The Yale Law Journal

November 2016

From False Evidence Ploy to False Guilty Plea: An Unjustified Path To Securing Convictions

Criminal LawCriminal ProcedureConstitutional Law


On June 20, 1991, two police officers brought an African American man named Anthony Gray into custody for questioning related to the unsolved rape and murder of a woman in Calvert County, Maryland.1 During the interrogation, the detectives lied to Mr. Gray about the evidence police held against him. They told him that two other men had confessed to involvement in the crime and had named Mr. Gray as the killer.2 They told him that he had failed two hour-long polygraph tests.3 And they told him that they “knew” he had committed the crime.4

In reality, no one had confessed to the crime or identified Anthony Gray as the perpetrator.5 Mr. Gray did not fail the polygraph tests.6 Instead, the police had gathered “a substantial amount of exculpating evidence” during the period of time when Mr. Gray was being interrogated.7 Witnesses reported having seen a lone white man driving from the crime scene in the victim’s car, and the hair evidence that police recovered could have only come from a Caucasian man.8 But after a series of interrogations in which he was repeatedly confronted with the fabricated evidence against him, Mr. Gray pled guilty.9 The court imposed two concurrent life sentences.10 Anthony Gray spent more than seven years behind bars before he was exonerated on the basis of DNA evidence.11

With the benefit of hindsight, Anthony Gray’s ordeal appears to be an unambiguous miscarriage of justice. Nevertheless, current law sanctions the practice of confronting suspects with false evidence against them during interrogations—a practice social scientists have termed “the false evidence ploy”12—and the Supreme Court has imposed no requirements for disclosure of false evidence during plea negotiations.13 The circumstances that led to Mr. Gray’s wrongful conviction are not an anomaly; the law is bereft of safeguards to prevent suspects from making plea decisions based on inaccurate information about their likelihood of conviction at trial.

This Comment draws attention to the false evidence ploy’s danger of triggering false guilty pleas. To date, legal scholarship addressing this type of police trickery14 has focused on its risk of producing false confessions,15 and with good reason: more than ten percent of the nearly two thousand American exonerees falsely confessed to the crime for which they were wrongfully convicted.16 But these statistics fail to capture the bigger picture. Approximately ninety-four percent of state convictions and ninety-seven percent of federal convictions result from guilty pleas.17 Indeed, a guilty plea—as opposed to a confession—constitutes a larger victory for law enforcement officers who believe, rightly or wrongly, that a suspect committed a crime.18 After a guilty plea is entered, there will be no trial, and barriers to appeal are nearly insurmountable.19 Reversals of convictions resulting from guilty pleas are therefore extremely rare.20 Accordingly, there is a dearth of false guilty plea exonerations and associated case law21 to fuel wrongful convictions literature, particularly on the topic of the false evidence ploy. This Comment aims to fill that gap. In a country where more than two million people are incarcerated,22 even a marginally heightened risk of false guilty pleas translates into a number of unwarranted person-years behind bars that is difficult to contemplate and impossible to justify.

The Comment proceeds in two Parts. Part I argues that the legal and theoretical justifications for police trickery as a means to secure confessions do not remain viable in the context of plea bargaining. Courts apply the legal standard articulated in Frazier v. Cupp23 only when suspects do not plead guilty and instead exercise their right to a trial, and the criminal justice system provides few tools to ameliorate the coercive effects of the false evidence ploy during the plea-bargaining process. Part II proposes two doctrinal routes for courts to mitigate the damaging effects of the false evidence ploy in plea-bargaining outcomes without overruling Supreme Court precedent.

i. the false evidence ploy pressures innocent suspects to plead guilty

A. Interrogation Methods on the Supreme Court’s Permissive Standard for Police Trickery

The Reid Technique is the “most influential and widely used” interrogation protocol in the United States.24 An organization called John E. Reid & Associates developed the method in the mid-twentieth century and has since trained more interrogators than any other organization in the world.25 The Reid Technique is codified in Criminal Interrogation and Confessions (otherwise known as the “Reid Manual”),26 a handbook that is frequently termed “the bible of modern police interrogation training.”27 Over the past several decades,28 the Reid Manual’s approach to interrogation has shaped “nearly every aspect of modern police interrogations, from the setup of the interview room to the behavior of detectives.”29 Detectives’ use of fabricated evidence is no exception.

