Individuals with Disabilities and the Issue of False Confessions - Part III

Posted by Chris Morales on Mon, Oct 14, 2013 @ 11:30 AM

Language Implications

There are numerous language devices that contribute to the practices of coercive questioning during police and court interrogations from the viewpoint of the suspect and from the viewpoint of the interrogating police officer or detective. These devices include conversation strategies, equivocal, colloquial language and in-direct requests, complex language structures involving questions, and receptively asking questions.

Conversational Strategies

A series of conversational strategies have identified by forensic linguist Roger Shuy of Georgetown University - all of which he refers to as coercive and tricky. Shuy has matched these strategies to specific court cases. His research shows that these conversational strategies can lead to a false confession.

One strategy is for the police officer to create ambiguity during the interrogation. A second strategy is for the officer to tun off the recorder, thus blocking something the defendant says. Still another strategy is to interrupt the suspect’s statement or to add irrelevant information to the interview to confuse the suspect. Another strategy is to isolate defendant from key information related to the case. And still another strategy is to inaccurately restate what the defendant says. An additional strategy is to lie to the defendant about important information in the case and not to allow the defendant to say ‘no’ during the interview or even script the defendant on what to say instead of allowing him to tell his story.

Equivocal, Colloquial, and Indirect Requests

Vulnerable suspects will often use equivocal or colloquial language or make indirect requests to invoke their right to silence or ask for an attorney. Equivocal language refers to informal, conversational, or everyday talk. Indirect requests refer to asking something in a roundabout way instead of coming right out and directly asking.

A suspect’s indirect request is not considered by the court as a request for counsel. Several cases illustrate this point.

The Supreme Court held in Davis v. United States that a suspect’s statement, “Maybe I should talk to a lawyer,” was not an invocation of the right to counsel because he used the “indirect speech” form of “maybe.” Instead, the Court ruled in favor of an interrogating officer. It was ruled in favor of an interrogating officer. It was ruled that police under no duty to ask the suspect clarifying questions regarding whether the suspect wanted an attorney after making the indirect request. Thus, according to the Court, police officers had the legal right to continue the interrogation.

In another case, Schneckloth v. Bustamonte, the court held that police officers made a direct request for a search. However, a language analysis shows that the police made an indirect request. For instance, the police asked the suspect, “Does the truck open?” Linguistically, this is an indirect request. Literally, this statement is actually about the condition of the trunk and only individuals makes the request or demand to open the truck.

In contrast, in the Davis case, the suspect who made an indirect request (Maybe I should talk to a lawyer.”) was not interpreted by the courts as making a direct request to ask for a lawyer.

In comparing these two cases (Davis and Schneckloth), law processors Lawrence Solan and Peter Tiersma pointed out that suspects that were subjected to interrogation were held to a higher linguistic standard than police. In other words, the court ruled that the suspects must be direct in involving their right to remain silent and to obtain counsel, and the police officers were under no legal duty to ask for clarification on whether the suspect wanted an attorney or not.

Furthermore, the professors pointed out two contributing factors to false confessions: stress and lack of education. Suspects are typically under stress while being interrogated and they are often uneducated. These suspects should be allowed to invoke their rights using the types of indirect requests that are common in everyday speech. Requiring a clear declaration on the part of the suspect weakens the suspects’s right to silence and to obtain counsel.

Asking Leading Questions

Another language device involves the asking of “leading questions.” Lawyers and police officers can utilize a controlling and coercive method or leading questions to suggest there is only one correct answer. They do this in order to “lead” the individual to that answer. One linguistic form is the negative yes/no question. Peter Tiersma uses this example: “Didn’t you eat broccoli last night?” A positive response is expected, but Tiersma claims the exemption is linguistically complicated. Other leading questions framed in complex linguistic structures are called tag questions. Tiersma uses these examples:

You ate broccoli last night, didn’t you?
You ate broccoli last night, isn’t that correct?
It is true, isn’t it, that you ate broccoli last night?

The tag can be found at the beginning, in the middle, or at the end of the sentence and this causes confusion and disrupts comprehension for the suspect.

Finally, common coercive questions strategy is for the police to make a statement with a rising or question intonation. Peter Tiersma’s example: “You ate broccoli last night?”

Tiersma claims that these leading questions are not requests for information, but are assertions of facts or accusation that the policeman or lawyer uses to obtain agreement form the individual being questioned. As such, these kinds of questions can undetermined an individual’s responses.

The Morales Law Firm would like to thank The National Association of Criminal Defense Lawyers Champion for sharing this article with us.

Part IV Posted on - 10/16/13

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Tags: trial, defendants, criminal, false confession, Miranda Waiver