Blue Lies: Cops, Confessions, and the Constitution

Some police manuals suggest lying to suspects during interrogations is a useful law enforcement tool. But it can trap the innocent as well as the guilty, argues a professor at Israel’s College of Law and Business.

Lying is generally perceived as reprehensible. But lying to suspects during police interrogations is considered a necessary evil—a useful law enforcement tool—and is even dubbed by some an “art.”

Some police training manuals[i] suggest that lying to suspects concerning the incriminating evidence against them, such as telling them falsely that an accomplice incriminated them, or that forensic evidence suggesting their guilt was found at the scene of the crime, is a recommended tactic. It’s often justified by the old adage, “it takes a liar to catch a liar.”

In fact, the tactic violates essential rights guaranteed under the Constitution—rights that were upheld and interpreted under the Miranda Rule, named for the 1966 Supreme Court ruling in Miranda v Arizona that has governed US police procedure for the past half-century and required police to protect suspects from incriminating themselves by telling them they have the right to remain silent, and to have a lawyer present.

So far, the Court has not seen in that way. Rulings in Frazier v. Cupp and Oregon v. Mathiason have implicitly legitimized such lies.

Nevertheless, it’s time to take a closer look. Apart from moral arguments militating against the creation of a “culture of lies,” and a double standard under which police officers are allowed to lie but suspects are not, police lying creates a tangible risk of the incrimination of innocent individuals.

A study on the “Ethics of Deceptive Interrogation,” by Richard Leo, was one of several that have demonstrated that the strength of real or perceived incriminating evidence is a central factor in the decision to confess.

Why should innocent suspects confess in the face of incriminating evidence?

Manipulating Memories

First, memories can be manipulated and contaminated. Innocent suspects, who are not aware of whether there is “incriminating” evidence against them, experience the undermining of reality and may believe they suppressed committing the offense.

Second, innocent suspects may become persuaded that their claims of innocence are fruitless, persuading them to confess out of despair or the belief that it may somehow reduce police pressure on them and lessen their punishment at trial.

Laboratory studies have shown that lies concerning incriminating evidence increase the risk of false confessions and internalization of imagined guilt. Thus, for example, in a study conducted by Robert A. Nash and Kimberly A. Wade, participants in a computerized gambling experiment were asked to return counterfeit money to the bank after providing a wrong answer, and to take counterfeit money from the bank after providing a correct answer.

After exposure to fake video which suggested they took money from the bank, all the participants admitted guilt when accused of cheating on one occasion, and 93 percent continued to admit guilt even when accused of cheating three times.

This result is not surprising. The very presentation of false evidence constitutes both a threat and a concealed temptation. It conveys a message to suspects that they will be convicted in any case, without gaining the benefit resulting from their collaboration in lessening their punishment.

Besides, interrogation, in the course of which the accusation is hurled at the suspect again and again, is a traumatic experience. The mere ending of the interrogation after confession is an immediate benefit. Every suspect understands this, even without a banner hanging in the interrogation room, as in China, stating “better treatment for confessing and worse treatment for resisting.”

Actually, every lie may lead to emotional breakdown or to the belief that conviction is inevitable and that even fake video, manufactured fingerprints or DNA samples are unequivocal proof of guilt. False statements by eyewitnesses led the five suspects in the 1989 Central Park Jogger case to falsely confess about causing grievous bodily harm and committing rape.

The ‘Neutral Lie’

Moreover, even a “neutral” lie, which does not implicate the suspect, such as an equivocation about fingerprints found at the scene, without explicitly stating the fingerprints belong to the suspects, may propel, counter-intuitively, false confessions.

Saul M. Kassin, a professor of psychology at John Jay College of Criminal Justice, provides examples of innocent suspects who confessed to murder after hours of interrogation, and after being told that a DNA sample had been taken from the scene, out of certainty that the DNA test would prove their innocence.

In a laboratory study conducted by Jennifer T. Perillo and Saul M. Kassin, approximately 27 percent of the innocent participants admitted having cheated during an examination. All the confessors admitted after being told that a camera placed in an adjacent room had filmed the course of the examination, and that a video technician would retrieve the data from the hard disk in a few hours. Most of the confessors assumed that their innocence would soon become apparent anyway.

The trust they demonstrate in clearing their name is compatible with a more general phenomenon of innocent suspects who mistakenly do not treat an out-of-court confession as significant.

The studies mentioned above show that the lie’s net catches a considerable number of innocent individuals.

