Reid Policy on the Use of Deception During an Interrogation

Preface

There is a distinction between a court of law and the court of public opinion. In recent years several states have enacted legislation that prohibits law enforcement investigators from misrepresenting evidence when questioning a juvenile (detailed later in this text). Consequently, a number of media reports have highlighted, and criticized, the fact that courts allow investigators to lie about evidence to a suspect.

In this document we will discuss several court decisions on the use of deception during an interrogation, what social psychologists say about misrepresenting evidence, followed by a discussion of recent state laws that have been enacted which prohibit lying to juveniles during an interrogation and then the policies that we recommend for investigators on the use of deception during an interrogation as predicated on court decisions, together with evolving state and federal statutory law.

The Background – Court Decisions

In order to ensure that an interrogation was properly conducted and that the subsequent confession was accurate and voluntarily obtained, investigators should employ techniques that 1) ensure the subject’s rights were not violated; 2) avoid force, the threat of force, or the threat of inevitable consequences; 3) avoid promises of leniency; and, 4) conduct the interrogation within the guidelines that have been established by the courts.

In 1969 the United States Supreme Court upheld the use of misrepresenting evidence to the subject. The case was Frazier v. Cupp (394 U.S. 731). In that case, the Supreme Court upheld the admissibility of the defendant’s confession, which, in part, was the result of the police falsely telling the subject that his accomplice had confessed. The Court held that the misrepresentations were relevant, but that they did not make an otherwise voluntary confession inadmissible. In reaching this conclusion, the Court judged the materiality of the misrepresentation by viewing the “the totality of circumstances.”

It is important to highlight the Court’s reference to an “otherwise voluntary confession,” the clear implication being that if the subject’s rights were honored; if there were no threats of harm or inevitable consequences; if there were no promises of leniency; and if the investigator followed the guidelines established by the courts, then misrepresenting evidence, in and of itself, will not jeopardize the admissibility of the confession.

This same thought has been reiterated in several cases and studies. In State v. Kolts (205 A.3d 504, 2019) the Supreme Court of Vermont upheld the defendant’s confession that was made in response to the detective’s false claim that there was DNA evidence to prove his guilt. From the Court’s opinion:

The detective's false claim of DNA evidence is not enough to render his confession involuntary without other coercive actions, such as a promise of leniency. But the detectives here made defendant no promises of leniency. And, as courts have reasoned, an interviewer's use of false evidence is less likely to produce an involuntary confession than an interviewer's lie about matters external to the charge. For example, lies threatening a suspect's ability to retain custody of a child render a confession involuntary because they could induce a confession by overcoming a suspect's will. But lies about evidence of the charge are more likely to evoke, if any feelings at all, a suspect's beliefs about his or her own culpability.

In Anderson v. Vannoy, (2019 WL 2077126) the US District Court upheld the lower court’s decision not to suppress the defendant’s incriminating statements:

Regarding certain falsehoods used by the police during questioning, the issue is whether or not such tactics were sufficient to make an otherwise voluntary confession or statement inadmissible. In Lockhart, a detective misled the defendant into believing that the police knew more about the case than they really did by telling him that the victims had identified him…This court found that the detectives’ statements to the defendant were not sufficient inducements “to make an otherwise voluntary confession inadmissible.”

In Commonwealth v. Gallett (481 Mass. 662, 2019) the Supreme Judicial Court of Massachusetts upheld the admissibility of the defendant’s confession:

Gallett argues that the interrogating officers misrepresented evidence that strengthened their case and made false assurances that ultimately induced Gallett into making inculpatory statements. We conclude that the officers did not act impermissibly. We have suppressed a defendant's statements in circumstances where police use trickery or a ruse in obtaining a confession. Those cases generally have additional circumstances -- apart from the ruse itself -- that rendered the confession involuntary. The Court pointed out that these additional circumstances included “coercive tactics relating to defendant’s son”; minimizing “the legal gravity of the alleged crime”; suggesting to the defendant that “if he did not confess, he would be charged with more serious crimes”; after defendant invoked his right to counsel, “dissuaded defendant from consulting with lawyer”; and, “implicitly promised leniency as well as alcohol counseling if defendant confessed”.

In State v. Johnson (2018 WL 627063) the Court of Appeals of South Carolina upheld the voluntariness of the defendant’s confession, indicating the misrepresenting evidence is not a coercive tactic:

"Misrepresentations of evidence by police, although a relevant factor, do not render an otherwise voluntary confession inadmissible.”… “Both this [c]ourt and the United States Supreme Court have recognized that misrepresentations of evidence by police, although a relevant factor, do not render an otherwise voluntary confession inadmissible .... The pertinent inquiry is, as always, whether the defendant's will was ‘overborne.’"

