in Kenya's interrogation. The fictitious evidence consisted of the

theme that S.E. began "coming on" to Kenya at age six, and that he enjoyed the sex.20 This

theme was repeated throughout the interrogation portion of the interrogation. The detec-

tives also use the bait-question technique and employed "soft-questions" several times.

16 Id. at 2; see also, id. at 8-9. 17 Id. at 8. 18 Id. at 9. 19 Id. 20 See, id. at 68, 78.

6 The detectives also repeatedly told Kenya that her situation was hopeless. They em- phasized over and over that S.E. had been examined by a hoard of experts and had been thoroughly tested, and that there was no doubt that he was telling the truth and that she was guilty. Not only that, but the jury would see her as some kind of monster. Her only hope was to give them her side of the story: why it hap- DETECTIVE JONES: * * * I'm telling you, we need to understand pened to humanize you to make you not this monster that people are going to think you are[.]

KENYA GILLIAM: You keep saying people. Who is people?

DETECTIVE JONES: The damn jury. The people that *** are going to say she's a monster rapist.

KENYA GILLIAM: That ain't me though. ***

DETECTIVE HODGE: Help us to understand that.21

When cross-examined at trial, Hodge denied recalling that they used "monster" in the inter-

rogation.22 But, when asked if telling a suspect that the jury would find him or her to be a

monster if he or she denied responsibility, she agreed that it would "[p]robably not" be

proper questioning.23

Similarly, when emphasizing the need to tell her story so they could humanize her,

Detective Jones told Kenya about a defendant "who didn't show no human side. That dude

went [i.e., was sentenced to prison].i24 They told her he got 30 years for "[s]itting there

21 Id. 105-106. 22 Trial Tr. p. 154. 23 Id. 24 1115111 Tr. p. 129-30.

7 cold-blooded for abusing kids because he was not human.i25 But Reid teaches that "it is improper to tell the subject that he is facing inevitable consequences. We reference cases where innocent people falsely confessed because the investigator improperly convinced the subject that he would suffer consequences regardless of his denials. "26

Another improper technique was the detectives' repeatedly feeding Kenya the facts alleged by SE. When Kenya refused or, later, was unable to provide details, they told her the details that S.E. alleged. At one point, Kenya became so obvious in feeding back the

information the detectives had provided that Detective Hodge had to break off the line of

questioning:

DETECTIVE HODGE: What was it about [S.E.]?

KENYA GILLIAM: You said that like I was attracted to him or something?

DETECTIVE HODGE: Oh, no. I'm just saying - - I'm not saying it like that. I'm just saying, you know, you are saying you are around kids all the time.27

A review of the interrogation shows that Kenya gave no details spontaneously. When she

did mention details, they were details that had been repeatedly mentioned in earlier ques-

tioning.

The improper use of these techniques impugns the reliability of the guilt-

determination. These matters would have been considered had the totality-of-circumstances

test been applied on review. But Perez and Treesh precluded that.

b. The detectives spent the first third of the interrogation delving into Kenya's sexual assault at the age of six, her mother's repeatedly selling her for crack cocaine at the age of fourteen, and her feelings of familial betrayal and abandonment- all in order to pursue an interrogation strategy based on Kenya's victimization and feelings of abandonment.

25 Id. at 130. 26Reid, at 3. 27 Id. at 120.

8 Instead of asking questions pertinent to whether Kenya abused S.E., they inquired into her family history and relationships with her parents, knowing those questions would bring up Kenya's history of having been sexually assaulted at ages six and fourteen. The detectives did not even tell Kenya why they called her in for questioning until page 50 of the in-

terview transcript. This questioning was instrumental in obtaining Kenya's statement, be-

cause Kenya's victimization was the foundation of their entire interrogation strategy.

They focused on two aspects of Kenya's victimization to obtain her statement: the fact

that Kenya received no treatment or counseling after the attack she suffered at six years of

age; and the abandonment and isolation she experienced because no one in her family was

there to help or protect her. They used the first aspect (lack of treatment) to reinforce their

theme28 that Kenya abused the alleged victim as part of a "cycle" in which victims become

abusers if they don't receive counseling, and held out the prospect of counseling as a benefit

from cooperating with them. They used the second aspect (isolation) to reinforce her sense

of helplessness and isolation.

Throughout the interrogation, not just at the beginning, the detectives focused on

Kenya's victimization and lack of treatment and on her experience of familial abandon-

ment. An illustrative episode is set forth below; other examples are included in the appen-

dix:29

DETECTIVE HODGE: * * * [S.E.] is dealing with what he's told you about and what you know about his past. But while he's getting treatment for that, that's when he disclosed that he's been sexually abused by Kenya.

28 Under the Reid Technique, the police identify a theme or themes for use in the interrogation portion of the interview they believe will be effective in convincing the particular suspect to confess. 29 See Appx. at A-13 to A-16.

9 KENYA GILLIAM: That's crazy. That's crazy. Because - that's just crazy. That's just deep like. Wow. All the kids that I be around. All the kids that I take care of. Never looking at a kid like that. Period. Pointblank.

DETECTIVE HODGE: But, Kenya * * * listen to how you were raised, and everything. Kenya, you have been through a lot.

*** And it started at a very[,] very young age. And you never got treatment for it. You were never able to express the kind of pain and how it felt to you and how it affected you. It seemed like you never got that opportunity to express it and really deal with that, you know.

You * * * were young. You didn't understand what was going on and why these people did what they did to you. This is your family. They are supposed to love you.

KENYA GILLIAM: Ain't no family of mine. *** DETECTIVE HODGE: But I'm saying at a young age you don't know that. All you know is * * * no one is taking care of you. Your mom is out there doing dope. Uncle is out here doing sexual things with me [sic]. You know, your family was not there for you. * * * But at the same time, you never had, you never got to have the opportunity to deal with all of that. ***[N]ot only that, Kenya, [SE] was put through a lot of testing and it showed that he was being honest about what was going on with him. * * * So when he says this about you, it's proved that he's not lying, that he's being honest.

KENYA GILLIAM: I don't see how because I ain't never *** did nothing to that * * * boy. ***

That ain't me. That ain't my style. I'm not that type of person. Period. * * * This happened to me, so why would I take it to another level and do it to. somebody else?

