It is human nature to cite a person's behavior as evidence to support some underlying premise. It is an enticing argument to state that because one exhibits an observable behavior it is proof of some consequent conclusion. Consider the following examples of reaching conclusions based on observed behavior:
"If you were in proper shape you wouldn't be huffing and puffing the way you are."
"I could tell by the way you two were looking at each other that it was love at first sight."
"You're really quiet tonight. Something's got to be bothering you."
"You can't even look at me when you answer my questions. What are you not telling me?"
"Why are you smiling? Do you think this is funny?"
"Only guilty people run from the police!"
This web tip is not about interpreting another person's observed behavior, but rather whether or not it is appropriate or productive to bring a suspect's attention to his or her observed behavior. During the course of a typical interview or interrogation, an investigator has many opportunities to openly address the suspect's behavior. Some of these efforts will be productive and lead to developing additional information or even a confession. In other instances, this same tactic may cause a suspect to resent the investigator or to psychologically withdraw, resulting in non-cooperation and an unsuccessful resolution of the investigation.
The following are guidelines as to when it is appropriate to address the suspect's observed behavior:
Guideline #1 Addressing a suspect's behavior to draw out observed emotions or physical condition is often productive.
It is critical for an investigator to seek out the underlying cause of emotions or other observed physical conditions during an interview. Therefore, it is entirely appropriate to specifically address a suspect's apparent distress, fatigue, anger, or resentment. An exception to this rule is nervousness or anxiety which will be addressed later. Examples of addressing a suspect's emotions or physical condition include:
"I can see that you are upset and I'm sorry to have to ask you these questions but you need to understand that I have a job to do and that this is not at all personal."
"You seem angry. Why are you upset?"
"Is that you're stomach growling? When is the last time you've eaten?"
"You seem tired. How much sleep have you had in the last 24 hours?"
Guideline #2 During an interview it is appropriate to address the suspect's apparent uncertainty.
A suspect's uncertainty may be revealed by a delayed response, a shoulder shrug, eyes looking up to the ceiling or a decrease in volume. These behaviors do not mean that the suspect is necessarily lying, but rather is uncertain of his answer. Therefore it is often beneficial to address these observed behaviors as the following examples illustrate:
(1) "You seem a little uncertain. Let me explain that our investigating will continue and we will be looking at all sorts of forensic and testimonial evidence. It's really important that everything you tell me today is consistent with what other evidence shows. With that in mind, let's go back over this area one more time..."
(2) "It is apparent that you're not telling me everything you know. Your silence may make this thing last a lot longer than it has to and it could cause innocent people to be hurt. Please, tell me everything you know."
Guideline #3 It is appropriate to address the suspect's use of memory or omission qualifiers.
There are many words used within a response that qualify or modify the meaning of the statement. Examples include memory qualifiers such as, "To the best of my knowledge," or omission qualifiers, "generally", "as a habit", or "typically." An investigator should not bring up the suspect's use of qualifiers as an indication of guilt or deception, but rather that the suspect's use of these phrases implies something that requires clarification. For example:
Q: "Did you fight with your wife that night?"
R: "We rarely fought."
Q: "When you say that you rarely fought it tells me that you have fought on occasion. What did you two usually fight about?"
Q: "Did you have sexual contact with your niece?"
R: "As far as I remember I didn't have that kind of contact with her."
Q: "So you're not completely sure. What is the probability that you did have some sexual contact with her? ... 95%... 90% ... what do you think?"
Guideline #4 It is appropriate to bring factual inconsistencies to the suspect's attention.
There may be innocent explanations for inconsistencies between a suspect's statements and other information and it is absolutely appropriate to offer a suspect the opportunity to offer an explanation for the inconsistency. Two examples of this include:
(1) "You told me that you didn't leave your office on January 12th. I have a credit card charge on your Visa account indicating a $15.34 purchase at 12:33 that afternoon at a restaurant 4 miles from your office. When did you leave your office that day?"
(2) "Last week you told me that you didn't recognize the photo of this woman. This woman's name is Sue Grahams. Sources tell me that you dated Sue Grahams on several occasions. When is the last time you've seen Sue?"
