What can the police lie about while conducting an interrogation?


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Dear Straight Dope: I’ve noticed while watching The First 48 that the detectives occasionally lie to a witness or suspect to get information. But what I haven’t ever seen them do is lie about having witnesses who saw the person being interrogated committing the crime. Every time they told the suspect that they had a witness against him, they really did have one. So it got me thinking: can the police lie about having witnesses against you to procure information? diggleblop

Gfactor replies:

Yes, the police are allowed to tell you they’ve got a witness who saw you do it even when they don’t. But although that sort of lie is unlikely to invalidate a confession, some experts say it’s all too likely to ruin the interrogation.

Let me explain. The leading case on police trickery and deceit is Frazier v. Cupp. Here the defendant was convicted of murder based on his confession, which he’d provided after receiving a “somewhat abbreviated description of his constitutional rights” (the interrogation predated Miranda) and being told that his cousin had already admitted to the crime, which wasn’t so. The interrogating officer also offered false sympathy for the defendant, suggesting that the victim had provoked the attack by making homosexual advances. When the defendant stopped in midstory and expressed interest in getting a lawyer, the officer told him “You can’t be in any more trouble than you are in now,” and proceeded with the questioning. The defendant argued on appeal that (among other things) the confession had been involuntary and should have been excluded. But the U.S. Supreme Court brushed aside the defendant’s argument for excluding the confession, concluding that “[t]he fact that the police misrepresented the statements that [the defendant’s cousin] had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the ‘totality of the circumstances,’ and on the facts of this case we can find no error in the admission of petitioner’s confession.”

In other instances, though, the high court has seen it the other way. In Lynumn v. Illinois, the defendant, who was convicted on drug charges, was told “that state financial aid for her infant children would be cut off, and her children taken from her, if she did not ‘cooperate’”; the justices ruled that the resulting confession was “not voluntary, but coerced.” And in Spano v. New York the defendant was interrogated by a close friend of his, an officer named Bruno. Bruno, who had no prior connection to the case, was brought in specifically to question the defendant; he was instructed by superiors to tell the defendant, untruthfully, that a phone call that the defendant had made to him had gotten him “in a lot of trouble” and to “extract sympathy from [the defendant] for Bruno’s pregnant wife and three children.” The court found that the defendant’s subsequent confession to murder was the result of a will “overborne by official pressure, fatigue and sympathy falsely aroused.”

Attempting to reconcile such rulings, state courts and lower federal courts have come to draw a distinction between two kinds of lying to suspects: intrinsic misrepresentations, or those lies that relate to a suspect’s connection to the crime; and extrinsic misrepresentations, or those that have nothing to do with the suspect’s connection to the crime but attempt to distort his ability to make a rational choice about confessing. One of the leading cases recognizing this distinction is Holland v. McGinnis, decided in 1992 by the Seventh Circuit Court of Appeals. That case affirmed the admission of a confession obtained after investigators falsely told the defendant, Holland, that they “had received a Chicago police report indicating that a witness had seen Holland’s vehicle in the alley where the victim had been raped, and that Holland would have to explain why his vehicle was there.” The Court reasoned:

Such misrepresentations, of course, may cause a suspect to confess, but causation alone does not constitute coercion; if it did, all confessions following interrogations would be involuntary because it can almost always be said that the interrogation caused the confession. Miller v. Fenton, 796 F.2d 598, 605 (3d Cir.), cert. denied, 479 U.S. 989 (1986). Thus, the issue is not causation, but the degree of improper coercion, and in this instance the degree was slight. Inflating evidence of Holland’s guilt interfered little, if at all, with his free and deliberate choice of whether to confess, Moran v. Burbine, 475 U.S. 412, 421, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986), for it did not lead him to consider anything beyond his own beliefs regarding his actual guilt or innocence, his moral sense of right and wrong, and his judgment regarding the likelihood that the police had garnered enough valid evidence linking him to the crime. In other words, the deception did not interject the type of extrinsic considerations that would overcome Holland’s will by distorting an otherwise rational choice of whether to confess or remain silent.

In a 1993 ruling, the Hawaii Supreme Court collected some examples of intrinsic and extrinsic misrepresentations:

Intrinsic misrepresentations (usually not coercive)

1. Placement of the defendant’s vehicle at the crime scene.

2. Physical evidence linked to the victim found in the defendant’s car.

3. Discovery of the murder weapon.

4. A claim that the murder victim is still alive.

5. Presence of the defendant’s fingerprints on the getaway car or at the crime scene.

6. Positive identification of the defendant by reliable witnesses.

7. Discovery of a nonexistent witness.

Extrinsic misrepresentations (more likely to be coercive)

1. Assurances of divine salvation upon confession.

2. Promises of mental health treatment in exchange for a confession.

3. Assurances of treatment in a “nice hospital” (in which the defendant could have his personal belongings and be visited by his girlfriend) in lieu of incarceration, in exchange for a confession.

4. Promises of more favorable treatment in the event of a confession.

5. Misrepresentations of legal principles, such as (a) suggesting that the defendant would have the burden of convincing a judge and jury at trial that he was “perfectly innocent” and had nothing to do with the offense, (b) misrepresenting the consequences of a “habitual offender” conviction, and (c) holding out that the defendant’s confession cannot be used against him at trial.

6. Misrepresentations by an interrogating police officer, who is a close friend of the defendant, that the defendant’s failure to confess will get the officer into trouble with his superiors and jeopardize the well-being of the officer’s pregnant wife and children.

The fact that an interrogation technique is legal, however, doesn’t necessarily mean it is effective. In an article posted on the Web site Policelink.com, the interrogation training firm of John E. Reid & Associates points out that the risk of using intrinsic deception with a suspect is that the suspect might get wise and come to disbelieve the interrogator generally: “Once the investigator loses the suspect’s trust, the suspect may dismiss the investigator’s apparent confidence in his guilt, question the investigator’s sympathetic demeanor, and challenge the entire pretense for the interrogation. In other words, the suspect may realize that the investigator is only interested in obtaining evidence to be used in an effort to punish him for his crime.”

There are a few other forms of police misrepresentation that might render a confession invalid. First, the defense of entrapment by estoppel may apply if a government official falsely tells a suspect that certain illegal conduct is in fact legal and the suspect, believing the official, goes ahead and does it. Second, while at least one court has approved the admission of evidence obtained by an officer posing as a witness to the crime who is trying to blackmail the defendant, experts suggest that an undercover officer who poses as a member of the clergy or a defense lawyer would be crossing the line. And some courts have suggested that they would exclude statements made by a suspect who provided self-incriminating information while relying on a police officer’s promise of immunity – which typically isn’t in the police’s power to grant.

Gfactor, Straight Dope Science Advisory Board

Send questions to Cecil via cecil@straightdope.com.