Honesty is the best policy: a case for the limitation of deceptive police interrogation practices in the United States.

• Author: Khasin, Irina

ABSTRACT

In the United States, police officers regularly employ deceptive interrogation tactics to extract confession evidence from suspects. Despite widespread recognition of the harm caused by police deception, courts in the United States have consistently condoned the practice, refusing to exclude confessions obtained through manipulative and deceitful means. The British Parliament has recognized that deceptive police practices yield false confessions and, thus, wrongful convictions. The Police and Criminal Evidence Act of 1984 addresses this concern by establishing clear rules for the police to follow and by empowering courts to enforce those rules. In evaluating the need for reform in American police interrogation policy, English law provides a valuable model for comparison. Taking a cue from the English, this Note proposes the creation of a new legislative framework focused on the reliability of confession evidence. The Note will argue that the new law should include guidelines for the police to follow in conducting interrogations and that those guidelines should prohibit the types of deceptive practices that lead to unreliable results.

TABLE OF CONTENTS I. INTRODUCTION II. THE COSTS OF DECEPTION A. False Confession B. Evidentiary Harm C. Detrimental Reliance D. Institutional Harm III. THE PALLET OF POLICE DECEPTION: FROM FALSE SYMPATHY TO FALSE EVIDENCE A. False Sympathy or Flattery. B. Misrepresentations About Culpability C. Misleading Circumstances D. Lies About the Strength of the Case E. The Presentation of False Evidence IV. FROM TORTURE TO TRICKERY: THE HISTORY OF POLICE INTERROGATION PRACTICE A. State of American Confession Law B. State of English Confession Law V. SOLUTION A. A Framework with a Focus on Reliability B. Prohibition Against Fabricated Physical Evidence and False Testimonial Evidence C. Mandatory Recording VI. CONCLUSION I. INTRODUCTION

Touted as the public's civic guardians, law enforcement officers seek to protect and preserve the values of a just society. But, acting under the guise of this duty to protect, the police may assume guilt first and ask questions later, (1) disregarding the American justice system's guiding principle of "innocent until proven guilty." Once identified as a suspect, a person becomes the enemy and the effort to extract a confession begins. (2) Police will tell lies to uncover the truth; they will deceive, fabricate, and manipulate until the suspect surrenders--methods that are all perfectly legal. (3) The deceptive tactics employed by the police potentially cloud the value of confession evidence and raise serious concerns about reliability. (4) Still, judges support these practices by admitting the resulting confessions as evidence, (5) because in America honesty is not police policy.

In Europe, police officers pursue confessions with equal zeal but employ different means to achieve the desired end. (6) The modern framework for police interrogations in England, established by the Police and Criminal Evidence Act of 1984 (PACE), focuses on the search for truth by seeking reliable confessions through the use of fair police practices. (7) Rather than leaving the courts to delve into the emotional state of every defendant who challenges a confession, English law establishes a uniform standard for the police to follow when conducting interrogations. (8) To determine the admissibility of confession evidence, the English courts consider whether police officers have complied with PACE guidelines. (9)

While some trickery by the police may be permissible under the provisions of PACE. English courts have held that the intentional misrepresentation of evidence is unfair and violates the law. (10) Because this type of police deception compromises the veracity of a suspect's statements, English judges routinely exclude any confessions gained through deception as unreliable. (11) Although research suggests that the use of fabricated evidence is rare in English interrogations, (12) PACE enforces the prohibition by requiring the police to record every interview. (13) Even a violation of the recording requirement itself can result in the exclusion of a confession from trial. (14)

Although commentators have criticized deceptive police practices for decades, (15) American jurisprudence continues to overlook what English courts have long recognized: deceptive police practices yield false confessions and, thus, wrongful convictions. (16) Confessions gained through police deception are often factually inaccurate and untrustworthy. (17) English law limits the use of these deceptive practices by establishing clear rules for the police to follow and empowering courts to enforce those rules. (18) PACE artfully balances police and prosecutorial interests with the fair and reliable administration of justice. (19) In evaluating the need for reform in American police interrogation policy, English law provides a valuable model for comparison.

