Is Deception Allowed During a Custodial Interrogation?

By John Brunetti

Is Deception Allowed During a Custodial Interrogation?

7.14.2022

By John Brunetti

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Neither the United States Supreme Court[1] nor the New York Court of Appeals has ever ruled that deception of a suspect undergoing a custodial interrogation to which Miranda applies is permitted.

The two cases often cited to support a claim to the contrary in relation to the Supreme Court[2] are Frazier v. Cupp,[3] to which Miranda did not apply,[4] and Oregon v. Mathiason,[5] where the suspect was not in custody when police told him his fingerprints were found at the scene.

As for our Court of Appeals, each defendant in the court’s most famous deception cases, People v. Tarsia,[6] People v. Tankleff,[7] and People v. Thomas,[8] was not in custody when deceived, so Miranda did not apply. So, what case law was the Second Department referring to in 2012 when it asserted that a “review of the case law amply demonstrates that when interrogating a suspect, the police may, as part of their investigatory efforts, deceive a suspect, and any resulting statement will not be suppressed for that reason alone”?[9] Two older cases where Miranda did not apply[10] and three cases where the defendant was not in custody – Tarsia and two more recent cases.[11]

The Importance of Custodial Status to the Meaning of Case Precedent

In announcing the Miranda rule, and explaining valid waivers, the U.S. Supreme Court said “[a]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.”[12] The court would later reassert this principle in Moran v. Burbine: “. . . the relinquishment of the right [to remain silent] must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception.”[13]

The New York Court of Appeals’ rule governing the admissibility of statements produced through deception was first expressed in People v. Tarsia[14] in the context of a non-custodial interview. Since the defendant in Tarsia was not in custody when he made his statement, Miranda was inapplicable. So, the only arguments he had to advance when seeking suppression of his statement based on deception were a traditional involuntariness/due process claim and a statutory CPL § 60.45(2)(b)(i) claim. It was in the context of rejecting the due process claim that the Court of Appeals stated the rule governing the use of deception to obtain a suspect’s admission during a non-custodial interview that has been cited time and time again since: “But such stratagems need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession.”[15]

Thirty-one years after Tarsia was decided, the Court of Appeals was presented with another non-custodial[16] deception case, People v. Thomas,[17] where the defendant[18] was assured eight times that he would be going home, told 67 times that his child’s death was an accident, misinformed 21 times that the child was still alive and 14 times that he would not be arrested. His statement was ruled subject to suppression on both the grounds of involuntariness in the traditional sense and CPL § 60.45(2)(i) (police statement to suspect likely to induce a false confession).

While the Tarsia rule[19] was announced in a case where the statement was produced via deception in a non-custodial interview and has been properly applied to those settings by both the Court of Appeals[20] and Appellate Division,[21] it has also been cited by the Appellate Division in cases where the statement was the product of custodial interrogation.[22] Despite those decisions, there are Appellate Division cases that correctly recognize that Tarsia’s applicability is dependent upon the interrogation having been non-custodial. Thus, in a Second Department case the court recognized the distinction in properly applying Tarsia and Tankleff in resolving the admissibility of a deception-induced statement made during a non-custodial interview, adding “since no promises or threats were made and the defendant was not in custody, this deception was not so fundamentally unfair as to render the defendant’s subsequent statements involuntary.”[23] The First Department would do the same one year later, holding that “since no promises or threats were made and defendant was not in custody, the deception employed by the police was not so fundamentally unfair as to render defendant’s subsequent statements involuntary, or to deny him due process.”[24]

Deception in Extracting an Initial Waiver Versus Deception During a Custodial Interrogation

Is there a constitutional difference between the use of deception during a custodial interrogation to cajole a defendant into an initial agreement to speak with the police and the use of deception during the interrogation in order to cajole the defendant to answer a particular question? Supreme Court case law says there is no difference.

