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 [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.”
- Elizabeth Barber, How much can police lie to suspects? N.Y. rulings suggest there’s a limit, The Christian Science Monitor (February 21, 2014).
- Innocence Project, Understand the Causes: False Confessions, (last visited March 24, 2014).
- People v. Aveni, 100 A.D.3d 228 (2d Dep’t 2012).
- People v. Aveni, 2014 WL 641511 (N.Y. Feb. 20, 2014).
- People v. Thomas, 2014 WL 641516 (N.Y Feb. 20, 2014).
- United States v. Bell, 367 F.3d 452 (5th Cir. 2004).
- McNeil v. Wisconsin, 501 U.S. 171 (1991).
- State v. Schumacher, 37 P.3d 6 (Idaho Ct. App. 2001).
- N.Y. Crim. Proc. Law § 60.45 [b][i] (McKinney 2009).
Supreme Court “Consents” To Expanding Warrantless Search Exception
For the past forty years, the United States Supreme Court has continually tinkered with the exceptions to the Fourth Amendment’s general prohibition on warrantless searches, including the allowance of warrantless searches that are conducted after the police have obtained voluntary consent from the individual whose property is being searched. In 1974, the United States Supreme Court ruled that the Fourth Amendment recognizes a warrantless search of a premises when the police obtain the consent of an occupant who shares common authority over the property. United States v. Matlock, 415 U.S. 164, 170 (1974). Thereafter, the Court expanded its decision in Matlock to include situations where a warrantless search of a premises was conducted based upon the “consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not.” Illinois v. Rodriguez, 497 U.S. 177, 186 (1990). In 2006, the Court again modified its prior decisions on this issue, ruling that the consent of one co-occupant was insufficient to authorize police to conduct a warrantless search of a premises if another objecting occupant was “physically present” at the time. Georgia v. Randolph, 547 U.S. 103 (2006).
On Tuesday, the Court decided to rework its decision in Randolph, and severely limit its future application. In Fernandez v. California, the Court held that the rule set forth in Randolf was “extremely narrow,” and does not apply to situations when the police have received consent from one co-occupant after the objecting occupant had been removed from the premises. The Court explained that the co-occupant’s initial objection to the police’s entry is not everlasting, and can be overridden by the consent of a co-occupant after the objecting party is no longer present. Notably, the Court held that the consent of a co-occupant will authorize a search even when the objecting party has been removed from the premises involuntarily, including when removal occurs as a result of police conduct. The Court explained that searches occurring after the police have removed the objector will be permissible so long as the reason for removing the occupant was “objectively reasonable.” In Fernandez, the police had removed the objecting co-occupant after he was suspected of being involved in a robbery and believed to have battered his girlfriend moments before the police had arrived. Several hours later, the police returned to the residence and conducted a warrantless search of the premises based upon the girlfriend’s consent.
Three members of the Court (Justices Ginsburg, Sotomayor, & Kagan) disagreed with the majority’s decision, noting that “[i]n its zeal to diminish Randolph, today’s decision overlooks the warrant requirement’s venerable role as the “bulwark of Fourth Amendment protection.” They explained that “[r]educing Randolph to a “narrow exception,” the Court declares the main rule to be that “consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search. Such a declaration “has it backwards, for consent searches themselves are a “`jealously and carefully drawn’ exception” to “the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house as unreasonable per se.” (citations omitted).
- Adam Liptak, Justices Rule on Home Searches and Defendants’ Frozen Assets, The New York Times (February 25, 2014)
- Orin Kerr, Five thoughts about Fernandez v. California, The Chicago Times (February 26, 2014)
Impeaching Arresting Police Officers
In this primer, the author offers observations on successful strategies for impeaching an arresting police officer when your client claims innocence.
By Steve Cobb, Pace Law School Class of 2014
Nothing is more commonplace than a criminal defendant who claims to be innocent. But what can be done when it appears that the arresting officer’s testimony is in fact incorrect or false? Criminal defense lawyers face a significant disadvantage when they seek to discredit arresting officers. Nonetheless, it can be done. Here is a three-step approach that may be helpful.
STEP ONE: OBTAIN FAVORABLE POLICE TESTIMONY: In order to expose false testimony, the arresting officers should be subjected to cross examination early in the case, when their memories are still fresh and they have not had a chance to be prepared by the prosecutor. Preliminary hearings, suppression hearings, or refusal hearings give the defense attorney a good opportunity to acquire information and lock the arresting officer(s) into their testimony. What we are looking for here are inconsistencies in the testimony, from the witness himself and between the witnesses if there are more than one.
The purpose of the pre-trial examination is not to make the officer look like a liar, but rather to gather information and find the truth. Thus, direct or open ended questions should be used instead of leading ones, so that the witness can fully describe what happened in his own words. Avoid arguing, and make a sincere effort to get complete testimony on the record. If you are patient and courteous, you may be amazed at how readily the false testimony seems to reveal itself. Remember Lieutenant Columbo? He was an excellent interrogator – friendly, but very knowledgeable, and tenacious. And effective!
