An Update on the Use of Deceptive Practices During Interrogation
The landmark US Supreme Court decision addressing deceptive practices during an interrogation is Frazier v. Cupp (1969). In Frazier, the Court upheld a confession from a homicide suspect who was falsely told that an accomplice had implicated the suspect in the crime. The Court ruled that deceptive practices should be evaluated based on the "totality of circumstances" and should not "Shock the conscience of the court or community." Examples of deceptive interrogation practices that shock the conscience include the investigator posing as the suspect's court appointed defense attorney and eliciting a confession under the guise of attorney-client privilege, or telling the suspect that the state legislature recently reduced first degree murder to a misdemeanor.

Over the past 45 years the laws involving deceptive practices have evolved considerably. In 1989 a creative investigator fabricated a crime lab report indicating that the suspect's DNA was found on the body of the victim. 1 This tactic resulted in a confession which was suppressed. The case established a second guideline for deceptive practices which differentiates between false verbal assertions, which are generally permissible, and fabricated evidence, which is not permissible. The rationale for excluding the suspect's confession was not that such a tactic would cause an innocent suspect to confess but rather, the concern that manufactured evidence may erode the integrity of the evidential system and be used to obtain a search or arrest warrant or even be presented at trial.

Four years later a sexual assault case from Hawaii offered further clarification on deceptive practices. 2 In Kelekolio, the defendant's confession was upheld, even though the police falsely told the suspect that a medical examination indicated that the victim had suffered from forced sexual relations. This was considered a permissible intrinsic lie (involving facts of the case) as opposed to an extrinsic lie involving facts outside of the case. To appreciate the distinction between intrinsic and extrinsic lies, consider Kohland v. State (2013) in which the Iowa Court of Appeals suppressed a confession because the investigator falsely told the suspect that "people who were honest with the police would be helped differently than those who lied about their guilt." The court considered this extrinsic lie to transmit an impermissible promise of leniency. Similarly, in People v. Travis (2013) the Appellate Court of Illinois considered the investigator's false statement to the juvenile suspect, "everybody gets a clean slate when they turn 17" to constitute an extrinsic lie that promised leniency and, consequently, the confession was suppressed.

A recent New York Court of Appeal's decision introduced a new legal concept relating to deceptive interrogation practices that could be termed "coercive deception."3 Adrian Thomas was suspected of causing head trauma that resulted in his infant son's death. The cause of death could be consistent with either intentional physical head trauma or naturally occurring sepsis. The police believed that it was the former and interrogated the suspect on two separate occasions.

During the video-taped interrogations the court noted that investigators made the following false statements:

• The suspect was falsley threatened that if he didn't confess to causing the injury, the police would charge his wife with the abuse (there was no probable cause to charge the wife);
  
• Even though the child was already brain dead at the time of the interrogation, the police told Thomas 21 times that the only way doctors could save the life of his son is if he explained what he did to injure his son;
  
• Thomas was told 14 times that he wouldn't be arrested if this was an accident and,
  
• On 8 occasions Thomas was told that he would be going home.

Four hours into his second interrogation Thomas acknowledged dropping the boy 5 or 6 inches onto a pillow within the crib which (upon suggestion by the interrogator) may have resulted in a head injury. This "confession" was sufficient to find him guilty at trial, and the court sentenced Thomas to 25 years in prison.

Applying the previously mentioned legal standards, it is apparent that during these interrogations investigators clearly crossed the legal line of deceptive practices. They certainly offered an implied promise of leniency by repeatedly telling the suspect that if he confessed to accidentally injuring the child he would not be arrested and could go home. The false threat to arrest the suspect's wife if the suspect did not confess clearly represents a threat of inevitable consequence. Falsely telling the suspect that his confession could save the life of his (already brain-dead) son would be considered by many courts as shocking the conscience of the court and community.

The New York Appellate Court agreed and released Thomas. In doing so the Court introduced a new legal theory relating to an investigator's use of deception during an interrogation. The New York highest court was concerned that the "extreme forms of deception" in the Thomas case "completely undermined" the suspect's right to remain silent and not incriminate himself. In other words, the investigator's egregious use of deception may have violated the suspect's constitutional rights.

Historically, improper use of deceptive practices during an interrogation have resulted in suppressed evidence or an overturned verdict. For the first time, however, the Thomas case introduces the possibility that an agency or individual investigator may be exposed to civil liability if it is found that deceptive practices undermined a suspect's constitutional rights. 4

Successful interrogations rely extensively on implication and innuendo. Deceptive tactics are often necessary to learn the truth from guilty suspects. The prevalence of this necessity is apparent when considering the numerous legal decisions relating to its use. Ever since the 1969 Frazier decision it has been a hot topic of debate among legal scholars, psychologists and researchers. In the Thomas case defense counsel expressed a desire for the court to expand the restrictions of deceptive practices beyond current case law and entirely, "curtail the use of deception by police interrogators."

As investigators we have full control of the tactics utilized during our interrogations. Therefore, we are in a position to preserve the right to use deceptive practices responsibly during an interrogation or to abuse that right and potentially lose the future ability to misrepresent information to a suspect. In an effort to maintain appropriate use of this interrogation tactic, John Reid and Associates offers the following guidelines to investigators:

1. Lying to a suspect about incriminating evidence has almost always been upheld, e.g., having an eye witness, DNA match, fingerprints, surveillance video, gun powder residue, accomplice statement, etc. This includes forensic tests that do not actually exist such as laser imprinting that identifies which fingerprint was most recently left on an object or a neutron positron analysis which indicates that the suspect was in close proximity to the victim at the time of her death.
   
   
2. Be cautious not to overplay your hand by repeating the lie many times. In the Thomas case, for example, attorneys were able to quantify various interrogation tactics by studying the video tapes. In addition to the previously mentioned numbers, they reported that investigators suggested to Thomas on 67 occasions that he accidentally caused the injury to his child. This issue also points to the problem of prolonged, or inefficient interrogations (stepping in and out of the interrogation room). It is our recommendation that if a suspect is still maintaining his innocence after three or four hours of interrogation that the suspect's status be reevaluated.
   
   
3. Do not manufacture fictitious evidence against a suspect, e.g., creating an evidence card using the suspect's fingerprints and falsely identifying the print as one recovered from the crime scene or creating a staged audio tape where one party offers false testimony implicating the suspect in a crime.
   
   
4. Do not deceive a suspect with respect to possible leniency e.g. "If you cooperate and tell the truth I won't arrest you - you can sleep in your own bed tonight."
   
   
5. Do not use deception to threaten inevitable consequences. In a different case the New York Court of Appeals upheld an overturned negligent homicide conviction because the defendant was falsely told that he would be charged with homicide if his continued silence led to his girlfriend's heroin death. After this threat was made the suspect acknowledged injecting his girlfriend with heroin. In truth, the girlfriend had already died. The court concluded that "police implicitly threatened [the suspect] with a homicide charge" if he did not confess.5

1 State v. Cayward 552 S. 2d 671 FL (1989)
2 State v. Kelekolio 849 P. 2d 58 HI (1993)
3 People v. Thomas (New York Appellate Court Feb., 2014)
4 As an example of civil liability associated with depriving a suspect of constitutional rights see Cooper v. Dupnik 963 F. 2s 1220 9th Cir. (1992)
5 State v. Aveni (New York Appellate Court Feb., 2014)