Psychiatry, Psychology and Law

Vol. 18, No. 4, November 2011, 599–611

Improving the Legal Aspects of Police Interviewing of Suspects

Julianne M. Read and Martine B. Powell
School of Psychology, Deakin University, Melbourne, Australia

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 ¼ 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.

Any individual who is suspected of having appropriate interview procedure from a

committed a criminal offence may be legal perspective.
questioned by police regarding the nature Three main areas of statutory law are
of the allegations against them (see s. 464A pertinent to a discussion on appropriate
Crimes Act 1958 (Vic)). Such questioning is interviewing from a legal perspective.
recorded in the record of interview and is These are cautioning the suspect, police
commonly referred to in the literature as an conduct, and electronic or video recording
investigative interview (Clarke & Milne, of interviews. Firstly, prior to the com-
2001; Williamson, 1993). Information ob- mencement of questioning, s. 464C-E of
tained in this interview is used as evidence the Crimes Act 1958 (Vic) stipulates that
in the trial of the accused person. However, the suspects must be informed of their
if the information is obtained in a manner rights.1 Section 464A (2) of this legislation
which is inadmissible according to law, it also states that police officers may inform
may not be admissible as evidence in court. the person of the ‘‘circumstances of the
Statutory provisions have been established offence’’ for which they are about to be
to ensure fair and proper interview proce- questioned. Non-compliance with this sec-
dure, and these laws (including the case law tion will not automatically lead to the
that is based on this legislation) determine inadmissibility of the record of interview

Correspondence: Martine Powell, School of Psychology, Deakin University, 221 Burwood Hwy,
Burwood, 3125, Victoria, Australia. Email: [email protected]
ISSN 1321-8719 print/ISSN 1934-1687 online
Ó 2011 The Australian and New Zealand Association of Psychiatry, Psychology and Law
http://dx.doi.org/10.1080/13218719.2010.543399
http://www.tandfonline.com
600 J. M. Read and M. B. Powell

(see R v. Lancaster [1998] 4 VR 550). of fairness to the accused person (see

However, non-compliance may result in Kumar, Odgers, & Peden, 2009).
the trial judge exercising his or her discre- Finally, evidence of a confession or
tion to exclude the evidence (see also R v. admission made to an investigating official
Vollmer [1996] 1 VR 95; R v. Roy (Court of by an individual suspected of committing
Criminal Appeal (Vic) unreported, 16/11/ an indictable offence is inadmissible unless
1993). According to case law, the suspect the confession or admission was recorded
must be afforded the opportunity to make on video or audio tape, or the substance of
informed decisions and exercise his or her the confession or admission was confirmed
statutory rights. Accordingly, the suspect by the person and the confirmation was
must understand what it is he or she is electronically recorded (s. 464H Crimes Act
being questioned about. If the officer is 1958 (Vic)). However, if it can be proved,
aware of the precise charge with which the on the balance of probabilities, that the
suspect is being accused, he or she should admissions could not be recorded due to
state this charge to the suspect. If he or she ‘‘exceptional’’ circumstances, they may be
is unaware of the precise charge, the officer admitted (see s. 464H (2) Crimes Act 1958
should provide sufficient particulars to the (Vic)). Since its introduction, electronic
suspect to enable him or her to identify the and video recording of interviews with
occasion which is under consideration (R v suspects has considerably reduced the
Lancaster [1998] 4 VR 550). number of challenges to the admissibility
Secondly, section 84 of the Evidence Act of evidence and reduced the frequency of
2008 (Vic)) stipulates that any confession voir dires2 (Dixon, 2006).
must have been made ‘‘voluntarily’’, and The statutory provisions, and the case
not influenced by violent, oppressive, in- law that is based on them, outline broad
humane or degrading conduct or threat, requirements for proper interviewing pro-
for it to be considered admissible in court cedure. Understandably, however, they
(see generally R v. Lee, (1950) 82 CLR 133 provide no specific instruction on how
at 149 and R v. Swaffield; Pavic v. The and why these legal requirements should
Queen (1998) 192 CLR 159). In a recent be met (Baldwin, 1993; Leo, 1996).
High Court decision of Tofilau v. R (2007) Furthermore, the interview protocols such
238 ALR 650 the High Court referred to as the PEACE protocol3 that have been
the following principle, as stated by Dixon established to improve the quality of
J in McDermott v. R (1948) – interviewing have tended to focus on the
psychological, rather than the legal, aspects
If [the] statement is the result of duress, of interviewing (for a review see Read,
intimidation, persistent importunity or
sustained or undue insistence or pressure,
Powell, Kebbell, & Milne, 2009). The
it cannot be voluntary. PEACE protocol forms the foundation of
what is considered ‘‘best-practice inter-
Further, s. 85 (3) of the Evidence Act viewing’’ in the interview training con-
2008 (Vic) is consistent with the case law ducted in the United Kingdom and many
and stipulates that the court may refuse to English speaking jurisdictions, excluding
admit evidence of admissions depending on the United States. The fundamental basis
the nature of any threat, promise or other underlying the PEACE model of interview-
inducement made to the person being ing is to apply a narrative framework to
questioned. Section 90 of the same Act facilitate the production of a detailed and
creates a further, overlapping, distinction forensically relevant account from the
to exclude evidence of an admission suspect (Clarke & Milne, 2001). This
adduced by the prosecution on the grounds account can be subsequently clarified and
 Improving the Legal Aspects of Police Interviewing of Suspects 601

