Minimization techniques can maximize the chance of a coerced confession

Minimization techniques can maximize the chance of a coerced confession

Minimization is a legal interrogation tactic that courts assume do not lead to implications of leniency. Results suggest that minimization does imply leniency in part by influencing how people judge the severity of the crime. The effects of minimization may be difficult to correct because of their indirect nature, which may lead to more coerced confessions and the acceptance of these confessions in the criminal justice system. This is the bottom line of a recently published article in Law and Human Behavior. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Law and Human Behavior | 2020, Vol. 4, No. 44, 266-285

The Mechanisms of Minimization: How Interrogation Tactics Suggest Lenient Sentencing Through Pragmatic Implication

Authors

Timothy J. Luke, University of Gothenburg
Fabiana Alceste, Butler University

Abstract

Objective: Minimization is a legal interrogation tactic in which an interrogator attempts to decrease a suspect’s resistance to confessing by, for example, downplaying the seriousness of the crime. These studies examined the extent to which minimization pragmatically implies that a suspect will receive a more lenient sentence in exchange for a confession. Hypotheses: Generally, we predicted that participants who read an interrogation with a minimization theme or a direct promise of leniency would mistakenly expect more lenient sentences compared with a control condition if the suspect confessed to the crime. Hypotheses were preregistered prior to conducting each experiment. Method: In 6 experiments (Ns = 413, 574, 496, 552, 489, 839), MTurkers read an interrogation transcript in which the suspect was (a) promised leniency, (b) subjected to minimization, or (c) questioned about the evidence (control). We tested whether warnings about direct promises and minimization induced people to adjust their expectations of sentence severity and also whether a warning could help people better calibrate their sentencing expectations. Results: Moral minimization techniques decreased sentencing expectations after a confession (d = 0.34), by influencing the perceived severity of the crime (d = 0.40). Honesty themes, similar to illegal direct promises, led participants to infer that leniency would be forthcoming in exchange for a confession (d = 0.60). Warnings about leniency repaired sentencing expectations when participants read an interrogation with a direct promise, but were ineffective when an interrogator used minimization. Conclusions: Contrary to the beliefs of American courts, which have allowed minimization but not direct promises to be used in interrogations, minimization does indeed impact sentencing expectations. There may be cause to review the legality of such tactics.

Keywords

pragmatic implication, interrogation, false confession, minimization

Summary of the Research

“In order to be admissible as evidence, a confession must be found to have been made voluntarily, that is, free from the influence of coercion. In Bram v. United States (1897), the U.S. Supreme Court opined that, in order to be admissible, confession evidence must ‘not be extracted by any sort of threat or violence, not obtained by any direct or implied promises, however slight’ (pp. 542–543). Although this statement indicates that even slight implied promises that a confession will be rewarded with leniency would render a confession inadmissible, there is some inconsistency in the manner in which courts have ruled about implied promises and threats. Courts have often tolerated statements by police that may imply benefits for confessing and have sometimes ruled such statements as coercive. For instance, in People v. Pugh (1951), the court found that statements by an interrogator indicating that ‘it would be better to tell the truth’ or ‘it would be better for you to confess’ were coercive and therefore rendered a confession inadmissible (e.g., People v. Jimenez, 1978). In contrast and more recently, in United States v. Mashburn (2005), the court ruled that it did not constitute a coercive promise of leniency for an interrogator to tell the suspect ‘The only way you can help yourself .. is .. by an acceptance of responsibility ..’ (p. 305). The ambiguities of what constitutes an impermissible implied promise are highly important, since police often use an arsenal of interrogation tactics that may change suspects’ expectations of how they might be punished” (p. 266-267).

“The broad term ‘minimization’ is used to encompass a wide variety of commonly used ‘soft sell’ interrogation tactics… Because different techniques may function differently and research on this topic is scarce, the present studies specifically focus on the effects of two types of minimization: moral minimization and honesty themes. First, the Reid Technique often recommends that interrogators develop a ‘minimizing theme’ that, among other things, downplays the moral seriousness of the offense. The Reid manual provides the following example of blaming the victim: ‘Joe, no woman should be on the street alone at night looking as sexy as she did, it’s too much of a temptation for any normal man.’ Such themes appear to correspond to the methods people use to manage and mitigate blame. Thus, it is plausible that moral minimization may influence suspects’ perception of how severe the crime was. Another type of minimization theme is one that insists to the suspect that honesty is critical. The interrogation of Brendan Dassey, made famous by the Netflix documentary series Making a Murderer, contained numerous references to honesty and the truth (e.g., ‘Honesty here, Brendan, is the thing that’s going to help you’; ‘…the honest person is the one who’s going to get the better deal out of everything’; ‘Honesty is the only thing that will set you free’). The Reid Technique recommends the use of themes such as this for suspects who do not appear to be emotionally involved in the crime, for whom moral themes are thought to be ineffective.” (p. 267).

