Carrie Gillon: Hi, and welcome to the Vocal Fries podcast, the podcast about linguistic discrimination.
Megan Figueroa: I’m Megan Figueroa.
Carrie Gillon: I’m Carrie Gillon.
Megan Figueroa: I thought you were gonna forget your name there for a second.
Carrie Gillon: What!
Megan Figueroa: I thought you forgot your name.
Carrie Gillon: [Laughs] Yeah, Carrie… something… something with a G, I think? [Laughs]
Megan Figueroa: I mean, if ever there were a time to forget your own name, I think it might be now.
Carrie Gillon: Sweet baby jesus, it is rough times.
Megan Figueroa: It’s a very uncomfortable time for non-black people. I want everyone to know that we’re right there in there with you and that it’s okay to feel uncomfortable.
Carrie Gillon: In fact, we should feel uncomfortable.
Megan Figueroa: Yes. You know, every Tuesday at 3:00 I’m like, Therapist, remind me that it’s okay to feel uncomfortable.
Carrie Gillon: In fact, really, we should feel uncomfortable. If we’re not feeling uncomfortable, what is wrong with us?
Megan Figueroa: Once you get to the point where you’ve numbed out so much against fellow humans’ humanity.
Carrie Gillon: Yeah. Although, I will say, I guess, a small – I mean, there’re a bunch of things that make me somewhat hopeful, but one of them is that there’s a lot more white people involved in the protests than in previous ones. While sometimes their behavior can be problematic, I just think it’s a sign that things have shifted quite a bit since Black Lives Matter first started protesting in Ferguson when that was almost exclusively black people.
Megan Figueroa: Absolutely. You see the pictures and it’s different. It’s bigger. I don’t know if this is some sort of silver lining to COVID with people working from home or there being some things more accessible to them because of the pandemic, too. Whatever happened, this time it’s different.
Carrie Gillon: Yes. I think the pandemic is part of it – the fact that some people don’t have a job to lose, so they can just protest freely. But also some people who are working from home – they’re white, so they’re unlikely to lose their jobs anyway, sadly – but they’re, perhaps, even more online than they were before and they’re seeing more of the injustices. I think the pandemic actually is playing a huge role in what we’re seeing.
Megan Figueroa: Ha ha, I don’t wanna say, “Good for the pandemic,” but –
Carrie Gillon: Yeah! I know! Man…
Megan Figueroa: What confluence of events!
Carrie Gillon: I know!
Megan Figueroa: I’ve been often speechless, and that’s good. I mean, I try to do a lot of listening, try to speak out at the right time against fellow white people doing something. You have a tweet to read me, right?
Carrie Gillon: Right. So, fellow white people, we should be doing more listening and less talking. The “silence is violence” thing is true, but there’s still a limit. Be parsimonious. Don’t talk over other people, basically.
This is a tweet from Studio Glibly or @NoTotally. “Three days ago” – meh, this is more than three days ago now, but – “Three days ago some Vox journalists decided, apparently for everyone, that abolish/defund the police was bad messaging of a bad idea. Today the white journalists are discussing what the slogan should be changed to. White people are simply not up to the challenge”.
So, yes. Stop it! We’re new to this, most of us – the vast, vast, vast majority of white people are new to this discussion – so stop talking for other people.
Megan Figueroa: Absolutely. And to completely co-op the message of “defund the police” when you’re actually saying “reform” or, basically, “refund” – or “give more money, but maybe to different kinds of trainings” – no. That’s not what this movement is about. It’s misinformation, too.
Carrie Gillon: It’s definitely misinformation, yeah.
Megan Figueroa: The fucking audacity to be like, “Let’s re-message this,” when black women have been working so hard for so long on the abolition movement and to, of course, sweep in – swoop in – “sweep,” too, I mean, just whatever – come in –
Carrie Gillon: Swinging.
Megan Figueroa: – swinging on a – what is that Miley Cyrus song?
Carrie Gillon: Oh, um, on that wreck – what is that thing?
Megan Figueroa: The wrecking ball, is it?
Carrie Gillon: The wrecking ball! Jeez, yeah.
Megan Figueroa: Doing that basically.
Carrie Gillon: This is how I’m interpreting what’s going on – it’s scaring them. They’re like, “Oh, I can’t imagine a world without police,” which, okay, fine, that is a difficult thing to imagine given that we’ve been living with police for hundreds of years in different forms, but still, they’ve been around for a long, long, long time. I can understand that feel, right.
Megan Figueroa: And they’ve been serving white people very well.
Carrie Gillon: Yes, mostly. They’ve definitely only been serving white people, but not always very well because some white people are not served that well. But, regardless, it is built for us. So, okay, fair. I get that fear. I do. But just because you’re afraid doesn’t mean that you get to decide, “Well, that’s not really what that means.” Like, “Eh, let me explain to you how the police could be better.” Okay, you can have that conversation, but you can’t say that that’s what “defund the police” means.
Megan Figueroa: The fear thing – I do get it. I saw someone on Twitter – a few people on Twitter, black folks on Twitter – say that fear is really limiting our imaginations.
Carrie Gillon: Yes!
Megan Figueroa: I was like, oh my god! One hundred percent, exactly that. That’s something that I’ve been remembering a lot. I tweeted about it. I’m willing to remind white people too that I get that your first reaction is “But will we still be safe?” but you have to remember that –
Carrie Gillon: We’re not safe!
Megan Figueroa: And black people have never been safe. That’s not the question that they’re asking. They’re like, you know, this “defund” and then “abolition,” that’s where their safety lies and why are we so scared to go down that route if it means – there’re some people that have never been safe, and I think that it’s a good reminder. I do really, genuinely believe there’re good people that don’t really think about the fact that not everyone’s been safe.
