Tagged: interrogations

Documentary: In the Closed Room

BY: Signe Skov Thomsen, Producer Assistant at the Good Company Pictures.

Would you confess to a crime you didn’t commit?

In the Closed Room is a documentary, currently in production with an anticipated completion date at the start of 2018, which is dedicated to the vital subject of false confessions. It is intended to raise awareness of the perpetual injustice caused by false confessions, to generate a vibrant debate that can ignite and lead to change, and to contribute to the much needed fight for a more transparent and just interrogation process.

For over two years Emmy-nominated director Katrine Philp has been following the defense attorney, Jane Fisher-Byrialsen (Korey Wise’s lawyer from the Central Park Jogger Case), as she fights to exonerate the wrongfully convicted and to raise awareness of the coercive and manipulative techniques that are being used during police interrogations.

The coerced confession of Brendan Dassey documented in the Netflix series Making a Murderer outraged the viewers. But, Dassey’s case is far from unique. According to the Innocence Project, 25% of overturned cases involve some kind of a false confession. Through three of defense attorney Jane Fisher-Byrialsen’s cases this documentary focuses on and uncovers the widespread phenomenon of false confessions.

sister-kick-copy-sm-croppedWhy do so many people admit to horrible crimes they did not commit? Why don’t they maintain their innocence? Those who broke under the pressure during interrogation shared that trained interrogators can get anybody to confess to anything – and often people get convicted with no other evidence than their own false confession.

As Jane Fisher-Byrialsen shared,

Although I believe that lawyers can do amazing things when they are willing to fight for their clients, I don’t always think that it is enough to make the larger changes that we need in society.  Therefore I agreed to participate in this documentary in the hopes that it would raise awareness around the problem of false confession.

Similarly, as Dean Strang of Making a Murderer shared,

This important new documentary will help to spread understanding of the very real phenomenon of false confessions and help us to understand why they happen and what we can do about them.

The creators of the documentary kindly ask anyone who believes in this project and in the importance of bringing the issue of false confessions to the forefront of our criminal justice discussion, to please support the making of the documentary as every small or large amount makes a difference.

DOJ Adopts New Policy Requiring Electronic Recording of Statements

The Justice Department has announced a new policy that will require federal law enforcement agencies to electronically record interviews with suspects.  According to Attorney General Eric H. Holder Jr.,

Creating an electronic record will ensure that we have an objective account of key investigations and interactions with people who are held in federal custody. It will allow us to document that detained individuals are afforded their constitutionally protected rights.

The new policy will require federal law enforcement agencies to record interactions with a detained suspect during the time between the suspect’s arrest and initial appearance before a judge. Notably, the new policy also suggests that officials should consider using electronic recording devices during other investigative situations, including witness interviews.

This is a stark change from the Department’s prior policy, which expressively prohibited the use of recording equipment by law enforcement agencies when conducting interviews with suspects. The Justice Department was previously concerned that the use of recording devices would undermine investigative techniques of federal agencies, and would discourage suspects from talking. The Department also once expressed that jurors may frown upon FBI interviewing techniques, and have “unfavorable impressions of agents” had they heard verbatim accounts of such interrogations.

Mr. Holder discounted these concerns, explaining that federal officials should be more committed to a process that exemplifies evenhanded enforcement of the law, and the new policy would “provide verifiable evidence that our words are matched by our deeds.” He noted that it is of great importance for federal agencies to ensure that the statements of suspects are accurately recorded, and that suspects are afforded their constitutional rights during interrogations with federal agents.

National Association of Criminal Defense Lawyers President Jerry J. Cox was pleased to hear about the Justice Department’s policy change, noting that the use of electronic recording during interviews

protects the accused against police misconduct, protects law enforcement against false allegations, and protects public safety by ensuring a verbatim record of the interrogation process and any statements.

Mr. Holder has already begun the implementation of the new policy, and has instructed United States attorneys and agency field offices to begin training sessions. As of July, the new policy will apply to the FBI, DEA, ATF and U.S. Marshals Service.


NY Court of Appeals Upends Police Tricks Behind Interrogation Doors

False confessions have long been recognized as one of the leading causes of wrongful convictions. Case studies have proven that an individual’s confession to a crime is not always indicative of the confessor’s actual guilt. In fact, a number of external factors may lead an individual to falsely confess to committing a crime. According to studies conducted by the Innocence Project, many false confessions have been prompted by conditions in which the confessor was placed under  duress during police interrogations, or was prodded to give false information as a result of police coercion or subterfuge tactics. Laurie Shanks, clinical professor of law at Albany Law School in Albany, recently explained that “[t]here’s a perception that people don’t confess to crimes they didn’t commit, [b]ut the science is that absolutely they do.”

