State v. Griffin ( 2021 )

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STATE v. GRIFFIN—CONCURRENCE AND DISSENT
ECKER, J., concurring in part and dissenting in part.1
The interrogating police detectives lied to the defen-
dant, Bobby Griffin, about evidence of his guilt, threat-
ened to arrest his family members, falsely indicated
that the crime of which he was accused exposed him
to the death penalty, and falsely indicated that he would
face a lesser charge if he confessed to the theory of
the crime proposed to him by the interrogating officers.
The majority acknowledges that these types of interro-
gation tactics can be coercive in some circumstances,
and expresses disapproval of some of them, but ulti-
mately concludes that each of these deceptive tactics
was noncoercive in the present case. I respectfully dis-
agree. The flaw in the majority’s analysis is twofold.
First, it gives insufficient weight to the coercive effect of
certain tactics used by the police to extract a confession
from the defendant. Second, it fails to acknowledge or
to appreciate that these tactics were not discrete and
unrelated but, rather, integrally coordinated parts of a
well established and widely used interrogation method
specifically designed to employ psychological manipu-
lation as a means to overwhelm a suspect’s will. Seeing
the interrogation for what it was—which is to say,
assessing the cumulative effect of the numerous coer-
cive tactics employed in the present case in their total-
ity—it is clear that the state did not meet its burden of
proving that the defendant’s confession was voluntary.
I reach this conclusion by application of settled legal
principles in parts I and II of this opinion. At the end of
part II, I address the majority’s response to this analysis.
Part III, although not necessary to the conclusion I
reach in this particular case, goes on to discuss in
greater detail the particular interrogation tactic of lying
about inculpatory evidence and explains why we should
adopt a less tolerant attitude toward this tactic in the
future.
I
The United States Supreme Court recognized in its
watershed decision, Miranda v. Arizona, 384 U.S. 436,
445, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), that ‘‘[a]n
understanding of the nature and setting of this in-cus-
tody interrogation is essential to our decisions today.’’
Although the issue presently before us is the voluntari-
ness of a confession following a valid waiver of
Miranda rights, it is similarly essential to understand
how the specific tactics contested by the defendant fit
into the well documented interrogation method typi-
cally used by law enforcement officers. I begin with a
more complete picture of the method employed in the
defendant’s interrogation, which, as I later explain,
reflects a particular application of broadly utilized inter-
rogation techniques. Although there may not be univer-
sal consensus as to the propriety or wisdom of these
techniques, there is no question that they are designed
to work cumulatively to extract a confession from a
suspect whom the interrogator believes is guilty.
A
The two police detectives interrogating the defendant
initially allowed him to offer his own account of his
whereabouts on the night in question, how the gun
seized from his house came into his possession, and
what he knew about the shooting. For the first couple
of hours, the defendant disclaimed any participation
in the crime. In response, the interrogators repeatedly
asserted that they already had evidence that proved
that the defendant was the shooter. The interrogators
told the defendant, falsely, that two eyewitnesses had
identified him from a photographic array as the shooter
and as one of two men who were attempting to rob the
victim, that fingerprints had been recovered from shell
casings found at the scene that the police were ‘‘gonna
match to [the defendant’s] prints,’’ and that one of his
coconspirators had given a statement that incriminated
the defendant. They emphasized the fact that the (non-
existent) eyewitnesses were strangers to the defendant
and asserted that, as such, their identification could not
be impeached at trial on the basis of a motive to lie
or bias.
Because of their purported certitude that the evi-
dence firmly established the defendant’s identity as the
shooter, the interrogators conveyed the idea to the
defendant that the sole purpose of the interrogation
was to help him by providing him with an opportunity
to explain why he had shot the victim. They character-
ized the victim as just an ‘‘asshole drug dealer’’ and ‘‘a
mope,’’ who ‘‘brought this on himself’’ by not handing
over the drugs and by making a comment about getting
his gun. They repeatedly suggested that the shooting
was an accident or an act of justifiable self-defense.
They told the defendant that, if that was the case, it
would make a ‘‘[h]uge difference in charges, huge differ-
ence in sentencing.’’
The interrogating officers also informed the defen-
dant that, if he instead exercised his right to remain
silent or continued to deny his involvement, things
would get ‘‘worse’’ for him.2 If he did not admit his role
in the accidental or justifiable shooting, he could or
would spend sixty-five years in jail or the state would
‘‘fry [him] . . . put [him] in the chair.’’ They repeatedly
made their point in terms that succinctly emphasized
the futility of resistance: if the defendant did not con-
fess, he was ‘‘fucked.’’
The threats made by the interrogators were multifac-
eted. The defendant was told that, because he had not
admitted culpability, his mother and sister probably
would be arrested for possession of the rifle recovered
from the house. The officers hammered the point that
the defendant was not facing a charge of ‘‘regular’’ mur-
der, but felony murder because he and another person
had robbed, or attempted to rob, the victim. The defen-
dant was told—falsely, with no basis in fact or law—
that ‘‘[t]he choice is yours,’’ that it is ‘‘up to you’’ which
crime he would be charged with because what he told
them, and what the officers in turn reported to the
judge, would determine whether he was charged with
‘‘felony murder or being in the wrong place at the wrong
time murder,’’ ‘‘[felony] murder, manslaughter.’’3
The defendant inquired how much prison time he
would get for manslaughter but was not given an
answer. Offered this ‘‘choice’’ in the face of the forego-
ing threats and fabricated evidence of guilt, the defen-
dant ultimately adopted the narrative proposed by the
officers and confessed to them that he accidentally had
shot the victim during the course of an attempted rob-
bery. The defendant, of course, was not charged with
manslaughter; he was charged with felony murder, the
very crime that his interrogators told him would be
avoided by a confession. It was all a ruse.
B
The interrogation tactics employed against the defen-
dant reflect a particular application of a method, com-
monly known as the Reid method, that has been the
subject of scholarly debate and judicial criticism for
decades.4 See, e.g., Miranda v. Arizona, supra, 384 U.S.
448–53; Dassey v. Dittmann, 877 F.3d 297, 320–21 (7th
Cir. 2017) (Wood, C. J., dissenting), cert. denied,
U.S. , 138 S. Ct. 2677, 201 L. Ed 2d 1072 (2018);
Dassey v. Dittmann, supra, 335–36 (Rovner, J., dis-
senting); A. Hirsch, Review, ‘‘Going to the Source: The
‘New’ Reid Method and False Confessions,’’ 11 Ohio St.
J. Crim. L. 803, 805–808 (2014); S. Kassin, ‘‘The Psychol-
ogy of Confession Evidence,’’ 52 Am. Psychologist 221,
222–24 (1997). The Reid Manual, the most widely used
and influential interrogation training manual in the
United States, sets forth tactics ‘‘for the interrogation of
suspects whose guilt, in the opinion of the investigator,
seems definite or reasonably certain.’’5 (Emphasis in
original.) F. Inbau et al., Criminal Interrogation and Con-
fessions (4th Ed. 2004) p. 209 (Reid Manual); see also
id., pp. 5–8 (distinguishing between ‘‘nonaccusatory’’
interview during which guilt or innocence is assessed
and ‘‘accusatory’’ interrogation). The Reid Manual sets
forth a nine step interrogation model.6 See id., p. 215.
Professor Richard A. Leo, one of the foremost schol-
ars on interrogation practices,7 explains that ‘‘each step
of th[is] interrogation process builds on and reinforces
the previous one so as to systematically neutralize the
suspect’s resistance, render him passive and compliant,
persuade him to agree to a minimizing scenario of how
he could have committed the crime, and then transform
his compliance into a full written statement. The [nine
step] method emphasizes that interrogation is a lengthy
and repetitive process in which the interrogator estab-
lishes psychological control over the suspect and gradu-
ally elicits a confession by raising the suspect’s anxiety
levels while simultaneously lowering the perceived con-
sequences of confessing.’’ R. Leo, Police Interrogation
and American Justice (2008) p. 113; accord G. Gudjons-
son, The Psychology of Interrogations, Confessions and
Testimony (1992) p. 62 (‘‘[a]ccording to the [Reid]
model, a suspect confesses (i.e., tells the truth) when
the perceived consequences of a confession are more
desirable than the anxiety generated by the deception
(i.e., denial)’’); see also Dassey v. Dittmann, supra, 877
F.3d 321 (Wood, C. J., dissenting).
Courts and commentators have categorized Reid’s
nine steps as falling into two overarching techniques,
frequently referred to as maximization and minimiza-
tion.8 See, e.g., United States v. Monroe, 264 F. Supp.
3d 376, 391 (D.R.I. 2017); In re Elias V., 237 Cal. App.
4th 568, 583, 188 Cal. Rptr. 3d 202 (2015), review denied,
Docket No. S228370, 2015 Cal. LEXIS 9243 (Cal. Septem-
ber 23, 2015); Commonwealth v. Cartright, 478 Mass.
273, 289, 84 N.E.3d 851 (2017); S. Drizin & R. Leo, ‘‘The
Problem of False Confessions in the Post-DNA World,’’
82 N.C. L. Rev. 891, 917 (2004); M. Gohara, ‘‘A Lie for
a Lie: False Confessions and the Case for Reconsidering
the Legality of Deceptive Interrogation Techniques,’’ 33
Fordham Urb. L.J. 791, 821–22 (2006); see also A. Hirsch,
supra, 11 Ohio St. J. Crim. L. 805 (categorizing steps
as confrontation and minimization); R. Leo, supra, pp.
150–55 (categorizing steps as use of positive and nega-
tive incentives). The maximization technique is designed
to convey ‘‘the interrogator’s [rock solid] belief that the
suspect is guilty and that all denials will fail. Such tactics
include making an accusation, overriding objections,
and citing evidence, real or manufactured, to shift the
suspects’ mental state from confident to hopeless.’’
(Internal quotation marks omitted.) In re Elias V.,
supra, 583; accord M. Kim, ‘‘When and Why Suspects
Fail to Recognize the Adversary Role of an Interrogator
in America: The Problem and Solution,’’ 52 Gonz. L. Rev.
507, 511 (2016–2017). ‘‘[T]he interrogator aggressively
confronts the suspect with the magnitude of his situa-
tion, hoping to convince him that he is in serious trouble
and likely to be punished severely.’’ M. Gohara, supra,
821–22. ‘‘The minimization technique is the opposite. It
is designed to provide the suspect with moral justifica-
tion and face-saving excuses for having committed the
crime in question. This technique includes methods
such as lulling suspects into a false sense of security
by blaming the victim and downplaying the seriousness
of the crime.’’ (Footnote omitted; internal quotation
marks omitted.) M. Kim, supra, 511–12; see also M.
Gohara, supra, 821. This tactic ‘‘communicates by impli-
cation that leniency in punishment is forthcoming upon
confession.’’ (Internal quotation marks omitted.) In re
Elias V., supra, 583.
‘‘[I]nterrogators will . . . commonly [say] that the
only way [that the suspect] can help himself is by provid-
ing the reasons he committed the crime. Usually, how-
ever, interrogators will first suggest possible reasons
or scenarios to get him to admit to it. . . . Interrogators
advance scenarios to persuade a suspect that if he
admits to the act he can—with the interrogators’ help—
control how that act is framed to other audiences (e.g.,
prosecutors, judges, juries, his friends and family, the
victim, the victim’s friends and family, the media, and
so on). In other words, he can explain his motive in a
way that will portray him in the most sympathetic light
and minimize his social, moral, and legal culpability.’’
(Citation omitted.) R. Leo, supra, pp. 152–53.
‘‘[T]he most significant and effective scenarios are
those that offer the suspect legal excuses or justifica-
tions for his alleged behavior. These types of scenarios
redefine the suspect’s mens rea (i.e., mental state) and
thus the formal elements of the crime such that the
suspect’s legal culpability is reduced or eliminated. For
example, it is common in murder investigations for
interrogators to suggest that the suspect killed the vic-
tim in self-defense. Because self-defense is not a crime,
the scenario suggests that the suspect will not be
charged or punished for admitting to it. It is also com-
mon in murder investigations for interrogators to sug-
gest that the suspect killed the victim accidentally, again
mitigating the criminality of the act and seemingly low-
ering the punishment if the suspect agrees to the acci-
dent scenario . . . . These scenarios are effective
because they ‘pragmatically’ communicate that the sus-
pect will receive a lower charge or lesser punishment
if he agrees to the suggested scenario . . . .’’ (Citations
omitted.) Id., pp. 153–54.
A particular application of one of these minimization
or maximization tactics may be deemed so egregious
as to be sufficient in and of itself to establish coercion.9
See State v. Baker, 147 Haw. 413, 435, 465 P.3d 860(2020) (‘‘a single coercive interrogation technique may
render a confession involuntary’’). Because these tac-
tics, however, are designed to work cumulatively and
synergistically to overcome a presumptively guilty sus-
pect’s resistance to admit his culpability; see R. Leo,
supra, p. 113; their impact cannot be dismissed when
individual tactics do not rise to this level. The totality
of the circumstances test demands consideration of
the cumulative impact of these tactics. See Dassey v.
Dittmann, supra, 877 F.3d 322 (Wood, C. J., dissenting)
(‘‘The majority finds some significance in the notion
that the detectives’ tactics were not per se coercive,
but that is a red herring. [The] cases cannot be assessed
based on one sentence, or one restroom break, or the
comfort (or lack thereof) of one room. The [United
States] Supreme Court has instructed that the voluntari-
ness inquiry requires a full consideration of the com-
pounding influence of the police techniques as applied
to this suspect.’’ (Emphasis omitted; internal quotation
marks omitted.)); Wilson v. Lawrence County, 260 F.3d
946, 953 (8th Cir. 2001) (‘‘a totality of the circumstances
analysis does not permit state officials to cherry-pick
cases that address individual potentially coercive tac-
tics, isolated one from the other, in order to insulate
themselves when they have combined all of those tac-
tics in an effort to overbear an accused’s will’’); State
v. Baker, supra, 423 (‘‘[c]rucially, a court must not ana-
lyze the individual circumstances in isolation, but must
weigh those circumstances in their totality’’); State v.
