When are the Police Allowed to Lie to a Suspect to Induce a Confession?

State v. Matsumoto (HSC October 29, 2019)

Background. Keith Matsumoto, a wrestling coach, was arrested under suspicion of sexual assault that allegedly occurred at a wrestling tournament. He was indicted with sexual assault in the third degree. Matsumoto moved to suppress evidence statements obtained during the police investigation.

At the hearing, Matsumoto testified he was arrested and taken to the main station in Honolulu and remained in custody. Eight hours later he was taken to an interview room. He made a statement to the police and then was told that he would take a polygraph examination the next day.

The next morning Matsumoto was taken to the polygraph room at the police station. Another detective, Det. Allan Kuaana gave Matsumoto a polygraph form, strapped him up to the machine with electrodes, and asked him a series of questions to calibrate the polygraph. For example, Det. Kuaana told Matsumoto to say that $20 bill in his hand was $5. He interviewed Matsumoto about what happened at the wrestling tournament. When the interview finished, the electrodes were removed and Det. Kuaana told him that the results showed that he had been untruthful and implied he failed the exam. He never told him that the results were “inconclusive.” The interrogation continued and Det. Kuaaana refused to accept his answers. He was told he needed to make another statement and provided another one to the first detective. Matsumoto was interrogated a second time. Det. Kuaana testified that the results were in fact “inconclusive” and did not fall within the “pass” or “fail” part of the examination. He testified that at that point the interview turned into more of an interrogation. The motion was denied.

Before trial, circuit court (the Hon. Judge Randall Lee presided) ruled that there would be no reference to the polygraph examination, its results, and why Matsumoto made a second statement. At trial, the prosecution presented evidence that Matsumoto inappropriately grabbed a student wrestler’s buttocks and moving his hands down her groin and back. It also presented evidence of Matsumoto’s initial denial to the police that he did that and the second interrogation in which he confessed to grabbing the wrestler’s butt. He characterized it as “a ‘good job’ pat on the butt.” He admitted that it was bad judgment and it was done in “weakness.”

The trial court instructed the jury about the offense:

“Intimate parts” means the buttocks and those parts of the body typically associated with sexual relations.

In considering whether the part of the body touched is a “sexual or other intimate part,” you must consider the context in which the touching occurred.

Matsumoto objected to the language of the instruction and proposed that the court instruct the jury to evaluate “context.”

In determining whether an alleged touching of [the CW’s] “sexual or other intimate parts” occurred, you must consider the context in which the alleged touching occurred. A body part which might be a “sexual or other intimate part” in one context might not be in another context. “Sexual parts” refers to the sex organs. “Intimate parts” refers to those parts of the body typically associated with sexual relations. The “context” refers only to the particular situation in which the alleged touching occurred. In evaluating the “context” in which the alleged touching occurred, you must only consider the circumstances of the particular incident, not the circumstances that occurred in prior or subsequent incidents.

The instruction was refused over objection. Matsumoto was found guilty as charged. He was sentenced to probation  and six months jail. He appealed to the ICA, which affirmed. The HSC accepted his application for writ of certiorari.

The Police Can Deceive to Induce a Confession—but not Always. “The constitutional right against self-incrimination prevents the prosecution’s use of a defendant’s extrajudicial admissions of guilt where such admissions are the product of coercion.” State v. Kelekolio, 74 Haw. 479, 502, 849 P.2d 58, 69 (1993). At the same time, not all police subterfuge arises to coercion. When the police resort to deception to induce a confession, trial courts must examine whether the falsehoods were “intrinsic” to the case or if they were “extrinsic to the facts of the alleged offense, which are a type reasonably likely to procedure an untrue statement or to influence an accused to make a confession regardless of guilt[.]” Id. at 511, 849 P.2d at 73. Extrinsic falsehoods are per se coercive. Id.

