GIST: "On June 20, 1991, two police officers brought an African
American man named Anthony Gray into custody for questioning related to the
unsolved rape and murder of a woman in Calvert County, Maryland. During the interrogation,
the detectives lied to Mr. Gray about the evidence police held against him.
They told him that two other men had confessed to involvement in the crime and
had named Mr. Gray as the killer.
They told him that he had failed two hour-long polygraph tests. And they told him that they
“knew” he had committed the crime. In reality, no one had confessed to the crime or identified Anthony
Gray as the perpetrator. Mr. Gray did not fail the polygraph
tests. Instead, the police had
gathered “a substantial amount of exculpating evidence” during the period of
time when Mr. Gray was being interrogated. Witnesses reported having
seen a lone white man driving from the crime scene in the victim’s car, and the
hair evidence that police recovered could have only come from a Caucasian man. But after a series of
interrogations in which he was repeatedly confronted with the fabricated
evidence against him, Mr. Gray pled guilty. The court imposed two
concurrent life sentences.Anthony Gray spent more than seven years behind bars before he was exonerated
on the basis of DNA evidence. With the benefit of hindsight, Anthony Gray’s ordeal appears
to be an unambiguous miscarriage of justice. Nevertheless, current law
sanctions the practice of confronting suspects with false evidence against them
during interrogations—a practice social scientists have termed “the false
evidence ploy”—and the Supreme Court has imposed no
requirements for disclosure of false evidence during plea negotiations. The circumstances that led
to Mr. Gray’s wrongful conviction are not an anomaly; the law is bereft of
safeguards to prevent suspects from making plea decisions based on inaccurate
information about their likelihood of conviction at trial. This Comment draws attention to the false evidence ploy’s
danger of triggering false guilty pleas. To date, legal scholarship addressing
this type of police trickery has focused on its risk of producing
false confessions, and with good reason: more than ten
percent of the nearly two thousand American exonerees
falsely confessed to the crime for which they were wrongfully convicted. But these statistics fail
to capture the bigger picture. Approximately ninety-four percent of state
convictions and ninety-seven percent of federal convictions result from guilty
pleas. Indeed, a guilty plea—as
opposed to a confession—constitutes a larger victory for law enforcement
officers who believe, rightly or wrongly, that a suspect committed a crime. After a guilty plea is entered,
there will be no trial, and barriers to appeal are nearly insurmountable. Reversals of convictions resulting
from guilty pleas are therefore extremely rare. Accordingly, there is a
dearth of false guilty plea exonerations and associated case law to fuel wrongful convictions
literature, particularly on the topic of the false evidence ploy. This Comment
aims to fill that gap. In a country where more than two million people are
incarcerated, even a marginally
heightened risk of false guilty pleas translates into a number of unwarranted
person-years behind bars that is difficult to contemplate and impossible to justify. The Comment proceeds in two Parts. Part I argues that the
legal and theoretical justifications for police trickery as a means to secure
confessions do not remain viable in the context of plea bargaining. Courts
apply the legal standard articulated in Frazier
v. Cupp only when suspects do not plead guilty and instead exercise
their right to a trial, and the criminal justice system provides few tools to
ameliorate the coercive effects of the false evidence ploy during the plea-bargaining
process. Part II proposes two doctrinal routes for courts to mitigate the
damaging effects of the false evidence ploy in plea-bargaining outcomes without
overruling Supreme Court precedent.
