An Investigator's Guide to the Science & Psychology of Investigative Interviewing, Pt 5 - Ethics, Bias, and the Minimization & Maximization Techniques

Have you ever had a “gut” feeling when you went to interview someone? You just knew they were guilty or innocent. As you asked your questions and listened to the interviewee’s responses, were your suspicions confirmed? On most occasions, your gut instincts are not too far from the truth, but what happens in those instances when your “gut” feelings are incorrect?

When an interviewer makes the decision to interview a suspect, there are unconscious mechanizations that occur in the brain to which he/she is not fully aware. Daniel Kahnemann, in his book Thinking Fast and Slow, hypothesizes that our brains work in two distinct systems. System 1 is our reactionary brain and it makes instantaneous decisions, commonly referred to as your “gut instinct”. System 2 is our rational brain, which leads us to think before we act. On any given day, how many of your decisions are made in the reactionary mode as opposed to the rational thought mode? Do you believe that you make, on the most part, rational decisions, especially when the stakes are high? Well, you might be disappointed to learn that approximately 95% of the decisions we make every single day are utilize System 1 thinking.  Because of this, irrational and flawed decision-making, even in decisions with extreme importance and significant ramifications, is the norm for most.[1] 

Commonly, System 1 affects interviewers before our first interactions with an interviewee, especially with someone who has consciously or unconsciously been deemed a suspect. Whether you realize it or not, you have often made a pre-judgment as to guilt and truthfulness prior to asking your first question. This leads to unconscious groupings, which affect how you conduct the interview. Interviewees deemed as witnesses are more likely to be considered part of your in-group because you believe, at least initially, they have the same goals and desires as you. Suspects and targets, however, are classified very differently. By the time the choice is made to interview the subject or target of your investigation, an interviewer often has reasons and evidence to believe that the suspect or target is culpable, which consciously or unconsciously, places this person in your out-group. When someone is classified as an out-group member, System 1 responds appropriately by making the interview process more adversarial than with someone who is perceived to be in your in-group.

A misclassification occurs when an interviewer consciously or unconsciously prejudges an innocent party as guilty. Our implicit biases, those biases to which we are consciously unaware, often play a role in misclassifications. Since implicit biases come from previous life experiences, personal beliefs, culture, and education among other things, you have expectations for not only outcomes but also behaviors. If an interviewee does not provide the answer you expect or behave in a manner that you perceive to be normal for a truthful person, your brain interprets these inconsistencies in ways that fit your expectations. “Erroneous prejudgments of guilt trigger more aggressive interrogations and cause investigators to misinterpret an innocent person’s denials as the resistance of a guilty subject and redouble their efforts to elicit a confession.”[2] 

Before you realize it, you are victimized by confirmation bias, described by Lord Byron as, “I will look at any additional evidence to confirm the opinion to which I have already come.”[3] Interviewing is normally an attempt to find and discern factual information but misclassifications will have an effect on your objectivity and interpretation of facts. “Research off a variety of contexts has demonstrated that once people form beliefs, they search for, interpret, and create subsequent information in ways that verify their existing beliefs, while disregarding contradictory information.”[4] 

After you inadvertently misclassify an interviewee as guilty, any proof offered by the interviewee to support his/her innocence is likely to cause cognitive dissonance, a stressful state in your brain where existing beliefs contradict the evidence being offered. The brain automatically seeks to remove such stress through the easiest way possible. “The tunnel vision and confirmation biases inherent in in guilt-presumptive interrogation in effect create a self-reinforcing feedback loop, leading investigators to put more pressure on innocent suspects and blinding them to plausible denials, alibis, and assertions of innocence, as well as to any evidence that contradicts their theory of the suspect’s guilt.”[5] When the suspect tells the interviewer something that does not coincide with the story in his/her head, the interviewer deems the statement to be inconsistent and untruthful in order to remove the dissonance created. So instead of searching for the truth, interviewers inadvertently seek to confirm what they believe to have happened instead of what actually happened. Frustrated by this process, interviewers frequently resort to other persuasive methods in an attempt to get the suspect to confess in ways that are consistent with the interviewer’s investigative theory.

           Two common techniques used by interviewers in the United States to facilitate confessions are referred to as minimization and maximization. With the minimization technique, interviewers attempt to persuade the interviewee to admit a violation or infraction by diminishing the severity of their action. A seasoned interviewer will slowly build reasonable themes, which allow the interviewee to rationalize and justify the action in such a way that it facilitates an admission.  In an embezzlement case, for example, an interviewee can be offered reasons such as, “The reason you took the money was because you were simply trying to expose an inferior internal control system.” Another theme could focus on family. “The only reason you took the money was because you had to feed your children and your former spouse wouldn’t pay his/her share.” After a while, the confession becomes a logical choice for the interviewee because it allows the interviewee to maintain a positive self-image while admitting to aberrant behavior, but there are other psychological issues at play. “Research shows that minimization tactics may lead people to infer by pragmatic implication that leniency in sentencing will follow from confession—even without an explicit promise.”[6] Even though you may be very clear in your intentions and words, you cannot control how your message is received by the interviewee. 