If intelligent participants in these laboratory studies admitted so easily to have cheated, one can only imagine the potential effect of lies during the pressures of police interrogations, and let alone during custodial interrogations, on suspects’ inclination to confess.

From this it’s hard not to conclude that lies harm suspects’ ability to make decisions by distorting the information at their disposal and by changing their cost-benefit evaluation of a confession.

Silence is a Defense Strategy 

Silence in the face of weak evidence is a reasonable defense strategy given that innocent suspects might implicate themselves if they choose to make a statement because of their proximity to the event or because of forgetfulness, lack of concentration, and stress. In contrast, when suspects are “persuaded” that the incriminating evidence against them is strong, abandoning silence can be a logical step, based on the assumption that without providing their own version of events to counter the evidence there is no chance of avoiding being brought to justice.

Rinat Kitai-Sangero

Rinat Kitai-Sangero

Although interrogators are under no obligation to disclose incriminating evidence to suspects, police interrogators’ falsehoods not only deprive suspects of the possibility of addressing the true incriminating evidence, but also force them to shape a defense to rebut fake evidence, and push them to conclude there is no point in denying guilt or maintaining silence.

The constitutional protections of Miranda ought to extend the bar to the use of lies concerning incriminating evidence against suspects. Such lies clearly violate the Fifth Amendment right to remain silent.

Rinat Kitai-Sangero is a professor at the College of Law & Business, Israel, where she teaches criminal procedure and criminal law. This op-ed article is based on “Extending Miranda: Prohibition on Police Lies Regarding the Incriminating Evidence”, which was published in 54 San Diego Law review 611 (2017).

[i] Meghan Morris, The Decision Zone: The New Stage of Interrogation Created by Berghuis v. Thompkins, 39 Am. J. Crim. L. 271 (2012) (referring in footnote 101 to Fred E. Inbau et al., Criminal Interrogation and Confessions 290-292 (4th ed. 2004) and to Charles E. O’hara & Gregory L. O’hara, Fundamentals of Criminal Investigation 142-44 (6th ed. 1994)


The Simple Way to Prevent False Confessions

If a lawyer were present at all police interrogations–including of children under 15—prosecutors could avoid scandals like the 15 men exonerated in Chicago this month on the grounds of false confessions, says a juvenile justice advocate.

This month, Cook County prosecutors in Chicago dropped charges against 15 men, and two others claiming innocence won a new trial—all based on false confessions.

Even for Chicago, the so-called “false confession capitol of the nation,” this was extraordinary. The Chicago Tribune called it the largest mass exoneration in Cook County history.

Cook County Prosecutor Kimberly Foxx did no more than her duty.

When I was an indigent appellate defender in the northern part of Illinois in the 1980s, prosecutors routinely confessed error and/or dropped charges to correct a miscarriage of justice.

The role of the prosecutor is not to convict, but to seek justice. Justice is based on fairness, which means ensuring that the rights of all are protected throughout the process. Coerced confessions have no role in a just system—prosecutors fulfill their ethical duty in correcting such injustice.

According to the National Registry of Exonerations, Illinois has a false confession rate more than three times higher than the national average—and nearly one in four of the false confession cases in Illinois come from Cook County. Millions are spent in settlements in false confession cases, and the lives of innocent people and their families are forever altered, if not ruined.

And, of course, when the wrong person is convicted, then the actual offender is still at large, so the public is left at risk.

There is a simple answer to prevent false confessions, one urged by the U.S. Supreme Court more than 50 years ago in Miranda: Just give everyone a lawyer throughout interrogation.

Shockingly, an examination by the Police Accountability Task Force of arrests in Chicago in 2014 and 2015 found that less than one percent of all arrestees–adult and juvenile–had the assistance of a lawyer at any point during interrogation.

So police in Chicago are interrogating children—and adults—without the protection of a lawyer in nearly every case.

See also: Third Degree Lite: The Abuse of Confessions

There have been movements to expand access to counsel. Last Spring, the Cook County Chief Judge issued an order appointing the public defender to be available to represent children and adults during police interrogation, so that persons arrested in Cook County would have access to a lawyer without charge.

Also, the Chicago Police Department agreed to comply with an Illinois statute that requires all police to post a sign with information on the right to legal assistance during interrogation.

In addition, troubled by the lack of legal assistance for children during interrogation, the Illinois Legislature unanimously approved a reform requiring lawyers throughout interrogation for children under the age of 15 in serious cases, and required the videotaping of all felony interrogations of all children.

