Blue Lies: Cops, Confessions, and the Constitution

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Lying is generally perceived as reprehensible. But lying to suspects during police interrogations is considered a necessary evil—a useful law enforcement tool—and is even dubbed by some an “art.”

Some police training manuals[i] suggest that lying to suspects concerning the incriminating evidence against them, such as telling them falsely that an accomplice incriminated them, or that forensic evidence suggesting their guilt was found at the scene of the crime, is a recommended tactic. It’s often justified by the old adage, “it takes a liar to catch a liar.”

In fact, the tactic violates essential rights guaranteed under the Constitution—rights that were upheld and interpreted under the Miranda Rule, named for the 1966 Supreme Court ruling in Miranda v Arizona that has governed US police procedure for the past half-century and required police to protect suspects from incriminating themselves by telling them they have the right to remain silent, and to have a lawyer present.

So far, the Court has not seen in that way. Rulings in Frazier v. Cupp and Oregon v. Mathiason have implicitly legitimized such lies.

Nevertheless, it’s time to take a closer look. Apart from moral arguments militating against the creation of a “culture of lies,” and a double standard under which police officers are allowed to lie but suspects are not, police lying creates a tangible risk of the incrimination of innocent individuals.

A study on the “Ethics of Deceptive Interrogation,” by Richard Leo, was one of several that have demonstrated that the strength of real or perceived incriminating evidence is a central factor in the decision to confess.

Why should innocent suspects confess in the face of incriminating evidence?

Manipulating Memories

First, memories can be manipulated and contaminated. Innocent suspects, who are not aware of whether there is “incriminating” evidence against them, experience the undermining of reality and may believe they suppressed committing the offense.

Second, innocent suspects may become persuaded that their claims of innocence are fruitless, persuading them to confess out of despair or the belief that it may somehow reduce police pressure on them and lessen their punishment at trial.

Laboratory studies have shown that lies concerning incriminating evidence increase the risk of false confessions and internalization of imagined guilt. Thus, for example, in a study conducted by Robert A. Nash and Kimberly A. Wade, participants in a computerized gambling experiment were asked to return counterfeit money to the bank after providing a wrong answer, and to take counterfeit money from the bank after providing a correct answer.

After exposure to fake video which suggested they took money from the bank, all the participants admitted guilt when accused of cheating on one occasion, and 93 percent continued to admit guilt even when accused of cheating three times.

This result is not surprising. The very presentation of false evidence constitutes both a threat and a concealed temptation. It conveys a message to suspects that they will be convicted in any case, without gaining the benefit resulting from their collaboration in lessening their punishment.

Besides, interrogation, in the course of which the accusation is hurled at the suspect again and again, is a traumatic experience. The mere ending of the interrogation after confession is an immediate benefit. Every suspect understands this, even without a banner hanging in the interrogation room, as in China, stating “better treatment for confessing and worse treatment for resisting.”

Actually, every lie may lead to emotional breakdown or to the belief that conviction is inevitable and that even fake video, manufactured fingerprints or DNA samples are unequivocal proof of guilt. False statements by eyewitnesses led the five suspects in the 1989 Central Park Jogger case to falsely confess about causing grievous bodily harm and committing rape.

The ‘Neutral Lie’

Moreover, even a “neutral” lie, which does not implicate the suspect, such as an equivocation about fingerprints found at the scene, without explicitly stating the fingerprints belong to the suspects, may propel, counter-intuitively, false confessions.

Saul M. Kassin, a professor of psychology at John Jay College of Criminal Justice, provides examples of innocent suspects who confessed to murder after hours of interrogation, and after being told that a DNA sample had been taken from the scene, out of certainty that the DNA test would prove their innocence.

In a laboratory study conducted by Jennifer T. Perillo and Saul M. Kassin, approximately 27 percent of the innocent participants admitted having cheated during an examination. All the confessors admitted after being told that a camera placed in an adjacent room had filmed the course of the examination, and that a video technician would retrieve the data from the hard disk in a few hours. Most of the confessors assumed that their innocence would soon become apparent anyway.

The trust they demonstrate in clearing their name is compatible with a more general phenomenon of innocent suspects who mistakenly do not treat an out-of-court confession as significant.

The studies mentioned above show that the lie’s net catches a considerable number of innocent individuals.

If intelligent participants in these laboratory studies admitted so easily to have cheated, one can only imagine the potential effect of lies during the pressures of police interrogations, and let alone during custodial interrogations, on suspects’ inclination to confess.

From this it’s hard not to conclude that lies harm suspects’ ability to make decisions by distorting the information at their disposal and by changing their cost-benefit evaluation of a confession.

Silence is a Defense Strategy 

Silence in the face of weak evidence is a reasonable defense strategy given that innocent suspects might implicate themselves if they choose to make a statement because of their proximity to the event or because of forgetfulness, lack of concentration, and stress. In contrast, when suspects are “persuaded” that the incriminating evidence against them is strong, abandoning silence can be a logical step, based on the assumption that without providing their own version of events to counter the evidence there is no chance of avoiding being brought to justice.

Rinat Kitai-Sangero

Rinat Kitai-Sangero

Although interrogators are under no obligation to disclose incriminating evidence to suspects, police interrogators’ falsehoods not only deprive suspects of the possibility of addressing the true incriminating evidence, but also force them to shape a defense to rebut fake evidence, and push them to conclude there is no point in denying guilt or maintaining silence.

The constitutional protections of Miranda ought to extend the bar to the use of lies concerning incriminating evidence against suspects. Such lies clearly violate the Fifth Amendment right to remain silent.

Rinat Kitai-Sangero is a professor at the College of Law & Business, Israel, where she teaches criminal procedure and criminal law. This op-ed article is based on “Extending Miranda: Prohibition on Police Lies Regarding the Incriminating Evidence”, which was published in 54 San Diego Law review 611 (2017).

[i] Meghan Morris, The Decision Zone: The New Stage of Interrogation Created by Berghuis v. Thompkins, 39 Am. J. Crim. L. 271 (2012) (referring in footnote 101 to Fred E. Inbau et al., Criminal Interrogation and Confessions 290-292 (4th ed. 2004) and to Charles E. O’hara & Gregory L. O’hara, Fundamentals of Criminal Investigation 142-44 (6th ed. 1994)

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