“Everyone has a breaking point. Anyone can be convinced to confess, to lie. And it’s not only that they can but they do it at great risk to their future. It’s deeply fascinating and deeply troubling. The idea that someone would give a false confession is so counterintuitive, it fascinates me intellectually,” according to Richard A. Leo, a Professor of Law and Psychology at University of San Francisco’s School of Law.
Leo is an expert on false confessions, police interrogation practices, psychological coercion, and the wrongful conviction of the innocent. He has written at least six books on these subjects and hundreds of articles and research papers. And he says police-induced false confessions are a leading cause of wrongful conviction.
In a 2015 article in The Conversation, Brandon L. Garrett, then a University of Virginia law professor, wrote that “Death penalty cases often heavily revolve around confession evidence. One-half of the 20 cases of individuals exonerated by DNA testing from death row in the US included false confessions. Each of those confessions supposedly included specific details of the crime that only the murderer could have known.”
So it was welcome news that Juan E. Méndez, former UN Special Rapporteur on Torture, presented the Principles on Effective Interviewing for Investigations and Information Gathering to the international community in June.
“These Principles have been drafted by experts in the fields of interviewing, law enforcement, criminal investigations, national security, military, intelligence, psychology, criminology, and human rights from around the world,” Méndez says.
For Méndez, Professor of Human Rights Law in Residence at Washington College of Law, the issue is personal as well as professional. As a young human rights lawyer in Argentina in the 1970s, Méndez was arrested by the Argentinean military dictatorship because he represented political prisoners. He was imprisoned and subjected to torture for more than a year. He knows first-hand the brutality of torture and coerced confessions and the urgency of a universal protocol to prohibit these practices.
The need for the Principles became clear to Méndez in 2016, when he presented his final report to the UN General Assembly urging the international community to create an official protocol on how to respect human rights and prevent torture. “I observed that the most frequent setting where torture and coercion take place is in the course of the interrogation of suspects and for the purpose of obtaining confessions or declarations against others,” he told the Assembly.
The response was immediate and enthusiastic. In January 2017, approximately 100 colleagues met to decide how to proceed, and in 2018, created a steering committee, drafting committee, and advisory council and officially launched the project. Throughout that year, the steering committee held meetings in Brazil, Tunisia, and Thailand, and continued to work through the months that followed, meeting virtually during the pandemic, researching, interviewing, and writing. The 15 members of the steering committee “did the heavy lifting,” Méndez says, guiding the process, and grounding the work on scientific research, documented good practices, established international law, and professional ethics. The result is the Principles on Effective Interviewing for Investigations and Information Gathering, with the working title, the Méndez Principles, in honor of the man who had inspired the project five years earlier. It was a unanimous decision by the members, with the sole objector being Méndez, who said he was “embarrassed, but proud,” and acknowledged “It helps to have a shorter title since the official one is so unwieldy.”
The six Méndez Principles “are the distillation of experiences in a wide range of countries where law enforcement and security forces use effective interviewing which leads to better results in obtaining accurate and reliable information. The information gathered in this way also preserves the integrity and professionalism of interviewers and enhances civic trust in their institutions,” Méndez wrote in the final report.
“Grounded in science, law, and ethics, the Principles propose a concrete alternative to interrogation methods that rely on coercion to extract confessions,” the Association for the Prevention of Torture states on its website. Mark Thomson, the former Secretary-General of the APT, co-chaired the initiative with Méndez.
Méndez says the response to the report has been overwhelmingly positive. UN High Commissioner for Human Rights Michelle Bachelet “is very much in support,” UN Ambassador of Norway Mona Juul spoke at the June launch and U.S. State Dept. Senior Adviser Harold Kohl has spoken highly of the Principles. The influential European Committee for the Prevention of Torture, which visits prisons in 47 countries around the world, and criticizes or promotes legislation, has endorsed the Principles and urged all 47 European countries to adopt them.
The next step for Méndez is to get a body of the UN or the Organization of American States to adopt a resolution supporting the Principles, enabling the judiciary to regulate police departments by citing the Principles, or using them as a basis for new legislation. As for countries that have strict prohibitions against torture, or are officially opposed to torture, but don’t have guidelines on how to conduct lawful and ethical interrogations, or have human rights laws that are similarly flawed in that they prohibit torture but don’t state what to use instead, the Principles would be a guide.
Méndez expects there will be resistance from authoritarian governments but notes that there are members on the steering committee who “carry a lot of credibility with their colleagues around the world,” including professional investigators from Europe and the United States, police academies in Brazil, and a former chief of police from Nigeria. He is hopeful but realistic. While there will be dictatorial governments who won’t follow the guidelines, or democratic governments that will hypocritically support them with no intention of implementing them, “It is still useful to have a document that fills a gap. It presents a framework of human rights, how to conduct interviews without torturing.”