DETECTIVE HODGE: And that's just it. People don't understand when this happens to them. It's a cycle. They don't even understand why they do the things they do. They just act out. * * * They just do it because they have never had an opportunity to talk about it and to learn * * * about this.

10 And when you say it's not my style, * * * I'm not that type of person, it happened to you, Kenya. And you never got a chance to deal with it. And Shawn is saying he came onto you. He's saying that he enjoyed - - he said that he asked you.3o

KENYA GILLIAM: Huh-uh.

DETECTIVE HODGE: And it happened *** Kenya. So it's out there and we got to deal with it. It happened.

KENYA GILLIAM: Huh-uh.

DETECTIVE JONES: Can I say something? ***[W]e have no doubt that it happened. * * * Does it mean you are a bad person? Hell no. * * * But it does mean that you are a person who may need some help. ***[W]hen you were telling me * * * your life story, that is about the most messed up one I have heard in a while. All of it. Your mama wasn't there. Your daddy wasn't there. * * *[N]obody chose you. Nobody * * * other than [Aunt Rosie] had your back.

As a little kid, that's going to mess anybody up. And I'm not saying that means that you're going to be a messed up person in life, but * * * you don't even know how to process that stuff when you are a little kid. So who is giving you love, security, support, attention? Nobody, really. Nobody.

So the fact that you are acting out as an adult, that doesn't surprise anybody because nobody had gave you what you should have had as a little girl. Nobody did that for you. So here you are doing stuff today. ***

[S]omething happened * * * but, what we don't know is to what level. * * * [W]e have detailed disclosure of what he remembers. * * * But * * * was it a different way? Where was your head at? [T]hat's what we need to know to help us help him and let him get the help that he needed [sic] that you needed when you was little. Because nobody ever helped you. Nobody believed you. And we can't let that happen in this case. We can't let him be another, you know, adult that nobody believed or helped.3l

3o These assertions are fictitious. The Reid Technique recommends using fictitious statements in certain circumstances, but vigorously decries the use of this tactic on people with diminished mental capacity. See Part C(3)(a), above. 31 1115111 Tr. pp. 65-72.

11 The impact of the detectives' repeated reliance on Kenya' victimization and abandonment can perhaps most clearly be seen at the close of the interrogation, when Kenya ex- presses what her mind is focusing on at that time. Was she thinking about the serious crimes in which she had just implicated herself? Was she thinking about the alleged victim?

Kenya stated:

KENYA GILLIAM: Wish I had somebody that could send me to somebody that I could talk to.

DETECTIVE HODGE: Um-hum.

KENYA GILLIAM: And that could help me get through what happened.

DETECTIVE HODGE: Um-hum.

KENYA GILLIAM: Because I do wake up and go to sleep thinking about what happened to me at all times, even not just when I was six but when I was 14, the way my mama told * * * Cater (phonetic) that he could come in there and kiss on me and just do whatever he wanted to do to me.

DETECTIVE JONES: Did he do it?

KENYA GILLIAM: Yeah, he did.

DETECTIVE JONES: Did he have sex with you?

KENYA GILLIAM: Um-hum. Without her not even caring.

DETECTIVE JONES: Right.

KENYA GILLIAM: All for a drug. All for a drug. Just being in tihere smelling like beer, just coming in the room, just touching me, kissing on me. And she just not even caring and just to be high.

DETECTIVE JONES: What was your mom's drug, crack?

KENYA GILLIAM: Um-hum. And because she wanted - - you ain't got no money to get high and he come over there and he want somebody to turn a trick with, you let him come in my room while I'm sleep [sic] and do whatever he feel.

DETECTIVE JONES: How many times did that happen?

12 KENYA GILLIAM: Like three times. She always let him came [sic] over there.32 **^

KENYA GILLIAM: They don't know how I feel when I sit there and asked [my mother], I said, don't you love me[?]

She asked me why. I said, `cause you ain't never once apologized to me in my life for what happened to me in my life. She sat there and looked at me and started laughing and said, oh, well, get over it.33

This strategy casts doubt on the reliability of the confession. Although the strategy is not an inherently coercive tactic under Perez and Treesh, and notwithstanding that people without Kenya's intellectual and emotional deficits might not likely be coerced by it, it was a powerfully coercive when applied to Kenya. Had the totality of circumstances been considered, the reviewing court would have evaluated the impact of this strategy on Kenya.

But Perez and Treesh precluded that, so we are left with grave concerns regarding the accuracy of the guilt-determination.

4. S.E.'s credibility was significantly undermined by, among other things, his admis- sion that he lied about his alleged sexual abuse history when taking - and passing - the polygraph examination that the trial court relied on to conclude that he was more credible than Kenya and to fmd Kenya guilty.

S.E.'s credibility was impeached on the basis of: 1) the fact that he had a strong incen- tive to make allegations of abuse in order to shorten his time in custodial status; 2) that he had lied to Mr. Youngblood, his counselor, about his prior sexual experiences; 3) that he had made prior false allegations of abuse; 4) that he admitted that statements he made during the polygraph examination were not true; and 5) that his testimony was inconsistent

32 Id. at 172-73. 33 Id. at 176-77.

13 with his original report of the alleged abuse. 34 Nevertheless, the trial court chose to believe him.

Thus, when combined with the other factors discussed herein, there is cause to doubt

S.E.'s allegations and, thus, Kenya's guilt. Application of the totality-of-circumstances test would have enabled the court below to more accurately assess S.E.'s credibility, determine the voluntariness and reliability of Kenya's statement, and to determine her guilt or innocence.

5. The trial court relied on improper polygraph evidence when evaluating Kenya's and S.E.'s credibility, which, in tarn, tainted the court's evaluation of the voluntariness of Kenya's "confession" and the determination of guilt.

When explaining its verdict, the court recounted the testimony it found significant.

That included the polygraph testimony. The court resolved the obvious conflict between believing and the statements S.E. made during the polygraph examination in view of his testimony that he lied on the polygraph - hence, that the polygraph did not detect his lie - the court chose to believe S.E.'s claim that he must have "blocked out" that "Mark" had mo- lested him. That resolution allowed the court to believe both S.E. and the polygraph results.

This is consistent with the court's going so far as to impermissibly solicit the improper polygraph testimony while pre-emptively overruling any objection to that action.

The improper polygraph testimony was clearly important to the court. Its use to assess

S.E.'s and Kenya's credibility was not only improper, but also raises concerns regarding the

accuracy of the court's verdict (this was a bench trial). So, the court of appeals's failure to

review this error and consider its impact on the evaluation of the reliability of Kenya's

statement also calls the accuracy of the guilty verdict.