Grey, 274 Mont. 206, 211, 907 P.2d 951 (1995) (‘‘[s]everal
factors can culminate in a totality of circumstances that
render a confession involuntary’’).
The Hawaii Supreme Court’s recent decision in State
v. Baker, supra, 147 Haw. 413, is a good example of the
proper approach.10 That court identified seven separate,
potentially coercive interrogation tactics that had been
employed in that case, none of which was so individu-
ally coercive as to overcome the defendant’s will.11 See
id., 433–35. The court recognized, however, as have
other courts, that ‘‘[a]n interrogator’s use of multiple
coercive interrogation tactics in conjunction can exac-
erbate the coercive effect of the individual tactics. See
[Commonwealth v.] DiGiambattista, [442 Mass. 423,
438–39, 813 N.E.2d 516 (2004)] (explaining that . . .
coercive effect of . . . assertion about irrefutable evi-
dence of guilt is worsened when it is combined with
minimization tactics); [State v.] Rettenberger, 984 P.2d
[1009, 1017 (Utah 1999)] (‘The significance of the [false
friend technique] comes in relation to other tactics and
factors.’).’’ State v. Baker, supra, 433. It ultimately con-
cluded: ‘‘All of the tactics used [in Baker], except for
the improper gender stereotyping, made an implied
promise to [the defendant] that he would benefit if he
confessed and suffer adverse consequences if he did
not. The use of these tactics in conjunction with one
another exacerbated their overall coercive effect on
[the defendant] because they ultimately presented the
same implicit promise of gaining a benefit by confess-
ing—and receiving a detriment by not admitting
guilt.’’ Id.
II
I next turn to the voluntariness of the defendant’s
confession in the present case. It is important to empha-
size that not every minimization and maximization tac-
tic is coercive. See, e.g., Commonwealth v. Harris, 468
Mass. 429, 436–37, 11 N.E.3d 95 (2014) (particular mini-
mization tactics used were not coercive). Several tactics
employed in the present case are unchallenged and
are widely accepted as within the proper bounds of
interrogation. The tactics that are challenged include
engaging in false evidence ploys, threatening the defen-
dant’s family with arrest, maximizing the consequences
of not confessing, and suggesting that confessing would
be met with leniency. The majority purports to apply
the totality of the circumstances test, but its analysis
suffers from two related flaws. When addressing each
of the individual tactics, the majority unduly minimizes
its potential effect on the defendant. Then, having con-
cluded that none of these tactics is coercive per se, it
reaches the seemingly logical conclusion that they
could not have overcome the defendant’s will under
the totality of the circumstances. I first explain why
I take a different view of the coercive nature of the
individual tactics and conclude that their cumulative
effect rendered the defendant’s confession involuntary.
Following that explanation, I respond to the majority’s
critique of this opinion.
I begin with the false evidence of guilt presented to
the defendant, principally consisting of the supposed
existence of independent eyewitness identifications of
the defendant as the shooter and fingerprints on shell
casings found at the scene. I agree with the majority
that courts generally have not deemed such conduct,
in and of itself, sufficient to render a confession invol-
untary.12 Many courts have, however, recognized that
such ploys are a factor that should be considered when
determining whether a confession was coerced. See,
e.g., Frazier v. Cupp, 394 U.S. 731, 739, 89 S. Ct. 1420,
22 L. Ed. 2d 684 (1969) (‘‘[t]he fact that the police mis-
represented the statements that [the defendant’s com-
panion] had made is, while relevant, insufficient in our
view to make this otherwise voluntary confession inad-
missible’’ (emphasis added)); Mara v. Rilling, 921 F.3d
48, 80 (2d Cir. 2019) (misrepresentations regarding exis-
tence of eyewitness are ‘‘relevant to voluntariness’’);
Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir.
1992) (‘‘[t]he fact that the officer misrepresented to [the
defendant] the strength of the evidence against him,
while insufficient [by itself] to make [an] otherwise
voluntary confession inadmissible, is one factor to con-
sider among the totality of circumstances in determin-
ing voluntariness’’ (internal quotation marks omitted)),
cert. denied, 506 U.S. 1082, 113 S. Ct. 1053, 122 L. Ed.
2d 360 (1993); Green v. Scully, 850 F.2d 894, 903 (2d
Cir.) (noting that falsely informing defendant that his
fingerprints matched prints in blood in victims’ apart-
ment ‘‘is the type of police tactic that makes the issue
of voluntariness in this case such a close one’’ but
concluding that defendant’s statement revealed that he
confessed for entirely different reason), cert. denied,
488 U.S. 945, 109 S. Ct. 374, 102 L. Ed. 2d 363 (1988);
State v. Swanigan, 279 Kan. 18, 32, 106 P.3d 39 (2005)
(lies that fingerprints were found at scene and matched
to defendant ‘‘must be viewed as a circumstance in
conjunction with others, e.g., additional police interro-
gation tactics’’); Commonwealth v. Libby, 472 Mass. 37,
42, 32 N.E.3d 890 (2015) (‘‘the use of false information
by [the] police during an interrogation is deceptive and
is a relevant factor indicating a possibility that the
defendant’s statements were made involuntarily’’ (inter-
nal quotation marks omitted)); Commonwealth v. DiGi-
ambattista, supra, 442 Mass. 433 (‘‘our case law . . .
suggests that where the use of a false statement is the
only factor pointing in the direction of involuntariness,
it will not ordinarily result in suppression, but that if
the circumstances contain additional indicia suggesting
involuntariness, suppression will be required’’ (empha-
sis in original)); State v. Allies, 186 Mont. 99, 113, 606
P.2d 1043 (1979) (lying to defendant about how much
is known about his involvement in crimes was one of
two variables weighing heavily in court’s voluntariness
analysis); State v. Register, 323 S.C. 471, 479, 476 S.E.2d
153 (1996) (‘‘misrepresentations of evidence by police,
although a relevant factor, do not render an otherwise
voluntary confession inadmissible’’), cert. denied, 519
U.S. 1129, 117 S. Ct. 988, 136 L. Ed. 2d 870 (1997).
The majority discounts the relevance of the false
evidence ploys in the present case because most of the
statements regarding false evidence were made in the
first hour of the interrogation, when the defendant con-
tinued to deny his involvement and ‘‘pushed back’’ on
these claims. Part II of the majority opinion. I find this
temporal isolation to be a serious mistake because it
ignores the fundamentally integrated nature of the inter-
rogation tactics at issue and the cumulative and syner-
gistic effect, over time, of the various tactics employed
by the police. The entire point of the maximization and
minimization techniques is that they work together over
the course of the interrogation. See State v. Baker,
supra, 147 Haw. 423, 433. It is significant, moreover, that
the interrogators not only returned to the importance
of the eyewitness identifications after the defendant’s
initial push back but also cast the false evidence as
effectively unimpeachable—an assertion that could
only be intended to convince the defendant that resis-
tance would be futile. In addition, simply because the
defendant asserted that his fingerprints were not on the
shell casings does not mean that he was unconcerned
by the lead interrogator’s unequivocal statements that
the (nonexistent) prints were ‘‘gonna’’ match the defen-
dant’s. These lies about the strength of the evidence
against the defendant undoubtedly contributed to the
pressure on him to ‘‘choose’’ to confess to manslaughter
rather than to maintain his disavowal of responsibility
and face felony murder charges.13 The lies played an
obvious and essential role in communicating the drum-
beat theme of the Reid method, which is that resistance
is futile and confession is the only rational choice.
With regard to the threat to arrest the defendant’s
mother and sister, the majority acknowledges that this
threat ‘‘apparently was intended to exploit and play on
the defendant’s previously expressed concern’’ about
his family’s criminal exposure for the rifle. Part II A
of the majority opinion. The majority also refuses to
‘‘condone’’ this tactic and ‘‘acknowledge[s] that such
tactics can provide a basis for concluding that a confes-
sion is involuntary.’’ Id. I agree with each of these state-
ments, although I would have expressed my disapproval
of this tactic in far stronger terms. I disagree, however,
with the majority’s inexplicable decision to overlook
the coercive effect of this conduct simply because it
was the defendant who had initially raised this matter.
The logic of this point escapes me. If anything, the
defendant’s admitted concern about his family’s welfare
makes the tactic more coercive because it demonstrates
that he was susceptible to his interrogators’ exploitation
of that fear, and the interrogators used this psychologi-
cal vulnerability improperly to increase the pressure
on the defendant to confess. Given that the defendant
had stated from the outset that he would take responsi-
bility for possession of the rifle, and there was no evi-
dence that anyone else in the home knew about the
rifle; see State v. Rhodes, 335 Conn. 226, 234, 249 A.3d
683 (2020); his family members were not actually at
risk of criminal exposure, and it was coercive for the
interrogators to suggest that the defendant’s failure to
take responsibility for the shooting put them at such
risk. See People v. Dowdell, 227 Cal. App. 4th 1388, 1401,
174 Cal. Rptr. 3d 547 (2014) (‘‘[a] threat by [the] police
to arrest or punish a close relative, or a promise to free
the relative in exchange for a confession, may render an
admission invalid’’ (internal quotation marks omitted)),
review denied, Docket No. S220560, 2014 Cal. LEXIS
9829 (Cal. October 15, 2014), and review denied sub
nom. In re Lincoln, Docket No. S220800, 2014 Cal.
LEXIS 9837 (Cal. October 15, 2014).
With regard to the interrogators’ statements maximiz-
ing the consequences of not confessing, I agree in part
with the majority’s treatment of this conduct. There
was nothing improper about telling the defendant that
he could or would face a sixty-five year term of impris-
onment if he were convicted of felony murder, or even
murder. This was an accurate statement of the law,
consistent with the known facts of the crimes. See State
v. Evans, 146 N.M. 319, 328, 210 P.3d 216 (2009)
(‘‘[T]hreats that merely highlight potential real conse-
quences, or are adjurations to tell the truth, are not
characterized as impermissibly coercive. . . . It is not
per se coercive for [the] police to truthfully inform an
accused about the potential consequences of his alleged
actions.’’ (Citation omitted; internal quotation marks
omitted.)). I disagree with the majority, however, that
the lead interrogator’s reference to the death penalty
should not be given meaningful weight in the totality
of the circumstances analysis. The threat was emphati-
cally not an accurate statement of the law, but a rank
falsehood; the defendant could not have been exposed
to a potential death sentence. See People v. Holloway,
33 Cal. 4th 96, 115–17, 91 P.3d 164, 14 Cal. Rptr. 3d 212(2004) (contrasting cases in which officers properly and
accurately represented that death penalty was available
from cases in which officers improperly made false
representations regarding death penalty), cert. denied,
543 U.S. 1156, 125 S. Ct. 1302, 161 L. Ed. 2d 122 (2005).
Irrespective of the facts that it was ‘‘a single, isolated
statement’’ and that the other interrogator immediately
thereafter changed the subject; part II A of the majority
opinion; it defies common sense to conclude that the
possibility of a death sentence was shrugged off or
forgotten by the defendant. Cf. Green v. Scully, supra,
850 F.2d 903 (deeming it significant that improper
‘‘scare tactic’’ of referring to electric chair was not fur-
ther employed and that petitioner was told several times
that ‘‘this case was ‘not about the chair’ ’’).
The interrogator’s statement about the death penalty
was not the only misrepresentation of law made to the
defendant. The interrogators repeatedly indicated to
the defendant that, without a confession, he would face
a felony murder charge, but suggested that, if he admit-
ted that the shooting was accidental or in self-defense,
he would face far lesser charges, in particular, man-
slaughter. Again, none of this is true. Neither accident
nor self-defense is relevant when the elements of felony
murder are established. See, e.g., State v. Montgomery,
254 Conn. 694, 734, 759 A.2d 995 (2000); State v. Amado,
254 Conn. 184, 201–202, 756 A.2d 274 (2000); State v.
Lewis, 245 Conn. 779, 812, 717 A.2d 1140 (1998). The
‘‘choice’’ that the interrogators offered to the defendant
between being charged with felony murder (if he
refused to admit culpability) or with manslaughter (if
he confessed) was completely fabricated and terribly
misleading.14 ‘‘Unlike misrepresentations of fact, which
generally are not enough to render a suspect’s ensuing
confession involuntary, [p]olice misrepresentations of
law . . . are much more likely to render a suspect’s
confession involuntary.’’ (Internal quotation marks
omitted.) Johnson v. State, 268 So. 3d 806, 810 (Fla.
App. 2019); see also United States v. Lall, 607 F.3d 1277,
1285 (11th Cir. 2010); People v. Cahill, 22 Cal. App.
4th 296, 315, 28 Cal. Rptr. 2d 1 (1994), review denied,
California Supreme Court, Docket No. S020126 (June
2, 1994); State v. Valero, 153 Idaho 910, 913, 285 P.3d
1014 (App. 2012); Commonwealth v. Baye, 462 Mass.
246, 257, 967 N.E.2d 1120 (2012). ‘‘Although we do not
require a law enforcement officer to inform a suspect
of the penalties for all the charges he may face, if he
misrepresents these penalties, then that deception
affects our evaluation of the voluntariness of any
resulting statements.’’ United States v. Young, 964 F.3d
938, 944 (10th Cir. 2020).
The majority recognizes that the interrogators made
many statements suggesting that the defendant would
receive leniency in exchange for confessing. It dis-
misses the coercive effect of these statements because
the interrogators did not ‘‘definitively’’ promise
leniency, and case law recognizes that it is not coercive
to tell a defendant that cooperation would be to his
benefit. Part II A of the majority opinion. The first rea-
son, although supported by some authority, ignores
reality by failing to acknowledge that an officer’s
implied promise of leniency may be just as meaningful
to a lay defendant as a ‘‘definitive’’ promise of leniency.
