August 21, 2006
Use of Lies to Obtain the Truth:
The Police Can Lie to You
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 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.
HELP IS NEEDED FROM "YOU" TO MAKE
CHANGES
IT ONLY TAKES ONE
ARE YOU THAT ONE?
JOIN US AT:
www.peopleagainstprisonabuse.com/page1
