By: Colin McKibben, Attorney at Law
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 thatif 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).
Police Officers Only Required to Tell Truth in Court
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.
Lies To Obtain Evidence
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.
Evidence Can Be Fabricated to Obtain Information
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.
Police May Leverage Victims to Obtain Confession
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.
Why Are Police Tactics Permissible by the Court?
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.
How To Avoid Police Interrogation Tactics
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.