Comments

This paper may be referenced as [2010] UNSWLRS 40.

Abstract

This paper is concerned with the questioning of suspects about criminal offences, which is widely recognised to be a standard, indeed often essential, tool of criminal investigation. The first part of the paper challenges an image of interrogation which, it will be argued, is misconceived and misleading. It is concerned with the common tendency to understand interrogation through a series of myths and ‘common sense’ understandings which are unsupported by research evidence and which lead to inappropriate policy responses. In particular, they divert attention and understanding away from the mundane reality of interrogation as carried out routinely by investigators. One of the myths to be considered is that safeguards for suspects’ rights make successful criminal investigation impossible. In challenging this, the paper will comment briefly on contrasting modes of regulation of police practices in interrogating suspects, focusing on the benefits and limits of electronic recording.

Secondly, the paper contrasts the ways in which jurisdictions (principally in the US, the UK and Australia) have responded to concerns about practices in the police interrogation of suspects. Since the mid-1990s, a stark contrast developed between the strategy of ‘investigative interviewing’ in England & Wales (and increasingly in Australia and elsewhere) and the methods taught to US police offers via the ‘Reid Technique’ and similar training programs. It will be argued that this contrast must be understood in the context of differing responses to miscarriages of justice and investigative failures (caused, at least in part, by inefficient interrogation techniques) and the knowledge which investigations of these miscarriages produced.

Disciplines

Criminal Law | Criminal Procedure

Date of this Version

October 2010