From TheStar by Glendon psychology professor Tim Moore
The recent Supreme Court decision in R v Singh, in which the court upheld the conviction of a man who confessed after police continued to question him despite his repeated assertions of his right to remain silent, has attracted renewed attention to the protection that the right to silence is supposed to afford.
There can be little doubt that some sort of safeguard is necessary in light of the many DNA-exonerated innocent defendants who confessed prior to their trials.
There is a substantial body of research on the psychology of confessions. We now know that depending on how they are interrogated, actual innocence may put innocent people at risk. Police cautions are imperfectly understood in the first place, especially by young people or adults with cognitive impairments.
Some innocent suspects waive their right to silence because they perceive innocence to be protective and believe that their blamelessness will soon be self-evident. Unrealistically, they anticipate they will be able to explain to investigators the error of their ways. Regrettably, the ensuing interrogation risks eliciting a false confession from an innocent person, possibly contributing to a false conviction.
While it is understandable that an innocent person would honestly believe that their candour will ultimately remove them from suspicion, na´vetÚ in the interrogation room is not restricted to the suspect. There are two fundamental and interrelated assumptions that drive the interrogation process, the validity of which is sufficiently dubious so as to compromise the reliability of the entire enterprise.
The first false assumption is that innocent suspects can be distinguished from their guilty counterparts on the basis of various behavioural cues. Simply put, guilty suspects appear deceptive. Their duplicity becomes apparent to the investigator who uses indicators from facial expressions, eye contact, posture, hand gestures, particular phrases and a litany of other "symptoms" of deceit. Suspects who are guarded, who appear insincere, who are unco-operative, etc. are assumed to be guilty.
The problem with this "symptom analysis" approach is that it doesn't work. There is no compelling evidence that police or anybody else can detect deception with a high degree of accuracy. The procedures investigators use to sort out the liars from the truth-tellers have no empirical foundation. The interviewers would be no less accurate if they simply flipped a coin.
The screening interview is a watershed event because if deceit is "detected," the suspect is assumed guilty and the subsequent interrogation is designed to extract a confession. The interrogation is not investigative in nature, rather it is guilt-presumptive. Because the initial screening exercise is error-prone, many innocent suspects will be subjected to highly intimidating interrogation techniques based on little more than a vague impression or a misinterpretation of the suspect's demeanour.
The second false assumption underlying the interrogation process is the belief that innocent suspects are immune to standard interrogation tactics. The procedure itself consists of a variety of strategies including forceful accusations, the presentation of evidence (either real or manufactured), and interruptions whenever denials are attempted by the suspect.
The guilt-presumptive nature of this exercise creates a slippery slope for innocent suspects because it may set in motion a sequence of reciprocal observations and reactions between the suspect and the interrogator that serve to confirm the interrogator's belief in the suspect's guilt. Increased distress on the part of the suspect may be interpreted as resistance, thereby motivating the interrogator to redouble his or her efforts to extract a confession.
From the suspect's perspective, isolation, fatigue and fear may produce a compliant but false confession from a person who merely wants to extricate himself from an aversive situation and/or who succumbs to implied threats of dire consequences or implicit promises of clemency.
The suspect is stressed, anxious, scared, confused, without social support and presented with falsely constrained alternatives. In one recent Ontario case, the cognitively impaired defendant (ultimately acquitted) in a child sexual assault case was asked during his two-hour interrogation: "Are you another Paul Bernardo or did you do this out of love?"
The suspect may make a regrettable but understandable decision about the perceived costs and benefits of confessing. Are they confessing to something they did, or are they signing on to the spin that the interrogator has persuaded them is in their best interests to endorse?
Notwithstanding the assumed imperviousness of innocent suspects to these tactics, there is no psychological reason for supposing that they would be immune to them, and the numerous DNA-exonerated defendants who had confessed shows that they were clearly susceptible to these practices.
The right to silence is supposed to rectify the disadvantage that a detained suspect is faced with when confronted with the powers at the disposal of the state. On balance, it does not appear to be providing much protection. Given what we know about current interrogation practices, there is much that the suspect needs protection from.