The Reid Manual teaches law enforcement to carry out the false evidence ploy because it is “clearly the most persuasive” interrogation tactic “[w]ithin the area of deception.”30 It instructs detectives to, for example, bring “visual props” into the interview room, including “a DVD disc, CD-ROM, audio tape, a fingerprint card, an evidence bag containing hair or other fibers, spent shell casings, [and] vials of colored liquid.”31 It also announces a “clear position” that “merely introducing fictitious evidence during an interrogation” cannot lead to false admissions of guilt.32 Contradicting decades of social science evidence33 and scores of DNA exonerations,34 the Reid Manual states that “[i]t is absurd to believe that a suspect who knows he did not commit a crime would place greater weight and credibility on alleged evidence than his own knowledge of innocence.”35

The Reid Manual also defends the use of “outright lies concerning the existence of evidence”36 by assuring law enforcement that the practice is legal and “routinely uph[e]ld37 under the Supreme Court’s “totality of the circumstances” standard.38 It cites39 the foundational case addressing the permissibility of the false evidence ploy, Frazier v. Cupp, in which the defendant brought a habeas corpus action to challenge his murder conviction in Oregon.40 Frazier’s attorneys made a variety of arguments, including the claim that Frazier’s confession was involuntary because the police falsely told him that they had secured a confession from his companion.41 The Court devoted little space to this claim in its opinion, merely noting, “The fact that the police misrepresented the statements that [Frazier’s companion] had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the ‘totality of the circumstances.’”42

In the decades since Frazier was published, lower courts have consistently deployed the opinion as legal cover for far more coercive uses of the false evidence ploy than the fabricated codefendant confession at play in Frazier itself. For example, the North Carolina Supreme Court cited Frazier in support of its decision to uphold a confession generated after police presented the suspect with a bloody knife and falsely asserted that it was found at the scene of the crime with the suspect’s fingerprints on it.43 Lower courts also have cited Frazier in support of decisions to admit confessions obtained after police falsely told a suspect that his fingerprints had been found at the scene of the crime44 or on the murder weapon;45 that they possessed DNA evidence proving his guilt;46 that his hair47 or shoe-prints48 were found at the location of the crime; that his semen was recovered from the crime scene;49 that he failed a polygraph test50 or gunshot residue test;51 and that eyewitnesses identified him as the perpetrator.52 Further examples abound.

Crucially, courts have occasion to apply the Frazier standard only in instances where the suspect exposed to the false evidence ploy confesses, does not plead guilty, and then argues that the confession should not be used as evidence against her. But this mode of police deception is not designed to induce only confessions. Rather, the false evidence ploy may motivate a suspect to inculpate herself by (1) confessing, (2) pleading guilty, or (3) both.53 Only the first category of cases is likely to access meaningful judicial review,54 but existing social science evidence can be read to suggest that innocent suspects are more likely to fall into the latter two categories.

Psychologists have teased out two causal mechanisms by which the false evidence ploy may give rise to false confessions. Both apply with equal force to guilty pleas. First, suspects may falsely confess “as an act of compliance when they perceive that there is strong evidence against them.”55 Second, innocent suspects confronted with evidence that law enforcement claims to prove their guilt as an “incontrovertible fact” may falsely confess because they have “come to internalize the belief that [they] committed the crime without awareness.”56

