Confession by deception

Most police interrogations are simple, straightforward procedures: Detectives confront the suspect with evidence, and the individual confesses. However, in those cases wherein the suspect does not confess, detectives often resort to deception, or what the many critics of this practice call outright lying.

Over the years state courts and the U.S. Supreme Court have affirmed the right of police to deceive suspects during an interrogation. In a 1969 decision (Frazier v. Cupp) the high court allowed police to falsely proclaim that a suspect’s confederate confessed to the crime(s) in question when in fact he had not. A 1977 decision (Oregon v. Mathiason) affirmed that police can tell a suspect they found his fingerprints at the crime scene when they did not. The high court ruled these deceptions are insufficient for rendering a defendant’s subsequent confession to a crime(s) inadmissable in a criminal court.

The California criminal law office of Nicholas J. Moore outlined “The Ten Ways Police Can Legally Lie to You.” Here are five of these lying techniques:

1. Police can lie about having physical evidence. They can tell suspects, “We have your crime scene fingerprints,” or, “We have your DNA,” when in fact they do not. The 6th Federal District Court described the practice of police lying about having a suspect’s DNA as “a regrettable but frequent practice of law enforcement” that “was not unconstitutional.”

2. Police can administer fake tests to “prove you’re guilty.” In one example of this ruse, after a suspect requested a polygraph test, the police hooked him up to a fake machine, then showed the suspect the fake results that he was lying and failed the test. The suspect confessed to the crime.

3. Police may lie about having eyewitnesses. In one case the police informed a suspect the rape victim had selected his photo from an array of photos. The victim had not been shown any photos, and the suspect subsequently confessed.

4. Police can lie about recording your conversation. An officer might say, “I’m turning the tape recorder off, this is just between you and me. This is off the record.” The officer will make a show of turning off the recorder, but a second machine is recording the conversation. When speaking to the police, there is no “off the record.”

5. Police may imply that your refusal to cooperate will be damaging to your case. An interrogator might say, “We know what happened, but if you obstruct our investigation the district attorney will be tougher on you.” The above statement is true; you can be charged with obstructing justice (for example, lying to police). However, the way this statement is phrased implies that a suspect must talk to police. Refusing to answer questions is NOT obstruction of justice.

Police defend interrogation deception at least three ways:

1. In the “end justifies the means” argument: If detectives cannot “bend” the truth on occasion, many guilty individuals will not confess and may escape punishment for their wrongdoing.

2. Because of liberal court rulings such as the 1966 Miranda decision (the rights of a suspect to remain silent, to consult with an attorney, to have the attorney present during questioning, and to have an attorney appointed if indigent), police are at a disadvantage. Lying to suspects during an interrogation is one way of leveling the criminal justice playing field.

3. Using the “It’s all part of the game” rationalization, a detective stated, “Yes, you can lie to a person during an interrogation — they lie to us.”

Few people deny the necessity and legitimacy of interrogation as a mechanism for crime control via the successful prosecution of guilty defendants. However, what troubles many observers is the likelihood of false confessions derived through deception, which Edwin Dobb, (writing in Amnesty Magazine, a publication of Amnesty International), argues is a component of the standard interrogation technique used in this country that promotes a more encompassing and, at times, insidious form of deceit. This strategy “teaches police to create a make-believe world of ever increasing disorientation and discomfort from which the suspect’s only hope of escape is to admit guilt.”

Saul Kassin, a professor of psychology at the John Jay College of Criminal Justice, states that during an interrogation, innocent children and others who are limited intellectually become so confused by police lies they eventually come to believe they did commit a crime, then wonder why they can’t recall the offense. Kassin states that via police interrogation lies, “people can become so stressed and broken down” they come to believe “a confession is in their best interests.” He calls these lying-induced admissions of guilt “coerced-internalized confessions.”

Social psychologist Richard Ofshe, an expert on false confessions, notes deception-induced admissions of guilt rank third behind perjury and eyewitness error in this country as the cause of wrongful homicide convictions.

It’s not that police knowingly, willfully and maliciously try to gain confessions from individuals they believe are innocent. Rather, detectives, in their zeal to solve a crime along with their sincere belief that an individual is factually guilty, may coerce innocent people into making false confessions.

In southern California, a 12-year-old girl was stabbed to death in her bedroom during the night. Because her 14-year-old brother seemed unaffected by the tragedy and, according to the boy’s story, because he walked by his sister’s room two hours before the body was found without noticing anything, the youth became the primary suspect. Following are excerpts from the boy’s interrogation:

Detective: “We found blood in your room already.”

Suspect: “God, where did you find it?”

Detective: “I’m sure you know. It’s easy to make a mistake in the dark.” (No blood was found in the suspect’s room. The detective would say later that he thought he saw blood.)

At another point in the interrogation:

Detective: “We can prove that nobody came into the house. So we know the person who did this was inside the house.”

The detective told the suspect all the doors and windows were locked and the house showed no signs of entry. This was a lie. The sliding glass door from the master bedroom to the backyard was unlocked. The victim’s blood was eventually found on the shirt of a local transient (evidence the police missed when this individual was questioned — and his clothing examined — shortly after the murder), and the case against the boy was dismissed.

While police deception may be effective in obtaining confessions, these admissions likely come at the expense of some public trust and support of law enforcement. After the details of the California murder case presented above appeared in local newspapers, one woman stated: “Reading these articles has shaken my faith in both justice and the police, and I, for one, will never believe anything they say again.”

George J. Bryjak lives in Bloomingdale, retired after 24 years of teaching sociology at the University of San Diego.

Sources:

Barkan, S. and G.J. Bryjak (2011) “Fundamentals of Criminal Justice: A Sociological View,” Jones & Bartlett Learning: Sudbury, Mass.

Bergman, P. and S.J. Berman-Barrett (2003) “The Criminal Law Handbook,” Nolo Books: Berkeley, Calif.

Dobb, E. (2007) “False Confessions: Scaring Suspects to Death,” Amnesty Magazine, Amnesty International, www.amnestyusa.org

Dolbee, S. (May 21, 1999) “The Lying Game: Coaxing Confessions with Lies May be Legal, but is it Ethical?” The San Diego Union-Tribune, p.E1

Jerome, R. (August 1995) “Suspect Confessions,” New York Times Magazine, 13:28-31

Najdowski, C. and C.L. Bonventre (2014) “Deception in the Interrogation Room,” Judicial Notebook, American Psychological Association, Vol. 45, No. 5, www.apa.org

“Ten Ways Police Can Legally Lie to You” (2015) The Law Office of Nicholas J. Moore, www.njmoorelaw.com

Venosa, A. (Dec. 15, 2015) “Interrogation Techniques, Mental Illness Are Two Reasons Why People Falsely Confess to Crimes, Medical Daily, www.medicaldaily.com

Wilkens, J. and M. Sauer (1999) “The Arrest,” San Diego Union-Tribune, A1

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