How courts apply these lines, however, is not only contradictory but blurry.
Falling between the lines
In Training Cops to Lie - PT 1, we saw how 14 trial, state and federal appellate judges disagreed 7 to 7 in the case of Miller v. Fenton, 796 F.2d 598 (3rd Cir. 1986), on whether factually undisputed deception was legal.
Let's look at some other court decisions.
In In re D.A.S., 391 A.2d 255, (D.C. App. 1978), the police pretended to compare the defendant's fingerprints to a fingerprint on the victim's checkbook and pronounced them a match. In truth, no fingerprints were recovered. The defendant confessed to the robbery and the Court held that the deception did not render the confession involuntary.
In re D.A.S. came on the heels of Oregon v. Mathiason, 429 U.S. 492 (1977) in which the Supreme Court upheld police falsely telling the defendant they had found his fingerprints at the scene. See also, Michigan v. Mosley, 423 U.S. 96 (1975) (confessing suspect had been told that another person had named him as the gunman.)
In Illinois v. Perkins, 496 U.S. 292 (1990), the Court held 8 to 1 that Perkins was not coerced when he confessed to committing a murder to an undercover police officer who was falsely posing as another inmate.
In State v. Cayward, 552 So. 2d 971 (Fla. App. 2 Dist. 1989), police interviewed a 19-year-old suspect in the rape and murder of his 5-year-old niece. Prior to the interview, the local prosecutor told police it was lawful to falsely tell the suspect they'd had the victim's underwear scientifically tested and the results showed semen stains on it from him - and to show him a false lab report of the results.
The suspect came to the station voluntarily, waived his Miranda rights, and, after denying his involvement, confessed when told about and shown a false lab report.
The trial court concluded the deception was would not coerce an innocent person to confess. The appellate court disagreed. It held the verbal lie was lawful but the false documents were not. Notably, the court seemed much more concerned that such documents could inadvertently make their way into court records and be mistakenly viewed as true than with the coercive effect of the reports on the defendant. Other courts have disagreed with Florida.
In Arthur v. Commonwealth, 480 S.E. 2d 749 (Va. 1997), the appellate court held that police showing a suspect "dummy" reports indicating his fingerprints and hair were found at the crime scene was not unduly coercive. The court addressed the Cayward court's concern by noting the police kept the false documents in a separate file from the actual investigative and lab reports.
In Sheriff, Washoe Co. v. Bessey, 914 P. 2d 618 (Nev. 1996), the Nevada Supreme Court criticized the Cayward court's distinction between a verbal lie and the same lie "embodied in a piece of paper," concluding there was no real difference. The court upheld police creating a "falsified lab report" showing a defendant had committed a sexual assault against a minor, stating, "There was nothing about the fabricated document presented in this case which would have produced a false confession."
In People v. Henry, 518 N.Y.S.2d 44 (N.Y. App. Div. 1987), the court upheld a confession obtained after police confronted the defendant with fake polygraph test results indicating he had lied to police.State v. Whittington
Still other courts have sided with the Cayward decision and reversed convictions based upon confessions obtained after the police presented fabricated evidence to the defendant.
In State v. Patton, 362 N.J. Super. 16 (App. Div.) (2003), an officer posing as an eyewitness was "interviewed" on an audiotape that was later played to the defendant who, despite his early denials of involvement, confessed upon hearing the tape. The trial judge permitted the admission of the confession and the false tape. The subsequent conviction was reversed on appeal.
How should police draw the lines on investigative deception?