Last week, New York’s highest court unanimously reversed 31-year-old Adrian Thomas’ murder conviction for the death of his infant son because of lies police told Thomas while interrogating him. The court acknowledged that police can lie when interrogating suspects, but when the lies become “patently coercive,” any confession cannot be used as evidence.
While the state Supreme Court’s ruling was unanimous in the Thomas case, it went against the trial judge’s ruling and the midlevel Appellate Division’s decision. Courts nation-wide disagree on what deception is okay and what deception is so coercive as to render a suspect’s statement involuntary and, therefore, inadmissible. (See, Miller v. Fenton, 796 F.2d 598 (3rd Cir. 1986), in which the state supreme court split 4-3 in reversing Miller’s conviction because of the deception police used while interviewing him for the brutal murder of a 17-year-old girl after the trial judge had ruled the deception legal.)
If courts across the land can’t agree, how is the average cop supposed to know what’s okay?
The stakes are high. Get it wrong and an officer can:
• Be sanctioned by the courts
• Be sued
• Be disciplined in the job
• Lose the public’s confidence
• Have evidence suppressed, a case dismissed and a criminal freed.
Law Is Clear on One Thing
Before any uninformed citizenry or cop bashers start railing about how it should be a crime for the police to lie (“since it’s a crime to lie to the police”) or how police use of deception shows cops are corrupt, let me stop you.
First, your argument is with the U.S. Supreme Court, not with cops, because the Supreme Court has sanctioned police deception in the course of criminal investigations. United States v. Russell, 411 U.S. 423, 434 (1973). (“Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer.”) The Supreme Court refers to these sanctioned ruses as “strategic deception.” Illinois v. Perkins, 496 U.S. 292, 297 (1990).
Second, without this sanctioned tool, police would be prohibited from working undercover (a deception), at great risk to their personal safety, to penetrate crimes like drug and human trafficking, child pornography, and prostitution — or any other secretive criminal enterprise.
I couch any discussion of legal precedent with the caution that cases are decided by judges, judges are lawyers, and, in the words of Alaska Superior Court Judge Karl Johnstone (ret.), “You can’t get two lawyers to agree to kill a rat in a bathtub.”
That said, generally speaking:
A.) Courts do not sanction police lying about their authority to search or seize, for example, telling a suspect that if they don’t consent to a search the officer will just go get a warrant when the officer does not have probable cause. This undermines the 4th Amendment’s probable cause requirement.
B.) Nor may police lie, for example, about investigating a non-existent burglary to gain consent to enter and search a home. This undermines the voluntary, knowing and intelligent requirements for valid consent.
C.) A limitation in undercover work is that the police deception may not be of such a nature that it would coerce an innocent person to commit a crime. That would constitute entrapment, which is a defense to a crime.
Deception in Interviews
What’s the law when it comes to police deceiving suspects during interviews? Here are some guidelines:
• Courts agree due process requires that confessions be voluntary — they can’t be coerced
• Courts agree coercion can be psychological as well as physical
• Most courts agree they’ll decide whether the confession was voluntary or coerced based on a “totality of the circumstances”
The U.S. Supreme Court set out the totality of the circumstances criteria in Frazier v. Cupp, 394 U.S. 731 (1969). During interrogation, the officer told Frazier, falsely, that his cousin had confessed and implicated Frazier in the crime. The Supreme Court held this deception did not coerce the defendant so as to render his confession involuntary.
Totality of the circumstances can include:
• Police conduct — what officers say and do and how they say and do it, for example, the length of the interrogation and whether police offer refreshment or breaks
• The environment — are, for example, police questioning the suspect in a 6’ X 8’ windowless room where they stand between him and the only exit
• The suspect’s age and mental status
• Anything else that bears on the coercive nature, or not, of the interrogation
But Wait, There’s More...
The above guidelines are a good starting point. But decisions where courts have addressed specific acts of police deception are particularly instructive (see the sidebar Case law on police deception).
And, the profession should be doing more in this murky area given the high stakes for the officers and their communities (see today’s tactical tip on Preparing cops for police deception).