Ending Confession Induced By Lies

No, it won’t stop cops from lying. Not on the streets. Not on the stand. Not to their spouse, sergeant or god. But it just might end the “useful law enforcement tool” of using lies during interrogations to induce confessions. A bill has been introduced in New York to require the recording of interrogations absent good cause and adding a new section to Criminal Procedure Law § 60.45 that includes this line under the definition of statements involuntarily made:

(ii) BY KNOWINGLY COMMUNICATING FALSE FACTS ABOUT EVIDENCE TO THE DEFENDANT

The use of lies in questioning is legend, from the story of the cop who told a suspect that a copy machine was a lie detector and every time he answered a question, the cop would push the button and a sheet of paper came out the other end with the word “LIE” on it, to the Central Park Five, now referred to as the Exonerated Five, who were manipulated into confessing to a heinous crime they didn’t commit. The problem isn’t that lies aren’t an effective means of getting a suspect to make statements, but that they’re too effective. They can trap the innocent as well as the guilty.

Cops love confessions. Prosecutors love confessions. And juries? There is nothing, but nothing, more persuasive than a confession. And it’s not just the “I did it” type of confession, but the provable lie in response to a lie. Contrary to what so many suspects believe, there is almost nothing they can say that can’t be used against them. It’s one thing if it comes about from legitimate questioning. Them’s the breaks. But when it’s induced by lies, it seriously compounds the probability of getting a false statement in response.

Scientific proof of the risk posed by false evidence lends credence to these tragic stories. This proof is derived from two sources. First, basic psychology shows that misinformation renders people vulnerable to manipulation. Specifically, false information (as presented through confederates, counterfeit test results, false feedback and the like) can substantially alter people’s visual perceptions, beliefs, emotional states, memories and even certain physiological functions — as seen in the classic placebo effect in medicine.

Second, recent experiments specifically demonstrate the effects on confessions. By bringing subjects into the laboratory and accusing them of crashing a computer, cheating on a test or stealing money, researchers have found that false evidence typically doubles and triples the number of innocent subjects who break down and confess. In some instances, these subjects actually come to believe in their own culpability. This effect is particularly pronounced in juveniles and sleep-deprived adults.

False confessions give rise to a double problem. It’s not just that an innocent person gets convicted for a crime he didn’t commit, but that a guilty person remains at liberty to commit crimes. As much as some in law enforcement might condemn the loss of this “effective tool,” others have come to the realization that the price of using lies to induce confessions isn’t worth it.

Closer to home, letters of support were also sent by Chicago’s Wicklander-Zulawski & Associates, one of the largest police training companies in the United States, and several members of the federal government’s High-Value Detainee Interrogation Group, which brings together intelligence professionals from the F.B.I., the C.I.A. and the Defense Department for national security purposes.

Col. Steven M. Kleinman, a former Air Force intelligence officer who has interrogated terrorists and violent extremists, put it this way: “While this tactic might appear benign at first glance, it has proved to be insidiously problematic as a factor in generating false confessions nationwide.”

One of the lessons learned in interrogating terrorists using “extreme” methods, meaning torture, was that they would say whatever was necessary to end the torture, but it was worthless information because it wasn’t true. You can get them to talk, but if the information is bad, it serves no purpose.

Will this law be the end of lies in the interrogation of suspects? Probably not, as there will always be cracks through which a dishonest cop can squeeze through to manipulate a perp to get him to talk. People tend to get creative when they really want to circumvent a law.

Will this law be the end of confessions? The Supreme Court, when it decided Miranda, fully expected its requirement that suspects in custodial interrogations would invoke their right to silence and counsel, and that would be that. As it turned out, not even the Miranda warnings, explicitly telling suspect to shut up, could silence people. Suspects want to talk. They need to talk.They just can’t stop themselves from talking, despite all the admonitions of criminal defense lawyers to STFU. So no, honest interrogation does not spell the end of confessions.

But won’t this mean that some confessions will be lost? It does, and in some instances, cops and prosecutors will firmly believe that a bad dude who could have been manipulated into confessing gets away with it. This is where Blackstone’s Ratio comes into play, the same concept rejected when it comes to male students accused of sex offenses on campus, but still shown some small degree of respect in criminal courtrooms. It is better that ten guilty men walk free than one innocent man be convicted.

What this change in admissibility of statements means is that the historic use of lies, approved by court after court because it served to not only put a body in the defendant’s seat but make sure he would go down for the crime, will no longer receive the approval of the state. Cops not lying (as much) with the grateful appreciation of the state might mean fewer convictions, but that’s the price of not putting the innocent in cells and letting the guilty rape or murder again.