challenged through the disclosure of evi- leading, persistent and oppressive question-
dence and appropriate questioning techni- ing has been shown to affect the admissi-
ques. This model is set in contrast to an bility of evidence adversely (see McDermott
interviewing model known as the Reid v. The Queen (1948) 76 CLR 501 at 515;
Technique. This technique, widely used in Mooney v. James [1949] VLR 22 at 28; R v.
the United States, relies on persuasion, Wills (1985) 39 SASR 35; Duke v. The
manipulation and deception to move a Queen (1989) 180 CLR 508 at 513).
suspect from denial to admission (Leo, The current article builds on prior
2008). However, it has come under criticism evaluations of police questioning of sus-
in the literature because the assumptions pects by focusing on interviewers’ adher-
underlying the recommended techniques ence to Australian (Victorian) statutory
are inherently contradictory, both in rela- and case law requirements, making specific
tion to the empirical research and the legal reference to interviews with individuals
requirements for interviewing (Leo, 2008). suspected of committing sexual offences.5
A lack of practical guidance has resulted However, the findings are generalisable for
in many police interviews falling short of interviews with all suspects. Our approach
meeting all the necessary legal require- was to elicit feedback from experts who
ments. This has occurred notwithstanding routinely evaluate police interviews of
the requirement that interviewing police suspects from an evidentiary perspective,
officers follow the instructions in s. 112 of through the use of individual in-depth
the Victoria Police Manual (2009).4 This is interviews. Our reason for adopting this
evident in prior evaluations or inquiries approach is that we wanted to understand
into the investigation of sexual offences the nature of the experts’ concerns and elicit
(Guadagno, Powell, & Wright, 2006; Po- suggestions for improvement as opposed to
well, Wright, & Hughes-Scholes, 2011; examining the prevalence of various pre-
Victorian Law Reform Commission, determined problems within a select group
2004). It is also evident from empirical of police interviewers. A small sample of
studies that have directly evaluated inter- interviews (N ¼ 4) was reviewed by the
views with suspects, all of which have experts prior to engaging in their interviews
identified weaknesses in police questioning with us. This was to assist them in provid-
that could arguably lead to the evidence ing exemplars of problems without com-
obtained from the suspect being inadmis- promising confidentiality requirements.
sible (Baldwin, 1993; Clarke & Milne, 2001;
Dixon, 2007; Leo, 1996, 2008). For exam-
Method
ple, Clarke and Milne (2001) evaluated 177
interviews with suspects and identified Experts
many tactics that were counterproductive Our sample comprised 16 experts (5
to effective interviewing according to the females, 11 males), all of whom have
PEACE protocol. These tactics included extensive professional experience (M ¼ 21
‘‘failure to establish relevant facts’’ and the years experience, range ¼ 13–32 years) in
use of ‘‘persistent and labored question- evaluating interviews with suspects. The
ing’’. These tactics that were identified as authors made inquiries within each disci-
having adverse psychological effects in the pline of law, academia and policing, to
interview also carry important legal con- identify which professionals were consid-
sequences (i.e., establishing the relevant ered by their peers to be highly experienced
facts is a minimum requirement to prove a in the area of police interviews with
charge and a failure to do so can threaten suspects. Thus identified potential partici-
the validity of the entire case). Further, pants were then contacted by the authors
602 J. M. Read and M. B. Powell

to ascertain their interest in participating in project. To assist in focusing the experts’

