As nationwide protests over police use of force and racism continue, the Hawaii Supreme Court is cracking down on another questionable police practice: interrogation tactics like lying to suspects in order to elicit a confession.

Although the high court stopped short of saying police could never lie to suspects during interrogations, a new opinion reins in a practice that previously had generally been allowed. Now, lying to suspects during interrogation can amount to unlawful coercion.

The ruling, issued Thursday, overturns the conviction and 40-year sentence imposed on then-23-year-old Mustafa Baker, who was accused of brutally beating and raping an underage runaway girl in a public bathroom on New Year’s Eve 2012. The high court remanded the case to the Circuit Court for a new trial, saying “the tactics used by the interrogating police officer were so coercive” that Mustafa’s eventual confession could not be construed as voluntary.

Justice Richard Pollack wrote the opinion for the majority, which included Justices Sabrina McKenna and Mike Wilson. Chief Justice Mark Recktenwald concurred with the ruling but dissented in part.

Aliiolani Hale, the home of the Hawaii State Supreme Court. It is the former seat of government of the Kingdom of Hawaii and the Republic of Hawaii. 9.16.14
Some worry that the decision could make it harder for police to obtain confessions. PF Bentley/Civil Beat/2014

After Baker’s arrest in January 2013, during an interrogation that lasted a little less than an hour, Honolulu Police Det. Brian Tokita repeatedly sought to get Baker to confess to the beating and rape and used a number of tactics to do so, the justices wrote.

Among other things, the court said, the detective told Baker he had DNA evidence that showed Baker had sex with the girl when in fact testing did not turn up Baker’s DNA. Tokita also made comments suggesting the public and media would perceive Baker more favorably if he confessed; implied that Baker would be perceived less favorably in court if he continued to deny guilt; and minimized the alleged crimes saying the conduct was understandable because drugs and alcohol were involved.

“Det. Tokita implicitly promised Baker that he would receive more favorable treatment if he adopted Det. Tokita’s version of events and confessed,” the justices said.

Baker eventually told the detective that he did have sex with the girl. His confession was a key part of the prosecution’s case even though Baker’s cousin — identified in court records only as GK because he was a minor — testified at trial that he was the one who beat the girl with a bottle and sexually assaulted her.

Baker was convicted and sentenced to two consecutive 20-year prison terms.

On appeal, Hawaii’s Intermediate Court of Appeals upheld the trial court’s ruling, saying nine of the police tactics met the legal standard for coercion. Transcripts of the interrogation showed Tokita used other tactics, like gender-based stereotypes about the girl — “Women are a lot more promiscuous, you know” — and the use of something known as the “false friend” technique by talking to Baker about his own divorce.

Generally, none of these techniques alone would necessarily amount to coercion. Instead, courts have looked at the totality of the circumstances. Only when police lie about things outside the scope of the case – saying a confession will lead to divine salvation or mental health treatment instead of prison, for instance – would such a statement alone amount to coercion. Not even lying about having physical evidence was strictly forbidden.

But, citing new developments in social science and research into human psychology, the justices determined that lying about having physical evidence and other suggestive statements by police can be unlawfully coercive. They noted that Baker had only an eighth-grade education.

The court said the detective’s actions taken in total were problematic.

“It is a fundamental duty of this court to call attention to those interrogation techniques that are ‘so offensive to a civilized system of justice that they must be condemned under principles of due process,'” the court said.

While Chief Justice Mark Recktenwald agreed with the majority’s overall decision, he also said he thought the jury properly convicted Baker on one of the sexual assault counts.

In a separate dissenting opinion, Justice Paula Nakayama said there was nothing illegal about what the police did.

“The Majority’s exaggeration and misconstrual of the implications of Detective Tokita’s statements create the specter of coercion where there is none,” Nakayama wrote. “Furthermore, the Majority’s references to extra-jurisdictional and scholarly debate over interrogation techniques does not overcome the obvious problem that many of the ‘tactics’ Detective Tokita supposedly employed have never been prohibited by the courts or the Legislature of this State.”

Left, Associate Justice Paula Nakayama, Chief Justice Mark Recktenwald, Associate Justice Richard Pollack stand as justices enter the courtroom. 18 june 2015. photograph Cory Lum/Civil Beat
From left, Associate Justice Paula Nakayama, Chief Justice Mark Recktenwald and Associate Justice Richard Pollack stand as justices enter the courtroom in a prior hearing. Pollack authored the decision that calls into question police interrogation techniques while Nakayama offered a robust dissent. Cory Lum/Civil Beat/2015

Still, the court’s majority said police must be held to a strict standard.

“We also recognize that interrogations play an important role in our criminal justice system. But police interrogations must be conducted in conformance with societal standards and our society has been long-committed to the principle that criminal proceedings should be accusatorial rather than inquisitorial,” the justices said.

They rejected a contention by Nakayama in her dissent that under this ruling police officers would be unable to question suspects.

The principle “to which we are constitutionally committed must be that confessions should be freely and voluntarily given and must not be the product of coercion,” the high court said.

The ruling is a welcome change, said Brook Hart, a long-time criminal defense lawyer who was formerly Wilson’s law partner. Police being able to lie to defendants to elicit confessions has been “a rather reprehensible aspect of the law,” Hart said.

“Something closer to fairness, like honesty, is a welcome addition to the process,” he said.

Hart said all of the techniques described in the Baker case are commonly used by police.

“These are all taught at the cop school in the interrogation class,” he said.

Hart acknowledged the totality of the circumstances standard gives judges considerable discretion to determine that otherwise legal interrogation tactics can amount to illegal coercion when viewed together, but he said for prosecuting attorneys to lie to defendants to get confessions does not further the duties of prosecutors.

“Lying to him?” Hart said. “To me that demeans the prosecution of justice.”

Read the Supreme Court decision:

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