May Law Enforcement Officers fabricate evidence to induce confessions and at trial introduce the fabricated evidence to support a claim of a voluntary confession?
In State v. Patton, (A-6716-99T4) the Appellate Division was faced with this question.
Early on August 10, 1998 Gloria Deen Hoke was found dead in Camden. After receiving an anonymous tip of an armed man, police arrested defendant on a weapons offense and brought him to police headquarters. At three p.m. on August 11, 1998 defendant was interrogated concerning the Hoke murder. After signing a Miranda card, defendant claimed he had been at his girlfriend’s home the night of the murder. After arresting defendant but prior to his interrogation the police had via audiotape recorded a false eyewitness account of Hoke’s murder. After defendant denied involvement in the murder the police informed him they had an eyewitness account and played for him the fabricated tape. After hearing the account, defendant confessed to the murder of Gloria Deen Hoke.
Through pretrial motion and at trial defendant moved to suppress his confession challenging the use of the fabricated audiotape as coercive. The trial judge held the use was not coercive stating “[p]sychologically sophisticated interrogation techniques are proper because, while they are certainly effective enough to elicit confessions from guilty suspects they would not cause an innocent person to confess.” The judge held due to the effective nature of trickery to induce confessions, the police must have flexibility in choosing means of doing so. The court reasoned that flexibility of the police in choosing methods of interrogation is necessary since confessions are of such high importance to law enforcement, and therefore held trickery by police is a “…necessary and proper means of ensuring effective law enforcement and crime control.”
The prominent issue on appeal was whether the use of tangible fabricated evidence, here an audiotape, created by police and used to induce confessions is lawful. The issue raises two important questions; whether a confession induced by such evidence is voluntary and whether the use of such inducement during interrogation and trial comports with both Federal and State Constitutional protections.
Prior Supreme Court cases have held certain kinds of trickery by law enforcement officers during interrogation to be lawful, though no delineation of appropriateness has been established. The Court has warned certain psychological techniques could be just as coercive as physical coercion, outlawed in 1936 in Brown v. Mississippi, 297 U.S. 278 (1936). Many prior federal and state courts have upheld types of trickery including police officer’s false claims of incriminating evidence against the defendant. Different from that type where the falsity comes straight from the police officer’s own mouth, in the present case the falsity is fabricated tangible evidence.
Other jurisdictions have dealt with the issue of police fabricated materials used to induce confessions. In State v. Cayward, 552 So. 2d. 971 (Fla. Dist. Ct. App. 1989), review dismissed 562 So. 2d 347 (Fla. 1990) police fabricated scientific reports stating semen stains on the victim’s underwear came from defendant. The fabricated report was presented to the defendant during interrogation and shortly thereafter the defendant confessed. The Florida court held that deception does not in itself make the confession involuntary but the Cayward court held police fabrication of evidence “offends our traditional notions of due process of law under both federal and state constitutions” based on an assertion that neither suspects nor the public would expect police to manufacture documents or physical evidence against a person. The Cayward court also noted fabrication of evidence by police was a practical problem since it seemed real and could end up being presented in court or to the press, reducing confidence that documents that appear to be valid are actually valid.
Other jurisdictions have addressed the rule announced in Cayward. In State v. Kelekolio, 849 P.2d 58 (1993), a case involving verbal misrepresentation of evidence possessed by police, the Kelekolio court held confessions induced by “extrinsic falsehoods” (misrepresentations of facts outside the scope of the crime) likely to elicit untrue statements or confessions regardless of guilt were per se inadmissible whereas “intrinsic falsehoods” (deliberate falsehoods innate to the facts of crime) including misrepresentations by police “regarding the existence of incriminating evidence” were subject to a “totality of the circumstances” test to determine if such trickery corrupted the confession to the point it was not voluntary.
In the present case, predictions of the Cayward court, that fabricated evidence would eventually be presented at trial in evidence became a reality. Both the state and the defendant informed the jury the tape was false and created by the police officers. The state presented the tape to illustrate the context of defendant’s confession, that it was voluntary. The tape contained inadmissible hearsay of defendant’s prior bad acts, including a domestic-violence restraining order against him. If defendant were to cross-examine Investigator Falco, one of the fabricated tape’s creators, the investigator would have to admit the prior acts mentioned were truthful. Since the jury was told the police had created the tape to induce a confession, the court reasoned there was a reasonable inference that the audiotape had enough truth to convince the defendant that the speaker was an eyewitness to the murder.
The court stated the larger issue raised regarding presentation of the tape at trial was that it created a “roadmap” of the state’s case. The fabricated tape included statements that: defendant had argued with the victim, was abusive to women, was associated with drug users and shot the victim in the back while she was running down the alley. This information was inadmissible at trial since the defendant could not cross-examine the speaker. Therefore the court held, the problems arising from fabrication of tangible evidence created even bigger problems than those enunciated in Cayward. Here, the fabrication corrupted not only the interrogation but also the trial itself. The court held “This is too heavy a price to pay for eliciting a confession.”
Traditionally a court will determine whether a confession is coerced by considering whether defendant’s will was overborne by police conduct. State v. Presha, 163 N.J. 313 (2000) This is ascertained through the court’s consideration of the totality of circumstances, including conduct of police, of the defendants arrest and interrogation. State v. Smith, 32 N.J. 501 (1960) and later cases “impose[] a mandatory burden on all courts to test the admissibility of confessions not only by the ordinary rules of evidence, but by the deeper constitutional requirement of fundamental fairness.” State v. Driver, 38 N.J. 255, 282 (1962). A “searching and critical” appellate review is required of police-obtained confessions. State v. Pickles, 46 N.J. 542, 577 (1966). In State v. Reed, 133 N.J. 237, 269 (1993), the New Jersey Supreme Court established that to satisfy Miranda’s requirement of a knowing waiver, police officers must inform a suspect whether an attorney has been retained and whether that attorney is available for the suspect. Concurring with other jurisdictions that banned fundamentally unfair police conduct violative of due process, the court in Reed reasoned such a ban was necessary because “the atmosphere of custodial interrogation is inherently coercive and protecting the right against self-incrimination entails counteracting that coercion.” Id at 255. The Reed court rejected the totality of circumstances test and instead adopted a per se rule.
The court in the present case agreed with the decision in Reed that the totality of circumstances test is not without limit. The court reasoned certain interrogation techniques are so improper that a totality of circumstances application is not enough to ensure that the confession was voluntary and utilization of an improper technique to elicit confessions leaves that confession per se inadmissible.
The court then applied these principles to the present case, holding the use of police-fabricated evidence in order to induce a confession then used at trial to support the voluntariness of the confession is a per se violation of due process. The court stated despite the invalidation of a confession to murder, “the sanctity of the constitutional protections for all remains paramount”.