Crime, Police

Criminally Yours: Lying To Get To The Truth

Why would someone ever admit to a crime he didn't commit? How could anyone be so naive or stupid? But not only does it happen, it happens more frequently than you would imagine. Why?

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A hot topic in criminal law is “false confessions.” Why would someone ever admit to a crime he didn’t commit? How could anyone be so naive or stupid?

But not only does it happen, it happens more frequently than you would imagine. Why?

In large part because it’s legal for police to tell suspects the boldest lies in order to wrangle a confession from them. Among the most common lies are:

– “We’ve got you on video doing the crime, so you might as well admit it.”

– “This is only a small case, just say you did it and you’ll get a drug program.”

And the most powerful:

– “Just tell us you did it and you can go home.” How any perp with a sheet as long as his arm could believe this always astounds me, but many, addled by drugs, alcohol, or mental disease, do. They’re easy pickings for the cop.

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Some confess truthfully, but some say whatever it takes just to go home.

The reaction of many when I tell them a confession pretty much dooms their case is: “But that isn’t fair. The police lied to me. They aren’t allowed to lie.”

Yes, they are.

The standard in determining whether a confession is voluntary or coerced is not whether police lied, but whether the coercion was physically egregious — think water boarding — or whether it was merely psychological. The psychological type is, for the most part, allowed and more dangerous because it’s so subtle. Basically, the cops can promise you anything; they just can’t beat you.

The only way psychological gamesmanship might be disapproved by the court is if it’s so egregious as to offend “the notion of fundamental fairness.” But boy, is that a big hurdle.

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Take the case of Matthew Thomas. Police lied to him in a manner so egregious, even John McCain would have cracked. Thomas was accused of killing his four-month-old son. After being interrogated for more than nine hours, he was told that if he didn’t admit to doing the crime, his wife would be arrested for it and dragged from the baby’s hospital bedside because “one of them had to have done it.” They told him the baby was still alive, and that his information would save the child’s life. Another lie — the baby was already dead. They told him they were sure it was an accident, and if he just admitted it, he could go home. Right.

The trial judge found that the confession was not only voluntary, but that defense counsel had no right to put on an expert in police interrogation techniques to speak about the phenomenon of false confessions.

Police fed Thomas information about how they believed the death occurred then prodded him to parrot it back.

He was convicted but, thankfully, the case was recently overturned on appeal due to the involuntary confession.

While I understand why police and prosecutors love to get confessions — it makes their burden of proof a lot easier and closes a lot of cases — simple precautions should be taken to guarantee false confession don’t surface.

First, police shouldn’t be allowed to lie. They’ve got too much power. The suspect is clearly in a vulnerable position and often would say anything with a promise of sleeping in his own bed that night.

Next, all confessions, even the preliminary part when police are just warming up the suspect and feeling out his vulnerabilities, playing good cop/bad cop, should be videotaped. As it is now, the detectives soften up the suspect by making promises, and only after they’ve gotten him to make admissions do they contact the ADA to set up a videotaped chat between them. All that preliminary stuff — the cajoling, the needling, the false promises, the representations that they’ve got him on video when they don’t, or that his best friend said he did it when he didn’t, is never on tape. And most cops won’t admit to what false promises they made on the stand.

What is on tape is the just the aftermath — the surgically clean chat that shows a well-dressed prosecutor speaking calmly with the suspect who’s just waived his Miranda rights and is ready to spill his guts, true or false.

This setup is rife with problems. Even if the confession is real, no one should be lured into giving up their Fifth Amendment rights through trickery. According to the court in the Thomas case, “These kinds of methods using outright deception or other psychological stratagems can clearly eclipse individual will, both as they bear upon the means employed and the vulnerability of the declarant.” People v. Thomas, 26 N.Y. 3d 629, 2014.

Most people say they would never confess to a crime they didn’t commit, and it’s still very tough to get a jury to believe that’s what happened. But until you walk a mile in those shoes — subjected to the fear and deprivation of liberty implicit in interrogation scenarios — it’s hard to predict how you’d respond.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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