To Lie or Not to Lie: The Use of Deception During An Interrogation

If the agents involved in the recent Colombia incident are interrogated, should the investigators tell them they have evidence that they don't really have? It depends on a number of considerations.

Earlier this year a case was reported in which a detective doctored a crime lab report to use as a prop during an interrogation. While the suspect did not confess, the detective's tactics spurred legal questions regarding the use of deception during an interrogation. The legal twist was that even though the report used as an interrogation prop was manufactured by the investigator, it was based on factual verbal information provided by the crime lab. In other words, the manufactured evidence contained truthful information that incriminated the suspect but the report was not a bona fide report from the crime lab. 1

Legal Considerations

The legal test for deceptive practices during an interrogation has remain unchanged for more than 40 years. The use of deception during an interrogation must be considered within the totality of circumstances when deciding the admissibility of a confession.2 Deception that shocks the conscience of the court or community will generally result in a suppressed confession. An example of deception that "shocks the conscience" is lying to the suspect about the possible consequences he faces, e.g., telling a homicide suspect that the legislature just dropped first degree murder to a misdemeanor. Similarly, an investigator who elicits a confession after falsely telling the suspect that he is his court appointed public defender has "shocked the conscience".

A second legal guideline regulating deceptive practices, stemming from a 1989 case, makes a distinction between manufacturing evidence against the suspect (which is not permissible) and false verbal assertions (which generally are permissible). 3 In that case the investigator manufactured a fictitious crime lab report indicating that the suspect's DNA was found during an autopsy of the victim. After reading the "crime lab report" the suspect confessed. The suspect's confession was later suppressed at trial. If the investigator had falsely told the suspect that his DNA was found during the victim's autopsy this would have been permissible - but the investigator went too far by manufacturing the lab report. Other than these exceptions, there are many decisions upholding the use of verbal deception during an interrogation.

There is no per se legal restriction against the use of "props" during an interrogation. However, the prop must truly be a mere visual aid such as a blank DVD where the suspect is falsely told that it is the surveillance video showing the suspect removing property from a building. To determine whether a prop crosses the line of being improper, ask the following question: "Could an analysis of the purported evidence incriminate the suspect?" If the answer is "yes" the prop should not be used. In the DVD example, even if the DVD was labeled "Surveillance Video, May 12, 2012" anyone who played the DVD would realize that there was absolutely nothing on it that would incriminate the suspect.

Procedural Considerations

Most investigators have experienced some success with deceptive practices during an interrogation. For example, the investigator may produce a file containing a number of blank pages. As the investigator thumbs through the pages in the file he states, "This is a report from an eye-witness who saw you outside the building that night; this is a report indicating your fingerprints were found inside the building; this report shows that you made a large cash purchase two days after you went into that apartment building." A guilty person who believes that the investigator, in fact, has all of this incriminating evidence is more likely to tell the truth.

On the other hand, consider the investigator who falsely tells a suspect, "We found your fingerprint inside that house." Unbeknownst to the investigator, the suspect wore gloves during the burglary that he committed. Obviously, under this circumstance the deceptive tactic completely backfires. The investigator will lose credibility, the suspect will become more confident in his ability to lie and the interrogation will deteriorate very quickly.

Suffice it to say, lying to a suspect about having incriminating evidence is a risky interrogation tactic. To reduce this risk the investigator who anticipates the possibility of mentioning fictitious evidence during the interrogation may first test the fictitious evidence during the interview by asking a bait question.

Consider the investigator who is contemplating making a false statement during the interrogation concerning an eye-witness who saw the suspect at the scene of the crime. During the interview the investigator may ask the following bait question, "Is there any reason a witness, who was walking their dog down Washington street that night, would tell us that they saw you leave the apartment complex around 7:00?"

If the suspect offers an emphatic denial to this bait question it would be an indication to the investigator that he should not mention a fictitious eye-witness during the interrogation. On the other hand, if the suspect offered a hesitant or qualified response to this bait question, the investigator should have confidence in mentioning an eye-witness during the interrogation. The following are other procedural considerations relating to deceptive statements during an interrogation:

1. Consider deception as a last resort effort to overcome stubborn, weak denials typically offered by a guilty suspect.
2. Do not lie to a suspect who claims not to remember his actions at the time of the crime. There are reported cases of internalized false confessions where innocent suspects claim that they were convinced by the investigator that they must have committed the crime, even though the suspect had no initial recollection of committing the crime. Obviously, the use of deception by the investigator could increase the likelihood of this occurrence.
3. Do not use false evidence to threaten inevitable consequences. A number of previous web tips have addressed the dangers of convincing an innocent suspect that he or she will suffer negative consequences regardless of whether the suspect acknowledges guilt. When this tactic is reinforced with false claims that the investigator has evidence implicating the suspect in the crime, a false confession is a real possibility.

Miscellaneous Considerations

Some private companies have established internal policies that prohibit corporate investigators from making false statements during an interview or interrogation of an employee. The basis for this policy is generally based on corporate ethical considerations as opposed to legal requirements. Especially when a corporate investigation centers around administrative acts of wrong-doing, the use of deceptive practices may fall outside of the realm of acceptable standards of practice and open the employer to possible civil liability.

Police officers who work in small communities often arrest and re-arrest the same suspects, or relatives of that suspect on a regular basis. In a tight-knit community the officer's reputation will often dictate his success in developing informants and eliciting confessions from suspects. If the officer establishes a reputation of being a straight shooter and honest he is likely to be successful. On the other hand, if the officer has a reputation of lying to suspects and not being trustworthy, his ability to solve cases through gathering street information or by interrogating suspects is greatly hindered. Under this circumstance, the investigator will be more successful by establishing a reputation of being truthful.

The same advise applies to the corporate investigator who will quickly establish a reputation of either being credible or someone not to trust. It must be remembered that both innocent and guilty suspects will not cooperate with an investigator they do not trust; the one case that might be solved by making deceptive statements during an interrogation could result in the failure to resolve many future cases.

Finally, investigators who electronically record interrogations should consider their ability to explain their use of deception practices to a jury. The defense, of course, will argue that the recorded deception somehow renders the defendant's confession as untrustworthy. A competent prosecutor should be able to address this issue by educating the jury with respect to the law and emphasizing that the confession is corroborated with information only the guilty person could have provided.

Conclusion

Deceptive practices are prevalent within society and largely considered an acceptable part of doing business or preserving social relationships. When a store asks a customer to register for a free birthday gift they don't want to send the customer a gift - they want to find out how old the customer is so they can market products appropriate to someone that age. We have all been served a meal that was less than appetizing and yet, deceptively, we would finish our portion, compliment the chef and leave a generous tip. These examples involve everyday practices of law abiding citizens. What about when dealing with criminal suspects? Certainly courts and society recognize that investigators often need to resort to deceptive practices in an effort to learn the truth from a criminal suspect. Indeed, the law extends great latitude within the area of making false statements to a criminal suspect.

However, as addressed in this article, just because lying to a suspect is accepted by the courts and will generally not cause an innocent person to confess, there are other considerations that may cause an investigator to avoid making false statements to a suspect. These involve circumstances where the investigator's deceptive conduct may negatively affect the investigator's (or employer's) ability to solve the crimes, as well as affect their reputation.

1 Reported in "Austin Police Use of Doctored DNA Report in Interrogation Raises Legal Questions," Statesman.com, Jan. 30, 2012
2Frazier v. Cupp 394 U.S. 731 (1969)
3 Cayward v. Fl 552 So 2nd 971 (1989)


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