I found a good resource in the Wisconsin Public Defender’s office, Cross Examining Police Officers and Agents: Who’s in Control Now? Here, the author mentions:
- Take away the police officer’s edge by being more familiar with the facts than he is – review the materials and visit the crime scene, if necessary.
- Try to establish that some element of the offense is missing.
- Force the police officer to commit to his/her version of events.
Once the (hopefully contradicting) testimony has been obtained, you may move for suppression or dismissal. Should the judge deny your motion for pre-trial relief, as is likely, you may now go to trial.
STEP TWO: TRIAL. The goal here is to highlight the inconsistencies in the police officer testimony. Perhaps the testimony is self-contradictory or it contradicts the testimony of another officer. You may also, as suggested by the Wisconsin Public Defender, try to establish that an essential element of the charge is missing. When the prosecutor rests, you can move to dismiss the charges based on “legally insufficient evidence” pursuant to CPL 290.10. Should that motion be denied, then move on and present your case. In the event that you lose the trial, move on to Step Three, a pre-sentencing motion to set aside the verdict.
STEP THREE: 330.30 MOTION TO THE TRIAL COURT: Now you can make use of all the inconsistent testimony you obtained! Under CPL 330.30, a trial court has only limited authority to set aside a verdict (and dismiss the criminal charges), but one of the permissible grounds is that the conviction was based on “legally insufficient evidence,” that is, testimony that is “incredible as a matter of law.” Pursuant to the statute, and People v. Carthrens, 171 A.D.2d 387 (1991), a trial court may not reverse a conviction based on the weight of the evidence, but it may set aside the verdict if the testimonial evidence was so contradictory and so insufficient that a rational jury could not have found, in any way, that the elements of the offense were proved beyond a reasonable doubt.
Obviously, the standard of proof required to win this motion is very high, and of the sixteen cases I researched involving a motion made on these grounds, only one of them People v. Quinones, succeeded. There is also case law holding that a challenge based on insufficiency of evidence will not work where there is more than one prosecution witness. See, e.g., People v. Ledwon, 46 N.E. 1046 (N.Y. 1897), People v. Delamota, 960 N.E.2d 383 (N.Y. 2011).
Will this approach work? Well, it can’t hurt, and should the trial court deny your request for relief, at least you have established a good foundation from which to make a “weight of the evidence” argument to the Appellate Division after the conviction.
- N.Y. CPL § 290.10 (McKinney 2013).
- N.Y. CPL § 330.30 (McKinney 2013).
- People v. Ledwon, 46 N.E. 1046 (N.Y. 1897).
- People v. Delamota, 960 N.E.2d 383 (N.Y. 2011).
- People v. Quinones, 402 N.Y.S.2d 196 (App. Div. 2d Dep’t 1978).
Symposium on the Future of Stop and Frisk
The Criminal Justice Society at Pace Law School held a symposium last Tuesday (Oct. 22, 2014) on the future of stop and frisk in New York City. Prof. David Dorfman moderated, and the panelists were Prof. Randolph McLaughlin, of Pace Law School; Mayo Bartlett, a Pace alum and private criminal defense attorney in White Plains; Heather MacDonald, a fellow at the Manhattan Institute; and Police Officer David Rullo, a Pace student and a police officer in New Jersey.
The panelists began by debating the merits of Judge Scheindlin’s decision in Floyd, finding that the NYPD’s stop and frisk practices unconstitutional. The disagreement was not so much over the Judge’s holding as it was over the facts upon which it rested, with Ms. MacDonald asserting that some of the fact finding was not supported by the evidence. There was also disagreement about whether the Judge was correct in concluding that the racial breakdown of stop and frisk should reflect population demographics, as opposed to the demographics of who commits crimes.
Substantial discussion concerned the need for training police officers: Officer Rullo thought training on the constitutional dimensions of stop and frisk was inadequate and Ms. MacDonald thought the police should have training on how to treat people with respect. Ultimately, Ms. MacDonald raised a concern that hamstringing the police in stop and frisk would lead to more crime, while Mr. Bartlett and Prof. McLaughlin focused on how many innocent people are arrested under current stop and frisk practices. All of the panelists were concerned about the impact of stop and frisk – or of stopping the stop an d frisk policy – on the community.
The panelists also proposed solutions. Mr. Bartlett emphasized the need for incorporating police officers into the community. A reform of the stop and frisk policy based on police presence would foster community relationships that could help police officers deter crime.
With the NYC mayoral election looming, many people worry about whether the crime rate will rise after Floyd and with a new administration. Many people are debating whether we should reintroduce community policing and, if so, what the impact will be on the community.