Good Liar, Bad Liar
The case involves a defendant who was interrogated for more than nine hours, repeatedly lied to by police and eventually made an incriminating statement that led to his conviction for the murder of his baby. Thomas told police he threw the infant on a bed several times and inadvertently banged the baby's head on a crib. He was convicted of depraved indifference murder and sentenced to 25 years to life in state prison.
On appeal, Thomas raises several issues, including an allegation that police induced him to make a false confession by telling him that his child was still alive and that doctors needed to know what had happened so they could save his life. The case is unusual in that police videotaped the entire interrogation, so the jurors and the panel that upheld the conviction were able to witness exactly what happened, a fact Smith seemed to find intriguing.
"It is not every day you get to review these sorts of things with a videotape," Smith said.
And indeed, the video matters, as it will allow the court to see for itself how lies can be used to accomplish the only goal of interrogation.
The grant of leave comes on the heels of a Second Department decision in People v. Aveni,a case in which the police told the defendant his girlfriend would die unless he told them what he had done to her, and that he would face homicide charges if he let that happen. Of course, the girlfriend was already dead from the heroin he injected into her.
The concern raised by Judge Smith in Thomas was primarily the inducement of false confessions,
Much of the argument over the leave application centered on whether the trial judge, Rensselaer County Judge Andrew Ceresia, properly refused to admit the testimony of Richard Ofshe, a social psychologist and professor emeritus at the University of California at Berkeley. Ofshe, who has testified in hundreds of cases around the country and a handful in New York, was expected to testify how psychological coercion can lead someone to falsely confess to a crime.
Ceresia, after a Frye hearing (see Frye v. United States, 293 F. 1013 ), held that Ofshe's theories have not gained "general acceptance in the scientific community," and refused to allow him to testify for the defense.
Egan told Smith that Ceresia's decision was discretionary, prompting Smith to ask, "How can science be discretionary?" and said it seems "crazy that the highest court in the state" should be precluded from reviewing the determination.
"There are false confessions," Smith said. "They are more frequent that you would think. But there is not much science in why they happen… Here, it does not seem ridiculous that maybe this guy was induced to produce a false confession."
Ofshe has led the scholarly fight against false confessions, and it hasn't been an easy one. Certainly, no one wants a defendant to falsely confess and be convicted, because no one can argue that this serves any legitimate end.
The solution is to contend that no confession is false, completely vitiating the problem. And for most jurors, this works fine, since no one who hasn't sat in a chair in a small, windowless room for 9 hours can conceive of falsely admitting to murder.
But Judge Smith, thoughtfully, states that there is "little difference" between the two cases, one about the use of lies to overcome voluntariness and the other about the use of lies to extract a false confession, And this is crucial. Judicial and public sympathy flows to the person who may be perceived as falsely confessing, while there is little concern about the person whose will is overcome, whose words come because of tricks designed to tease them, coerce them, compel them.
Theoretically, a waiver of the 5th Amendment's right to remain silent must be knowing, intelligent and voluntary. I trust that law students are still taught about the Christian Burial Speech of Brewer v. Williams, where the defendant's assertion of his right to counsel was overcome by an appeal to religious conscience. Yet, use of techniques artfully designed to overcome a knowing, intelligent and voluntary decision by a defendant, whether the Reid Technique or manipulative lies, has not merely been deemed lawful and acceptable, but necessary in obtaining the evidence needed to convict.
But for the fear of false confessions, the revelation of DNA that innocents are convicted upon them, and the work of academics like Ofshe, the likelihood of our ever getting off the path of police using lies and manipulation to obtain confessions was slim. And as the argument before Judge Smith demonstrated, the prosecution and police remain firm in their belief that this is all voodoo nonsense, that this tool to secure convictions is critical if we're to convict the bad guys. Whether they admit to the existence of false confessions, they have no doubt that the benefits of obtaining confessions from the guilty by overcoming their will and constitutional rights is worth it.
Are these good lies or bad lies? Is it good that lying produces confessions from heinous criminals or bad that lying produces false confessions from people who can't withstand the psychological pressure? As Judge Smith notes, the distinction cannot lie with the outcome, since there is no way to distinguish the innocent who falsely confessed from the guilty at the time of the interrogation. As the court has a videotape of the Thomas confession, it won't have to rely on the cops' characterization of their interrogation, which some might think to be a somewhat unreliable description of their own possible wrongdoing.
Leave in the Thomas case sets up a potentially huge issue, an acknowledgement that while lying by police may be enormously effective, it does so by undermining constitutional rights in the process. The same effectiveness that provides confessions by the guilty provides confessions by the innocent, and without constitutional rights to protect both, the latter will suffer along with the former. This cannot be tolerated by our system.
There is one additional quote from Judge Smith that bears noting.
At Friday's in-chambers argument, after considerable discussion on the issue, [defendant's lawyer Jerome] Frost asked Smith: "Your honor, can you tell me what a depraved indifference murder is?"
Smith replied: "No, but I can cite some cases."
Never have so few words damned the criminal justice system so well. This is criminal law.
H/T Kathleen Casey