Rule 603 (Oath or Affirmation to Testify Truthfully) of the Federal Rules of Evidence is unambiguous: “Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.” The U.S. Supreme Court has ruled that similar language does not apply to police officers when they are interrogating a suspect. Frazier v. Cupp, 394 U.S. 731 (1969). Nonetheless, a small number of states have banned police from lying or being deceptive when interrogating minors. New York should follow suit.
Past president and current Board Member of the New York State Trial Lawyers Association, attorney Jeff Korek, supports the proposed legislation: “I have to think that using deceptive interrogation techniques—especially on juveniles—would enhance the chances of those minors making a false confession. If we want our justice system to be respected, it must be built on a foundation of truth.”
Defendants in criminal cases, including minors, are presumed innocent until proven guilty, and a false confession elicited by deceptive tactics should certainly not be considered a reliable indicator of culpability. By recording interrogations and prohibiting deceptive practices during custodial interrogations, New York will be placing itself at the “forefront of fairness and transparency in the justice system.” Senate Bill S324A. Indeed, protecting our children from falsely incriminating themselves should be a crucial consideration for law enforcement agencies, district attorney offices, and our legislators alike.
Daniel Pollack, MSW, JD, is a Professor at Yeshiva University’s School of Social Work in New York. Contact: dpollack@yu.edu. Helene M. Weiss is an associate attorney at the Marsh Law Firm in New York, and Special Professor of Law, Maurice A. Deane School of Law, Hofstra University. Contact: heleneweiss@marsh.law.