Investigative interviewing: the literature - New Zealand Police

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Investigative Interviewing: viewing: THE LITERATURE Ord et al (2004, pp15-19) describe the key steps to ensuring a successful interview as: • creating a good impression from the outset • treating the interviewee as an individual • understanding the feelings of the person being interviewed • explaining the reason for the interview • giving an outline of the procedures and the reason for them • describing the format of the interview. The research suggests that the attitude and energy brought to an interview is critical. It determines how the interviewer treats the interviewee, which in turn influences the interviewee’s reaction to the interviewer. VULNERABLE WITNESSES As mentioned earlier, many people find the processes involved in being a witness stressful. Certain categories of witnesses have particular difficulties. These include children, the mentally ill, people with learning disabilities, those with physical and/or communicative disabilities, rape victims, and so on. Evans and Webb (1993, p37) warn that: “These individuals are particularly at risk of having their interviewing responses affected adversely, distorted, and shaped by an unaware, unskilled interviewing officer”. In the last 15 years or so, most criminal justice systems around the world have demonstrated an awareness of the need to accommodate these ‘vulnerable witnesses’ at each stage of their involvement in the process (see CFIS, 2004; HMSO, 2002a & b). Some of the specific efforts, however, have been less than successful (Milne & Bull, 2003). For example, while special measures to help certain child witnesses to give their evidence were introduced by the Criminal Justice Act 1991 in England and Wales, other groups did not fare as well. One reason for this, according to Milne and Bull (2003) “…was the belief, at least in legal circles, that such people were not competent to testify … Given this, police forces decided, in light of their other priorities, not to focus on improving their interviewing skill in this regard” (p117). This belief has since been proved erroneous. Recent developments Milne and Bull (2003) acknowledge that in England and Wales at least, the recent Youth Justice and Criminal Evidence Act 1999 should go some way to overcoming difficulties. This “pioneering legislation” (p118) sets out ‘special measures’ that are intended to help vulnerable and intimidated witnesses - both children and adults - to give their ‘best evidence’ in criminal proceedings. These special measures include: • allowing a video recording to be made of the witness interview and admitted as evidence-in-chief • screening the witness from the accused, and • giving evidence by means of a live television link. Under the Act, witnesses are eligible for this special assistance on the grounds their vulnerability due to age or incapacity. They must be under the age of 17 at the time of the hearing, or the court must consider that the quality of their evidence is likely to be diminished because the witness suffers from mental disorder, or otherwise has a significant impairment of intelligence and social functioning; or has a physical disability or physical disorder. Witnesses are also eligible for assistance on the grounds of their being ‘intimidated’ i.e. they are “in fear or distress about testifying”. In these cases the court takes note of the nature and alleged circumstances of the offence to which the proceedings relate, the age of the witness, and other relevant matters, namely– • the social and cultural background and ethnic origins of the witness • the domestic and employment circumstances of the witness • any religious beliefs or political opinions of the witness • any behaviour towards the witness on the part of– – the accused, – members of the family or associates of the accused, or – any other person who is likely to be an accused or a witness in the proceedings. Achieving best evidence To accompany the Act, the Home Office prepared a document “Achieving best evidence in criminal proceedings: guidance for vulnerable or intimidated witnesses, including children” (HMSO, 2002b). Amongst other things, the document: 38
REVIEW OF INVESTIGATIVE INTERVIEWING “gives advice and guidance on how to prepare for and conduct investigative interviews with vulnerable and/or intimidated witnesses. … [T]he legal position as regard these witnesses is outlined, and advice given on how witnesses may be most effectively interviewed to obtain best evidence. Special guidance is provided on interviewing witnesses with sensory impairments, learning disabilities and mental ill health” (p6). Mode of recording In addition, there is guidance on making decisions about whether or not to conduct an interview, and whether the interview should be video-recorded or taken by written statement (HMSO, 2002b, p3). For example, the question of whether to interview on video will depend on the interviewing officer’s (or a senior officer’s) judgment about whether the quality of the witness’s evidence is likely to be “maximised” as a result. The police need to consider a range of factors such as the circumstances of the case and the state and views of the victim. Whilst the recorded interviews are intended to be played in lieu of the witness’s evidence-in-chief, whether or not they are used in this way or not is decided by the court - taking account of a number of factors that include the likelihood that the use of the video recording might inhibit the testing of the evidence by any party. The police must therefore avoid giving the impression to a victim that making such a recording will automatically lead to it being played in lieu of evidence-in-chief (CFIS, 2004). Since the Act, a number of police forces in England have established limited criteria - such as the seriousness of the incident - to decide whether to tape-record vulnerable witness testimony. Others, such as Northern Ireland, have taken the view that all interviews with people meeting the criteria of vulnerable and intimidated witnesses will be videotaped if at all possible and the witness agrees. At present the PSNI has only 3 portable video units for these types of interview but hope to get more in due course (personal communication). How effective the Act and guidance are in overcoming previously acknowledged deficiencies in accommodating the needs of vulnerable witnesses will not be known for some time. In the meantime, the Centre for Investigative Skills (CFIS, 2004) has ensured that the advice and principles have been clearly incorporated into the recommended training for police interviewers under the new ACPO Investigative Interviewing Strategy (Association of Chief Police Officers, 2003). SUSPECTS The suspect interview is a critical stage in the process of case construction and disposition. It is therefore pivotal in most criminal cases (Baldwin, 1994; Williams, 2000, p209). But there is debate on the aim of the suspect interview. The two schools of thought until fairly recently have been: 1) the aim is to induce a confession, and 2) the aim is to reach the truth. A confession appears to ensure swift and sure punishment of wrongdoers. The truth ensures either evidence of guilt, followed by swift and sure punishment; or evidence of innocence, followed by release. Some commentators however, suggest neither is accurate. For example, according to Baldwin (1993) “…it is the current fashion in official police circles to identify the purpose of questioning as being a ‘search for truth’ or some neutral collection of information from suspects … [but] it has to be remembered that running through all police interviewing is the expectation that, for any offence, there are a number of clearly defined features - or points to prove - which will need to be addressed” (p327). Baldwin (2003) suggests it is “more realistic to see interviews as mechanisms directed towards the ‘construction of proof’” (p327). In other words, the objective of interviews is not to get at the slippery concept of ‘truth’ but to build an evidential case or establish that there is no evidential case. Why suspects confess An admission of guilt by a suspect has always been a crucial source of evidence for convictions. When obtained under formal interview conditions, it carries particular weight. Thus, interviewers should understand why suspects confess when interviewed. Research (reported in Gudjonsson, 1992) has found three broad reasons, the first of which is by far the most important: • suspects are most likely to confess when they perceive the evidence against them as being strong (and denials are therefore futile); • many suspects are sorry for their crime and want to talk about it and give their account of what happened; • suspects react to external pressure from factors such as the stress of confinement and police persuasiveness. 39
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