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Study confirms people still torture in obedience to authority. I see a parallel re voluntariness of statements, waivers, confessions . . . .

December 29, 2008

This study confirms what defense lawyers already know:  People will do anything when told to do so by a person in a position of authority.  In other words, what this latest study delving into the human psyche indicates is that one must seriously question whether there is such a thing as “voluntariness” (as in Schneckloth v. Bustamonte) within the penalizing realm of citizens’ interactions with the authorities.

Now . . . I know I said I would next finish my analysis of Santos, but this was too much of a brain teaser to put on the back burner.  So keep up with me here–we’re changing gears from 1956(a)(1)  “proceeds” as a term of art to an analysis of the voluntariness of statements to the government.
The NY Times’s* editorial blog reports that:
  • “In 1963, Stanley Milgram, as assistant professor of psychology at Yale, published his infamous experiment on obedience to authority.  Its conclusion was that most ordinary people were willing to administer what they believed to be painful, even dangerous, electric shocks to innocent people if a man in a white lab coat told them to.  [Up to 300 volts.]”
Now, four decades later, another researcher–Professor Jerry Burger of Santa Clara University–conducted a similar experiment to see if humanity has gleaned any enlightenment from the light of history.  The results of his experiment are published in the American Psychologist.  His findings are electrifying, though perhaps not as jolting as Milgram’s–Burger’s protocols required him to stop the experiment when a participant believed he had administered a 150 volt shock because of ethical advances made since 1963.   Thankfully, humanity is ethical in theory.
Surprisingly, 70% of the shocking participants made their shockees endure the quasi-painful trek that began with a 45 volt shock and ended with the 150 volt shock.  The experiment concludes that the shockers amped up the voltage because they were directed to by a man in a white lab coat, not because man is inherently evil.  The basis for the conclusion is that as the shockers heard the shockees feigned expressions of pain, some wanted to stop, but did not because they were directed to continue by the “man behind the curtain.”
If I were a psychologist, I would go a totally different route with this, but I’m not (a psychologist).  Instead, all I can think about are clients questioned in intimidating settings by federal agents, ultimately triggering the resulting motions to suppress, or who “voluntarily” consent to searches of their homes and offices, or those who “voluntarily” consent to their cars being searched on the side of the highway while rubbernecks stare at their reduced scarlet lettered stature as they stand awkwardly on display.  
In theory, the judiciary says that only “voluntary” statements (and the fruit thereof) are admissible against the accused (or “voluntary” consents, effective).  In this sense, “voluntary” is a term of art; it is a question of fact to be determined by the totality of the circumstances.  It considers things like age and experience–a seasoned criminal will not be given the same leeway as one who has no previous arrests/convictions–the defendant’s level of education is considered, whether the defendant was in custody when the statements were made, even whether the police had their guns drawn, the particulars of the locale of the questioning, and whether one believes he or she is free to leave (regardless of whether that belief is accurate–that aspect of the inquiry is subjective).
While the government supposedly has the burden of establishing voluntariness, one might not think so after reading the vast majority of cases finding that consents and statements provided were voluntary.  
As a counterpoint to the voluntariness concept, I think most people believe that if a police officer approaches them on the street, they are not free to go on their way until all the officer’s curiosities have been satisfied.  And yet, the Supreme Court has said that:
  • The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.   [I.e., don’t take off that iPod just because a cop starts questioning you!]  
Florida v. Royer, 460 U.S. 491, 497-98 (1983).  
Yes, folks, that is a quote (except the statement in brackets, which, of course, does not constitute legal advice but is merely the author’s personal application of the Court’s statement).
I also cannot help but think of my own experiences with “men in white coats.”  (Although I should note that, as a witness, my statements were not subjected to a voluntariness analysis; they do, however, provide a “true story” illustration of how unrealistic the voluntariness analysis is.)  
At my second of three debriefings, I was questioned by an Assistant United States Attorney (AUSA) and two F.B.I. agents until after 11:00 p.m.  The debriefing began approximately one hour after I spent the day flying from Indianapolis to Miami.  I had not eaten, and so made several requests for some form of dinner or food since the debriefing was going so late into the night.  My requests were met with, maybe, three packages of stale saltines and peanuts that the AUSA would not allow beyond his reach (yes, it was like Survivor in many ways).  
The debriefing did not begin, however, until after the AUSA, Case Agent, and their “driver” (another FBI agent who did nothing more than offer some empathic smiles) made a calculated appearance in my attorney’s hotel lobby, calling his cel phone from the hotel house phone not fifteen minutes after we arrived from the airport (I think they took that move from an old horror movie (“The call is coming from inside the house . . . .”).  
Of course, my attorney did not divulge the details of where he was staying or even what flights he was taking, so we were, as intended, caught by surprise to realize they were the three people we saw upon entering the lobby (I was staying in a different hotel because my flight and hotel arrangements were made by the U.S. Government’s travel agency, i.e., National Travel).  And no, the debriefing was not scheduled to occur in the lobby of the downtown Miami Hilton, nor did it, nor were they there to suggest that it should.
By the time of my third debriefing, I had been harassed enough that my statements likely would have been considered voluntary.  I was now experienced and dulled to the government’s ways of intimidation–FBI agents following me, showing up at my office, interrupting a business lunch I was having with two attorneys–one of them being my boss–in the middle of a large downtown eatery across the street from the courthouse where I worked, whereupon an agent flashed his polished “FBI” badge in a grandiose effort to serve me with a subpoena in the most attention-getting manner possible (rather than serving the subpoena on my attorney, per standard operating procedure)–it was all old hat to me by that time.  Sadly.
We were at the same massive conference table at the Miami U.S. Attorney’s Office, except that there were now 2 AUSAs, 2 FBI agents, 2 DOJ Tax attorneys, and at least one or two other people (I think 2–they tend to come in pairs) who were, I believe, from DOJ.  There were so many of them that they brought in extra chairs so they could scrunch in around their “side” of the table like sardines in a package one size too small.  I never could have told you who they all were–there were just too many.  Opposite that illustrious display, were my local Miami attorney and me (with plenty of room to spread out, which is always nice).  Luckily I did have the comfort of knowing my new attorney was not at all intimidated by their production.    
That’s about 8 vs. 2 if you’re counting.  At this point, I was not intimidated by a few extra sardines occupying some extra chairs.  For all I knew, most of them were nothing more than secretaries.  Ultimately, I was compelled to strongly suggest how the questioning would proceed after being asked to recount every event from the beginning (it was my third debriefing!)–my attorney immediately avoided eye contact with me by making illustrations on his notepad, undoubtedly surprised by the bravado of a young, apparently timid girl who didn’t look anywhere near 25.  Consequently, my statements would have been considered voluntary for many reasons.   
Yet, for someone else who had actually found the government’s conduct intimidating (as I originally did) instead of annoying and inappropriate, who did not negotiate adversarial relationships with the government for a living (I sued the F.B.I. (among other government agencies) seeking documents for a client/attorney (and won) during that time), would his statements have been voluntary?
What do the Milgram and Burger studies tell us about voluntariness?  Is there really such a thing?  If people will commit torture because directed to by a man in a white labcoat–without any threat to their own liberty–what will they do (and say) because of a man (or men) with a badge, perhaps an intimidating setting, and a threat to their liberty?  It makes one wonder if, in the majority of cases, there really is such a thing as “voluntariness.”  
*Strunk & White, Elements of Style
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