the study. All but one expert agreed to feedback on the interview process (as
partake in the study. Our recruitment of opposed to issues of consent and the
experts for this study continued until it was veracity of the witness allegations) all
determined that data saturation had been interviews related to allegations of child
reached (i.e., no new themes or issues were sexual abuse.
emerging from the individual interviews: The individual in-depth interviews were
Sim & Wright, 2000). conducted by the first-named author and
The sample included six senior police ranged in duration from 34 to 188
detectives, four well-recognised and widely (M ¼ 100) minutes. Each interview was
published academic experts and six legal conducted in a private room at the expert’s
professionals from three states/territories office or at another location that was
of Australia and one jurisdiction in Eng- convenient to them. Two interviews were
land. The legal professionals consisted of conducted over the phone rather than face-
three Crown Prosecutors (including one to-face because face-to-face interviewing
experienced, retired Crown Prosecutor) was not feasible given the distance between
and three defence barristers, including a the researcher and the expert. For each
Queens Counsel (M ¼ 26 years experience, interview, a semi-structured interview sche-
range ¼ 20–32 years). Many of the parti- dule was employed to generate discussion
cipants have international experience in the about legal issues relevant to interviewing.
area. All participants were actively in- Four questions guided the process:
volved in the field of child abuse investiga-
tion and routinely evaluated police . What is the nature of your profes-
interviews with suspects. sional experience in relation to in-
Demographic information has not been vestigative interviewing of adult sex-
provided to ensure anonymity and identi- offender suspects?
fying information has been removed in this . What elements constitute best-prac-
paper (including from the quotations) tice interviewing in this area, and
pursuant to an ethical requirement. The how should such practice differ (if at
quotations were corrected, where appro- all) depending on the nature of the
priate, for minor wording or grammatical offence?
errors. . Reflecting on your experience, how
well do police officers adhere to
‘‘best-practice’’ interviewing?
Procedure . Please highlight the strengths and
Prior to the individual interviews with us, limitations of the four de-identified
the experts were sent a confidential folder transcripts, while referring to parti-
via registered post which contained (a) four cular questions (all questions are
de-identified police records of interview numbered).
relating to suspected sexual offences
against children, (b) a plain language The researcher was largely a passive
statement with a consent form and (c) a participant in the conversation, using
summary of each. The four records of open-ended prompts and minimal encour-
interview had been randomly selected from agers to elicit elaboration and clarification
a set of 110 interviews and were judged from the professional being interviewed.
(anecdotally) to be fairly typical according Indeed, the broad nature of the questions
to an independent researcher who had read asked and the recursive or conversational
the entire set of interviews for another style of interviewing, allowed the experts to
 Improving the Legal Aspects of Police Interviewing of Suspects 603

direct the discussion toward experiences encountered when evaluating interviews in

and concerns that were personally relevant, their professional practice.
and to attribute their own meaning to these
concerns. As outlined in the introduction, Particularly in the last three or four years,
the current article focuses solely on the with the specialist police groups, perfor-
experts’ opinions regarding legal (eviden- mance has improved . . . But that doesn’t
tiary) concerns about interviewing. mean they are as good as they can be.
They all make common mistakes. (Crown
Prosecutor)
I’m not saying that it’s a universal
Data Analysis
problem but every second case things
All of the interviews were audio taped, pop up that make me say to myself ‘‘the
transcribed verbatim and double-checked police just don’t understand the require-
for accuracy. Given the size of the data set, ments’’. (Queens Counsel)
How can police adhere to best practice
it was organised, coded and subsequently when there is nothing written about best
analysed manually using content analysis. practice? There’s no training, review or
Content analysis involves grouping text refreshers and supervisors are too busy to
into specific categories which are then review tapes. Also, how can you give
sorted and counted to identify the number feedback if you don’t know best practice
yourself? (Detective Sergeant)
of occurrences of each theme (Gifford,
1998). The first-named researcher began
by reading each of the transcripts to The experts acknowledged that where
identify and understand the nature of the police are adhering more closely to best
concerns raised by the experts (Dey, 1993). practice is in the specialist squads that have
These themes were subsequently discussed been developed and refined over the past
and debated with the second-named author few years. These squads have enabled
to enhance credibility (Lincoln & Guba, police to gain greater exposure to sex cases
1985). A coding protocol was then devel- and more specific training.
oped in order to code the content of The issues discussed were clustered into
experts’ responses in a rigorous and com- four main themes: (a) inadequate particu-
parable way (de Wet & Erasmus, 2005). All larisation, (b) inappropriate question
of the key themes were inductively derived phrasing, (c) introducing the allegations
and grounded within the data set in poorly and (d) questions that unfairly ask
accordance with the principles of the suspect to comment from the victim’s
Grounded Theory (Browne & Sullivan, perspective. Each of these themes is now
1999). Where excerpts from the records of discussed in turn.
interview are provided, names and other
identifying details have been changed.
Inadequate Particularisation
According to the experts, ‘‘particularisa-
Results tion’’ refers to questioning the suspect
Overall, the experts who took part in this about each separate act with reasonable
study agreed that the interviews they read precision relating to unique contextual
as part of their professional practice did details such as time and place. The experts
not always meet all the necessary legislative argued that without such specificity it may
requirements. In addition, the experts felt not be possible to prove the critical
that the issues highlighted in the four elements of the offence. In addition, the
records of interview were consistent with experts argued that particularisation bene-
the sorts of problems they regularly fits the officer and suspect procedurally by
604 J. M. Read and M. B. Powell

