A lie for a lie: false confessions and the case for reconsidering the legality of deceptive interrogation techniques.

• Author: Gohara, Miriam S.

"History amply shows that confessions have often been extorted to save law enforcement officials the trouble and effort of obtaining valid and independent evidence." (1)

"The principle that a State may not knowingly use false evidence ... to obtain a tainted conviction [is] implicit in any concept of ordered liberty." (2)

1. INTRODUCTION

   The December 2002 exoneration of five young men who were convicted of the infamous 1989 attack on a jogger in Central Park highlighted the ease with which standard interrogation techniques can produce false confessions that lead to wrongful convictions. (3)

   When the jogger was attacked in 1989, the public was convinced that the five Harlem youths, who repeatedly incriminated themselves and each other, were guilty beyond doubt. Meanwhile, the actual attacker committed three more rapes and a rape and murder before he was caught. (4) In 2002, when the case unraveled after the actual perpetrator confessed to attacking the victim by himself, the public scratched its collective head while trying to understand why not only one, but several, of the boys had apparently falsely confessed to their involvement in the brutal attack on the jogger.

   A significant part of the answer may be attributable to the court-approved interrogation techniques that police have been using for decades in station houses across the country. Principal among these is the routine deception of suspects about a range of issues which influence a suspect's willingness to make an incriminating statement. In the Central Park jogger case, family members of the five exonerated youths have alleged that the police tricked the boys into believing that they were simply giving statements as witnesses, not as suspects, and that once they provided taped interviews, they would be allowed to go home. (5) In addition, the interrogation tactic of leading each boy to believe that others had already confessed and implicated the others was particularly effective. (6) For example, Kharey Wise, one of the exonerated five youths, said he initially told police he knew nothing about the jogger. But when police told him that his friends had said that he was at the scene, "he started making up facts 'just to give them what they wanted to hear.'" (7) Wise said that the police told him he would be able to go home after giving his statement, but instead they took him to jail. In his words, "'I fell for it.'" (8) Other deceptive tactics were also employed. One detective even admitted to falsely telling one of the suspects that his fingerprints would be found on the jogger's shorts. (9)

   The case of Martin Tankleff presents another high profile example of the pitfalls of police trickery on youthful and other vulnerable suspects. Tankleff was seventeen years old when his parents were discovered stabbed to death in their Long Island home. (10) Tankleff, who had been asleep in the house at the time his parents were killed, immediately became the prime suspect. (11) During the interrogation, the lead detective, by his own admission, told Tankleff untruthfully that his father had awakened at the hospital and identified him as the attacker. (12) Tankleff told the police that his father had never lied to him and that if he identified him as the attacker, maybe he had "blacked out" and in fact killed his parents. (13) The police agreed with Tankleff that he had probably committed the crime but blocked the memory. Tankleff then provided a possible narrative of the crime but was unable to provide any details of the crime apart from information detectives had presented during his interrogation. (14) The detective penned a confession based on this narrative which Tankleff refused to sign and immediately disavowed. (15) The statement contained details of the crime which were irreconcilable with the physical evidence. (16) Nevertheless, the statement was admitted at Tankleff's trial and became the centerpiece of the case against him. Though he remains incarcerated for the crime, post-conviction investigation has revealed strong evidence pointing to his father's business partner, Jerry Steuerman, as the likely culprit. (17) The police never investigated Steuerman, despite the fact that he had a motive to murder the victims--he owed them hundreds of thousands of dollars and had been arguing with them about this shortly before they died--and despite the fact that he staged his own suicide shortly after the Tankleff murders. (18) Police explained their failure to investigate Steuerman by saying that they "were confident they had solved the case with [Martin] Tankleff's arrest." (19) Several witnesses have since come forward and admitted that associates of Mr. Steuerman recruited them to attack the Tankleffs. (20) Martin Tankleff's motion for a new trial was denied by the trial court in Suffolk County, New York. (21)