The Reid Technique is the “most influential and widely used” interrogation protocol in the United States. An organization called John E. Reid & Associates developed the method in the mid-twentieth century and has since trained more interrogators 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.” Detectives’ use of fabricated evidence is no exception. The Reid Manual teaches law enforcement to carry out the false evidence ploy because it is “clearly the most persuasive” interrogation tactic “[w]ithin the area of deception.” It instructs detectives to, for example, bring “visual props” into the interview room, including “a DVD disc, CD-ROM, audio tape, a fingerprint card, an evidence bag containing hair or other fibers, spent shell casings, [and] vials of colored liquid.” It also announces a “clear position” that “merely introducing fictitious evidence during an interrogation” cannot lead to false admissions of guilt. Contradicting decades of social science evidence and scores of DNA exonerations, the Reid Manual states that “[i]t is absurd to believe that a suspect who knows he did not commit a crime would place greater weight and credibility on alleged evidence than his own knowledge of innocence.” The Reid Manual also defends the use of “outright lies concerning the existence of evidence” by assuring law enforcement that the practice is legal and “routinely uph[e]ld” under the Supreme Court’s “totality of the circumstances” standard. It cites the foundational case addressing the permissibility of the false evidence ploy, Frazier v. Cupp, in which the defendant brought a habeas corpus action to challenge his murder conviction in Oregon. Frazier’s attorneys made a variety of arguments, including the claim that Frazier’s confession was involuntary because the police falsely told him that they had secured a confession from his companion. The Court devoted little space to this claim in its opinion, merely noting, “The fact that the police misrepresented the statements that [Frazier’s companion] had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the ‘totality of the circumstances.’” In the decades since Frazier was published, lower courts have consistently deployed the opinion as legal cover for far more coercive uses of the false evidence ploy than the fabricated codefendant confession at play in Frazier itself. For example, the North Carolina Supreme Court cited Frazier in support of its decision to uphold a confession generated after police presented the suspect with a bloody knife and falsely asserted that it was found at the scene of the crime with the suspect’s fingerprints on it. Lower courts also have cited Frazier in support of decisions to admit confessions obtained after police falsely told a suspect that his fingerprints had been found at the scene of the crime or on the murder weapon; that they possessed DNA evidence proving his guilt; that his hair or shoe-prints were found at the location of the crime; that his semen was recovered from the crime scene; that he failed a polygraph test or gunshot residue test; and that eyewitnesses identified him as the perpetrator. Further examples abound...Psychologists have teased out two causal mechanisms by which the false evidence ploy may give rise to false confessions. Both apply with equal force to guilty pleas. First, suspects may falsely confess “as an act of compliance when they perceive that there is strong evidence against them.”Second, innocent suspects confronted with evidence that law enforcement claims to prove their guilt as an “incontrovertible 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 psychological processes is the defendant’s perception that his or her likelihood of conviction at trial is high—a perception that has been found to be particularly important in plea decision making. 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.” Innocent suspects who were not at the crime scene may not know whether there were witnesses or physical evidence left behind; they also may be uncertain of whether they committed the crime if, for example, they were intoxicated or are mentally handicapped. In light of research indicating that innocent defendants are “on average more risk averse” than guilty ones, it is not difficult to recognize the possibility that an innocent defendant would accept a relatively small punishment by pleading guilty in order to avoid risking a greater one after trial. Further pressures to plead guilty when facing a substantial probability of conviction exacerbate this effect. These include the financial cost of a trial, the stress of waiting for a court date and preparing for an uncertain result, and—for defendants whose plea offers do not involve incarceration—the ability to return home. Even though the number of innocents who have pleaded guilty is “inherently unknowable,” the literature makes clear that “plea bargaining has an innocence problem."...This Comment contends that interrogators’ use of the false evidence ploy exacerbates the problem of wrongful convictions in a criminal justice system where most convictions are secured through plea agreements. Courts’ expansive readings of Frazier give police the green light to deliberately mislead suspects about their probability of conviction at trial. And once an innocent suspect is convinced that law enforcement possesses inculpating evidence that is likely to persuade a jury, entering a guilty plea may appear rational in a plea-bargaining system that does not obligate the state to disclose its use of falsified evidence. While the false evidence ploy is merely one of many risk factors for wrongful conviction, reducing interrogators’ reliance on this mode of deception would move the ball forward in protecting the innocent from criminal sanction. For people like Anthony Gray, such a change could have made all the difference."