Yet, the rule of law determining the voluntariness of a confessor’s statement, when such statements are adduced by police subterfuge, has remained a vital and perplexing issue within our criminal justice system. The admissibility of such confessions has been a hotly debated topic among criminal defense practitioners and prosecutors, irrespective of recent case studies proving the fallibility of such confessions. In spite of recent findings, prosecutors have continued to hold the upper hand when arguing that such confessions are voluntary and admissible at trial, relying on the proposition that certain police ruses are essential to conducting meaningful interrogations of suspects, and vital to the police’s ability to expeditiously solve certain crimes.  Under this guise, the Courts have heeded to the government’s “demands” and have consequently become more laxed in uprooting such questionable police tactics –noting that confessions are “essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.” McNeil v. Wisconsin, 501 U.S. 171, 181 (1991). As such, courts around the nation have routinely accepted that “deceit and subterfuge are within the ‘bag of tricks’ that police may use in interrogating suspects.” State v. Schumacher, 37 P.3d 6, 13-14 (Idaho Ct. App. 2001); See also United States v. Bell, 367 F.3d 452, 461 (5th Cir. 2004) (observing that deception is “not alone sufficient to render a confession inadmissible”).  

In New York, however, it appears that the courts are becoming less reluctant to address this significant legal issue , and more inclined than many of their sister state courts to fully determine on a case by case determination whether a confession could be deemed involuntary when police misrepresentations work to overcome a confessor’s will. See N.Y. Criminal Procedure Law § 60.45 [2][b][i]  (treating as “involuntarily made” a statement of a defendant that was  elicited “by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself”).

Notably, the New York Court of Appeals has recently made clear that not all police subterfuge is acceptable during the interrogations of suspects. People v. Thomas, 2014 WL 641516 (N.Y. 2014). In Thomas, the defendant had been prodded by police to take responsibility for injuries suffered by his four-month-old son, who died from intracranial injuries purportedly caused by abusively inflicted head trauma, in order to save his wife from arrest. The Court held that the defendant’s confession,  admitting that he had inflicted traumatic head injuries on the infant, was involuntary as a result of “[t]he various misrepresentations and false assurances used [by] [police] to elicit and shape [the] defendant’s admissions.” Id. The court explained that the police officers false representations to the defendant had manifestly raised a substantial risk of false incrimination. The Court was extremely troubled by police lying to the defendant “that his wife had blamed him for [their] [son’s] injuries and then threatened that, if he did not take responsibility, they would “scoop” Ms. Hicks out from the hospital and bring her in, since one of them must have injured the child.” Id.  The Court also observed that “there [was] not a single inculpatory fact in defendant’s confession that was not suggested to him. He did not know what to say to save his wife and child from the harm he was led to believe his silence would cause.” Id.

The New York Court of Appeals also recently affirmed the Second Department’s decision in People v.  Aveni, 100 A.D.3d 228 (2d Dep’t 2012) where the appellate court  had also found that the defendant’s confession was coerced  as a result of the police repeatedly deceiving the defendant about the status of his girlfriend’s health condition. In Aveni, the defendant had been prompted by police to make incriminating statements about the herion overdose of his girlfriend. During interrogation, the police had falsely told the defendant that his girlfriend was still alive, “and implicitly threaten[ed] him with a homicide charge if he remained silent.” The court explained that the police made the defendant believe that “the consequences of remaining silent would lead to the [girlfriend’s] death, since the physicians would be unable to treat her, which “could be a problem” for him.” Id. In upholding the Second Department’s decision, the NY Court of Appeals observed that “[t]he false prospect of being severely penalized for remaining silent, raised by defendant’s interrogators, was, in the court’s view, incompatible with a finding that defendant’s confession was voluntary beyond a reasonable doubt.” People v. Aveni, 2014 WL 641511 (N.Y. 2014).  It noted that “the Appellate Division used the correct legal standard in its reversal, [and] [i]ts determination that the potential to overwhelm defendant’s free will was realized was plainly one of fact.” Id.

Steven Drizin, clinical professor at Northwestern University School of Law in Chicago commented on the recent decisions in New York, noting that “[t]he court did not set any hard and fast rules, but it did issue some clear warnings that these tactics will be scrutinized closely in future.”  He explained that until now “[t]here’s been too much deference given to police officers, and they’re accustomed to having free rein with suspects behind interrogation doors.”

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