Criminal Law

Judicial criticism of the Reid interrogation: a call for change

By AdvocateDaily.com Staff

With judicial commentary on the problematic aspects of the Reid interrogation technique going into its second decade, one may wonder why police services continue to use such questionable methods, Hamilton criminal lawyer Jeffrey Manishen tells Law Times.

“I encourage members of the legal profession to add their voices to those who have urged our police services to cease utilizing the Reid technique once and for all. Let’s hope they’ll listen. Our justice system would certainly be better if they do,” he says.

Manishen, a partner with Ross & McBride LLP, says the Reid technique instructs investigators to engage in “behaviour symptom analysis,” and relies on patterns of conduct that supposedly indicate whether or not the suspect is telling the truth.

“The interrogation begins with the investigator asserting his absolute certainty of the suspect’s guilt,” he says. “The suspect is relentlessly pushed to accept culpability.

“Moral justifications may be proffered (for example, that the suspect experienced abuse as a child, or that they inflicted the injuries unintentionally.)”

Manishen says the suspect may be confronted with exaggerated or fabricated evidence.

“They may be told that the proof of their guilt is incontrovertible, given that all other suspects had been cleared,” he says.

“The investigator may present two alternative versions of the suspect’s conduct, one of which is significantly worse than the other, and encourage the suspect to adopt the less serious model.

“A suspect who remains silent or continues to deny involvement may be faced with an investigator unwilling to accept that position, confronting him with the investigator’s theory of what ‘really’ happened and endeavouring to overcome any reluctance to confess.”

The problem is, judges have been critical of the method for decades, noting the technique is fraught with problems, Manishen says.

In one Ontario case, a judge refused to admit a Reid-based confession by a mentally ill, fatigued man accused of attempted murder and questioned for more than seven hours, he says.

The judge referred to a Supreme Court of Canada decision and characterized the method as a “shoddy police practice … shown to be coercive and to produce false confessions.”

In a 2017 case, Halton and RCMP police officers executed a warrant for the footprint impressions of a man under investigation for a cold-case murder, Manishen says.

“He was never told of his right to counsel, cautioned or told he was free to leave at any time,” he says. “Rather, he was interrogated for almost six hours.

“In the face of lengthy police monologues insisting on his guilt, he denied culpability but some of his statements could have been contradicted by forensic evidence.”

Manishen says the judge found it unnecessary to decide the Reid issue due to overriding Charter issues on detention.

However, the judge stated, “[U]se of the Reid technique or something akin to it does not automatically render a statement inadmissible ... However, the technique is inherently coercive and for that reason has been the subject of considerable judicial and academic criticism.”

Manishen says the risk of wrongful convictions, unsuccessful prosecutions and the attendant failure to investigate and apprehend the real perpetrators, present good reasons for police to cease using the interrogation technique, particularly when there are other ways.

An investigative interviewing approach involves a thorough and objective examination of both the offence and the suspect, he says.

“It is followed by an open-ended interview where the suspect is allowed to talk freely in response to open-ended, non-confrontational questions, which has proven to be very effective in gaining admissions that don’t involve the risk of false confessions," he says.

Manishen points to a technique known as PEACE (preparation, engagement, accounting, closure and evaluation), which involves officers asking followup questions based on the answers given as well as other information compiled by the investigators.

“One need only watch the very skillful interview of Col. Russell Williams by Ontario Provincial Police detective Jim Smyth to see how a suspect may be engaged in non-confrontational dialogue, ultimately leading to false statements and a full confession to acts of murder,” he says.

“Several countries in Europe and elsewhere have successfully implemented the investigative interviewing method. In the United States, Wicklander-Zulawski & Associates, a private agency involved in training police officers for many years, has discontinued teaching the Reid technique as a result of concerns over false confessions.”

Manishen says that "while several police services in Canada have incorporated the use of investigative interviewing methods such as PEACE into their training, many have not yet chosen to discourage or discontinue the use of the Reid technique."

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