Deceptive police interrogation practices: how far is too far?

• Author: Magid, Laurie

1. INTRODUCTION: FOCUSING ON VOLUNTARINESS TO LIMIT THE USE OF DECEPTION

   Virtually all interrogations -- or at least virtually all successful interrogations -- involve some deception.(1) As the United States Supreme Court has placed few limits on the use of deception, the variety of deceptive techniques is limited chiefly by the ingenuity of the interrogator. Interrogators still rely on the classic "Mutt and Jeff," or "good cop, bad cop," routine. Interrogators tell suspects that non-existent eyewitnesses have identified them, or that still at-large accomplices have given statements against them. Interrogators have been known to put an unsophisticated suspect's hand on a fancy, new photocopy machine and tell him that the "Truth Machine" will know if he is lying. Occasionally, an interrogator will create a piece of evidence, such as a lab report purporting to link the suspect's bodily fluids to the victim. Perhaps most often, interrogators lie to create a rapport with a suspect. Interrogators who feel utter revulsion toward suspects accused of horrible crimes sometimes speak in a kindly, solicitous tone, professing to feel sympathy and compassion for the suspect and to feel that the victim, even if a child, should share the blame. At the very least, the successful interrogator deceives the suspect by allowing the suspect to believe that it somehow will be in the suspect's best interest to undertake the almost always self-defeating course of confessing.

   Because most deception is employed only after the suspect executes a valid waiver of Miranda(2) rights, Miranda offers suspects little protection from deceptive interrogation techniques. Thus, commentators have increasingly looked to the voluntariness requirement of the Due Process Clause as a basis for limiting these techniques. These commentators have offered a variety of rationales for the voluntariness requirement -- such as equality, dignity, and trust -- to justify limiting the use of deception. On close scrutiny, however, none of these rationales provides a sound basis for prohibiting or drastically limiting the use of deception during interrogation. Presumably in recognition of the fact that these rationales have somewhat limited resonance with the Court, with legislators, and with the public at large, some commentators have now focused on the reliability rationale for the voluntariness requirement. A confession is unreliable when the person who gives it actually had nothing to do with the crime to which he purports to confess.

   Commentators have sought to show that deception causes many false confessions and, thus, the wrongful convictions of many innocent persons.(3) Their efforts have captured the attention not only of the academic community, but also of the popular press.(4) Television, newspapers, and magazines have reported on individual cases in which defendants were convicted after giving purportedly false confessions,(5) and on the academic studies calling for limits on the use of deception during interrogation.(6) Scholars of law and psychology have made suggestions for curtailing deceptive interrogation techniques.(7) While some commentators have concluded that few limits on deception techniques are necessary,(8) and a few have advocated prohibiting any interrogation techniques involving deception,(9) still others have proposed limits between these two extremes.(10)

   In order to evaluate these calls for either bans or significant limits on the use of deceptive interrogation techniques, I begin by briefly summarizing the history of the voluntariness requirement to identify its primary policy of preventing unreliable confessions. Next, I critique the rationales for the voluntariness requirement, other than reliability, that have been offered as a basis for limiting deceptive interrogation. After concluding that none of these other rationales offers an appropriate basis for the limits, I examine the reliability rationale for the voluntariness requirement, and I find that it does provide the appropriate basis for setting appropriate limits on deceptive interrogation techniques. I then consider the evidence that reliability has been implicated by the purportedly widespread problem with police-induced false confessions. Finding that the evidence of such false confessions consists entirely of anecdotal accounts, I conclude that the existing evidence falls well short of establishing the significant problem that has been alleged to exist.(11) On the other hand, greatly limiting deception would impose significant costs on society in terms of reduced numbers of true confessions and reduced convictions of guilty persons.

   There is absolutely no question that the conviction of an innocent person because of a false confession is an enormous failing of the criminal justice system. But it does matter whether such occurrences are rare tragedies or a widespread epidemic. Statistically sound studies, based on a random sample of confessions to determine how many are false, can and should be done. At this point, however, given the absence of empirical support, the calls for fundamentally changing the way crime is investigated in this country are not justified.

