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The role of deception in confessions

The role of deception in confessions

Senior Editor

Lying, trickery, and deception are techniques law enforcement officers are allowed to use when interrogating suspects.

They can lie about polygraph test results.

They can pretend DNA and fingerprint evidence matches, when they don’t.

They can say an accomplice has already confessed, when he hasn’t.

As the Florida Innocence Commission grappled with how to minimize false confessions that can lead to wrongful convictions, Ninth Circuit Chief Judge Belvin Perry, chair, summarized the findings of five federal cases and nine Florida cases.

“The bottom line on all of these cases is, basically, trickery, deception can be utilized,” Perry said.

That sparked outrage from Sen. Gary Siplin, D-Orlando, an attorney.

“If I were to go home tonight and talk to my mama and say, ‘We allow police officers to lie in order to get a confession,’ she wouldn’t believe me,” Siplin said.

“Whose great idea was this to conceive the idea to allow police officers to lie in the midst of a criminal case in order to get a confession?” Siplin asked.

Judge Perry likened the interrogation techniques to playing poker.

“You bluff them. Then sometimes they may come forward with the truth,” Perry said. “The delicate balance is. . . you should not be able to use deception where you force or coerce someone to do something they should not do. There is a delicate balance in dealing with juveniles, in dealing with people with mental deficiencies.

“That’s why, until somebody comes up with something different, I think the current test is we have the totality of circumstances test, where the court looks at all of the factors.”

Siplin asked: “The question arises: Is there anybody else in court who uses deception as part of this process?. . . Do judges use deception?”

“None that I know of, Mr. Siplin,” Perry answered. “I wish we had a better system. But it is what it is.”

The commission spent most of the December 12 meeting in Orlando seeing if they could come up with a better system to minimize false confessions.

University of Florida law Professor Kenneth Nunn took the lead. He summarized six scholarly studies documenting more than 300 false confessions nationwide and made recommendations on how to prevent them in the future.

Of Florida’s 11 cases of DNA exonerations, Nunn noted that two involved false confessions:

Anthony Caravella spent 26 years in prison for a rape and murder in Broward County he did not commit. He said he was threatened and beaten by law enforcement officials.

Jerry Townsend, a mentally retarded man with the mental capacity of an 8-year-old, confessed to whatever police asked him to confess to, and spent 21 ½ years in prison for several murders in Broward County he did not commit.

Then Nunn made a motion aimed at preventing wrongful confessions:

• Limit interrogations to six hours, then give the suspect a break. If the suspect is held longer than 5 ½ hours, he or she should get three hours of rest.

• Interrogators cannot lie about fabricated or false scientific evidence of guilt, including DNA, fingerprints, video recordings, or photographs.

“The purpose of the interrogation techniques is to break their will,” Nunn said. “What many of these suspects will tell you is they felt disoriented; they thought they were in a dream. They wanted the whole interrogation to stop. Then when they were confronted with false and fabricated interrogation evidence or evidence of guilt, that would suggest they had no way out.”

• Police shall be especially careful with juvenile, immature, mentally retarded, and mentally disturbed suspects. There would be no leading questions, and the interrogator cannot imply, “I believe you are guilty.”

“What I have suggested here is quite conservative and limited,” Nunn said. “I think it would be an excellent idea for us as a commission to step forward and to follow the scientific literature that we have, and take every effort that is at our disposal to eliminate wrongful convictions when it comes to the use of interrogation techniques by the police.”

Nunn said he talked with his doctor, an immigrant to the United States, about the commission’s work.

“I told him I had a proposal that would prevent people from being lied to when they’re interrogated. And he said, ‘They can lie to people in the United States of America?’ I said, ‘Yes, they can.’ And he said, ‘That needs to change.’

“I think he’s right. I think it needs to change. I think it’s unfortunate that the voluntariness test doesn’t address that. And here’s our opportunity to do more. I do not think it will prevent our public servants from helping us to live in a safe community,” Nunn said.