The key factor underlying each of these psychological processes is the defendant’s perception that his or her likelihood of conviction at trial is high—a perception that has been found to be particularly important in plea decision making.57 The false evidence ploy enables interrogators to artificially inflate an innocent suspect’s estimated likelihood of conviction and thereby make a plea bargain appear “rational.”58 Innocent suspects who were not at the crime scene may not know whether there were witnesses or physical evidence left behind; they also may be uncertain of whether they committed the crime if, for example, they were intoxicated or are mentally handicapped.59 In light of research indicating that innocent defendants are “on average more risk averse” than guilty ones,60 it is not difficult to recognize the possibility that an innocent defendant would accept a relatively small punishment by pleading guilty in order to avoid risking a greater one after trial. Further pressures to plead guilty when facing a substantial probability of conviction exacerbate this effect. These include the financial cost of a trial, the stress of waiting for a court date and preparing for an uncertain result, and—for defendants whose plea offers do not involve incarceration—the ability to return home.61 Even though the number of innocents who have pleaded guilty is “inherently unknowable,”62 the literature makes clear that “plea bargaining has an innocence problem.”63

B. Diminished Safeguards in the Plea-Bargaining System for Those Subjected to the False Evidence Ploy

The plea-bargaining system also enables the state to circumvent many of the barriers to wrongful conviction that trials provide. Perhaps most important to the issue at hand, the plea-bargaining process strips suspects of their opportunity to learn whether they were subjected to the false evidence ploy in the first place. While the Federal Rules of Criminal Procedure require judges to ensure that guilty pleas are “voluntary,”64 the legal standard of voluntariness in the plea context does not entitle defendants to information about the strength of the state’s evidence against them, including whether or not false evidence was presented in the interrogation.65 There is reason to believe that this lack of obligated disclosure disproportionately harms innocent defendants because they know less about the crime for which they are charged and therefore are less capable of evaluating the strength of the prosecution’s purported evidence and seeking exculpatory evidence.66

This lack of disclosure obligations prevents defense attorneys from offering sound legal advice to offset the effects of the false evidence ploy. Because prosecutors are not obligated to disclose the use of a false evidence ploy during the plea-bargaining process, defense attorneys can only discover such information through their own resource-intensive fact-finding missions. Even under the atypical circumstances where criminal defense attorneys do have the time and funding to engage in thorough investigations, prosecutors are permitted to present defendants with plea offers that expire before their attorneys can shed enough light on the strength of the state’s case to counteract the false information presented by police.67 The state is thereby authorized to require defendants and their attorneys to evaluate plea offers almost exclusively based on the perceived likelihood of conviction that they glean during interrogations. Thus, by conveying to law enforcement that no type of false evidence is presumptively off-limits in their interrogations, the permissive Frazier standard transforms innocent suspects’ interactions with police from a valuable source of information to a venue for deceit. And the plea-bargaining system enables this process to result in wrongful convictions without the opportunity for judicial scrutiny or public review.68

ii. potential judicial correctives

In response to these risks, scholars disagree about whether the false evidence ploy should be banned entirely. Some argue that it should be outlawed because it raises an unacceptable risk of wrongful convictions and runs counter to the value of “rel[ying] on truth to discover the truth.”69 Others contend that the false evidence ploy is necessary to convict some guilty suspects, so banning the practice risks forfeiting the social good that those convictions bring.70 This Comment does not engage in this debate, as stare decisis makes judicial prohibition of the false evidence ploy highly unlikely, at least in the near future. Instead, it offers recommendations aimed at mitigating the harms discussed in Part I while remaining faithful to current Supreme Court precedent. The first is to give shape to the Frazier standard by introducing subsidiary rules that render the most coercive forms of the false evidence ploy unlawful. The second is to require the state to disclose any false evidence conveyed to defendants before plea deals may be made.

A. Giving Shape to Frazier’s Totality of the Circumstances Test

Further doctrinal specification of Frazier’s totality-of-the-circumstances approach would be particularly beneficial in the plea-bargaining context. Frazier’s flexible standard is designed to be enforced by judges when they evaluate all of the evidencepresented at trial. While judicial review has largely failed to prevent innocent defendants from being convicted even after courts review the “totality of the circumstances” surrounding police interrogations,71 the standard relies on the defensible assumption that judges are well situated to engage in this type of holistic analysis after an adversarial adjudication process. But such an assumption certainly does not apply in the plea-bargaining context, where there is no trial at which the “totality of the circumstances” may be reviewed. In a system where the vast majority of convictions are secured via plea bargaining, clearer rules are needed to guide police before interrogations begin.