See S. Drizin & R. Leo, supra, 82 N.C. L. Rev. 917 n.138
(citing psychology research addressing ‘‘ ‘[p]ragmatic
[i]mplication,’ ’’ which ‘‘refers to the sending and pro-
cessing of implicit meanings in communication, as
occurs when an individual ‘reads between the lines’ or
when information or meaning is inferred from what a
speaker is saying or suggesting’’). Many courts have
recognized that an implied promise of leniency can
convey the same message as an express one.15 See, e.g.,
United States v. Craft, 495 F.3d 259, 263–64 (6th Cir.),
cert. denied, 552 U.S. 1052, 128 S. Ct. 679, 169 L. Ed.
2d 532 (2007); People v. Cahill, supra, 22 Cal. App. 4th
311–15; Martin v. State, 107 So. 3d 281, 314 (Fla. 2012),
cert. denied, 570 U.S. 908, 133 S. Ct. 2832, 186 L. Ed.
2d 890 (2013); State v. Baker, supra, 147 Haw. 433; State
v. Smith, 162 Idaho 878, 885, 406 P.3d 890 (App. 2017),
review denied, Idaho Supreme Court, Docket No. 44499-
2016 (December 21, 2017); McGhee v. State, 899 N.E.2d
35, 38 (Ind. App. 2008), transfer denied, 915 N.E.2d 995(Ind. 2009); State v. Nicklasson, 967 S.W.2d 596, 606
(Mo.), cert. denied, 525 U.S. 1021, 119 S. Ct. 549, 142
L. Ed. 2d 457 (1998); State v. Old-Horn, 375 Mont. 310,
317, 328 P.3d 638 (2014); State v. L.H., 239 N.J. 22, 43–46,
215 A.3d 516 (2019). As the Massachusetts Supreme
Judicial Court noted: ‘‘We have long recognized that
false promises . . . as might excite hopes in the mind
of the prisoner, that he should be materially benefitted
by making disclosures can undermine a defendant’s
ability to make an autonomous decision to confess, and
are therefore properly regarded as coercive. . . . Such
promises may be either expressed or implied.’’16 (Cita-
tion omitted; internal quotation marks omitted.) Com-
monwealth v. Baye, supra, 462 Mass. 257–58; see also
Commonwealth v. DiGiambattista, supra, 442 Mass.
435–36 (‘‘[c]oercion may be readily applied by way of
implied threats and promises, just as it is by express
threats and promises’’); cf. State v. Phelps, 215 Mont.
217, 224, 696 P.2d 447 (1985) (although confession must
not be ‘‘obtained by any direct or implied promises,
however, slight,’’ alleged promise that is ‘‘couched in
terms of a mere possibility or an opinion . . . does not
constitute a sufficient promise to render a confession
involuntary’’ (internal quotation marks omitted)). The
question is not whether the officers spoke in definitive
or formally binding contractual terms, but whether a
reasonable person in the defendant’s position would
have interpreted their statements as a promise of
leniency. See Grades v. Boles, 398 F.2d 409, 412 (4th
Cir. 1968) (‘‘[t]he perspective from which the state-
ments must be viewed is that of the defendant’’); People
v. Conte, 421 Mich. 704, 739–40, 365 N.W.2d 648 (1984)
(‘‘[I]t is from [the] defendant’s perspective that we will
view the alleged promises. . . . The inquiry will be
whether the defendant is likely to have reasonably
understood the statements in question to be promises
of leniency.’’ (Citations omitted.)).
The second reason cited by the majority to condone
the interrogators’ false ‘‘suggestions’’ of leniency is that
it is permissible to tell a suspect that it would benefit
him to cooperate. Part II A of the majority opinion. This
is a correct and uncontroversial statement of the law,
but the point has no application to the contested state-
ments in the present case. It is true enough that the
interrogators properly could tell the defendant that, if
he took responsibility—whether claiming accident, self-
defense, or simply an intentional but regrettable act—
he could likely help himself.17 They properly could tell
him that, by doing so, he could face lesser punishment.
These would not be false statements. An early admis-
sion of responsibility could reduce the sentence ulti-
mately imposed. It is an entirely different matter, how-
ever, to falsely convey to the defendant that it was his
‘‘choice’’ and ‘‘up to him’’ as to whether he was charged
with felony murder or a far less serious crime (i.e., a
‘‘huge difference in charges’’).18 See United States ex
rel. Everett v. Murphy, 329 F.2d 68, 70 (2d Cir.) (‘‘[a]
confession induced by [the] police falsely promising
assistance on a charge far less serious than the police
knew would actually be brought is not to be considered
a voluntary confession’’), cert. denied, 377 U.S. 967, 84
S. Ct. 1648, 12 L. Ed. 2d 737 (1964); State v. McCoy, 692
N.W.2d 6, 28 (Iowa 2005) (officer can tell suspect that
it is better to tell truth, but, if officer tells suspect what
advantage is to be gained or is likely from making con-
fession, officer’s statement becomes promise of leniency
rendering statement involuntary). This was an implicit
promise that the interrogators could not keep, not only
because they lacked the authority to make good on
any such promise but, more importantly, because the
promise had no realistic basis in the law. As such, the
promise of leniency in the present case is a highly rele-
vant factor in assessing the voluntariness of the confes-
sion. See P. Marcus, ‘‘It’s Not Just About Miranda:
Determining the Voluntariness of Confessions in Crimi-
nal Prosecutions,’’ 40 Val. U. L. Rev. 601, 621–22 and
n.124, 622 n.129 (2006) (citing case law demonstrating
that promise of leniency does not, by itself, require
suppression of confession but is relevant factor in total-
ity of circumstances analysis, except when promise
lacks causal connection to decision to confess or prom-
ise is kept).
The timing of this particular aspect of the interroga-
tion also warrants consideration because the defendant
agreed to give a confession immediately after being
presented with this legally baseless ‘‘choice.’’ Under the
majority’s view that temporal proximity to the confes-
sion is key in assessing the coercive effect of an interro-
gation tactic, this tactic should be deemed particularly
significant given that the defendant’s confession imme-
diately followed his interrogator’s implied promise that
the defendant’s confession could result in only a man-
slaughter charge. Although the synergistic and cumula-
tive nature of the interrogation method at issue compels
me to disagree with the majority’s view regarding the
importance of temporal proximity generally, this partic-
ular aspect of the interrogation plainly was the tipping
point for the defendant, and the false information con-
veyed to the defendant in this respect should also be
given significant weight in assessing whether his confes-
sion was coerced.
Finally, it is important to consider that the promises
of leniency if the defendant confessed were juxtaposed
against threats that the judge would be told that the
defendant was not cooperating, which would be
‘‘worse’’ for the defendant. The Kansas Supreme Court
had this to say about such a tactic: ‘‘This court has held
that, without more, a law enforcement officer’s offer
to convey a suspect’s cooperation to the prosecutor is
insufficient to make a confession involuntary. . . .
Kansas appellate courts, however, have not addressed
the other side of the same coin . . . i.e., law enforce-
ment conveying a suspect’s lack of cooperation to the
prosecutor. A growing number of courts have disap-
proved [of] this tactic. Those not finding that it is coer-
cive per se regard it as another circumstance to be
considered in determining the voluntariness of the con-
fession.’’ (Citations omitted; emphasis in original; inter-
nal quotation marks omitted.) State v. Swanigan, supra,279 Kan. 33–34; see also State v. Rettenberger, supra,
984 P.2d 1018 (‘‘[p]romises of leniency necessarily imply
the threat of harsher punishment’’).19
The interrogators’ use of multiple, coercive interroga-
tion tactics plainly exacerbated the coercive effect of
each individual tactic. It took close to four hours for
the collective effect of these tactics to overbear the
defendant’s will to resist the interrogators’ pressure to
confess to accidentally shooting the victim. The fact
that the defendant failed to present evidence that he
had any specific characteristics that rendered him par-
ticularly susceptible to coercion20 does not negate the
coercive effect of this multidimensional strategy.21
‘‘[P]olice induce most false confessions from mentally
normal adults . . . .’’ R. Leo, supra, p. 234. The defen-
dant’s prior experience with the criminal justice system
is a factor that cuts both ways. Although such experi-
ence may further bolster the defendant’s understanding
of his Miranda rights, a study has demonstrated that
suspects with prior felony convictions are more vulner-
able than others to false evidence ploys. See R. Leo,
‘‘Inside the Interrogation Room,’’ 86 J. Crim. L. & Crimi-
nology 266, 295 (1996). ‘‘While [personal characteris-
tics] are pertinent considerations when assessing
whether, in the totality of the circumstances, the defen-
dant’s will was overborne . . . their significance is
context dependent and diminishes with the severity of
the police misconduct at issue . . . .’’ (Citation omit-
ted.) Commonwealth v. Baye, supra, 462 Mass. 262; see
also United States v. Young, supra, 964 F.3d 946 (‘‘[the
defendant’s] personal characteristics are not disposi-
tive, and they do not convince us that [the defendant]
could withstand the coercion created by [the federal
agent’s] legal misrepresentations and promises of
leniency’’); Green v. Scully, supra, 850 F.2d 902 (offi-
cer’s conduct is ‘‘[the] most critical circumstance’’).
Given the nature, variety, and pervasiveness of the
coercive tactics employed in the present case, I would
conclude that, under the totality of the circumstances,
‘‘the conduct of [the] law enforcement officials was
such as to overbear [the defendant’s] will to resist and
bring about confessions not freely self-determined
. . . .’’ (Internal quotation marks omitted.) State v.
Andrews, 313 Conn. 266, 321, 96 A.3d 1199 (2014). ‘‘The
use of these tactics in conjunction with one another
exacerbated their overall coercive effect . . . .’’ State
v. Baker, supra, 147 Haw. 433. The majority’s conclusion
to the contrary is not, in my view, a fair assessment of
the totality of the circumstances.
Before I turn to the question of whether the improper
admission of the defendant’s confession requires a new
trial, it is necessary to respond to several unfounded
criticisms leveled by the majority. The majority con-
tends that I have improperly discounted the trial court’s
finding that the defendant remained ‘‘ ‘calm and low-
key’ ’’ by failing to give that finding due weight in
assessing whether the defendant’s confession was vol-
untary, as the majority does; part II A of the majority
opinion; and by instead acknowledging the possibility,
supported by social science research, that psychologi-
cal, emotional, and cultural factors may cause a person
to adopt a mask of calm fearlessness. See footnote 21
of this opinion; cf. State v. Purcell, 331 Conn. 318, 356–
57, 203 A.3d 542 (2019) (drawing on sociolinguistic
research not presented at trial to support analysis).
I disagree with several of the underpinnings of this
argument.22 First, the issue is not whether the defendant
appeared to be ‘‘calm and low-key’’ during his interroga-
tion; indeed, contrary to the majority’s suggestion, I
fully accept this finding. The real question is what to
make of that demeanor. In my view, the well-known
phenomenon of masking and the social science
research on that subject—not to mention the interrogat-
ing officer’s own assessment that the defendant was
putting on a ‘‘tough guy’’ facade while being ques-
tioned—cast doubt on the trial court’s uncritical
assumption that the defendant’s outward demeanor
reflected an inner state of unpressured calmness. Sec-
ond, the fact that the defendant adopted a different
demeanor at one point during the interrogation, pre-
tending to be fearful of Quan Bezzle, supports rather
than undermines the possibility that the defendant was
engaged in masking. If we believe that the defendant
was concealing his true emotions by pretending to be
afraid of Bezzle, we must also take seriously the possi-
bility that he was concealing his true emotions by pre-
tending to be calm. The majority does not explain why
it chooses to discern one instance of deceptive demeanor
but dismiss out of hand the realistic possibility of a
second instance of deceptive demeanor by the same
person during the same interrogation. Third, the major-
ity draws on a well settled but inapt principle, namely,
that a fact finder may rely on demeanor, as one of many
factors, to assess a witness’ credibility.23 Because the
trial court’s determination of voluntariness is not a find-
ing of fact to which we must defer, it is proper to take
into account the research regarding masking and record
evidence consistent with that research. See State v.
Christopher S., 338 Conn. 255, 274–75, 257 A.3d 912(2021) (‘‘[T]he trial court’s findings as to the circum-
stances surrounding the defendant’s interrogation and
confession are findings of fact . . . which will not be
overturned unless they are clearly erroneous. . . .
[A]lthough we give deference to the trial court concern-
ing these subsidiary factual determinations, such defer-
ence is not proper concerning the ultimate legal deter-
mination of voluntariness. . . . [W]e review the
voluntariness of a confession independently, based on
our own scrupulous examination of the record. . . .
Accordingly, we conduct a plenary review of the record
in order to make an independent determination of vol-
untariness.’’ (Internal quotation marks omitted.)) The
majority further criticizes this opinion for failing to
focus on the defendant’s personal characteristics such
as his age, educational status, and intellectual function-
ing. The majority is correct that the defendant was over
the age of majority and exhibited no obvious intellectual
impairments. See footnote 20 of this opinion. The point
of this opinion, however, is that the coercive tactics
used by police interrogators are designed to overbear
the will of a suspect even without impaired intellect or
extreme youth. The statistics cited herein demonstrate
this very point.
The majority also seriously misapprehends my point
about the interrogators’ misrepresentation about the
defendant’s ‘‘choice.’’ The majority states that I inter-
pret ‘‘the officers [to be] telling the defendant that he
could decide which charges to levy against himself
. . . .’’ Footnote 24 of the majority opinion. I am saying
nothing of the kind. My focus is on the following state-
ment made immediately before the defendant’s confes-
sion: ‘‘The choice is yours. Murder, manslaughter.