This Note advocates for the reform of American interrogation law and proposes the creation of a new legislative framework focused on the reliability of confession evidence. The Note argues that the new law should include guidelines for the police to follow in conducting interrogations and identify the types of deceptive practices that will lead to unreliable results. Part II addresses the wide-ranging problems associated with the current use of deceptive interrogation techniques in the United States. Part III defines and discusses the different types of deceptive police practices, which range from expressions of sympathy to the presentation of false evidence. Part IV provides a brief history of the common law on police interrogation and compares the current status of the law in the United States with the law in England. Lastly, Part V proposes a solution that borrows from the English legal system without compromising the strength of American law enforcement.

2. THE COSTS OF DECEPTION

   Without a doubt, investigators routinely secure powerful confession evidence through the use of trickery, deceit, manipulation, and false evidence. (20) However, in a society that generally views lying as immoral and wrong, deliberate dishonesty displayed by police officers raises serious concerns. The use of deception hurts not only the innocent suspect but also the lying police officer, the prosecuting attorney, and the criminal justice system as a whole. To address the need for the reform of American interrogation law, it is necessary to first consider the dangers associated with the use of deceptive techniques, including: (1) false confession, (2) evidentiary harm, (3) detrimental reliance, and (4) institutional harm.

   1. False Confession

      Modern psychological studies have indicated that the use of coercive interrogation techniques may result in one of two types of false confessions. (21) "Coerced-compliant" confessions are those in which a suspect knowingly offers a false confession in order to obtain some goal or to escape from a stressful situation. (22) For example, the suspect begins to feel hopeless and produces a false confession in an attempt to secure a lighter penalty when a police officer confronts him with false forensic evidence. On the other hand, "coerced-internalized" false confessions occur when deceptive tactics alter a suspect's mental condition so severely that the innocent suspect actually believes in his own guilt. (23) In a distressed and vulnerable state, the suspect begins to confuse reality with the story that the police officer presents. (24) Both types of false confessions occur as a result of deceptive police practices and can lead to devastating consequences for innocent suspects. Even a guilty person may confess falsely in response to deceptive police practices, changing the details of his story to fit the suggestion of his interrogator. (25) Although the admission of guilt itself may be true, a suspect's statements will prove unreliable if coercive police tactics influenced the suspect's description of the facts. (26)

      In recent years, the phenomenon of the false confession has gained increasing attention as a serious problem for the American criminal justice system. (27) "Over the past two decades, a significant number of suspects have claimed that police interrogation techniques have led them to give false confessions." (28) Between 1973 and 1996, Professors Leo and Ofshe collected several dozen case histories of wrongful convictions due to false confessions. (29) Although the frequency of psychologically induced false confession remains uncertain, (30) scholars have discovered that they occur often enough to warrant major concern. (31) Empirical data indicates that confessions induced by standard police interrogation tactics are frequently untrustworthy and that these tactics cause a significant number of false confessions. (32) Leo and Ofshe argue that "when police interrogate suspects whose guilt is a mere possibility rather than a reasonable likelihood, they run a significant risk of eliciting a false confession." (33)

      The harm that results from false confessions is plain. Police-induced false confessions lead to the wrongful arrest, prosecution, conviction, and incarceration of the innocent. (34) Additionally, "false confessions are likely to lead to unjust deprivations of liberty ... because jurors treat confession evidence with such deference that the confession usually outweighs strong evidence of a defendant's innocence." (35) With an admission in hand, a prosecutor is better able to secure a conviction in a case that may otherwise be based on tenuous evidence. (36) A confession is also a powerful chip in the plea bargaining process. (37) Fearing a near certain conviction, an innocent person will often accept punishment in hopes of facing a lighter sentence.

   2. Evidentiary Harm

      The use of deceptive tactics by the police creates a risk that any resulting confession, regardless of its basis in truth, will be...