Carrie Gillon: Right. One hundred percent. They just don’t know. And that is fine, but that’s why you have to stop and listen, right, and learn.
Megan Figueroa: Exactly.
Carrie Gillon: I would also point out that there’re plenty of white people, at least in certain circumstances, who are also not super safe.
Megan Figueroa: Like trans folks, deaf folks.
Carrie Gillon: Some women. Victims of interpersonal violence are not very well-served by the police that are often mocked by the police or told, “Well, he hasn’t done anything yet, so” – because most of the perpetrators of this violence are men, not all. It’s not really serving very many people that well. But we forget.
Megan Figueroa: We absolutely forget because we grew up in this society – this racist society –
Carrie Gillon: With so much copaganda.
Megan Figueroa: Yes. I mean, did you see that the show COPS was cancelled?
Carrie Gillon: Finally! That show was trash – never, ever –
Megan Figueroa: It was as old as I am, basically. Millennials have been growing up with COPS and shows like Law and Order and our media is full of copaganda.
Carrie Gillon: So, so much. It’s good that we’re finally thinking about how we can maybe at least be a little less pro-cop, just a tiny fucking bit. Ugh.
Megan Figueroa: Cop is a job. We should really be pro-people. It just seems so simple. Another thing, it’s happening again, but the Blue Lives Matter. I’m like jesus fucking christ.
Carrie Gillon: That surprising me zero much. Those people are on a trip.
Megan Figueroa: I mean, hopefully it’s like the – how do you call it? – the dying breath of that or at least the beginnings of it.
Carrie Gillon: I’m of two minds of this. It’s definitely possible to go in two very different directions. One where this is the dying gasps of the system that we’ve been living under for so, so long. And the other side is, uh, well, this is the perfect time for a true authoritarian crackdown to come.
Megan Figueroa: Especially with what’s his face in office. [Laughter]
Carrie Gillon: Right. Especially with what’s his face. The only thing that makes me think that might not happen is he seems to be flailing around quite a bit.
Megan Figueroa: That also seems to be a death gasp over there. I’m being hopeful. I have to be. But yeah.
Carrie Gillon: Yeah.
Megan Figueroa: It’s just a really big time for helping out others in ways that we can – physically can, financially can – and really listening as non-black people and not trying to fucking co-op things and re-message “defund the police” and “abolition” and all of that.
Carrie Gillon: Anyway, today’s interview.
Megan Figueroa: This was before George Floyd was murdered, we did this interview.
Carrie Gillon: We recorded it a couple months ago, I think, now. It was during the pandemic, but definitely pre-George Floyd being murdered.
Megan Figueroa: I think that we both think that it would’ve taken a more somber tone if we had done the interview more recently.
Carrie Gillon: I sort of feel like some of the suggestions that come up are as if we know for sure the police are still gonna exist, like we hadn’t even contemplated – I mean, maybe we had personally – but in this conversation we hadn’t really contemplated cops not even existing as a force.
Megan Figueroa: But it’s worthwhile. I came into the conversation two months ago or whatever fully on board with abolition and this would be a path that we should go down, but I didn’t think there would be a sea change like this. I thought that this was the only way is that we would expose more people to some of the smaller – I hate to say, “smaller” – but some of the component parts of the system that they could see what was happening and then it would help in a little way, but a sea change has happened.
Carrie Gillon: Well, we don’t know that yet.
Megan Figueroa: Hopefully.
Carrie Gillon: A sea change has happened in terms of attitudes. The police force in most places still very much exists. For example, I think it’s Camden City or something in New Jersey, they got rid of their police force, but then they re-constituted it. We don’t know what’s gonna happen in Minneapolis, but my strong suspicion is they’re just gonna rebuild it in a slightly different way. Abolition still seems very far off. This interview assumes that the cops are very much still gonna exist and so we’re chipping away at the edges of what we can do as linguists.
Megan Figueroa: Absolutely. And knowing that police interviews, which is what we talk about, that this is part of the bigger system actually working as it should. It’s not saying this is a problem with the system. Like we’ve talked about, it was built on white supremacy. These are how the system works and how it can harm people.
Carrie Gillon: There’s some ways that we can make it at least somewhat less harmful sort of.
Megan Figueroa: We hope you’ll remember that when you’re listening to it, but it is good information that not everyone will know.
Carrie Gillon: Our guest is Dr. Marianne Mason who is an assistant professor in translation and interpretation at James Madison University. She’s interested in language and the law, or forensic linguistics, translation, interpreting studies, discourse/conversational analysis, pragmatics, applied linguistics, and technology-enhanced learning. She’s also the co-editor of the new book “The Discourse of Police Interviews,” which is why we have her on today.
Thank you for coming.
Megan Figueroa: Thank you.
Marianne Mason: Thank you. I really appreciate the invitation to be able to talk about the book with you guys. This is great. Thank you so much.
Megan Figueroa: It’s a very important topic.
Carrie Gillon: Yes. We’ve actually wanted to have someone on to talk about this topic in the past. We’re really happy that we managed to find someone who was willing to talk about it. Thank you. Why did you want to edit this book in particular?
Marianne Mason: It goes back a long time ago to graduate school, where I became interested in forensic linguistics. Since then, I’ve examined data ranging from covertly-taped conversations or wire taps of drug cartel members like the Cali cartel – that was actually my dissertation, and then I saw them on the Narcos series on Netflix, so that was kinda fun – then the bilingual courtroom in federal and state courts and, most recently, police-layperson exchanges in the US.
One of the most interesting cases I have worked on as an expert witness, providing an expert opinion to the court, which started this journey of the discourse of police interviews, involved a criminal case that was under appeal in which the unequivocalness of a suspect’s invocation for counsel during police interviews was questioned. Then, you may ask – and I asked myself – why is the suspect’s invocation for counsel qualified as equivocal or unequivocal? Why is this issue even raised in police interviews?
