Two criminal defense attorneys discuss investigative interviews versus interrogations, false confessions, and potential problems with the Reid Technique.
Criminal defense investigator Hal Humphreys hosts two prominent criminal defense attorneys to discuss investigative interviews, the potential dangers inherent in interrogation tactics like the Reid Technique, false confessions, and what defense attorneys need from investigators. Reagan Wynn is a practicing trial attorney in Ft. Worth, Texas. Jerry Buting is one of the attorneys featured in the Netflix series, “Making a Murderer.” He’s a legal scholar, writer, and hard-hitting trial attorney who travels the world talking about criminal justice. His book, Illusion of Justice: Inside Making a Murderer and America’s Broken System, came out in 2017.
Transcript Highlights:
(Heavily edited for brevity & clarity)
HAL HUMPHREYS:
Interview techniques. There’s been a lot of talk about the Reid Technique of interviewing. John E. Reed and Associates recently filed a lawsuit against Netflix and the creator of “When They See Us.” Reid and Associates claim that Netflix misrepresented their technique. I have friends in the industry that have pointed out that there are useful parts to the Reid technique. I don’t disagree. But I fear that investigators who fix on a suspect and approach interviews with a preconceived notion are at serious risk of creating their own bias circuit. When an interviewer approaches a witness with an eye towards seeking an admission of guilt, a confession, they may very well miss important parts of the story. In these instances, an admission-seeking interview is better described as an “interrogation.”
The Reid technique outlines a series of steps that involve factual analysis, what they call a behavioral analysis interview, and then an interrogation. Wyatt Kozinski, a student at UVA Law, claims that the Reid method and general interview techniques taught to law enforcement throughout the country are based on the old-school “third degree.” It’s focused on getting a person to confess more so than figuring out what actually happened. In 2018 Kozinski wrote, in the Seattle Journal for Social Justice, “This creates a discontinuity between the job of the investigator, which is to analyze clues and witness reports to reconstruct the past, and that of the interrogator, which is that of a thug or trickster whose function it is to cajole or wheedle a confession from an unwilling suspect.”
How can an investigator get an accurate account of what a person truly knows about a crime? How about let them tell their story.
I’m joined today by Jerry Buting and Reagan Wynn, two trial attorneys. They’re both amazing jurists, thoughtful litigators and pugilists at heart. They’ve dedicated their professional lives to fighting for justice. Jerry Buting trial attorney, you may know him from the Netflix hit series “Making a Murderer.” If you find yourself in jeopardy in Wisconsin or Texas, these are two of the guys I would tell you to call first thing.
I want to dive right in. The Reid Technique and the most recent lawsuit. Jerry, do you think this kind of publicity can educate the public about how police obtain confessions?
BUTING:
I was a surprised when I heard about the lawsuit because it seems to actually be increasing negative publicity for the corporation. The complaints were … some statements made that the Reid Technique is generally discredited. But neither statement in the documentary struck me as defamatory. They largely appeared to be opinion-based, and of course they have the defense that they could be the truth. So the lawsuit will force them to defend their technique, while at the same time, the respondents — Netflix and the filmmaker — can present evidence that this technique is, in fact, risky in producing false confessions.
This must be a reflection that they are losing business. Probably not just from that documentary, but also from “Making a Murderer” and what what millions of people all over the world saw happen to Brendan Dassey* — the very kind of person who is at risk for false confessions: young, mentally challenged, inexperienced with police. And Reed tries to argue, whenever there’s a false confession and there are trained officers involved, “They weren’t using our technique. They were going rogue.”
If anything, it’s going to perhaps increase the public discussion, whether it should be outlawed in this country, as it really has been abandoned everywhere else in the English-speaking world.
*Brendan Dassey, a 16-year old with intellectual disabilities, confessed to being a party to a murder, after an interrogation that millions of viewers of “Making a Murderer,” his attorneys, and a federal magistrate judge have deemed deeply troubling, if not unethical. To read more about his case, see this Northwestern Pritzker School of Law site.
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{photo: Michael Steeber, Wikimedia Commons}
HUMPHREYS:
In Great Britain, I know they pretty much have gone [to the PEACE method] and away from the Reid Technique. Reagan, do you think juries are going to pick up on this?
WYNN:
I think that most people walk into a courtroom to be a juror thinking, there’s no way anyone would ever falsely admit admit to something they didn’t do. And you can really enlighten jurors about these problems. The problem is making sure that attorneys are aware of the research and ways to present that information in a compelling manner.
HUMPHREYS:
Jerry, on “Making a Murderer” — how do you get that across to people, what happened to Brendan Dassey in that police interrogation?