In Miranda, the Supreme Court said that “any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege” and later asserted that one of “[t]he purposes of the safeguards prescribed by Miranda [is] to ensure that the police do not coerce or trick captive suspects into confessing.”[25] The court did not say “trick the suspect into agreeing to answer questions.” The court said, “trick the suspect into confessing.” Absent a blurt out, the confession always comes after the initial rights advisement and initial waiver. So, Miranda’s prohibition on deception was expressly held to apply during a custodial interrogation.

In Moran v. Burbine,[26] the court held that “[o]nly if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” The court reiterated this principle in Fare v. Michael C.:[27] “[T]he determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have counsel.”

In Moran and Fare, the court did not limit the scope of review of the Miranda rights waiver to the circumstances surrounding the defendant’s initial decision to speak, but rather extended it to the circumstances surrounding the entire interrogation. That is because a suspect’s decision to answer each question during the interrogation is a waiver of Miranda rights. The Supreme Court’s decision in Berghuis v. Thompkins[28] confirms this principle.

In Berghuis, the court held that where there is evidence that a suspect has been advised of his rights and understood them, an express Miranda waiver is not required, and the suspect’s answering a question three hours into the interrogation, after remaining selectively silent, constituted an implied waiver of Miranda rights.[29] Thus, the court made clear that a suspect’s act of answering a question is a waiver of the Miranda right to remain silent. But just in case there is doubt about each answer during a custodial interrogation constituting a Miranda rights waiver, there’s more.

In Berghuis, the Supreme Court said:

Interrogation provides the suspect with additional information that can put his or her decision to waive, or not to invoke, into perspective. As questioning commences and then continues, the suspect has the opportunity to consider the choices he or she faces and to make a more informed decision, either to insist on silence or to cooperate.[30]

So, what right is the court talking about when it says that as to each question asked during an interrogation, the suspect makes a “decision to waive, or not to invoke”? The answer is the Miranda right to remain silent. What else could it be?

This article would not be complete if it did not make mention of the 2010 4-3 decision of the Court of Appeals in Matter of Jimmy D.[31] There, the three-judge dissent by judges who are no longer on the court agreed that each answer a suspect gives to an interrogator’s question is, in and of itself, a discrete Miranda rights waiver: “Contrary to the majority’s view, the continuing validity of a Miranda waiver is not a non-issue after the waiver has first been made, even in the absence of the waiver’s retraction. Logically, every response made during a custodial interrogation is a reaffirmation of the original waiver.”[32]

The four-judge majority of judges no longer on the court commented on the dissent as follows:

The dissent, while acknowledging the validity of Jimmy’s initial waiver, relies on a novel theory: that the validity of the waiver was vitiated by police misconduct that occurred after the waiver. . . . The dissent does not suggest that Jimmy was tricked or coerced into his initial waiver, or that Jimmy later invoked his rights and failed to waive them a second time.[33]

In evaluating the precedential value of Jimmy D., it is noteworthy that neither the majority nor the dissent cited Berghuis, which had been decided four months earlier.[34]

John Brunetti previously served as a Court of Claims judge assigned to Supreme Court and currently serves as a judge of the Oneida Indian Nation Court. He is the author of “New York Confessions” (LexisNexis). This article appears in the current issue of “NY Criminal Law Newsletter,” a publication of the Criminal Justice Section. Please visit the Criminal Justice Section page at NYSBA.ORG/CRIMINAL-JUSTICE-SECTION for more information.


[1] WestLaw search of “trick! /4 cajole! and miranda” in the U.S. Supreme Court database yields only four cases in addition to Miranda and none approves of deception of the suspect through lies during a custodial interrogation: Colorado v. Spring, 479 U.S. 564 (1987); Connecticut v. Barrett, 479 U.S. 523 (1987); Orozco v. Texas, 394 U.S. 324 (1969); and Moran v. Burbine, 475 U.S. 412 (1986). In Colorado v. Spring, 479 U.S. at 576 n.8, the court made clear via footnote that it was “not confronted with an affirmative misrepresentation by law enforcement officials as to the scope of the interrogation and [would] not reach the question whether a waiver of Miranda rights would be valid in such a circumstance.”

