Training Cops to Lie - Pt 1

Truth or Consequences

Police lie. It's part of their job. They lie to suspects and others in hopes of obtaining evidence. These investigative lies cover a wide web of deception - a web that can get tangled. Some investigative lies are legal, some are not, and some generate significant disagreement amongst courts, prosecutors, the public and officers themselves.

There are serious consequences here. Officers can:

Be sanctioned by the courts.
Be sued.
Be disciplined in the job.
Lose the public's confidence.
Have evidence suppressed, a case dismissed and a criminal freed.

Proper training in this complex arena is critical.

Not All Lies Are Created Equal

Effective interrogation of a suspect nearly always involves a deception - expressed or implied. The deception 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. (See below, Deceptive Police Interrogation Practices: How Far Is Too Far)

And confessions "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.
Courts agree coercion can be psychological as well as physical.
Most courts agree they'll decide whether the confession was voluntary or coerced based on a "totality of the circumstances."

Totality of the circumstances can include:

Police conduct - what officers say and do and how they say and do it, e.g., the length of the interrogation and whether police offer refreshment or breaks.
The environment - e.g., are police questioning the suspect in a 6' X 8' windowless room where they stand between him and the only exit?
The suspect's age and mental status.
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, dear Reader, work the following scenario and we'll compare results.

Seventeen-year-old Deborah Margolin was brutally murdered. According to her brothers, she was sitting outside 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 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 previously been 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.

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 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 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 (3rd 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. The defense argued that 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.

Miller appealed his conviction. A 3-judge state appellate court unanimously reversed the conviction. Based on the same facts, they ruled 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. - Karl S. Johnstone, Superior Court Judge, Retired.

This is the tangled web officers must navigate every day. A web 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. See, web link below.)

So, what can and should the profession do to prepare officers for this tangled web with its critical consequences? Stay tuned for Training Cops to Lie - Part 2, where we'll look at: