Written by Guest Contributor Valerie Van Brocklin.
Police lie. It's a regular part of their job. They lie to suspects and others in hopes of obtaining evidence. These investigative lies cover a wide range of deception -- a range that can get murky. Some investigative lies are legal, some are not, and some generate significant disagreement amongst courts, the public, and even officers themselves.
There are serious consequences here. Officers can
• Be sanctioned by the courts
• Have to defend against a lawsuit
• Be disciplined in the job
• Lose the public confidence
• Have evidence suppressed, a case dismissed and a criminal freed.
Are we properly preparing officers for the potentially career and case-ending decisions they face in this arena? Hardly. Read on to begin to change that. Proper training in this complex arena is critical.
Not All Lies Are Created Equal
Effective interrogation of a suspect nearly always involves a lie – expressed or implied. That lie is that it's in a suspect's best interest to talk to police and confess without an attorney present. It's not. A completely truthful officer would tell suspects this. A completely truthful officer would also find confessions extremely rare.1 And confessions, as Martha Stewart would say, are a good thing. Just ask the Supreme Court -- “Admissions of guilt are more than merely ‘desirable,' they are essential to society's compelling interest in finding, convicting and punishing those who violate the law.” Schneckloth v. Bustamonte , 412 U.S. 218, 225 (1973).
But just as important, “The police must obey the law while enforcing the law.” Spano v. New York , 360 U.S. 315, 320 (1959). So, what's the law when it comes to police lying to suspects to get confessions? Courts agree due process requires that confessions be voluntary. That means they can't be coerced. And courts agree coercion can be psychological as well as physical. Finally, courts across the land pretty much agree they'll decide whether the confession was voluntary or coerced based on a “totality of the circumstances.” Those circumstances can include such things as:
• Police conduct – what officers say and do and how they say and do it.
• The environment – are police questioning the suspect in a 6' X 8' windowless, stuffy room with Spartan furnishings where they stand between him and the only exit?
• The suspect's age and mental status.
• The length of the interrogation and whether police offer refreshment, bathroom or other breaks.
• Etc. – anything else that bears on the coercive nature, or not, of the interrogation.
One Person's Lie May Be Another's Coercion
Now that we have the basics on the law, we should all be able to agree on what deception is legal and what isn't, right? Let's see. You work the following case and we'll compare results.
Seventeen-year-old Deborah Margolin was brutally murdered. According to her brothers, she was sitting on the porch of her rural home when a stranger drove up and told her a calf was loose at the bottom of the driveway. Deborah went to get the animal – and never returned. Later the same day, her father found her mutilated body face down in a creek.
When you and other officers arrive, Deborah's brothers describe the stranger and his vehicle. You recall that Miller lives nearby, and he and his car match the descriptions. Miller has been previously convicted of a sex offense and arrested for statutory rape.
That night, you and another officer question Miller at his job. He agrees to accompany you to the station for further questioning. He's taken into an interrogation room and read his rights, which he waives. The interrogation is taped, so its circumstances are not in dispute. (This is an excellent reason to tape suspect interrogations.)
It's clear that you, the interviewing detective, make no threats and engage in no physical coercion. On the contrary, you assume a friendly, understanding manner (itself deceptive, que no? ) and speak in a soft tone of voice. You also give Miller certain information, some of which is false. You initially tell Miller Deborah is still alive. Later you say she has just died. In fact, she was found dead many hours earlier. Throughout the interview, you emphasize that whoever committed such a crime has mental problems and is desperately in need of psychological treatment. You tell Miller you believe he committed the crime and then you present yourself as a friend who wants to help if he'll just unburden himself. You state several times that Miller is not a criminal who should be punished but a sick individual who should receive help. One hour into the interview Miller confesses, then collapses, and is taken to the hospital.
This is a real case – Miller v. Fenton , 796 F.2d 598 (3 rd Cir. 1986). Do you think the brutal murder and the investigation were getting any media attention and public interest?
Before trial, Miller moved to suppress his confession on the grounds the detective's method of interrogation constituted psychological manipulation of such magnitude that it rendered his confession involuntary. The trial court denied the defense motion and Miller was convicted at a trial in which his confession was admitted.
