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Use of Lies to Obtain the Truth: The Police Can Lie to You |
In his closing argument in State of California v. O.J. Simpson, Johnnie Cochran told the jury
how they should view Detective Vannaters testimony: You cant trust him. You cant believe
anything he says because it goes to the core of this case. When you are lying at the beginning,
you will be lying at the end. The book of Luke talks about that if you are untruthful in small
things, you should be disbelieved in big things. Deborah Young, Unnecessary Evil: Police Lying
in Interrogations, 28 Conn. L. Rev. 425 (1996).
Nevertheless, the United States Supreme Court has ruled that the Police can lie to you in order
to extract a confession, Frazier v. Cupp, 394 U.S. 731, 739 (1969). The only place an officer
cannot lie is while testifying under oath in court, and criminal defense attorneys occasionally
catch an officer lying, even on the witness stand. Police are only required to advise you of your
Constitutional rights under Miranda v. Arizona, 384 U.S. 436, if you are in custody and being
interrogated about the offense for which you are being confined. This point is usually
determined to be the point in which the suspect is placed under arrest, or the suspect would
reasonably conclude that he or she is under arrest and not free to leave. Detectives are very
good at creating the illusion that you are free to go, when actually, you are not. For example,
the detective may tell you that you are free to go at any time, but that it would benefit you to
provide your side of the story as the evidence does not look to be in your favor, therefore you
can be pursuaded into continuing the interrogation.
During interrogations, police who use this tactic may lie about the facts of a case. For example,
where you have an 18 year old male who has a 15 year old girlfriend, the officer will tell him that
they have evidence that he raped her, when in fact, they do not. The 18 year old tells the officer
that they had consensual sex and that there was no rape involved; now the officer has a
confession as to Statutory Rape that came straight from the mouth of the suspect. In trying to
exonerate himself from the charge of Rape, the 18 year old legally confessed to the lesser crime
of Statutory Rape. In Frazier v. Cupp, 394 U.S. 731, 739 (1969), the officer was able to extract a
confession from the criminal defendant by lying about the strength of the case. During
interrogation, the officer lied to the criminal defendant and told him that his cousin, had
confessed to the possession of cocaine with intent to distribute, also implicating the criminal
defendant in the crime. The criminal defendant then also confessed to the crime in reliance of
the officers false statement. The Court determined that the criminal defendants confession was
voluntary and the fact that he was given his Miranda rights prior to making the confession was
relevant to a finding of waiver and voluntariness. Id.
Police officers are also allowed to fabricate evidence to support a deception. In re D.A.S., 391
A.2d 255, (D.C. App. 1978) the police pretended to compare the defendants fingerprints to a
fingerprint on the victims checkbook and pronounced them a match when in truth, no
fingerprints were recovered from the checkbook. The defendant confessed to the robbery and
the Court held that the police deception did not by itself invalidate a voluntary confession. Id.
at 258. Confessions are not invalid or inadmissible, even if they are obtained by deception or
trickery, as long as the means employed are not calculated to produce an untrue statement.
Only if the deception, combined with other factors, coerces the suspect or defendant to confess,
will the court deem the confession inadmissible. Id., at 259.
In order to extract confessions, police may also attempt to persuade the suspect or defendant
that her conduct was less blameworthy than anticipated. Deborah Young, Unnecessary Evil, 28
Conn. L. Rev. 425, 433 (1996). Police may lie about the victim to diminish the suspects fear of
confessing. In People v. Jordan, 597 N.Y.2d 807 (N.Y. App. Div. 1993), the police told the
defendant that he may be able to save the victim if he told the police exactly what happened.
The police falsely told the defendant that the victim had just received eighteen stitches for her
knife wound and would soon be out of the hospital, when in actuality, the victim had died. The
defendant confessed to stabbing the victim believing that he would be charged with assault and
not murder. The court affirmed the murder conviction, holding that, "mere deception by the
police is not alone sufficient to render a confession inadmissible unless accompanied by a
promise or threat that could induce a false confession." Id. at 808.
In Massiah v. United States, 377 U.S. 201 (1964), federal agents used an informant as a secret
conspirator to listen in on the criminal defendants conversations. He made incriminating
statements to the informant, not knowing that the informant was secretly working with the
federal agents. At the time the statement was made, the criminal defendant was out on bail and
had already secured an attorney. The Court held that because the criminal defendant had
secured an attorney and had already been indicted, federal agents could not attempt to elicit a
confession without the presence of the criminal defendants retained counsel. Id., at 204.
The Court is reluctant to bar such police tactics and confessions because of the assumption that
an innocent person of normal intelligence will not admit to a crime she did not commit. Patrick
M. McMullen, Questioning the Questions: The Impermissibility of Police Deception in
Interrogations of Juveniles, 99 Nw. U.L. Rev. 971, 974 (2005). However, the Court has
recognized the inherently coercive nature of police interrogations, thereby mandating the police
to provide Miranda warnings to suspects and defendants to lessen such coercion. The
intimidation is even greater on juveniles. The power of police to deceive juvenile suspects
during interrogations is significant since kids may be even more impressionable and confused.
Juveniles are more likely than adults to defer to the wishes of adult authority figures and are
more susceptible to suggestions of guilt. Id., at 975. Juveniles are more likely to believe things
that adults, especially powerful authority figures, tell them. Many kids are taught to trust police
officers and to have faith in them as enforcers of law. They are not raised to believe that officers
will resort to deception in order to carry out the law. Id., at 997. Thus juveniles are easily
pressured into admitting guilt or agreeing to false information. Unfortunately, the
interrogation room is one of the few places where the Court has been unwilling to protect
juveniles from their own bad or premature decisions. In Fare v. Michael C., 442 U.S. 707 (1979)
the Supreme Court decided that juvenile confessions were to be assessed under the totality of
circumstances standard and thus age was only one of many factors that come into play when
assessing the admissibility of juvenile confessions.
Police deception may be helpful in eliciting confessions from guilty suspects. However, such
manipulation also extracts false confessions, especially from juveniles. Placing false hope in
young suspects by promises of leniency and misrepresentation of evidence are effective in
inducing such false confessions. Patrick M. McMullen, Questioning the Questions, 99 Nw. U.L.
Rev. 971, 988 (2005). The vast majority of evidence that prosecutors obtain against defendants
comes straight from their own mouths because of the Police interrogation methods discussed.
For these reasons, it is best to obtain the services of a skilled criminal defense attorney before
an opportunity for questioning arises, or any charges are filed. After discussing with the client
what is known about the scope of the investigation, the attorney should start by advising the
detective that the defendant is represented by counsel, and not to talk to his client without that
counsel present. If you have no inkling that you might be investigated or charged with a crime
prior to being contacted by law enforcement, it is very important that you consult an attorney
before speaking to authorities. While an officer may imply that failure to speak immediately will
result in arrest, a person cannot be arrested for exercising the right to remain silent. Police can
only arrest a person if probable cause exists, and the choice to remain silent cannot be part of
that analysis. If the officers already have probable cause, they would not need to question you.
If they do not, the statement you make could well supply it.
Source: By: Colin McKibben, Attorney at Law
