Talking to people about crime and criminal behaviour: The ethics of investigative interviewing

Basic background issues

• Security concern - An issue or threat considered to be important by law enforcement—in a liberal democracy.

• *Natural justice - A state should treat citizens fairly and in an unbiased way before making decisions that will negatively affect them.

• Natural justice and a monopoly on the means of coercion must go hand in hand. * - in a failed state *

How the pillars affect the ethics of interviewing

• Investigative interviewing vs interrogation * - vs trying to confirm a preconceived notion

• Inquisitorial interviewing vs accusatory interviewing - discussion about ethics begins

Accusatory interviewing

• Trying to expose guilt or reveal hidden knowledge

• Trying to confirm preconceived notion

• Many will say that this is unethical

• Usually leads to false confessions

• *

• Obstructing natural justice if assuming guilty already as don’t have a chance to mount a defence

When is it ok to probe a person’s privacy?

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• Asking questions that you ordinarily won’t discuss with a stranger in interviews

The right to autonomy and privacy.

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• It makes investigative interviewing highly morally risky

• *

• But it is not wrong by default

Moral equality

• People have equal worth, our interests have equal value, and we possess the same bundle of basic rights

• In a liberal democracy the *

What is the best way to navigate the risks?

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• Consent-worthiness - An investigative method is consent-worthy if the method brings little negative consequences to law-abiding citizens. (Hartwig et al., 2016) *

• * consider inquisitorial interviewing as consent worthy

Inquisitorial interviewing

• *PEACE model *

• Primary focus is to gather as much truthful information as possible *

• Positive confrontation - whatever accounts the interviewee provides the interviewer can challenge *, can bluff or use false evidence

• Congeniality - *

• *

Why is inquisitorial interviewing not enough?

• Perhaps too low a bar when justified by being congenial or better than torture

What is and isn’t psychologically manipulative?

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• Can seem pleasant and nice to 3rd part but *

Make sense of the risks people face

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• Suspect: People who undergo questioning because there is reason to believe that the person has committed a crime or an aspect of a crime.

  • Loss of civil liberties.

• Witness: People who are interviewed because of direct sensory experience of a crime—— OR they have been directly harmed by the crime (i.e., victims).

  • Loss of civil liberties. - *

• Human intelligence (HUMINT) source: People who undergo questioning because they might have some information about some security issues.

  • Loss of civil liberties - can incriminate themselves or others

  • Unpredictable risks - could be about foreign policy *

• People can change roles

How do we protect interviewees from unjustified risks?

• Problem is we hardly know who is actually guilty of a crime - interview would be unecessary otherwise

• Interviewees should be allowed to decide what to disclose - executing this in practice is not so simple.

• The right to silence - essential safeguard for the worse case scenario where they incriminate themselves or someone else

  • If a person DECIDES to disclose things in an interview, we can reasonably assume they have consented to the potential consequence beforehand.

  • Bad-faith actors might take advantage of the right to silence - *, inescapable as weakness of a liberal democracy so interviewing is not the only tool to investigate crime

  • The right to silence gives good-faith actors autonomy - *

How can we make *

• Inquiry-clarity: Interviewees must be maximally and instantaneously aware of what the interviewer is asking for

• Disclosure-awareness: interviewees must be maximally and instantaneously aware of the information they are choosing to disclose

• *these two principles should give anyone *

• They have to go in this order *

Vulnerable interviewees

• Adults with cognitive disabilities and children

• More likely to *

• We must take special measures to ensure inquiry-clarity and disclosure-awareness

• Interview techniques for adults may not be suitable for children *

The Scharff technique

• Developed using a system used in WWII

• Scharffian tactics:

  • Friendly approach

  • Not pressing for information - avoid asking direct questions as much as possible

  • Creating illusion that interviewer knows it all - *interviewee thinks they can’t add much to it

  • Confirmations and disconfirmations (rather than asking direct questions) - *make a claim and see if interviewee confirms or disconfirms it, takes less psychological effort to do this than answering a direct question, reduces the initiative the interviewee has to take to elicit information

  • Downplaying the relevance of new information - interviewer is meant to make a poker face, make the interviewee not realise they’ve shared something important

• Idea is to get interviewee to contribute but think they have not contributed as much as they have

The Scharff Technique vs Direct Questions

Meta-analysis *

• Interviewees underestimate the amount they reveal - *, violates principle of * awareness

• Interviewees find it difficult to determine the interviewer’s objectives - specific way this happens is when the confirmation and disconfirmation tactic is used as *, violation of * clarity

• If these violations can happen with neurotypical adults *

Things to consider about the Scharff technique

• *

The Strategic Use of Evidence (SUE) Technique.

• The Scharff technique always seeks to increase perceived interviewer knowledge. *

• The SUE technique increases and decreases perceived interviewer knowledge.

• The Scharff technique is for HUMINT sources to elicit information only while the SUE technique is for susupect to detect lying

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1. Most suspects will form a hypothesis about the information an investigator might have.

• Liars use it to plan how to be evasive.

• Truth-tellers use it to be forthcoming.

• *

• The interviewer can *

2. Guilty and innocent suspects use different methods to convince the interviewer of their innocence.

• They both have the same goal to convince the interviewer that they are innocent

• Innocents (or truth-tellers) try to be as forthcoming as possible.

• Guilty group:

  • Avoidance responses: Avoid disclosing or saying anything incriminating. *

  • Escape responses: Denying anything incriminating e.g. saying that “It wasn’t me” - the Shaggy defense

• Liars need to conceal information

• Truth-tellers need to reveal information.

3. Keep the interviewee guessing about the evidence.

*

Reveal inconsistencies between the evidence and what liars say.

• *

• Close all potential escape routes

• Such underestimation *

• If interviewer overestimates then liar might think that it is pointless to hide what they already know so reveal it but it is actually new information

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• Prevent liars from attempting to offer alternative explanations.

• It would also give innocent people plenty of opportunities to *

The Strategic Use of Evidence Technique violates natural justice?

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• The suspect cannot determine whether to invoke their right to silence and privilege against self-incrimination*

• The suspect cannot challenge the lawfulness of their arrest *

When and how to disclose evidence has wide-ranging psycho-legal implications.

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