Deceptive Police Interrogation Practices: How Far Is Too Far?

Abstract

The police routinely rely on deception when questioning criminal suspects. Because the United States Supreme Court has placed so few limits on the use of deception, the variety of deceptive techniques is limited chiefly by the ingenuity of the interrogator. Interrogators still rely on the classic Mutt and Jeff, or good cop, bad cop routine. They tell suspects that non-existent eyewitnesses have identified them, or that still at-large accomplices have given statements against them. Occasionally, an interrogator will create a fake lab report purporting to link the suspect to forensic evidence. Most often, interrogators lie to create rapport with a suspect. Thus, an officer with feelings of revulsion toward a suspect accused of a horrible crime may speak in a kindly, solicitous voice and profess to feel compassion for the suspect. The officer may suggest that the victim, even if a child, should share the blame for the crime. In the end, virtually all interrogations involve some deception. At the very least, the successful interrogator deceives the suspect by allowing him to believe that, somehow, it will be in his best interest to undertake the usually self-defeating course of making an uncounseled confession. Because most deception is employed only after the suspect executes a valid waiver of Miranda rights, Miranda imposes few limits on the use of deceptive interrogation techniques. Thus, commentators have increasingly looked to the voluntariness requirement of the Due Process Clause as a basis for urging drastic limitation on these techniques. Commentators who focused on due process rationales such as equality, trust, morality, and dignity have not been able to mount persuasive arguments for limitation. Reliability, however, as the chief rationale for the voluntariness requirement, is an appropriate concern in setting limits on deceptive interrogation techniques. Deception should not be permitted when it creates an unreasonable risk that an innocent person would falsely confess. Some commentators have asserted that there is a significant problem with false confessions. In fact, the evidence of false confessions, both in the academic literature and in the popular press, is entirely anecdotal. Statistically sound research on a random sample of confession cases should be conducted. At this point, however, drastic limits on the use of deceptive interrogation techniques are not justified. Such limits would impose substantial costs on society in terms of lost confessions from guilty persons. When guilty persons do not confess, additional resources must be expended to obtain convictions, some guilty persons are able to plead to lesser charges, and some guilty persons simply go free and have the opportunity to commit new crimes. Although the wrongful conviction of any innocent person is a terrible failing of the criminal justice system, it does matter whether such occurrences constitute rare tragedies or an epidemic. Thus far, there is no evidence that a significant number of innocent persons have been convicted because of false confessions that were induced by deceptive interrogation techniques. Until there is statistically sound, empirical research on the false confession problem, broad prohibitions on the use of deceptive interrogation techniques are not warranted.