That’s your choice. That’s what you’re looking at. Right
now, you’re looking at murder, felony murder. Just cuz
you’re being a knucklehead and not coming to grips
that you’re fucked if you continue to stick with this
story. We have too much against you.’’ (Emphasis
added.) In making this statement, the interrogators
plainly were not suggesting that the defendant would
be drafting the charging instrument or participating in
the decision whether to charge himself with manslaugh-
ter or murder. The misrepresentation by the officers
consisted of telling the defendant that, if he confessed
to shooting the victim by accident—a narrative that the
interrogators earlier had cast as wholly believable under
the known circumstances—his ‘‘choice’’ to confess to
that scenario would influence the charging decision and
result in a reduction of the charge from felony murder
to manslaughter, i.e., it would make a ‘‘[h]uge difference
in [the] charges . . . .’’ See R. Leo, Police Interrogation
and American Justice, supra, pp. 153–54 (minimization
tactic used by police falsely suggests to ‘‘a suspect that
if he admits to the act he can—with the interrogators’
help—control how that act is framed to other audiences
(e.g., prosecutors, judges, juries . . .)’’ and, in doing
so, can ‘‘minimize his . . . legal culpability,’’ and sce-
narios suggesting accident or self-defense ‘‘ ‘pragmati-
cally’ communicate that the suspect will receive a lower
charge or lesser punishment if he agrees to the sug-
gested scenario’’ (emphasis added)). The interrogating
officer made a gross misrepresentation of applicable
law because there was no basis whatsoever to tell the
defendant that confessing to the proposed narrative
would (or probably would, or even realistically might)
result in a manslaughter charge rather than ‘‘murder,
felony murder’’ charges.24 See footnote 18 of this opin-
ion. Although the majority attempts to diminish the
effect of the legal misstatement by positing that the
prosecutor could ‘‘consider [accident or self-defense]
when choosing whether to charge the defendant with
felony murder,’’ I consider that interpretation to be
objectively unreasonable because it simply cannot be
derived from what the officer actually said to the defen-
dant. Footnote 24 of the majority opinion. The officer’s
words explicitly and unambiguously placed the
‘‘choice’’ in the defendant’s hands and mentioned noth-
ing whatsoever about prosecutorial discretion. The
majority’s misreading of this point allows it to knock
down a strawman rather than address what this opinion
actually says.
Ultimately, the majority’s view glosses over the para-
mount fact that the state bears the burden of proving
that the defendant’s confession was voluntary; see Lego
v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed.
2d 618 (1972); which includes the burden of proving
that the coercive interrogation tactics employed were
not a motivating factor in the defendant’s decision to
confess. Cf. Colorado v. Connelly, 479 U.S. 157, 168,
107 S. Ct. 515, 93 L. Ed. 2d 473 (1986) (government
bears burden of proof on threshold issue of whether
valid waiver of Miranda rights occurred); United States
v. Matlock, 415 U.S. 164, 178 n.14, 94 S. Ct. 988, 39
L.Ed.2d 242 (1974) (preponderance of evidence stan-
dard is controlling burden of proof for suppression hear-
ings). I would conclude that the state has not proved
that it is more likely than not that, in the absence of the
cumulative effective of the coercive tactics employed—
lying about inculpatory evidence, threatening to arrest
the defendant’s family members, falsely indicating that
the defendant could face the death penalty, and making
false promises of leniency—the defendant still would
have confessed.
I would also conclude that the state failed to meet
its burden of proving that the improper admission of
the defendant’s confession was harmless beyond a rea-
sonable doubt. See, e.g., State v. Hafford, 252 Conn.
274, 297, 746 A.2d 150, cert. denied, 531 U.S. 855, 121
S. Ct. 136, 148 L. Ed. 2d 89 (2000). ‘‘A confession is
like no other evidence. Indeed, the defendant’s own
confession is probably the most probative and damag-
ing evidence that can be admitted against him. . . .
[T]he admissions of a defendant come from the actor
himself, the most knowledgeable and unimpeachable
source of information about his past conduct. Certainly,
confessions have profound impact on the jury, so much
so that we may justifiably doubt its ability to put them
out of mind even if told to do so.’’ (Internal quotation
marks omitted.) Zappulla v. New York, 391 F.3d 462,
473 (2d Cir. 2004), cert. denied, 546 U.S. 957, 126 S.
Ct. 472, 163 L. Ed. 2d 358 (2005), quoting Arizona v.
Fulminante, 499 U.S. 279, 296, 111 S. Ct. 1246, 113 L.
Ed. 2d 302 (1991); see also Arizona v. Fulminante,
supra, 313 (Kennedy, J., concurring in the judgment)
(‘‘the court conducting a [harmless error] inquiry must
appreciate the indelible impact a full confession may
have on the trier of fact’’). ‘‘[A]n error in admitting the
confession should not ordinarily be deemed harmless
absent a strong showing by the state that [the defen-
dant’s] guilt would have been assured based solely on
the other evidence presented at trial.’’ (Emphasis omit-
ted; internal quotation marks omitted.) Zappulla v. New
York, supra, 473–74.
Only ‘‘when there is independent overwhelming evi-
dence of guilt’’ can the state meet its burden of proving
that the constitutional error was harmless beyond a
reasonable doubt. (Internal quotation marks omitted.)
State v. Hafford, supra, 252 Conn. 297. It cannot meet
that burden on this record. There were no eyewitnesses
or forensic evidence proving that the defendant was at
the scene. But cf. id., 298 (admission of confession was
harmless when defendant was seen fleeing crime scene
and, when approached by police, volunteered ‘‘ ‘I did
it’ numerous times,’’ defendant’s blood and footprints
were found at crime scene, victim’s blood was on defen-
dant’s clothes and on knife discovered in his car, and
defendant’s pubic hair was discovered near victim’s
naked body). No fruits of the robbery were found in
the defendant’s possession. The state’s principal wit-
ness and the defendant’s purported coconspirator,
Nathan Johnson, testified pursuant to a cooperation
agreement. The defendant’s ambiguous comment about
the shooting to the confidential police informant and
the presence of the rifle in the defendant’s home helped
bolster Johnson’s testimony, but this evidence was not
direct proof of the defendant’s actual participation in
the crime itself. I would therefore reverse the defen-
dant’s conviction, except for the charge of criminal
possession of a firearm, and remand for a new trial.
III
In part II of this opinion, I explained why, under the
current legal standard and case law, the majority has
incorrectly concluded that the defendant’s confession
was not involuntary under the federal constitution. In
this section, I set forth justifications for reconsidering
the treatment historically given to the use of the false
evidence ploy in the interrogation process and provide
support for an approach under which that ploy is given
greater weight in assessing the coerciveness of an inter-
rogation under the totality of the circumstances test
than it is currently given.25
The view that a false evidence ploy during an interro-
gation rarely is coercive and has a minimally coercive
effect, even when combined with other interrogation
tactics, comes from a case that was decided more than
one-half century ago. See Frazier v. Cupp, supra, 394
U.S. 737–39 (1969 case holding that confession was
voluntary even though officer falsely told suspect that
his admitted companion on night of crime had con-
fessed to crime).26 Courts and commentators have
begun to recognize that this view is premised on an
anachronistic understanding of coercion, formed
before the prevalence of false confessions was known.
See, e.g., Dassey v. Dittmann, supra, 877 F.3d 332(Rovner, J., dissenting) (‘‘[Frazier and its progeny]
were born in an era when the human intuition that told
us that ‘innocent people do not confess to crimes’ was
still largely unchecked. . . . We know, however, that
this statement is unequivocally incorrect. Innocent peo-
ple do in fact confess, and they do so with shocking
regularity. . . . In a world where we believed that
‘innocent people do not confess to crimes they did
not commit,’ we were willing to tolerate a significant
amount of deception by the police. . . . And so our
case law developed in a factual framework in which
we presumed that the trickery and deceit used by police
officers would have little effect on the innocent.’’ (Cita-
tion omitted; footnotes omitted.)); id., 336 (Rovner, J.,
dissenting) (‘‘[w]hat has changed is not the law, but
our understanding of the facts that illuminate what con-
stitutes coercion under the law’’); State v. Baker, supra,
147 Haw. 431 (‘‘in light of the various studies and cases
that have emerged . . . we recognize that false claims
of physical evidence result in an unsettling number of
false or involuntary confessions’’); Commonwealth v.
DiGiambattista, supra, 442 Mass. 434 (‘‘[w]hile we
adhere to the view that false statements about the evi-
dence against the suspect do not automatically render
the suspect’s confession involuntary, we note that ongo-
ing research has identified such use of false statements
as a significant factor that pressures suspects into waiv-
ing their rights and making a confession’’); M. Gohara,
supra, 33 Fordham Urb. L.J. 794 (‘‘The bedrock cases
sanctioning police deception . . . [predate] the advent
of DNA testing and the many exonerations that followed
from DNA test results. . . . Examination of actual
wrongful convictions and additional empirical data
demonstrating the correlation between deceptive inter-
rogation practices and false confessions provide a basis
for reconsidering the line of cases that allow[s] [the]
police to use trickery to obtain confessions. Such recon-
sideration is particularly critical because at the time
those cases were decided, it was assumed that decep-
tive interrogations would not lead to false confessions.’’
(Footnote omitted.)); see also Corley v. United States,
556 U.S. 303, 320–21, 129 S. Ct. 1558, 173 L. Ed. 2d
443 (2009) (‘‘[c]ustodial police interrogation, by its very
nature, isolates and pressures the individual . . . and
there is mounting empirical evidence that these pres-
sures can induce a frighteningly high percentage of
people to confess to crimes they never committed’’
(citation omitted; internal quotation marks omitted));
State v. Purcell, supra, 331 Conn. 361 (noting that,
although United States Supreme Court recognized in
Miranda possibility of coercive custodial interrogation
resulting in false confessions, magnitude of this prob-
lem was not known until recently).
There is mounting proof that lying to suspects about
evidence against them contributes to false confessions.
‘‘False confessions are one of the leading causes of
wrongful conviction of the innocent, second only to
eyewitness misidentification.’’27 M. Godsey, ‘‘Shining
the Bright Light on Police Interrogation in America,’’ 6
Ohio St. J. Crim. L. 711, 723 (2009); see also S. Kassin
et al., ‘‘Police-Induced Confessions: Risk Factors and
Recommendations,’’ 34 Law & Hum. Behav. 3, 3 (2010)
(‘‘research suggests that false confessions and admis-
sions are present in 15–20 [percent] of all DNA exonera-
tions,’’ which does not include false confessions dis-
proved before trial, many that result in guilty pleas,
those in which DNA evidence is not available, etc.).
There is near universal consensus that the known false
confessions represent a tip of the iceberg. See S.
Drizin & R. Leo, supra, 82 N.C. L. Rev. 921; M. Godsey,
supra, 724–25; A. Hirsch, supra, 11 Ohio St. J. Crim. L.
813; S. Kassin et al., supra, 3.
‘‘From a convergence of three sources, there is strong
support for the proposition that outright lies can put
innocents at risk to confess by leading them to feel
trapped by the inevitability of evidence against them.
These three sources are: (1) the aggregation of actual
false confession cases, many of which involved use of
the false evidence ploy;28 (2) one hundred-plus years
of basic psychology research, which proves without
equivocation that misinformation can substantially alter
people’s visual perceptions, beliefs, motivations, emo-
tions, attitudes, memories, self-assessments, and even
certain physiological outcomes, as seen in studies of
the placebo effect; and (3) numerous experiments, from
different laboratories, demonstrating that presentations
of false evidence increase the rate at which innocent
research participants agree to confess to prohibited
acts they did not commit.’’29 (Footnote added.) S. Kassin
et al., supra, 34 Law & Hum. Behav. 28–29. See generally
M. Gohara, supra, 33 Fordham Urb. L.J. 827–31 (provid-
ing overview of ‘‘[e]mpirical [s]tudies [e]stablishing
[t]hat [c]onfronting [s]uspects [w]ith [f]alse [e]vidence
[a]nd [o]ther [d]eceptive [i]nterrogation [p]ractices
[i]nduces [s]uspects to [c]onfess [f]alsely’’); A. Hirsch,
supra, 11 Ohio St. J. Crim. L. 805–806 and n.18 (address-
ing alt key experiment). The Reid Manual itself con-
cedes that, although lying to a suspect about inculpatory
evidence in and of itself would not cause a false confes-
sion, ‘‘it becomes much more plausible that an innocent
person may decide to confess’’ if ‘‘such false statements
were . . . used to convince the suspect that regardless
of his stated innocence, he would be found guilty of
the crime and . . . sentenced to prison’’ but would be
afforded leniency ‘‘if he cooperates by confessing
. . . .’’ F. Inbau et al., supra, p. 428.
‘‘Psychologists have teased out two causal mecha-
nisms by which the false evidence ploy may give rise
to false confessions. . . . First, suspects may falsely
confess as an act of compliance when they perceive
that there is strong evidence against them.30 Second,
innocent suspects confronted with evidence that law
enforcement claims to prove their guilt as an incontro-
vertible fact may falsely confess because they have
come to internalize the belief that [they] committed the
crime without awareness.
‘‘The key factor underlying each of these psychologi-
cal processes is the defendant’s perception that his or
her likelihood of conviction at trial is high . . . . The
false evidence ploy enables interrogators to artificially
inflate an innocent suspect’s estimated likelihood of
conviction and thereby make a plea bargain appear
rational.’’31 (Footnote altered; footnotes omitted; inter-
nal quotation marks omitted.) K. Wynbrandt, Comment,
‘‘From False Evidence Ploy to False Guilty Plea: An
Unjustified Path to Securing Convictions,’’ 126 Yale L.J.
545, 552–53 (2016).
This tactic may be especially effective with those
segments of society that are more likely to believe that
they, or others in their community, have been treated
unfairly by the police and the legal system. See K.