The bill was watered down from the original proposal to provide lawyers to all children under age 18. Opposition to the original proposal came from law enforcement.

The first argument from law enforcement was that there would not be enough lawyers—that it would be too hard to find a lawyer during off hours. If this is an acceptable argument, we should be honest and revise the Miranda warning to tell arrestees that they have a right to a lawyer but that one will only be provided to them from 9-5 on Monday through Friday.

The second argument is that it is too expensive to provide lawyers 24/7.

Having a public defender on call 24/7 is certainly a cost to the public, but so is the cost of paying police, sheriffs, county jail staff, and county detention staff 24/7. So if we agree to pay the cost of all these law enforcement staff 24/7, then why can’t we have also pay for a lawyer to be on call 24/7?

After all, if a person is coerced into a confession, then as a society we pay substantial costs in prosecution, decades of incarceration and eventually in false confession settlements. Surely the meager cost of an on-call lawyer is far less than the extraordinary incarceration and exoneration costs to taxpayers.

Another argument is that police will never solve cases if lawyers are present because suspects will not talk. But in England, where the law has required lawyers for decades, research clarifies this is not the case—arrestees are just as likely to give statements with lawyers present.

An arrestee with an alibi is just as likely to give the alibi with a lawyer present. The difference is that the statement is more likely to be reliable.

Further, as the report by the Police Accountability Task Force documents, the practice of excluding lawyers and coercing confessions has a chilling impact on community relations. Police therefore find it harder to get community cooperation in solving crimes.

Community cooperation, based on community trust that police will treat everyone fairly, is much more critical in solving crimes than individual statements, especially those made without legal protection. Finally, confessions alone are not the only way to prove a connection to an offense. Police have a wide variety of tools.

Elizabeth Clarke

Elizabeth Clarke

Lawyers are essential. Police agree—and police contracts contain numerous protections including access to a lawyer and limits on custodial interrogation to protect the rights of police during questioning and withstand complaints about their conduct.

The sad litany of exonerations based on false confessions illustrates that all arrestees need the protection of a lawyer. It is time for Illinois to follow the recommendations of the Police Accountability Task Force and ensure that all persons have a lawyer during interrogation, especially children.

Elizabeth Clarke is founder and president of the Juvenile Justice Initiative. She welcomes comments from readers.


Third Degree Lite: The Abuse of Confessions

The “Reid Interrogation Method” was developed in the mid-20th century to eliminate abuses in police interrogations. But it hasn’t eliminated concerns about false confessions and should be shelved, writes a University of Virginia law researcher.

This year 20 million viewers of Making a Murderer had ring-side seats to the interrogation of Brendan Dassey. The video is a play-by-play of how to extract a confession using what is known as the Reid Method.

This interrogation technique is employed by virtually every law enforcement agency in North America. Over the past half-century, hundreds of thousands of officers have been trained to use it. The point of the Reid Method is not to gather information that will help solve the crime; it is to obtain a confession from a suspect that the police have decided is guilty.

To that end, the detectives bullied and cajoled their 17-year old, 73-IQ suspect, all the while feeding him information about the case, which Dassey compliantly regurgitated. These were not overzealous, rule-breaking detectives. They were following protocol.

As Justice White put it, “A confession is like no other evidence.” It’s a shortcut to a conviction, a complete reversal of the presumption of innocence. Until the mid-20th century, the Third Degree was the dominant method of interrogation. The police would beat a suspect until he confessed and lie about it in court.

They got away with it because judges looked the other way.

Then, in 1931, a commission appointed by President Hoover to investigate Prohibition-related corruption, issued the Wickersham Report, which documented the ubiquitous use of the Third Degree. The report, popularized in a widely-read book, shocked the American public.

The Third Degree had to be abandoned when juries started rejecting confessions and doubting police witnesses. This left police without an effective method of extracting confessions. Into this void stepped John Reid, who obtained convictions in several high-profile cases, including that of Darrell Parker in 1955. Reid touted his technique as a reliable way of obtaining confessions without physical abuse.

The Reid Method embodies the spirit of the Third Degree. It seeks to overcome the suspect’s will by deploying coercive psychological tactics, many of them on display during the Dassey interrogation: magnifying his feelings of helplessness by isolating him for extended periods; lying that there’s overwhelming evidence against him, or that he flunked a lie detector test; minimizing the seriousness of the crime and suggesting, falsely, that he’ll suffer minimal punishment if he fesses up.

