Photographer:Fotograaf: Joey Roberts
Crime suspects can bank on being invited by letter to come in for a chat at the local police station. In serious cases, suspects can even be picked up at any hour of the day or night. Fortunately, suspects are not on their own. Since 1 March 2016, lawyers are allowed to be present in the interrogation room. Or does their presence make no difference at all?
Forensic psychologist Robert Horselenberg compares it to putting “a band-aid on an arterial haemorrhage”. He sketches a picture of lawyers who don't really know what to make of their role. “Prior to the police interrogation, they have an intake meeting with their client. Often, this is much too short. They want to know what evidence the police have against you, and then apply their defence strategy accordingly. But are they thinking of the client? Do they have any idea as to whether the client understands them?” Horselenberg, together with Dutch and foreign colleagues, is involved in the Supralat project, covering Hungary, Ireland, Belgium, and the Netherlands. They are training criminal justice lawyers. “We teach them communicative skills, such as how they should carry out their first interview with a suspect: are you actually listening? Are you asking open or closed questions? Is the client actually capable of being interviewed? Someone suffering from a psychosis – which you might not immediately recognise – should not be pressured. Then you have to urge the police not to interview.”
In addition, lawyers often have no idea what the interrogators are up to, says Horselenberg, “what tricks they are using to trap the suspect”.
And it is more a rule than an exception that pressure is applied. “Police officers learn to do so at the Police Academy. It is the basis. If the story is going in the direction of the truth, then the pressure may be lessened. But what is the truth? If you have an idea of what the truth is, surely you are biased?”
Horselenberg remembers a case in which the lawyer suggested in court that his client had been put under too much pressure by the interrogators. To which the judge answered: ‘but what was your role? You were there, weren't you?’ “You need to realise that you, as a lawyer, are partly responsible.”
What is a lawyer allowed to do in an interrogation room? Answer questions on behalf of his suspect? Make recordings? “No, neither of these.” He is allowed to signal to the investigator when the client doesn't understand or when the investigator goes too far, says Horselenberg. He is also allowed to check the written statement against that which has been said. “Although in practice, it is often ‘the police's word’ about the content that takes precedence over that of the suspect or the lawyer.”
Horselenberg regularly listens to recordings of interrogations in his capacity of expert witness. “Recordings of up to eight hours are sometimes summarised one one-and-a-half pages by the police. And that is allowed. Because according to the law, only relevant parts need to be written down. But what is relevant? Who determines this? As a witness expert, you want to know literally what has been said and asked, but that is difficult.” The quality of the recordings is often poor, “inaudible because of typing on a keyboard or coughing. Or you hear mumbling by the suspect who bows his head”.
He also receives footage - except in the case of sexual offences - “but often these are of such poor quality that you can't do much with them”. If the footage has a decent quality, Horselenberg pays close attention to the investigators and not so much the suspect. “What is their facial expression? Are they raising their eyebrows, are they steering the statement in a particular direction? Questions shape the answers. That is what we pay attention to. Lawyers should also be aware of this.”
Apart from the lack of skills of many lawyers, there is also a financial issue, says Horselenberg. The state pays them “a pittance” for all interrogations that take place within the framework of the case concerned. “If someone is interviewed for several days, three hours or more at a time, then the lawyer won't always attend all of them.”
Mythbusters is a series in which academics shoot down popular myths on complex topics