The Reid Technique is the “most influential and widely used” interrogation protocol in the United States. An organization called John E. Reid & Associates developed the method in the mid-twentieth century and has since trained more interrogators 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.” Detectives’ use of fabricated evidence is no exception. The Reid Manual teaches law enforcement to carry out the false evidence ploy because it is “clearly the most persuasive” interrogation tactic “[w]ithin the area of deception.” It instructs detectives to, for example, bring “visual props” into the interview room, including “a DVD disc, CD-ROM, audio tape, a fingerprint card, an evidence bag containing hair or other fibers, spent shell casings, [and] vials of colored liquid.” It also announces a “clear position” that “merely introducing fictitious evidence during an interrogation” cannot lead to false admissions of guilt. Contradicting decades of social science evidence and scores of DNA exonerations, the Reid Manual states that “[i]t is absurd to believe that a suspect who knows he did not commit a crime would place greater weight and credibility on alleged evidence than his own knowledge of innocence.” The Reid Manual also defends the use of “outright lies concerning the existence of evidence” by assuring law enforcement that the practice is legal and “routinely uph[e]ld” under the Supreme Court’s “totality of the circumstances” standard. It cites the foundational case addressing the permissibility of the false evidence ploy, Frazier v. Cupp, in which the defendant brought a habeas corpus action to challenge his murder conviction in Oregon. Frazier’s attorneys made a variety of arguments, including the claim that Frazier’s confession was involuntary because the police falsely told him that they had secured a confession from his companion. The Court devoted little space to this claim in its opinion, merely noting, “The fact that the police misrepresented the statements that [Frazier’s companion] had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the ‘totality of the circumstances.’” In the decades since Frazier was published, lower courts have consistently deployed the opinion as legal cover for far more coercive uses of the false evidence ploy than the fabricated codefendant confession at play in Frazier itself. For example, the North Carolina Supreme Court cited Frazier in support of its decision to uphold a confession generated after police presented the suspect with a bloody knife and falsely asserted that it was found at the scene of the crime with the suspect’s fingerprints on it. Lower courts also have cited Frazier in support of decisions to admit confessions obtained after police falsely told a suspect that his fingerprints had been found at the scene of the crime or on the murder weapon; that they possessed DNA evidence proving his guilt; that his hair or shoe-prints were found at the location of the crime; that his semen was recovered from the crime scene; that he failed a polygraph test or gunshot residue test; and that eyewitnesses identified him as the perpetrator. Further examples abound...Psychologists have teased out two causal mechanisms by which the false evidence ploy may give rise to false confessions. Both apply with equal force to guilty pleas. First, suspects may falsely confess “as an act of compliance when they perceive that there is strong evidence against them.”Second, innocent suspects confronted with evidence that law enforcement claims to prove their guilt as an “incontrovertible 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 psychological processes is the defendant’s perception that his or her likelihood of conviction at trial is high—a perception that has been found to be particularly important in plea decision making. 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.” Innocent suspects who were not at the crime scene may not know whether there were witnesses or physical evidence left behind; they also may be uncertain of whether they committed the crime if, for example, they were intoxicated or are mentally handicapped. In light of research indicating that innocent defendants are “on average more risk averse” than guilty ones, it is not difficult to recognize the possibility that an innocent defendant would accept a relatively small punishment by pleading guilty in order to avoid risking a greater one after trial. Further pressures to plead guilty when facing a substantial probability of conviction exacerbate this effect. These include the financial cost of a trial, the stress of waiting for a court date and preparing for an uncertain result, and—for defendants whose plea offers do not involve incarceration—the ability to return home. Even though the number of innocents who have pleaded guilty is “inherently unknowable,” the literature makes clear that “plea bargaining has an innocence problem."...This Comment contends that interrogators’ use of the false evidence ploy exacerbates the problem of wrongful convictions in a criminal justice system where most convictions are secured through plea agreements. Courts’ expansive readings of Frazier give police the green light to deliberately mislead suspects about their probability of conviction at trial. And once an innocent suspect is convinced that law enforcement possesses inculpating evidence that is likely to persuade a jury, entering a guilty plea may appear rational in a plea-bargaining system that does not obligate the state to disclose its use of falsified evidence. While the false evidence ploy is merely one of many risk factors for wrongful conviction, reducing interrogators’ reliance on this mode of deception would move the ball forward in protecting the innocent from criminal sanction. For people like Anthony Gray, such a change could have made all the difference."
The entire article can be found at the link below:
http://www.yalelawjournal.org/comment/from-false-evidence-ploy-to-false-guilty-plea-an-unjustified-path-to-securing-convictions
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/