helping to structure the interview and following example, from one of the pre-
allowing the suspect to answer the allega- reviewed interview transcripts, was high-
tions. Particularisation also helps the jury lighted and criticised by numerous experts.
to understand specific charges contained in
the presentment. The experts argued that,
INTERVIEWER: After she’s sat down on
most importantly, not particularising the couch she’s basically alleging that
makes it difficult to identify any particular you’ve been touching what she terms as
act with sufficient precision to enable a her girly parts which I assume to mean her
person to be charged or to establish that vagina with your hands
one of a series of offences has occurred. Now you don’t basically allege, you allege.
Thus, it was argued that without particu- And the child obviously has. [Secondly]
larisation, the suspects’ responses may it’s not his position to assume. It’s obvious
that it is probably what she means, but it’s
carry less evidential weight in court. the allegation he must put to him, not
Every expert except one emphasised the what the police officer assumes is the
importance of asking questions to particu- allegation. You don’t put the substance
larise the allegations as to time, date, place of the allegation to an accused. You put
and victim. The legal professionals, in the allegation. (Crown Prosecutor)
particular, felt passionate about this issue,
visibly frustrated at the inadequate parti- Secondly, if the victim’s statement is to
cularisation often seen in such interviews. be quoted verbatim in the interview, the
Where the complainant’s statement in- experts argued that the allegations put to
cludes a number of allegations, it was the suspect should be framed as a question,
suggested that in order to particularise an not a statement as is often the case. The
incident, the law allows for the suspect to experts argued that simply making a
be asked about the first or last time a statement about what the allegation is
particular incident occurred. In addition, does not necessitate an answer from the
although particularisation is important, it suspect, and if no answer is pursued then
was argued that details should not be the suspect is consequently absolved from
sought immediately if they would interrupt providing an answer. Given in the above
the flow of the narrative. It would be example that ‘‘girly parts’’ was in fact
preferable to leave certain details until the clarified in the video and audio-taped
end of the interview. evidence (VATE) to mean her vagina, the
According to the experts, the difficulty experts reasoned that it would be appro-
in particularising abuse is that often the priate to state the allegation and then ask
details of the offence are contained in the an open question such as ‘‘What is your
victim’s statement. In order to be specific comment about that?’’ or alternatively
about what alleged offence has occurred, it establish the details more directly, for
was suggested that police officers use the example, ‘‘Did you touch her on the
victim’s statement to guide their question- vagina?’’ or ‘‘Describe what happened
ing. Two issues were raised by the experts when she sat on the couch with you (that
in relation to the use of the victim’s state- time).’’ Overall, the common principle
ment in the interview. Firstly, it was stres- discussed here is that the allegations must
sed that if the complainant’s statement is to be particularised as to time, date, place and
be used in the interview, the allegations victim or other unique contextual factors
must be put as they are stated in the vic- by posing the allegation verbatim from the
tim’s statement and not summarised. In victim’s statement as a question, in a
this way, the suspect can give an informed manner that is not accusatory and does
response to the specific allegations. The not damage the rapport with the suspect.
 Improving the Legal Aspects of Police Interviewing of Suspects 605

Inappropriate Question Phrasing A common issue discussed by every

Numerous types of inappropriate question expert was the importance of not asking
phrasing were raised by every expert, questions that bring into account the
including fishing and propensity, imposing interviewer’s own personal views, opinions,
questions and multiple questions. bias or sympathy. Similarly, badgering the
These experts emphasised the impor- suspect was raised as equally inappropriate
tance of focusing on the actual allegations in the courtroom as it is in the interview
and letting the person answer them. For room. According to the experts, leading
example, rather than saying ‘‘That’s what statements and guilt-presumptive7 ques-
people are saying’’, it was suggested that tions are particularly problematic with
the interviewer ask ‘‘The evidence we have vulnerable interviewees: in particular those
is that X occurred. What is your comment who have lower intellectual functioning, as
about that?’’ or ‘‘We have a witness that there is a tendency for this population to
has stated X. What is your comment?’’ acquiesce to information presented to them
In one record of interview the officers by an authority figure.
questioned the suspect about an alleged
previous uncharged act and posited that I think it is appropriate for the police to put
the suspect was likely to have committed to the accused the allegations made and
the current offences because he had the details of that so that the accused has the
opportunity of providing his or her ex-
tendency to do so – planation for those claimed behaviours. It’s
not for the investigating police officer to
INTERVIEWER: I’ve been told that, and impose his viewpoint. (Defence Barrister)
this is not to do with the alleged incident,
that you were supposedly looking through
Inappropriate cross-examination was
windows of homes . . . I’m putting it to
you that, perhaps, you’ve got some sort of identified as another type of imposing
sexual problem and that that might be the question, and was recognised by the
reason why you’ve touched Betsy6 experts as a major problem arising in
records of interview. According to these
The experts, in particular the legal experts, examples of inappropriate cross-
professionals, argued that by law such examination include (but are not limited
questioning is highly prejudicial and both to) the following;
the question and answer could be deemed
inadmissible in court, citing s. 59 of the INTERVIEWER: Well it’s not inadver-
Evidence Act 2008 (Vic) and s. 398a of the tently. You’ve specifically gone into the
Crimes Act 1958 (Vic). The example below shower and you’ve touched them on the
penis is that not right? It wasn’t a mistake
was cited as equally unacceptable, and was it?
referred to as a ‘‘fishing expedition’’.
And
INTERVIEWER: Are you aware if she’s
made any allegations about you INTERVIEWER: So I would suggest in
previously? those circumstances that something has
happened in the back room causing [the
victim] to be upset and tell her mother.
Overall, the experts highlighted that
fishing for information is a common pro- The concept overarching the theme of
blem observed in interviewing because it is inappropriate question phrasing as raised
not only unfair to the suspect but can result by the experts is that police tend to become
in prejudicial questions which may not be confused as to what their role is in the
permitted to be adduced as evidence. evidence-gathering process. In other words,
606 J. M. Read and M. B. Powell