" Trial Tr. pp. 110-30.

14 C. The Court should reconsider because the Court might have been misled regarding important facts when it denied review.

Reconsidering the denial of review is warranted given that the State's Memorandum in

Response might have misled the Court regarding important facts. First, as to the impact of

Perez and Treesh on Kenya's case, the memorandum never mentions that the court of appeals applied Treesh and refused to apply the totality-of-circumstances test or to review the trial court's application of it. The State failed to address Kenya's prayer that this Court overrule Treesh and made no attempt to justify Treesh's continued application. Rather, the

State merely argued that the trial court applied the totality-of-circumstances test. See Mem- orandum in Response, 4-6. Nothing in the State's argument provides any reason to believe that allowing the Perez and Treesh doctrine to survive will promote the accuracy of guilt/innocence determinations.

Reconsideration is also warranted because the State mistakenly told this Court that

Kenya, herself, initiated the discussion about sexual assault she suffered when she was six years old and about her mother selling her for crack at age fourteen. Memorandum in Re- sponse, 5. That assertion may have caused some members of this Court to reject Kenya's false-confession claim on the mistaken impression that she initiated that part of the interview and, thus, the discussion of those matters would not have had the psychological and emotional impact Kenya asserted at trial, on appeal, and in her filings in this Court.

Detective Hodge, not Kenya, brought up her history of being sexually assaulted. She

did so in two stages. First, Hodge opened with a line of questions that Detective Hodge be-

lieved would cause Kenya to talk about her victimization as a child. One should bear in

mind that, before questioning Kenya, the detectives had spoken with the alleged victim's

mother, who had been Kenya's partner for some time, and who was privy to Kenya's per-

15 sonal history and most private thoughts and emotions. They had also spoken with other members of Kenya's family. So the detectives already knew about her troubled relationships with her mother and her father and about Kenya's victimization as a child. Although those matters were irrelevant to Kenya's guilt or innocence, the detectives used those questions to get Kenya to talk about that abuse. Instead of asking background questions that were relevant to the alleged crimes, Detective Hodge began the first phase of this line of in- quiry by asking:

• Okay. I just want to talk a little bit about growing up and your family, your mom and dad. Do you know who your mom and dad are?3s

•"Do you have a relationship with [your mom and dad]?"36

• "Who raised you?i37

•"So you stayed with your mom from the age of 14 to 16? [Kenya answered: "Yeah."] "How was that?" [In answering this question, Kenya explained that she stopped liv- ing with her mother when her mother had tried to sell Kenya, who was fourteen years old, to her mother's cousin for crack cocaine.]38

• "Okay. What about your father?"39

After exhausting this line of questioning and failing to dredge up the attack Kenya suf-

fered when she was six years old, the second phase began. Detective Hodge asked:

Okay. And, I mean, we are going to talk about some uncomfortable things in here, but it's just important that we get everything out on the table. And, I mean, Kenya, sounds like you have had it rougl^i coming up. Have you ever been a victim of any type of sexual or physical [abuse?] 40

3s Trp. p. 9. 36 Id.

37 Id 38 Tr. p. 11. 39 Tr. p. 12. 40 Tr. p. 22.

16 Thus, Detective Hodge initiated the discussion of Kenya's victimization. They intended to make Kenya talk about the abuse whether she wanted to or not. So, the State's suggestion that Kenya raised the matter herself is false and misleading.

CONCLUSION

Therefore, Ms. Gilliam respectfully asks this Court to reconsider its March 13, 2013 decision and accept jurisdiction over her case as it involves a felony and presents questions of great general interest.

Respectfully submitted,

OFFICE OF THE OHIO PUBLIC DEFENDER

H R.SPIERT # 04 *stant State Public Defender (Counsel of Record)

250 East Broad Street, Suite 1400 Columbus, Ohio 43215 (614) 466-5394 (614) 752-5167 (Fax) [email protected]

COUNSEL FOR KENYA GILLIAM

17 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing APPELLANT KENYA GILLIAM'S

MOTION FOR RECONSIDERATION been served by first class U.S. mail upon James

Michael Keeling, Assistant Hamilton County Prosecutor, 230 E. Ninth Street, Ste. 7000,

Cincinnati, Ohio 45202, this 25th day of March, 2013.

NETH R. SPIER 0038804 (Counsel of Record)

COUNSEL FOR KENYA GILLIAM #389897

18 IN THE SUPREME COURT OF OHIO

STATE OF OHIO, Case No. 12-2109 Plaintiff-Appellee, On Appeal from the Hamilton V. County Court of Appeals First Appellate District KENYA GILLIAM, Hamilton County Court of Appeals Defendant-Appellant. Case No. C-110587

APPENDIX TO APPELLANT KENYA GILLIAM'S MOTION FOR RECONSIDERATION John E. Reid and Associates, Inc . Established 1947 209 W. Jackson Blvd., Suite 400 312-583-0700 Chicago, Illinois 60606 800-255-5747 www.reid.com Fax 312-583-0701

Clarifying Misinformation about The Reid Technique

The Reid Technique consists of a three phase process beginning with Fact Analysis, followed by the Behavior Analysis Interview (which is a non-confrontational interview designed to develop investigative and behavioral information), followed by, when appropriate, the Reid Nine Steps of Interrogation.

The following statements in bold are criticisms or misrepresentations by critics of The Reid Technique of Interviewing and Interrogation, as well as by the media and academicians, referenced below as TM) or our followed by the correct information from our training manual ( books, including Criminal Interrogation and Confessions, 5`h edition, 2011 (referenced below a CI+C).

