Prof. dr. Lore Mergaerts (Leuven Institute of Criminology, KU Leuven)
Introduction
Over the last decade, the procedural rights of suspects during the pre-trial investigation – and police questioning in particular – have been increasingly emphasized. In this regard, the increased attention given to the exercise of procedural rights by so-called vulnerable suspects at both European and national levels cannot be neglected. This vulnerability may stem from diverse individual factors (e.g. a mental health condition or age) and situational factors (e.g. the interview style adopted during police questioning or isolation due to being detained) (Dehaghani, 2021, Kassin and Gudjonsson, 2004). As a result, vulnerable suspects may encounter difficulties in exercising their procedural rights and may be at risk of providing inaccurate statements.
To minimize such risks, early identification of suspect vulnerability is crucial to allow for adequate implementation of any special provisions. Given that vulnerability may stem from a diversity of factors and is not always easy to discern, such early identification, however, is complex. Early identification of vulnerability remains a difficult task for police officers, magistrates and defence lawyers, as a result of which it is often missed (Dehaghani, 2019, Douglas and Cuskelly, 2011, Geijsen et al., 2018, Gudjonsson et al., 1993, McKinnon and Grubin, 2010, Young et al., 2013, Mergaerts, 2021).
To overcome this problem, several instruments and screens have been developed over the past couple of years to facilitate the identification of specific psychological characteristics contributing to vulnerability, such as screens for intellectual disability (e.g. the HASI (Hayes, 2002), RAPID (Ali and Galloway, 2016) or SCIL (Nijman et al., 2018)) or tests to assess certain personality traits (e.g. suggestibility (GSS) (Gudjonsson, 1984) or compliance (GCS) (Gudjonsson, 1989)). However, although some of these instruments are intended to be used within the criminal justice system, they are aimed at screening for specific psychological traits and disorders, while the situational, interactive nature of suspect vulnerability is often not considered. In addition, none of these tools are specifically aimed at defence lawyers, who have an important role in compensating for suspect vulnerability too (ECtHR, Salduz v. Turkey (2008) para 54). An exception is Toolkit 10 developed by The Advocate’s Gateway to support the early identification of vulnerability in witnesses and defendants. Its main focus, however, is not on suspects and defendants per se and it particularly focuses on individual characteristics over situational factors.
Against this background, as part of my PhD research, I developed a toolkit to facilitate the early identification of suspect vulnerability, taking into account both individual and situational factors contributing to vulnerability.
Methodology
The toolkit aims to facilitate the identification of suspect vulnerability by defence lawyers during pre-trial proceedings. The toolkit with vulnerability indicators was constructed based on an extensive analysis of the concept of suspect vulnerability, information gathered during 16 in-depth interviews with Flemish defence lawyers, and benefited from the experience of a wide range of existing tools relevant to identifying vulnerability. The toolkit consists of five categories, referring to the different sources of information that can be used to assess suspect vulnerability (i.e., i) the confidential conversation prior to police questioning, ii) police questioning, iii) other investigative acts, iv) the case file and v) information to be obtained from third parties). Each category lists several indicators of vulnerability, addressing both individual factors and situational factors. Within each category, the indicators are arranged based on their impact on suspect vulnerability (Mergaerts, 2022). Next, the toolkit’s practical utility was assessed via an online focus group with seven criminal defence lawyers. Finally, (parts of) the toolkit might also be valuable to other legal professionals, such as the police or judges having to deal with suspect vulnerability. Therefore, lastly, an exploratory experimental case vignette study was conducted to test the validity of a part of the toolkit for use by police officers during police questioning. More specifically, we assessed whether police officers using the toolkit outperform police officers without the toolkit when it comes to identifying both situational and individual factors contributing to suspect vulnerability included in two case vignettes.
Results
The toolkit is considered an added value for current practice and training of defence lawyers, as it appears an easily applicable screening tool enabling lawyers to identify vulnerability early (Mergaerts, 2022). Defence lawyers consider the toolkit valuable for raising awareness of the broad range of factors that may contribute to suspect vulnerability. However, the toolkit is considered most appropriate in the training of defence lawyers instead of real-time usage prior to and during police questioning. Real-time usage might help to systematically check upon indicators of vulnerability, but at the same time it could hamper the natural flow of the conversation or result in an unduly rigid assessment of suspect vulnerability.
Given its considered added value and taking into account its potential limitations, recently the toolkit was successfully implemented as part of a training program for defence lawyers enrolled in the police station duty lawyer scheme of the Flemish Bar Association. The development of the training module was a collaboration between academics and practicing defence lawyers. The training module consists of E-learning (including materials on suspect vulnerability and the toolkit), followed by a face-to-face peer group discussion. The training especially contributes to raising awareness, exchanging best practices and the development of reflective skills, as well as introducing the toolkit and guidance on how to use it in practice.
Results from the exploratory experimental case vignette study testing the indicators of suspect vulnerability during police questioning indicate that the toolkit might actually be of added value for police officers too. This is particularly true for the identification of situational factors. The exploratory results indicate that police officers tend to be significantly better at detecting situational vulnerability using the toolkit compared to police officers assessing vulnerability in a case vignette without the toolkit. The toolkit, however, does not seem to have a significant effect on the identification of individual factors. The particular effect on the identification of situational factors could potentially be explained by the fact that these factors are mostly overlooked in relation to suspect vulnerability, while attention is paid to individual factors in the training programme for police offers.
Conclusion
Legal practice can benefit from the implementation of legal psychological knowledge. This study provides an illustration of how the practical implementation of academic insights can be sparked by ecologically valid research, involving practitioners throughout the research process. Nevertheless, further research is still needed to test the reliability and validity of the developed toolkit to assess whether it actually leads to an enhanced identification of suspect vulnerability by defence lawyers prior to and during police questioning or other stages of police investigation. As the toolkit might be of added value to other practitioners too, it is also worth exploring how it can be adapted and improved with a view to incorporating it within other professional training programmes.
Acknowledgments
I want to thank all the participants in this research, as well as the steering committee of the SUPRALAT training programme for Flemish defence lawyers organized by the Flemish Bar Association. In addition, I want to thank my research interns at Erasmus University Rotterdam for collecting data and carrying out the exploratory experimental study on the psychometric qualities of the toolkit.
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Defending Vulnerability 