As the Reid Manual illustrates, judge-made doctrine in false confession cases shapes the interrogation techniques that lead to guilty pleas by changing incentives for law enforcement.72 Interrogators presenting suspects with false evidence do not yet know if the case will go to trial, be dropped or dismissed, or—most likely of all73—result in a plea bargain. If the false evidence ploy could jeopardize convictions in cases where the suspect confesses but does not plead guilty, it would no longer make sense for interrogators to use the technique in the first place. In this manner, modifying the way courts apply the Frazier standard would affect the likelihood of both false confessions and false guilty pleas.

Frazier’s totality-of-the-circumstances standardleaves ample room for further doctrinal specification. The false evidence ploy at issue in that case was relatively benign in comparison with the types of false evidence used in modern-day interrogations.74 Unlike the police-created forensic evidence and falsified lab reports that have been used since the advent of DNA testing, the defendant in Frazier was simply told that his codefendant had confessed.75 (In fact, the briefing in the case suggests that the evidence with which Frazier was confronted during his interrogation was not false at all; it was merely misattributed.76) This fact pattern, in addition to the Supreme Court’s concise treatment of the issue,77 belies the oft-cited claim in the scholarship and subsequent case law that the Court has endorsed the legality of the false evidence ploy as a whole.78

Without overturning Frazier v. Cupp, the Supreme Court could create a bright-line rule that certain forms of the false evidence ploy are always sufficient to render a resulting confession involuntary. Such an opinion would retain Frazier’stotality-of-the-circumstances standard generally, but clarify that certain false evidence ploys tip the scales too strongly for the balancing test to permit. And even if the Supreme Court does not hear a case regarding police trickery in the foreseeable future, state and federal appellate courts could adopt a similar rule for their respective jurisdictions while remaining faithful to Frazier’s holding. This line-drawing exercise would allow courts to translate the social science evidence regarding the circumstances that lead innocent suspects to plead guilty79 into doctrinal safeguards.

Courts might determine which false evidence ploys are presumptively invalid based on a variety of factors. For example, one way courts might “rulify80 Frazier’s totality-of-the-circumstances standard would be to draw a line between “verbal assertions to a suspect,”81 which were permitted in Frazier, and the physical act of presenting suspects with tangible evidence manufactured by the state itself. This rule would protect innocent suspects from being confronted with doctored video evidence,82 falsified transcripts of eyewitness interviews, fake polygraph results,83 and physical evidence like the police-created “bloody knife” that the North Carolina courts allow.84 As empirical research demonstrates, “seeing is believing: in both legal and everyday decision-making tasks people are more persuaded by visual than by verbal evidence.”85 Alternatively, in response to studies whose participants perceived lies about different types of evidence to be “deceptive and coercive to different degrees,”86 courts could classify particular kinds of evidence as either permissible or impermissible to fabricate. Such a rule could be fashioned to reflect social scientists’ observations that while suspects “can counter . . . eyewitness evidence by claiming it is in error, and co-perpetrators’ evidence by asserting it is a lie,”87 innocent suspects “have a harder time explaining away evidence that is allegedly derived from scientific technologies.”88 This type of doctrinal specification might, then, allow lies about witness identification but prohibit lies about DNA evidence.89

Both of these examples offer the benefit of administrability; it would be relatively easy to give police (and the organizations that train them) clear guidance about what kinds of lies interrogators are allowed to tell. They would also provide signaling value to suspects by giving them a measure of confidence that police are telling the truth when they make certain claims in an interrogation, enabling defendants to evaluate their likelihood of conviction more accurately during the crucial time when they must decide whether to plead guilty. And to the extent that innocent suspects are more risk-averse than guilty ones,90 eliminating the most convincing forms of the false evidence ploy is likely to reduce the number of innocents who plead guilty without a corresponding reduction in convictions of the guilty. But these examples are not exhaustive, and a few state courts have begun to experiment with other dividing lines.91 This Comment does not purport to identify a superior line-drawing test because a body of empirical work that definitively identifies which forms of the false evidence ploy are most coercive does not yet exist. But if judges signaled a willingness to incorporate social science evidence into their application of the Frazier standard, social scientists might respond by conducting additional research in this area. Given the reality that there are more and less coercive forms of lies, courts should be willing to adapt Frazier accordingly.

