Law enforcement officers may mislead suspects during questioning. For example, an officer may falsely tell a suspect that an accomplice has confessed, or may falsely state that incriminating physical evidence has been found. Courts generally permit such deception, reasoning that misrepresentations can be effective tactics and are not necessarily so coercive as to render a resultant confession involuntary or unreliable. But just how far can an officer go?
Generally, deception during interrogation is permissible. The leading Supreme Court case in this area is Frazier v. Cupp, 394 U.S. 731 (1969). In that case, an officer interrogating a murder suspect falsely told the suspect that his cousin, a suspected accomplice, had confessed. The suspect himself then confessed, but later claimed that his confession was involuntary. The matter reached the Supreme Court, which rejected the defendant’s argument. It stated that the officer’s use of deception was “relevant” yet “insufficient in our view to make this otherwise voluntary confession inadmissible.” The Court did not pronounce a bright-line rule, emphasizing that voluntariness must always be assessed in light of the totality of the circumstances.
The most important North Carolina case in this area is State v. Jackson, 308 N.C. 549 (1983). Officers were investigating a stabbing death and suspected the defendant. They found a knife they believed was the murder weapon, obtained an identical knife, and used an officer’s blood to create a bloody thumbprint on the blade of the replica knife. While interrogating the defendant, they falsely told him that an eyewitness had identified him leaving the scene of the crime, and they falsely asserted that they had his bloody fingerprints on the murder weapon – a claim they supported by showing him pictures of the replica knife. The defendant made incriminating statements and was charged with murder. A superior court judge suppressed the statements as involuntary, but the Supreme Court of North Carolina reversed.
The court stated that “[t]he use of trickery by police officers in dealing with defendants is not illegal as a matter of law.” Rather:
The general rule in the United States, which this Court adopts, is that while deceptive methods or false statements by police officers are not commendable practices, standing alone they do not render a confession of guilt inadmissible. The admissibility of the confession must be decided by viewing the totality of the circumstances, one of which may be whether the means employed were calculated to procure an untrue confession. False statements by officers concerning evidence, as contrasted with threats or promises, have been tolerated in confession cases generally, because such statements do not affect the reliability of the confession.
Exceptions and limitations. In some jurisdictions, courts have held that fabricating documents, reports, and physical evidence is not permissible. In State v. Cayward, 552 So.2d 971 (Fla. Ct. App. 1989), officers were interrogating a 19-year-old man suspected of sexually assaulting a murdering a young child. They created fictitious lab reports purporting to find that “semen stains on the victim’s underwear came from the defendant,” and used the bogus reports in interrogating the suspect. He confessed, but later argued that his confession was involuntary. The appellate court agreed, drawing a “bright line” and opining that there is “a qualitative difference between the verbal artifices deemed acceptable and the presentation of the falsely contrived scientific documents challenged here.”
In State v. Patton, 826 A.2d 783 (N.J. Super. Ct. App. Div. 2003), “[a] law enforcement officer, posing as an eyewitness, was ‘interviewed’ on an audiotape that was later played to defendant who, despite his early denials of involvement, upon hearing the audiotape, confessed to [a] murder.” The fabricated interview – identified as a ploy – was subsequently played to the jury at trial to support the voluntariness of the defendant’s confession. The reviewing court, in an extensive opinion collecting cases pointing in both directions from across the country, ruled that at least when fabricated physical or documentary evidence is used at trial, things have gone too far and the defendant’s confession must be suppressed.
Whatever the merits of such a rule, it does not seem to be the law in North Carolina. The Jackson case discussed above involved fabricated physical evidence and did not result in suppression. Perhaps falsified lab reports or other documents would lead to a different result, or perhaps a combination of falsehoods could combine to convince a court that a suspect’s confession was involuntary.
Another factor that is relevant to voluntariness is a suspect’s age. Yet our appellate courts have allowed officers to mislead even suspects who are not yet adults. In State v. McKinney, 153 N.C. App. 369 (2002), the defendant was a 16-year-old suspected of committing a murder. Officers “exaggerated the evidence against defendant and actually lied to the defendant about” a witness’s statement. The defendant contended that this rendered his subsequent confession involuntary but the court of appeals disagreed, reasoning that the misrepresentations were less significant than those permitted in Jackson.
All in all, the North Carolina cases in this area suggest that officers have considerable leeway to use misrepresentations during interrogations. The fact that the Frazier Court deemed the use of falsehoods “relevant” to the voluntariness analysis suggests that there must be some limit to their permissible use. But we don’t have reported appellate cases that clearly delineate where the limit may be.
Other Countries. I often wonder whether this or that feature of American law is a global outlier. In this instance, most other English-speaking countries also seem to allow law enforcement officers to mislead suspects during questioning. See Carol A. Brook et al., A Comparative Examination of Police Interrogation of Criminal Suspects in Australia, Canada, England and Wales, New Zealand, and the United States, 29 Wm. & Mary Bill Rts. J. 909 (May 2021) (reporting that such tactics are permitted in Australia, Canada, and New Zealand, and that they may at times be permissible in England and Wales). But see Irina Khasin, Honesty is the Best Policy: A Case for the Limitation of Deceptive Police Interrogation Practices in the United States, 42 Vand. J. Transnational Law 1029 (“While some trickery by the police may be permissible under the provisions of [English law], English courts have held that the intentional misrepresentation of evidence is unfair and violates the law. . . . English judges routinely exclude any confessions gained through deception as unreliable.”)
Further reading. A comprehensive national resource on this topic is C. T. Drechsler, Admissibility of confession as affected by its inducement through artifice, deception, trickery, or fraud, 99 A.L.R.2d 772 (Originally published in 1965).