Law Office of Tim Powers
In his closing argument in
State of California v. O.J. Simpson, Johnnie Cochran told the jury how they should view Detective Vannater's
You can't trust him. You can't 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).
Police Officers Only Required to Tell Truth in Court
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.
Lies To Obtain Evidence
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
Evidence Can Be Fabricated to Obtain Information
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.
Police May Leverage Victims to Obtain Confession
In order to extract confessions, police may also attempt to persuade the
suspect or defendant that her conduct was less blameworthy than anticipated.
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.
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.
Why Are Police Tactics Permissible by the Court?
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.
How To Avoid Police Interrogation Tactics
For these reasons, it is best to obtain the services of a skilled criminal
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.
If you are seeking aggressive criminal representation by an experienced
criminal defense attorney for your Denton County criminal case or arrest
in Denton County, contact the offices of Tim Powers today. There is no
charge or obligation for the initial consultation. 940.580.2899.
*Tim Powers is an attorney licensed to practice law by the Supreme Court
of Texas. Nothing in this article is intended to be legal advice. For
legal advice about any specific legal question you should directly consult