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.