Consider the court’s opinion in US v. Graham (2014 WL 2922388 (N.D.Ga.)) in which the court pointed out that misrepresenting evidence is “one factor to consider among the totality of the circumstances in determining voluntariness.” The court points out that there are a number of cases in which statements elicited from a defendant in response to police deception were found involuntary… but the court stated, "these cases all involve significant aggravating circumstances not present here, such as, subjecting the accused to an exhaustingly long interrogation, the application of physical force or the threat to do so, or the making of a promise that induces a confession.”

There is a consistent consensus of opinion by the courts that lying about evidence in an “otherwise voluntary confession,” will not render a confession inadmissible. It is the view of the courts that behaviors such as threats of harm or inevitable consequences, denial of rights, promises of leniency or other such coercive behaviors will jeopardize the admissibility of the subject’s confession.

The courts have drawn a distinction between verbal misrepresentations of evidence and fabricated physical evidence, finding fabricated evidence unacceptable. For example, in State v. Cayward, (522 So.2d 971 (1989) a sexual assault case, the defendant’s incriminating statements were suppressed because the police fabricated scientific reports indicating that the suspect’s DNA had been found on the victim.

In the 2003 case of State v. Patton (826 A.2d 783, N.J.Super.A.D.,2003) law enforcement officers fabricated an account of the victim’s murder. A law enforcement officer, posing as an eyewitness, was "interviewed" on an audiotape that was later played to the defendant who, despite his early denials of involvement, upon hearing the audiotape, confessed to the murder. The fabricated audiotape, identified as such, was later introduced into evidence at trial, and the defendant was convicted of murder and related offenses. His motion to suppress the confession and objection to the use of the fictitious audiotape at trial were denied as was his challenge to the initial arrest and search.

The Appellate Division of Superior Court reversed. “We hold that law enforcement officers may not fabricate evidence to prompt a confession and later introduce that police-fabricated evidence at trial to support the voluntariness of the confession. We reverse the denial of the motion to suppress and remand for a new trial.” In their opinion, the court extensively reviews the history of the trickery and deceit issue and what numerous courts have had to say on the issue.

Two state Supreme Court rulings have found misrepresenting evidence to a subject during an interrogation is coercive.

In 1979 the Montana Supreme Court in State v. Allies stated that “lying to defendant about how much is known about his involvement in the crimes, is particularly repulsive to and totally incompatible with the concepts of due process embedded in the federal and state constitutions.” In this case, the investigators had falsely told the subject that he had been positively identified and placed at the scene of the crime (a homicide).

In 2020 the Hawaii Supreme Court stated in State v. Baker that investigators should not misrepresent incontrovertible evidence…. referencing the fact that in this case the interrogator falsely told the suspect that the DNA evidence implicated him in the commission of the crime.

Social Psychologists

According to false confession experts, oftentimes social psychologists, there are two sources of research that support their belief that misrepresenting evidence causes false confessions. “First, studies of actual cases reveal that the false evidence ploy….. is found in numerous wrongful convictions in the U.S., including DNA exonerations.” (Saul Kassin, et al, “Police-Induced Confessions: Risk Factors and Recommendations” Law Hum Behav (2010) 34:3–38). In his 2011 book, Convicting the Innocent, Brandon Garrett, a law professor at the University of Virginia, examined most of the case files for the first 250 DNA exonerations, which included 40 false confession cases, several of which included lying to the subject about the case evidence. However, as pointed out by Dr. Deborah Davis and Dr. Richard Leo, “Many, and perhaps most, of the interrogations in the cases Garrett reviewed crossed the line of proper interrogation technique through the use of explicit threats and promises, feeding suspects crime facts, and/or other coercive practices.”

In another research effort, the author studied the first 110 DNA exoneration cases reported by the Innocence Project. The author reported that “This study failed to find a single false confession of a cognitively normal individual that did not include the use of coercive tactics by the interrogator…” The author identified coercive interrogation tactics as “the use of physical force; denial of food, sleep or bathroom; explicit threats of punishment; explicit promises of leniency; and extremely lengthy interrogations.” (J. Pete Blair, “A Test of the Unusual False Confession Perspective: Using Cases of Proven False Confessions” Criminal Law Bulletin (Vol 41, Number 2)

As this research and several of the previously referenced court decisions have found, misrepresenting evidence in an otherwise proper interrogation does not cause innocent people to confess, but the “aggravating circumstances” within the interrogation can create an environment conducive to a coerced and/or false statement.

According to social psychologists, a second basis for concluding that misrepresenting evidence causes false confessions is found in laboratory experiments that have tested the hypothesis that false evidence leads innocent people to confess to prohibited acts they did not commit. The first of these studies, commonly known as “the Alt-key Study,” required students to perform a data entry project and warned them not to hit the computer's Alt key, which would cause the computer to crash. The researchers forced the system to crash, falsely accused the students of hitting the Alt key, and confronted them with a “witness” who reported seeing them do so. Under these circumstances, a number of the students signed written confessions despite their innocence. (S.M. Kassin and K.L Kiechel, ‘The Social Psychology of False Confessions: Compliance, Internalization, and Confabulation’, 7 Psychological Science 125 (1996))

