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Lying to a Suspect: How Far Can an Investigator Go?
June 2004 (click here for printable version)
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During the course of an investigation an investigator often must rely on duplicity and pretense in an effort to develop evidence against the guilty suspect. Common examples include the use of undercover operatives, hidden surveillance video or "baiting" a cash drawer with extra money. Provided these procedures do not entice a person to commit a crime (entrapment), they are generally acceptable practices. However, courts give greater scrutiny to situations when an investigator knowingly lies to a suspect in an effort to obtain evidence. The courts recognized that deception by law enforcement is often required to solve crimes but also prohibits the police from making false statements to a suspect under certain circumstances.
Shocking the conscience of the court or community
The landmark decision regulating false statements made to a suspect is the U.S. Supreme Court case of Frazier v. Cupp, 394 U.S. 731, 1969. The case involved the interrogation of a homicide suspect who was falsely told that an accomplice had already implicated the suspect in the killing. This lie persuaded the suspect to confess to the homicide. The Supreme Court ruled that such use of trickery and deceit can be permissible (depending on the totality of circumstances) provided that it does not shock the conscience of the court or community.
Furthermore, the court offered examples of police conduct that would shock the conscience of the court or community. Such impermissible conduct includes an investigator lying about his identity and introducing himself as the suspect's court appointed attorney. Similarly, an investigator who poses as a clergyman in an effort to obtain a confession under that guise would constitute behavior that shocks the conscience of the court or community. Over the last 35 years courts have upheld countless confessions even though the investigator lied to the suspect during an interview or interrogation. In most of these cases the investigator made false statements about being in possession of evidence that implicated the suspect in the crime e.g., eye-witness, fingerprint, DNA, etc.
On the other hand, courts have consistently prohibited investigators from lying to suspects about the possible consequences the suspect faces if he is guilty of committing a crime. An example of this would be if an investigator falsely tells a suspect that recent legislation allows the suspect to receive probation if he expresses remorse for his crime. Other instances of impermissible false statements include telling a suspect that if he confesses he can sleep in his own bed that night (when such is not the case), or that if the suspect does not confess her children will be taken from her and placed in a foster home.
A 1993 case draws a clear distinction between intrinsic lies (dealing with the current investigation) and extrinsic lies (relating to legal issues or the court system).1 That case holds that telling extrinsic lies to a suspect constitutes inherent coercion and, consequently, renders a confession inadmissible, per se. Other states have adopted a similar position. For example, a recent decision from Minnesota involved a case where the investigator told the suspect that if he acknowledged having sexual contact with the victim many years ago, that the suspect would not be charged with a more serious offense. The court suppressed the subsequent confession relying, in part, on the rationale that an investigator is prohibited from telling extrinsic lies during an interrogation.
An interesting application of Kalekolio is the permissibility of lying to a suspect about the purpose for an interview. As an example, consider that Frank is suspected of engaging in illegal gambling activity and investigators wish to talk to him about that. For fear that Frank will destroy evidence if told the true purpose for the interview, investigators lie and tell him that they would like to question him about a recent hit and run accident. Once Frank voluntarily presents himself to the interview room he is told the true purpose for the interview and subsequently confesses to illegal gambling activity. Lying to a non-custodial suspect about the purpose for an interview may be considered permissible if the investigator can establish a reasonable purpose for the deception and that the interview was voluntary. However, if Frank was arrested and taken into custody, it would be clearly improper and illegal to elicit a Miranda waiver under the false pretest of wanting to talk to him about a hit and run accident. Obtaining a valid waiver of constitutional rights is clearly extrinsic to the investigation and an investigator can not engage in trickery or deceit to obtain that goal.
False assertions vs. manufactured evidence
A Florida case offers further guidance with respect to making false statements to a suspect.2 In the Cayward case police created a fictitious crime lab report which indicated that Cayward's DNA was found on the victim. After reading the report, Cayward confessed. At trial his confession was suppressed because of the court's concern that such manufactured evidence may find its way into a court room and undermine the integrity of the evidential system. The significant language from Cayward is that a distinction must be made between, "Making false assertions and manufacturing evidence". The implication is that Cayward's confession would have been upheld had the investigator only made the false statement, "We have a crime lab report and your DNA was found on the victim."
This same logic was applied in a recent New Jersey case to suppress a homicide confession.3 In preparation for the interrogation, investigators staged an audio-taped interview where a fellow investigator pretended to be an informant who witnessed the killing. Upon hearing the manufactured tape the suspect confessed. It should be made clear that the Cayward case does not prohibit an investigator from using visual props during an interrogation provided that the props would not reasonably be perceived as actual evidence against the suspect.
Many of the interrogations conducted at John E. Reid and Associates involve deception through duplicity and pretense to one degree or another. When we start out the interrogation by telling the suspect that all of the evidence indicates that he committed the crime, this is often an exaggeration. We may then compliment the suspect by saying that he appears to be a conscientious and caring individual. This, too, is often a lie. We continue on by expressing understanding and compassion toward the suspect's criminal behavior and express sympathy toward the unfortunate situation that led to the decision to commit the crime. These false emotions of sympathy and expressions of confidence are often necessary to create an environment where the suspect feels comfortable telling the truth.
Only rarely do we lie about having evidence that implicates the suspect in the crime. In our experience, an investigator who lies about having such evidence risks the suspect either calling the investigator's bluff, e.g., "Let me see that crime lab report!" or frightening the suspect into asking for an attorney. Procedurally, making false statements to a suspect during an interrogation is a risky proposition and should be reserved as a last ditch effort to overcome weak, but persistent denials.
When the decision is made to lie to a suspect, the investigator must be aware of case law and avoid any lies that relate to legal issues or the criminal justice system, e.g. leniency, lesser charges, reduced sentence. Further, lies made to a suspect should be limited to false verbal assertions. This does not preclude the investigator from using visual props such as a thick evidence folder or a blank VHS tape. However, it is unacceptable for an investigator to manufacture fictitious evidence against a suspect.