Momolu, Gallup, Black Adults More Likely To Know
People Mistreated by Police, (August 3, 2020), available
at https://news.gallup.com/poll/316526/black-adults-likely-
know-people-mistreated-police.aspx (last visited July
19, 2021) (reporting results of 2020 survey reflecting
that 71 percent of ‘‘[b]lack Americans . . . [report]
know[ing] ‘some’ or ‘a lot of’ people who were treated
unfairly by the police . . . twice the [response] rate
among [w]hite Americans,’’ and that 50 percent of black
adults, and 61 percent of black Americans between ages
eighteen and forty-four ‘‘report knowing ‘some’ or ‘a lot
of’ people who were unfairly sent to jail’’); I. Capers,
‘‘Crime, Legitimacy, and Testilying,’’ 83 Ind. L.J. 835,
836 (2008) (‘‘[f]or many people of color and members
of other politically vulnerable groups, [it] . . . comes
as [no] surprise’’ that police officers misrepresent facts
to justify traffic stops); D. Young, ‘‘Unnecessary Evil:
Police Lying in Interrogations,’’ 28 Conn. L. Rev. 425,
468 (1996) (‘‘Those people who protest their innocence
in the face of police lies about overwhelming evidence
. . . may genuinely fear that they are being framed
with fabricated evidence. While a more sophisticated,
educated, and financially secure individual may be con-
fident that he or his lawyer ultimately will be heard and
the accusations withdrawn, those not so well situated
may fear punishment for wrongs they did not commit.
In particular, members of social groups with dispropor-
tionately high conviction rates, such as young black
men, may despair of release and conclude they must
confess to something to escape a worse fate.’’).
Recognition of the causal connection between decep-
tive interrogation tactics and false confessions has been
a significant factor in a recent shift away from the use
of the Reid method, which sanctions lying. One of the
nation’s largest police consulting firms has repudiated
the Reid method; see Wicklander-Zulawski & Associates,
Inc., Identify the Truth, available at https://www.w-z.com/
truth/ (last visited July 19, 2021) (‘‘[t]he high risk of
false confessions, potential for incorrect or unreliable
information, and ultimately the misapplication of con-
frontational techniques are all reasons why [Wicklander
-Zulawski & Associates, Inc.] has chosen to no longer
offer the confrontational approach in its course selec-
tions’’); as have some foreign countries. See W. Kozin-
ski, ‘‘The Reid Interrogation Technique and False Con-
fessions: A Time for Change,’’ 16 Seattle J. Soc. Just.
301, 304 n.16, 333–34 (2017) (noting England’s shift from
Reid method after concluding that its overly manipula-
tive and coercive tactics caused false confessions and
subsequent adoption of England’s alternative, noncon-
frontational method by United Kingdom, Norway and
New Zealand).
The connection between police deception in interro-
gation and false confessions has also prompted recent
legislative action. A bill proposed in New York State,
which notes this connection in its statement of purpose,
would deem a confession or admission ‘‘involuntarily
made’’ when it is obtained from a defendant ‘‘by know-
ingly communicating false facts about evidence to the
defendant . . . .’’32 Senate Bill No. S324, § 1, 2021–2022
Leg., Reg. Sess. (N.Y. 2021).
This evidence has led to a call to recognize the coer-
cive effect of lies and deception and give these consider-
ations due weight when assessing whether a confession
was voluntary under the totality of the circumstances.
See Dassey v. Dittmann, supra, 877 F.3d 331 (Rovner,
J., dissenting) (‘‘[R]eform of our understanding of coer-
cion is long overdue. When conducting a totality of
the circumstances review, most courts’ evaluations of
coercion still are based largely on outdated ideas about
human psychology and rational [decision making]. It is
time to bring our understanding of coercion into the
twenty-first century.’’);33 State v. Allies, supra, 186 Mont.
113 (‘‘[L]ying to [the] defendant about how much is
known about his involvement in the crimes . . . is par-
ticularly repulsive to and totally incompatible with the
concepts of due process embedded in the federal and
[Montana] constitutions. The effect is particularly coer-
cive . . . .’’).
False confessions are not the only reason for concern.
From another vantage point, it should be immaterial
whether there is a basis to believe that the defendant’s
confession in a given case was false. To the extent
that the foregoing evidence demonstrates the realistic
potential for coercion associated with lying as an inter-
rogation tactic, the United States Supreme Court has
reminded us that the rules that we adopt to prevent the
admission of involuntary confessions apply even when
it is clear that the defendant confessed to the truth:
‘‘[C]onvictions following the admission into evidence
of confessions which are involuntary, i.e., the product
of coercion, either physical or psychological, cannot
stand. This is so not because such confessions are
unlikely to be true but because the methods used to
extract them offend an underlying principle in the
enforcement of our criminal law: that ours is an accusa-
torial and not an inquisitorial system—a system in
which the [s]tate must establish guilt by evidence inde-
pendently and freely secured and may not by coercion
prove its charge against an accused out of his own
mouth. . . . To be sure, confessions cruelly extorted
may be and have been, to an unascertained extent,
found to be untrustworthy. But the constitutional prin-
ciple of excluding confessions that are not voluntary
does not rest on this consideration. Indeed, in many of
the cases in which the command of the [d]ue [p]rocess
[c]lause has compelled us to reverse state convictions
involving the use of confessions obtained by impermis-
sible methods, independent corroborating evidence left
little doubt of the truth of what the defendant had con-
fessed. Despite such verification, confessions were
found to be the product of constitutionally impermissi-
ble methods in their inducement. Since a defendant
had been subjected to pressures to which, under our
accusatorial system, an accused should not be sub-
jected, we were constrained to find that the procedures
leading to his conviction had failed to afford him that
due process of law which the [f]ourteenth [a]mendment
guarantees.’’ (Citations omitted.) Rogers v. Richmond,
365 U.S. 534, 540–41, 81 S. Ct. 735, 5 L. Ed. 2d 760(1961); see also Spano v. New York, 360 U.S. 315, 320–21,
79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959) (‘‘The abhorrence
of society to the use of involuntary confessions does
not turn alone on their inherent untrustworthiness. It
also turns on the deep-rooted feeling that the police
must obey the law while enforcing the law; that in the
end life and liberty can be as much endangered from
illegal methods used to convict those thought to be
criminals as from the actual criminals themselves.’’).
These broader concerns about the integrity of the
means by which we obtain confessions recognize that
the tactics employed by law enforcement have ramifica-
tions beyond the present case. Many courts have
expressed disapproval of the use of deception as an
interrogation tactic; see, e.g., Ex parte Hill, 557 So. 2d
838, 842 (Ala. 1989); State v. Cayward, 552 So. 2d 971,
973 (Fla. App. 1989), review dismissed, 562 So. 2d 347(Fla. 1990); State v. Old-Horn, supra, 375 Mont. 318;
People v. Robinson, 31 App. Div. 2d 724, 725, 297
N.Y.S.2d 82 (1968); State v. Jackson, 308 N.C. 549, 573,
304 S.E.2d 134 (1983); State v. Galli, 967 P.2d 930, 936
(Utah 1998); sometimes quite vehemently. See, e.g.,
United States v. Orso, 266 F.3d 1030, 1039 (9th Cir.
2001) (‘‘reprehensible’’), cert. denied, 537 U.S. 828, 123
S. Ct. 125, 154 L. Ed. 2d 42 (2002); Ex parte Hill, supra,
842 (‘‘especially repugnant when used against suspects
of diminished intellectual ability’’); State v. Phelps,
supra, 215 Mont. 225 (‘‘[w]e cannot overemphasize our
strong condemnation’’ (internal quotation marks omit-
ted)); State v. Register, supra, 323 S.C. 480 (‘‘a deplor-
able practice’’); State v. Von Dohlen, 322 S.C. 234, 243,
471 S.E.2d 689 (‘‘reprehensible’’) (overruled on other
grounds by State v. Burdette, 427 S.C. 490, 832 S.E.2d
575 (2019)), cert. denied, 519 U.S. 972, 117 S. Ct. 402,
136 L. Ed. 2d 316 (1996). See generally State v. Jackson,
308 N.C. 549, 573, 304 S.E.2d 134 (1983) (noting general
view that this tactic is ‘‘not morally justifiable or a
commendable practice’’ (internal quotation marks omit-
ted)).
These tactics are condemned not only because of
their effect on the suspect but because they diminish
society’s perception of the honesty and legitimacy of
the police. See State v. Cayward, supra, 552 So. 2d 975(‘‘We must . . . decline to undermine the rapport the
police have developed with the public by approving
participation of law enforcement officers in practices
which most citizens would consider highly inappropri-
ate. We think that for us to sanction the manufacturing
of false documents by the police would greatly lessen
the respect the public has for the criminal justice system
and for those sworn to uphold and enforce the law.’’);
D. Young, supra, 28 Conn. L. Rev. 471 (‘‘We entrust [the]
police with the initial enforcement of our community
standards, in the form of our criminal laws. When [the]
police themselves misstate and violate the standards,
even when that violation does not rise to a criminal
level, they undermine their own role within the commu-
nity.’’); D. Young, supra, 468–69 (‘‘Police lying also gen-
erates a systemic loss of integrity. Research and analysis
by ethicists and philosophers [remind] us of the impact
of lying on society and societal perceptions of such
lying. . . . Truth from doctors, truth from business
people, and truth from government officials are essen-
tial for us to plan our lives and to maintain control over
our choices. We condemn lying in personal affairs and
criminalize it in many contexts. . . . We condemn lying
in part because we recognize that lying manipulates. If
we want people to make free choices, we do not want
them manipulated through lying.’’ (Footnotes omit-
ted.)).
Sanctioning lying in interrogations adds fuel to the
current crisis in trust and confidence in the police, as
reflected in nationwide protests. See S. Klein, ‘‘Trans-
parency and Truth During Custodial Interrogations and
Beyond,’’ 97 B.U. L. Rev. 993, 998–99 (2017) (‘‘[W]e
have reached a point where there is little trust in law
enforcement and the criminal justice system writ large.
Rioting in Ferguson, Missouri and Charlotte, North Car-
olina is a serious symptom of this distrust. In fact, only
about [one] half of Americans report confidence in the
police.’’ (Footnotes omitted.)); K. Momolu, supra (71
percent of black Americans surveyed in 2020 reported
‘‘know[ing] ‘some’ or ‘a lot of’ people who were treated
unfairly by the police’’).
Legitimizing this unethical conduct also could
encourage the police to adopt the pernicious attitude
that the end justifies the means, which, in turn, could
be used to justify other dishonest acts when the police
are equally convinced of a suspect’s guilt, such as lying
in affidavits to support search or arrest warrants, plant-
ing evidence, and offering false testimony.34 See State
v. Cayward, supra, 552 So. 2d 975 (‘‘[W]ere we to
approve the conduct [by the police fabricating false
evidence], we might be opening the door for [the] police
to fabricate court documents, including warrants,
orders, and judgments. We think that such a step would
drastically erode and perhaps eliminate the public’s
recognition of the authority of court orders, and without
the citizenry’s respect, our judicial system cannot long
survive.’’);35 Darity v. State, 220 P.3d 731, 738 n.1 (Okla.
Crim. App. 2009) (Chapel, J., dissenting) (‘‘Courts have
opened a Pandora’s box by sanctioning police lies. The
‘ends justify the means’ rationale employed by most
courts is very difficult to limit, and thus, the circum-
stances of ‘permissible deceit’ have increased. So too
has the evidence of ‘unlawful deceit.’ How does a law
enforcement officer accept a message that it is permissi-
ble to lie to obtain evidence, but not permissible to lie
in a suppression hearing when the conviction or release
of a murderer is in the balance. Empirical studies dem-
onstrate that police are lying both in and out of court.
. . . The consequences penetrate deep into the crimi-
nal justice system, as the authority of the courts and
legitimacy of their rulings are based largely on integrity
and trust.’’ (Citations omitted.)); A. Clemens, Note,
‘‘Removing the Market for Lying Snitches: Reforms To
Prevent Unjust Convictions,’’ 23 Quinnipiac L. Rev. 151,
192 (2004) (‘‘[A]n officer [may grow] ‘convinced that
the suspect is factually guilty of the offense, may believe
that necessary elements of legal guilt are lacking [and
feel] that he/she must supply the missing elements.’ For
example, one police officer explained how ‘it is often
necessary to ‘‘fluff up the evidence’’ to get a search
warrant or [to] ensure conviction [so this] officer will
attest to facts, statements, or evidence [that] never
occurred or occurred in a different fashion.’ Police offi-
cers rationalize these lies, often themselves criminal
acts, ‘because they are necessary to ensure that crimi-
nals do not get off on ‘‘technicalities.’’ ’ ’’ (Footnotes
omitted.)); D. Young, supra, 28 Conn. L. Rev. 463–64
(‘‘The justification of lying for the public good . . .
may readily transfer to other lies. The officer wants
to convict the criminal, punish him, and protect other
potential victims throughout the officer’s involvement
in the case, not just during interrogation. For example,
an officer may extend this justification to lying on a
warrant affidavit for a search. . . . The officer’s
motives may also trigger lies to third parties, such as
to encourage consent for a search or to encourage false
testimony by others. . . . In an even more egregious
application of this justification, an officer may lie at
trial, committing perjury to obtain the conviction of
someone he believes is guilty. . . . The inherent prob-
lem with lying for the public good is that people who
believe their entire work is for the public good, as police
officers do and should, may use this rationale to justify
any and all lies that they tell . . . .’’ (Footnotes omit-
ted.)).
Beyond concerns about the practical consequences
of sanctioning lying, there are moral and ethical con-
cerns. ‘‘[S]tate officials, at least in a democracy, must
aspire to be relevant epistemic authorities on the law
and on at least that aspect of morality embodied in law.
We should be able to rely on their transmissions about
the content of law, legally relevant morality, and legally
relevant facts. These ideas would render police misrep-
resentation—even to a wrongdoer—especially morally
problematic. If their role partly involves serving as a
reliable epistemic repository, then the police subvert
their own role when they misrepresent the content of
the law, the moral severity of an offense, or the evidence
they have collected. . . . Because their epistemic
responsibilities are bound together with and frame their
investigatory aims, the police cannot argue that the
mere significance of the end justifies the suspension of
the truthfulness presumption.’’ (Emphasis in original.)