[2] See, e.g., Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 L. & Hum. Behav. 3, 13 (2010); 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, 798–99 (2006); Feld, Police Interrogation of Juveniles: An Empirical Study of Policy and Practice, 97 J. Crim. L. & Criminology 219, 316 (2006); Garcia, Regression to the Mean: How Miranda Has Become a Tragicomical Farce, 25 St. Thomas L. Rev. 293, 297 (2013); Wilson, An Exclusionary Rule for Police Lies, 47 Am. Crim. L. Rev. 1, 28–29 n. 176 (2010). Moran v. Burbine, 475 U.S. 412 (1986).

[3] Frazier v. Cupp, 394 U.S. 731 (1969).

[4] Id. at 738 (“But Miranda does not apply to this case.”).

[5] Oregon v. Mathiason, 429 U.S. 492 (1977).

[6] People v. Tarsia, 50 N.Y.2d 1 (1980).

[7] People v. Tankleff, 84 N.Y.2d 992 (1994).

[8] People v. Thomas, 22 N.Y.3d 629 (2014). The Appellate Division’s finding that the defendant was not in custody (93 A.D.3d at 1024) was left undisturbed by the Court of Appeals.

[9] See People v. Aveni, 100 A.D.3d 228, 237 (2d Dep’t 2012), appeal dismissed, 22 N.Y.3d 1114 (2014).

[10] See People v. Aveni, 100 A.D.3d 228, 237 (2d Dep’t 2012), appeal dismissed, 22 N.Y.3d 1114 (2014), citing People v. Pereira, 26 N.Y.2d 265 (1970) and People v. McQueen, 18 N.Y.2d 337 (1966), both non-Miranda cases.

[11] See People v. Aveni, 100 A.D.3d 228, 237 (2d Dep’t 2012) appeal dismissed, 22 N.Y.3d 1114 (2014), citing Tarsia (a non-custody case) and two additional non-custody cases, People v. Thomas, 93 A.D.3d 1019 (3d Dep’t 2012), reversed but not on the non-custody issue at 22 N.Y.3d 629 (2014) and People v. Jordan, 193 A.D.2d 890 (3d Dep’t 1993).

[12] Miranda v. Arizona, 384 U.S. 436, 476–77 (1966).

[13] Moran v. Burbine, 475 U.S. 412, 421 (1986).

[14] People v. Tarsia, 50 N.Y.2d 1, 11 (1980).

[15] Id. The cases cited for the due process reference were People v. Leyra, 302 N.Y. 353 (1951), People v. Isaacson, 44 N.Y.2d 511 (1978), cf. Brewer v. Williams, 430 U.S. 387 (1977) and for the false confessions, People v. Pereira, 26 N.Y.2d 265 (1970), People v. McQueen, 18 N.Y.2d 337 (1966) and United States ex rel. Everett v. Murphy, 329 F.2d 68 (2d Cir. 1964). Leyra is a traditional involuntariness case. Issacson is a dismissal case. Pereira was decided after Huntley, on facts which arose before Miranda was decided, so it is a traditional involuntariness case where the police failed to inform the defendant that the victim had died. That was not enough to constitute involuntariness. McQueen’s trial took place in 1964, but her appeal was decided by the Court of Appeals in 1966. The court took particular note of the fact that it was free to apply Miranda retroactively, based upon the Supreme Court decision in Johnson v. New Jersey, 384 U.S. 719 (1966). In McQueen, it is not clear whether the defendant was deemed in custody, but she was told that the victim would identify her even though the victim was dead. That was not enough for involuntariness.

[16] The Appellate Division’s conclusion that the interrogation was non-custodial in People v. Thomas, 93 A.D.3d 1019 (3d Dep’t 2012), was left undisturbed by the Court of Appeals. People v. Thomas, 22 N.Y.3d 629 (2014).

[17] People v. Thomas, 22 N.Y.3d 629.