But when the votes were finally cast, only four out of 20 members voted for Nunn’s proposal: Nunn, Siplin, Second Circuit Public Defender Nancy Daniels, and Scott Fingerhut, a law professor at Florida International University.

“I think that Florida can take the lead here and maybe, for all we know, we will be part of a groundswell where, long after we’re gone, the tipping point will be deception is coercion, legally speaking,” Fingerhut said in seconding Nunn’s motion.

But sometimes the ends justify the means, argued Tampa International Airport Police Chief Paul Sireci, who shared a story about a case where a child was kidnapped and buried alive.

“I would lie to that guy. I would cry with that guy. I would buy him a pizza. We saved a child’s life,” Sireci said. “So you have to look at the totality of the case and fairness. And every law enforcement officer knows that anything they do is subject to review.”

Daniels shared a story, too, about an appeal she is currently working on. The suspect had been up for 48 hours, coming down off of a cocaine high. Resting his head on a desk, he begged: “Please, please, let me get some sleep.”

He hadn’t eaten in a long time. The detective showed him videotapes of robberies, saying: “This is you, right?”

“Little by little, he gets him to say, ‘Yeah, whatever.’ And it finally ends. It goes on a long time. It’s painful to watch, because it’s obvious that this person is not in a good state,” Daniels said.

“While it may have been legally voluntary, because he did waive his Miranda rights and he did continue speaking, I don’t think it’s what we all strive to in our justice system for an interrogation conducted this way.”

Daniels said she was in favor of Nunn’s proposal, “with some tweaks to make it more palatable” to law enforcement.

“I hope we will not stay in our trenches and vote party lines, because we’re trying to do justice here. That’s what we’re here for,” Daniels said.

Charlotte County Sheriff Bill Cameron countered that Daniels’ case is “exactly what the courts exist for. The courts have already established a lot of these reasonable standards for law enforcement.”

Nunn’s proposal establishes “bright line rules,” Cameron said, “and bright line rules are always bad. Bright line rules never allow for the case-by-case analysis.”

Fingerhut responded: “There was a time in this country where the bright line was you could beat the living daylights out of someone to get them to confess. And there was a time in this country when the bright line was you starve them out and third-degree them out.”

He urged the commission to take steps that would clearly reduce wrongful convictions.

Responding to Daniels’ comments, FDLE Commissioner Gerald Bailey said: “One of my colleagues has attempted to put a halo around this by saying, ‘It’s not right totally, and it could use a little tweaking. But we need to move forward with truth, justice, and the American way.’ That’s not the way we should approach moving forward on something that admittedly needs tweaking.”

Hank Coxe, a criminal defense lawyer in Jacksonville, spoke to Siplin’s “visceral reaction that this isn’t fair.”

Coxe pointed out that while cops can lie, if a citizen lies under oath it is punishable by up to five years in prison.

“And law enforcement can record your conversation without judicial approval, even though if you did that, that’s punishable by up to five years in prison.

“But the charge we have here isn’t to decide what’s fair. It’s what we can do to further prevent wrongful convictions,” Coxe said.

“The concern I have is the ability to micromanage every conceivable possible example of coercion.”

The best way to prevent false confessions and wrongful convictions, Coxe said, would be the mandatory videotaping of interrogations, so everyone can see and hear the details from beginning to end.

(Instead, at the October meeting, the commission voted 12-7 for audio-taping interrogations when practicable.)

Miami lawyer Israel Reyes, a former homicide detective, said he thought following parameters set by case law was enough to keep a check on law enforcement.

Still, Reyes said with a chuckle: “I always thought it was an interesting concept when I was a cop that when you took a confession based on lies, you then went into court, and you swore to tell the truth about the lies you told in the interview room. It’s a unique area of the law.”

When the commission next meets in Tallahassee in February, the subject will be jailhouse snitches and how their lies can lead to wrongful convictions.