The Reid Technique causes false confessions

The Reid Technique is specifically designed to do everything possible to protect against a person making a false confession. In our training manual, courses and books we teach the following:

• Do not make any promises -of leniency

• Do not threaten the subject with any physical harm or inevitable consequences

• Do not conduct interrogations for an excessively lengthy period of time

• Do not deny the subject any of their rights

• Do not deny the subject the opportunity to satisfy their physical needs

• Withhold information about the details of the crime from the subject so that if the subject confesses he can reveal information that only the guilty would know

• Exercise special cautions when questioning juveniles or individuals with mental or psychological impairments

• The confession is not the er^d of tl^ie investigation - investigate the confession details in an effort to establish the authenticity of the subject's statement

As one U.S. District court stated, "In sum, the proffered expert testimony to the effect that the Reid technique enhanced the risk of an unreliable confession lacked any objective basis for support whatever." US v. Jacques, May 2011, the US District Court of Massachusetts

False confessions are not caused by the application of the Reid Technique, they are usually caused bynterrogators i engaing in improper behavior that is outside of the parameters of the Reid Technique using improper interro gat ion procedures - engaging m behavior that the courts have ruled to be objectionable, such as threateniniz inevitable conseQuences• making a promise of leniency in return for the confession• denying a subject their rights• conducting an excessively long interrogation; etc.

A - In some cases, of course, false confessions may be caused by the interrogator failing to properly modify their approach in view of the subject's mental, emotional or psychological attributes. (See pages 8 and 9 of this document)

(See Chapters 13, 15 and 17 from CI+C which offer detailed discussion on all of the points enumerated above.)

Critics suggest that the Reid Technique of interrogation consists of essentially three steps: 20:33, 2011) ("Suspect Interviews and False Confessions," Current Directions in Psychological Science,

Custody and isolation

The Reid Technique does teach that an interrogation should be conducted in private. However, it does not teach to detain non-custodial subjects or to isolate subjects and prevent them from contacting others. This would be illegal. (CI+C Chapter 17)

2. Confrontation

The Reid Technique does teach that the interrogation should start with a confrontation statement such as, "Tom,^our investigation indicates that you caused the death of your wife" or, "Jim our investigation indicates that you have not told the complete truth about the robbery of Jake's liquor store."

However, in the Reid Technique the first contact with a subject is always a non-confrontational interview designed to develop investigative and behavioral information. When the results of the interview and subsequent investigation indicate the subject's probable involvement in the commission of the crime, an interrogation then becomes appropriate.

In many investigations dozens of subjects may be interviewed and but no one is interrogated. Interrogation is reserved for those situations in which a subject's guilt is reasonably certain based on the investigative information and evidence.

3. Minimization

The emphasis of the Reid Technique is to create an environment that makes it easier for a subject to tell the truth. An essential part of this is to suggest face-saving excuses for the subject's crime which include projecting blame away from the subject onto such things as financial pressure, the victim's behavior, an accomplice, emotions, or alcohol.

Our training is very specific that these excuses (interrogation themes) should minimize the moral seriousness of the subject's crime by offering psychological excuses for the crime but not remove legal consequences.

The Reid Technique teaches that the investigator should not offer any direct or implied promises of leniency to the subject. (CI+C pages 343-344)

The Reid Technique teaches that the investigator should not threaten the subject with worse consequences if he does not confess. (CI+C pages 343-344)

A - 2 "During the presentation of any theme based upon the morality factor, caution must be taken to avoid any indication that the minimization of the moral blame will relieve the suspect of criminal responsibility." (CI+C page 205)

"As earlier stated, the interrogator must avoid any expressed or intentionally implied that because of the minimized seriousness of the offense, the suspect is to statement to the effect receive a lighter punishment." (CI+C page 213)

"In applying this technique of condenming the accomplice, the interrogator must proceed cautiously and must refrain from making any comments to the effect that the blame cast on an accomplice thereby relieves the suspect of legal responsibility for his part in the commission of the offense." (CI+C page 227)

Regarding this approach the Supreme Court of Canada stated the following:

"There is nothing problematic or objectionable about police, when questioning suspects, in downplaying or minimizing the moral culpability of their alleged criminal activity. I find there was nothing improper in these and other similar transcript examples where [the detective] minimized [the accussed's] moral responsibility." R v. Oickle, 2000

Some critics describe the interrogation process as follows: (Report prepared by Dr. Richard Leo on a contested confession case in Wisconsin (Brendan Dassey))

"The sole purpose for custodial interrogation is to elicit a confession."

On page 4 of our training manual and page 5 of Criminal Interrogation and Confessions we state that the objective of an interrogation is to elicit the truth from a subject, not a confession.

There are a number of possible outcomes of a successful interrogation other than obtaining a confession. Some of these are: (1) The subject is innocent; (2) The subject did not commit the offense under investigation but lied about some aspect of the investigation (motive, alibi, access, etc.); or (3) The subject did not commit the offense under investigation but knows who did. Throughout an interrogation the investigator's goal is always to learn the truth.

to view his situation "The first step of successful interrogation consists of causing a suspect as hopeless."

This is a false statement. This statement or goal never appears in our text books or seminar manuals and is never taught at our training programs. On page 49 of our training manual and in Chapter 15 of Criminal Interrogation and Confessions, we teach the opposite, that it is improper to tell the subject that he is facing inevitable consequences. We reference cases where innocent people falsely confessed because the investigator improperly convinced the subject that he would suffer consequences regardless of his denials.

"The second step of successful interrogation consists of offering the suspect inducements to confess - reasons or scenarios that suggest the suspect will receive some personal, moral, communal, procedural material or other benefit if he confesses to some version of the offense."

A - 3 will receive These inducements include "appeals that directly communicate that the suspect less punishment, a lower prison sentence, and/or some form of police, prosecutorial, the interrogator's demand that he confess." judicial, or juror leniency if he complies with

These type of inducements are clearly illegal in the United States as well as Canada and we teach investigators not to use these tactics. There are inultiple references to these illegal interrogation tactics in both our training manual as well as our text, Criminal Interrogation and Confessions.

"These tactics include harming a suspect or subjecting a suspect to threats of such harm. A similar claim may be made if the interrogator threatens the suspect with inevitable real e.g., "With the evidence we have, there is no doubt that you are going to prison. consequences ( question is for how long.") Promises of leniency in which the suspect is reassured that The only he will face less severe consequences with a confession may also fall under the category of a coerced confessions, because physical activities are referenced, such as freedom to eave or less osition has been that interrogation incentives that are apt to prison time.... Our long standing p cause an innocent person to confess are improper." (CI+C pages 343-344)

Another criticism is that The Reid Technique encourages the interrogator to lie to the suspect about evidence that does not exist, which in turn, causes innocent people to confess

In 1969 the United States Supreme Court upheld a defendant's confession that was the result of the police falsely telling the subject that his accomplice had confessed, implicating him in the commission of the crime. In their opinion, the court stated that "the totality of circumstances" must be considered in determining the voluntariness of a confession. Frazier v. Cupp

However, in the non-accusatory interview that should always be the first contact with the subject, we teach that the investigator should not lie to the suspect about non-existing evidence, but only imply the possibility of developing incriminating evidence and ask the suspect how they would explain the existence of such evidence - this is called the bait question. (TM pages 22-25, and CI+C pages 171-176).