some experts argued that police cross- argued that the court will not be satisfied
examine because they start to act in the that the questions have been answered and
role of barrister rather than information- both question and answer will be excluded
gatherer. from the jury. In addition, these experts
Although the legal professionals indi- reasoned that multiple questions can con-
cated that in their experience police officers fuse even the most articulate of suspects.
are reducing the amount of cross-examina- Consider this excerpt 7
tion in their interviews, there is still much
room for improvement. Other experts INTERVIEWER: Did you go into the
emphasised the negative effect that cross- tent and kiss her
examination can have on rapport building SUSPECT: No
with the suspect and suggested alternative
ways to ask for information without cross- In the above example, the experts
examining. For example: argued that the court will not be satisfied
about what the suspect is responding ‘‘no’’
(a) ‘‘Billy talks about the time when to and it is therefore unclear whether the
you got in the shower and were suspect denies going into the tent or denies
soaping him. Tell me about that kissing the victim. Another excerpt high-
time.’’ (Academic) lighted by the experts as inappropriate was
(b) ‘‘You’ve said X and we have the following –
evidence that suggests Y. Do you
want to comment?’’ (Detective INTERVIEWER: Alright she’s also in-
Sergeant) dicated or she alleges that at one point
(c) ‘‘Describe what happened in that you’ve actually pulled her leotard aside
and then you stroked her vagina would be
room.’’ or ‘‘Tell me what she did the best way of putting it. Have you got
next.’’ (Detective) any comment you would like to make
about that?
The majority of experts discussed the There are too many allegations in the
importance of not asking multiple or question. You must put the allegations
confusing questions. These experts ex- one by one. When you ask a question as
plained that such questions and the an- extensive as that, what will be answered is
the last bit of it. That’s why the judges
swers offered can be misinterpreted and
rule these questions inadmissible because
may be ruled inadmissible under s. 41 of most of the time we don’t know what
the Evidence Act 2008 (Vic). These experts they’re responding to. (Crown
argued that multiple or compound ques- Prosecutor)
tions are problematic if the suspect is asked
to respond to more than one fact in the
same question. This is because such ques- Introducing the Allegations Poorly
tions do not ordinarily necessitate a re- All but two experts discussed the issue of
sponse to both or all parts of the question. specifying the allegations at the beginning
This is problematic for two reasons. of the interview, in accordance with both
Firstly, the question may be ambiguous statutory and common law. According to
and confusing for the suspect. Secondly, the experts, it is crucial that the suspect be
the answer may be ambiguous because of given sufficient information to draw their
uncertainty as to which part of the question attention to the substance of the allegation,
the accused person answers (Heydon, if it is to be used against them, or risk
2009). If this question relates to the critical having large parts of the interview deemed
issue and the answer is only partial, experts inadmissible in court. However, the experts
 Improving the Legal Aspects of Police Interviewing of Suspects 607

agreed that introducing the allegations too allegation relates to the sexual penetra-
quickly or abruptly can get the suspect off- tion of Bessy Smith’ or, if there is another
person, it should be then a separate
side, threaten rapport and be counter- question ‘this also relates to an allegation
productive to obtaining any information. by Joel Smith’. That alleged victim should
As the law provides that the allegations can be identified fairly soon. It can be put in
be given in somewhat broad terms (i.e., not that broad way to start the record of
every allegation needs to be put to the interview, that’s not a major problem, but
very quickly it should be focused down.
suspect right in the beginning of the inter- (Crown Prosecutor)
view) a common problem identified by the
experts is that the allegations are too broad,
and not quickly focused down. Questions that Unfairly Ask the Suspect to
One reason provided by the experts as Comment on the Victim’s Perspective
to why police might delay introducing the Almost every expert argued that questions
specifics of the allegations is that if the that ask the suspect to comment on the
officer is new to interviewing sex-offender victim’s thoughts and motives underlying
suspects or is uncomfortable discussing the certain actions are inappropriate and in-
content of the allegations they will ‘‘beat effective and should be avoided.
around the bush’’. One barrister was
particularly frustrated that such a simple INTERVIEWER: Can you provide any
requirement is not met in some interviews, explanation as to why Joanna would
make a vindictive complaint about you?
and quoted the case of R v. Lancaster
[1998] 4 VR 550 as an example of why it is Or
so critical.
INTERVIEWER: Could there be any-
thing that happened that she may have
INTERVIEWER: I want to interview perceived wrongly?
you in relation to statements provided
by these two people As explained in detail by one Crown
This is outrageous. You could just about Prosecutor, these questions are known as
argue the rest of the interview is inad- ‘‘Palmer questions’’ following a decision of
missible because the first thing you are the High Court of Australia (R v. Palmer
required to do under section 464 [of the
Crimes Act 1958 (Vic)] is to tell the (1998) 193 CLR 1). In Palmer’s case, as
suspect what the allegation is about and explained by this participant it was held
this officer does not do this. It takes this these questions put the defendant in an
officer until question 51 to tell the suspect unfair position because they inappropri-
what the allegation is about. Crucially, ately invite the jury to speculate, and put
you tell the suspect what the allegation is
so they can work out if they need to get a the suspect in an unfair position if they
lawyer. Lancaster’s case is important concede that they cannot demonstrate an
here. Officers must be up front from the improper motive. Further, if the accused
beginning. (Barrister, 25 years experience) offers an explanation, this may be dis-
proved, further discrediting the accused.
This was supported by the comments of Such questions and answers, according to
the other legal professionals including this legal experts, are routinely rejected on a
Crown Prosecutor– voir dire. However, these experts suggested
that if an explanation as to the victim’s
The most appropriate way to introduce motives is initiated by the accused, this
the allegation in this type of interview is
to put it in a reasonably succinct way very may be permissible. As one barrister
early in the record of interview. What suggested, Palmer’s case is an application
should be put to the suspect is ‘this of ‘‘logic and fairness’’.
608 J. M. Read and M. B. Powell

