Liar, Liar, Pants On Fire: How Deception is Burning the Criminal Justice System

Liar, Liar, Pants On Fire: How Deception is Burning the Criminal Justice System^[1]This blog post is derived from a larger article of the same name by the author. To read the larger work, visit https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3772453

By: Mckenzie Williamson, University of Mississippi School of Law, Class of 2022

In the United States, the use of deception by police in interrogations is a pervasive problem that leads to false confessions, public distrust of the police, and can undermine the police as a moral authority. While many police oppose such deceptive practices, a multitude still employ deception in interrogations. The Netflix series When They See Us brought the prevalence of this problem to light by detailing the story of the Central Park Five, five teenagers who were convicted after giving false confessions due to police deception.

The Central Park Five were minors who were interrogated through highly deceptive and coercive methods in 1989 for the rape of the Central Park jogger. These methods included officers yelling and cursing at them, telling the boys that they were being questioned as mere “witnesses” that would be released from custody if they only confessed, and otherwise blatantly lying to the boys, such as even falsely telling one boy that his fingerprints would be found on the victim’s shorts.^[2]Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 896-97 (2004). The boys confessed to the crimes, were charged as adults, and all were incarcerated.^[3]Deanna Paul, ‘When They See Us’ Tells the Important Story of the Central Park Five. Here’s What It Leaves Out, The Washington Post (June 29, 2019, 6:00AM), … Continue reading These confessions were the driving force leading to the wrongful convictions of the Central Park Five. ^[4]Id.

In 2002, a convict contacted authorities, confessing he had raped the Central Park Jogger.^[5]Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 898 (2004). After testing revealed that this convict’s DNA matched that found on the jogger’s clothing, the Central Park Five filed motions to vacate their convictions, which were all later granted.^[6]Id. at 898-99. By that point, four of the men had served about seven years in prison and one had spent thirteen years in prison.^[7]Deanna Paul, ‘When They See Us’ Tells the Important Story of the Central Park Five. Here’s What It Leaves Out, The Washington Post (June 29, 2019, 6:00AM), … Continue reading

The Central Park Five are not alone in giving false confessions after police fed them lies in interrogation rooms. Lies used to induce confessions in other cases have included false reports that the defendant’s footprints were obtained at the scene,^[8]See, e.g., Morgan v. Zant, 743 F.2d 775, 779 (11th Cir. 1984). false police portrayals as fellow army officers,^[9]United States ex rel. Lathan v. Deegan, 450 F.2d 181, 183 (2d Cir. 1971), cert. denied, 405 U.S. 1071 (1972). and false statements that a co-defendant had confessed.^[10]See, e.g., United States v. Castaneda-Castaneda, 729 F.2d 1360, 1362 (11th Cir. 1984), cert. denied, 469 U.S. 1219 (1985). While the convictions of the Central Park Five were later vacated, few defendants who falsely confessed due to such deception have been so fortuitous.

A.     Confessions

History has long recognized the power of a confession as confession evidence often plays a determinative role in the criminal justice system.^[11]See Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 11 (2010) (citing Miranda v. Arizona, 384 U.S. 436, 467 (1966) ). This power carries with it both respect and skepticism.^[12]Id. at 9. Judicial skepticism of confession evidence arose from historical showings that law enforcement officers, aware that confession evidence can assure conviction, have abused their power in the interrogation room.^[13]Id. Concerns for this overreliance gave rise to a series of evolving rules designed to exclude unreliable confessions from being admitted at trial and to prevent erroneous convictions.^[14]Id.

