The New York Court of Appeals heard oral argument in the cases of Adrian Thomas and Paul Aveni, addressing the issue of police lying and manipulating an interrogation to obtain a confession. The Thomas case has been the subject of a number of posts here. The Aveni case not so much, as he prevailed in the Appellate Division, Second Department, while Thomas lost on appeal.
The New York Times offers some bits of the argument:
“What is acceptable pressure?” Chief Judge Jonathan Lippman asked Kelly L. Egan, a lawyer representing the Rensselaer County district attorney’s office. “What’s O.K. and what’s not O.K. in terms of deception?”
It would appear from the story that at least some of the court saw little question that the interrogation was coercive.
During arguments, several judges — among them Judge Lippman, Robert S. Smith and Eugene F. Pigott — expressed sympathy for Mr. Thomas’s contention that his confession was made under unfair pressure.
But concluding that the pressure brought to bear upon Adrian Thomas was wrong is just the beginning of the inquiry. It wasn’t sufficient that the court found the Thomas interrogation wrong, but that it fashion guidance as to what is right.
“We have precedent that says the police can use deception,” Judge Victoria A. Graffeo said. “What we are trying to figure out is when you enter this area of inappropriate pressure?”
“Don’t threaten to arrest people’s wives whom you know are innocent,” [Thomas’s lawyer, Jerome K.] Frost answered.
“That’s a narrow rule,” Judge Pigott said.
“My rule is you don’t threaten a person’s vital interests — custody of children, freedom of their spouses,” Mr. Frost said.
At the core of the prosecution’s argument is that the use of deceit and manipulation should not be prohibited, or be given overwhelming weight in determining whether a confession is voluntarily made. They would prefer the trade-off of Miranda warnings combined with the effectiveness of the Reid technique in obtaining a confession be tossed in a big pot and left to the trial judge to decide whether the confession was coerced. Most of the time, the fact that a person waived his right to remain silent and to counsel to be the predominant factor in concluding that the sucker asked for it.
But the question posed by both ends of the bench, where should the line be drawn between acceptable lies and unacceptable manipulation, is a hard one. Starting with Judge Graffeo’s descriptively correct but normatively dubious statement that precedent allows police to deceive, where is the conceptual ledge that prevents the slide down the slippery slope?
Frost’s answer, “you don’t threaten a person’s vital interests,” seems to be a good answer, but that’s likely because threatening to take away a person’s children or arresting a person’s spouse, is so far over the line that it lands firmly in safe territory. That a person will say or do anything to protect his family, including admit to a crime he didn’t commit, isn’t a huge stretch, but is it sufficient?
It’s far easier for courts to draw lines around objective deprivations. Denying a suspect food, drink, sleep is easy, and the police know this better than we do. More to the point, the offer of succor not only avoids the objective deprivation, but plays perfectly into the good cop, bad cop scenario which is integral to psychological manipulation.
What about the suggestion that it was all a big mistake, a big accident, and that if a suspect will only admit to the accident, this will all be over. After all, people aren’t arrested for accidents, for mistakes, right?
Judge Smith said telling someone his child will die if he does not clearly confess makes a suspect’s words less than voluntary. “How can it not overborne your will if you think there is even a small chance of saving your child’s life?” he asked Ms. Egan, the lawyer for Rensselaer County. He added that Mr. Thomas had only admitted to scenarios suggested to him by the police. “In all these hours of testimony, the defendant didn’t come up with anything that the police didn’t feed him first,” he said. “Isn’t that troubling?”
Judge Lippman seemed to agree. “What about the officers saying 67 times we know what happened is an accident?” he asked Ms. Egan. “And 140 some odd times that he wouldn’t be arrested. How do you square that with a voluntary statement on his part?”
The problem, of course, is that a trial judge, a jury, and the appellate panel in the Fourth Department didn’t seem to have any trouble concluding that Adrian Thomas’ confession was voluntary and true. As obvious as it seemed to the judges of the Court of Appeals, it was anything but obvious to everyone below.
There is a school of thought that suggests that if the judiciary and the public better understood the psychology of interrogation, the use of deception and manipulation in overcoming free will and coercing a person to admit to things that either never happened or things he wouldn’t otherwise be willing to speak about, this issue would be resolved. In practice, judges need rules and juries can’t be trusted to appreciate what happens in a situation which they’ve never experienced.
But coming up with a line beyond which police cannot go in their effort to get a suspect to confess isn’t easy. To describe in broad, vague terms is simple. To craft a rule for judges to apply that provides for clear and consistent application is not.