It was suggested by some experts that The experts whom we interviewed for
although it can be beneficial for the this study reiterated concerns expressed
accused to be afforded the opportunity elsewhere, for example, in the area of
to offer explanations in response to the interviewing child witnesses, the need for
Palmer question, the consequences of better training in investigative interviewing
these questions outweighs any potential (Powell, Fisher, & Wright, 2005; Walsh &
benefit to the suspect. This can be Milne, 2008). The limitations of the inter-
frustrating, according to the experts, if viewers cannot be attributed to a lack of
the suspect’s response is valid. However, training or specialisation per se as all of the
it was argued that the rules need to be experts we interviewed worked in jurisdic-
consistent across the board and all tions where the police interviewers had
suspects must be treated equally. successfully completed an investigative
interviewing training course that focused
Police officers invariably ask the Palmer on the interviewing of suspects.
question. I tell policemen about it but
Consistent with best-practice interview
they still ask it. We just routinely knock it
out. Often the defence will want the guides (e.g., Read et al., 2009), all of the
question left in because there may be an experts whom we interviewed, irrespective
alternative valid explanation for the of their background, supported the adop-
allegations. But generally speaking, pro- tion of narrative-based protocols. The
secutors and defence barristers agree to
have the Palmer question and answer
participants suggested that the foundations
taken out. (Crown Prosecutor) of a good interview, in particular in
relation to the legal aspects, are generali-
All legal professionals agreed that if an sable across interviews with individuals
alternative explanation is proffered by the suspected of committing all offence types.
suspect, and not raised by the investigating Further, the participants all emphasised
officer, this can be pursued by the inter- that the focus of the interviews rests largely
viewer and will not automatically be struck on the officers’ ability to particularise
out on a voir dire. offences (Guadagno et al., 2006). In es-
sence, interviews would be improved if the
allegations were stated to the suspect in
Discussion sufficient detail so the suspect understands
This study has highlighted ongoing concerns what it is they are being questioned about
among experts in relation to the quality of and the suspect is given the opportunity to
police interviews with suspects. Overall, the respond to the allegations in their own
experts’ perceptions were that these inter- words. Further, interviewers need to be
views are not meeting all the necessary careful not to make assumptions in the
statutory and common law requirements. interview, and to allow the points of proof
This means aspects of these interviews might (where possible) to be covered in the
not be admissible in a criminal trial. Four suspect’s narrative. Overall, these goals
main limitations were reported: offences not require better training in the use of open-
being particularised adequately; questions ended questions as well as better training in
being asked that included hearsay and relation to statutory and case law and its
questions that were imposing, leading or practical application in the interview room.
unnecessarily confusing for interviewees; The function of these strategies from a
allegations being presented in an ambiguous legal perspective could be to assist in
manner; and questioning the suspect about minimising the presence of inappropriate
the victim’s motives for making false testi- cross-examination and imposing ques-
mony against him or her. tions, which can be detrimental to the
 Improving the Legal Aspects of Police Interviewing of Suspects 609

