An Illinois Appellate Court panel opinion this week was groundbreaking in challenging police use of deception when interrogating suspects, experts said.
“This is really one of the first times I’ve seen an appellate court cite the detrimental effects of lying to police-community relations as a serious concern, in an opinion,” said Steven A. Drizin, staff attorney and former legal director at Northwestern University Pritzker School of Law’s Center on Wrongful Convictions.
“I have never seen such a statement before in a court case,” said Miriam Gohara, clinical associate professor at Yale Law School, adding the court’s consideration of community trust in law enforcement was “refreshing.”
At issue is the court opinion overturning the conviction of Jesus Sanchez, an 18-year-old suspect in a 2013 murder, finding he falsely confessed to the crime after police repeatedly insisted they had evidence he fired the gun.
The opinion of the three-judge panel, authored by Justice P. Scott Neville, calls for police to “renounce the use of deceptive practices in law enforcement so that the members of the community learn that they can trust police officers to treat them honestly.”
The U.S. Supreme Court long has permitted officers to use deception to get suspects to incriminate themselves. Five decades ago, the court upheld the murder conviction of a former U.S. marine named Martin Frazier who confessed after police falsely told him that Frazier’s cousin had given a statement implicating him.
Since then, courts have upheld confessions despite a wide variety of fabrications by police, including when suspects have been falsely told that physical evidence was found that tied them to the crime, when they have been falsely told they failed lie detector tests, and when their confessions came after police misled them on their intention to charge them with serious crimes.
Misrepresentations about the evidence against suspects, research has shown, increase the likelihood of winning admissions from them. “It changes the cost-benefit calculus for the person being interrogated,” Gohara said.
Researchers have long been concerned that the deception may elicit false confessions from suspects, as the court found in Sanchez’s case. The National Registry of Exonerations has identified 65 cases nationwide in which wrongful convictions were based on bad confessions that followed police deception. Fifteen of those cases involve convictions in Illinois.
The practice of lying in police interrogations is banned in the United Kingdom. But across the United States most courts have done little to prohibit deceptive practices of adults, Gohara said, especially if they have been provided their Miranda rights against making self-incriminating statements.
In fact, police departments across the country have for decades widely used an interrogation technique developed by John E. Reid, a polygraph expert, who developed a structural approach to interrogations that relied less on threats and outright coercion, and more on coaxing admissions through a process that can include deceiving the suspect about the evidence gathered against him.
Retired Newark, N.J. police captain Jon M. Shane, an associate professor at the John Jay College of Criminal Justice, sought to distinguish using deception if the police have evidence that supports their suspicion of the suspect’s guilt from deception used to convince innocent suspects of their own guilt.
“Trickery exists in police work in various forms, not all of it bad,” Shane said.
Shane said there is a danger if police officers resort to deception without having developed enough evidence of a suspect’s guilt. But, he cautioned, it may be impossible in the real world to have some mathematical formula on when deception should be prohibited.
Richard Ofshe, an expert in police interrogations and sociology professor emeritus at the University of California-Berkeley, said that the deception is part of a larger process of psychological coercion. Ofshe said that in the interrogation technique developed by Reid, lies about what evidence the police have can leave suspects feeling “hopeless” of ever proving their innocence.
That hopelessness makes suspects vulnerable to coercion if police imply they will be better off once they confess. In the Sanchez case, Ofshe said, “threats and promises were used to motivate him, and the deception set him up so he would be responsive to that.”
Ofshe believes that the Illinois Appellate Court ought to have discussed deception as part of a series of interrogation techniques that produce false confessions, rather than zeroing in simply on the practice of deception.
“It’s quite wonderful the judge is in this case recognized that the deception is abominable, but there’s another part that needs to be asserted,” he said.
In December, three members of the U.S. Court of Appeals for the 7th Circuit addressed the issue of whether deception can lead to false confessions as they dissented in a 4-3 en banc decision that ruled the murder confession of Wisconsin teenager Brendan Dassey was voluntary.
The four-member majority reversed a panel decision that Dassey’s confession had been coerced. But in dissent, Chief Judge Diana P. Wood, joined by Senior Judge Ann P. Williams and Judge Ilana Rovner, wrote that though there was no physical harm by detectives, the interrogation was nevertheless psychologically coercive.
Writing a separate dissent, Rovner—joined by Wood and Williams—suggested it was time for the courts to re-examine their approval of deception in interrogations. “In a world where we believed that ‘innocent people do not confess to crimes they did not commit,’ we were willing to tolerate a significant amount of deception by the police,” Rovner wrote. That world, Rovner added, has changed.
“Our long‐held idea that innocent people do not confess to crimes has been upended by advances in DNA profiling,” she wrote, citing the exoneration registry statistics on false confessions.
The Illinois Appellate Court in Sanchez takes the concern over deception one step further, noting not just the danger of a false confession but also the impact on the community.
“The practice of deception in interrogations and other settings can destroy the trust needed as a foundation for the relationship between police officers and the members of the communities the police officers have a duty to serve and protect,” the opinion said. “A revision of police department rules, and the actual imposition of significant sanctions for deceptions, might help repair the strained relations between police and some of the communities they have a duty to serve.”
The concern comes amidst a deep divide between members of minority communities and the Chicago Police Department. The city’s Police Accountability Task Force wrote in its 2016 report that “the community’s lack of trust in CPD is justified.” Police reform, the task force concluded, could not succeed without rebuilding trust from a community that was “totally alienated” from the police department.
Shane, the John Jay professor, agreed that deception could endanger that trust.
“Those things can be devastating,” he said. “No question about it.”
Correction: An earlier version of this piece misstated Steven Drizin’s position at the Center on Wrongful Convictions. He is a staff attorney.