“Pragmatic implication refers to the communication of a message ‘between the lines’ of a statement, such that people arrive at an expectation or belief that is beyond what is necessarily denoted by the statement. That is, pragmatic implication occurs when a message induces a receiver (a listener or reader) to draw an inference that is not strictly logically implied… Pragmatic implications and inferences are indispensable in everyday life, as people frequently make utterances that do not communicate their intended message with strict logical rigor” (p. 267).

“We investigate whether sentencing expectations can be influenced by the language of interrogation techniques—specifically moral minimization, development of an honesty theme, and a direct promise of leniency— and whether warnings about the lawfulness of the police promising leniency and information about the interrogation tactic of minimization can help correct sentencing expectations. We additionally investigate how the effects of these interrogation techniques might be mediated by inferences of leniency, perceptions of crime severity, and perceptions of the usefulness of cooperating with the police” (p. 268).

“The results of the present experiments demonstrate that two types of minimization suggest that a confessor will receive a lighter sentence either by decreasing the perceived severity of the crime (moral minimization) or by implying that cooperating with the police will result in a more lenient punishment (honesty theme). Alarmingly, warnings that specifically state that minimization is a ploy that will not result in more lenient sentences fail to work appropriately and appear to have a blanket effect on sentencing expectations, rather than a calibrated one. The tactics examined in these studies are only two of a multitude of different types of minimization, the psychological mechanisms of which have only just recently begun to be empirically scrutinized. Such research may provide invaluable evidence for courts to evaluate if and when they revisit the lawfulness of minimization tactics” (p. 283).

Translating Research into Practice

“In the United States, a confession is only admissible as evidence if it was given ‘voluntarily.’ Recognizing that an offer of leniency might erode voluntariness, courts have been consistent in their prohibition on directly promising leniency in order to obtain a confession. Importantly, participants in the present studies interpreted the honesty theme similar to a direct promise—indeed, participants mistook the honesty theme as a direct promise almost half the time (46.2%). This finding should thus raise concern for the legality of this tactic” (p. 282).

“The potential constitutionality of moral minimization, however, requires careful legal consideration. Directly addressing the Court’s concern about promises of leniency, interrogation manuals that advise the development of minimizing themes emphasize that interrogators should take care not to downplay the legal seriousness of the crime. Courts have been more tolerant of interrogators downplaying the moral seriousness of crimes. However, to the extent that the lawfulness of moral minimization has turned on the assumption that it does not cause people to misperceive the legal consequences of their actions, the present studies pose potential problems for the courts’ decisions. Our results show that moral minimization does indeed influence sentence expectations by diminishing the severity of the crime. The message that the crime is less severe may communicate that the crime is legally mitigated. Though this is not the same as a promise of leniency, the present results suggest that moral minimization may have the capacity to influence a suspect’s decision-making process in a coercive manner by implying less severe consequences (even in the absence of motivation, described later). These processes may help explain why moral minimization tactics are effective at eliciting confessions, both among the guilty and the innocent” (p. 282).

Other Interesting Tidbits for Researchers and Clinicians

“[T]he development of an honesty theme appears to be capable of implying a promise of leniency in exchange for a confession. Such promises are unlawful, but courts have upheld the use of the honesty themes. To what extent is an interrogation technique permissible if it has effects that are psychologically parallel to tactics that have been prohibited? To our knowledge, the courts have not directly addressed the constitutionality of this issue, but given the present data, it appears to be central to the viability of moral minimization and the development of honesty themes” (p. 282).

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Authored by Amanda Beltrani

Amanda Beltrani is a doctoral student at Fairleigh Dickinson University. Her professional interests include forensic assessments, professional decision making, and cognitive biases.

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