2. DEFINING VOLUNTARINESS

   1. The Multi-Factor Totality of the Circumstances Test

      The common law originally placed no limits on the methods used to obtain confessions.(12) During the 1700s and 1800s, however, judges in both Great Britain and the United States became increasingly concerned about the reliability of statements obtained by physically abusive means and began to ask whether confessions were voluntarily given.(13) For example, in its 1884 Hopt v. Utah decision, the U.S. Supreme Court suggested that abusive interrogation tactics might rebut "the presumption upon which weight is given to [confessions], namely, that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement."(14)

      Nevertheless, law enforcement personnel continued to employ the "third degree" during interrogation. In 1936, however, with Brown v. Mississippi,(15) the Court turned to the Due Process Clause of the Fourteenth Amendment as the basis for examining the voluntariness of confessions in dozens of state cases.(16) The Court held that police use of violence was "revolting to the sense of justice,"(17) stating that "[t]he rack and torture chamber may not be substituted for the witness stand."(18) In Brown and other early cases, the Court clearly believed that innocent persons had been convicted, and that their confessions were unreliable.(19) Due process required interrogation procedures that would yield voluntary, and therefore reliable, statements. Courts used a "totality of the circumstances" analysis to determine whether "the interrogation was ... unreasonable or shocking, or if the accused clearly did not have an opportunity to make a rational or intelligent choice."(20)

      The totality of the circumstances test required courts to consider: the conduct and actions of the officers; the physical surroundings of the interrogation; and the characteristics and status of the defendant, including both physical and mental condition.(21) Some types of police conduct were deemed so coercive that no examination of the particular susceptibilities of the suspect was even necessary.(22) Most notably, physical violence and threats, whether implicit(23) or explicit, could not be directed against any suspect.(24) Physical mistreatment,(25) such as extended periods of interrogation without intervals for sleep, also provided grounds for finding involuntariness.(26)

      The Court's pre-Miranda cases regularly looked to the characteristics of the particular defendant in deciding whether a confession should be deemed involuntary.(27) When the suspect was a juvenile, mentally ill, retarded, or intoxicated, courts required the police to lessen the intensity and duration of the interrogation or reduce the amount of deception. In other cases, however, the courts provided little guidance to police regarding which social, emotional, or mental characteristics were relevant in determining how to interrogate a particular suspect.(28)

      Even though reliability was surely uppermost in the Court's mind when it decided Brown v. Mississippi, the Court gave mixed and confusing signals in subsequent cases about the precise rationale for the voluntariness requirement.(29) For example, in Jackson v. Denno,(30) the Court referred to a "complex of values" requiring the exclusion of involuntary confessions. Reliability was just one of these values. Yet, notwithstanding the Court's assertions that there are rationales other than reliability for the voluntariness requirement, reliability still appears to be the single most important factor considered by the Court in deciding whether a confession is voluntary.(31)

   2. Courts Place Few Limits on the Use of Deception During an Interrogation

      Interrogation typically requires at least some deception -- from professing unfelt sympathy for the suspect, to exaggerating the strength of the evidence against the suspect, to falsely alleging that a witness has identified the suspect.(32) In the pre-Miranda voluntariness cases, the Court characterized the use of deception during interrogation as just one of the many factors it considered in evaluating the totality of the circumstances surrounding the confession. For example, in Spano v. New York,(33) an officer, who was also a close friend of the defendant, told the defendant that he would get in a lot of trouble if the defendant did not confess. The Court found that the use of the defendant's childhood friend, who feigned legal and family difficulties to get the defendant to confess, was unconstitutional. Although the Court held that the defendant's statement was involuntary, the use of deception was not a dispositive factor.(34) In addition to the exploitation of the friendship, the Court's holding relied on the defendant's limited education, his...