Response to Professor Laura Nirider and Director Lauren Kaeseberg’s Chicago Tribune Opinion Piece on whether the police should be allowed to misrepresent evidence to a criminal suspect

On Friday April 15, 2021 Professor Lauara Nirider and Director Lauren Kaeseberg published an opinion piece in the Chicago Tribune entitled, Police deception during interrogations too often leads to false confessions. Ban the tactic, in which they recommended the passage of Illinois Senate Bill 2122 which would prohibit law enforcement from “knowingly engaging in deception” 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 Nirider, however, suggests that misrepresenting evidence during a criminal interrogation causes innocent people to confess – in support of this statement she references a case in which a 17-year-old with no criminal history was falsely told that witnesses had identified him as the perpetrator. However, it should be noted that the investigators in this case falsely promised the subject that if he confessed, he would be viewed as “just a young kid who made a bad decision” and avoid incarceration.

In almost every false confession case there were “aggravating circumstances” – namely the investigators engaged in “coercive behaviors” - such as, subjecting the accused to an exhaustively 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 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 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 that it is the presence of “coercive actions” that render the confession inadmissible – not the mere misrepresentation of evidence.

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.

These guidelines should have been followed in the case Nirider and Kaeseberg describe (the 17 year old had developmental disabilities that rendered his mental functioning akin to a much younger child).

The Illinois Senate should reject SB2122, 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