Emily Johnson-Liu
Until now, the law has been fairly permissive about officers deceiving a suspect to obtain a confession. Trickery, deception, or an outright lie about the amount of evidence against the suspect usually will not, by itself, make a statement involuntary.1 But in Wilson v. State,2 a case decided by the Court of Criminal Appeals this past March, the court drew a distinction between run-of-the-mill deception and deception that violated the Penal Code. Ultimately, the court threw out Ronald Wilson’s confession because the interrogating officer showed the defendant a faked lab report identifying Wilson’s fingerprints on crime scene evidence. Instead of simply telling Wilson that they had identified his prints—which likely would not have resulted in suppression—the detective created a false lab report. This action violated Texas statute (tampering with evidence) and resulted in suppression of Wilson’s confession.
Case background
Wilson was implicated in a murder investigation in San Antonio. He had been the one who called 9-1-1, reporting that he had found the body of the victim, killed by a single gunshot. A magazine clip was discovered at the crime scene, but no legible prints were recovered. When the lead detective interviewed Wilson, he insisted that he had not touched anything at the scene. The detective then showed him the fake crime lab report that the detective had created on his computer; it identified two latent fingerprints on the magazine as Wilson’s. The detective told Wilson of the other evidence against him but added, “I can’t get over the prints.” The detective reminded Wilson, “I’ve got that report. Those guys are experts. … What they say is the truth, and we got you.” Wilson rested his head on his hands, said “OK, OK,” and admitted he shot the victim.
At the suppression hearing, the trial judge sided with the State, and Wilson later pleaded guilty to murder. But the San Antonio Court of Appeals believed the confession should have been suppressed and reversed the conviction, finding that in creating the false report, the detective committed a criminal offense: tampering with evidence. The State appealed to the Court of Criminal Appeals.
Although this was a case of first impression in Texas, several other courts had already considered the legality of using fabricated evidence as an interrogation technique. The Supreme Court of the United States precedent had long before upheld the constitutionality of some deceptive techniques, such as falsely telling a suspect that his co-defendant had confessed.3 But there was no consensus among the lower courts whether the deception permitted under a totality-of-the-circumstances ap-proach also extended to fabrication of evidence. Two courts determined that fabricating a report was something quite different from an oral misrepresentation and constituted a per se violation of due process, rendering any statement involuntary.4 But the majority of courts fell in line with the Supreme Court’s totality-of-the-circumstances ap-proach to deception and rejected a bright-line rule that would treat fabricated documents differently from oral deception.5 Indeed, it may be difficult to determine whether the suspect decided to talk to the police because of the content of the fabricated report or because the content took on tangible form.
Texas courts may well have joined the ranks of the other courts considering fabrication just a factor in determining voluntariness, and that would have been the end of the analysis—if it were not for Texas’s broader exclusionary rule. Under Code of Criminal Procedure art. 38.23, evidence may be excluded if it is obtained not only through constitutional violations but also through violations of the “laws of the State of Texas.” This gave Wilson a more favorable avenue for excluding his confession—that the detective’s fabrication of the fingerprint report violated the tampering with evidence statute, Penal Code §37.09. That statute makes it a crime for someone to:
- make, present, or use any record, document, or thing
- knowing it is false, and
- with intent to affect the course or outcome of the investigation or proceeding.
In the majority opinion by Judge Cochran, the Court of Criminal Appeals determined that the detective’s conduct violated §37.09. He admitted creating the false report, intending for Wilson to believe it was genuine, and, in the court’s view, he hoped Wilson would rely on it and make an incriminating statement. The State’s motion for rehearing, contesting whether the court gave sufficient deference to the trial court’s implicit fact findings and raising preservation of error issues, was denied in mid-June.6
The court also considered whether the exclusionary rule provides a remedy for a violation of §37.09. If it was not clear before, Wilson makes it clear now that not just any violation of Texas law will trigger the exclusionary rule. The test is whether the statutory violation is “related” to the purpose of the exclusionary rule: to protect a suspect’s privacy, property, and liberty rights against overzealous law enforcement. For instance, a commercial statute requiring entrepreneurs to register the names they do business under has nothing to do with the purpose of the exclusionary rule. So an officer’s failure to register a business used in an undercover sting operation would not warrant the exclusion of evidence.7
In considering the tampering with evidence statute, however, the court came to a different conclusion and found that a violation of such a statute was “at the core of conduct” that the Texas exclusionary rule prohibited. The court cited police use of planted weapons and fake drugs as examples of crimes encompassed by §37.09 and considered the statute’s intent to maintain public trust in the integrity and reliability of the justice system. As a result, the court found this statute directly related to gathering and using evidence in police investigations, and consequently, a violation of that statute related to the purpose of the exclusionary rule.
