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This chapter considers the impacts of informal police and ASIO questioning on those policed. This focus is crucial not only because being questioned ‘by consent’ is the most prevalent strategy of counter-terrorism policing, but also because it brings to the fore key themes of this book. Questioning interpellates policed subjects. Individuals are categorised as cooperative or uncooperative, suspicious or transparent, moderate or extremist. While people may resist, evade, or welcome policing, informal questioning overwhelmingly compels those policed to give an account of themselves and their communal positioning. In Chapter 4 police expressed hope that community engagement will soften the necessity of intelligence, make police less suspicious, and make their practice less punitive. In the present chapter those who are policed talk about consensual strategies as coercive instruments.

This chapter examines how interrogation practices vary with geographic context and produce “justice by geography.” It explores the differences of methods between urban, suburban, and rural police. Juvenile justice administration varies in these places and affects how judges adjudicate and sentence youths. Youths' race and crimes vary with geographic locale and affect interrogation practices. Because geography and race overlap—urban minority and suburban white—the chapter analyzes whether youths of different races waive Miranda differently and whether police question and they respond differently. The presence of the parents also provides an opportunity to assess the role of the police during questioning.

This chapter takes issue with the procedural amendments made in the England and Wales legal system regarding how children need to be treated by the police and in court, referred to in the Memorandum of Good Practice (1992), and the subsequent replacements: Achieving Best Evidence (2002, 2004, 2007, and 2011). The primary objective of the policy changes was to enhance justice for all, without terrorizing those most vulnerable to the inquisitorial process. However, while the amendments have been successful in minimizing the terror experienced by children in the legal process, resulting in more detailed and reliable testimonies, it is also arguable that justice is still likely to be out of reach for these vulnerable witnesses, as they do not have the linguistic skills needed to utilize appropriately the invitation to ‘tell their own story’, and they don't always have the social skills necessary to comprehend what is being said to them. The chapter offers a detailed consideration of children's evidentiary experience and performance, as well as the nature and content of police questioning that also can be harmful to their case. It argues that the initial interview by the police should not be used in court as the victim's Evidence-in-Chief, because the police function of collecting evidence is not consistent with the chief prosecutor's role of putting the victim's ‘best foot forward’ in court. In effect, the current situation requires those recognized by the legal process as ‘vulnerable’ (i.e., dogs who are ‘down’) to build their own case, which even those not recognized as vulnerable would be hard pressed to do appropriately or successfully.

This chapter analyzes how police questioned the vast majority of youths who waived Miranda in the previous chapter. It investigates the process of interrogations—the types of tactics and Reid Method techniques police used. Miranda imposes a structure on interrogations based on warning, waiver, interrogation, and response. Police must build rapport, successfully negotiate a warning, and elicit a waiver before they begin questioning. The chapter also examines how police conclude an interview and demonstrate a voluntary waiver and statement. Any statement must be voluntary and not prompted by threats or promises. Some investigators concluded by asking suspects whether the officer used any coercive influences to elicit their statement.

This chapter reviews the three constitutional strategies used by the U.S. Supreme Court to regulate police interrogation. It argues that these strategies fail because the Court has no way to determine what actually happens during police questioning. The Miranda Court has no empirical evidence of the way police question suspects and instead uses interrogation training manuals and programs as a proxy for real interrogation. The chapter notes that during questioning, police utilize the Reid Method which includes psychological tactics to heighten stress and anxiety during questioning. These tactics can manipulate people during interrogation which leads to false confessions. In addition, the chapter contrasts the Reid Method with investigative interview techniques developed in the United Kingdom.

This chapter describes how juveniles respond to police tactics during interrogations and their attitudes in the interrogation room. It analyzes their demeanor, how their attitude determined whether they cooperated or resisted, the evidentiary value of statements, and the length of interrogations. It examines how often police obtain confessions, admissions, or denials, and leads to other evidence. It also investigates how juveniles' decision to waive or invoke Miranda affects case processing—offense level at conviction, charge reduction, and sentence. The criminal and juvenile justice systems rely heavily on plea bargains, and youths' admissions affect the balance of advantage between prosecutors and defense lawyers. The relationship between confessions and pleas highlights the Crime Control model of justice with one critical difference. Although police interrogation involves an informal, administrative inquiry, in Minnesota it is a proceeding “on the record.” This led the state to convict more juveniles who waived Miranda.

This concluding chapter presents recommendations to reform the way police question suspects. Some focus on general interrogation practice—for example, mandatory recording of all interviews, prompt determination of probable cause, time limits on interrogation, and more use of investigative interview techniques rather than the confrontational Reid Method. Others focus on juvenile-specific reforms—mandatory assistance of counsel when police question delinquents fifteen years of age or younger. These reform proposals address the fundamental conundrum of interrogation in an adversarial process. Of all these recommendations, only mandatory recording of interrogations can make visible that which takes place in secret, provide suspects with an objective record on which to appeal inquisitorial fact-finding, and enable trial judges to assess Miranda waivers and voluntariness and reliability of confessions. It enhances factual accuracy, limits government overreaching, and maintains a proper balance between the individual and the state.

This chapter examines the changing ways in which the role of the criminal defense lawyer is structured and understood within different procedural traditions, and the challenges posed to individual legal cultures and practices by the growing influence of the ECtHR and the EU. It focuses on the earliest stages of the pretrial defense role, in part because of the determinative importance for the case of the initial police detention and questioning of the suspect, but also because this is where some of the most radical challenges to procedural values and shifts in role expectations have taken place, especially within inquisitorial-type procedures whose legal tradition centers on a model of judicial investigation rather than party-based argument. Pan-European measures and court decisions have sought to cut through procedural differences, focusing instead on effective defense as a fundamental part of the right to a fair trial and an essential component of the privilege against self-incrimination.

This book explores three topics in the law of evidence which might once have been considered separately but which are now so interwoven that such an approach seems no longer eligible. They are the law relating to confessions, the law concerned with unlawfully or unfairly obtained evidence, and that concerned with the evidential effects of the accused's right to silence when questioned by the police. Before the decision of the House of Lords in Sang, there already existed a well-established exclusionary rule for confessions obtained by threats, promises, or oppression, together with an exclusionary discretion for cases where rules laid down by the judges and others to govern police questioning had been breached. As regards non-confession evidence, by contrast, there were but a collection of post-World War II dicta recognising, in principle, a judicial discretion to exclude such evidence where obtained unfairly and two briefly-reported Court of Criminal Appeal cases in which the trial judge's decision not to exercise that discretion in favour of exclusion had been overturned.