We have all seen scenes like this one play out on TV shows like Law and Order: a suspect is taken into an interrogation room and a police officer or two tries to elicit a confession from the suspect. The suspect is uncooperative, so the officers begin to rely on deceptions, lies, and other trickery. Maybe something like: we found some fingerprints, and we are running them right now, and we know they are going to match, so you might as well confess before that happens and pray that gets you some leniency. Courts have generally held that confessions obtained because of deception can be used as evidence. However, on February 20, 2014, the New York Court of Appeals ruled unanimously that the deception can only go so far, drawing a line between police tactics that are tolerable and the ones that move into coercive territory.
The appellate court vacated the murder conviction in the case of Adrian Thomas and remanded the case back to the trial court. The thirty-one year old man was convicted of the murder of his infant son who died from a head injury and infection back in 2008.
Writing the opinion, Chief Judge Jonathan Lippman described the tactics of the police as evolving from mere lies to "a set of highly coercive deceptions." Thomas was interrogated for more than nine hours, and involuntarily hospitalized after he began considering suicide. Thomas was immediately interrogated again once he was released from the hospital. During this interrogation, Thomas was told over sixty times that what happened to the child must have been an accident, twenty one times that a confession would be essential in assisting the attempt to save the child’s life, fourteen times that he would not be arrested if he confessed, and eight times that if he confessed he would be going home. Officers also told Thomas that if he did not confess, they would have to take his wife away from his dying son’s bedside and put her under arrest. The court found that “[h]ad there been only a few such deceptive assurances, perhaps they might be deemed insufficient to raise a question as to whether the defendant's confession had been obtained in violation of due process," but the sheer number and scale of the deceptions led the court to believe that these misrepresentations were instrumental in extracting the confession, and they "completely undermined" Mr. Thomas' right to remain silent and not incriminate himself.
In Washington, D.C., the police are given wide latitude in conducting interrogations. For example In re D.A.S., two officers took fingerprints from a suspect, and then told the suspect that his fingerprints matched those found in the victim’s checkbook even though no fingerprints were actually recovered from the checkbook. In Contee v. United States, the court approved a confession elicited after the police tricked the defendant by indicating to the defendant that through the use of a computer voice stress analyzer (CVSA) test they conclusively knew what the defendant was saying was false. However, similar to what happened in Thomas’s case, in Brisbon v. United States, the court contemplated whether the defendant’s confession was not voluntary because the officers' deception may have “cross[ed] the line beyond the type of tactics vel non that a court will tolerate because they ‘are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause. . . . ’” The court noted that it generally has condemned deceptions that threaten adverse consequences to family members if the suspect does not confess. However, in Brisbon the court did not find it necessary to decide whether the confession was voluntary because even if it was not, the error of admitting it was harmless.
The general standard regarding police trickery in D.C. is stated in In re D.A.S., where the court said that “[c]onfessions generally are not vitiated when they are obtained by deception or trickery, as long as the means employed are not calculated to produce an untrue statement.” New Rensselaer County Acting District Attorney Art Glass, the DA who is preparing to retry Mr. Thomas, does not think that the Court’s decision will hinder the efforts of police to obtain confessions. Rather, he thinks “it's a wake-up call for investigators to be much more cautious in interrogation techniques . . . and in the types of deceit and trickery they use, permissibly." In short, cases like the Thomas case should remind police that while you can lie, don’t lie too much.
If you believe there is some defect in the voluntariness of a confession, you can file a pretrial suppression motion. After the motion is filed, the burden is on the government to prove that the alleged confession was given freely. Voluntariness must be proven by a preponderance of the evidence. Generally, the factors that will be considered in this determination include “[(1)] the circumstances surrounding the questioning, [(2)] the accused's age, education, and prior experiences with the law, [(3)] his physical and mental condition at the time the statement was made, [(4)] other factors showing coercion or trickery, and [(5)] the delay between the suspect's arrest and the confession. If the pretrial motion fails, you can renew the motion to suppress the confession when the interrogating officer begins to testify about the confession. Suppression arguments are usually an uphill battle, but it does not hurt to shine a bright light on all the tactics employed by police to ensure that your client does not end up like Mr. Thomas.
Senior Editor, Criminal Law Practitioner
 For a more in-depth look at the circumstances leading up to this case, check out a previous blog post by Raleigh Mark from October 2013: "Scenes of a Crime": A Documentary Surrounding the Adrian Thomas Case and a Look at False Confession Experts.
 See Davis v. United States, 724 A.2d 1163, 1167-68 (D.C. 1998)
 See Lego v. Twomey, 404 U.S. 477, 489 (1972).
 See Davis at 1167-68.