After listening to the Republican presidential debate last week and Donald Trump’s glib support of waterboarding because terrorists “do worse than that to us,” it got me thinking about how ignorant supporters of such a position are about the efficacy of torture.
Assuming for a second that waterboarding or other forms of torture are legal and not being used merely to seek vengeance against a person, class, sect, etc., studies have shown that fear is not a reliable method to get truthful information. People will tell a torturer anything just to stop the pain.
In addition to being inhumane and unreliable as a method of obtaining information, torture is just not necessary. We’ve already got in place tried-and-true police methods that help to secure confessions from even the most unwilling of subjects.
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First, the Reid Technique of interrogation, a nine-step process that has been around for decades. It’s based on a premise that once you gain control over a subject you can win his submission.
The interrogation room must be bare bones, designed to maximize discomfort and a sense of powerlessness. There should be nothing on the walls. The chair the subject sits in should be uncomfortable. He should be placed no where near anything he can control like light switches, thermostat, or door. The ambiance itself helps coerce the subject to do whatever it takes to get out.
Then the questioning begins. The interrogator works to establish a rapport, sympathize with the subject, and minimize the crime.
Of course, the method presumes guilt. In fact, in the opening repartee, police will often tell the subject they know he committed the crime, but that he probably had a good reason for it and they just want to give him a chance to set the record straight.
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(It’s for this reason that some Canadian courts have found the Reid Technique to be “a guilt-presumptive, confrontational, psychologically manipulative procedure whose purpose is to extract a confession, not necessarily a truthful confession.”)
This brings us to another successful interrogation technique — the lie. It may offend our sense of ethics to think police can lie to suspects, but it’s not illegal for a cop to lie on just about anything — how much evidence they have, that they’ve got a video (when they don’t), that someone else told police the suspect is guilty.
The problem with this method is, again, sometimes the confessions elicited are false.
In an upstate New York case, a man accused of killing his baby was interrogated for more than 48 hours. He was told by police that info on how he hurt the baby could help in the baby’s treatment (the child was already dead), and that if he didn’t confess they would arrest his wife. He confessed.
He was convicted, but the case was eventually reversed. Turns out the coroner had made a mistake about the cause of death.
Here’s a recent example from my own case load. Although they didn’t tell my client he could go home if he confessed, they told him they’d bring him to the hospital.
He was arrested for robbery and was dope-sick — withdrawing from heroin. Even though he was sweating, nodding off, vomiting, and suffering from diarrhea, they questioned him for hours at the precinct.
They told him they’d get him to the hospital when he told them what they needed to know. He signed a Miranda waiver and spoke to police first orally and then to a prosecutor on video. Only at that point was he brought to a hospital. Of course, on the stand at the suppression hearing, the detective did not admit to any of this. The confession was not suppressed.
Another highly successful method for getting people to talk is by enticing them to cooperate for a better sentence. In federal court, it’s virtually a race among defendants to the prosecutor’s door so willing are they to give up even their own parents for the benefit of a shorter sentence. This, however, is usually done with an attorney present and an agreement signed.
With all these methods readily available to police to extract information and confessions (whether true or not), torture is an area that must stay off limits.
Not only is it inhumane and against the law, but it’s ineffective and unnecessary.
Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at [email protected] or tonimessinalaw.com.