What happened?
If you haven’t already heard the story, here is a quick synopsis. Trump won the election. While he was waiting to take over, he named Ret. General Flynn as his National Security Advisor. Flynn had communications with people in the Russian government. The FBI targeted Flynn, as they attempted to prove collusion for the purpose of election tampering between the newly elected President and the Russians. Flynn allegedly changed his story to the FBI on this subject, and the FBI used several techniques and threats to have Flynn snitch on President Trump. The FBI threatened to prosecute Flynn’s son, and Flynn pled to lying to the FBI.
Why is this not entrapment, but still unethical?
Turn the clock forward. The government has released reports and documents from the FBI investigation clearly showing the FBI intended from the beginning to target Flynn to get to Trump. The DOJ has now withdrawn charges on Ret. General Flynn, but many people are outraged that the FBI entrapped Flynn. What the FBI did was not extraordinary or even out of the norm. Police may lie to you during an interrogation. They can suggest you don’t need an attorney. They can even threaten you and promise you things as long as these actions are not egregious or shock the conscience. The problem is this has become a game of “can I get a conviction”. This is a dangerous game, which castrates any effort to objectively find justice.
How does this lead to false confessions or false statements?
The use of this interrogation technique regularly leads to false confessions, or worse misleading statements by witnesses. It is known as the Reid Technique and it was developed in the 1940’s. It is based on three parts: (1) Isolation, (2) Maximization, and (3) Minimization. Isolation is obvious. Maximization is when the interrogator insists the suspect is guilty, and refutes claims of innocence by strategically revealing small portions of evidence even if they are untrue. The maximization portion of the interrogations is fraught with potential problems. The primary issue is that of Detective Myopia, which often leads the investigation down an erroneous path. Detective Myopia is when the investigators make their mind up who committed the crime without sufficient evidence, usually based on bias or prejudice. Then comes Minimization, where the interrogator tells you he/she understands and people will understand if you just agree with his/her version of events. If the suspect confesses, it will be better. This is especially effective at getting statements from the suspect when combined with threats of arresting or charging other people they care about. The problem is the statements regularly lack reliability, as Wickland-Zulawski and Associates now claim after training police for years on the Reid Technique.
How should it be done?
Ret. General Flynn is a hardened veteran with an education and years of experience being in stressful situations. Even with those tools at his disposal, he still fell victim to the techniques of myopic FBI agents who had already made up their minds and predetermined what justice looked like. What chance does a juvenile suspect have? How about a distraught mother accused of child abuse? Age, lack of education, and psychological maladies all increase the chances of false statements. The only real answer is to reduce Detective Myopia, and for the investigators to maintain their objectivity. One way to increase the objectivity is to follow something closer to the The Scharff Technique which is defined by four key components: 1) a friendly approach, 2) not pressing for information, 3) the illusion of knowing it all, and 4) the confirmation and disconfirmation tactic. In short, the interrogator becomes an interviewer who lays out the evidence allowing the person being interviewed to fill in the blanks. Don’t be fooled by the softer nature of this technique, it is highly effective when done correctly, and has a much lower rate of error by false statement and confession.
Conclusion
What chance does the average person have if someone as smart, experienced, and savvy can be leveraged into pleading guilty? There is no place for duress and threats of any kind in a suspect interview. This is lazy and reaps false statements. The judiciary needs to tighten the reins on this issue to prevent this undue influence. The facts speak for themselves: 29% of all DNA exonerations involved a false confession. If you are outraged by the FBI techniques used on Ret. General Flynn, then be just as outraged these same techniques are used on a daily basis by almost every police force in this country. It is time for a change.
Author: Brian Boeheim
Brought to you by: Boeheim Freeman Law – 918-884-7791