   Courts have repeatedly held that police are free to mislead suspects about everything from the existence of physical evidence against them, to the results of polygraphs, to the statements of alleged cohorts incriminating them in the crime. The bedrock cases sanctioning police deception, however, pre-date the advent of DNA testing and the many exonerations that followed from DNA test results. (22) As the Central Park Jogger and Tankleff cases demonstrate, interrogation practices in which police misrepresent evidence against suspects can and do lead to false confessions and wrongful convictions. Examination of actual wrongful convictions and additional empirical data demonstrating the correlation between deceptive interrogation practices and false confessions provide a basis for reconsidering the line of cases that allow police to use trickery to obtain confessions. Such reconsideration is particularly critical because at the time those cases were decided, it was assumed that deceptive interrogations would not lead to false confessions.

   This Article reviews the law on deceptive interrogation practices, discusses empirical evidence of the role police deception plays in eliciting false confessions and argues that the law should circumscribe interrogation techniques that rely on misrepresentation to induce suspects into incriminating themselves. (23) This Article also asserts that there are good policy reasons, in addition to the increasing exposure of wrongful convictions, which should encourage courts and legislators to proscribe the use of deception by law enforcement in a criminal justice system expressly designed to elicit the truth about a crime. (24)

   Numerous articles have described the phenomenon of false confessions and some have examined the factors which cause people to implicate themselves in crimes they did not commit. (25) Little has been written to date, however, about the specific impact on the reliability of confessions of standard interrogation techniques including trickery and deception of suspects. Moreover, despite increasing numbers of wrongful convictions that have resulted from demonstrably false confessions, criminal justice reforms aimed at protecting the innocent have missed the opportunity to reconsider laws which allow police to trick suspects about a wide variety of subjects, including the strength and availability of incriminating evidence, in order to induce a confession. (26) This Article provides data and policy arguments in favor of adopting reforms of standard interrogation tactics in which police mislead suspects about evidence and other factors which suspects weigh heavily before deciding whether to incriminate themselves. The Article also proposes novel, specific reforms limiting the use of standard interrogation techniques and recommends challenges to confessions begotten from interrogations employing trickery.

   Part II reviews the case law affirming the use of deceptive law enforcement interrogations. In pre-Miranda cases, the Supreme Court recognized that in some circumstances, trickery during interrogations was coercive and rendered confessions inadmissible. (27) In post-Miranda cases, however, the Court has applied a "totality of the circumstances" test and indicated that, so long as the police comply with Miranda, statements obtained through deceptive interrogation practices will almost invariably be admissible. (28) So as the law stands today, trickery which does not deprive a suspect of his Miranda rights, does not by itself invalidate a confession. Part III describes and then critiques deceptive police techniques recommended in leading law enforcement training manuals. After describing these techniques, Part III examines empirical data bearing on whether these techniques are likely to produce reliable statements. Part IV argues that in light of the growing body of empirical evidence demonstrating that law enforcement trickery plays a significant role in false confessions, defense lawyers should challenge confessions made after interrogations involving police trickery, courts should circumscribe interrogation techniques which employ lies to induce a suspect to confess, and legislatures should regulate or proscribe those deceptive interrogation techniques--such as false evidence ploys--which have proven most likely to elicit false confessions. (29)

2. REVIEW OF UNITED STATES SUPREME COURT AND LOWER COURT CASES CONSIDERING THE LEGALITY OF DECEPTIVE LAW ENFORCEMENT INTERROGATION TECHNIQUES

   Prior to its 1966 decision in Miranda v. Arizona, (30) the Supreme Court, applying a due process voluntariness test, recognized, in several cases, that the police use of deceptive interrogation tactics played a significant role in producing involuntary confessions. (31) In Leyra v. Denno, (32) Leyra asked the police to allow him to see a physician because he was suffering from sinus problems. (33) The police brought in a psychiatrist who posed as a general physician. The Supreme Court held that the "subtle and suggestive" questioning by the psychiatrist amounted to a continued interrogation of the suspect without...