Extrinsic falsehoods include assurances of divine salvation upon confession; promises of mental health treatment in exchange for a confession; assurances of treatment in a ‘nice hospital’ in lieu of incarceration, in exchange for a confession; promises of more favorable treatment in the event of a confession; and misrepresentations of legal principles, such as misrepresenting the consequences of a ‘habitual offender’ conviction and holding out that the defendant’s confession cannot be used against the defendant at trial. Id. at 512-13, 849 P.2d at 73-74.

Intrinsic falsehoods, on the other hand, are one “of the totality of the circumstances surrounding the confession or statement to be considered in assessing its voluntariness.” Id. at 511, 849 P.2d at 73. According to the HSC, intrinsic falsehoods are related directly to the case such as “a statement that murder victim is still alive, a claim that articles of clothing were found at a crime scene, or an assertion that cameras were recording the area of the crime.”

Statements about “Failing” the Polygraph were Extrinsic Falsehoods Used to Induce a Second Statement and Confession. The HSC first held that Det. Kuaana’s statement that Matsumoto did not pass the polygraph test was a deliberate falsehood. Matsumoto was incorrectly told the polygraph was a “pass/fail test, either you pass or you don’t.” He never told Mastumoto that he was right in the middle with inconclusive results. And so the HSC held that this was objectively falsehood.

The HSC next held that this falsehood was extrinsic to the case and coercive as a matter of law. This was not a lie about any of the facts of the alleged offense. The HSC held that “[i]nstead of being a lie about the facts of the offense, it was a lie about the test results of a scientific instrument that was avowed to accurately determine whether the subject of the test was telling the truth.” The HSC noted that “lying about the results of a scientific test is unequivocally not a lie about the facts of the offense, and the falsehood in this case was thus extrinsic to the facts of the alleged offense.”

Moreover, the falsehood was “reasonably likely to induce an untrue statement or to influence an accused to make a statement regardless of guilt.” Fake polygraph results, according to the HSC, can pressure a suspect into changing his or her story. The pressure is only intensified when the officer lies about flunking the test. This can “psychologically prime an innocent suspect to make a confession.” And so, the circuit court erred in allowing the confession to be used at trial.

Does this Work for Other Scientific Instruments? The HSC held that the polygraph is a scientific instrument and lying about its results are extrinsic falsehoods. The polygraph isn’t the only scientific instrument used by law enforcement. Does this analysis apply to officers lying about results from intoxylizers, scales to weigh drugs, tests to identify the purity of a drug? What about laser guns to determine the speed of a vehicle? If an officer lies about these results to induce a statement shouldn’t that statement be thrown out too?

The Circuit Court’s Preclusion of any Reference to the Polygraph and its Use to Deceive Matsumoto Violated his Right to Present a Complete Defense. Due Process guarantees the accused to present a complete defense. State v. Tetu, 139 Hawaii 207, 219, 386 P.3d 84, 856 (2016). The HSC held that by precluding any reference to the polygraph test and the detectives lying about its results, the trial court prevented Matsumoto from presenting evidence to explain why he made a second statement and confession. Every defendant has the “right to put before the jury . . . all evidence, including the facts and circumstances surrounding the making of his confession[.]” State v. Kelekolio, 74 Haw. 479, 516, 849 P.2d 58, 75 (1993). The evidence should have been admitted if Matsumoto wanted to present to the jury why he confessed.

The Circuit Court’s Jury Instructions about the Definition of “Intimate Parts” was Wrong. The trial judge has the “duty to ensure that all jury instructions cogently explain the law applicable to the facts in the case before it.” State v. Taylor, 130 Hawai 196, 210, 307 P.3d 1142, 1156 (2013). In this case, the trial court instructed the jury that “intimate parts” include the buttocks and separately addressed the context factor. The HSC held that this instruction was misleading and erroneous.

Buttocks can be an “intimate part” so long as the conduct involving the buttocks are part of “sexual connotations” or “sexual relations.” State v. Silver, 125 Hawaii 1, 7, 249 P.3d 1141, 1147 (2011). The problem with the trial court’s instruction is that the term “intimate parts” included buttocks as a matter of law without regard to context. The jury was never informed that depending on the context and circumstances, the buttocks may not be “intimate parts.” This ambiguity rendered the instruction erroneous.