In the second study, students were given a set of assignments and told that in some assignments collaboration with classmates was acceptable, while in others it was prohibited. The researchers then accused innocent students of improperly collaborating on certain assignments, informed them that they had violated university rules prohibiting cheating, and, for some, minimized the extent of their wrongdoing and encouraged them to take responsibility for their actions. Half of the students were told that there was a hidden video camera in the room which would eventually reveal their guilt or innocence. Under this circumstance, 93% of the guilty suspects confessed and 50% of the innocent suspects confessed. However, as it turned out, these innocent participants did not confess to helping the other person at all. Rather, they were asked to sign a prepared statement to the effect that they improperly collaborated with their classmates, but they were reassured that if the hidden camera exonerated them they would not get into any trouble by signing the statement. (Saul Kassin, et al, “Police-Induced Confessions: Risk Factors and Recommendations” Law Hum Behav (2010) 34:3–38).

As one court stated when discussing these studies, “Obviously, these “interrogations” were not conducted by law enforcement, were not part of a criminal investigation, did not involve actual suspects, and did not present the students with a serious penalty. As a result, Professor Hirsch [the false confession expert in this case] readily admitted that these studies have “limited value,” which, in the context of this case, is an understatement.” (U.S. v. Jacques 784 F.Supp.2d 59)

Even one of the authors of these 2 studies, Saul Kassin, has stated, “One needs to be cautious in generalizing from laboratory experiments.”

State Laws

In recent years several states have enacted legislation that prohibits law enforcement investigators from lying to juveniles about the case evidence.

Illinois: (2021)

"An oral, written or sign language confession of a minor, who at the time of the commission of the offense was under 18 years of age, made as a result of a custodial interrogation....shall be presumed to be inadmissible....if, during the custodial interrogation, a law enforcement officer or juvenile officer knowingly engages in deception."(Deception is defined as "the knowing communication of false facts about evidence or unauthorized statements regarding leniency.")

Oregon: (2021)

“A peace officer conducting an interview of a youth (under 18 years of age) in connection with an investigation of an act that, if committed by an adult, would constitute a crime may not use deceit, trickery or artifice, or any other misleading interrogation technique, during the interview."

Delaware: (2022)

“A statement of a person, who at the time of the commission of an offense was under 18 years of age, is inadmissible in any criminal or delinquency court proceeding if it was made during a custodial interrogation in which deceptive tactics were used. “Deceptive tactics” means the knowing communication by a law enforcement officer of false statements about evidence or false or misleading promises of leniency.”

California: (2022)

“During a custodial interrogation of a person 17 years of age or younger relating to a misdemeanor or felony, a law enforcement officer shall not employ threats, physical harm, deception or psychologically manipulative interrogation tactics. “Deception” includes, but is not limited to, the knowing communication of false facts about evidence, misrepresenting the accuracy of the facts, or false statements regarding leniency.”

Utah: (2022)

Utah has enacted legislation which states that "If a child is subject to a custodial interrogation for an offense, a peace officer, or an individual interrogating a child on behalf of a peace officer or a law enforcement agency, may not knowingly: (a) provide false information about evidence that is reasonably likely to elicit an incriminating response from the child; or (b) make an unauthorized statement about leniency for the offense."

Indiana: (2023)

Indiana has enacted legislature which prohibits law enforcement from lying to a juvenile suspect (17 or younger) about the evidence in the case; about the penalty of the act; or leniency in the imposition of a penalty for the act. An amendment was added to the legislation that requires police officers to make a reasonable attempt to contact the parents of a child who has been arrested or taken into custody.

Connecticut: (2023)

Legislation signed into law “creates a rebuttable presumption that an admission, confession, or statement made to law enforcement agents under interrogation is involuntary and inadmissible in court if deception or coercive tactics were used.” If the person being interrogated is under the age of 18, the definition of deception or coercive tactics expands to include communicating false facts about evidence that was either known or should have been known to be false to law enforcement agents, communicating false statements or misrepresentations of the law, and communicating false or misleading promises of leniency or some other benefit.

Our Policy Recommendations

• Investigators should consider the impact that misrepresenting evidence to the subject may have on a jury’s or court’s perception of their credibility.

• Investigators should be sure to check with their local prosecutors as to their views and recommendations regarding misrepresenting evidence to a subject and should be familiar with court decisions in their jurisdiction on this issue. Specific prohibitions against the use of deception may vary within each jurisdiction.

• Investigators should not misrepresent any evidence to a suspect who acknowledges that he may have committed the crime even though he has no specific recollections of doing so.

• Investigators should not misrepresent any evidence when interrogating a youthful suspect with low social maturity or a suspect with diminished mental capacity or psychological disabilities.
  

• Investigators should not use deception to threaten inevitable consequences.

• Investigators should never fabricate evidence or lie about potential leniency.

• Given current judicial and legislative trends regarding the use of deception during an interrogation, investigators should adopt a general practice of avoiding misrepresentations concerning incontrovertible or dispositive evidence.