End of story, justice prevails, right? Not quite. Miller appealed his conviction, arguing the same thing. And the 3-judge appellate court? They unanimously reversed the conviction. Based on the same facts, they rule the detective engaged in deceptive coercion that “shocked the conscience” and violated due process. End of story?
Not yet. The state supreme court reinstated the conviction -- but only by the hair's breadth of a 4:3 split decision. After that, Miller took his appeal through federal district court and the United States Supreme Court, and had his conviction affirmed on procedural grounds with neither federal court addressing whether the police conduct was unlawfully deceptive.
The moral of this agonizingly long story? Courts are judges, judges are lawyers – and “you can't get two lawyers to agree to kill a rat in a bathtub.”2 This is a complex arena officers must enter every day. An arena that even judges on the same court, looking at the same facts and applying the same law – with the benefit of briefs, the arguments of counsel and the assistance of law clerks -- disagree on.
And what are the possible consequences for officers if they get it “wrong” (that is, a court later disagrees with them) in the crucible of a high profile investigation of a horrific crime?
• The confession may be suppressed, along with any “fruits of the poisonous tree.”
• The case may be dismissed if there is insufficient evidence without the suppressed evidence.
• The officer and, by extension, the entire department may face public condemnation and the censure of the court in a written opinion. (Recall that the 3-judge appellate court in Miller wrote that the police deception “shocked the conscience.”)
• If the case is high profile and politically hot enough, officers may face job discipline over their use of deception, even if they cleared it with the local prosecutor ahead of time. (Just ask the FBI agents who questioned Richard Jewel in the Atlanta Olympics bombing case.)
Courts Agree to Disagree
To delve further into the arena in which officers find themselves, let's look at a few other court rulings. In State v. Cayward , 552 So. 2d 971 (Fla. App. 2 Dist. 1989) , police interviewed a 19-year-old suspect in the rape and murder of his 5-year-old niece. Prior to the interview, police checked with the local prosecutor who said it was lawful for them to falsely tell the suspect they'd had the victim's underwear scientifically tested and the results showed semen stains on it from him -- and to show him a false lab report of the results. The suspect came to the station voluntarily, waived his Miranda rights, and consistently denied any involvement during two hours of interview.
Police then told him about the test results and showed him two made up reports – one on a lab form and one on a police department form. The suspect confessed. We all know that isn't the end of the story. The Florida appellate court suppressed the confession. The court held the verbal lie was lawful but false physical reports of the lie violated due process. Notably, the court seemed much more concerned that such reports could inadvertently make their way into court records and be mistakenly viewed as true than with the coercive effect of the reports on the defendant. End of story on showing false documents to suspects? Not by a long shot. Remember judges are lawyers and …, well, you know.
In Arthur v. Commonwealth , 480 S.E. 2d 749 (Va. 1997), the Virginia Court of Appeals held that police showing a suspect “dummy” reports indicating his fingerprints and hair were found at the crime scene did not violate due process. The court addressed the Cayward court's concern by noting the police kept the false documents in a separate file from the actual investigative and lab reports.
In Sheriff, Washoe Co. v. Bessey, 914 P. 2d 618 (Nev. 1996), the Nevada Supreme Court criticized Cayward' s distinction between a verbal lie by police and one “embodied in a piece of paper” and concluded there was no real difference. The court upheld police creating a “falsified lab report” showing a defendant had committed a sexual assault against a minor, stating, “[T]here was nothing about the fabricated document presented in this case which would have produced a false confession.” The Nevada court seems to say that due process is violated only if the police deception would coerce an innocent person into confessing.
And in People v. Henry , 518 N.Y.S.2d 44 (N.Y. App. Div. 1987), the court upheld a confession obtained after police confronted the defendant with fake polygraph test results indicating he had lied to police. Moreover, in State v. Whittington, 809 A. 2d 721 (Md. App. 2002), police placed an invisible powder on a pen they gave to the suspect so when they later conducted a fake gunpowder residue test, it appeared to her she still had gunpowder on her hand. The court found this deception did not violate due process.
Still other courts have sided with the Cayward decision and reversed convictions based upon confessions obtained after the police presented fabricated evidence to the defendant. In State v. Patton, 362 N.J. Super. 16 (App. Div.) (2003), an officer, posing as an eyewitness, was “interviewed” on an audiotape that was later played to the defendant who, despite his early denials of involvement, confessed upon hearing the tape. Both the confession and the false tape were admitted at trial. The subsequent conviction was reversed on appeal.