Later in our book we state the following precautions about misrepresenting evidence to the suspect:

"While the courts have consistently upheld the interrogator's use of deceptive evidence ploys, the interrogator should exercise great caution in utilizing them. In general courts recognize the practical necessity in allowing such tactics so long as they do not result in involuntary or false confessions. As noted earlier in this text, deceptive tactics should not ordinarily be used wifn individuals who have significant mental limitations or with young children.

There is also a very practical issue to consider in the use of deception during an interrogation. If, for example, the suspect is told that he was seen running out of the building just before the fire started, when in fact his partner went into the building and he stayed outside as a lookout, he will the know that the interrogator is lying to him and as a result, the investigator has lost all credibility with the subject." (CI+C page 429)

which then causes a false confession, As to the issue of the interrogator misrepresenting evidence consider the following:

A - 4 "Consider an innocent rape suspect who is falsely told that DNA evidence positively identifies him as the rapist. Would this false statement cause an innocent person to suddenly shrink in the chair and decide that it would be in his best interest to confess? Would a suspect, innocent of a homicide, bury his head in his hands and confess, because he was told that the murder weapon was found during a search of his home? Of course not!

However, consider that such false statements were then used to convince the suspect that, regardless of his stated innocence, he would be found guilty of the crime and would be sentenced to prison. Further, the investigator tells the suspect that, if he cooperates by confessing, he will be afforded leniency. Under these conditions it becomes much more plausible that an innocent not because fictitious evidence was resented but because that person ma decide to confess - evidence was used to aijgment an improper interrogation technique (i.e., the threat of inevitable consequences coupled with a promise of leniency)." (CI+C pages 351-352)

One of the primary safeguards to determine the authenticity of a confession is the corroboration provided by the subject.

"As we have stated earlier, it is imperative that interrogators do not reveal details of the crime so that they can use the disclosure of such information by the suspect as verification of the confession's authenticity. In each case there should be documented "hold back" information about the details of how the crime was committed; details from the crime scene; details about specific activities perpetrated by the offender; etc. The goal is to match the suspect's confession against these details to establish the veracity of the statement." (TM page 148) Also see CI+C pages 306 - 308 and pages 354 - 362.

The foundation of the Reid Technique is flawed - it is based on the investigator's Interview - studies have evaluation of the suspect's behavior during the Behavior Analysis demonstrated the inability of investigators to accurately assess a subject's behavior, therefore, many innocent people are interrogated

To the contrary, two studies conducted under federal grants from the National Security Agency identified significantly high degrees of accuracy for investigators identifying truthful and deceptive subjects during real life Behavior Analysis Interviews. (CI+C pages 102-103)

Unfortunately, most of the detection of deception research that "experts" refer to in making this criticism involves studies that were conducted in the laboratory using students to commit mock crimes. Laboratory detection of deception research studies do not produce helpful results for a number of reasons:

• The subjects (students) had low levels of motivation to be believed (in the case of innocent subjects) or to avoid detection (in the case of guilty subjects).

- • The interviews of the subjects were not conducted by investigators trained in interviewing criminal subjects.

• The studies did not employ the type of structured interview process that is commonly utilized by investigators in the field.

A - 5 • In most studies there was no attempt to establish behavioral baselines for each subject so as to identify unique behaviors within a particular individual.

• The research was based on the faulty premise that there are specific behavior symptoms that are unique to truth or deception (see discussion below).

• There was little consideration given to evaluating behaviors in context. For example, identifying whether specific nonverbal behaviors are appropriate given the verbal content of .•the suspect's response, identifying the consistency of a suspect's statements across.time and with known evidence, and so on.

However, when researchers attempt to design studies which more closely approximate the setting of real life field interviews, they show a marked increase in the ability of researchers to detection deception. Consider the following:

• Hig_h stake lies are detected at higher rates than low-stake lies.

(O'Sullivan, M., Frank, M. G., Hurley C. M., and Tiwana, J. (2009). Police Lie Detection Accuracy: The Effect of Lie Scenario. Law and Human Behavior, 33, 6, 530-538 published February, 2009. The authors point out that their results "suggest that police professionals perform significantly better when they are judging material that is high stakes, and therefore, more similar behaviorally to what they experience on the job.... The results suggest that it is a mistake to generalize from mean lie detection accuracy estimates obtained from college students. ..."

• When an investigator understands the context in which an interview is taking place (for example the case facts and background information) accuracy in the assessment of a subject's behavior symptoms greatly increases.

(Blair, J., Levine, T., and Shaw, A. (2010). Content in Context Improves Deception Detection Accuracy. Human Communication Research, 36. The study demonstrated that when evaluators knew the context in which the interview took place "they performed significantly better than chance and significantly better than 40 + years of research suggests they would. Clearly, knowledge of the environment in which deception occurs facilitates. accurate deception judgments beyond what is possible based on observations of nonverbal leakage."

• Accuracy in detecting deception with real-life suspects is si^nificantly higher than suggested by studies that use subject's in a mock crime scenario.

(In their research paper entitled, "Detecting True Lies: Police Officers' Ability to Detect Suspects' Lies," (Journal ofApplied Psychology, 2004) the authors asked 99 police officers to "judge the veracity of people in real-life high-stakes situations." The authors describe this study as unique because they tested "police officers' ability to distinguish between truths and lies in a realistic setting (during police interviews with suspects), rather than in an artificial laboratory setting." The results were that "the "accuracy rates were higher than those typically found in deception research."

A - 6 • Training and experience in the field of behavior symptom analysis significantlv increases the ability to detect true and false statements.

(Strategic Use of Evidence During Police Interviews: When Training to Detect Deception 2006 the authors report that trained interviewers Works. Law and Human Behavior,

"obtained a considerably higher deception detection accuracy rate (85.4%) than untrained interviewers." Also see "Police Officers' judgments of veracity, tenseness, cognitive load and attempted behavioral control in real-life police interviews," (Psychology; Crime & Law, 2006)

(See CI+C Chapter 9 for a detailed discussion of this topic; also see page of this document for some additional information))

The use of the. Alternative Question forces the innocent person to say that they committed the crime

In the Reid Technique when the subject is quiet and listening to the interrogator and appears ready to tell the truth about what they did, the investigator will present the subject with an alternative question such as, "Was this your idea or did your buddy talk you into it?" Critics say this question forces the subject to say that they committed the crime. However, there is always a third option, which is to deny committing the crime at all.