To find the answers, I had to look at the linguistics, see, okay, why is this an issue linguistically at a discourse analysis level. Then, I also had to look at the bigger picture because then I started seeing, oh, there’s the legal aspects, the socio-cultural aspects, the institutional factors that all shape these types of exchanges – police-layperson exchanges – and it’s very complex. It has a lot of different layers to it but very interesting. I like it. [Laughs]
Carrie Gillon: Yeah. Definitely very interesting. Actually, I just realized, we should actually ask you to explain what forensic linguistics is.
Marianne Mason: Forensic linguistics is a branch or a field of applied linguistics. It basically examines issues that pertain to language and the law. It could be applying discourse analysis research, for example, to police interviews, to police statements. You use the theory of linguistics and apply it to different areas. They could be discursive, textual, or oral. It could be in the field of interpreting, for example. It could be also – some people do work with phonetics. They call it “forensic phonetics” or “phonology.” There’s also author IDing or identification of authors. They do corpus analysis. There’s a lot of different areas that can be studied. You can study the law itself – contracts. There’s an array of data, if you will, that you can apply linguistic theory to. That would be the work of a forensic linguist or a language and the law person.
Megan Figueroa: Within the field of forensic linguistics, why is it important to study police interviews specifically?
Marianne Mason: I started thinking about that, to think about how to contextualize that and to make it something for everybody to see not just us who work in this field all the time. Why would this be important to everybody? I started thinking first on the exchange and why it was important. It’s an institutional exchange. It’s what we would call an “asymmetrical discourse.” It’s one person has power to direct the interview, or that talk, and then has also the knowledge. That’s why we always talk about police interviews also as “police-layperson exchanges” because there’s an asymmetry not only of power but also of knowledge because the police has information that the layperson doesn’t have. Even if they’re a hardened criminal, they still don’t know all the information that the police has. There’s that disparity.
Then also there’re the issues of the social perceptions of crime and the law and suspects – even of suspects themselves – and it makes, to me, understanding this type of discourse really imperative. The other thing that I was thinking about is also that a lot of people do not understand the process itself. They don’t know the techniques used. They don’t know the law – in other words, what happens when you talk to police or are taken to the station and are in custody, or you’re read your rights and you invoke counsel.
So, if what you know is what you see on TV, for example – popular cultural, Law and Order-type shows – everything seems fairly benign, right? I go to the police station, my rights are read, and they think, “Oh, that’s it,” and then everything’s fine. My lawyer arrives and everything’s perfect.
But there’re many gaps to this popular knowledge, that there’re exceptions to Miranda, that if you’re not under arrest, your rights don’t have to be read and everything you say can still be used against you in a court, that the moment you want to remain silent or invoke counsel the interrogation may not stop, even if you invoke it, that you may not get a phone call for a while. You may be booked and, in some states, depending on the states, it could be 24 hours or 72 hours, depending on the jurisdiction, and you may not get a phone call because the police doesn’t have to call for you, and that any statement that you give is not necessarily gonna be taken verbatim, that that’s not true, unlike what you see on Judge Judy – “Isn’t this what you said in your statement?” Well, no, that’s not verbatim.
To me, this is in the public interest, just to kind summarize. It just has so many layers that is in the public interest because any of us could be a suspect. Any of us could be under arrest.
Carrie Gillon: Absolutely. You actually wrote a chapter in this co-authored volume and it’s called “The Guilt-Presumptive Nature of Custodial Interrogations in the United States: The Use of Confrontation, Appeals to Self-Interest, and Sympathy/Minimization in the Reid Technique.” There’s a lot in there, but let’s just start with the Reid Technique. What is that?
Marianne Mason: Okay. Well, to give you a little background – and I’m gonna go a little bit back to the 20s and 30s because I think it’s interesting, so people understand how police interviews evolved, if you will. In the US and many other countries, police interrogations were often highly coercive and involved physical coercion so, mainly, what I’m talking about is a confession would be beaten out of you. It could. But these methods, I mean, rightly so, right, have been condemned. They resulted in false confessions. They were obtained often through physical force, so they had no legal standing. In the US, confessions must be voluntary to have legal effect.
Now, comes this police officer, John E. Reid. He was a police officer in the 1950s. He developed what he called a “psychology-based interviewing method.” In other words, it wasn’t that third degree that involved the physical coercion. He thought, “Let’s do something more sophisticated” that had this psychology-based interview. That became the popular technique that is used widely by police in the US to train police officers. It’s called the Reid Technique.
It has a couple of phases. Just to say a little bit, not to go into all of them, but it has a fact analysis stage, which is basically the evidence. Then, the one that’s really important is the behavior analysis interview because that’s the one that says depending on the suspect’s body language – that’s the psychology aspect. You can tell if the person’s lying or they’re trying to conceal information, that kinda thing.
Then, they had these nine steps of interrogation. Not all of them had to happen in interrogation, and some get kinda – held it together – but some of them would be positive confrontation where the person’s confronted with some supposed facts, and shifting blame, minimizing the suspect’s denials because that’s not good in the Reid Technique, give options, you know, “Oh, you did this because maybe you weren’t in your right mind. You were angry” – that kinda thing. Then, also documenting – trying to document the confession – if you get one, or the admission. But in the US, most police interrogations – and abroad many places – they’re not video recorded, which is something that forensics linguists who do this type of research want. We want this to be part of the reform that all police interviews need to be video recorded.
Megan Figueroa: Absolutely.
Marianne Mason: They definitely do.
