Response to Professor Kassin's NY Times Opinion Piece on whether the police should be allowed to misrepresent evidence to a criminal suspect

Written By: Reid
Feb 01, 2021

On Friday January 29, 2020 Professor Saul Kassin published an opinion piece in the New York Times entitled, It’s Time for Police to Stop Lying to Suspects, in which he recommended the passage of New York Senate Bill S324 which would prohibit law enforcement from misrepresenting evidence during the interrogation of criminal suspects – a practice approved by the United State Supreme Court in 1969.

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 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.

Professor Kassin, however, suggests that misrepresenting evidence during a criminal interrogation, in and of itself, does cause innocent people to confess – in support of this statement he references several false confession cases (including cases from the Innocence Project DNA exonerations) and he reported that there is “scientific proof of the risk posed by false evidence” leading to false confessions. However, Professor Kassin did not disclose the full details from the cases that he sighted or the research that he referenced.

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. 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 one 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)

In almost every false confession case sited by Kassin there were “aggravating circumstances” – namely the investigators engaged in “coercive behaviors” - 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. (US v. Graham 2014 WL 2922388 (N.D.Ga.).

In Commonwealth v. Gallett (March 2019) the Supreme Judicial Court of Massachusetts pointed out that the cases which involved the misrepresentation of incriminating evidence in which they found the defendant’s confession to be inadmissible have additional circumstances -- apart from the ruse itself -- that rendered the confession involuntary…..where police minimized the legal gravity of alleged crime; suggested that if the defendant 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, the police implicitly promised leniency as well as alcohol counseling if defendant confessed.

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. The Court stated that, “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.”

The courts consistently point out the presence of “coercive actions” that render the confession inadmissible – not the mere misrepresentation of evidence.

As for the research cited by Professor Kassin, 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.

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 signed a prepared statement to that effect. Further, and most importantly, they were reassured that if the hidden camera exonerated them they would not get into any trouble by signing the statement.

In U.S. v. Jacques, when discussing these studies, the court stated that “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.”

Even one of the authors of these 2 studies, Saul Kassin, stated, “One needs to be cautious in generalizing from laboratory experiments.” (“Police-Induced Confessions: Risk Factors and Recommendations” Law Hum Behav (2010) 34:3–38)

In our training courses we teach to exercise extreme caution about misrepresenting evidence to the suspect. From Criminal Interrogations and Confessions:

  1. Introducing fictitious evidence during an interrogation presents a risk that the guilty suspect may detect the investigator’s bluff, resulting in a significant loss of credibility and sincerity. For this reason, we recommend that this tactic be used as a last resort effort.
  2. This tactic should not be used for the suspect who acknowledges that he may have committed the crime even though he has no specific recollections of doing so. Under this circumstance, the introduction of such evidence may lead to claims that the investigator was attempting to convince the suspect that he, in fact, did commit the crime.
  3. This technique should be avoided when interrogating a youthful suspect with low social maturity or a suspect with diminished mental capacity. These suspects may not have the fortitude or confidence to challenge such evidence and, depending on the nature of the crime, may become confused as to their own possible involvement if the police tell them evidence clearly indicates they committed the crime.

The New York Senate should reject S324, but reinforce the need to conduct interrogations in accordance with the following core principles:

  • Do not make any promises of leniency
  • Do not threaten the subject with any physical harm or inevitable consequences
  • Do not conduct interrogations for an excessively lengthy period of time
  • Do not deny the subject any of their rights
  • Do not deny the subject the opportunity to satisfy their physical needs
  • Withhold information about the details of the crime from the subject so that if the subject confesses the disclosure of that information can be used to confirm the authenticity of the statement
  • Exercise special cautions when questioning juveniles or individuals with mental or psychological impairments