Some critics claim that offering the suspect a "soft choice" (such as his partner talked him into it) is tantamount to a promise of leniency - even though no actual promise of leniency was made the clear implication is that they will receive less punishment than if it was their own idea. Critics refer to this as "pragmatic implication."

The courts have rejected this argument. Pragmatic implication is a theory proposed by Professor Saul Kassin which posits that a subject of an interrogation may cognitively perceive threats or promises even though the investigator never threatened the suspect or offered the suspect a promise of leniency. In the case of People v. Benson (2010) the Court of Appeal, Third District, California the premise of this theory was rejected. In this case the court found the following:

"Here, Detective Rodriguez did tell defendant there was "a big difference between ... someone getting hurt and trying to shoot someone." However, the detectives made no promises or representations that defendant's cooperation would garner more lenient treatment or lesser charges. "No specific benefit in terms of lesser charges was promised or even discussed, and [the detective's] general assertion that the circumstances of a killing could'make[ ] a lot of difference' to the punishment, while perhaps optimistic, was not materially deceptive." ( People v. Holloway (2004) 33 Cal.4th 96, 117.) The general assertion that the circumstances of a killing could make a difference was not materially deceptive. It is not deceptive to state that an accomplice to murder may be better off than the shooter. (People v. Garcia (1984) 36 Cal.3d 539, 546-547.)"

The Supreme Court of Canada indicated that the type of alternative question we suggest does not create an inadmissible confession and offered a clear: "The most important decision in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise." R. v. Oickle (2000)

A - 7 Where some interrogators go wrong is to use alternative questions that are improper - that make explicit promises or threats, such as:

"Do you want to cooperate with ine and tell me what happened, or spend the next five to seven years behind bars?" (improper)

"Do you want to be charged with first degree murder, which will mean life in prison, or was this just manslaughter?" (improper)

"Are you going to get this straightened out today, or do you want to spend a few days in jail to think about it?" (improper)

The Reid Technique suggests motives to the suspect that eliminate criminal consequences from the act - such as the accident scenario - which is more likely to cause an innocent person to confess.

In the case ofPeople v. Batiste (Sept. 2011), the Court of Appeal, 1 st District, Div. 3, California, the defendant claimed that his confession was coerced because it was the product of deception or implied promises of leniency by the officers. From the court's opinion:

"Batiste argued in the trial court that the officers made an implied promise of leniency when they suggested he might have acted in self-defense. That argument lacked merit. Here, as in People v.. Carrington (2009) 47 Ca1.4th 145, 171, "suggestions that the ... homicide might have been an accident, a self-defensive reaction, or the product of fear, were not coercive; they merely suggested possible explanations of the events and offered defendant an opportunity to provide the details of the crime. This tactic is permissible. [Citation.] Moreover, any benefit to defendant that reasonably could be inferred from the substance of [the officer's] remarks was '"'merely that which flows naturally from a truthful and honest course of conduct,' "' because the particular circumstances of a homicide can reduce the degree of culpability, and thus minimize the gravity of the homicide or constitute mitigating factors in the ultimate decision as to the appropriate penalty. [Citation]."

Furthermore, we state in our text that "As previously indicated, an interrogation theme should not absolve the suspect from legal consequences associated with his crime. Consequently, an investigator should not suggest, as a primary theme, that the crime was committed accidentally." (CI+C page 219)

The Reid Technique does not make any allowance for changing their approach when dealing with juveniles or individuals with significant mental or psychological impairments

Many false confession cases involve juveniles and/or individuals with some significant mental or psychological disabilities. Consequently, extreme care must be exercised when questioning these individuals and the investigator has to modify their approach with these individuals.

"As earlier suggested in the text, caution must be exercised in evaluating a youthful person's behavioral responses. Due to immaturity and the corresponding lack of values and sense of responsibility, the behavior symptoms displayed by a youthful suspect may be unreliable." (CI+C page 250) 8

A - 8 "A general distinction can be made between childhood (1-9) and adolescence (10-15). While both groups will be motivated to lie to avoid consequences associated with acts of wrongdoing, psychologically they are operating at quite different levels. It is our general recommendation that a person under the age of 10 should not be subjected to active persuasion techniques during interrogation (themes, alternative questions). At this age the child is susceptible to suggestion and is motivated to please a person in authority. The interaction between the investigator and child should be limited to a question and answer session which is centered on factual information and simple logic. Although children in this age group generally have good memory skills, it is selective and the investigator must be cautious in forming opinions of deception based on inconsistent recall. In this younger age group the primary difficulty with respect to interrogation is the child's undeveloped level of social responsibility and inability to comprehend the concept of future consequences; their lives focus around "here and now" concepts.

On the other hand, most adolescents have developed a sense of social responsibility to the extent that they know if they admit committing a serious crime they will suffer some future consequence. For this reason a confrontational interrogation may be used with this age group involving some active persuasion. The extent of persuasive tactics should not be dictated by the seriousness of the crime, but rather the maturity of the child.

When a child is taken into custody and advised of his or her Miranda rights, the question of whether the child is capable of making a knowing and voluntary waiver of those rights may arise. Certainly a child under the age of 10 is incapable of fully understanding the implications of waiving Miranda rights. Younger adolescents also may fall into this category. When a juvenile younger than 15, who has not had any prior experience with the police, is advised of his Miranda rights, the investigator should carefully discuss and talk about those rights with the subject (not just recite them) to make sure that he understands them. If attempts to explain the rights are unsuccessful, no interrogation should be conducted at that time. The same is true for a person who is mentally or psychologically impaired.

Courts routinely uphold the use of trickery and deceit during interrogations of adult suspects who are not mentally impaired. Within the area of trickery and deceit, clearly the most persuasive of these tactics is introducing fictitious evidence which implicates the suspect in the crime. As we state in Chapter 15, this technique should be avoided when interrogating a youthful suspect with low social maturity or a suspect with diminished mental capacity. These suspects may not have the fortitude or confidence to challenge such evidence and, depending on the nature of the crime, may become confused as to their own possible involvement if the police tell them evidence clearly indicates they committed the crime. Factors such as the adolescent's level of social responsibility and general maturity should be considered before fictitious evidence in'introduced.