admissibility of the evidence (McDermott v. This article has been written as a

The Queen (1948) at 515; Mildren, 1997; resource for those responsible for evaluat-
Mooney v. James (1949) at 28; R v. Wills ing interviews, as well as for investigative
(1985); Duke v. The Queen (1989) at 513). interviewers. It also seeks to address the
The appropriateness of the use of such call for more feedback from legal profes-
questions, such as persistent questioning in sionals about how to improve the quality
the form of cross-examination, is a com- of police interviews (Guadagno et al., 2006;
plex legal issue which is widely discussed in Kassin & Gudjonsson, 2004). Anecdotally,
Australian case law (Heydon, 2009)8 In R the detectives in this study stressed how
v. Demiri [2007] VSCA 170 at 26, Nettle JA critical it was to receive practical and
summarised the issue of persistent ques- effective training and supervision in their
tioning and held that – daily practice. The results of this study
provide a basis for future research to
While persistent cross-examining during quantitatively evaluate the prevalence of
the course of interview will be regarded as these problems and the effectiveness of
unfair, and as such liable to be excluded, improved training techniques in overcom-
investigating police are not bound to
accept the first answer made. Depending ing them (Powell, 2008).
upon the circumstances of the case,
persistent and thorough questioning of a Acknowledgements
suspect may well be appropriate and Thank you to all of those who participated in
acceptable, so long as the interrogation the study. This research was supported by an
is not carried out to the point of Australian Research Council Linkage Grant
impropriety, in the sense of bringing (LP0775248).
pressure to bear on the suspect or bring-
ing about an unfair or unreliable result.
Notes
Case law emphasises the propriety of 1. A person being questioned does not have to
challenging the suspect’s account during say or do anything, but anything the person
the interview. This is consistent with the does do or say may be given in evidence.
PEACE model of interviewing which en- Further, suspects must be informed of their
courages interviewers to challenge the rights to communicate with a friend or
relative, or a legal practitioner. If the person
suspect’s account appropriately, for exam- is not a citizen or permanent resident of
ple, by highlighting inconsistencies in the Australia they have the right to commu-
suspect’s account or disclosing contradic- nicate with the consular office of which the
tory evidence and asking for comment person is a citizen. Similarly, if the person
(Clarke & Milne, 2001). However, this does not speak English they have the right
to an interpreter and if the person is under
should be done in a manner which is 18 they have the right to communicate with
proper and fair to the accused. There may a parent, guardian or independent person
be other questions asked which are not and have them present in the interview (see
necessarily considered cross-examination s. 464C-E Crimes Act 1958 (Vic)).
(e.g., hearsay, leading) that in the context 2. According to s. 189 of the Evidence Act
2008 (Vic), the voir dire hearing is to
of the interview may not be inappropriate determine, in the absence of a jury, whether
but may be the subject of a voir dire and (a) evidence should be admitted (whether in
possibly ruled inadmissible. Put simply, the exercise of discretion or not) or (b) used
interviewers should be taught in training against a person, or (c) a witness is
what questions constitute appropriate as competent or compellable.
3. PEACE is an acronym for the five discrete
against inappropriate questioning. This stages of the recommended structure for
should increase the likelihood that the interviews (Clarke & Milne, 2001). These
evidence obtained will be admissible. five stages are (i) preparation and planning
610 J. M. Read and M. B. Powell

for the interview (ii) engaging the suspect Dey, I. (1993). Qualitative data analysis: A user
and explaining the interview process (iii) friendly guide for social scientists. London:
account phase where interviewers attempt Routledge.
to obtain detailed and accurate information Dixon, D. (2006). A window into the interview-
from the suspect, (iv) closure of the inter- ing process? The audiovisual recording of
view and (v) evaluation of the interview police interrogation in New South Wales,
performance by the interviewer (Clarke & Australia. Policing and Society, 16, 323–348.
Milne, 2001). Dixon, D. (2007). Interrogating images: Audio-
4. These instructions do not carry the same visually recorded police questioning of sus-
effect as laws. Failure to comply with the pects. NSW, Australia: The Sydney Institute
Chief Commissioner’s Instructions may or of Criminology.
may not lead to the inadmissibility of the Duke v. The Queen (1989) 180 CLR 508 at 513;
evidence in court. See for example, R v. 83 ALR 650 at 653.
Pritchard (1991) 1 VR 84 at 93. Evidence Act 2008 (Vic) s 59, s 84, s 189.
5. This paper is part of a larger study Gifford, S. (1998). Analysis of non-numerical
involving the investigation of police inter- research. In C. Kerr, R. Taylor, & G.
viewing of sex offender suspects. Heard, (Eds.), Handbook of public health
6. As highlighted in the Method, aliases have methods (pp. 543–554). Sydney: McGraw
been provided so as to remove any identify- Hill Australia.
ing information contained in these Guadagno, B., Powell, M., & Wright, R. (2006).
interviews. Police officers’ and legal professionals’
7. Research has shown that suspects are likely perceptions regarding how children are,
to unwittingly behave in a way that appears and should be, questioned about repeated
to confirm their guilt (particularly if they abuse. Psychiatry, Psychology and Law, 13,
are innocent) if the officers adopt a guilt- 251–260.
presumptive questioning style (Hill, Mem- Heydon, J.D. (2009). Cross on evidence (8th ed.).
on, & McGeorge, 2008). Sydney: LexisNexis Butterworths.
8. See Cleland v. R (1982) 151 CLR 1 at 5; Hill, C., Memon, A., & McGeorge, P. (2008).
Smith v. R (1957) 97 CLR 100, at p. 129; R The role of confirmation bias in suspect
v. Amad [1962] VR 545; R v. Lee (1950) 82 interviews: A systematic evaluation. Legal
CLR 133; (1950) ALR 517; (1950) 24 ALJR and Criminological Psychology, 13, 357–
223; R v. Nundhirribala (1994) 120 FLR 125; 371.
R v Pritchard [1991] 1 VR 84 at 93; R v. Kassin, S.M., & Gudjonsson, G.H. (2004). The
Smith [1964] VR 95 at 97; Van Der Meer v. psychology of confessions: A review of the
R (1988) 82 ALR 10; (1988) 62 ALJR 656; literature and issues. Psychological Science
(1988) 35 A Crim R 232; [1988] HCA 56. in the Public Interest, 5, 33–67.
Kumar, A., Odgers, S., & Peden, E. (2009).
Uniform evidence law: Commentary and
materials (3rd ed.). NSW: Thomson Reuters.
References Leo, R.A. (1996). Inside the interrogation room.
Baldwin, J. (1993). Police interview techniques: Journal of Criminal Law and Criminology,
Establishing truth or proof? British Journal 86, 266–303.
of Criminology, 33, 325–352. Leo, R.A. (2008). Police interrogation and
Browne, J., & Sullivan, G. (1999). Analysing in- American justice. Cambridge: Harvard Uni-
depth interview data using grounded theory. versity Press.
In V. Minichiello, G. Sullivan, K. Lincoln, Y.S., & Guba, E.G. (1985). Naturalis-
Greenwood, & R. Axford (Eds.), Handbook tic inquiry. Newbury Park, CA: Sage.
for research methods in health sciences (pp. McDermott v. The Queen (1948) 76 CLR 501 at
576–611). NSW, Australia: Addison-Wesley. 515 and 517.
Clarke, C., & Milne, R. (2001). National Mildren, J.D. (1997). Redressing the imbalance
evaluation of the PEACE investigative inter- against aboriginals in the criminal justice
viewing course. London: Home Office. system. Criminal Law Journal, 21, 7–22.
Cleland v. R (1982) 151 CLR 1 at 5. Mooney v. James (1949) VLR 22 at 28.
Crimes Act 1958 (Vic) s 459, s 464. Powell, M.B. (2008). Designing effective train-
de Wet, J., & Erasmus, Z. (2005). Towards ing programs for investigative interviews
rigour in qualitative analysis. Qualitative with children. Current Issues in Criminal
Research Journal, 5, 27–40. Justice, 20, 189–208.
 Improving the Legal Aspects of Police Interviewing of Suspects 611

