Training Cops in Legal Deception

Previously on www.officer.com

This is the 8th in a series of articles on police use of deception to investigate crime. Web links to the previous articles are listed below. We've looked at:

• What's at stake for officers, their departments, the public and the criminal justice system when law enforcement uses such deception;
• Legal parameters based on court decisions;
• Ethical line drawing based on moral philosophy and the public's concerns;
• Use of deception in new frontiers such as gathering DNA evidence;
• The effect of using deception on officers themselves.

Here's what we've seen so far:

• The courts, the public and officers themselves disagree on the legal and ethical use of police deception.
• Using deception over time can have a slippery slope effect - the more it's used, the easier it becomes to use it and the less alternatives are considered or used.
• Officers have used what they believed was legal and ethical deception only to see:
• Serious convictions reversed
• The public and media outraged
• Career ending sanctions and discipline.

What We Must Ask

With all that is at stake for individual officers, departments, and the public in the use of investigative lies to apprehend criminals and with the courts not even agreeing what police conduct is lawful in this area - are we properly preparing officers to lie lawfully?

Are we properly preparing officers for the psychological slippery slope that lying as a regular part of the job can place them on?

How many departments provide adequate, if any, training in this high stakes area of police work?

How many departments or agencies have any guiding policies or procedures?

What We Must Do

First and foremost, we must train officers in the ethical and lawful use of police deception. We must train them on Supreme Court case law and the controlling cases and laws of their jurisdiction. Previous articles in this series just begin to scratch that surface. Despite the grim picture of courts disagreeing, there are basic agreements and parameters amongst courts that can provide guidance and these cases can be woven into scenario-based training.

Next, we must provide officers scenario-based training in the use of such deception. These scenarios must:

• Develop officers' knowledge and mastery of the circumstances courts look at to determine whether police deception violates due process.
• Lead officers to devise lawful deceptions and to apply them non-coercively in various circumstances.
• Increasingly raise the stakes, make officers aware of the potentially corrosive effect of regularly lying, and give them specific strategies for protecting against such corrosive effect.
• Include cross examination at trial on the use of deception.

This training need is greatest for veteran officers, who are most likely to use deception in investigations and are most subject to its cumulative effect. A local prosecutor can provide controlling case law from the department's jurisdiction.

One possible way to monitor the potential corrosive effect of using deception over time might be to have officers self-administer a survey of that use and discuss it as part of a regular departmental evaluation process. Such survey questions might include:

• What kinds of deceptions do you use as part of your police work?
• How often do you use each kind?
• How do you decide if a deception is ethical?
• Is legal?
• Have you used deception in an investigation that a prosecutor later decided wasn't legal and didn't take the case or that a court suppressed evidence based on?
• What was the reasoning for their decision?
• Do you agree now?
• Can you think of any problems that might result from using deception in an investigation which the court concludes is legal but the public thinks is unfair or unethical?
• What?
• Do you think that you or your work has been affected by these deceptions?
• How?