S. Shiffrin, Speech Matters: On Lying, Morality, and the
Law (2014) p. 198; see also Miranda v. Arizona, supra,
384 U.S. 479–80 (‘‘ ‘Decency, security, and liberty alike
demand that government officials shall be subjected to
the same rules of conduct that are commands to the
citizen. In a government of laws, existence of the gov-
ernment will be imperilled if it fails to observe the
law scrupulously. Our [g]overnment is the potent, the
omnipresent teacher. For good or for ill, it teaches the
whole people by its example. Crime is contagious. If
the [g]overnment becomes a lawbreaker, it breeds con-
tempt for law; it invites every man to become a law
unto himself; it invites anarchy. To declare that in the
administration of the criminal law the end justifies the
means . . . would bring terrible retribution. Against
that pernicious doctrine this [c]ourt should resolutely
set its face.’ ’’), quoting Olmstead v. United States, 277
U.S. 438, 485, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Bran-
deis, J., dissenting).
Despite the aforementioned concerns, there are those
who would argue that allowing the police to lie, at
least in interrogations, is a necessary evil. Confessions
undoubtedly may be essential in some cases. See Moran
v. Burbine, 475 U.S. 412, 426, 106 S. Ct. 1135, 89 L. Ed.
2d 410 (1986) (‘‘[a]dmissions of guilt are more than
merely desirable . . . they are essential to society’s
compelling interest in finding, convicting, and punishing
those who violate the law’’ (citation omitted; internal
quotation marks omitted)); see also McNeil v. Wiscon-
sin, 501 U.S. 171, 181, 111 S. Ct. 2204, 115 L. Ed. 2d
158 (1991) (‘‘the ready ability to obtain uncoerced con-
fessions is not an evil but an unmitigated good’’). But,
although confessions may be essential proof in some
cases, it does not follow that lying to obtain those con-
fessions is equally necessary.
There is a wealth of evidence that nonconfrontational
interrogation methods, which do not sanction lying to
suspects, are at least as effective as inquisitorial, advers-
arial methods like the Reid method. This evidence is
found in empirical research; see Dassey v. Dittmann,
supra, 877 F.3d 335–36 (Rovner, J., dissenting); M. Kim,
supra, 52 Gonz. L. Rev. 517; S. Tekin et al., ‘‘Interviewing
Strategically To Elicit Admissions from Guilty Sus-
pects,’’ 39 Law & Hum. Behav. 244, 244–46 (2015); the
practices of other countries that have successfully
shifted from the inquisitorial, adversarial Reid method
to information gathering, conversational models; see
M. Kim, supra, 513 (England); W. Kozinski, supra, 16
Seattle J. Soc. Just. 333–34 (United Kingdom, Norway,
and New Zealand); Royal Canadian Mounted Police,
The Art of an Effective Interview: Why Non-Accusatory
Is the New Normal, (January 13, 2017), available at
http://www.rcmp-grc.gc.ca/en/gazette/the-art-an-effective-
interview (last visited July 19, 2021) (Canada); and the
adoption of rules by foreign courts prohibiting misrep-
resentation of evidence. See C. Slobogin, ‘‘An Empiri-
cally Based Comparison of American and European
Regulatory Approaches to Police Investigation,’’ 22
Mich. J. International L. 423, 443–44 (2001) (English
and German courts developed special rules barring
deception).36
One of our nation’s largest police departments, the Los
Angeles Police Department, is in the process of abandon-
ing Reid style interrogation methods in favor of noncon-
frontational techniques developed by the High-Value
Detainee Interrogation Group (known as HIG), a joint
effort of the Federal Bureau of Investigation, the Central
Intelligence Agency, and the Pentagon, created to conduct
noncoercive interrogations. See R. Kolker, The Marshall
Project, Nothing but the Truth: A Radical New Interroga-
tion Technique Is Transforming the Art of Detective
Work: Shut Up and Let the Suspect Do the Talking (May
24, 2016), available at https://www.themarshallproject.
org/2016/05/24/nothing-but-the-truth#.gR9TabJrx (last
visited July 19, 2021).
To those who would argue that we must permit lying
during interrogations because we sanction lying in other
contexts that are necessary for effective law enforce-
ment (i.e., undercover activities, use of informants,
etc.); see, e.g., Sheriff, Washoe County v. Bessey, 112
Nev. 322, 328, 914 P.2d 618 (1996); L. Magid, ‘‘Deceptive
Police Interrogation Practices: How Far Is Too Far?,’’ 99
Mich. L. Rev. 1168, 1182 (2001); there are fundamental
distinctions in those other circumstances that may jus-
tify different treatment. Those circumstances do not
involve actions by the police presenting themselves as
officers of the law, or the use of psychologically coer-
cive tactics to pressure the suspect to make inculpatory
statements.37
The broad societal harms caused by allowing the
police to lie during interrogations, along with the risk
of false confessions, may support a per se ban on this
practice, whether as a matter of legislation action or
the exercise of the court’s supervisory authority. The
best course of action would be for our state and local
police to abandon this tactic before such action is neces-
sary, as some police departments in other states already
have done. To be clear, I do not presently suggest that
we adopt so extreme a rule as a per se ban. For now,
it is sufficient to lay out concerns that should be consid-
ered, in a future case, when deciding whether this court
should give this particular tactic greater weight in
assessing whether the defendant’s confession was
coerced. For the reasons stated in part II of this opinion
regarding the many other coercive tactics applied in
the present case in conjunction with the false evidence
ploy, I cannot agree with the majority’s conclusion that
the defendant’s confession was voluntary under the
totality of the circumstances.
I respectfully dissent in part.
1
I agree with part I of the majority opinion, in which the majority concludes
that the search of the home of the defendant, Bobby Griffin, that resulted
in the seizure of the rifle and ammunition was not unconstitutional.
2
The defendant was told, ‘‘if you don’t [explain why it happened] and
you sit there and you keep [your] mouth shut, it’s just gonna get worse,
it’s gonna get worse and worse,’’ and, ‘‘if you wanna spend the rest of your
life in prison and sit there and keep your mouth shut, that’s fine.’’ (Emphasis
added.) Although the majority is correct that courts often give significant
weight to a valid waiver of Miranda rights in assessing the voluntariness
of a confession, that waiver should be entitled to less weight when the
interrogators effectively attempt to dissuade the defendant from exercising
his right to revoke that waiver. See United States v. Harrison, 34 F.3d 886,
891–92 (9th Cir. 1994) (‘‘there are no circumstances in which law enforce-
ment officers may suggest that a suspect’s exercise of the right to remain
silent may result in harsher treatment by a court or prosecutor’’ (emphasis
in original)); United States v. Leon Guerrero, 847 F.2d 1363, 1366 n.2 (9th
Cir. 1988) (‘‘threatening to inform the prosecutor of a suspect’s refusal to
cooperate violates [the suspect’s] fifth amendment right to remain silent’’);
Beavers v. State, 998 P.2d 1040, 1045–46 (Alaska 2000) (‘‘A criminal suspect’s
right to remain silent in the face of police interrogation represents one of
the most fundamental aspects of our constitutional jurisprudence. It includes
the right to terminate an interrogation at any time. We regard any potential
encroachment upon this right with the utmost concern. A law enforcement
officer’s threat of harsher than normal treatment—however phrased—essen-
tially conveys to criminal suspects that they will be punished for their
silence, including any refusal to give further answers. . . . Suspects are
told, in effect, that they must give up their constitutional right to silence or
they will suffer greater punishment. We view such threats with disfavor.
Where they are used, the resulting confession should be considered involun-
tary unless the state can show affirmatively that the confession was volunta-
rily made.’’ (Footnotes omitted.)). See generally 23 C.J.S. 222, Criminal Law
§ 1269 (2006) (‘‘[a] waiver of [Miranda] rights may be revoked’’). Plainly put,
‘‘Miranda warnings do not immunize statements obtained during custodial
interrogations from being the product of coercion.’’ State v. Baker, 147 Haw.
413, 434, 465 P.3d 860 (2020).
3
The full quote of this statement, set forth in part I B of this opinion,
makes clear that the interrogator was contrasting felony murder to man-
slaughter, not simple murder.
4
Part III of this opinion addresses how training methods are beginning
to shift from adversarial, Reid type models to nonadversarial models in light
of concerns about the effectiveness of the Reid method and its capacity to
cause false confessions. Alan Hirsch, chair of the justice and law studies
program at Williams College and author of articles examining the Reid
method, testified for the defense at trial as an expert on this type of method
and how it can affect the reliability of a confession.
5
‘‘An organization called John E. Reid & Associates [Inc.] developed the
method in the mid-twentieth century and has since trained more interroga-
tors than any other organization in the world. The Reid Technique is codified
in Criminal Interrogation and Confessions (otherwise known as the ‘Reid
Manual’), a handbook that is frequently termed ‘the bible of modern police
interrogation training.’ Over the past several decades, the Reid Manual’s
approach to interrogation has shaped ‘nearly every aspect of modern police
interrogations, from the setup of the interview room to the behavior of
detectives.’ ’’ (Footnotes omitted.) K. Wynbrandt, Comment, ‘‘From False
Evidence Ploy to False Guilty Plea: An Unjustified Path to Securing Convic-
tions,’’ 126 Yale L.J. 545, 549 (2016); see also Dassey v. Dittmann, supra,
877 F.3d 335–36 (Rovner, J., dissenting).
6
The nine steps are: (1) ‘‘The Direct, Positive Confrontation,’’ (2) ‘‘Theme
Development,’’ (3) ‘‘Handling Denials,’’ (4) ‘‘Overcoming Objections,’’ (5)
‘‘Keeping the Suspect’s Attention,’’ (6) ‘‘Handling the Suspect’s Passive
Mood,’’ (7) ‘‘Presenting the Alternative Question,’’ (8) ‘‘Bringing the Suspect
into the Conversation,’’ and (9) ‘‘The Written Confession.’’ F. Inbau et al.,
supra, p. 215.
7
‘‘Leo is an [a]ssociate [p]rofessor of [l]aw at the University of San Fran-
cisco School of Law and formerly a professor of psychology and criminology
at the University of California, Irvine. . . . He has written five books and
more than fifty articles on police interrogation practices, false confessions,
and wrongful convictions. . . . Leo holds both a J.D. and a Ph.D. in [j]uris-
prudence and [s]ocial [p]olicy (with a specialization in criminology and
social psychology).’’ (Citations omitted.) B. Gallini, ‘‘Police ‘Science’ in the
Interrogation Room: Seventy Years of Pseudo-Psychological Interrogation
Methods To Obtain Inadmissible Confessions,’’ 61 Hastings L.J. 529, 570
n.335 (2010). Leo, ‘‘a highly respected expert in the area of police interroga-
tion practice, the psychology of police interrogation and suspect [decision
making], psychological coercion, false confessions, and wrongful convic-
tions,’’ has also ‘‘consulted on more than 900 cases involving disputed interro-
gations, qualified as an expert witness 168 times in state, federal, and military
courts, and has testified for both the prosecution and defense, as well as
in civil cases.’’ Ex parte Soffar, Docket Nos. WR-29980-03 and WR-29980-
04, 2012 WL 4713562, *9 (Tex. Crim. App. October 3, 2012) (Cochran, J.,
concurring), cert. denied sub nom. Soffar v. Texas, 569 U.S. 957, 133 S. Ct.
2021, 185 L. Ed. 2d 885 (2013).
8
A prefatory step is to place suspects in an unfamiliar, unsupportive, and
stressful setting from which they will want to extricate themselves. See
Miranda v. Arizona, supra, 384 U.S. 449–50; S. Kassin, ‘‘Inside Interrogation:
Why Innocent People Confess,’’ 32 Am. J. Trial Advoc. 525, 532 (2009); M.
Kim, ‘‘When and Why Suspects Fail To Recognize the Adversary Role of an
Interrogator in America: The Problem and Solution,’’ 52 Gonz. L. Rev. 507,
510–11 (2016–2017).
9
See, e.g., Quartararo v. Mantello, 715 F. Supp. 449, 461 (E.D.N.Y.) (‘‘Evi-
dence . . . procured [by way of a promise of leniency that was the equiva-
lent of a promise of immunity] can no more be regarded as the product of
a free act of the accused than that obtained by official physical or psychologi-
cal coercion. . . . This factor alone would make it difficult to conclude
that the prosecution sustained its burden of proving by a preponderance
of the evidence that the first confession was voluntary.’’ (Citations omitted;
internal quotation marks omitted.)), aff’d, 888 F.2d 126 (2d Cir. 1989); United
States v. Goldstein, 611 F. Supp. 626, 632 (N.D. Ill. 1985) (‘‘when the govern-
ment misleads a suspect concerning the consequences of a confession, his
statements are regarded as having been unconstitutionally induced by a
prohibited direct or implied promise’’); People v. Weiss, 102 Misc. 2d 830,
831–36, 424 N.Y.S.2d 844 (1980) (recognizing that totality of circumstances
determines voluntariness but concluding that specific tactic of threatening
defendant with loss of his business rendered statement involuntary). This
does not mean that the totality of the circumstances is inapplicable in such
a case. For example, there might be evidence that the tactic was not the
motivating cause of the confession.
10
The majority dismisses Baker as irrelevant because the Hawaii Supreme
Court decided the case under the Hawaii constitution. See footnote 23 of
the majority opinion. The case is not so easily swept aside. The Hawaii
court, applying a ‘‘totality of the circumstances’’ test, relied on settled federal
constitutional case law and principles, as well as case law from other jurisdic-
tions relying on the federal constitution, to reach its conclusion. See State
v. Baker, supra, 147 Haw. 424–34. I do not rely on Baker for any principles
grounded in state constitutional law but for the unremarkable proposition,
supported by a wealth of authority rooted in the federal law cited in part
II of this opinion, that the totality of the circumstances test requires the
consideration of the cumulative effect of the interrogation tactics. The major-
ity’s rejection of this principle as stated in Baker, therefore, requires it to
distinguish that federal authority; it has not done so.