Powell, M.B., Fisher, R.P., & Wright, R. (2005). Sim, J., & Wright, C. (2000). Research in health
Investigative interviewing. In N. Brewer & care: Concepts, designs and methods. Chel-
K.D.Williams (Eds.), Psychology and law: tenham, UK: Stanley Thornes.
An empirical perspective. New York: The Smith v. R (1957) 97 CLR 100, at 129.
Guilford Press. Tofilau v. R (Matter No M144/2006)–(2007) 238
Powell, M.B., Wright, R., & Hughes-Scholes, ALR 650.
C.H. (2011). Contrasting the perceptions of Van Der Meer v. R (1988) 82 ALR 10; (1988) 62
child testimony experts, prosecutors and ALJR 656; (1988) 35 A Crim R 232; (1988)
police officers regarding individual child HCA 56.
abuse interviews. Psychiatry, Psychology Victorian Law Reform Commission. (2004).
and Law, 18, 33–43. Sexual offences: Final report. Melbourne:
R v. Amad (1962) VR 545. Victorian Law Reform Commission.
R v. Demiri (2007) VSCA 170 at 26. Victoria Police. (2009). Victoria Police Manual
R v. Lancaster (1998) 4 VR 550. on CD-ROM (September–December 2009).
R v. Lee (1950) 82 CLR 133 at 149; (1950) ALR Instruction 112–113: Suspects and offenders –
517 at 524–525; (1950) 24 ALJR 223. interviews and statements. Melbourne: Vic-
R v. Nundhirribala (1994) 120 FLR 125. toria Police.
R v. Palmer (1998) 193 CLR 1. Walsh, D.W., & Milne, R. (2008). Keeping the
R v. Pritchard (1991) 1 VR 84 at 93. PEACE? A study of investigative interview-
R v. Roy (Court of Criminal Appeal, unre- ing practices in the public sector. Legal and
ported, 16/11/1993). Criminological Psychology, 13, 39–57.
R v. Smith (1964) VR 95 at 97. Walton v. The Queen (1989) 166 CLR 283 at
R v. Vollmer (1996) 1 VR 95. 301.
R v. Wills (1985) 39 SASR 35 (FC). Williamson, T.M. (1993). From interrogation to
Read, J.M., Powell, M., Kebbell, M., & Milne, investigative interviewing: Strategic trends
R. (2009). Investigative interviewing of in police questioning. Journal of Community
suspected sex offenders: A review of what & Applied Social Psychology, 3, 89–99.
constitutes best practice. International Jour-
nal of Police Science and Management, 11,
521–535.
Copyright of Psychiatry, Psychology & Law is the property of Routledge and its content may not be copied or
emailed to multiple sites or posted to a listserv without the copyright holder's express written permission.
However, users may print, download, or email articles for individual use.