BUTING:
What they showed in “Making a Murderer,” was one day of a three-day process in which they started softening him up, saying things like, “Brendan you know, there’s people in the DA’s office saying ‘Why isn’t Brendan Dassey charged? He was with Steven Avery that night, he must have been involved. But we think you’re a good kid, and we’re holding them back.’ They set themselves up as his protectors against people who wanted to prosecute him. So the interrogation of was really Exhibit A of what’s wrong with this Reid Technique as employed by too many law enforcement officers.
How do we explain this all to jurors? Most people think, I’m not going to falsely confess. Why would I? Before DNA exonerations, almost nobody thought people falsely confessed. But after DNA exonerations were studied, we learned that somewhere in the neighborhood of 40-43 percent of [juveniles] had falsely confessed to crimes that DNA later proved they were completely innocent of. And when you expand it to adults, I think it was still something like 15 percent.
So it is a challenge to present it to jurors. But we also have to make sure that attorneys are educated enough about the process and the risks. Only about 50 percent of the states in this country mandate recording of interrogations by police. That is critical, because if the jurors don’t have an opportunity to see what’s going on, it’s difficult to convince them that the confession could be false.
HUMPHREYS:
I want to talk about how private investigators conduct interviews. Jerry, I’m going to share this image from my screen. This is a form shown to Brendan Dassey by his criminal defense investigator [Mike O’Kelly] when he was interviewing him. Jerry, can you tell me what’s wrong with this form?
BUTING:
He’s given two choices: “I am very sorry for what I did,” or “I am not sorry for what I did.” And there’s not the third choice, which is “I didn’t do what I’m accused of.” I had not seen that video at all until “Making a Murderer” came out, and I was shocked. Normally this stuff is turned over in discovery. And then it hit me: We didn’t get this because this was the defense investigator’s evidence.
I think private investigators have to be careful about falling into this trap that they can determine by behavior whether or not someone is telling the truth. That’s a monumental myth. Study after study shows police officers, no matter how well-trained, are really no better than a flip of a coin at judging truth or deception. And if you make the conclusion that the person you’re talking to is lying, then the entire questioning of that person is going to be tainted by that viewpoint — rather than instead allowing the person to tell their story, get as much detail out as possible, then go back and challenge some of those details if you want.
But Reid teaches if the officer decides that the suspect is lying, then you will not accept any denials thereafter. You can lie to them. You can tell them you have evidence you don’t. You can adopt this “false friend” approach. They did this in Brendan’s case, “Brendan, I’m a father with a 16-year-old just like you, and I want to come over and hug you. And, and I know you’re hurting and we’re going to go to bat for you.” And on and on, to encourage people to say things that may not be true. Private investigators have to be careful NOT to do that.
I think private investigators have to be careful about falling into this trap that they can determine by behavior whether or not someone is telling the truth. That’s a monumental myth. Study after study shows police officers, no matter how well-trained, are really, no better than a flip of a coin at judging truth or deception.
—Jerry Buting
HUMPHREYS:
So Reagan, what would you do if I interviewed one of our clients in the same way that Mike O’Kelly interviewed Brendan Dassey?
WYNN:
I would lose my mind. Because I would be scared that — please tell me you did not record this. Please tell me that I can mitigate this damage.
The real issue is confirmation bias. Investigators, cops, lawyers, they go in with a preconceived notion of what the answer is, and consciously or unconsciously set out to confirm their preconceived notion. And it is very easy to conduct an interview in such a way that you will elicit false information.
The real issue is confirmation bias. Investigators, cops, lawyers, they go in with a preconceived notion of what the answer is, and consciously or unconsciously set out to confirm their preconceived notion. And it is very easy to conduct an interview in such a way that you will elicit false information.
—Reagan Wynn
HUMPHREYS:
If someone is telling me a story, I don’t assume they’re lying. I don’t assume they’re telling the truth. I try to keep an open mind. Because my job as an investigator is to help you. I can’t get facts if I’m going in with a preconceived notion.
BUTING:
With investigators, I think it’s only human nature to have a theory. After all, you’re interviewing a person for a reason — you think they might have information about the case. But if you’re aware that you as a human can have confirmation bias, then you can pull yourself back a little bit and not let that bias direct your entire conversation. Instead, look for things that DON’T fit that theory that you have going in, rather than only looking at those things that do.
HUMPHREYS:
Reagan how do we explain to people that false confessions happen? And HOW they happen?
WYNN:
TV and podcasts [have] started to make the public a little more open to the idea. If I had what I thought was a false confession case, I would be asking the jurors, “Who here has watched true crime shows?”… “What you think about it?” Get them talking about it in jury selection. And then you probably need to hire a legitimate expert and have them explain this to the jury.
Interview Preparation: The “Universe of Knowledge”
HUMPHREYS:
Jerry, how do you talk to your investigators about going out to interview witnesses?
BUTING:
I give them everything I can in advance: prior statements of the witnesses. You want a knowledgeable investigator questioning the person so that they know where something doesn’t fit the facts — either because they’re lying or because their memory is faulty. It’s a challenge in my post-conviction cases. You’re talking about not just months, but often years later.