11
The individual tactics identified in Baker were ‘‘(1) the comments sug-
gesting the public and media would perceive [the defendant] more favorably
if he confessed; (2) the implication that [the defendant] would be perceived
less favorably in court if he continued to deny guilt; (3) the minimization
narratives suggesting the conduct was understandable because of the drugs
and alcohol involved; (4) the use of unlawfully discriminatory [gender based]
stereotypes to excuse or explain conduct; (5) the use of the false friend
technique; (6) the insinuation that [the defendant’s] refusal to admit to
assaulting the [complaining witness] would be set forth in the detective’s
report and could adversely affect him; and (7) the detective’s false assertion
that there was incontrovertible DNA evidence showing that [the defendant]
had sex with the [complaining witness], which, as the detective testified at
trial, was told to [the defendant] to ‘[try] to get the truth out of him.’ ’’ State
v. Baker, supra, 147 Haw. 433.
12
In part III of this opinion, I address the broader policy concerns and
ethical implications of sanctioning police lying in interrogations.
13
In part III of this opinion, I give examples of cases in which a false
confession was obtained after the police, along with the use of other coercive
tactics, lied to the defendant about inculpatory evidence.
14
The defendant ultimately was charged with both felony murder and
murder. Although treating the shooting as an ‘‘accident’’ would be relevant
to the murder charge because the absence of proof of intent to cause death
would support only a conviction of manslaughter; see General Statutes
§§ 53a-54a and 53a-55; the clear import of the interrogator’s comments was
that the defendant could also avoid a felony murder charge if he admitted
that the shooting occurred by accident or in self-defense, as the interrogators
proposed. See also footnote 18 of this opinion (addressing false charging
choice proposed to defendant). This representation was blatantly false.
15
John E. Reid & Associates, Inc., has responded to critics of its method
in a posting on its website entitled ‘‘Clarifying Misinformation about The Reid
Technique,’’ which states: ‘‘The Reid [t]echnique teaches that the investigator
should not offer any direct or implied promises of leniency to the subject.’’
(Emphasis added.) John E. Reid & Associates, Inc., Clarifying Misinformation
about the Reid Technique, p. 2, available at http://www.reid.com/pdfs/
20120311.pdf (last visited July 19, 2021).
16
Massachusetts is one of a handful of jurisdictions that requires the
state to prove voluntariness beyond a reasonable doubt rather than by
the preponderance of the evidence standard applied by the United States
Supreme Court. However, that fact does not negate the relevance of Massa-
chusetts case law regarding what constitutes coercive conduct. See Com-
monwealth v. Baye, supra, 462 Mass. 255 n.11 (‘‘[o]ur cases remain broadly
consistent with United States Supreme Court precedent on the voluntariness
of statements made to [s]tate actors, except that we require the [c]ommon-
wealth to meet a heightened burden of proof in demonstrating voluntari-
ness’’).
17
See Rogers v. State, 289 Ga. 675, 678–79, 715 S.E.2d 68 (2011) (telling
defendant ‘‘ ‘you are not trying to help yourself’ ’’ did not make confession
involuntary because exhortation to tell truth and telling suspect that truthful
cooperation may be considered by others is permissible); State v. Flowers,
204 So. 3d 271, 280 (La. App. 2016) (‘‘a confession is not rendered inadmissi-
ble because officers ‘exhort or adjure’ an accused to tell the truth’’), writ
denied, 224 So. 3d 983 (La. 2017); State v. Thomas, 711 So. 2d 808, 811 (La.
App. 1998) (‘‘a mild exhortation to tell the truth, or an indication that if the
defendant cooperates the officer will ‘do what he can’ or ‘things will go
easier,’ will not negate the voluntary nature of a confession’’), writ denied,
747 So. 2d 8 (La. 1999).
18
The falsity of the representation is especially extreme in the present
case because the homicide occurred during the course of a robbery (or
attempted robbery), which, as the interrogators correctly informed the
defendant, exposed him to a felony murder charge. Consequently, this was
not simply a case in which the interrogators falsely indicated that the defen-
dant’s confession to an accidental shooting would result in a manslaughter
charge, when the choice of charges actually would be a matter left entirely
to the prosecutor’s discretion (i.e., misrepresentation of fact). Rather, the
interrogators affirmatively misled the defendant by telling him that the
accident/self-defense narrative proposed to him was relevant and material
to his criminal exposure for felony murder, which was untrue as a matter
of law.
19
The Reid Manual itself provides: ‘‘The important question to answer is
whether it is human nature to accept responsibility for something we did
not do in the face of contrary evidence. . . . Would a suspect, innocent of
a homicide, bury his head in his hands and confess because he was told
that the murder weapon was found during a search of his home? Of course
not! However, consider that such false statements were then used to con-
vince the suspect that regardless of his stated innocence, he would be
found guilty of the crime and would be sentenced to prison. Further, the
investigator tells the suspect that if he cooperates by confessing, he will be
afforded leniency. Under these conditions it becomes much more plausible
that an innocent person may decide to confess—not because fictitious evi-
dence was presented against him, but because the evidence was used to
augment an improper interrogation technique (the threat of inevitable conse-
quences).’’ F. Inbau et al., supra, pp. 428–29.
20
In his motion to suppress his statement, the defendant represented that
his suppression hearing would show that he is of limited intelligence and
highly susceptible to suggestion. For reasons that are not apparent from
the record, the defendant did not present support for this assertion until his
sentencing hearing, when he submitted a psychological evaluation indicating
that he has an intelligence quotient (IQ) score between 80 and 85—low
average—with mild, intellectual impairments, corresponding to a ‘‘ ‘mental
age’ ’’ equivalency of fourteen years, and a tendency to cede to authority
or social pressure. The trial court’s only reference to the evaluation was in
connection with the characterization of the crime as ‘‘an impetuous deci-
sion.’’ The court concluded that ‘‘[the defendant’s] conduct during this
crime and the aftermath of the crime, in the court’s view, clearly contradicts
and undermines [the psychologist’s] statements [in the evaluation] that the
defendant . . . was likely to be nonassertive and [to] adapt socially to his
surroundings. He certainly did not [cede] control to other people based on
the court’s view of the credible evidence that was presented.’’ (Emphasis
added.) The majority infers from the trial court’s failure to specify what it
meant by ‘‘aftermath of the crime’’ that it means every action taken by the
defendant after the crime occurred, including his conduct in the interroga-
tion, and thus the court made a wholesale rejection of the psychologist’s
opinion. See footnote 28 of the majority opinion. I believe that the context
plainly indicates otherwise. I also note that the court made no mention of
the psychologist’s assessment of the defendant’s IQ and mental age.
21
The trial court and the majority, in assessing the voluntariness of the
defendant’s confession, ascribe significance to the fact that the defendant
maintained a calm demeanor throughout the interrogation. This view con-
forms to case law that implicitly assumes that a person’s external demeanor
provides a reliable indication of his or her internal emotional state during
an interrogation, and, thus, a calm demeanor suggests the absence of coer-
cion. This unexamined assumption strikes me as dubious at best. We now
know that a subject’s external appearance may not accurately reflect his
or her internal reality. See A. Vrij, Detecting Lies and Deceit: The Psychology
of Lying and the Implications for Professional Practice (2000) p. 38 (summa-
rizing scientific evidence showing that observable behavioral cues assumed
to indicate deceit do not do so). We also know that cultural differences
between the subject and the observer greatly increase the likelihood that
the subject’s external demeanor will be misconstrued. See J. Simon-Kerr,
‘‘Unmasking Demeanor,’’ 88 Geo. Wash. L. Rev. Arguendo 158, 161 (2020)
(‘‘Demeanor is understood to be a guide to a [witness’] credibility in the
sense that we can ‘read’ it for clues to a person’s truthfulness. Probing
behind this assumption reveals it to be both culturally mediated and without
basis in science, rather than reflecting a truism about human beings. Other
cultures have different expectations about the revelatory nature of demeanor
that, in turn, reflect different beliefs about the relationship between the
internal and the external.’’).
One important example of this phenomenon is documented in a substantial
body of literature indicating that it is not uncommon for individuals growing
up in a violent home or neighborhood, as the defendant in the present case
did, to adopt a mask of unemotional fearlessness as a coping mechanism.
See, e.g., N. Dowd, ‘‘Black Boys Matter: Developmental Equality,’’ 45 Hofstra
L. Rev. 47, 93 (2016) (‘‘[b]ravado is particularly the response in high risk
neighborhoods for self-protection’’); S. Dworkin, ‘‘Masculinity, Health, and
Human Rights: A Sociocultural Framework,’’ 33 Hastings International &
Comp. L. Rev. 461, 474 (2010) (‘‘marginalized men may be [overly reliant]
on garnering identity through narrow definitions of masculinity in order
to garner status and respect’’); M. Thomas, ‘‘The African American Male:
Communication Gap Converts Justice into ‘Just Us’ System,’’ 13 Harv.
BlackLetter L.J. 1, 9 (1997) (‘‘‘[c]ool pose is a distinctive coping mechanism
that serves to counter, at least in part, the dangers that black males encounter
on a daily basis’ ’’), quoting R. Majors & J. Billson, Cool Pose: The Dilemmas
of Black Manhood in America (1992) p. 5; see also R. Klein, Trial Practice
Series: Trial Communication Skills (2d Ed. 2020) § 4:4 (‘‘In truth, the feelings
are always there, but for one reason or another, they are masked. With men,
an open display of emotion is usually considered a sign of weakness. To
be in control, to show no feelings, to act ‘cool’ in the face of any threat is
considered manly.’’); M. Dargis & M. Koenigs, ‘‘Witnessing Domestic Violence
During Childhood Is Associated with Psychopathic Traits in Adult Male
Criminal Offenders,’’ 41 Law & Hum. Behav. 173, 174 (2017) (‘‘[E]xposure
to community violence is directly correlated with callous-unemotional traits
in detained juveniles. Moreover, this violence exposure mediates the rela-
tionship between callous-unemotional traits and delinquency, suggesting
that witnessing violent acts account[s] for the relationship between callous-
unemotional traits and heightened risk for engaging in violent behavior.’’); cf.
State v. Purcell, 331 Conn. 318, 356–57, 203 A.3d 542 (2019) (acknowledging
sociolinguistic research concluding that ‘‘indirect speech patterns are com-
mon within African-American spoken language’’ and are used as linguistic
mechanism to avoid conflict (internal quotation marks omitted)).
I do not profess to know what psychological, emotional, and cultural
factors actually lay behind this defendant’s calm demeanor. My point is that
I have no way to know or even guess, and neither does the trial court or the
majority. That said, at least two aspects of the record make my alternative
scenario plausible. First, one of the officers said to the defendant, well into
the interrogation, ‘‘I think you’re putting a tough guy front on,’’ indicating
that the interrogators themselves perceived the defendant to be wearing
precisely the type of mask identified in the research studies. Second, the
defendant’s background places him within the demographic referenced in
those studies. He had committed four felonies by the age of eighteen, and he
reported ‘‘a significant family history of drug addiction and related criminal
behavior in [his] first degree relatives’’ and described ‘‘violence in the home
[and] exposure to violence as a youth in the streets (including shootings
and stabbings) . . . .’’
The fact that the latter information was not made known to the trial court
until sentencing does not undermine my point, but reinforces it: no judge
can even begin to understand the meaning of a defendant’s calm demeanor
during an interrogation without knowing much more about him or her. As
a consequence, there is simply no basis to be confident that the defendant’s
‘‘cool’’ demeanor signified internal calm rather than masked distress, and,
in my view, it is a mistake to give weight to this consideration under these
circumstances.
22
The majority also mischaracterizes my reasoning, but I rely on footnote
21 of this opinion to make my position clear.
23
Even in the context of using demeanor to assess credibility—an assess-
ment made in an adversarial proceeding, not an interrogation—courts have
begun to recognize that cultural differences and other factors may impact
demeanor and, in turn, our ability to draw accurate inferences from appear-
ances. See, e.g., Djouma v. Gonzales, 429 F.3d 685, 687–88 (7th Cir. 2005)
(‘‘[A]s a foreigner [the asylum applicant’s] demeanor will be difficult for the
immigration judge to ‘read’ as an aid to determining the applicant’s credibil-
ity. . . . The [United States Department of Homeland Security and the
United States Department of Justice] seem committed to [case-by-case]
adjudication in circumstances in which a lack of background knowledge
denies the adjudicators the cultural competence required to make reliable
determinations of credibility.’’); see also Yang v. Lynch, 832 F.3d 817, 821
(7th Cir. 2016) (‘‘we’ve commented on the unreliability of demeanor evidence
generally . . . and the particular difficulty of using such evidence to evalu-
ate the credibility of witnesses from other cultures’’ (citations omitted)),
citing United States v. Pickering, 794 F.3d 802, 805 (7th Cir. 2015), and
Djouma v. Gonzales, supra, 687; Morales v. Artuz, 281 F.3d 55, 61 and n.3
(2d Cir.) (acknowledging that idea that demeanor is useful basis for assessing
credibility is ‘‘grounded perhaps more on tradition than on empirical data’’
and citing articles reviewing social science research), cert. denied sub nom.
Morales v. Greiner, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002).
24
The majority interprets the interrogator’s statement ‘‘[t]he choice is
yours’’ as a simple assertion ‘‘that it was [the defendant’s] choice whether
to tell the truth.’’ Footnote 24 of the majority opinion. The flaw in this
interpretation is that it ignores what the officer actually said. The ‘‘choice’’
confronted by the defendant was expressly tied to the charges his ‘‘choice’’
would determine: ‘‘The choice is yours. Murder, manslaughter. That’s your
choice.’’ (Emphasis added.)
