Criminal Law's Cool - Deep Dive Episode Three - Police Promises (Lies) During Interrogation

The Court Approved Practice of the Government Lying to Suspects during Interrogation

TODAY'S CASE: PEOPLE V. Scott plass, DECIDED BY THE APPELLATE DIVISION, SECOND DEPARTMENT, ON April 11, 2018

Today's topic: Police Promises (Lies) to Suspects During Interrogation

This week's deep dive takes us into the upside down world of interrogation of suspects by the Government, a world where nothing the police say to you can be trusted, and where everything you say can and will be used against you in a court of law.

People often imagine interrogation by the police as situations where sneaky, hard to detect violence is used or threatened to get suspects and witnesses to talk.  Nothing could be further from the truth.  Violence is probably the least successful interrogation technique.  The truth is that for a host of psychological reasons, many of which boiling down to the inability of people to believe that that they are "really" going to be arrested, the most successful way for the police to get information from people is just to ask them.  Maybe you lie to them a little, or maybe  you misrepresent the value of their "cooperation" a little, but in the end, if you just ask suspects or witnesses, you'll get buckets full of valuable information.  In the case of suspects, you will usually get buckets full of incriminating information from which there will likely be no recovery.

Today's case that will serve as a springboard will be People v. Plass, a recent decision out of the Appellate Division, Second Department on a case from Dutchess County.  The defendant in this case was accused (and ultimately convicted) of multiple counts of criminal sexual act in the third degree, endangering the welfare of a child, and other related charges.  A significant part of the case against the defendant included incriminating statements he made to the police.  Apparently, the police, in seeking to convince the defendant to discuss the case with them, suggested that by making incriminating statements, he would somehow obtain some advantage in his case.  The defense lawyer, at a pretrial hearing related to this claim, argued that this lie to the defendant created a circumstance where there might be a substantial risk that a suspect of a crime might falsely incriminate himself.   The trial judge denied this claim.  After the defendant was convicted after a trial, the defendant appealed to the Appellate Division on several grounds, including that the trial judge was wrong to deny his claim about the police lying to him during interrogation.

The Weird World of Being Interrogated as a Suspect in a Criminal Case

This case is a little thin on the facts, but let me put this set of circumstances into a little perspective.

The world of interrogation is a weird psychological place for people accused of crimes, and the police have learned how to take full advantage of it.  Entire books have been written, and methods developed, along with its own terminology to learn about and take advantage of people who are suspects in crimes.  The overwhelming abiding premise of these "methods" is that nothing but physical torture could ever convince an innocent person to admit to committing a crime that he or she did not commit.  To a large degree, the law, as interpreted and expressed by our Courts has fully bought into this fundamental premise.

And if you believe that nothing short of physical torture would ever bring someone to admit to committing a crime he or she didn't commit, then, like our Courts, you will have little use for claims that anything that the police say to a suspect could ever "make" someone confess the way pulling their fingernails out would.  There is nothing too unfair, no trick, nothing that would ever convince an innocent person to put pen to paper and sign off on having committed a crime.

And this case of People v. Plass, is unremarkable in that once again, our Courts have expressed, with a standard dismissive flourish of the pen, that mere lies by the police to suspects in criminal cases do not concern them.  These are simply standard, time tested interrogation techniques that do nothing more than get guilty people to confess, and so much the better.

To the defense claim that "implying that making statements against his penal interest would be to his advantage" the Appellate Division simply trotted out the old saw that "Generalized promises of leniency do not create a substantial risk that a defendant might falsely incriminate himself or herself."

And there it is. 

The Court conveniently fails to do us the courtesy of even letting us know exactly what the police officers said to the defendant (because it matters not) other than describing it as "an implication" that making "statements against his penal interests" would be "to his advantage".  Put that way, the Court is lulling us to sleep with legal terminology that was unlikely to be even close to the words used by the police when actually speaking to the defendant.

Do you think that the police said to the defendant in this case, "Would you like to make a statement against your penal interest?  If you were to make a statement against your penal interest, there is a small possibility that this could be to your advantage."  If the police officer were a Victorian gentleman, perhaps that might have been what was said, but the reality is that what was said was probably very different from that.

