The ethics of deceptive interrogation

Abstract

I Introduction As David Rothman and Aryeh Neier have recently reported, third degree police practices--torture and severe beatings--remain commonplace in India, the world's largest democracy.[1] Police brutality during interrogation flourishes because it is widely accepted by the middle classes.[2] Although this may seem uncivilized to most Americans, it was not so long ago that American police routinely used physical violence to extract admissions from criminal suspects.[3] Since the 1960s, and especially since Miranda, police brutality during interrogation has virtually disappeared in America. Although one occasionally reads about or hears reports of physical violence during custodial questioning,[4] police observers and critics agree that the use of physical coercion during interrogation is now exceptional. This transformation occurred partly in response to the influential Wickersham report,[5] which disclosed widespread police brutality in the United States during the 1920s; partly in response to a thoughtful and well-intentioned police professionalism, as exemplified by Fred Inbau and his associates; and partly in response to changes in the law which forbade police to coerce confessions but allowed them to elicit admissions by deceiving suspects who have waived their right to remain silent. Thus, over the last fifty to sixty years, the methods, strategies, and consciousness of American police interrogators have been transformed: psychological persuasion and manipulation have replaced physical coercion as the most salient and defining features of contemporary police interrogation. Contemporary police interrogation is routinely deceptive.[6] As it is taught and practiced today, interrogation is shot through with deception. Police are instructed to, are authorized to--and do--trick, lie, and cajole to elicit so-called voluntary confessions. Police deception, however, is more subtle, complex, and morally puzzling than physical coercion. Although we share a common moral sense in the West that police torture of criminal suspects is so offensive as to be impermissible--a sentiment recently reaffirmed by the violent images of the Rodney King beating--the propriety of deception by police is not nearly so clear. The law reflects this ambiguity by being inconsistent, even confusing. Police are permitted to pose as drug dealers, but not to use deceptive tactics to gain entry without a search warrant; nor are they permitted to falsify and affidavit to obtain a search warrant. The acceptability of deception seems to vary inversely with the level of the criminal process. Cops are permitted to, and do, lie routinely during investigation of crime, especially when, working as undercovers, they pretend to have a different identity.[7] Sometimes they may, and sometimes may not, lie when conducting custodial interrogations. Investigative and interrogatory lying are each justified on utilitarian crime control grounds. But police are never supposed to lie as witnesses in the courtroom, although they may lie for utilitarian reasons similar to those permitting deception at earlier stages.[8] In this article, we focus on the interrogatory stage of police investigation, considering (1) how and why the rather muddled legal theory authorizing deceptive interrogation developed; (2) what deceptive interrogation practices police, in fact, engage in; and--a far more difficult question--(3) whether police should ever employ trickery and deception during interrogation in a democratic society valuing fairness in its judicial processes. II The Jurisprudence of Police Interrogation The law of confessions is regulated by the Fifth, Sixth, and Fourteenth Amendments. Historically, the courts have been concerned almost exclusively with the use of coercion during interrogation. Although a coerced confession has been in admissible in federal cases since the late nineteenth century, the Supreme Court did not proscribe physically coercive practices in state cases until 1936. …