Fraudulently Induced Confessions

The jurisprudence on the use of police deception during interrogations is singularly unhelpful. Police may deceive in order to induce a suspect to confess, the courts tell us, unless they go too far. Police are permitted, for example, to feign sympathy for the suspect, lie about the existence of incriminating evidence, and falsely downplay the seriousness of the offense under investigation. But when police engage in other forms of deception, such as by offering false promises of leniency or misrepresenting the suspect’s Miranda rights, courts will balk and declare the resulting confession coerced. Yet neither courts nor commentators have successfully articulated why exactly the line is drawn where it is. Nor have they been able to prescribe how far the police may go with respect to other types of deception, such as misrepresentation of facts extraneous to the interrogation room, before they cross the line. Part of the reason is semantic. In other areas, the law distinguishes between coercion and deception. Coercion is generally thought of as depriving the actor of free will or, to put it more helpfully, putting the actor to an unfair choice of undesirable alternatives. But deception is different. Deception alters the actor’s perception of her choices so that, while she perceives herself to be making a rational choice of the more attractive alternative, a rational actor would have decided differently if she were aware of the true facts. That is to say, while the person under duress is not acting of her own free will, the deceived person is exercising her free will to make a choice that is apparently, but not actually, in her best interests. Thus, police deception is rarely coercive in the true sense of the word. During interrogation, the suspect’s reaction to questioning can be seen as a continuous set of decisions on her part as to whether exercise or forgo the right to remain silent. When police lie about the strength of the evidence against the suspect or falsely promise leniency, the suspect still exercises free will to weigh the costs and the benefits of standing by the right to remain silent and to make a reasoned choice between exercising or forgoing that right. Police deception manipulates that choice by altering the perceived costs and benefits of standing by the right to remain silent, but it does so within a framework in which the suspect exercises free will. Thus, most police deception is non-coercive. Police deception is truly coercive only where, if the false information were true, the suspect would be deprived of the ability to make a fair choice, as where the police point an unloaded gun at the suspect’s head. The problem with most police deception is not that it is potentially coercive but that it is potentially fraudulent. And the key to evaluating non-coercive police deception is materiality, an element of fraud across many different contexts. A confession induced by non-coercive police deception should be suppressed if the deception relates to a fact material to the suspect’s decision to confess. Such a fact is material if, but only if, a reasonable person in the suspect’s position would have attached importance to the fact in deciding whether to exercise or forgo the right to remain silent. This standard explains much of the case law in this area. While it might be common for police deception to induce confessions it is rare that the deception would have caused a reasonable person, particularly one having just been informed of her rights, to speak. Only when, given the deception, a reasonable person aware of her rights would have chosen to forgo the right to remain silent and instead speak can we say that the confession was fraudulently induced and should be suppressed.