The maximization technique is the opposite of the minimization technique in that the interviewer overstates the evidence obtained. In the infamous Norfolk Four case where four U.S. Navy sailors were accused and wrongly convicted of murder, Ensign Danial Williams was told that he had failed a polygraph test when, in fact, the reverse was true. With maximization, the interviewer’s intent is to convince the interviewee that there is a mountain of evidence against them and the only way out is to provide a confession. Maximization has a profound effect on convincing people to confess to violations, even when they did not commit them. 

In a study, students were given a computer test and expressly forbidden to press the ‘Esc” key. When the computer suddenly crashed, the students were told that they had, despite warnings, pressed the ‘Esc’ button. While only 27% of students accepted blame for causing the crash (even though they had not actually pressed the ‘Esc’ button), the confession rate increased to 79% when an authority figure presented an alleged incriminating written statement from an eyewitness. Surprisingly, 87% of the students confessed when told that the keystrokes were recorded and would be analyzed the next day by an expert. The mere threat of potential proof that they cheated made it easier for the students to confess to a false violation.[7]

Currently in the United States, there are no laws to prevent interviewers from lying to interviewees. There is plentiful debate on the ethics of utilizing these techniques with positives and negatives on each side of the argument. Clearly, the minimization and maximization techniques are effective in assisting the guilty in bridging their natural process of denial to an eventual admission of truth. However, there are also potential dangers associated with these methods that interviewers should contemplate prior to making the decision to deploy them. According to the Innocence Project, one in four defendants who have been exonerated by DNA testing falsely confessed to the crime they allegedly committed.[8] Two-thirds of murder cases in the United States are solved by confession. For all other crimes, the average is twenty-five percent.[9]

Contamination is a term used in investigative interviewing where an interviewer accidentally or intentionally provides a key piece of information to the interviewee, typically something only the true offender would know. This leakage of valuable information exponentially increases the chance of a false confession, because it can play into the internal and unconscious biases of the interviewer. The Netflix documentary, Making a Murderer, included scenes of an interview with a sixteen-year old male named Brendan Dassey. Research has shown that juveniles and intellectually challenged people are more susceptible to suggestion and leading questions as they relate to false confessions.[10]  An example of contamination and its effects are contained within the Brendan Dassey interview in this passage:

Detective Wiegert: What else happens to her in the head? It’s extremely, extremely important that you tell us this for us to believe you. Come on, Brendan. What else? (Silence) We know. We just need you to tell us.

Brendan Dassey: That’s all I can remember.

Wiegert: All right, I am just going to come out and ask you. Who shot her in the head?

Dassey: He did.

Wiegert: Then why didn’t you tell us that?

Dassey: Because I couldn’t think of it.

           In this instance, contamination occurred when the interviewer revealed that the victim was shot in the head, a fact that was purposely concealed from the public. A person with a low intellectual quotient or someone who is more inclined to suggestion will follow this lead, as Dassey did, and regurgitate details that confirm the predisposed thoughts of the interviewer. While it is possible that Dassey did actively participate in the Halbach murder, a singular piece of evidence that could identify the true murderer is now exposed to someone who may or may not have committed the crime. Once the contamination occurred, Dassey’s knowledge and subsequent answers were tainted. 

           Frustration at the progress of the interview frequently leads to contamination. Emotional intelligence is an important tenet of leadership, but it can also apply to interviewing as well. The five components of emotional intelligence are self-awareness (being conscious of your emotions), self-regulation (controlling or redirecting your emotions), internal motivation, empathy, and social skills.[11] When interviewers become frustrated, their emotional intelligence skills falter. Emotions such as anger and frustration fall into the reactionary domain of System 1 and can cause us to do things that we normally wouldn’t do if we were to stop and think. This lack of self-awareness leads to breakdowns in self-regulation, which in turn, can allow emotion to dictate an interviewer’s actions. It is in these moments that contamination and leakage are most likely to manifest.

Not only can emotions blunt your emotional intelligence, but they can also affect an interviewer’s ability to listen and focus. When System 1 becomes dominant, which it does when we become angry, tired, frustrated, and stressed, answers to questions that would normally require clarification are more likely to be dismissed by the interviewer as an outright lie, a memory error, or unimportant. In addition, the cognitive load required to focus on the task at hand will often cost an interviewer the ability to listen closely to what was said and contextualize the statement by assigning it a similar value. For example, here is an interaction between Brendan Dassey and his mother, Barb Janda, after police detectives told Brendan to tell his mother that he had confessed. The conversation was recorded and available to the detectives.

