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The Use of Deception During Police Interrogations

The Use of Deception During Police Interrogations

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By Nicole Cain, Faculty Member, Criminal Justice at American Military University

The criminal justice system is a set of institutions and processes designed to serve three main functions:

  • Identify and arrest criminals who violate the law
  • Prosecute them
  • Manage their punishment

Police officers are responsible for the first element of the criminal justice system: identifying and arresting criminals. Police officers achieve these goals through proactive policing, responding to calls for service, and investigating criminal activity. As a part of criminal investigations, police review crime scenes, interview victims and witnesses, collect and analyzing evidence, as well as interrogate potential suspects. Interrogating suspects is a specialized skill that requires officers to be highly trained. After all, the role of an interrogator is to induce a person to provide statements that are often not in his or her own best interest.

Deception and Case Law

Deception is considered unethical in most situations; however, most police detectives consider it an invaluable tool. Strategic deception is employed after a suspect voluntarily waives his rights to an attorney and to remain silent.

Police detectives use a variety of deceptive tactics to include:

  • Displaying false sympathy or understanding
  • Minimizing the suspect’s culpability or the seriousness of the offense
  • Falsely stating there is forensic evidence, co-defendant testimony implicating the suspect, or eyewitness testimony

The parameters of using strategic deception by police during interrogations are established in case law. The U.S. Supreme Court addressed the use of oral deception by police in Frazier v. Cupp (1969). In this case, the Supreme Court held that the deception employed by the police was permissible and explained,

“The fact that the police misrepresented the statements that [an accomplice] had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible.”

The Florida Second District Court of Appeal further defined the parameters of how police can employ deception in Florida v. Cayward (1989). In this case, the police fabricated laboratory reports, which were then presented to the suspect during the interrogation as a ploy to induce a confession. The confession was suppressed by the trial court and the Florida Appellate Court affirmed its assertion that the police violated the suspect’s constitutional right to due process. The Appellate Court held:

“A final factor, which weighs heavily in our decision, concerns the increased confidence the public generally feels toward the police. This feeling of assurance has been earned over the course of several decades by increased professionalism of law enforcement agencies, education, and community involvement. We recognize that law enforcement officers must be allowed a degree of latitude in interrogating suspects, and we acknowledge the role of confessions in the administration of the criminal justice system. We must, however, decline to undermine the rapport the police have developed with the public by approving participation of law enforcement officers in practices which most citizens would consider highly inappropriate. We think that for us to sanction the manufacturing of false documents by the police would greatly lessen the respect the public has for the criminal justice system and for those sworn to uphold and enforce the law. In a word, in administration of the criminal law, we simply cannot allow the end of securing a confession to justify the means employed in this case.”

This was the ethical line drawn by the courts in Florida. Oral deception is permissible during interrogations, but presenting fabricated evidence is not permissible. The Court felt that presenting fabricated evidence would erode the public’s trust in law enforcement.

Goals of Deception

Why use deception? Magid (2001) states, “Virtually all interrogations, or at least virtually all successful interrogations, involve some deception.” She elaborates even further: Deceptive interrogation techniques have value. Deception is needed to obtain some confessions; confessions are needed to obtain some convictions; and those convictions provide great value to society, specifically to existing victims, future potential victims, and innocent persons who might have been wrongly charged absent a confession by the true perpetrator (p. 1171).

In my experience, a confession is the most powerful piece of evidence in a case because it is compelling to jurors and often leads to the conviction of the suspect. Therefore, the goal of an investigator is to obtain a confession. That is not an easy undertaking. Suspects, reluctant witnesses, and associates of the suspects are often deceptive. Suspects are reluctant to admit wrongdoing, so they lie. Suspects have much to lose once they admit to committing a crime. Deception is one method to obtain the truth from suspects. Even those who oppose the use of deception during interrogations realize the value of confessions. Richard A. Leo conducted a study in 1996 in which he observed 182 police interrogations at the Laconia Police Department. Leo stated:

“This study suggests that confessions may well be the most damning and persuasive evidence of criminal guilt, a finding that confirms the beliefs of many detectives and prosecutors, as well as the outcome of mock jury experiments. Incriminating statements provided to police during interrogation cast a long shadow over the defendant’s fate within the criminal justice system” (p. 298).

What Critics Say About Deceptive Practices

Critics of the use of deception contend that allowing police to lie during an interrogation is a slippery slope. They assert that if police are permitted to lie in an interrogation, why not lie when applying for a search warrant or when testifying in court?

There is also the issue of public trust. Does permitting police to lie in any circumstance erode the public’s trust? And finally, opponents suggest strategic deception is inherently coercive and can lead to false confessions (Kassin, Drizin, Grisson, Gudjonsson, Leo, & Redlick, 2010).

While each concern is valid, each can be refuted. Police are trained from day one in the police academy that their longevity in law enforcement is based on their credibility. Their credibility must never be tarnished by dishonesty or unethical acts. Lying is not permitted while writing a police report, completing an affidavit, or testifying under oath. There is no gray area. Using strategic deception during an interrogation is simply a tactic to elicit the truth from a suspect. The use of deception is permitted in limited circumstances and regulated by case law. Most police agencies provide training and specific policy concerning the interrogation of suspects.

