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?
- Do you think that you or your work has been affected by these deceptions?
Third, the profession should address whether to develop policies and procedures for officers' use of deception. Law enforcement has seen the need for such guidelines in the use of force and high-speed pursuits. The stakes for officers, departments and the public can be just as high in this arena.
Such procedures might consider:
- Should investigative lies be used only if other means of gathering evidence have been unsuccessful or the officer can articulate that such means would be futile?
- Should officers have to obtain approval or a second opinion before using deception?
- Should the procedures be the same for deception used with a suspect as a witness?
- Should the seriousness of the offense or the weight of other evidence be factors?
- Should officers have to complete training before being authorized to use deception?
- If taping of suspect interviews is not already required, should it be whenever deception is used?
The IACP has a model policy for interrogating suspects. It contains no mention of or guidelines for the use of deception; nor does its Concepts and Issues Paper supporting the policy. This is especially surprising since the supporting paper discusses the constitutional need for any suspect statement to be voluntary and courts have found that some police deception may render a confession involuntary. A lack of guidelines, policies or procedures may provide additional fodder for a defense attorney cross examining an investigator who used deception.
Policies and procedures should be broad enough to provide officers with lawful flexibility and discretion in fighting crime but specific enough to ensure that, if they are followed, officers can expect the full support of their departments.
Fourth, reach out to the public and the media. Address this murky area in Citizen Police Academies. In trainings I've done on police deception that included civilian participants, many commented they had no idea what tough decisions the police had to make about investigative deception. These members of the public often expressed surprise at how much more stringent officers were in judging what was acceptable than they were.
Offer a workshop to local media. Call it, You Get to Be the Detective and the Judge! Give them case scenarios like those addressed in previous articles and ask them what they think is ethical and legal, what they think the public would think, what they think the court ruled.
Finally, Departments Must Support Officers
In a web cast on this topic, officers across the nation were asked,
If you were investigating a serious, high profile case and you made an ethically and legally tough decision to use an investigative lie that the media and public had a strong negative reaction to afterwards - do you believe your department's leadership would support you?
Nearly two out of three - or 64% of respondents - believed their departments would not support them. (Web link below to archived web cast.)
This leads to a final thing the profession must do - support officers in this complex arena. Oscar Wilde said,
The truth is rarely pure and never simple.
If an officer has followed procedures, or in their absence has made a tough but ethical decision, and the media, the public or a court later disagree on its legality, departments should support the officer. Remember, courts don't even agree on this stuff and they have attorneys and law clerks briefing it for them before they have to decide.
We can acknowledge the court's or public's opinion, or we can respect the disagreement - and still support the officer's decision. That support must include training officers before they are confronted with these complex decisions and their high stakes consequences. Those officers in the public and legal crossfire deserve no less.