     1.     The Rules Governing the Admissibility of Confessions

The current rules governing the admissibility of confessions require a three-step analysis of any custodial statement made by an accused to law enforcement, which is later sought to be admitted as evidence in a criminal trial.^[15]Miller W. Shealy, JR, The Hunting Of Man: Lies, Damn Lies, And Police: Interrogations, 4 U. Miami Race & Soc. Just. L. Rev. 21, 44 (2014). The standard analysis begins under the applicable rules of evidence, under which confessions are usually admissible because they are relevant and are admissions by a party opponent.^[16]Id. (referencing Federal Rules of Evidence 401, 402, and 801(d)(2) ). The next two levels of the analysis involve the corroboration rule and the voluntariness rule.^[17]Richard A. Leo et. al., Bringing Reliability Back in: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis. L. Rev. 479, 485 (2006); see also Miller W. Shealy, JR, The … Continue reading

The corroboration rule was designed to guard against convictions based solely on false confessions.^[18]See Richard A. Leo et. al., Bringing Reliability Back in: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis. L. Rev. 479, 501 (2006). The corroboration rule requires that confessions be corroborated by independent evidence to be admissible.^[19]Id. at 486. This rule does not require corroboration that the defendant committed the crime, and it does not demand any proof of the requisite mental state or any other elements of the crime.^[20]See Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 11 (2010) (citing Miranda v. Arizona, 384 U.S. 436, 467 (1966) ). In fact, this rule only requires corroboration of the fact that a crime occurred, and it does not require that the facts contained in the confession be corroborated.^[21]Id.

The voluntariness rule, first developed at common law, is now a constitutional requirement under the Fifth Amendment.^[22]Id. at 485-86. This rule requires that confessions must be “voluntarily” made under the Due Process Clause of the Fifth Amendment.^[23]Miller W. Shealy, JR, The Hunting Of Man: Lies, Damn Lies, And Police: Interrogations, 4 U. Miami Race & Soc. Just. L. Rev. 21, 44 (2014). In determining voluntariness, a court must ask whether, under the totality of the circumstances, the “confession is the product of an essentially free and unconstrained choice by its maker,” or is the “product of a will overborne.”^[24]Laura Hoffman Roppe, True Blue? Whether Police Should Be Allowed To Use Trickery and Deception To Extract Confessions, 31 San Diego L. Rev. 729, 732 (1994) (first quoting Columbe v. Connecticut, 367 … Continue reading Therefore, this voluntariness rule focuses not only on the reliability of a confession, but also requires that the means of obtaining the confession were consistent with our accusatorial system of criminal justice.^[25]Daniel W. Sakasi, Guarding the Guardians: Police Trickery and Confessions, 40 Stan. L. Rev. 1593, 1602 (1988).

     2.     The Fifth Amendment

The Fifth Amendment commands that no person shall be compelled in any criminal case to be a witness against himself.^[26]See Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 11 (2010) (citing Miranda v. Arizona, 384 U.S. 436, 467 (1966) ). This right against self-incrimination has changed throughout history, slowly expanding in scope and applicability.^[27]See Miranda v. Arizona, 384 U.S. 436, 458-461 (1966) (discussing the history of the privilege against self-incrimination). Today, Supreme Court precedent asserts that the Fifth Amendment protects suspects in the interrogation room as well as in the courtroom against conditions that may induce involuntary and unreliable confessions, like conditions that overcome the will of a suspect, thus threatening their constitutional right to avoid self-incrimination.^[28]See Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 11 (2010).

     3.     Miranda v. Arizona

American jurisprudence has long recognized the notion that the justice system should be exactly that—just. This was evinced by the Supreme Court in Miranda v. Arizona. The Miranda Court, among many others, sought to ensure that confessions are given freely and voluntarily under the Fifth Amendment.^[29]Miranda v. Arizona, 384 U.S. 436, 467 (1966). In pursuing this goal, the Miranda Court criticized the common police practice of deceiving suspects, however, it did not prohibit police deception, and the Court has explicitly allowed it since.^[30]Tonja Jacobi, Miranda 2.0, 50 U.C. Davis L. Rev. 1, 64-65 (2016).

In its holding, the Miranda Court expressed that unless adequate protective devices are employed to repel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.^[31]Miranda v. Arizona, 384 U.S. 436, 457-58 (1966). These protections include that, prior to any questioning, the suspect must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.^[32]Id. at 444. A defendant may waive effectuation of these rights when such waiver is made voluntarily, knowingly and intelligently.^[33]Id.

