Wednesday, October 24, 2012

Leave to Appeal Granted on Issue of Permissible Limits of Police Deception During Interrogation

Last week, Jim Eckert posted (see) on the conflicting decision of the Appellate Divisions for the Second and Third Department as to the limits on permissible police deception during interrogation. In both cases, the police had purposely misled a suspect into believing that the person the suspect was accused of assaulting was alive.

In People v Thomas (93 AD3d 1019 [3d 2012]), Mr. Thomas was suspected by police in a shaken baby case.  Police knew that the child was not expected to survive, and yet falsely told Thomas, in a recorded interrogation, that they needed to know exactly what the defendant did, so that treatment of his child could be effective.The Third Department rejected Mr. Thomas's contention that this tactic rendered his resulting statement inadmissible . The Court held, in part, that this deception "did not create a substantial risk that [Mr. Thomas] might falsely incriminate himself."

In People v Aveni (2012 WL 4901136, 2012 N.Y. Slip Op. 06968 [2d Dept 10/17/12]), Mr.Aveni was suspected by the police in the drug overdose death of his girlfriend.  However, he was told by police that she was being treated and that she would die without proper care, which required telling the doctors what had happened. Mr. Aveni admitted to injecting her with heroin. The Second Department held that the police deception coerced Mr. Aveni to speak at all, and, thus, constituted, improper pressure.


As Jim pointed out there are two dangers with respect to the use of overbearing deception.The first, addressed by the Third Department, is the risk that the defendant will be coerced into making a false confession. The second danger, addressed by the Second Department, is that the suspect will be coerced into making a statement at all, true or false.


On October 23, Court of Appeals Judge Robert Smith granted Mr. Thomas leave to appeal. The Thomas decision will provide an opportunity to consider the appropriate limits on police deception during interrogations.

Another case pending before the Court of Appeals raising questions about the limits of police interrogation tactics is People v Guilford (96 AD3d 1375 [4th Dept 2012]), in which the Court will consider the admissi bility oif statements made  after a 49–hour interrogation, where there was an eight–hour break between interrogation and his statements.

The issue of the proper limits for police interrogation is heightened by an increased awareness, as a result of DNA exonerations, that courts and juries have often accepted as voluntary and reliable, statements which are neither true nor voluntary. (Steven Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891-1007 [2004]). The 2009 New York State Bar Association Report regarding 53 recent wrongful convictions in New York found false confessions to be a leading cause of these wrongful convictions.

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