When and Why Suspects Fail to Recognize the Adversary Role of an Interrogator in America: The Problem and Solution

Abstract

What is the identity of the police interrogator who is questioning the suspect to get a confession: a neutral investigator or an adversary? What is different in each identity? Courts do not distinguish between these two roles and therefore leave a fundamental element of police interrogation unaddressed. This article attempts to fill this gap. American police interrogators are clearly adversarial and should be prohibited from confusing or concealing their adversarial role during interrogation. The adversarial criminal system and its complex evidentiary rules make the police and the prosecutor close allies. However, this is not evident to the subject of most interrogations. Police interrogators often confuse or conceal their identity, since this strategy is effective to make the suspect confess, but rarely regulated. This strategy should be more strictly controlled, because if it is sophisticatedly used, it could be not only coercive and but also unfair. For a realistic reform, this article considers that the revised police code of conduct could be a timely measure to ban that strategy. The Rule 4.3 in Model Rules of Professional Conduct, which regulates the lawyer’s contact with an unrepresented person, will serve as a good example.

Keywords: Police Interrogation, False Confession, Adversary Role