B.     Deception in Interrogations Is A Problem

In Miranda v. Arizona and several pre-Miranda cases, the Supreme Court recognized that deception can induce involuntary confessions, however, the Court has never held that such tactics would automatically invalidate a confession.^[34]Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 12 (2010) (citing Miranda v. Arizona, 384 U.S. 436, 467 (1966) ). Subsequent applications of Miranda limited the protections the Miranda Court sought to provide to suspects and moved away from the Court’s disapproving stance on deception in interrogations.^[35]See generally, Lawrence Herman, The Supreme Court, the Attorney General, and the Good Old Days of Police Interrogation, 48 Ohio St. L.J. 733, 734 (1987); Saul M. Kassin et. al., Police-Induced … Continue reading This has allowed a gap to form in the protections provided by the Fifth Amendment that enables confessions obtained through deceptive interrogation tactics to almost invariably be admissible.^[36]Miriam S. Gohara, A Lie for A Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques, 33 Fordham Urb. L.J.791, 795 (2006).

Police deception commonly refers to trickery, which may include presenting a suspect with false evidence of guilt, such as misrepresenting forensic or eyewitness evidence, existence of a co-defendant’s admission of guilt, or the results of a polygraph test.^[37]Tonja Jacobi, Miranda 2.0, 50 U.C. Davis L. Rev. 1, 65 (2016). Police deception, while relevant to a finding of coercion, is not unconstitutional in and of itself.^[38]Daniel W. Sakasi, Guarding the Guardians: Police Trickery and Confessions, 40 Stan. L. Rev. 1593, 1602 (1988). In fact, the Supreme Court criticized the use deception in Miranda v. Arizona, noting that common deceptive tactics fostered a coercive environment.^[39]See Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 13 (2010) (citing Miranda v. Arizona, 384 U.S. 436, 467 (1966.

Although there are no clear guidelines to determine whether conduct is adequately coercive to be unconstitutional, the Supreme Court has indicated that conduct which overbears the will of a suspect or that is “unfair” would suffice.^[40]Daniel W. Sakasi, Guarding the Guardians: Police Trickery and Confessions, 40 Stan. L. Rev. 1593, 1602 (1988). To deem the use of deception as fair would make a mockery of our justice system. Police deception is clearly inconsistent with basic notions of fairness.^[41]Welsh S. White, Police Trickery in Inducing Confessions, 127 U. Pa. L. Rev. 581, 584 (1979). Moreover, police deception is psychological coercion under one definition because it is utilized with the intention of bearing directly on a suspect’s mind, instilling in him feelings that induce him to respond to the questions imposed by officers.^[42]People v. Zimmer, 329 N.Y.S.2d 17 (N.Y. Co. Ct. 1972), aff’d, 339 N.Y.S.2d 671 (N.Y. App. Div. 4th Dept. 1972).

     1.     False Confessions

False confessions are defined as admissions to a criminal act that the confessor did not commit.^[43]Saul M. Kassin et. al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 5 (2010). As the Central Park Jogger case shows, a critical problem caused by police deception in interrogations is that it can and does lead to false confessions and wrongful convictions.^[44]Miriam S. Gohara, A Lie for A Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques, 33 Fordham Urb. L.J. 791, 794 (2006). Psychologists have identified police deception as one of the three main risk factors of false confessions.^[45]Tonja Jacobi, Miranda 2.0, 50 U.C. Davis L. Rev. 1, 64-65 (2016). Psychological studies additionally convey that innocent people are more vulnerable to police interrogation techniques like deception because “innocent suspects simply trust the criminal justice system.”^[46]Id. at 10-11.

     2.     Public Distrust of Police

The problems caused by deception in interrogations expand because this deception leads to public distrust of police, reducing the integrity of the criminal justice system.^[47]Deborah Young, Unnecessary Evil: Police Lying in Interrogations, 28 Conn. L. Rev. 425, 427 (1996). Deception by the police may lead many individuals to find the police as a whole too corrupt, unpredictable, or biased to deem them trustworthy, no matter their individual experiences.^[48]Julia Simon-Kerr, Public Trust and Police Deception, 11 Ne. U. L. Rev. 625, 665 (2019). Prominent police interrogation manuals and police seminars reinforce the public’s perception of the police force as corrupt and untrustworthy as theyrecommend police lying.^[49]Deborah Young, Unnecessary Evil: Police Lying in Interrogations, 28 Conn. L. Rev. 425, 427-28 (1996).

