Be Suspicious When You Only Get Part of the Story

Written By: Joseph P.Buckley
Dec 19, 2022

In a recent article entitled, "Law Enforcement Experts on Why Police Shouldn't be Allowed to Lie to Suspects" Professor Saul Kassin describes a series of cases in which he suggests that innocent people confessed to committing serious crimes because the police lied to them about incriminating evidence......“We have surveillance footage of you that night,” “Your shoe prints were at the crime scene,” “Cell phone records prove you were there,” “Your DNA was on the victim,” and “Your friend said she wasn’t with you like you said."

In the 1969 case Frazier v. Cupp, the United Stats Supreme Court concluded that while misrepresentations of evidence (in this case that Frazier's accomplice had confessed) were relevant, they did not make an otherwise voluntary confession inadmissible. The Court judged the materiality of the misrepresentation by viewing the "totality of circumstances." In other words, if the police did not engage in an coercive behaviors (threats, promises, denial of rights), misrepresenting evidence in and of itself is not likely to cause an innocent person the confess.

In the Kassin article he fails to mention that in all of the cases he references, the investigators engaged in threats, promises, denial of rights, excessively long interrogations, etc. It was not the misrepresentation of evidence that caused the confession, but the investigators use of coercive and abusive tactics. As one court stated (US v. Graham) ".....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.” In other words, it is not the misrepresentation of evidence that is the genesis of a coerced or even false confession, but the "aggravating circumstances" present during the interrogation.

As Deborah Davis and Richard Leo (referring to DNA exoneration cases, several of which included misrepresenting evidence to the suspect), “Many, and perhaps most, of the interrogations in the cases .... crossed the line of proper interrogation technique through the use of explicit threats and promises, feeding suspects crime facts, and/or other coercive practices.”

After reviewing 110 DNA exoneration cases Pete Blair 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.”

We have never advocated that the investigator lie to the subject about evidence in the investigative interview…..the investigator should be a neutral, objective fact finder.

As for misrepresenting evidence during the interrogation our position is that:

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.