Megan Figueroa: Well, I’m hearing – so you talked about, like in the 20s and 30s and before the Reid Technique, there was this physical coercion. When you described the Reid Technique to me, I’m just hearing emotional coercion.
Marianne Mason: Yeah.
Megan Figueroa: Is that accurate? [Laughs] An accurate description?
Marianne Mason: It is accurate. [Laughs] It is definitely accurate because it’s a way to get you to give a confession. All of the techniques, they’re gonna cause stress because coercion is stressful and being told multiple times – every time you deny it being told “Stop lying! Stop lying! Tell us the truth!” that is coercive. As a suspect, you don’t know the charges. You don’t know all of the information, and you’re being told a variety of things and, yes, it is highly stressful. You’re also – let’s say you’re at a police station and maybe you are in handcuffs, or you’re just there but you can’t leave. You’re in custody. That is extremely stressful as well because most of us have never experienced that in our lives. You just wanna go home. Most people want to go home. They don’t wanna be arrested. They don’t wanna go to jail. They wanna avoid it at all costs. That’s normal.
It is definitely very emotional. Listening to police interrogations is difficult, actually, at times. It is very emotional, yes.
Carrie Gillon: Yeah. I would definitely have a hard time with that, for sure. I met someone – I don’t think he lives here anymore but he did live in Phoenix. He went to this police training for the Reid Technique. I was shocked because, first of all, he’s not in the police. He’s just some random person who just happened to be able to go get – anyway. It’s just shocking to me, knowing everything that I know about this, that it was still being taught as an actual technique.
Marianne Mason: Oh, yes. It is widely used in the United States. It’s a big business too. It’s done very well. Police officers are told that this is the best technique, that this is the technique that gets results. We also have to understand that is an institutional thing. I sometimes wanna make that difference between the police and also the institution because the police officers are being trained this way. They’re being told that this is the best way to go. I have talked to many police officers that later became professors, like of forensic evidence and other things, and they have told me, “You know, we used to do this. We were told that this is the best way. But some of us – we didn’t like it. We were uncomfortable. We thought that there had to be something better.”
I always like to point that out because it’s not just about, oh, the police are always doing these things and they wanna coerce – it’s not that simple. There’re many police that may not be in agreement with that, but it is what they are trying to do and what they really are told is the best way. There’re other countries that are doing things that are much better, including Canada which, actually, they used to use the Reid Technique. They stopped. They said no more. We’re not gonna do Reid. We’re gonna use something similar to PEACE, which is used in the UK and in many parts of Europe.
Carrie Gillon: Briefly describe PEACE for us, would you?
Marianne Mason: Okay. Well, PEACE stands for “Planning and Preparation” – I actually wrote them down, the little acronym, so I can tell you what it is, which is prior – we planned prior to the interview. Then, “Explain and Engage” – that is actually to establish rapport, to ease people, to make them feel more comfortable. Then, “Account,” which is part of the interviewing, “Closure and Evaluation” – that’s the two last parts. That can be to summarize and record the interview.
What happened is that PEACE came about – similarly to what happens in the US, but we haven’t had the reform – is that they wanted to move away from coercion and implement something that they call “best police interviewing practices.” They minimized the false confessions and the coercion. This started in the mid-80s in the UK if my memory serves me right. It came as a desire to change the confrontational tactics that we see in Reid and then having a more information gathering process, which can happen in an interview but, really, cannot happen in an interrogation.
That was really the main purpose of PEACE. It was a way of changing how things were done. They also talk about the importance of video recording, which is still not done across the board, but it is part of it to change in every aspect. There’s a lot of things that are going on in Australia and in the UK that we are just lagging behind in the US. When I go to conferences or talk to colleagues, they’re like, “When are you gonna get your act together in the US?” And I’m like, “I don’t know.” It would be nice, but I don’t know. [Laughs]
Megan Figueroa: I’m thinking about the Reid Technique versus something like PEACE. With Reid it feels – okay. We have this very confrontational method. It doesn’t feel like we’re trying to get to justice. It’s more like we’re trying to get to punishment and consequences. Whereas, with PEACE, it seems like a step toward harm reduction and all of these things that a lot of prison reformists are asking for. It just seems like Reid is standing in the way of any meaningful change when it comes to this area of the law.
Marianne Mason: Yes. The truth is that what happened is that in PEACE, even though PEACE is still not false confession proof and they’re still working on – because it’s difficult. With police interviews there’s always gonna be issues. We have vulnerable populations. There’s a lot of different aspects to it. But what they want is to obtain useful – investigatively useful – information. That’s why they interview. They want a free narrative. They wanna establish rapport. In many countries, lying is unethical and it cannot be done in a police interview. Whereas, in the US, the law – and that’s something that I wanted to talk a little bit about.
Part of what’s going on with Reid is facilitated by the law. In some places, you cannot lie to suspects. You can lie to an extent in the US. There’s that issue of ethics that, you know, and then the issue of invocation is one of the – that was one of the things that really opened my eyes about why we still have methods like Reid and that that definitely has to change as well – the law.
Megan Figueroa: What is the difference between someone saying, “Can I get a lawyer?” versus “Get me a lawyer”?
Marianne Mason: “Can I get a lawyer?” is a request that – it’s formulated indirectly. In the English language, we formulate requests often indirectly. The English language has an aversion to directness in a way. This has social and cultural underpinnings. It’s just how the language works. But a request can be formulated indirectly but have what we call a conventional, direct, meaning without any ambiguities.
Let me give you another example. When you tell someone, “Can you pass the salt?” unless you’re physically unable to do so, the only meaning it can have is a request to pass me the salt – give it to me – right? Saying that an utterance that’s formulated indirectly always has or potentially has that ambiguous or dual meaning is not correct from a linguistic standpoint. On the other side of this, we’ve got “Get me a lawyer,” and that is a request that’s formulated directly. In other words, the meaning and how it’s formulated, form and function, it would be the same.