     3.     Undermining the Police as a Moral Authority

Effective law enforcement hinges not only on the public’s trust of the police, but also upon the police holding a position as a moral authority. Police deception in interrogations undermines the role of police as a moral authority.^[50]Julia Simon-Kerr, Public Trust and Police Deception, 11 Ne. U. L. Rev. 625, 689 (2019). A moral authority is entity that provides people a way to define and maintain the shared moral commitments that enable society to function.^[51]Id. at 688-89. People look up to moral authorities, turn to them for moral guidance, refrain from behaviors that they condemn, and seek to become the kind of people to whom they lend praise.^[52]Jessica Isserow & Colin Klein, Hypocrisy and Moral Authority, 12 J. Ethics & Soc. Phil. 191, 195 (2017). Police are not permitted to lie while writing a police report, completing an affidavit, or testifying under oath.^[53]Id. Using deception in interrogations to unfairly and unethically coerce suspects to confess tarnishes the credibility of police in the same manner as these prohibited forms of lying.

C.     Conclusion

The American criminal justice system rests upon a foundation of fairness, however, this foundation is riddled with fissures and cracks from the flames set by deception. The fire burning our criminal justice system continues to spread as police deception persists in interrogations in the United States. Police deception in interrogations leads to a vast amount of false confessions, widespread distrust of the police, and undermines the police as a moral authority. There is hope, however.

Scholars have proffered solutions to this problem, including a per se prohibition to deception in interrogations,^[54]Daniel W. Sakasi, Guarding the Guardians: Police Trickery and Confessions, 40 Stan. L. Rev. 1593, 1614-15 (1988). police training reforms to discourage deceit and refocus on ethics,^[55]See Julia Simon-Kerr, Public Trust and Police Deception, 11 Ne. U. L. Rev. 625, 688-89 (2019); Ashley Caldwell, A Force for Change: Effective Police Reform Through State-Level Initiatives, 45 U. … Continue reading and statutory requirements that all interrogations be videotaped.^[56]Daniel W. Sakasi, Guarding the Guardians: Police Trickery and Confessions, 40 Stan. L. Rev. 1593, 1613 (1988); Deborah Young, Unnecessary Evil: Police Lying in Interrogations, 28 Conn. L. Rev. 425, … Continue reading Instituting such solutions, like police training reforms, would be successful as studies show most police officers do their job with integrity and follow the rules when conducting investigations.^[57]George Cronin & Marissa Boyers Bluestine, Police, False Confessions, and A Framework for Change in the US, 44 Champion 44, 45 (2020). The police are not the cause of this problem—the rules are. Until the flames are defeated, we will see the public unrest, distaste, and distrust for police increase while people look at the police and think, “liar, liar, pants on fire.”

 

MEET THE AUTHOR

Mckenzie Williamson is from Cleveland, Mississippi, and is a member of the University of Mississippi School of Law Class of 2022. In 2019, Mckenzie graduated summa cum laude from the University of Mississippi after three years with a bachelor’s degree in Political Science. During her time at the School of Law, Mckenzie has served as an Honor Council Representative, the Attorney General for the Student Bar Association, and, currently, as the Chair of the Student Advocacy Corps. Additionally, Mckenzie serves as the Editor In Chief of The Advocate, the University of Mississippi School of Law yearbook. Mckenzie also is a member of the Negotiation Board, serves as Co-Chair of the Dean’s Leadership Council’s Law School Events Committee, and serves as the Associate Online Editor for Volume 91 of the Mississippi Law Journal. After graduation, Mckenzie will sit for the Mississippi bar and will return to Cleveland, Mississippi, to join Jacks, Griffith, Luciano, P.A. as an associate.