Deception is an accepted part of police interrogation techniques. This year, two Appellate Divisions have reached opposite conclusions, with arguably conflicting rationales, likely to be taken up by the Court of Appeals. They are a reminder that two matters are critical when dealing with police deception during interrogation. The first is the risk that the defendant will be coerced into making a false confession, the second is that he will be coerced into making a statement at all.
The Third Department in People v Thomas (93 AD3d 1019 [3d 2012]) decided in March that police deception was not sufficient to render the resulting statement involuntary. The defendant was suspected in a shaken baby case. Police knew that the child was not expected to survive, and yet told the defendant that they needed to know exactly what the defendant did, so that treatment of his child could be effective. The Third Department held that this was not improper:
"Also contrary to defendant's vehement claims, the strategies and tactics employed by the officers during these interviews were not of the character as to induce a false confession and were not so deceptive that they were fundamentally unfair and deprived him of due process. The officers' repeated misrepresentation that defendant's truthfulness might enable doctors to effectively treat Matthew did not render his statements involuntary, because appealing to his parental concerns did not create a substantial risk that he might falsely incriminate himself (see id.; People v Dishaw, 30 AD3d at 690-691; People v Henderson, 4 AD3d 616, 617 , lv denied 2 NY3d 800 ). Indeed, common sense dictates the opposite conclusion, i.e., that parents, aware of their child's life threatening predicament, would accurately disclose any information that might enable doctors to save their child."
Wednesday, the Second Department reached the opposite conclusion under similar facts (People v Aveni, 2012 WL 4901136 [2d October 17, 2012]). The defendant was a suspect 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. Defendant admitted to injecting her with heroin. The Second Department did not reach the opposite conclusion in one critical sense. Key to the Third Department decision in Thomas was the belief that, if the police deception was effective, it could only produce a truthful statement. The Second Department did not hold that telling the defendant the doctors needed to know what the victim had in her system would produce a false yet incriminating statement. However, the court ruled that the police were unduly coercive because - in effect - they told the defendant that if he did not tell them what he did that the (already dead) victim would die and that the defendant would therefore face murder charges. The lies coerced the defendant to speak at all, and were held to be improper pressure:
"Notably, in People v. McQueen (18 N.Y.2d at 346), the officers used mere deception by telling the defendant that “she might as well admit what she had done inasmuch as otherwise the victim, who she had not been told had died, would be likely to identify her,” but did not threaten her with repercussions if she chose to remain silent.1 In this case, by contrast, the detectives not only repeatedly deceived the defendant by telling him that Camillo was alive, but implicitly threatened him with a homicide charge by telling the defendant that the consequences of remaining silent would lead to Camillo's death, since the physicians would be unable to treat her, which “could be a problem” for him. While arguably subtle, the import of the detectives' threat to the defendant was clear: his silence would lead to Camillo's death, and then he could be charged with her homicide ...*7 In this case, the detectives coerced the defendant's confession by deceiving him into believing that Camillo was alive and implicitly threatening him with a homicide charge if he remained silent. The detectives used the threat of a homicide charge to elicit an incriminating statement by essentially telling the defendant that the consequences of remaining silent would lead to Camillo's death, which “could be a problem” for him. Faced with this Hobson's choice, the defendant had no acceptable alternative but to talk to the police. By lying to him and threatening him, the detectives eviscerated any sense the defendant may have had that he could safely exercise his privilege against self-incrimination and put the People to their proof. Either he would tell them what he knew or he would face the probability of life imprisonment if Camillo died. In light of the detectives' implicit threat of a homicide charge if the defendant remained silent, we cannot conclude that the defendant voluntarily waived his Fifth Amendment privilege against self-incrimination "
To the extent that police coercion is limited to telling the defendant that medical personnel need to know the truth in order to treat the defendant's loved one, this is unlikely to coerce a false statement (though it could cause the defendant, who has been told what "the truth" is by police, to make a false statement regarding culpability). However, lies which coerce the defendant into speaking at all, especially the implication that failing to admit culpability will result in a homicide prosecution, is improper.