But, especially in asymmetrical contexts and with people that you don’t know and what you may be facing charges, definitely to think that a suspect is gonna tell a police officer in that setting “Get me a lawyer” is not something that we can realistically say most people are going to do. Some might.
Megan Figueroa: I’m a little bit uncomfortable hearing it because I’m like, I was socialized as a woman. I feel like I have these requests that are very indirect that I was socialized with where “Get me a lawyer” sounds aggressive to me. I wouldn’t want to be aggressive – or maybe I would. I don’t know how I would react in this situation. You would try not to be, right?
Carrie Gillon: No, you would not. You would not want to be –
Megan Figueroa: Yeah.
Carrie Gillon: Because it’s a person in authority. They have a gun. I guarantee that you would not wanna be aggressive.
Marianne Mason: In a setting like this, yes. Most of us wouldn’t because we’ve been socialized not to be direct when you’re making requests to begin with. Then, in a setting like this, absolutely. It could be face threatening. It could be perceived as impolite. You might also be trying to gauge – you may be indirect because you’re trying to gauge to see, well, what do they have? Is it better for me to be polite? Is it better for me to be direct or to talk or not? That part happens in any conversation. Yeah. It’s true. All these factors come into play.
Carrie Gillon: This also reminds me of that horrible case a couple years ago, I think it was, where someone asked for a lawyer, “dawg,” and they decided it meant a dog that was a lawyer somehow.
Marianne Mason: Yes. All these games. The law is where all of this started, which is a thing – because when I got the case, the first time I encountered this, I was like, “Is this not a linguistic issue?” I was talking to the lawyer and I’m like, “Is this really an issue in the courts? Is this serious?” because I couldn’t believe it. As a linguist, I didn’t understand what the issue was.
Megan Figueroa: Were they using this as a way to say, “X person didn’t really ask for a lawyer, so we didn’t get them one”?
Marianne Mason: Actually, what happens is that that’s what happened in practice. They invoked and then there’s a game that’s played during the police interview. I’ll talk a little bit about the law so you can see how that can happen. Then, what happens is that the person ends up confessing. When I worked with the attorney – and it’s usually how it happens – is during the appeals phase. They appealed and what they wanted to do was to throw the confession out but to throw it out they had to say that it was obtained legally, that the person actually had invoked counsel, and people have the right to invoke counsel. It’s on a constitutional basis.
What happened is that they hired me to – they said, “Could you work on the case and write a report, give an expert opinion of why this person invoked counsel unequivocally?” because the other side, and how it was ruled, said that he had done so equivocally. Hence, the police interrogation did not have to stop, and his confession can be entered into evidence, and that’s that.
This mess, all of it started after Miranda. Basically, the Miranda warning, it informs suspects of their right to silence and counsel. That’s your Sixth Amendment rights. You have to be informed of these rights. There are some exceptions, but just to keep going with this, the suspect then may invoke their rights or not, or they may wave them. Usually there’s a form that goes with that that you’re supposed to sign that you have waved them. There’re a lot of issues with understanding Miranda but that’s another issue later on.
This is the most pivotal point in a police interrogation because invoking that right to silence or counsel may interfere with Reid’s main goal, which is to get suspects to talk with police. So, here is where the law and Reid work together. I mean, even if it wasn’t meant to work together, it’s just how it came about.
Megan Figueroa: Work together against the suspect and for the police.
Marianne Mason: Exactly. Even if that wasn’t the intent that’s how it just ends up being. In Miranda v. Arizona, which is the ruling – that was from 1966, the supreme court ruling, just to give you that little bit of background – if the suspect indicated in any manner and at any stage that they wanted to consult an attorney, the police questioning had to end. It had to cease. But the ruling didn’t say how the invocation had to be formulated to take effect.
There were some other legal rulings after that tried to define it, but none of them really did until the case that really changed a lot – everything – which was Davis v. United States. That was in 1994. The supreme court ruling basically said, and I’m going to a little bit cite this, is it narrowed the scope in which a suspect can invoke counsel. The ruling states that invocations for counsel must be performed in a manner that a reasonable police officer deems unequivocal before they’re given any legal effect. Police officers were suggested to ask clarification if unclear, but it’s not part of the main ruling, and it doesn’t have to be observed. All the legal precedence after Davis shows that invocations that are formulated then indirectly like “I think I need an attorney” or “Can I talk to an attorney” were often considered equivocal.
So, Davis created a dilemma that when you see it in light of Reid, those two things are not working together because Davis is saying, well, you know, let’s not interfere. Let’s not put too many roadblocks for the police to interview suspects so they’re able to do so. Then, they said the invocation has to be clear. It cannot be ambiguous. But then if you have Reid, you’re trained to “We wanna get this confession,” then those two things are not gonna work together because then, if I had this loophole, if you will, I’m gonna say, “Well, this person said ‘Can I get a lawyer?’ and I thought he was asking, ‘Can you get me one?’ or ‘Do I have the ability to get one?’ rather than invoking one.”
If that happens, then the person can – you know, it won’t stop and then they might confess, which is the goal of Reid to get a confession. So, those things did not work together.
Megan Figueroa: Going back to what you said earlier, confessions in the US must be voluntary. This is what they’re trying to get at. This is their end goal. I’m frustrated because the whole “reasonable police officer” – they leave so much room for wiggle room and loopholes there. That’s what you’re seeing here with this case that you looked at.
