The ‘Peculiar Gap’ in New York State’s Interrogation Law

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All states have laws and judicial rulings regarding criminal interrogation. The rules are intended to insure that confessions, and other incriminating statements, are voluntary and not the result of coercion or offers of leniency. In New York State for example, a statute prohibits tactics that create a substantial likelihood of producing a false incriminating statement.

Such rules are designed to maintain the reliability of evidence, and to protect the integrity of criminal prosecutions. But there is a peculiar gap in New York State law—and the laws of several other states—that can undermine these rules and lead to wrongful convictions.

Namely, there is no requirement for the police to maintain a videotape record of an interrogation so that the methods used to obtain “confessions” can be objectively evaluated. The need for such a record may seem self-evident, but the effort to close this gap has languished in the state legislature.

One recent case helps to illustrate why having a taped record of an entire interrogation—not just a “confession”— is a critical tool to ensure that justice is administered in a fair and impartial manner.

Adrian Thomas of Troy, NY was convicted in 2008 for the murder of his four-month-old son. Six years later, in a unanimous decision, the New York State Court of Appeals in People v. Thomas reversed Adrian Thomas’ conviction and ordered a new trial. He was acquitted on June 12, 2014.

What caused the reversal? The original trial conviction had relied on “confession” evidence and flawed medical testimony. The state’s highest court found the original police interrogation had been coercive—and had undermined Thomas’ privilege against self-incrimination. Thus, according to the court, his confession was inadmissible and should not have been presented to the jury.

Thomas’ four-month-old son, Matthew, had been admitted to the Albany (NY) Medical Center in September, 2008. A medical center physician informed the child protective and law enforcement authorities the infant was a victim of blunt force trauma. This led to the removal of the child’s six siblings from the home, and a 9.5-hour-interrogation of his father, while the mother remained with the child at the medical center.

The initial premise of the interrogation was that either Thomas, an African-American described by the court as “a particularly large individual,” or his wife, was responsible for the child’s “injuries.”

But after viewing the videotape of the entire interrogation, the Court of Appeals found that Thomas had been coerced into a confession through an extensive series of impermissible deceptions. The videotape record revealed Thomas was threatened that his failure to take responsibility for injuring the child would result in the arrest of his wife from the child’s bedside. In addition, he was falsely informed (21 times) that medical doctors needed details of the ‘assault’ to treat the infant. He was told (67 times) the injury to the child had been “accidental;” he was told (14 times) he would not be arrested; and he was told (8 times) he could go home after giving the statement.

These were all highly relevant details which the defendant was not likely to convincingly recall without the benefit of an electronic recording. In fact, the Court noted every incriminating element in the “confession” originated from the interrogators rather than Thomas, and that the child had not suffered blunt force trauma.

Imagine the obstacles to appellate relief Adrian Thomas would have faced if a videotaped record of the entire interrogation had not been available.

The absence of such a record contributed to the wrongful conviction of the Central Park 5 defendants, who were denied a fair hearing and trial on charges of assaulting and raping a female jogger in 1989, because the police failed to preserve the evidence from their interrogation.

A similar fate befell several other New York defendants who were deprived of their right to a fair trial because police did not maintain an objective record of the entire interrogation. Examples include the cases of Marty Tankleff, Johnny Hincapie, Jeffrey Deskovic, Pedro Hernandez, and Shabaka Shakur. These defendants, along with numerous unnamed others who likely remain wrongfully imprisoned, have been adversely affected by the gap in New York State law.

Even though Adrian Thomas was unjustly incarcerated for several years, he eventually received relief due to the discretionary decision of Troy, NY authorities to preserve, by videotape, his entire interrogation.

A bill presented in the New York State Senate makes such preservation mandatory. On January 23, 2015 New York State Senator Bill Perkins introduced Senate Bill No. 2419 which would require police to electronically preserve (via video and/or audio tape) all custodial questioning of criminal suspects.

Unfortunately the bill has not progressed. It is difficult to understand why. This legislation will close the peculiar gap in New York State law that prohibits certain types of interrogation methods yet does not require an objective record of what actually occurred in the interrogation.

There is no worthy justification for this evidence to be unavailable. The resulting transparency will only support the integrity of criminal investigations, trials, and the appellate review process. Just as other forms of criminal evidence (biologic, ballistic, photographic, autopsy findings, etc.) are preserved for review, where the state presents “confession” evidence to prove guilt, the methods used to elicit the confession need to be available for review as well.

A legal mandate of this type has been adopted in New Jersey and several other states, and it has enhanced the efficiency of criminal prosecutions and legal proceedings. The absence of such a record has tainted New York State prosecutions for too long.

Matthew B. Johnson, PhD. is an associate professor at John Jay College of Criminal Justice where he has developed courses in ‘Interrogation and Confession’ and’ Wrongful Conviction’. Portions of this commentary are drawn from the invited address “Why Innocent People Confess to Crimes They Did Not Commit,” that Prof. Johnson presented at the New York State Judicial Institute – Pace University Law School, on March 11, 2015.


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