The other thing that sometimes is useful: more and more, surveillance cameras are capturing various angles and maybe parts of events, or bodycams that police officers in some jurisdictions have. I want my investigators to look at those too.
HUMPHREYS:
From an investigative standpoint, if it’s post-conviction, there are pretrial hearings, trial transcripts, interviews. Reagan, what else would you tell an investigator to do before they go talk to witnesses?
WYNN:
An investigator is gathering raw data. I will figure out how to process the data, cherry-pick it, and use it to my persuasive advantage in court. But what I need from an investigator is as much as we can get.
The other thing: I want investigators thinking outside the box and big picture: Okay. We know what the police report says. In the universe of knowledge that is out there, what else could this witness possibly know? Because the thing that keeps me up at night as a trial lawyer is that I’m going to hear something in a courtroom that I haven’t heard before. If I know that universe of information, I can deal with most anything. So I hope that investigators will be able to minimize that risk for me.
The thing that keeps me up at night as a trial lawyer is that I’m going to hear something in a courtroom that I haven’t heard before. If I know that universe of information, I can deal with most anything. So I hope that investigators will be able to minimize that risk for me.
—Reagan Wynn
HUMPHREYS:
We talk in the investigative world about good facts and bad facts. I’m going to guess, Jerry, if there are bad facts out there, you want to know what they are.
BUTING:
Absolutely. You do not want to be surprised in the middle of your trial. You need to know what the facts are, whether they’re good or bad. And then it really is up to the lawyer to figure out whether a fact is really bad or not. Just get the fact out. If it’s an inconsistent version, have that memorialized, and then almost whatever explanation they have, in court we can deal with it.
HUMPHREYS:
Reagan, talk to me about deliverables from investigators to attorneys when it’s a civil situation.
WYNN:
In the civil context, the rules about discovery can be different. As far as deliverables, I need reports, and I need as much written detail in a report as I can get. That becomes the source document. And once it’s memorialized, I’ll be able to look back on it six months or six years from now if I need to and get the information.
The second thing: I put a lot of value in investigators telling me, How is this person going to come across as a witness? Do they seem believable? Are they going to come across as someone who has an axe to grind? I rely on those observations. I love to see a report and say, This is how this person looks, and this is how they came off, and this is how he talks. This is what her mannerisms are like, or she seems very excited, or she seems very calm. Then I can put that into the calculus of how I’m going to deal with them on the witness stand.
HUMPHREYS:
Jerry, deliverables. What do you want to see from your investigators?
BUTING:
The discovery rules vary from one jurisdiction to the next. You need to take the lead from the lawyer on this in terms of, is the investigator’s report going to be a mandatory disclosure? Wisconsin for instance, if you record a statement of a witness or have the witness sign the statement, it must be turned over to the other side in a criminal case. If not, if it’s just an investigator’s report, then it’s the investigator statement. And only if the investigator takes the stand him or herself — perhaps to impeach a witness — then does it become disclosable and discoverable and in criminal case in Wisconsin. That’s not the rule everywhere, though. So you have to be careful about that.
There are also things like work product privileges, and mental impressions are typically privileged. So some jurisdictions, you may want your investigator to put that in the report. It might actually help protect it under work product. Others, you may not. But like Reagan, I do always talk to the investigator about their mental impressions. Not just what do you think of this witness, but how well do they come off to you? Well-written reports are critical.
HUMPHREYS:
When Reagan and I work together and it’s a criminal case, I almost always record the interview. I can hand Reagan a transcription of the interview, and he can see not only what the person said, but what I asked. Reagan, in Texas, is that immediately discoverable?
WYNN:
It is not immediately discoverable. There is an argument that could be made, that under what used to be called the Gaskin Rule, once the witness hits the witness stand (if we call them), that after we pass them, they can say, “Do you have any recorded statements?” Now I would still be screaming “work product” at them, and we would have a complete meltdown about whether or not we were going to turn it over — and then litigate it all the way up and see what happens.
But recorded statements, I like them in some ways; they make me nervous in others. And even if there’s not a recorded statement, I want as many direct quotes in a report as I can get.
HUMPHREYS:
Going back to thoughts and impressions: I will describe the person’s home, whether it’s clean, tidy, not junky, beer cans all over the place. All of these things help your client understand who this person is.
Jerry Buting, I know you’ve got a book out there. Tell us about that.
BUTING:
It’s called Illusion of Justice: Inside “Making a Murderer” and America’s Broken System. It’s partly about “Making a Murderer,” but it’s also sort of a memoir, making a criminal defense lawyer. What it takes to do what we do, why we do what we do.
HUMPHREYS:
Jerry Buting, thanks so much for joining us today, Reagan, thank you, sir.