B. Required Disclosure of False Evidence Before Plea Agreements Can Be Made

Although the Supreme Court has held that prosecutors are not required to disclose exculpatory evidence in the plea-bargaining process,92 it has never squarely addressed prosecutors’ burden of disclosure with respect to evidence the state itself has falsified. Existing case law, therefore, leaves room for courts to introduce heightened disclosure requirements. And in an era in which electronic recording of custodial interrogations has become pervasive nationwide,93 prosecutors are usually well equipped to determine whether the false evidence ploy was used in an interrogation without sacrificing the efficiency gains that plea bargaining is meant to provide.94

Accordingly, the Court could expand upon recent doctrinal developments in the plea-bargaining context to require the state to reveal the misinformation it has fed to suspects before plea agreements may be made. In Missouri v. Frye, for example, the Court held that the Sixth Amendment right to effective assistance of counsel extends to plea-bargaining negotiations.95 And in an opinion issued on the same day, the Court in Lafler v. Cooper reaffirmed that defendants’ “Sixth Amendment right to counsel . . . extends to the plea-bargaining process.”96 The majority’s reasoning in both cases rested on the crucial recognition that “[i]n today’s criminal justice system . . . , the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”97 While the facts of Frye and Lafler did not involve false evidence presented during an interrogation,98 the Court’s decisions offer important implications for defendants who enter into plea negotiations with a distorted sense of their likelihood of conviction at trial.

More specifically, it stands to reason that a defense attorney’s effectiveness during plea negotiations is diminished when the state has artificially inflated the defendant’s perceived likelihood of conviction at trial by using the false evidence ploy. “[T]he Constitution insists . . . that the defendant enter a guilty plea that is ‘voluntary’ and . . . make related waivers ‘knowing[ly], intelligent[ly], [and] with sufficient awareness of the circumstances and likely consequences,’”99 but as the law currently stands, defense attorneys are not legally entitled to the time necessary to discover whether evidence was falsified before plea offers expire.100 In a criminal justice system where defense attorneys are given a limited amount of time to advise clients about whether to plead guilty,with their judgment of the strength of the state’s case skewed by false evidence presented in an interrogation, defendants’ “right to effective assistance of counsel in considering whether to accept [a plea offer]”101 has come to look more like an aspiration than a constitutional guarantee. Even if this type of ineffectiveness does not fit neatly into the Strickland framework,102 a system that takes seriously the notion that defendants have a constitutional right to effective assistance of counsel in deciding whether to accept a plea offer—andthat guilty pleas “must be intelligent and voluntary”103—should not tolerate plea agreements predicated on incriminating evidence that does not actually exist.

Requiring the state to disclose its use of the false evidence ploy in the plea-bargaining process offers the added benefit of attaching a reputational cost to this form of police trickery. Under such a regime, police would be obligated to tell prosecutors that they confronted the suspect with fabricated evidence of guilt, and prosecutors would be obligated to turn over that information to defense counsel. This disclosure could result in great enough reputational harm to both law enforcement agencies focused on earning their community’s trust104 and elected prosecutors105 to disincentivize the state from engaging in forms of the false evidence ploy that undermine public confidence.


This Comment contends that interrogators’ use of the false evidence ploy exacerbates the problem of wrongful convictions in a criminal justice system where most convictions are secured through plea agreements. Courts’ expansive readings of Frazier give police the green light to deliberately mislead suspects about their probability of conviction at trial. And once an innocent suspect is convinced that law enforcement possesses inculpating evidence that is likely to persuade a jury, entering a guilty plea may appear rational in a plea-bargaining system that does not obligate the state to disclose its use of falsified evidence. While the false evidence ploy is merely one of many risk factors for wrongful conviction, reducing interrogators’ reliance on this mode of deception would move the ball forward in protecting the innocent from criminal sanction. For people like Anthony Gray, such a change could have made all the difference.