The Do’s and Don’ts of Interrogating a Suspect

Our guest today is Cathi Stoler, award-winning advertising copywriter and author of Telling Lies, her first novel, published by Camel Press, dealing with stolen Nazi art. Others in this series will include Keeping Secrets, exploring hidden identity, and The Hard Way, about the international diamond trade. Her short stories include Fatal Flaw, published online in April at Beat To A Pulp, and Out of Luck, to be included in the upcoming New York Sisters in Crime anthology, Murder New York Style: Fresh Slices. In addition to Sisters in Crime, Cathi is a member of Mystery Writers of America. Find Cathi at www.cathistoler.com.

According to Detective Sergeant Joe Giacalone, Commanding Officer of a New York City Cold Case Squad, the guilty always sleep. Literally. The instant they sit down in the interrogation room, they put their heads down and fall asleep. And, while there’s no scientific evidence to explain this behavior, it’s become part of police lore and something not to be ignored.

Detective Giacalone shared this insight along with many others at a recent meeting of the New York chapter of Sisters in Crime. Wanting to make sure our group of mystery and crime writers would get it right, he described the interrogation process from setting up the room, or ”the box”, to arresting and booking the suspect.

The interrogation is the last part of the investigation, conducted after all the interviews and canvassing of witnesses is completed. The goal in this psychological game of cat and mouse is to get an admission or confession.

The box is small. Very small. With no windows, clock, posters or any distractions. The suspect’s chair is hard and he is seated with his back to the door … another psychological ploy that helps preclude the thought of being able to walk away a free man.

An interrogation is not a fishing expedition. It’s meant to test information the police already know. At this point, based on physical evidence and eyewitness reports, as well as means, opportunity and motive, they are sure they have the right person for the crime. The case investigator is the one who asks the questions and an associate takes notes. Once the suspect is taken into custody and Mirandized, the questioning can begin.

According to Detective Giacalone, it’s important to keep the suspect talking and not do anything that will close him down. The detective may ask open-ended questions such as: “Do you know why you’re here?” and let the suspect tell the story his own words, or ask close-ended questions, such as: “Where were you on such and such a date?” to establish a time frame. One strategy is to ask the suspect to repeat his story backward. It’s a good way to tell if he’s lying.

Investigators can lie and use trickery but cannot fabricate information. Telling a suspect that his fingerprints were found a scene is fine, but showing him actual false fingerprints is not acceptable.
Investigators are also careful to avoid words that could upset or stun a suspect.

Instead of saying “murdered”, “raped” or “killed”, they substitute phrases such as “something happened”, “someone got hurt”, or they’ll talk about “the incident”.

If you want to know more about how to conduct a true-to-life investigation for your story or novel, grab a copy of Detective Giacalone’s book: Criminal Investigative Function: A Guide for New Investigators.

Cathi Stoler

‘LIAR, LIAR, PANTS ON FIRE!’…

…I would taunt my prisoners in the holding cell in the Detectives Squad Room on the second-floor of all the Brooklyn Precincts I ever worked in. My goal was to break down the perp’s story till he gave up the truth. I confess that I was remarkably unsuccessful at extracting confessions by my methods, unlike my fellow detectives for whom the confession was the sine qua non of the ‘good detective’. As we all must know from having watched ‘Law & Order’ reruns without number, the police are allowed to lie to ‘persons of interest’ (TV, again), but I was not—and never could be—a Det. Bobby Gorn (Law & Order: Criminal Intent).

Not that I didn’t give it the ‘old college try’. When I joined the NYPD in 1967, I was already a college graduate, but not from City U’s John Jay College of Criminal Justice, which was so police-oriented that it was called by the rank-and file the ‘John Jay College of Criminal Knowledge’. At that time, lying was not a big topic of conversation among the troops in the field—unless, of course, you were caught in it. For example, if you were in pursuit of a drug seller or villain armed with a gun and he threw away those items as he ran—as they were wont to do—post-arrest when testifying on the witness stand, you swear, “While in pursuit and never losing sight of the subject, I saw him discard (gun or drugs) and recovered same from where I saw him drop it.” In the 1970s, this canned testimony became so frequent in the Courts that cases in which it was uttered became known as “dropsy cases”. Judges even began to express their disbelief on the record, but rarely found for the defendant and suppressed the evidence. But taking a hint from the judiciary, cops, always alert to the prevailing winds, changed up. The bad guys stopped discarding the evidence (even when they did), and so were found in possession of the gun which the officer had previously spied in his waist band and recovered from his person after a foot chase. Judge, DA, cops--everybody was happy with the new turn of events. To all the players, except probably the defendant, this was thought as a ‘white lie’, I imagine (having been instructed in Ethics by the Jesuits) that served a good purpose.