The problem is that, like the Third Degree, the Reid Method coerces confessions from the innocent as well as the guilty. There are many proven false confessors: The Central Park Five, Norfolk Four, Beatrice Six, Jeffrey Deskovic, and countless others.

As of 2004, Professors Steven Drizin and Richard Leo had identified 125 such cases. (An update is currently being compiled.)

Sometimes, innocent defendants even come to believe in their own guilt. These are not isolated incidents. Because the Reid Method employs such brute psychological tactics, these are foreseeable, even expected, results.

Poster advertising Ken Burns’ film. Photo via Wikipedia

Reid & Associates, a private organization found to train police officers in the Reid Method, claims that false confessions result only from abusing the method. But Darrell Parker, who was interrogated by Reid himself, was found factually innocent and exonerated 50 years later.

Moreover, the Reid Method’s tactics are inherently subject to abuse. For example, it is common for interrogators to feed suspects details known only by investigators and the perpetrator. At trial, prosecutors then argue that the confession must be genuine because it contains details that only to the culprit would know.

In Dassey’s case, Prof. Leo found that approximately half of the 17 corroborating pieces of evidence claimed by the prosecution were prompted by interrogators. The Dassey District Court recounts many of these, the most remarkable of which concerns the shooting.

The detectives work hard to get Dassey to volunteer that the victim was shot in the head, but come up short again and again. Finally, an exasperated detective says: “I’m just going to come out and ask you—who shot her in the head?”

Dassey responds that Avery did and, in doing so, incriminates himself.

In Miranda v. Arizona, the Supreme Court identified the Reid Method as an engine for stripping suspects of their Fifth and Sixth Amendment rights. The Court designed the Miranda warnings to give people the keys to the interrogation room door, but in reality, very few effectively exercise their Miranda rights.

Innocent people are particularly unlikely to invoke Miranda, naïvely believing that the truth will set them free. Miranda also creates the presumption that the confession is voluntary, making it next-to-impossible to prove it’s coerced. False confessions, time and time again, prove themselves so powerful that they convict innocent defendants even in the face of exculpating DNA evidence.

Fortunately, scientifically grounded methods are cropping up, such as PEACE, used with success in England, and HIG, developed by the CIA to interrogate suspected terrorists after the public backlash against waterboarding. LAPD has piloted the HIG method with promising resultsWicklander-Zulawski & Associates, one of the largest police training organizations, publicly denounced the Reid Method after having taught it for over three decades.

Americans have great faith in their justice system—law enforcement in particular. But they react forcefully when that trust is betrayed.

The Wickersham Report’s outing of the Third Degree led to its abandonment. When the abuses at Abu Ghraib and Guantanamo became public, law enforcement had to find other methods of interrogating suspected terrorists. Documented police abuses are forcing change in the way police patrol many urban areas.

If the public were to become aware of psychological torment inflicted on criminal suspects using the current Reid Method, many of them innocent, they would force law enforcement to adopt new methods of interrogation that do not trample on constitutional rights.

America is waking up. It’s time for another Wickersham Commission to investigate the uses and abuses of the Reid Method by federal, state and local law enforcement authorities—some 20,000 nationwide. Wickersham II should include representatives of all interested parties—police, prosecutors, defense attorneys, criminal justice scholars and, most importantly, exonerated false confessors who can report first-hand how they came to inculpate themselves in heinous crimes they did not commit.

Wyatt Kozinski

If the Reid Method can withstand the tsunami of criticism compiled in my paper, then it will be validated as a useful law enforcement tool. I believe, however, that the Reid Method will be shown for what it really is: The Third Degree of the psyche.

Wyatt Kozinski is a student at the University of Virginia Law School. He has an undergraduate degree in Cognitive Psychology from the University of California at Irvine. He welcomes comments from readers, and can be reached on Twitter. @WyattKozinski


Nebraska Town Won’t Let Go of False Memory of Murder

The “Beatrice Six” were coaxed into false-memory confessions for a 1985 rape and murder. They served up to 19 years in prison before DNA testing showed that the victim had been attacked by a teenager who lived in her building.

The New Yorker examines a perplexing criminal prosecution 30 years ago in Beatrice, Neb., that concluded with six people confessing to a 1985 rape and murder that they did not commit. Each of the “Beatrice Six” served prison terms before they were exonerated when DNA testing of blood and semen showed that the victim, Helen Wilson, 68, had been attacked by a teenager who lived in her building. He was not among the six and had never been a suspect in the case. (He had died of AIDS by the time he was implicated.)