Eroding Public Trust
In response to the second concern, the public’s trust in the police erodes when the police do not do their job. The public expects the police to control crime. Part of that goal is achieved by solving crime through criminal investigations. In some cases, in which minimal forensic evidence is present, investigators rely on a suspect’s admission or confession in order to charge him or her. Confessions should be obtained within the parameters of the U.S. Constitution, state law, case law and department policy.

Obtaining a confession from a suspect is challenging and requires a strategy. Using deceptive tactics is one method by which an investigator may elicit a confession. For example, imagine an investigator interrogating a child molester and rather than displaying false sympathy or understanding, the investigator displayed his disgust and outrage at the suspect’s heinous acts. What is the likelihood that the suspect confesses? Conversely, if the investigator adopted a strategy in which he displayed understanding of the suspect’s actions and minimized the crime, then the suspect is more apt to engage in conversation and potentially confess.

The use of deceptive tactics must be considered carefully. For example, if an investigator plans to falsely state that a crime scene investigator located the suspect’s latent fingerprints on the weapon used to murder the victim then he should be confident that the suspect did not wear gloves during the commission of the murder. Strategic deception has a role in interrogations, but should not be relied upon in every case. It is a tool in the tool box for investigators.

False Confessions
Lastly, using deception during interrogations often leads to false confessions in alarming numbers. Several articles and studies address false confessions. Certainly, it is a concern of investigators as well as academics. An investigator’s objective is to obtain a confession from the person who committed the crime, so that the correct person is charged in the case. If the wrong person is charged with committing a crime then the actual perpetrator is roaming free.

According to research, there are several recommendations that police agencies can incorporate in their protocols to reduce or prevent false confessions. Police agencies can audio and video record all interrogations. Kassin et al states (2010):

“Without equivocation, our most essential recommendation is to lift the veil of secrecy from the interrogation process in favor of the principle of transparency. Specifically, all custodial interviews and interrogations of felony suspects should be videotaped in their entirety and with a camera angle that focuses equally on the suspect and the interrogator (p. 25).”

Video recording interrogations is becoming an acceptable practice among law enforcement agencies because it is mutually beneficial to the suspect and the investigator. Police are less likely to violate policy or the law if the interrogation is recorded. A video recorded confession reduces any false assertions by the suspect that the police used coercive or illegal tactics and its impacts the jury. The recording is also transcribed and becomes part of the case file. There are several additional safeguards to reducing the possibility of a false confession. For example, police should refrain from asking leading questions or providing the suspect with any specific details about the crime, and police should corroborate a suspect’s admission or confession to determine its validity.

Using strategic deception during interrogations serves a specific goal and with careful consideration is effective in eliciting confessions from guilty persons. A confession from the suspect in a criminal investigation is the most persuasive piece of evidence to a jury and often results in a guilty verdict. Obtaining a confession that leads to the arrest and conviction of the actual perpetrator does in fact justify the use of deception. In conclusion, the end does justify the means.

About the Author: Nicole Cain has been an instructor with American Military University for four years and has instructed numerous criminology and forensic courses online for more than nine years. She has more than 16 years of law enforcement experience serving in a variety of capacities to include, patrol operations, uniform crime scene, community oriented policing (COP), and criminal investigations. She is currently assigned to the Criminal Investigations Section’s Felony Intake where she prepares all felony cases for the State Attorney’s Office. During her career in law enforcement, she has authored police reports, arrest affidavits, and search warrants, observed autopsies, testified in court, processed crime scenes, interviewed witnesses and conducted interrogations. She attends Southeastern University where she is pursuing her Doctoral degree in Education (Ed.D).

References

Ashcraft v. Tennessee, 322 U.S. 143 (1944).

Brown v. Mississippi, 297 U.S. 278 (1936).

Constanzo, M. & Redlich, A. (2010). Use of physical and psychological force in criminal and military Interrogations.

Escobedo v. Illinois, 378 U.S. 478 (1964).

Frazier v. Cupp, 394 U.S. 731 (1969).

Kassin, S., Drizin, S., Grisso, T., Gudjonsson, G., Leo, R., & Redlich, A. (2010). Police -induced confessions: Risk factors and recommendations. Law and Human Behavior, 34, 3-38. doi: 10.1007/s10979-009-9188-6

Leo, R. (1996). Inside the Interrogation Room. Journal of Criminal Law and Criminology, 86(2), 266-303. Doi: 10.2307/1144028

Leo, R. & Skolnick, J. (1999). The ethics of police deception. The Institute for Applied & Professional Ethics, 2(1), 3-12. Retrieved from https://www.ohio.edu/ethics/1999-conferences/the-ethics-of-police-deception/

Lisenba v.California, 314 U.S. (1941).

Magid, L. (2001). Deceptive police interrogation tactics: How far is too far? Michigan Law Review, 99, 1168-1210.

Miranda v. Arizona, 384 U.S. 436 (1966).

The Innocence Project. (2015, August 9). False confessions or admissions. Retrieved from http://www.innocenceproject.org/causes-wrongful-conviction/false-confessions-or- admissions

State v. Cayward, 552 So.2d 971 (Fla. Dist. Ct. App. 1989).

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