[18] The Appellate Division’s conclusion that the interrogation in Thomas was non-custodial, 93 A.D.3d 1019 (3d Dep’t 2012), was left undisturbed by the Court of Appeals. People v. Thomas, 22 N.Y.3d 629.

[19] People v. Tarsia, 50 N.Y.2d 1, 11 (1980). The Second Department has expressed the Tarsia test as whether or not the conduct was so “fundamentally unfair to the defendant as to deprive him of due process of law.” People v. Brewley, 192 A.D.2d 540 (2d Dep’t 1993), lv. denied, 81 N.Y.2d 1070 (1993).

[20] People v. Tankleff, 84 N.Y.2d 992 (1994).

[21] See, e.g., People v. Rivera, 285 A.D.2d 385, 386 (1st Dep’t 2001), where the court emphasized that “since no promises or threats were made and defendant was not in custody, the deception employed by the police was not so fundamentally unfair as to render defendant’s subsequent statements involuntary, or to deny him due process”; People v. Newcomb, 45 A.D.3d 890 (3d Dep’t 2007), where the court, in rejecting a deception argument, emphasized that the defendant was not in custody; People v. Williams, 272 A.D.2d 485 (2d Dep’t 2000), lv. denied, 95 N.Y.2d 873 (2000), where the court properly cited Tarsia and Tankleff in a ruling upon the admissibility of a statement produced by a non-custodial interview and emphasizing that “since … the defendant was not in custody, this deception was not so fundamentally unfair as to render the defendant’s subsequent statements involuntary.”

[22] See People v. Walker, 278 A.D.2d 852 (4th Dep’t 2000), lv. denied, 96 N.Y.2d 869 (2001), where defendant in custody was falsely told that the victim gave a dying declaration implicating the defendant. The court used the regular Tarsia test instead of Miranda’s “cajole” test; People v. Dickson, 260 A.D.2d 931 (3d Dep’t 1999), lv. denied, 93 N.Y.2d 1017 (1999), where defendant in custody was “fully informed of his Miranda rights” and confessed after an officer falsely told him “that his actions were memorialized on a video surveillance camera in the gas station. Suppression was denied because “this deception was not so fundamentally unfair as to deny defendant due process or accompanied by a promise or threat likely to produce a false confession,” citing Tarsia; People v. Sobchik, 228 A.D.2d 800 (3d Dep’t 1996), where defendant was in custody and was questioned regarding a series of burglaries. He was asked if he would be willing to take a polygraph test and agreed. Once hooked up to the machine (which was not working), he admitted his involvement in the burglaries and ultimately gave a confession. Since there was no indication of misrepresentation of the results of the test, suppression was denied, citing Tarsia; People v. Hassell, 180 A.D.2d 819 (2d Dep’t 1992), lv. denied, 79 N.Y.2d 1050 (1992), where the court applied the Tarsia test to deception employed by officers who interrogated a defendant in custody.

[23] People v. Williams, 272 A.D.2d 485 (2d Dep’t 2000), lv. denied, 95 N.Y.2d 873 (2000).

[24] People v. Rivera, 285 A.D.2d 385, 386 (1st Dep’t 2001) (“Moreover, since no promises or threats were made and defendant was not in custody, the deception employed by the police was not so fundamentally unfair as to render defendant’s subsequent statements involuntary, or to deny him due process.”) (emphasis added).

[25] Berkemer v. McCarty, 468 U.S. 420, 433 (1984).

[26] Moran v. Burbine, 475 U.S. 412, 421 (1986).

[27] Fare v. Michael C., 442 U.S. 707, 725 (1979).

[28] Berghuis v. Thompkins, 560 U.S. 370 (2010).

[29] Id. at 386, citing North Carolina v. Butler, 441 U.S. 369, 373.

[30] Id. at 388.

[31] In re Jimmy D., 15 N.Y.3d 417 (2010).

[32] Id. at 428.

[33] Id. at 424.

[34] Id., decided October 26, 2010; Berghuis v. Thompkins, 560 U.S. 370 (2010), decided June 1, 2010.

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