Brendan Dassey: I ain’t gonna face him.

Barb Janda: Who?

Dassey: Steven

Janda: You know what Brendan?

Dassey: What?

Janda: He did it. You do what you gotta do. So in those statements, you did all that to her too?

Dassey: Some of it.

When you aren’t focused because your tired or stressed, System 1 contextualizes what was said instead of actually parsing apart the words that were used. If you are not utilizing System 2, you might overlook the meaning and intent of what was said by the interviewee. Here, Dassey expressed concerns about his uncle, Steven Avery. When Dassey’s mother tried to assuage him, she asked him if he had done things to the victim. Dassey’s reply is troublesome in that he doesn’t say that he didn’t do anything, but rather admits to doing “some of the things” described to the detectives. If you are firmly in System 1’s domain because of fatigue, stress, or even bias, you could easily contextualize the statement into a full denial of involvement.

Interviewers who lose focus often start to dominate the conversation in the interview process. While the interviewer may have initially posed open-ended questions so that the interviewee could relay information in their own words, the frustrated and unfocused interviewer relies more on closed-ended questions, interruptions, and detailed assertions, many of which the interviewer expects complete agreement from the interviewee. Just like when you use your cell phone all day long, focus as well as other System 2 functions can drain your battery causing you to overlook things or behave in ways that you wouldn’t if System 2 were deployed. Interviewers, because of their misconception about their ability to detect deception, will continue on with an interview under the belief that the suspect is about to crack and provide a confession instead of taking a deserved break, which would allow both the interviewer as well as the interviewee to recharge and improve focus. This, in turn, would lead to a higher likelihood of discovering the truth in the interview process.

           An interviewer brings a lifetime of experiences and beliefs into each and every interview. While an interviewer almost always has the best intentions in mind when conducting an interview, you simply cannot fully remove your physiological and mental limitations inherent in System 1.  An interviewer who understands these limitations as well as the dangers of utilizing certain techniques is better prepared to conduct interviews in ways that protect the interviewer and interviewee while also advancing the main goal of any investigative interview, which is to uncover the truth.

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[1] Kahneman, D. (2011). Thinking, Fast and Slow. New York: Farrar, Straus and Giroux.

[2] Ibid.

[3] Tavris, C., & Aronson, E. (2007). Mistakes were made (but not by me): Why we justify foolish beliefs, bad decisions, and hurtful acts. Orlando, Fla.: Harcourt.

[4] Leo, R. (2013). Why Interrogation Contamination Occurs, Ohio State Journal of Criminal Law, Volume 193, 2013. Accessed March 5, 2019 at https://poseidon01.ssrn.com/delivery.php?ID=861118117124097126123109067028100119041063026016044025007126090029072122106071116018119052024106016057001003086120082087114101038013011039092116082026090123068108002083049064073101095064123020026097069100088081000095095077008005123110110012121116096&EXT=pdf

[5] Leo, R. (2013). Why Interrogation Contamination Occurs, Ohio State Journal of Criminal Law, Volume 193, 2013. Accessed March 5, 2019 at https://poseidon01.ssrn.com/delivery.php?ID=861118117124097126123109067028100119041063026016044025007126090029072122106071116018119052024106016057001003086120082087114101038013011039092116082026090123068108002083049064073101095064123020026097069100088081000095095077008005123110110012121116096&EXT=pdf

[6] Kassin, S. (2008). The Psychology of Confessions, Annual Review of Law and Social Science, Volume 4, 2008. Accessed January 10, 2019 at https://web.williams.edu/wp-etc/psychology/Kassin/files/Kassin%20(2008)%20-%20ARLSS%20Chapter.pdf

[7] Ibid.

[8] Unknown Author(s). (2019). False Confessions & recording of Custodial Interrogations, Innocence Project, 2019. Accessed January 10, 2019 at https://www.innocenceproject.org/causes/false-confessions-admissions/

[9] Leviton, M. (2017). The Whole Truth: Richard A. Leo On Why Innocent People Confess To Crimes, The Sun, July 2017. Accessed January 10, 2019 at https://globalwrong.files.wordpress.com/2017/07/leosunmagazinearticlejuly2017final.pdf

[10] Garrett, B. (2018). Brendan Dassey’s False Confession Shows We Need To Be More Careful When Interrogating Juveniles, USA Today, June 9, 2018. Accessed February 21, 2019 at https://www.usatoday.com/story/opinion/policing/2018/06/09/brendan-dasseys-false-confession-supreme-court-column/652915002/

[11] Unknown Author(s) (2013). Daniel Goleman’s Emotional Intelligence Theory Explained, Room 241, Concordia University-Portland, February 27, 2013. Accessed February 21, 2019 at https://education.cu-portland.edu/blog/classroom-resources/daniel-golemans-emotional-intelligence-theory-explained/