The New York Court of Appeals has issued a landmark decision on coercive interrogation tactics in People v. Adrian Thomas.1 It overturns what is most likely a wrongful conviction based entirely on the coerced confession of a young father accused of murdering his 4-month-old son.
Writing for a unanimous court, Chief Judge Jonathan Lippman reaffirmed the bedrock principle that regardless of how convinced the police are of a suspect’s guilt, they “may not by coercion prove its charge against the accused out of his own mouth.” The decision implicitly overrules the long-established but unconstitutional holding of People v. Tarsia that shifted the burden to the defendant to show that deceptive tactics are coercive.2Thomas further clarifies that although tactics likely to induce a false confession will render the resulting statement involuntary, that may not be inverted into a rule that tactics are not coercive unless they are likely to induce a false confession.
Thomas discredits the assumption that deceptive interrogation tactics are merely a neutral police tool with no necessary connection to voluntariness. Rather, deceptions are coercive when they undermine the right against compelled self-incrimination.
Perhaps the most radical aspect of Thomas is its citing Garrity v. New Jersey and People v. Avant to reaffirm the broad principle that the state may not compel a person to waive his Fifth Amendment rights by threatening his “vital interests,” which encompass the right to engage in “substantial or fundamental exercise of life, liberty, and the pursuit of happiness.”
To fully appreciate the importance of Thomas, one must look at how far courts have departed from Fifth Amendment principles. The lower court decisions overruled by Thomas are typical of how courts reflexively find confessions voluntary so long as the police give the defendant Miranda warnings and a Coke. But a Miranda waiver is merely consent to be questioned, not consent to incriminate oneself, let alone to be tricked into a confession. The only purpose of deception is to make a suspect say what he would not say if he knew the real facts. Therefore, deceptive tactics necessarily call into question whether the resulting statement was the product of a knowing and voluntary waiver of the right against self-incrimination.
The leading case until Thomas was People v. Tarsia, which treated deceptive interrogation tactics as a protected species. Tarsia not only shifted the burden to the defendant to prove the tactics coercive, it applied a higher standard of coerciveness than merely overbearing the will. The defendant had to show that the deceptions were “so fundamentally unfair as to deny due process,” or alternatively, that “a promise or threat was made that could induce a false confession.”
Thomas has exposed the unconstitutionality of this reasoning.
The prosecution of Adrian Thomas began when a doctor precipitously told the police that the Thomas baby’s sudden respiratory failure was due to “murder” by non-accidental head trauma. Armed with this murder diagnosis, the police set out to obtain the proof from Thomas’s own mouth. He was relentlessly interrogated for 91/2 hours, all of which was videotaped. The police told him that if he did not explain how the baby was “injured” they would go arrest his wife. At the same time, they assured him over and over that if he would just say he had thrown the baby down in an impulsive moment of frustration without meaning to harm him, this would be considered an “accident.” They promised that if he acceded to this scenario he would not be charged with a crime. On the other hand, if he continued to deny having done anything, he and his wife could face charges of intentional murder. He was also told, falsely, that the baby was still alive and that the doctors could save him if Thomas would only give them the “information” they needed.
Thomas, worn down by hours of relentless interrogation, grieving for his son, anxious about his wife’s possible arrest and duped by the interrogators’ lies, adopted the suggested accident scenario. He was promptly arrested.
The confession was the only evidence against him. At trial, leading specialists in pediatric neuropathology and infectious diseases showed that the baby’s symptoms and death were caused by a rapidly-acting pneumococcal infection and not abuse, let alone murder. The local doctor, however, held fast to his belief in head trauma, seconded by the Medical Examiner and an anti-child-abuse advocate who considered the confession to be part of the medical history. Such is the power of a confession to influence medical diagnosis and a jury verdict.
The lower courts saw nothing coercive about the interrogation. Purporting to apply the totality of circumstances test, they emphasized that the police took Thomas to the station house in a car with no partition between the front and back seats, left the door to the interrogation room open, “repeatedly” offered him “food and drink” (a soda and a bag of chips after he confessed), and were “friendly and supportive.” The threats to arrest Thomas’s wife were explained as a reasonable investigation.
Despite having a complete videotape of the interrogation, the lower courts managed to overlook the massive deceptions perpetrated on Thomas. The courts appeared to be just as taken in as Thomas by the officers’ assurances that they were only there to “help” and not get him “in trouble.” The courts never noticed that Thomas was induced to admit to a crime by the officers’ insisting for 91/2 hours that it was not a crime.
These oversights were ironic, considering that the same courts precluded expert testimony on police interrogation tactics, saying that the jury was “perfectly capable” of recognizing them by watching the video.