Guideline #5 During an interrogation it is often productive to comment on the suspect's observed behavior and use the suspect's behavior as an indication that the suspect is ready to tell the truth.
In an effort to persuade a suspect to tell the truth it is often effective to comment on the suspect's observed behavior because the suspect is aware that, in fact, he is engaging in the behavior cited by the investigator. Some examples of this include:
(Observed tears or crying) "Jim, those tears tell me that you care about this thing and want to get it resolved. For a while there I didn't think you cared about anything, but I see I was wrong. Let's put this whole thing behind you..."
(Suspect is silent and appears withdrawn) "Mike, I can tell from looking at you that this has been bothering you for a long time. Your silence tells me that you are debating whether or not to tell the truth. Let me just ask you. What is the worst thing that could happen to you if you told me the truth today?"
Guideline #6 Do not specifically address a suspect's apparent nervousness during an interview.
Both innocent and guilty suspects may appear to be initially nervous during an interview. Under this circumstance the suspect may offer little eye contact, exhibit a tremor, frequently clear their throat or speak quietly. While it is appropriate to extend the period of time establishing rapport with such a suspect, it is inappropriate to specifically address their nervousness with statements such as, "I can see you're nervous - what are you afraid of?" or, "If you're innocent you have nothing to be nervous about." The reason for this is if an innocent suspect's nervousness is brought to their attention, directly or indirectly, often this has the effect of increasing the suspect's level of anxiety which can result in misleading behavior symptoms, poorer recall and less information learned during the course of the interview.
A much more effective response to a clearly nervous suspect is for the investigator to sit back in his chair, reflecting a relaxed posture, and start the interview by engaging in several minutes of casual conversation, allowing the suspect to talk about safe topics that give him/her a sense of control and, physiologically, the somatic behavior of talking relieves anxiety. Once the investigator observes that the suspect appears more comfortable within the interview environment questions relating to the issue under investigation can be asked.
Guideline #7 Do not mention the suspect's use of bolstering phrases or poor eye contact as evidence of his guilt.
An innocent suspect who is interrogated concerning a crime he did not commit certainly may bolster his denials in some manner. After all, the investigator is not accepting the denial as the truth so the suspect feels the need to reinforce his denial. Similarly, there are many causes for innocent suspects to exhibit poor eye contact when answering an investigator's question. To comment on the suspect's lack of eye contact often increases the suspect's feelings of guilt and helplessness which results in less communication and poorer eye contact. Neither of these responses are typically productive, as the following examples illustrate:
S:" I swear - honestly I didn't do this!"
I: "Only guilty suspects swear they didn't commit the crime. Stop lying to me!"
S: "I want an attorney."
S: "I'm telling you the truth! (break of gaze)
I: "You can't even look me in the eye when you deny doing this. How do you think that's going to look to a jury?" [The suspect spends the rest of the interrogation staring at the investigatory and says nothing.]
Guideline # 8 Do not use the suspect's nonverbal or paralinguistic behaviors as evidence of his guilt.
The statements, "Your crossed arms tell me that you were involved in this thing!" or, "You know what your laugh is called? It's called erasure and it is used by suspects who lie!" are unlikely to cause a guilty suspect to blurt out a confession. In response to comments like these it is much more likely that the guilty suspect will either withdraw and remain silent for the rest of the interrogation or overcompensate and spend the rest of the interrogation leaning forward toward the investigator in an aggressive posture. In either event, by bringing the suspect's attention to his "deceptive" behavior certainly has not made it easier for the suspect to tell the truth and is, therefore, counterproductive.
In conclusion, social learning teaches us that addressing another person's observed behavior can be an effective persuasive or empathetic technique. However, there are occasions when the tactic backfires and causes a person to be more withdrawn and less cooperative. It is often productive to use this tactic to elicit information about the suspect's general well-being, uncertainty or explanations for inconsistencies. Conversely, it is often counterproductive to use this tactic in an effort to elicit a confession by bringing to the suspect's attention his apparent "deceptive behavior." Consider the following as a basic guideline: bring the suspect's behavior to his attention to develop rapport and learn information but do not use this tactic as leverage to induce a suspect to confess.
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