In my experience, Detectives are very careful about the words they use.  They don't talk to suspects about "confessions" or making "incriminating statements".  Detectives talk about "cooperation".  They just try to convince people to "cooperate."  In a false confession case I tried several years ago, the Detective kept trying to insist that all he asked of my client was that he "cooperate."   Ultimately, after a little teeth pulling (figuratively, of course) on cross examination, the Detective agreed that what he meant by "cooperating" was my client admitting that he committed a crime.  But while the Detective ultimately admitted that to me on cross examination, that would never have been something he would have said to a suspect he was interrogating.

They talk about cooperating in this context so that when they tell the lie about promises of leniency, it actually sort of makes some kind of sense.  For example, if the Detective says, "If you confess to committing a crime to me, I will let you go" that statement is ludicrous, right?  The job of a Detective is to arrest people who commit crimes.  Therefore, if you confess that you committed a crime to a Detective, it would be ludicrous for you to expect anything other than that you would be arrested, unless you believe that the Detective is very very bad at his job.  

On the other hand, if the Detective says, "If you cooperate with me, I may just let you go" that statement sounds like it kind of makes sense.  Cooperating is good.  Being cooperative with authority is something we expect to be rewarded.  It makes sense to be cooperative so that you can obtain a reward from authority.  Now in the peculiar setting of a person who has been arrested for something, and who is not used to being arrested, and who is utterly terrified of the process, when the authority says that cooperation can be rewarded, an arrested person's brain can seize upon this as a way to make this nightmare stop.  And they might just seize upon it so hard that they fail to see it for the trap that it really is.

For example, in my false confession case, my client told me that just this sort of discussion took place with the Detective.  The Detective had been interrogating my client on and off for more than 12 hours.  My client was desperate to make it stop.  He told me that at the end, he just seized upon the Detective's words that if only he would cooperate, he would just let him go. When my client said this to me, I translated what he just said to me into a slightly different way of saying the same thing.  "A Detective whose job it is to arrest people he believes have committed crimes told you that if you told him that you committed a crime, he would not do his job and let you go."  My client's response to me is typical of people who have experienced the strange psychological pressure of police interrogation.  He said that he recognizes now how insane that sounds, but that at the time it actually made sense.  He was desperate to believe that there was a way to make the nightmare end.  Being "cooperative" seemed like it was the path to making it end.

And so it was most likely in this Plass case.  The Detectives didn't talk to Mr. Plass about "making statements against his penal interest" I don't believe.  They were asking him to cooperate.  And his cooperation was going to be rewarded.  The Court failed to include exactly what the police "implied" here, whether it was release without bail, dismissal of the case, a "slap on the wrist", probation, or the old favorite, "the judge will go easy on you".

This business of cooperation in the form of making incriminating statements being beneficial to a defendant is a widely held popular belief that is propagated by television portrayals of the criminal justice system.  It is something that people say as if it is true, that confessing often and early is somehow a good thing for the accused.  

No.  It isn't. 

When a suspect makes statements during interrogation in New York, the prosecutor does in fact "tell the judge about it" just like the lying interrogators will say - just not for the purpose and not to the effect that the suspects are led to believe.  Suspects expect their "cooperation" to be rewarded.  But the reason that prosecutors alert the judge at arraignment that the accused has "cooperated" is NOT to let the Judge know to be lenient on the accused.  It is exactly the opposite - to note the strength of the Government's case and to give the Judge extra incentive to set bail or  set higher bail than the judge might have otherwise.

But as the Second Department reaffirms once again in this Plass case, our law does not give too much credit to the notion that non-physical, verbal interrogation techniques of any kind, except perhaps in some extreme circumstances, can violate due process. 

Our Courts believe, it seems, that lies to suspects are the quickest path to the truth.

By Don A. Murray, Esq.

Mr. Murray is a veteran New York City criminal defense lawyer, and founding partner of Shalley and Murray who has spent his 27 year career exclusively devoted to criminal defense.  He has written extensively about the New York City Criminal Justice System and he has regularly consulted on various projects in the entertainment industry relating to NYC Criminal Court.  Most recently he consulted on the set of the NBC Miniseries, The Slap to ensure that a Brooklyn arraignment scene appeared authentic.