A local psychologist, Wayne Price, was largely responsible for drawing false-memory confessions out of the six, who were uneducated down-and-outers. They were implicated by a young hog farmer, Burdette Searcey, a former local cop who made it his mission to solve the Wilson murder. He cobbled together the six suspects to fit his narrative and the physical evidence. They were pardoned after serving as many as 19 years in prison when DNA evidence identified the killer in 2009. Yet in the minds of many Beatrice residents, the six are still guilty. The local county sheriff, Millard Gustafson, says, “The six had to know something about it, or had to have been there—that’s the sense that the public has.”  And Searcey considers himself a hero. “We’ve got a-hundred-per-cent backing from the public in Beatrice,” he says. “I am loved by my people in this community.”


The Anthony Baye Arson-Murder Case

     Between December 27, 2009 and January 4, 2010, an arsonist in Northhamton, Massachusetts torched more than 40 homes. It was the biggest crime spree in the history of the town. One of the Ward 3 neighborhood fires took the lives of 8…

     Between December 27, 2009 and January 4, 2010, an arsonist in Northhamton, Massachusetts torched more than 40 homes. It was the biggest crime spree in the history of the town. One of the Ward 3 neighborhood fires took the lives of 81-year-old Paul Yeskie and his son Paul, Jr. who was 39. Police officers patrolling Ward 3 during the early morning hours on four of the arson-pleagued nights, pulled over a vehicle driven by 26-year-old Anthony P. Baye. These investigative stops did not result in Baye's arrest.

     Anthony Baye was brought in for questioning on January 4, 2010 by Massachusetts State Police sergeant Paul Zipper and Trooper Michael Mazza. After he was warned of his Miranda rights to remain silent, and have access to an attorney, Baye asked to speak to a lawyer. The officers, instead of terminating the interrogation at that point, informed Baye that he would be better off speaking to them first. They assured him that if he took responsibility for setting the fires, the judge would go easy on him. Utilizing the age-old confession inducing technique (developed by Fred Inbau in the 1930s) of minimizing the seriousness and immorality of the crimes (referring to the arsons as "tomfoolery"), the troopers got Baye to admit setting 15 of the fires.

     While Anthony Baye didn't come out and admit setting fire that killed the Yeskies, he did say he never meant to do them any harm. In soliciting the arson-murder confession, one of the interrogators misrepresented the criminal law when he assured Baye that if he hadn't intended to kill the Yeskies, he could not be charged with felony-murder. (Under Massachusetts law, if Baye had intended to set the fire which inadvertently led to their deaths, he was guilty of criminal homicide under the felony-murder doctrine.)

     Following the ten hour, videotaped interrogation, the state troopers took Baye into custody. The local prosecutor charged him with two counts of first-degree murder and several counts of arson. Given the seriousness of the crimes, Baye was not granted bail.

     Baye's attorneys, Thomas Lesser and David Hoose, on grounds the state interrogators had violated their client's Fifth and Six Amendment rights by not discontinuing the interrogation and providing him with an attorney when he requested one, filed a motion to suppress the confession.

     On September 21, 2011, Hampshire Superior Court Judge Constance B. Sweeney heard arguments on the defendant's motion to suppress. At the conclusion of the pre-trial hearing, Judge Sweeney, while expressing reservations regarding the troopers' interrogation techniques, ruled Baye's confession voluntary and therefore admissible. The defense appealed Judge Sweeney's ruling to the Massachusetts Supreme Judicial Court which agreed to rule on the admissibility of Baye's confession before rather than after his trial.

     On May 21, 2012, the Massachusetts Supreme Court Justices ruled the Baye confession had not been given voluntarily and was therefore inadmissible as evidence against him. Although the justices didn't specifically rule on the issue of whether continuing the interrogation after Baye requested an attorney rendered it inadmissible, the constitutional law on this issue was settled. In the Baye case, the state interrogators had clearly violated Baye's Miranda rights. Under Miranda, a confession can be inadmissible even though it was given voluntarily. Once a suspect exercises his Miranda rights, the interrogation must stop. Anything said by the suspect after this point is not admissible evidence regardless of the fact no coercion was involved.

     One year after the court ruled Baye's confession inadmissible, the defendant, pursuant to an agreed upon plea agreement, pleaded guilty to two counts of manslaughter. On May 15, 2013, the Hampshire Superior Court judge sentenced Anthony P. Baye to twenty years in prison followed by fifteen years of probation.