Marianne Mason: Absolutely. There’ve been legal scholars, like Janet Ainsworth and other people, who have written about this. These are professors of law who have looked at the unequivocalness, unequivocal argument, and they found – and I’m finding in some research that I’m doing – I received an ACLS fellowship and I’m looking at legal rulings, federal court rulings. I’m looking at hundreds of them to see what they say based on invocations for counsel, what the rulings are and the arguments that the judges give. That is most definitely the case. This issue of ambiguity is raised and then the judges may take the Davis ruling and say, well, you know, it’s reasonable because the person didn’t formulate the invocation directly.
Carrie Gillon: Is anyone actually listening to linguists about this?
Marianne Mason: [Laughs] You know, we would really want more of that and that’s why it’s great, this opportunity to talk to you on the podcast. I think there’s some issues. I think in Europe, definitely, from what I see with my colleagues, there’s a lot of work – coordination. Well, I’m not sure you’d say “coordination,” but people just work together in a more interdisciplinary way. You see criminologists, police departments, linguists, forensic linguists, of course, working all – you know, people that do research in this field – a lot of them work together with other people that are in the law, that are in policing, to try to have better practices and change things when needed.
That doesn’t happen so much here. What I’ve seen a lot – and if you look at the Innocence Project, they do great work. I think it’s amazing, so there’s no criticism on that. But there’s a lot of – the science. Because I still think that there’s this notion that linguistics, it cannot be something that – it’s not an opinion. It can be factual as well – just as good as DNA in some ways. At least with invocations and things like that we can unequivocally give an option.
Unfortunately, I don’t know if it’s just how things are, just how they have evolved, that there tends to be more of a preference for things that are more science-based. The forensics linguists, we’re just not as – we want to be, and we have really good forensic linguists in the US and in Europe, of course, but it’s still a challenge. We do work with a lot of attorneys, so that’s where I think we make a lot of our mark, but I think some of us want change. I think a lot would like some reforms. That’s the hardest – what I felt personally – I think it’s the hardest part to get involved in that conversation.
Carrie Gillon: Yeah. I think with the Innocence Project, the reason why they focus so much on DNA is because they want to prove actual innocence, which is very difficult. Just undoing a confession by way of saying, “Hey, this person actually invoked a lawyer,” is not really in their fieldhouse.
Marianne Mason: No, absolutely. And they’re doing amazing work. I mean, I think about all the people – but, you know, when you look at the Central Park Five case, which of course the DNA, the innocence – that was pivotal. But then when you look at that confession, you realize it all started there. It all started with that confession. That’s where we could be and play that role. I would like more of that. I would like more of that in the US that we do more of that interdisciplinary – I think that’s what I’m trying to get at, that we can work more together, everybody, the law, the people that do the science, all these different organizations that are doing amazing work, that we could all be part of it and give our knowledge. I think that would be really good because we need the reform.
Megan Figueroa: You brought up the Central Park Five. That just reminds me how younger people can be so vulnerable to this type of coercion. I mean, I’m in my 30s and I would be very vulnerable to this type of coercion, but I’m thinking of 18/19-year-olds. This is just –
Carrie Gillon: Well, they were younger than that.
Megan Figueroa: Were they under 18?
Marianne Mason: Some were minors, yes.
Carrie Gillon: Most of them were minors.
Marianne Mason: Yes. Yes, they were. Well, they would be considered part of the vulnerable populations, which would be children, victims of sexual assault, and non-native speakers of English as well. Because it’s any group that could be at a disadvantage in a police interview for a variety of reasons. It could be cognitive. It could be cultural, linguistic, because if they don’t speak the language.
That is something that, also, it’s very important. There’s a group, actually – the communication of rights group – they put forth these guidelines for communicating rights to non-native speakers. A lot of the researchers in that group also discuss PEACE and talk about vulnerable populations. There’s a lot of work being done in that area, especially from what I can tell – I don’t wanna miss anybody in the US – but I’ve seen a lot of the work done in the UK with vulnerable populations and forensic linguistics.
They talk about what things need to be done to ensure that people understand their Miranda rights when they’re not native speakers because there’re a variety of factors. And because someone can speak a language or seem like they understand, that does not mean that they have sufficient comprehension. Then, the other issue is that police are not trained in assessing language proficiency and they may be unaware of communication difficulties.
Megan Figueroa: I’m thinking about all these loopholes again, too, and just thinking about how the Reid technique works. Would it not be an advantage to the police officers to feign ignorance when it comes – later – in saying “We didn’t know that X person didn’t understand what we were saying”?
Marianne Mason: Yeah. I think it goes to Reid. I go back to that because – and it goes to other factors. I’m not – this is more from what I’ve been able to talk with people who teach criminology, former police officers. But there seems – and I’m gonna say this because this is not my area of expertise – but from what I’ve heard is that in US policing there is this – you know, fast, results, expediency. That’s part of Reid as well.
A lot of police officers have a lot of pressures of clearing their desk, if you will. You’ve got this case – partly because they gathered evidence for the DAs. And DAs, you know, they’re elected officials. They wanna show – especially in some places – that, you know, we’re tough on crime, so we want to get results fast. I think that definitely played a big role in the Central Park Five because it was like –
I remember I was in New York. It was a horrible thing that happened. The victim – it was horrific. Everybody was outraged, and I understand. Everybody felt unsafe not being able to go out and jog and what have you – and what happened to her, to the victim. They wanted results. They wanted to get the people that did this. Then, there’s all that pressure and then the police with Reid and all these other things, then it’s like, we want to get this confession. Yes, I think that’s the driving force of the coercion is it’s part of Reid. It’s part of how the interrogation process is.
Yes, I think there’s a lot of factors that go into it, absolutely. They’re not good for the suspect and, in this case, the Central Park Five, yes, it was a travesty, definitely.
Carrie Gillon: It’s also not good for the victim because it was the wrong – there was one person, one man, who raped her, and that was not the person who was incarcerated for the crime. How that does that help anybody?
