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During an interrogation, an investigator attempts to persuade a suspect to tell
the truth, oftentimes to provide incriminating evidence that will be used in a
subsequent prosecution. Further, interrogations are generally conducted in
situations where there is insufficient evidence to assure a conviction and, in
many cases, the suspect's actual guilt may not be 100% certain. If an
investigator was required to be completely truthful with a suspect, the
interrogation would sound like this: "Joe, I am not sure you committed this
crime and we do not have enough evidence to prosecute you for it. Therefore, I
would like you to confess to me so that we can convict you and send you to
prison." Obviously, under this circumstance, no suspect would ever confess. Out
of necessity, therefore, interrogation relies extensively on duplicity and
pretense.
An Investigator may exaggerate his confidence in the suspect's guilt, establish
a misleading reason for the interrogation, such as needing to establish the
circumstances that led up to the crime, display feelings of sympathy and
compassion toward the suspect that are far from genuine, and, in some cases,
falsely tell the suspect that evidence exists which links him to the crime.
Trickery and deceit during an interrogation, therefore, occurs on a continuum.
It is the latter extreme (lying to a suspect about evidence) that raises most
questions.
In 1969 the U.S. Supreme Court upheld a confession obtained by the use of
trickery where a homicide suspect was falsely told that his accomplice had
already confessed
(Frazier v. Cupp). Since then, numerous other Federal and State
courts have similarly upheld confessions obtained through the use of substantial
deceit by the investigator. However, courts have also imposed limits on the use
of trickery and deceit. For example, an investigator cannot use a tactic that
would "shock the conscience of the community," such as the investigator
introducing himself as the suspect's court appointed lawyer and obtaining a
confession under the pretense of needing to know the truth to best defend the
suspect. Similarly, a Federal court ruled that it is improper to manufacture
fictitious evidence against the suspect and using the "evidence" during an
interrogation. The general guideline is that false verbal assertions are
permissible, e.g., "The crime lab identified your DNA on the victim" but
creating false evidence (typing up a fictitious crime lab report) is not.1
Courts recognize that falsely telling a suspect that his fingerprints were found
inside the victim's home, for example, would not be apt to cause an innocent
suspect to confess.2 A person of normal
intelligence and mental capacity would certainly not place greater confidence in
the investigator's statement than his own knowledge that he was not in the
victim's home. The tactic of falsely telling a suspect that evidence links him
to the crime scene has played an instrumental role in persuading many guilty
suspects to confess who otherwise may not have done so. It is, however, a risky
interrogation practice, and one that should be used with caution.
The inherent danger of lying to a suspect about the existence of fictitious
evidence is when the suspect does not believe the investigator's statement.
Under this circumstance, the investigator's credibility may be irreparably
damaged. This is especially true when the suspect calls the investigator's bluff
and demands to see the evidence (as frequently happens with more street-wise
suspects). Once the investigator loses the suspect's trust, the suspect may
dismiss the investigator's apparent confidence in his guilt, question the
investigator's sympathetic demeanor, and challenge the entire pretense for the
interrogation. In other words, the suspect may realize that the investigator is
only interested in obtaining evidence to be used in an effort to punish him for
his crime.
With this in mind, the following recommendation is offered: introduce fictitious
evidence during an interrogation only as a last resort effort to stop
persistent, but weak, denials or to maintain the attention of a suspect who
exhibits clear signs of psychologically withdrawing. Certainly, presenting
fictitious evidence against a suspect early during an interrogation should be
avoided as it often results in unwanted denials.
Because of the previously mentioned hazard, only rarely does our staff out-right
lie to a suspect about the existence of evidence linking him to the crime.
Rather, they infer that such evidence exists. Examples of these statements
include, "I wouldn't be talking to you this way unless I had proof that you were
with her that night!", or, "I've seen the evidence and there's no doubt you were
inside that home!" Similarly, the investigator may simply state, "We know that
she got into your car right outside the school yard and we know that you drove
down University Avenue with her in your car!"
Central to each of these statements, is that the investigator does not identify
the specific evidence that links the suspect to the crime scene, e.g.,
fingerprints, eye witnesses, DNA, etc. Rather, the specific form of evidence is
left unsaid. This approach minimizes the inevitable challenge by the suspect of,
"Who is your witness?", or "Let me see that crime lab report."
Another approach, that has a similar safeguard, is to refer to the evidence in
the future tense. This was used successfully in a case where it was known that
the perpetrator left a wad of gum at the crime scene. The investigator stated,
"We recovered the gum and are in the process of having the saliva within the gum
analyzed for DNA markers. We both know that when we get those results back it's
going to show that you were the person who chewed that gum and left it in the
basket."
