Justice Melissa Hart suggested on Friday that police officers interrogating suspects in custody should recognize the “very, very thin line” they walk by making misleading representations during questioning, running the risk that courts will find the suspect’s confession involuntary.

“Bottom line: Officers should, I think, tread carefully when they are thinking about whether to use misrepresentation to try to induce someone to confess. Because the line is so hard to draw,” said Hart, speaking at the 2024 appellate practice update sponsored by the Colorado Bar Association.

Her remarks centered on a June 2023 decision by the state Supreme Court in People v. Smiley. There, two Thornton detectives traveled to New Mexico to take the fingerprints of Thorvyn Bullcalf Evan Smiley, who was the only suspect in an unsolved murder. 

The detectives repeatedly told Smiley, “You’re not in trouble” and “You are leaving here today.” They also said they needed to provide Smiley a Miranda warning “just because we are from out of state and stuff like that.” Smiley agreed to speak and confessed to the murder. The detectives then arrested him.

By 4-3, the Supreme Court barred Adams County prosecutors from using the confession as evidence. The majority concluded the detectives were “engaging in a form of psychological coercion” to trick Smiley by promising he would leave on his own accord if he talked to them.

“I wanna be clear. It was a 4-3 decision. This was not a slam dunk,” said Hart, who was part of the majority. “This was three very smart people on my court — three people whose judgment I trust absolutely — thought that this was not coercive. That this was completely reasonable. And it was the kind of misrepresentation police officers are allowed to make.”

She noted police are generally allowed to make false statements while interrogating suspects, but “four of us thought this was overreach. And that overreach played a significant role in inducing the defendant to confess. So, it was not a voluntary confession.”

The Innocence Project has estimated that false confessions, which can be the product of coercive interrogations, were a factor in 29% of DNA-based exonerations.

Last year, Colorado legislators enacted a law making statements by juvenile suspects inadmissible by default if law enforcement acted deceptively. There are exceptions, however, that would still permit prosecutors to use statements as evidence, notwithstanding the deception.

Hart said the key factor in Smiley was the detectives’ suggestion that the suspect would be fine even if he decided to give up his right to silence. She acknowledged the decision hinged on a “very, very thin line.”

“Trying to figure out what makes something involuntary is not easy. I say that humbly, in recognition that for law enforcement trying to do their job in the moment, trying to figure out what’s appropriate, that is not easy,” Hart said. “What hangs in the balance is a person’s freedom. So, you’re balancing the actions of law enforcement and the choices they’re having to make, a person’s freedom and their constitutional rights. None of this is easy.”

The Supreme Court’s ruling in Smiley occurred through a mid-case, or “interlocutory,” appeal. Although the Supreme Court typically hears cases after the Court of Appeals has rendered its own decision, prosecutors are allowed to immediately appeal trial judges’ decisions to suppress evidence directly to the Supreme Court.

Hart said she was surprised when she initially joined the court that prosecutors were overwhelmingly winning their interlocutory appeals. Then she learned district attorneys did not seek the Supreme Court’s review of every suppression decision from trial judges.

“It’s only really when prosecutors think that a mistake was made that they bring these interlocutory appeals,” explained Hart. “The reason we end up frequently reversing district courts is because it’s only really when prosecutors think mistakes were made by the court.”

However, Hart disclosed that “different jurisdictions have different reputations,” and she is more likely to presume a trial judge mistakenly excluded evidence in a jurisdiction that rarely seeks interlocutory appeals.

She also lobbed gentle criticism at her dissenting colleagues, and warned lawyers not to rely on dissenting opinions generally.

“Don’t read dissents. Don’t do it,” she said. “I read the dissent in Smiley and it portrays the facts completely differently. They lost. The majority won. And if you start reading the facts in dissents, you end up feeling like, what happened?”

Because majority opinions dictate what the law is, “ultimately, you need to move forward with what the majority said,” Hart concluded.