Marianne Mason: It doesn’t. It absolutely doesn’t. This is the thing – and, again, criminologists might talk a little bit more about this, and it’s what led to reform in other places, is that we want real information. We want accurate information. But that takes more time, probably, than just asking someone, “You did it. You did it. You did it” until the person says, “I did it,” regardless if it’s true or if they gave all the correct information. Coercion is one of the most popular techniques used in Reid. Basically, it’s confronting the suspect.
I’m gonna kinda rephrase it is that you tell them, “I have this evidence on you. You have to tell us what you did.” You’re given time-limited offer – like, “You have to tell us now. We won’t be able to help you later.” That kinda thing is what I’ve found in the cases that I worked on, and also in general looking at the research, that it’s very common. Some of them can be very coercive because it’s that pressure that they put on the person and then the person denies and they’re back to, “Don’t deny,” you know, “We’re not gonna accept your denial.”
The only technique that, actually, I saw that has some effect, but it didn’t – they went quickly back to coercion. I think for expediency. I can’t really be sure about that one. But it was empathy and rapport. That one actually is the only technique that I saw in my research where the suspect actually provided some investigatively useful information. But it was taking longer. The person was very emotional, crying. They were both crying. It just was very difficult. It wasn’t given enough time. They reverted back to confrontation with evidence and time – you know. It’s interesting. It’s interesting that things that might work but might take a little bit more time – again, that’s the issue of we need to change things.
Because I think the police could have things that would be much better for them to get the information that they need without having to get any false confessions, having to use coercion, and be more effective. Empathy is very important. Empathy is extremely important. In Europe, they talk about it – one of the chapters in the book – who’s a psycholinguist and he’s a specialist – in the book – it was co-authored – and he was one of the principle people that led to the PEACE reform, Ray Bull. He talks about the role of empathy. One of the things they say is it has to be ethical. You cannot lie. It has to be truthful.
It works! They find it to be very useful.
Megan Figueroa: I feel like not just in police interviews but empathy on a larger scale in our criminal justice system [laughter] is desperately needed. It’s no surprise to me that – what is it, the carrot versus the stick? – of course the carrot works better. Well, that’s a bad example because that’s trapping someone but, you know. What is it? Honey versus – I don’t know.
Marianne Mason: Honey. [Laughter]
Megan Figueroa: Yes, honey.
Carrie Gillon: Honey versus vinegar.
Megan Figueroa: Honey versus vinegar – there we go!
Marianne Mason: I know. It’s true. But there’re two things. This is, again, conversations that I’ve had after giving presentations with people in the law and criminologists is that they told me, you know, the law has to change because the law gives that loophole, if you will, that ability. Then, there’s also cultural things that have to change. We have to change this expediency and tough on crime that you gotta get this done now. It doesn’t matter if you get it right; you have to get it done.
That’s part of our legal law enforcement structure that it’s just – it’s institutional. I always say it goes beyond the police. It’s the institution –the legal institution, the law enforcement institutions. It’s bigger. All that culture, if you will, has to change. Our social perceptions, I think, of crime and of suspects have to change as well. But that’s gonna take a lot of change. I’m hopeful, but it’s difficult. It’s not going to be easy.
Carrie Gillon: No, it’s not. I get why people get so scared and they want to find the person quickly because if it’s someone – especially if they’ve done something really violent and really horrific, you’re scared and you don’t want them roaming around hurting other people. The problem is, if you get the wrong person, you haven’t solved the problem at all. You’ve just allowed them to still hurt people. For those people who are really fearful, I encourage them to think about it for a second and think – it’s better to get the right person, even if it takes longer.
Marianne Mason: Absolutely. It’s true. Because we don’t want, then, another injustice to be committed that someone who did not commit a crime then gets charged with a crime or goes to jail for something that they didn’t do or that they weren’t as involved or all the other classical factors. I agree, but then that’s gonna have to – yeah. It takes that social change and how we see things.
It’s true. Police will tell you, you know, most of the people are here. And it’s true. They go and they have to deal with people that are criminals and it’s not pleasant and they probably lie. It’s just how it is. If they are guilty, obviously, they don’t – again, no one wants to go to jail. But we have to see the big picture and that takes a lot, I think, a lot of change is going to take of how – and even how the police, you know, how they’re trained to interact. There’s been this movement for community policing. More of that needs to be done as well because it’s important because then it creates more of that empathy and the rapport with others. That needs to happen. I think there are groups of people that want – even in law enforcement – that want this change as well but, you know. [Laughs] It’s not easy.
Carrie Gillon: Yeah. It requires a cultural shift on the part of all of us and I think that’s why it’s so hard.
Marianne Mason: And then the institution. It’s true. And the public. And then the law. A lot of people say, “The law needs to change,” because then the law dictates the rest. There is a lot of truth to that. But then I’m thinking that will take rulings from federal court judges and supreme court judges. I’m looking at that in my study that I’m doing now. I’m looking at the judges and how they rule and appointments and all these things. The supreme court and federal judges are really important. They determine a lot of what happens in even day-to-day – people’s lives. To think you’re exempt from that, you’re not. You may not be in your lifetime. I think that’s really important as well. It doesn’t get enough focus either.
Carrie Gillon: No, it doesn’t. It does on the right quite a bit. They really worry about their supreme court judges, but the left just hasn’t woken up to this issue.
Marianne Mason: It’s important because the rulings, as I said, these are supreme court rulings – Davis and Miranda. They’re very important. They can change the culture, if you will. They can facilitate. Of course, Reid being what it is and the other factors, it was like all these ingredients come together in a perfect way – imperfect but – and then create something that now we’re dealing with still and that we need to reform. It’s a lot. It’s a lot of pieces in the puzzle, I think.
