We have all seen scenes like this one play out on TV shows
like Law and Order: a suspect is taken into an interrogation room and a police
officer or two tries to elicit a confession from the suspect. The suspect is uncooperative, so the officers
begin to rely on deceptions, lies, and other trickery. Maybe something like: we found some
fingerprints, and we are running them right now, and we know they are going to
match, so you might as well confess before that happens and pray that gets you
some leniency. Courts have generally
held that confessions obtained because of deception can be used as evidence. However, on February 20, 2014, the New York Court of Appeals ruled unanimously that the deception can only go so far,
drawing a line between police tactics that are tolerable and the ones that move
into coercive territory.
The appellate court vacated the murder conviction in the
case of Adrian Thomas[1]
and remanded the case back to the trial court. The thirty-one year old man was convicted of
the murder of his infant son who died from a head injury and infection back in
2008.
Writing the opinion, Chief Judge Jonathan Lippman described
the tactics of the police as evolving from mere lies to "a set of highly coercive deceptions." Thomas was
interrogated for more than nine hours, and involuntarily hospitalized after he
began considering suicide. Thomas was
immediately interrogated again once he was released from the hospital. During this interrogation, Thomas was told
over sixty times that what happened to the child must have been an accident,
twenty one times that a confession would be essential in assisting the attempt
to save the child’s life, fourteen times that he would not be arrested if he
confessed, and eight times that if he confessed he would be going home. Officers also told Thomas that if he did not
confess, they would have to take his wife away from his dying son’s bedside and
put her under arrest. The court found that “[h]ad there been
only a few such deceptive assurances, perhaps they might be deemed insufficient
to raise a question as to whether the defendant's confession had been obtained
in violation of due process," but the sheer number and scale of the deceptions led the court to believe that
these misrepresentations were instrumental in extracting the confession,
and they "completely
undermined" Mr. Thomas' right to remain silent and not
incriminate himself.
In Washington, D.C., the police are given wide latitude in conducting
interrogations. For example In re D.A.S., two officers took
fingerprints from a suspect, and then told the suspect that his fingerprints
matched those found in the victim’s checkbook even though no fingerprints were
actually recovered from the checkbook. In
Contee v. United States, the court approved a confession elicited after the police
tricked the defendant by indicating to the defendant that through the use of a computer
voice stress analyzer (CVSA) test they conclusively knew what the defendant was
saying was false. However, similar to
what happened in Thomas’s case, in Brisbon v. United States, the court contemplated whether
the defendant’s confession was not voluntary because the officers' deception may
have “cross[ed] the line beyond the type of tactics vel non that a court
will tolerate because they ‘are so offensive to a civilized system of justice
that they must be condemned under the Due Process Clause. . . . ’” The court noted that it generally has
condemned deceptions that threaten adverse consequences to family members if
the suspect does not confess. However, in
Brisbon the court did not find it necessary to decide whether the
confession was voluntary because even if it was not, the error of admitting it
was harmless.
The general standard regarding police trickery in D.C. is stated in In re D.A.S., where the
court said that “[c]onfessions generally are not vitiated when they are
obtained by deception or trickery, as long as the means employed are
not calculated to produce an untrue statement.” New Rensselaer County Acting District Attorney
Art Glass, the DA who is preparing to retry Mr. Thomas, does not think that the Court’s decision will hinder the efforts of police to obtain confessions. Rather, he thinks “it's a wake-up call for investigators to be much more cautious in interrogation techniques . . . and in
the types of deceit and trickery they use, permissibly." In short, cases like the Thomas case
should remind police that while you can lie, don’t lie too much.
If you believe
there is some defect in the voluntariness of a confession, you can file a
pretrial suppression motion. After the motion is filed, the burden is on the
government to prove that the alleged confession was given freely.[2]
Voluntariness must be proven by a preponderance of the evidence.[3] Generally, the factors that will be
considered in this determination include “[(1)] the circumstances surrounding
the questioning, [(2)] the accused's age, education, and prior experiences with
the law, [(3)] his physical and mental condition at the time the statement was
made, [(4)] other factors showing coercion or trickery, and [(5)] the delay
between the suspect's arrest and the confession.[4] If the pretrial motion fails, you can renew
the motion to suppress the confession when the interrogating officer begins to
testify about the confession. Suppression arguments are usually an uphill
battle, but it does not hurt to shine a bright light on all the tactics
employed by police to ensure that your client does not end up like Mr.
Thomas.
Cyle Barber
Senior Editor, Criminal Law Practitioner
[1] For a more in-depth look at the
circumstances leading up to this case, check out a previous blog post by Raleigh Mark from October 2013: "Scenes of a Crime": A Documentary Surrounding the Adrian Thomas Case and a Look at False Confession Experts.
[2] See Davis v. United States, 724 A.2d
1163, 1167-68 (D.C. 1998)
[3] See Lego v. Twomey, 404 U.S. 477, 489 (1972).
[4] See Davis at 1167-68.
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