More ‘Polite Coercion’ – Confessions, Lies, and Videotape in New York

Goya Witches.jpegIn our entry of January 15th, we discussed two pending Court of Appeals cases testing just how far law enforcement can go, when it comes to misrepresentation, mendacity, and prevarication.

Both cases, People v. Thomas and People v. Aveni, were decided last week, and both came down in favor of the defendant, although they’d arrived at the Court of Appeals in very different postures.

Thomas reversed a decision by the Appellate Division, Third Department. That decision, in turn, upheld a ruling by the Rensselaer County Court which denied the defendant’s motion to suppress a videotaped confession.

In People v. Aveni, on the other hand, the Court of Appeals dismissed the prosecution’s appeal from an Appellate Division (Second Department) decision reversing a trial court ruling that denied suppression. (Aveni also touches, incidentally, on the issue discussed in our February 6th entry; Mr. Aveni had been convicted of criminally negligent homicide for injecting the decedent, allegedly, with the drugs that had killed her.)

In both cases, the defendant was essentially told that his confession could save the decedent’s life. In neither case was that true.

The Court of Appeals’ decision in Aveni doesn’t really have the power, as precedent, that the decision in Thomas has. All the Court of Appeals is saying, in legal terms, in Aveni, is that it doesn’t have the power to second-guess the type of decision made by the Second Department in that case (you can watch the legal wheels turning via the link above). A look at the Second Department’s decision is instructive, nonetheless.

Mr. Aveni was told, according to an investigator who testified at the suppression hearing, that the decedent (who was already dead)

“was at the hospital and the doctors are working on her, but it’s imperative; did she use any drugs or did she take anything, because whatever medications the doctors give her now could have an adverse effect on her medical condition. You — she’s okay now but if you lie to me and don’t tell me the truth now and they give her medication, it could be a problem.”

There’s nothing wrong, legally, with a lie – as long as it’s law enforcement telling it. The Second Department cited a number of cases for this proposition, including, ironically, the very decision overturned by the Court of Appeals in Thomas. The court also drew an example from a venerable Court of Appeals opinion, People v. McQueen. In McQueen, a detective had told 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, according to the Second Department, what the detective didn’t do, in McQueen, was “threaten [the defendant] with repercussions if she chose to remain silent.” In Aveni,

by contrast, the detectives not only repeatedly deceived the defendant by telling him that Camillo [the decedent] 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.

It’s the implicit threat, rather than the outright lie, that the court sees as a problem.

In Thomas, the threat was explicit. An infant had been admitted to a hospital. Doctors at the hospital found evidence of possible septic shock and possible trauma to the head. The child’s father (the defendant) was hauled in for questioning, and was interrogated for 9 1/2 hours (not counting 15 hours in a mental health unit after he expressed suicidal thoughts). Investigators told the defendant that if he didn’t confess to dropping the child not only would the child (who was already brain dead) die, but the child’s mother would be charged.

After telling the investigators that he would ‘take the fall’, and after the investigators told him how it must have happened (all the while assuring him that they were sure it was all an accident), the defendant participated in a demonstration, choreographed by a police officer, of how the baby had to have been dropped.

The Court of Appeals, noting that the People must prove beyond a reasonable doubt that a confession was voluntary and that, to determine voluntariness, a court must look at the ‘totality of the circumstances’, decided that

[m]ost prominent among the totality of the circumstances in this case, is the set of highly coercive deceptions. They were of a kind sufficiently potent to nullify individual judgment in any ordinarily resolute person and were manifestly lethal to self-determination when deployed against defendant, an unsophisticated individual without experience in the criminal justice system.

The court found that the police tactics violated the constitution and violated New York statutory law, as well. Specifically, they fell afoul of Section 60.45(2)(b)(i) of the Criminal Procedure Law. This section states that a statement is ‘involuntarily made’ if it’s obtained “by means of any promise or statement of fact, which . . . creates a substantial risk that the defendant might falsely incriminate himself.”

According to the court, ‘”[t]he various misrepresentations and false assurances used to elicit and shape defendant’s admissions manifestly raised a substantial risk of false incrimination.” To illustrate this, the court pointed out that there was “not a single inculpatory fact in defendant’s confession that was not suggested to him.”

Although that name is not mentioned in the opinion, the investigators’ methods here – heavily criticized by the court – smack of the Reid Technique: an initial conclusion, based on very little evidence, that the defendant is the perpetrator; repeated accusations (combined with repeated assurances that the whole thing must be an accident); presenting the defendant with a hypothetical scenario, then browbeating him into agreeing that it’s the truth.

We would argue that, when it comes to using the Reid Technique, Thomas contains an implicit threat.