Megan Figueroa: Do you think that there’s anything that our listeners or that Carrie and I can do to help move this shift forward?
Marianne Mason: One of the things that I’m thinking and that I’m gonna start doing but, you know, of course, we have other – we have a pandemic right now, things that everybody’s thinking about – but very recently there’s been very popular shows on confessions. I don’t know if you’ve seen the one on –
Megan Figueroa: The Confession Tapes.
Marianne Mason: Confession Tapes – Netflix. There’re a lot of cases that – I think maybe when we see stories that come on the news, maybe more people getting involved, writing op-eds, or just talking about them, I think just being out there is something that’s gonna be really important, just to remind people that this is an issue and have that be part of the discourse. I think that would be really important, that it’s out there and that we’re paying attention. It’s something that I’m interested in doing now, after the book, I’m gonna be paying a lot more attention of cases that come out, maybe having responses to these things, so that it’s out there so it’s not just academics.
Research is really important but it, of course, is part of our academic life. But sometimes it doesn’t maybe translate as easily to the public or they don’t have as much access because maybe they don’t use it in their day-to-day life. I think we need to find more ways to make things that are accessible for everybody and that are part of the discussion. That’s something too that we need to do maybe a little bit more as researchers and academics is to also have that other part, that we put our work out there as well.
It’s hard because we get trained in a way to do things a certain way and to write a certain way. All of sudden, you’re like, okay, writing an op-ed. That’s a new genre that, if you haven’t been writing on, you have to get used to. It’s not something that we do all the time. I think that’s something that’s needed too.
But I think on the end of the podcast, yes, I think maybe just having that discussion a little bit more, even just putting it out there for everybody, to kinda remind the listeners that this is going on, I think that would help a lot – the discussion.
Megan Figueroa: Well, yeah. If I see something that says, “Reid Technique,” I’m gonna click on it and read and see if anything is happening. Like, “Why is this person talking about the Reid Technique?” I mean, it’s hard to not know once you know, right? Knowledge is the first step.
Carrie Gillon: If you listen to Undisclosed, they talk about it all the time.
Marianne Mason: It’s true. Yeah. A lot of the shows – and any case. There was this case and it was, I remember, this poor girl. I mean, because her father, I think, taught at JMU, or teaches at JMU. It was the case of the Barnard student in New York. She was murdered. It just happened not that long ago – very sad. She was very young, a student, just going to class, going about her life. But I remember there were a lot of issues with – because some of them were minors and then they were being interviewed. I think the NYPD kinda knew that they had to be careful about how they handled the case. That came about after the Central Park Five.
I think there is an understanding, probably in the bigger cities. But then we also have to think about, well, what about smaller communities? Because we don’t know so much about what’s going on there. I think any time this comes to the headlines and it’s out there, I think it’s a great opportunity to revisit the topic, to think about confessions and what is going on.
But I do think they handled that case very differently because of what happened with the Central Park Five. I think there has been some change locally, at least, but we need more. We need it to be consistent.
Megan Figueroa: We need people to get the same treatment everywhere.
Marianne Mason: Exactly. We do.
Megan Figueroa: No matter what they look like or who they are.
Marianne Mason: Exactly. That’s very, very important. I mean, I appreciate greatly the opportunity. I think you’re doing – I looked at other word that you were doing in your podcast, and I think it’s really important to have a place where linguists can also talk. I know you’re doing that work as well.
I think you also know that it’s an area that is relevant to everything. Discourse is in everything. It’s in politics. It’s in everything. Yet, you know, if it’s not something about the economy, they’re not putting it in the news – or finance – even though discourse is everywhere. We are part of, and we should be part of, that discussion – that presence, if you will, to be there. It’s good that you have this because I don’t think it’s as common to have that focus with the podcast, and people that have that background, that we all understand each other. I think that’s very important what you’re doing. We appreciate it.
Megan Figueroa: The work that you’re doing is very, very important. We appreciate you for doing that work. It sounds so hard but so important. Thank you so much for talking to us about this. Going back to empathy, it just helps grow empathy in people to even know that this is happening to other people.
Carrie Gillon: And that it could happen to any of us.
Marianne Mason: Exactly. [Laughs] It can. It’s a scary experience, so you have to think about that and have that empathy, exactly, because it can happen to any of us. Yes, absolutely.
Carrie Gillon: Well, thank you so much. We always leave our listeners with a final message.
Megan Figueroa: Don’t be an asshole.
Carrie Gillon: Don’t be an asshole. [Laughter]
Carrie Gillon: Okay. This month, we would like to thank new patrons Anschel Shaffer-Cohen. I hope that is the right way to say that.
Megan Figueroa: Thank you!
Carrie Gillon: Matthew Gilboy.
Megan Figueroa: Yay!
Carrie Gillon: Jordan Kay.
Megan Figueroa: Yay!
Carrie Gillon: Khia Johnson. Again, I hope that’s the right way to say it. And Melissa Baese-Berk, our former guest!
Megan Figueroa: Wow! Thank you, everyone. I mean, especially during COVID and such uncertain times.
Carrie Gillon: Thank you so much.
Megan Figueroa: It does feel very humbling to have support. Thank you!
Carrie Gillon: We really appreciate it.
Megan Figueroa: We really do.
Carrie Gillon: For anyone else who wants to become a patron, you can join us at patreon.com/vocalfriespod. If you’re interested in our bonus episodes, you can join at the $5.00 a month level.
Megan Figueroa: Thank you.
Carrie Gillon: The Vocal Fries podcast is produced by me, Carrie Gillon, for Halftone Audio, theme music by Nick Granum. You can find us on Tumblr, Twitter, Facebook, and Instagram @vocalfriespod. You can email us at email@example.com and our website is vocalfriespod.com.