The ultimate test of the trustworthiness of a confession is its corroboration. The admissions, "I shot and killed Mr. Johnson" or, "I forced Susie Adams to have sex with me" may be elicited from an innocent juvenile (or adult) suspect. These admissions only become useful as evidence if they are corroborated by (1) information about the crime the suspect provides which was purposefully withheld from the suspect, and/or, (2) information not known by the police until after the confession which is subsequently verified." (CI+C pages 254-255)

"This technique [introducing fictitious evidence] should be avoided when interrogating a youthful suspect with low social maturity or a suspect with diminished mental capacity. These suspects may not have the fortitude or confidence to challenge such evidence and, depending on the nature of the crime, may become confused as to their own possible involvement, if the police tell them evidence clearly indicates they committed the crime." (CI+C page 352) 9

A - 9 Additional discussion on detection of decention research

It is helpful to know that in most detection of deception research there appears to be a fundamental lack of understanding of how verbal and nonverbal behaviors exhibited by a subject during an interview are evaluated by practitioners in real life settings. Most academics conducting research seem to work on the underlying presumption that there is a behavior - verbal and/or nonverbal - that is unique to deception. There:.isnot. Any attempt to evaluate a subject's behavior for indications of deception must be considered in the context of the situation and the potential influence of a variety of factors. To do otherwise would be a fruitless endeavor.

The following are some of the principles of behavior symptom analysis as practiced in the field as the foundation for assessing a suspect's behavior symptoms:

There are no unique behaviors associated with truthfulness or deception. The behavioral observations an investigator makes of a suspect do not specifically correlate to truth or deception. Rather, they reflect the subject's internal emotional state, cognitive processes, and internal physiological arousal experienced during a response. The emotional states most often associated with deception are fear, anger, embarrassment, indignation, or hope (duping). The cognitive processes may reveal concern, helpfulness, and confidence versus offering an unrealistic explanation for the crime, being defensive, or being overly polite. There are also internal physiological responses that cause external behavioral responses such as a dry throat, skin blanching, pupillary dilation, or blushing. Observed in isolation, certainly none of these behaviors should cause an investigator to conclude that a subject is telling the truth or lying.

In real life situations investigating a subject's involvement in criminal behavior or whether or not they are concealing relevant information or intelligence, behavior symptom analysis involves the study of inferences made from the subject's behaviors. Within the scope of detecting deception, there are two broad inferences that are made through behavioral observations. The first involves

inferences of guilt or innocence, that is, "Did this person engage in a particular criminal act?" The second involves inferences of truth or deception, that is, "When this person says such and such, is he telling the truth?" For case-solving purposes, it is important to appreciate the distinction between "guilt" and "lying."

Consider the following exchange during an interview: Q: "Have you ever thought about having sexual contact with your step-daughter?" A: "Well sure. Anybody in my position would have those thoughts."

While the suspect's verbal response to the investigator's question may be completely truthful, the content of the response infers guilt with respect to sexually abusing his step-daughter.

To appreciate the nature of these inferences, it must be understood that communication occurs at three distinctly different levels:

1. verbal channel-word choice and arrangement of words to send a message 2. paralinguistic channel-characteristics of speech falling outside the spoken word 3. nonverbal channel-posture, arm and leg movements, eye contact, and facial expressions 10

A - 10 When evaluating a subject's behavior for detection of deception purposes, there are several essential principles that must be followed in order to increase the probability that subsequent inferences will be accurate. Failure to recognize any of these principles increases the probability of making erroneous inferences from a suspect's behavior.

Evaluate the consistency between all three channels of communication. When a subject sends behavioral messages that are consistent within all three channels of communication, the investigator can have greater confidence in his assessment of the credibility of the subject's response. However, when inconsistencies exist between the channels, the investigator needs to evaluate possible causes for this inconsistency.

Evaluate paralinguistic and nonverbal behaviors in context with the subject's verbal message. When assessing the probable meaning of a subject's emotional state, the subject's paralinguistic and nonverbal behaviors must always be coiisidered in context with the verbal message. Consider the following two examples:

Question (Q 1): Mike, have you ever been questioned before concerning theft from an employer? Response (R 1): Well, um, two years ago I worked at a hardware store and they had an inventory shortage so all of the employees were questioned and, in fact, I did take some things from there. [Subject crosses his legs, looks down at the floor, and dusts his shirt sleeve.]

Q 2: Joe, did you steal that missing $2,500? R 2: No, I did not. [Subject crosses his legs, looks down at the floor, and dusts his shirt sleeve.]

. These two subjects displayed identical paralinguistic and nonverbal behaviors during their responses. However, the interpretation of the behaviors is completely different. In the first example the subject is telling the truth, but he feels embarrassed and possibly even threatened in revealing his prior theft. In the second example the verbal content of the subject's response does not explain the accompanying nonverbal behaviors, so the investigator should consider these

behaviors as reflecting possible fear or conflict-emotional states that would not be considered appropriate from a truthful subject, given the content of the verbal response.

Evaluate the preponderance of behaviors occurring throughout the interview. One of the findings learned through field work is the importance of rendering opinions based on evaluating the subject's behavior throughout the course of an entire interview. When evaluators are only exposed to individual questions within the interview, their accuracy will be considerably less than when evaluating the subject's responses to all of the interview questions (potentially dozens of questions). Similarly, the confidence of assessing behavior over a five-minute interview will be considerably less than if the behavioral assessments were made over a 30- or 40-minute interview.

Establish the subject's normal behavioral patterns. Certainly there are non-deceptive reasons for a subject to exhibit poor eye contact, respond to questions quickly or slowly, to scratch themselves, yawn, clear their throat, or change their posture. Before any of these behaviors can be considered a criteria of deception, the investigator must first establish what the subject's normal behavioral patterns are. Consequently, at the outset of each interview the investigator should spend several minutes discussing nonthreatening information (perhaps casual conversation or collecting biographical information) so as to establish a behavioral baseline for 11

A - 11 the particular subject. Then, as the interview progresses and the subject exhibits behavioral changes when the issue under investigation is discussed, these changes may take on added significance.

