Improving the Legal Aspects of Police Interviewing of Suspects

Abstract

The purpose of this paper is to provide some guidance to police interviewers and trainers in relation to improving the legal aspects of police questioning of suspects. The paper is written with reference to Victorian legislation. Sixteen professionals (defence barristers, academics, prosecutors, and detectives), all with extensive knowledge of the law and experience evaluating police interviews with suspects, took part in individual in-depth interviews (M = 100 minutes). The aim of the interviews was to discuss the limitations of police interviews with suspects and to provide exemplars of concerns from a set of de-identified transcripts that had been provided to the professionals prior to their interviews with us. Overall, four key limitations were raised: (a) inadequate particularisation of offences, (b) inappropriate phrasing of questions, (c) poor introduction of allegations, and (d) questions that unfairly ask the suspect to comment on the victim's perspective. These concerns and their practical implications are discussed.

Key words:

• admissibility
• case law
• evidence
• investigative interviewing
• questioning
• sex offenders
• suspects
• statutory law

Acknowledgements

Thank you to all of those who participated in the study. This research was supported by an Australian Research Council Linkage Grant (LP0775248).

Notes

1. A person being questioned does not have to say or do anything, but anything the person does do or say may be given in evidence. Further, suspects must be informed of their rights to communicate with a friend or relative, or a legal practitioner. If the person is not a citizen or permanent resident of Australia they have the right to communicate with the consular office of which the person is a citizen. Similarly, if the person does not speak English they have the right to an interpreter and if the person is under 18 they have the right to communicate with a parent, guardian or independent person and have them present in the interview (see s. 464C-E Crimes Act 1958 (Vic)).

2. According to s. 189 of the Evidence Act 2008 (Vic), the voir dire hearing is to determine, in the absence of a jury, whether (a) evidence should be admitted (whether in the exercise of discretion or not) or (b) used against a person, or (c) a witness is competent or compellable.

3. PEACE is an acronym for the five discrete stages of the recommended structure for interviews (Clarke & Milne, 2001). These five stages are (i) preparation and planning for the interview (ii) engaging the suspect and explaining the interview process (iii) account phase where interviewers attempt to obtain detailed and accurate information from the suspect, (iv) closure of the interview and (v) evaluation of the interview performance by the interviewer (Clarke & Milne, 2001).

4. These instructions do not carry the same effect as laws. Failure to comply with the Chief Commissioner's Instructions may or may not lead to the inadmissibility of the evidence in court. See for example, R v. Pritchard (1991) 1 VR 84 at 93.

5. This paper is part of a larger study involving the investigation of police interviewing of sex offender suspects.

6. As highlighted in the Method, aliases have been provided so as to remove any identifying information contained in these interviews.

7. Research has shown that suspects are likely to unwittingly behave in a way that appears to confirm their guilt (particularly if they are innocent) if the officers adopt a guilt-presumptive questioning style (Hill, Memon, & McGeorge, 2008).

8. See Cleland v. R (1982) 151 CLR 1 at 5; Smith v. R (1957) 97 CLR 100, at p. 129; R v. Amad [1962] VR 545; R v. Lee (1950) 82 CLR 133; (1950) ALR 517; (1950) 24 ALJR 223; R v. Nundhirribala (1994) 120 FLR 125; R v Pritchard [1991] 1 VR 84 at 93; R v. Smith [1964] VR 95 at 97; Van Der Meer v. R (1988) 82 ALR 10; (1988) 62 ALJR 656; (1988) 35 A Crim R 232; [1988] HCA 56.