The court never considered whether the particular violation at issue in Wilson—a detective presenting a fabricated fingerprint report during an interrogation—related to the purpose of the exclusionary rule. The court might have adopted such an approach, deciding whether Texas’s exclusionary rule meant to curtail the particular conduct at issue, but it looked to the statute as a whole instead. Any conduct that met the elements of an obstruction-of-justice statute would warrant exclusion of evidence because these statutes regulate behavior that falls within the purpose of the exclusionary rule.
As a result, some interrogation techniques that would otherwise never trigger exclusion by themselves are potentially off-limits. For example, interrogation room props—such as a videotape labeled “co-defendant’s confession” or a file folder marked “DNA”—might be seen to violate §37.09 because such props are “thing[s]” made with knowledge of their falsity and, just as in Wilson, with intent to affect the course of a pending investigation. Even though the interrogation manual the Wilson court cites authorizes these techniques,8 they may not be legally viable after Wilson. And it appears not to matter if creating such props was the kind of behavior that the exclusionary rule was meant to curtail.
Even oral misrepresentations could potentially trigger the exclusion of evidence under art. 38.23. Consider an officer who falsely announces to his partner in the suspect’s presence that the suspect’s co-defendant has confessed, all the while intending to deceive the suspect. A trial court could find such conduct violates §37.08, False Report to a Peace Officer, and as one of the obstruction-of-justice statutes, its violation may require exclusion of any confession.
Penal statutes are often written broadly enough to cover an array of criminal conduct, but when the defense accuses officers of violating these statutes so that the defense can exclude evidence, officers will not have the benefit of prosecutorial discretion in deciding whether such charges are appropriate. If the trial judge finds that the officer’s conduct meets the elements of the penal statute and the statute regulates the type of behavior that the exclusionary rule aims to curtail, then the violation will likely trigger the exclusion of evidence under Wilson.
Judge Cochran points out that no one, not even a police officer, has the license to fabricate evidence and use it to affect a criminal investigation. But impunity is not really the issue. In restricting the application of the exclusionary rule only to those statutes “related” to the purpose of the exclusionary rule, the court already recognizes that the exclusionary rule is not the appropriate remedy for every violation of law. So it is really a question of whether the exclusionary rule is the appropriate sanction under the circumstances. And, at least in Wilson, the court looked to the violated statute and not the particular violation to answer that question.
At the end of the day, the lesson of Wilson is not to use fabricated evidence in an interrogation and, more broadly, to consult the penal code when contemplating the use of deceptive measures in an investigation.
Author’s note: My thanks to Bexar County Assistant Criminal District Attorney Barrett Shipp for his thoughts and comments on the case.
Endnotes
1 Oursbourn v. State, 259 S.W.3d 159, 182(Tex. Crim. App. 2008).
2 No. PD-0307-09, 2010 WL 715253 (Tex. Crim. App. Mar. 3, 2010).
3 Frazier v. Cupp, 394 U.S. 731, 739 (1969).
4 State v. Cayward, 552 So.2d 971, 974 (Fla. Dist. Ct. App. 1989); State v. Patton, 826 A.2d 783, 802 (N.J. Super. A.D. 2003).
5 See, e.g., People v. Mays, 174 Cal.App.4th 156, 167 (Cal. App. 2009) (fabricated polygraph results); Lincoln v. State, 882 A.2d 944, 956 (Md. Ct. Spec. App. 2005) (finding it a simplistic generality that deception in written form will always have a greater impact on a suspect’s decision to cooperate than an oral one); Arthur v. Commonwealth, 480 S.E.2d 749, 752 (Va. Ct. App. 1997) (fabricated fingerprint and DNA report); Sheriff, Washoe Co. v. Bessey, 914 P.2d 618, 621-22 (Nev. 1996) (fabricated lab analysis).
6 Wilson v. State, 2010 WL 715253 (Tex. Crim. App. Mar 03, 2010) (NO. PD-0307-09).
7 Roy v. State, 608 S.W.2d 645, 651(Tex. Crim. App. 1980).
8 Wilson, 2010 WL 715253, n.38 (citing Fred E. Inbau et al., Criminal Interrogation and Confessions 217 (4th ed. 2001)).