Evaluate behavior in conjunction with the case facts and evidence. The evaluation of a subject's behavior symptoms should only be one factor to consider in the assessment of the subject's possible involvement in the crime under investigation. The investigator inust always consider the degree to which the case evidence of facts may implicate the subject.

"In summary, although the verbal and nonverbal behavior displayed by a subject during an interview may provide valuable and accurate indications of possible innocence or guilt, the investigator should evaluate the behavior according to the guidelines states in Chapter 9. Furthermore, the following factors, which may affect the validity of behavior symptoms, should be considered: the perceived seriousness of the offense, the mental and physical condition of the subject, any underlying psychiatric or personality disorders; level of intelligence; degree of maturity; and the extent or absence of social responsibilities." (CI+C page 152)

Unfortunately, most of the research conducted on an investigator's ability to detect deception principles outlined (typically using students in a laboratory experiment) does not take any of the above into consideration.

You will find detailed discussion of all of these issues in Criminal Interrogation and Confessions, Inbau, Reid, Buckley and Jayne, 2011 5`h edition, as well as at www.reid.com.

A - 12 Example A

DETECTIVE HODGE: *** [SE] is dealing with what he's told you about and what you know about his past. But while he's getting treatment for that, that's when he disclosed that he's been sexually abused by Kenya.

KENYA GILLIAM: That's crazy. That's crazy. Because - that's just crazy. That's just deep like. Wow. All the kids that I be around. All the kids that I take care of. Never looking at a kid like that. Period. Pointblank.

DETECTIVE HODGE: But, Kenya *** listen to how you were raised, and everything. Kenya, you have been through a lot.

l *** And it started at a very[,] very young age. And you never got treatment for it. You were never able to express the kind of pain and how it felt to you and how it affected you. It seemed like you never got that opportunity to express it and really deal with that, you know.

You *** were young. You didn't understand what was going on and why these people did what they did to you. This is your family. They are supposed to love you.

KENYA GILLIAM: Ain't no family of mine. *:^* DETECTIVE HODGE: But I'm saying at a young age you don't know that. All you know is *** no one is taking care of you. Your mom is out there doing dope. Uncle is out here doing sexual things with me [sic]. You know, your family was not there for you. *** But at the same time, you never had, you never got to have the opportunity to deal with all of that. *** [N]ot only that, Kenya, [SE] was put through a lot of testing and it showed that he was being honest about what was going on with him. *** So when he says this about you, it's proved that he's not lying, that he's being honest.

*** boy. KENYA GILLIAM: I don't see how because I ain't never *** did nothing to that ***

That ain't me. That ain't my style. I'm not that type of person. Period. *** This happened to me, so why would I take it to another level and do it to somebody else?

this happens DETECTIVE HODGE: And that's just it. People don't understand when why they do the things they do. to them. It's a cycle. They don't even understand

A - 13 They just act out. *** They just do it because they have never had an opportunity to talk about it and to learn *** about this.

And when you say it's not my style, *** I'm not that type of person, it happened to you, Kenya. And you never got a chance to deal with it. And Shawn is saying he came onto you. He's saying that he enjoyed - - he said that he asked you.

KENYA GILLIAM: Huh-uh.

DETECTIVE HODGE: And it happened *** Kenya. So it's out there and we got to deal with it. It happened.

KENYA GILLIAM: Huh-uh.

DETECTIVE JONES: Can I say something? **'* [W]e have no doubt that it happened. *** Does it mean you are a bad person? Hell no. *** But it does mean that you are a person who may need some help. *** [W]hen you were telling me *** your life story, that is about the most messed up one I have heard in a while. All of it. Your mama wasn't there. Your daddy wasn't there. ***[N]obody chose you. Nobody *** other than [Aunt Rosie] had your back.

As a little kid, that's going to mess anybody up. And I'm not saying that means that you're going to be a messed up person in life, but *** you don't even know how to process that stuff when you are a little kid. So who is giving you love, security, support, attention? Nobody, really. Nobody.

So the fact that you are acting out as an adult, that doesn't surprise anybody because nobody had gave you what you should have had as a little girl. Nobody did that for you. So here you are doing stuff today.

***

Because nobody ever helped you. Nobody believed you. And we can't let that happen in this case. We can't let him be another, you know, adult that nobody believed or helped.l

1 1/15/11 Tr. pp. 65-72.

A - 14 Example B

DETECTIVE HODGE: *** You know, [SE's] doing this because he's getting some help and*** he wants to get better and he wants to uriderstand.

Just like, sounds like you never got that chance. No one ever gave you that. *** [N]o one shows you that love. No one got you the help that you needed.

And *** you know, Kenya, it's out there. *** It's something that's not going to go away. *** We need to address it. We need to talk about it. We can get through this.

But, *** if you are going to sit there and continue to say, no, no, no, he's lying on me, we are not going to get anywhere. He's not lying on you. *** We know he's not lying on you.

*** You know, it's a cycle. It has to be broken. It has to stop.2

2 1/15/11 Tr. pp. 81-83.

A - 15 Example C

KENYA GILLIAM: Y'all just sitting back looking at me like, yeah, shoot, you are going down for this.

KENYA GILLIAM: Like, oh, yeah, you did it. You going to jail.

DETECTIVE JONES: Well, I do believe you did it. I'm not saying that you are going to jail. I'm not sayirig anything like that. I'm saying I know that you did it but I just don't know why you did it.

Believe me, I'm not judging you. ***I wouldn't be a police officer if I was going to sit here and say, oh, she's a piece of shit. *** Hell, no. I'm not in this position for that. I think hearing your story gave me *** more sympathy for you because it hurts me that little kids have to grow up with that crap. Especially their mom. ***[W]hen you mom doesri t have your back, that's the worst, to me. And you always yearn for it, even if she's sick now. *** [I]t doesn't matter what age you are, you always yearn for the love of your parent, mom or dad.

And I'm not judging you *** unless you are just bold with it, and *** you just ** * are hurting these kids.

KENYA GILLIAM: Yeah. *** [Y]ou don't understand how embarrassing it is just to even put your business out there when I said that she attempted to sell me. It wasn't even an attempt. Like he came in there and she basically told him he could do what he wanted to do to me like.

DETECTIVE HODGE: And that's another reason why I say, Kenya, you need to talk about this and get this out.3

3 1/15/l1 Tr. pp. 98-10

A - 16