You might be asking yourself at this point: How can the police purposely lie under oath on the witness stand? Isn’t that Perjury, a Felony? Yes, of course, but the other players in the so-called Criminal Justice System—the Judge and the District Attorney—don’t object to the practice so long as there is no blowback, no scandal (meaning: Newspaper Headlines). Callous? Immoral? Nah! It’s just the efficient administration of ‘Justice’.

You need to understand that the principal product of the System is Numbers. For the Judge on the bench in the lower trial courts, the goal is to get through his calendar of cases every day: any lag will jam up the assembly line. On average, on any weekday, in the New York City Criminal Courts in each of the five boroughs, a judge will have to move 100 to 150 cases on his calendar during his eight-hour shift. If he fails, the cases pile up for the judge on the next shift. The Administrative Judges higher up write the report cards on their underlings. Advancement to County, Supreme, Appellate Courts depends on your standing among your peers. The prime directive: Don’t Make Waves! Move the Calendar!

The District Attorney, an elected official, the County’s top law-enforcer, is judged by the electorate on his performance, which the DA defines as the number of cases his Office prosecuted—especially, the number of Indictments he has gotten the Grand Jury to vote, and, even more especially, the number of convictions resulting from those Indictments. This is the DA’s Batting Average. And just as in baseball, if the DA’s average slumps, the voters may put him on waivers. Enter Plea-Bargaining: the grease that keeps the machine on track. When a defendant in an Indicted felony case insists on a jury trial--because he’s innocent or just pissed off by the DA’s Pre-Triial ‘Offer’ (that is, the number of years the offender must spend Upstate)--the period from his arrest through Indictment, Pre-Trial Hearings, and Trial to Verdict, averages one year. In the alternative, consider how many cases the DA can ‘dispose of’ (a term of art) by plea in a year? Dispositions devoutly to be wished for.

Consider the poor police at the bottom of the pyramid. 250,000-plus arrests in New York City last year. Cops are evaluated by their superiors based on their ‘productivity’; that is, the number of arrests made and summonses issued, the base line being ‘the quota’ expected from each patrol officer monthly. Or else. The basic police assumption: if you arrest enough law-breakers, the citizenry will be better off. In the past, the Department didn’t keep stats on the results of all those arrests—that is, how many resulted in convictions in court . The Conviction Rate was a litmus test for the quality of those numbers. See no evil, hear no evil, speak no evil.

So, to answer the underlying question: Why do cops lie on the witness stand in Court?

First, because they believe the perp is guilty and it’s up to them to get him off the street. The good cops I’ve known believe that, and the system within which they function encourages their belief. The statute making Perjury a crime is as little enforced as that which criminalizes Adultery. I can count the number of cops indicted for Perjury on one hand and have fingers left over. When it happens, it’s a hammer employed by a prosecutor to compel one cop to testify against another. For example, Patrolman Bill Phillips testifying about dirty cops like himself under a grant of immunity before the Knapp Commission Investigation into Corruption in the NYPD, in 1971; Office Charles Schwarz in the Federal prosecution of Officer Justin Volpe for the sodomy of Abner Louima in the bathroom of a Brooklyn Precinct in 1989.

Secondly, to comply wit the unspoken desires of prosecutors, who only want a sure thing, a case guaranteed to end in a conviction. What they DON’T want is the truth in detail of how the arrest came about, what the cop saw, did, heard, if it isn’t according to Hoyle, if it violated a Constitutional right of the defendant, no matter how plainly guilty he is. Cops know this from experience with the assistant DAs who prosecute the cases in the trial courts. They have seen the ambitious ADAs figuratively slap both hands over their ears rather than hear a detail that undermines the way it must legally happen. Next time, the cop will tailor his story so as not to offend those sensitive ears.

Thirdly, because they’re bad cops and lie to cover their sins, knowing that there’s no downside to lying within the System.

