Case law on police deception
In some ways, the law is unclear on what police deception is legal (or not). However, despite the conflicting court decisions, there are basic agreements and parameters amongst courts that can provide guidance. For example, the courts agree that due process requires that confessions be voluntary — a confession cannot be coerced, and such coercion can be psychological as well as physical. Further, courts generally agree they’ll decide whether a 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). What other case law exists on the subject?
Let’s start with Miller v. Fenton. In this case, the court reversed the defendant’s conviction based on the interviewer presenting himself as a friend who wanted to help if the defendant would just unburden himself. Miller was also falsely told that the victim was still alive. The interviewer stated several times that Miller was not a criminal who should be punished but a sick individual who should receive help. One hour into the interview Miller confessed, then collapsed, and was taken to the hospital.
Let’s now consider People v. Adrian Thomas. In that case, police interviewed the defendant for hours. Investigators told Thomas they would pick up his wife if he didn't confess to injuring his son. They also told him 67 times it was an accident, 14 times that he wouldn't be arrested, 8 times that he would be going home and 21 times that disclosure of the circumstances under which he injured his child was essential to assist the doctors attempting to save the child's life (the infant was already brain dead). The court found the interview “patently coercive.”
In In re D.A.S., 391 A.2d 255, (D.C. App. 1978), the police pretended to compare the defendant's fingerprints to a fingerprint on the victim's checkbook and pronounced them a match. In truth, no fingerprints were recovered. The defendant confessed to the robbery and the Court held that the deception did not render the confession involuntary.
In re D.A.S. followed Oregon v. Mathiason, 429 U.S. 492 (1977) in which the Supreme Court upheld police falsely telling the defendant they had found his fingerprints at the scene. See also, Michigan v. Mosley, 423 U.S. 96 (1975) (confessing suspect had been told that another person had named him as the gunman.)
In Illinois v. Perkins, 496 U.S. 292 (1990), the Court held that Perkins was not coerced when he confessed to committing a murder to an undercover police officer who was falsely posing as another inmate.
In State v. Patton, 362 N.J. Super. 16 (App. Div.) (2003), an officer posing as an eyewitness was "interviewed" on an audiotape that was later played to the defendant who, despite his early denials of involvement, confessed upon hearing the tape. The conviction was reversed on appeal.
State v. Cayward, 552 So. 2d 971 (Fla. App. 2 Dist. 1989), involved the interview of a 19-year-old suspect in the rape and murder of his 5-year-old niece. Police falsely told Cayward they'd had the victim's underwear scientifically tested and the results showed semen stains on it from him. They also showed him a false lab report of the results. The court held the verbal lie was lawful but the false documents were not. Notably, the court seemed more concerned that such documents could inadvertently make their way into court records and be mistakenly viewed as true than with the coercive effect of the reports on the defendant. Other courts have disagreed with this decision.
In Arthur v. Commonwealth, 480 S.E. 2d 749 (Va. 1997), the appellate court held that police showing a suspect "dummy" reports indicating his fingerprints and hair were found at the crime scene was not unduly coercive. The court addressed the Cayward court's concern by noting the police kept the false documents in a separate file from the actual investigative and lab reports.
In Sheriff, Washoe Co. v. Bessey, 914 P. 2d 618 (Nev. 1996), the Nevada Supreme Court criticized the Cayward court's distinction between a verbal lie and the same lie "embodied in a piece of paper," concluding there was no real difference. The court upheld police creating a "falsified lab report" showing a defendant had committed a sexual assault against a minor, stating, "There was nothing about the fabricated document presented in this case which would have produced a false confession."
In People v. Henry, 518 N.Y.S.2d 44 (N.Y. App. Div. 1987), the court upheld a confession obtained after police confronted the defendant with fake polygraph test results indicating he had lied to police.
Other courts have sided with the Cayward decision and reversed convictions based upon confessions obtained after the police presented fabricated evidence to the defendant.
So, what’s the bottom line? Officers must know the case law in their jurisdiction.