Panel Upholds Confession Obtained by Lie

By John Caher

June 12, 2006


ALBANY — An upstate appellate panel last week confirmed that "deceptive police stratagems" used to obtain confessions are fair game, so long as the deception does not rise to the level of a due process violation nor is likely to induce a false statement.

People v. Dishaw, 16323/16513, is the latest in a continuing series of cases exploring just how tricky police can be in attempting to persuade a suspect to confess. The answer, this case and others seems to suggest, is pretty tricky.

Dishaw is an Appellate Division, Third Department, case out of St. Lawrence County, where the defendant was convicted at a jury trial of petit larceny for stealing lottery tickets from her employer.

Patti N. Dishaw, the night cleaner at a restaurant, initially denied stealing the lottery tickets that her employer reported missing. However, after a state trooper told her — falsely — that he had a video surveillance tape that proved she had taken the tickets, Ms. Dishaw confessed. She signed a written statement admitting she had taken $50 worth of lottery tickets four days earlier, and that she had been swiping tickets for several months. A jury convicted her of petit larceny.

On appeal, defense counsel Richard V. Manning of Parishville, N.Y., argued that the police ruse had effectively denied his client due process. But the justices of the Third Department unanimously disagreed.

"While the Trooper engaged in deception when he told defendant that her actions were caught on video surveillance and even went so far as to place a bogus videotape on the table in front of her, we are unable to conclude that such deception warrants suppression of her subsequent confessions," Justice Anthony J. Carpinello wrote for the 5-0 court. "Deceptive police stratagems in securing a statement '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' (People v. Tarsia, 50 NY2d 1, [1980])."

Last week's ruling mirrored one seven years ago in People v. Dickson, 260 AD2d 931 (1999). Like Dishaw, Dickson was a case where police had misled a robbery suspect into believing that his crime was captured on video.

After the Third Department affirmed the conviction in Dickson, the Court of Appeals denied leave.

The Court of Appeals' main pronouncement on the issue came in yet another Third Department case (Tarsia), where then-Associate Judge Jacob Fuchsberg expressed grave concerns over the potential for abuse but said police deception requires reversal only when due process rights are infringed.

"We begin with the reminder that much of what is cherished in our society may be traced to the Federal and State Constitutions' steadfast refusal to countenance confessions obtained by coercive means," Judge Fuchsberg, now deceased, wrote in 1980. "To declare otherwise, in effect that the end of securing the conviction of a criminal justifies whatever means, however inhumane, the State chooses to employ, would signal the demise of public trust in the institutions of Government (see Olmstead v. United States, 277 U.S. 438, 485 [Brandeis, J., dissenting]). So, the law brooks no infringement of due process rights at the time they are most needed, when the accusatorial power of the State is brought to bear in the course of a criminal investigation."

However, the Court also made plain that nothing short of an "infringement of due process rights" requires reversal in cases where police deceived the defendant.

The courts have not made clear precisely what type of trickery would trigger a due process violation. However, some guidance was provided in People v. Zimmer, 68 Misc 2d 1067, a 1972 case out of Wayne County. In Zimmer, which was affirmed on appeal, a polygraph operator told the defendant that the lie detector was infallible and proved he had lied, and that evidence would be admissible at trial. In fact, polygraph evidence is far from infallible and generally inadmissible, so the confession resulting from that misrepresentation was thrown out

Joining Justice Carpinello in the Dishaw decision were Presiding Justice Anthony V. Cardona and Justices Edward O. Spain, Carl J. Mugglin and John A. Lahtinen.

Laurie L. Paro appeared for St. Lawrence County District Attorney Nicole M. Duve.

— John Caher can be reached at jcaher@alm.com.