The Appellate Division, Third Department, did recognize that the “information for the doctors” ruse was deceptive, but found it not coercive because it would induce any decent parent to make a true, not a false confession. Applying Tarsia, the court concluded that Thomas had failed to prove that the deceptions were so fundamentally unfair as to violate due process or create a substantial risk of eliciting a false confession.
Lippman’s analysis began by making clear that it is only and always the state’s burden to prove that a confession was not induced by coercion, not the defendant’s burden to prove that it was. “The task is the same when deception is employed in the service of psychological interrogation.” The state may not “effectively eliminate” the right to silence “by any coercive device.”
Thomas also reaffirms that the test of coercion is whether it overbears the will or, as the court phrased it, whether deceptive tactics were “sufficiently potent to nullify individual judgment in any reasonable person.” This implicitly overrules Tarsia’s heightened standard whereby a deception is not coercive unless it is “so fundamentally unfair as to deny due process.”
In a lengthy quote from the 1961 Supreme Court decision, Rogers v. Richmond, Thomas makes clear that coercive tactics are unconstitutional regardless of whether the resulting confession is reliable. It is therefore unconstitutional to find a confession voluntary on the ground that the tactics used to elicit it would not have induced a false confession. The court explained that under CPL §60.45, the use of false confession-inducing tactics is “an additional ground for excluding statements as ‘involuntarily made,’ not a license for the admission of coerced statement a court might find reliable.”
Under Thomas courts can no longer discount the coerciveness of threats to investigate a family member unless the suspect makes a statement. Where the interrogators threatened to arrest Thomas’s wife unless he explained why the baby stopped breathing, “the issue is not whether it reflected a reasonable investigative option,” but whether it placed impermissible pressure on Thomas to incriminate himself.
Thomas further makes clear that informing a suspect of his Miranda rights does not insulate the subsequent questioning from coerciveness when the police deploy deceptions that contradict and undermine those very rights. In other words, the police may not say, “You have the right to remain silent, but if you do, we will arrest your wife and you could be charged with intentional murder.” The police may not tell a suspect, “Anything you say can be used against you in court, but if you adopt our accident scenario you won’t be charged.” Falsehoods are coercive when they make the “defendant’s constitutionally protected option to remain silent seem valueless.”
Thomas also demonstrates that the “totality of circumstances” analysis may not be selectively limited to the absence of overt restraint or abuse. If the police are threatening to arrest one’s wife, it makes no difference that they are “friendly” and offer food. If the police deceive the suspect into thinking that his only choices are between admitting to an accident or being charged with intentional murder, it is irrelevant whether the door to the interrogation room is open or shut.
In returning to the principle that interrogators may not obtain a statement by threatening “vital interests,” the court has made clear that the threats need not be as extreme as those used against Thomas. The decision’s reliance on Garrity and Avant, which involved threats to economic livelihood, shows how broadly “vital interests” may be construed.
In sum, although Thomas does not attempt to create bright-line rules, it gives significant guidance to police and lower courts about what psychological tactics are impermissibly coercive.
The court’s analysis was possible only because it had a complete, objective record of the interrogation. If there had been no video, there would have been nothing but the officers’ suppression hearing testimony that the 91/2 hour interrogation was merely a conversation where Thomas initially said it was an accident but finally confessed. As a Canadian court observed, “It is only by watching these interrogations that one can experience the full flavour of the intensity of the questioning, and the psychological manipulation of the accused.”3
Considering how easy it is to record station house questioning, it is astonishing that courts have so unquestioningly found that the prosecution has met its burden to prove the confession voluntary, based on nothing but the word of the same officers whose conduct is at issue.
Ten years ago, the Massachusetts Supreme Court, fed up with the foot-dragging of the Legislature and the police, invoked its authority to decide “how and under what conditions evidence will be admitted in our courts.”4 It ruled that when the prosecution proffers a confession unaccompanied by at least an audio recording of the full interrogation, the defendant is entitled to a strong adverse inference. Recording quickly became standard practice. Nothing prevents New York State from doing the same.
1. People v. Thomas 2014 NY Slip Op. 01208. Adrian Thomas’s case is the subject of the award-winning documentary “Scenes of a Crime” by Grover Babcock and Blue Hadaech.
2. People v. Tarsia, 50 NY2d 1, 11 (1980).
3. R. v. Chapple, 2012 ABPC 229 (Provincial Court of Alberta 2012). Videotaping the full interrogation is established police practice in Canada.
4. Commonwealth v. DiGiambattista, 813 NE2d 516, 535 (Mass. 2004).
Lorca Morello is staff attorney at The Legal Aid Society and author of its amicus curiae brief in ‘People v. Thomas.’