In summary, investigators are legally granted wide latitude with respect to the
use trickery and deceit during an interrogation. While out-right lies concerning
the existence of evidence that links a suspect to a crime scene or victim can be
very persuasive, there is always a risk that the statement may not be believed
or that the suspect will insist on seeing proof of the evidence. Therefore, it
is often advantageous to merely imply the existence of such evidence, or make
reference to the fact that the evidence will shortly establish the suspect's
presence at the crime scene.
1
State v. Cayward, 552 S. 2d 971 (Fla. 1989).
by Rick Rosenthal – ILEETA Media Advisor
Tips and Bits:
Trainers are subject-matter experts. As such, reporters will seek you out as valuable sources of facts and information. I’ve always encouraged you to cooperate with reporters: it’s the best way for you to have an impact on what they say and how they say it, and help them get it right. And I’ve always encouraged you to be prepared before you work with those reporters. The Double Nickel is a part of that preparation. The Double Nickel, as recommended in media relations training at the FBI National Academy, encourages you to ask yourself the 5 questions you pray the media will ask, and the 5 questions you pray they won’t ask, and then answer all 10 questions before you do an interview. Frankly, I don’t really care about how you answer the 5 questions that you pray the media will ask. That’s T-ball. If you strike out in T-ball, you’re beyond help. I’m far more concerned about the 5 questions you pray the media won’t ask. Those are the tough ones on which you should focus. (And don’t stop with 5 hard questions if you see a 6th, or a 7th, or a 30th also lurking.) Your answers to those hardball questions should be factual, and they should be in brief sound bites (KISSS: Keep It Smart, Short and Simple.) Answer each question, and then shut up: 2-3 simple declarative sentences should do it. Never lie. Never speculate: tell what you know, not what you think you know. Never say, ―No comment.‖ In getting ready for any news interview, especially one that’s not just routine, apply the Double Nickel: it’s one of the tools that separates winners from losers in media relations. Rick can be reached at 847-446-6839; or email: rickrosenthal@ileeta.org
By Andrew G. Hawkes
As I look at law enforcement headlines across the country on a day
to day basis I see the same two topics repeatedly coming to the
forefront. Number one
is story after freaking’ story of cops committing crimes, from
dealing drugs to committing burglaries and armed robberies, not to
mention the sexual assaults on duty in squad cars.
Number two, right after I read how bad the criminal element
is that seems to be steadily creeping into our profession, I read
how department after department is lowering their hiring standards.
“PD to remove entrance exam”, and “past marijuana usage OK
for new recruits”, and “bad credit, no problem”.
Am I the only one that wants to raise the question as to
whether or not these problems correlate?
“Chief arrested for selling dope”, “sheriff sentenced in
conspiracy”, “off-duty officer commits burglaries”, “DUI’s out of
control in law enforcement….The newspaper headlines go on and on
about cops committing crimes and becoming part of the criminal
element. Yet society
still holds us to a “higher standard”.
If we are continually held to a higher standard, should we
not continue to hire new officers that meet that higher standard?
We will never be able to fully stop some bad apples from outsmarting
the system, but I don’t think we should be holding the door open for
them to step right on in either.
Sure it’s tough to find solid recruits, but I think we need
to require more than a high school diploma and a driver’s license.
The argument about lowering the standards because we cannot
get any good qualified candidates because law enforcement doesn’t
pay is a bunch of hogwash.
Are we underpaid, you’re damn right we are.
Would I have become a cop for free? You bet I would have,
because I wanted to become a police officer, and I didn’t care how
much I made. I believe
the “want to” to become a police officer coupled with the desire to
do the job no matter what, up to and including laying your life on
the line is the intangible trait that we must focus on in the hiring
process.
The old cliché of “You get what you pay for” is ringing loud and
clear here. Sure it’s
up to the city councils and the county commissioner’s court to set
our salary, and we always hope they will take care of us, but even
if they don’t, it’s our duty as cops, our duty as police agencies to
still go the extra mile to find the best recruits that we can.
When I started in law enforcement it was common knowledge that
police officer’s in Mexico were all corrupt.
The more and more headlines I see about corrupt police
officers are happening right here in the homeland.
Let’s take back our profession before it get’s out of hand
and we get the same reputation across the globe.
This is American, we are the trendsetters globally, and it’s
our responsibility to keep our badges shiny and polished, not dirty
and tarnished.
Is anyone one with me?
Andrew G. Hawkes
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