(Next time, Bad Cops…)

Robert Knightly

‘Testilying’…

. . . Is a term coined by New York City police officers to describe what happens with some frequency (otherwise they would not have felt called upon to invent the word) when arresting officers testify under oath in Court at hearings and trials about how they came to arrest the ‘perpetrator’ and what he said to them—freely and without duress, even after being given the ‘Miranda Warnings’ (arising from the seminal U.S. Supreme Court case, Miranda v. Arizona, in 1964)—to the effect that they don’t have to answer the questions of the police while confined in a Precinct Squad Interrogation Room being grilled by multiple detectives in shifts, continuing for as long as three days (a client of mine) rather than being taken to Court for Arraignment before a Judge within 24 hours of arrest, as the law requires.

Police, usually one of those interrogating detectives, often feel the need to ‘testilie’ in describing how the defendant (we’re in Court now) ‘confessed’ to the crime.

Over time it has become the sine qua non of the good detective to extract incriminating statements from his ‘collar’ (police-speak for the arrestee). The law does permit police to lie to the suspect (who has become ‘a person of interest’ in TV- and Press-speak): for example, “Your partner next door is right now throwing you under the bus, making a deal with the DA”; or, “Tell us what happened, you were just defending yourself, right?” I suspect cops now take their language cues from TV’s “Law and Order”, much like the Mafia’s ‘made men’ began to ape The Godfather’s dialogue (if media Mob Commentators can be credited). What are the cops not permitted to say? “Just tell us how it went down and you can go home”; or, “If you don’t talk right now, we’re calling ACS (Administration for Children’s Services) to take your girlfriend’s kids into Foster Care.”

Having been a criminal defense lawyer for 18 years with the Legal Aid Society of New York City, I personally knew a tough guy gang-leader from the Ravenswood Houses (a NYC Project in Queens) who folded when presented with the police version of ‘Sophie’s Choice’. Who held the moral high ground in this exchange is not in dispute.

As a retired NYPD lieutenant with 20 years on patrol and many partners still on the Force or working as investigators in District Attorney’s offices in all the boroughs, I hear the stories: the female detective in a Queens Precinct who simply invents out of whole cloth ‘confessions’ by her arrestees; the detective who arrests anybody, suspect or not, in a high-profile case “because the bosses are breathing down our necks.” This is what goes on, daily, I believe. Assistant District Attorneys refuse to acknowledge it. They must rely on police testimony in virtually all of their trials. They are loathe to believe they are presenting perjured police testimony. I knew one Assistant District Attorney in Manhattan who refused to indict a case because he was convinced his police witness was lying. He was soon looking for another job. Judges are well aware that the police will lie under oath on the witness stand, yet have not ever, in my memory, referred such conduct to the Borough District Attorney to proceed criminally against the policeman. Instead, they will label the cop or his testimony "incredible”, decide the case accordingly and leave it at that.

This whole unsavory business of police perjury came up the other day in Manhattan where I was a panelist on an MWA program at the New York Public Library, entitled “From the Autopsy Room to the Courtroom: How Medical Examiners and Lawyers Speak for the Dead.” There was myself, the sole defense lawyer, two former prosecutors, a NYC Medical Examiner and our moderator, a serving NYPD lieutenant—all of us authors of ‘mysteries’. To be candid, I raised the subject myself in my off-the-cuff remarks. You see, I don’t ‘speak for the dead’ (the de rigueur description of the jobs of police and prosecutor). No, I speak for the living, the lonely soul described as “the Perpetrator” by the cops, “the Defendant” by the DA, and “the Wrongly-Accused” (sometimes) or “the Innocent” (rarely) or “the Not-So Guilty” (mostly)-- by me. I must confess I wormed my way onto this panel, owing to some perversity in my character, no doubt. And that must explain my intemperate remarks about the police in our alleged Criminal Justice System—remarks so not in keeping with some of my fellow-panelists’ dearly-held naïve beliefs.

It was a large audience, about 125 who overflowed the room. I admit I thought I did a creditable job as panelist, getting some laughs and being complimented at the end by a woman who called me “delightful”. I feel certain she was neither a prosecutor nor a cop who, I was informed, found me highly objectionable. I’ll just have to put that out of my mind and get on with it. I can well believe the audience was loaded with cops and DAs since only three hardcovers were sold by the book vendor (one was mine and I bought another).

In the interest of more candor, I confess that my series hero, NYPD Detective Harry Corbin, is forever “speaking for the dead” (which is okay since he’s a cop).

Robert Knightly