25
My conclusion in part II of this opinion makes it unnecessary to decide
whether the modest doctrinal reform that I propose in part III could be
implemented as a matter of state constitutional law or in the exercise of
this court’s supervisory authority. I note that several of the considerations
discussed in part III bear directly on some of the factors that are employed
to determine whether our state constitution affords greater protection than
the federal constitution. See State v. Geisler, 222 Conn. 672, 684–86, 610
A.2d 1225 (1992) (setting forth six factors that, to extent applicable, are to
be considered in construing contours of state constitution). ‘‘Although, in
Geisler, we compartmentalized the factors that should be considered in
order to stress that a systematic analysis is required, we recognize that they
may be inextricably interwoven. . . . [Moreover], not every Geisler factor
is relevant in all cases.’’ (Internal quotation marks omitted.) Kerrigan v.
Commissioner of Public Health, 289 Conn. 135, 157, 957 A.2d 407 (2008).
26
In Frazier, the one lie told to the defendant was not made in concert
with any other potentially coercive tactic, and the defendant confessed
approximately one hour after the interrogation commenced. See Frazier v.
Cupp, supra, 394 U.S. 737–38.
27
‘‘As of June 7, 2016, [t]he National Registry of Exonerations had collected
data on [1810] exonerations in the United States since 1989 (that number
as of December 4, 2017 is [2132]), and that data [include] 227 cases of
innocent people who falsely confessed. This research indicates that false
confessions (defined as cases in which indisputably innocent individuals
confessed to crimes they did not commit) occur in approximately 25 [per-
cent] of homicide cases.’’ (Footnote omitted.) Dassey v. Dittmann, supra,
877 F.3d 332 (Rovner, J., dissenting). Interrogators themselves indicate that
false confessions are surprisingly frequent. One self-report study of more
than 600 professional interrogators found that the interrogators, based on
their personal experiences and observations, estimated that, on average,
almost 5 percent of innocent suspects confess. See S. Kassin et al., ‘‘Police
Interviewing and Interrogation: A Self-Report Survey of Police Practices
and Beliefs,’’ 31 Law & Hum. Behav. 381, 392–93 (2007).
28
Some examples cited in the literature include: Anthony Gray confessed
to rape and murder after a series of interrogations, during which detectives
falsely informed him that two other men had confessed to involvement in
the crime and had named Gray as the killer and that he had failed two
polygraph tests. Gray spent more than seven years in prison ‘‘before he was
exonerated on the basis of DNA evidence.’’ K. Wynbrandt, Comment, ‘‘From
False Evidence Ploy to False Guilty Plea: An Unjustified Path to Securing
Convictions,’’ 126 Yale L.J. 545, 545–46 (2016).
Marty Tankleff, then seventeen years old, confessed to killing his mother
and beating his father after an interrogator lied about the evidence of his
guilt, including that his father had said that he did it. His conviction was
later vacated, and the charges were dropped. See S. Kassin, ‘‘Inside Interroga-
tion: Why Innocent People Confess,’’ 32 Am. J. Trial Advoc. 525, 536 (2009).
John Watkins confessed to rape after the police falsely told him that they
had recovered his fingerprints from the crime scene, that the victim had
identified him, and that he had failed a voice stress analysis test. He was later
exonerated by DNA evidence. See S. Gross et al., National Registry of Exonera-
tions, Government Misconduct and Convicting the Innocent: The Role of
Prosecutors, Police and Other Law Enforcement (September 1, 2020) p. 56,
available at https://www.law.umich.edu/special/exoneration/Documents/
Government_Misconduct_and_Convicting_the_Innocent.pdf (last visited July
19, 2021).
Frank Sterling confessed to murder after officers falsely told him that his
brother had implicated him and that he was justified in hurting the victim
because she deserved it. Sterling was exonerated by DNA evidence that
implicated another man. See id., p. 45.
Robert Miller, later exonerated, confessed after being falsely told by a
detective that an eyewitness had seen him leaving the crime scene and
that this witness had identified him in a photograph. See B. Garrett, ‘‘The
Substance of False Confessions,’’ 62 Stan. L. Rev. 1051, 1098 (2010).
In a recent opinion piece in the New York Times by three of the defendants
convicted as part of the group known as the ‘‘Central Park Five,’’ the authors
explain how the interrogators’ blatant lies—telling the defendants that the
police had matched their fingerprints to crime scene evidence and telling
each of them that the others had confessed and implicated each of them
in the attack—contributed to their false confessions. See Y. Salaam et al.,
‘‘Act Against Coerced Confessions,’’ N.Y. Times, January 5, 2021, p. A19.
In a book by a former Washington, D.C., homicide detective, he examined
how he could have elicited a confession from a suspect who he later proved
could not have committed the crime. See T. Jackman, ‘‘Homicide Detective’s
Book Describes ‘How the Police Generate False Confessions,’ ’’ Wash. Post,
October 20, 2016, available at https://www.washingtonpost.com/news/true-
crime/wp/2016/10/20/homicide-detectives-book-describes-how-the-police-
generate-false-confessions/ (last visited July 19, 2021). ‘‘He realized that
implying that [the suspect’s] cooperation would get her better treatment
from the prosecutors, and minimizing her role in the case to obtain her
testimony against [her codefendants], as well as a mistaken handwriting
analysis and a bogus ‘voice stress test,’ got her to confess.’’ Id.; see also M.
Gohara, supra, 33 Fordham Urb. L.J. 831 n.239 (providing examples of four
other cases in which defendants falsely confessed after police lied about
evidence inculpating them).
29
The doubters argue that the empirical evidence does not demonstrate
the frequency of the problem and may not accurately reflect proven cases
of innocence; see, e.g., F. Inbau et al., supra, pp. 442–43; L. Magid, ‘‘Deceptive
Police Interrogation Practices: How Far Is Too Far?,’’ 99 Mich. L. Rev. 1168,
1192 (2001); suggest that false confessions are such a rarity that their risk
may not outweigh the benefits of the questioned interrogation practices;
see, e.g., Dassey v. Dittmann, supra, 877 F.3d 318 n.8; or point to the
uncontested fact that social science experiments cannot replicate the high
stakes context of an interrogation for a serious crime. See, e.g., F. Inbau et
al., supra, p. 443; A. Hirsch, supra, 11 Ohio St. J. Crim. L. 805–808; S. Tekin
et al., ‘‘Interviewing Strategically To Elicit Admissions from Guilty Suspects,’’
39 Law & Hum. Behav. 244, 251 (2015). These concerns have been addressed
to my satisfaction in several sources, including Dassey v. Dittmann, supra,
331–33 (Rovner, J., dissenting), and A. Hirsch, supra, 806 n.18, 812–13,
825 n.129.
30
Research also suggests that some innocent individuals may falsely con-
fess voluntarily during police interrogations ‘‘because they believe that ‘truth
and justice will prevail’ later even if they falsely admit their guilt.’’ B. Garrett,
‘‘The Substance of False Confessions,’’ 62 Stan. L. Rev. 1051, 1100 (2010);
see, e.g., id., 1054–56 (Jeffrey Deskovic, exonerated of rape and murder
with DNA evidence after making inculpatory statements, later explained
that ‘‘ ‘[b]elieving in the criminal justice system and being fearful for myself,
I told [the police] what they wanted to hear’ ’’). As I explain later in this
opinion, this optimistic view of the criminal justice system is not univer-
sally shared.
31
Several of the exonerated ‘‘Central Park Five’’ defendants recently
explained: ‘‘It’s hard to imagine why anyone would confess to a crime
they didn’t commit. But when you’re in that interrogation room, everything
changes. During the hours of relentless questioning that we each endured,
detectives lied to us repeatedly. . . . It felt like the truth didn’t matter.
Instead, it seemed as though they locked onto one theory and were hellbent
on securing incriminating statements to corroborate it. A conviction rather
than justice felt like the goal.’’ Y. Salaam et al., ‘‘Act Against Coerced Confes-
sions,’’ N.Y. Times, January 5, 2021, p. A19.
32
A bill also was raised in Connecticut in 2014, which would have estab-
lished a presumption that a statement made by a suspect as a result of a
custodial interrogation is inadmissible if the police knowingly present the
suspect with false evidence or knowingly misrepresent the evidence about
the case. See Raised Bill No. 5589, 2014 Sess., § 1. Interestingly, in written
testimony submitted to the Judiciary Committee, the Division of Criminal
Justice successfully urged no action on the bill, suggesting that the courts
should address this concern on a case-by-case basis under the current state of
the law rather than adopt a per se rule. See Conn. Joint Standing Committee
Hearings, Judiciary, Pt. 8, 2014 Sess., pp. 3564–65. That is precisely what
this opinion advocates.
33
Judge Rovner’s dissent in Dassey is particularly notable because it was
joined by two other Seventh Circuit judges. The four judges in the majority
did not decide the issue raised in Judge Rovner’s dissent because they
concluded that that dissent’s approach would not apply under the deferential
standard that the federal court was required to apply to the review of a
state court decision. See Dassey v. Dittmann, supra, 877 F.3d 302 (‘‘[e]ven
if we were to consider the approach in past [United States] Supreme Court
decisions outmoded, as the dissents suggest, a state court’s decision consis-
tent with the Supreme Court’s approach could not be unreasonable under
[the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)]’’).
Chief Judge Wood wrote a separate dissent, arguing that the confession
was involuntary despite the deferential standard of the AEDPA. See id.,319–31 (Wood, C. J., dissenting).
34
The possibility that an end justifies the means mentality could result in
some police officers committing perjury to advance what they perceive to
be the greater public good is not hyperbole. Such conduct was sufficiently
pervasive in New York City that police officers had their own name for the
practice, ‘‘testilying’’; see J. Goldstein, ‘‘ ‘Testilying’ by Police: A Stubborn
Problem,’’ N.Y. Times, March 18, 2018, available at https://www.nytimes.com/
2018/03/18/nyregion/testilying-police-perjury-new-york.html (last visited July
19, 2021); and there is evidence that this conduct is not limited to that locale.
‘‘Judge Alex Kozinski of the Ninth Circuit has observed that it is ‘an open
secret long shared by prosecutors, defense lawyers and judges that perjury
is widespread among law enforcement officers.’ ’’ I. Capers, supra, 83 Ind.
L.J. 836–37. ‘‘Blue lies are so pervasive that even former prosecutors have
described them as ‘commonplace’ and ‘prevalent.’ Surveyed prosecutors,
defense attorneys, and judges believed perjury was present in approximately
[20] percent of all cases. A separate survey of police officers was even more
sobering. Seventy-six percent of responding officers agreed that officers
shade the facts to establish probable cause; [48] percent believed judges
were often correct in disbelieving police testimony.’’ (Footnotes omitted.)
Id., 870; see also K. Holloway, ‘‘Lying Is a Fundamental Part of American
Police Culture,’’ Salon, March 31, 2018, available at https://www.salon.com/
2018/03/31/lying-is-a-fundamental-part-of-american-police-culture_partner/
(last visited July 19, 2021); Editorial, ‘‘Police Perjury: It’s Called ‘Testilying,’ ’’
Chicago Tribune, July 5, 2015, available at https://www.chicagotribune.com/
news/opinion/editorials/ct-police-false-testimony-edit-20150702-story.html
(last visited July 19, 2021).
35
The Florida Appellate Court in Cayward made this statement when
distinguishing between manufactured evidence and verbal lies, deeming the
former coercive per se; see State v. Cayward, supra, 552 So. 2d 973–75; a
distinction adopted by a few other courts. See State v. Patton, 362 N.J.
Super. 16, 31–32, 826 A.2d 783 (App. Div.), cert. denied, 178 N.J. 35, 834
A.2d 408 (2003); State v. Farley, 192 W. Va. 247, 257 n.13, 452 S.E.2d 50(1994). I agree with those courts that have rejected the proposition that a
verbal lie about evidence will necessarily have less of an effect than present-
ing that same lie in physical form, i.e., false test results. See, e.g., State v.
Baker, supra, 147 Haw. 431 (‘‘[t]o the suspect, who does not expect the
police to lie, there is no meaningful distinction between being given a piece
of paper that purports to document guilt and an officer’s confident assertion
that scientific evidence incontrovertibly establishes the suspect’s guilt’’);
see also M. Gohara, supra, 33 Fordham Urb. L.J. 833 (‘‘Both sorts of official
misrepresentation offend traditional notions of due process. Forgery and
oral misrepresentation differ from one another only in degree rather than
in kind.’’).
36
It should be noted that, although there is evidence that the United
Kingdom has a higher or similar rate of confessions as the United States;
see C. Slobogin, ‘‘Lying and Confessing,’’ 39 Tex. Tech L. Rev. 1275, 1282–83
and nn. 43 and 44 (2007); the United Kingdom permits the police to continue
questioning suspects even after they have indicated a desire to remain silent
and to tell suspects that their silence may be used against them. Id., 1282–83;
see also C. Slobogin, supra, 22 Mich. J. International L. 446.
37
See Lewis v. United States, 385 U.S. 206, 209, 87 S. Ct. 424, 17 L.
Ed. 2d 312 (1966) (The court acknowledged, in the context of information
obtained by an undercover agent, ‘‘that, in the detection of many types of
crime, the [g]overnment is entitled to use decoys and to conceal the identity
of its agents. The various protections of the Bill of Rights, of course, provide
checks upon such official deception for the protection of the individual.’’);
see also Hoffa v. United States, 385 U.S. 293, 302, 87 S. Ct. 408, 17 L.
Ed. 2d 374 (1966) (use of government informant to obtain incriminating
statements was not violation of fourth amendment when informant was
invited to defendant’s hotel suite and was not ‘‘a surreptitious eavesdropper,’’
and defendant was relying on his ‘‘misplaced belief that a person to whom
he voluntarily confides his wrongdoing will not reveal it’’).