If Things Weren't Complicated Enough
If courts not being able to agree to kill a rat in a bathtub didn't make life complicated enough, can lying as a regular part of the job affect officers? I've asked officers that question nation-wide. My favorite answer came from a Wisconsin officer, who replied, “Yeah, hopefully I've gotten better at it.” As to the ethical and legal use of investigative lies, hopefully officers do become more skilled. But do you know officers who have been affected in other ways by the lying they do? How? Here's what some experts say about the potential impact of police lying:
We Must Ask
With all that is at stake for individual officers, departments, and the public in the use of investigative lies to apprehend dangerous criminals, with the courts not even agreeing what police conduct is lawful in this area, are we properly preparing officers to lie lawfully? Are we properly preparing them for the psychological slippery slope that lying as a regular part of the job can place them on? How many departments provide adequate, if any, training in this high stakes area of police work? How many departments or agencies have any guiding policies or procedures?
What We Can Do
First and foremost, we have to train officers in the ethical and lawful use of police deception. We have to train them on Supreme Court case law and the controlling cases and laws of their jurisdiction. This article barely scratches that surface. Despite the grim picture of courts disagreeing, there are basic agreements and parameters amongst courts within officers' jurisdictions that can provide guidance and these cases can form the basis of scenarios for training.
Next, we must provide officers scenario-based training in the use of such deception. These scenarios must:
• Develop officers' knowledge and mastery of the circumstances courts look at to determine whether police deception violates due process.
• Lead officers to devise lawful deceptions and to apply them non-coercively in various combined circumstances.
• Increasingly raise the stakes, make officers aware of the potentially corrosive effect of regularly lying, and give them specific strategies for protecting against such corrosive effect.
This training need is greatest for veteran officers, who are most likely to use deception in investigations and are most subject to its cumulative effect.
Third, the profession should address whether to develop policies and procedures for officers' use of deception. Policing has seen the need for such guidelines in the use of force and high-speed pursuits. The stakes for officers, departments and the public can be just as high in this arena. Such procedures might consider:
• Should investigative lies be used only if other means of gathering evidence have been unsuccessful or the officer can articulate that such means would be futile?
• Should officers have to obtain approval or a second opinion before using deception?
• Should the procedures be the same for deception used with a suspect as a witness?
• Should officers have to complete training before using deception?
• If taping of suspect interviews is not already required, should it be whenever deception is used?
If policies and procedures are adopted, they must be broad enough to provide officers with lawful flexibility and discretion in fighting crime but specific enough to ensure that if they are followed, officers can expect the full support of their departments. In a recent web cast on this topic, officers across the nation were asked,
If you were investigating a serious, high profile case and you made an ethically and legally tough decision to use an investigative lie that the media and public had a strong negative reaction to afterwards -- do you believe your department's leadership would support you?
Nearly two out of three – or 64% of respondents -- believed their departments would not support them. 3
Which leads to a final thing the profession must do – support officers in this complex arena. Oscar Wilde said, “The truth is rarely pure and never simple.” If an officer has followed procedures, or in their absence has made a tough but ethical decision, and the media, the public or a court later disagree on its legality, departments should support the officer. Remember, courts don't even agree on this stuff and they have attorneys and law clerks briefing it for them before they have to decide. We can acknowledge the court's or public's opinion, we can respect the disagreement -- and still support the officer's decision. That support must include training officers before they are confronted with these complex decisions and their high stakes consequences.
1 Laurie Magid, Deceptive Police Interrogation Practices: How Far Is Too Far, 99 Mich. L. Rev. 1168, 1198-99 (2001).
2 Karl S. Johnstone, Superior Court Judge, Retired.
3 This webcast is archived on www.officer.com .
Described by Caliber Press as “ the indisputable master of enter~ train ~ment,” Val Van Brocklin is an internationally acclaimed speaker and noted author. She combines a dynamic presentation style with over 10 years experience as a prosecutor where her trial work received national media attention on ABC'S PRIMETIME LIVE , the Discovery Channel's Justice Files , in USA Today , The National Enquirer and REDBOOK. Visit her website: www.valvanbrocklin.com.◦
Truth or Consequences: Training Police to Lie
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