Previously on Officer.com...
This is the fifth in a series of articles about police deception in the investigation of criminal activity. Web links to the previous articles are listed below. In this article, we'll look at:
- Whether police and the public agree that the legal use of deception is also ethical, and
- If iti s not, which should be the guiding principle for cops.
Is lying for justice just?
Bring to justice means to cause someone to come to court for trial or to receive punishment for one's misdeeds.
Do justice means to act or treat justly or fairly. (See web link to www.dictionary.com.)
If justice isn't the same thing in the above examples, should officers work to bring to justice or do justice?
I sometimes start a training I do on ethics and law enforcement's use of deception with the following apocryphal tale.
Not so long ago when Xerox machines were a new and wondrous invention, two officers were interviewing a suspect who persisted in denying any involvement in a crime. Being highly intelligent, the two officers came up with a brilliant plan.
They told the not-so-intelligent suspect that the station's Xerox machine was a lie detector. One of the officers put a metal colander on the suspect's head and wired it to the copy machine. Unbeknownst to the suspect, the other officer had placed a sheet of paper beneath the copy lid that read, "HE'S LYING!"
Every time the suspect gave an answer the officers didn't believe, the machine spewed out, "HE'S LYING!" Overwhelmed by this weight of scientific evidence, the suspect confessed.
(See web link to Next Case on the Court Colander.)
Then I ask my audiences,
Good investigative strategy or illegal use of police deception - that is, will a court uphold it?
I take a show of hands. Then I ask,
Good investigative strategy or unethical use of police deception - that is, are you comfortable with the tactic?
Participants disagree on the answers. Some think it is good investigative strategy the court will uphold. Others think it is good strategy but the court will find the confession was involuntary and suppress it. Still others are not comfortable with the tactic and begin questioning the circumstances:
- How long was the suspect interrogated?
- What was the suspect's IQ level?
- Was the suspect allowed any breaks?
- What were the tones and demeanors of the officers?
Then I ask the participants if they think their community would be comfortable with the deception used? And, do they think their community's comfort might depend on whether the deception was used on a guilty suspect or a suspect that turned out to be innocent?
This last question asks whether the ends justifies the means. It's not supposed to when it comes to ethics. Yet most participants in my training believe the public's response to police deception very much depends on whether it successfully captures a bad guy or is used on someone who turns out to be innocent, i.e., someone citizens can relate to so that they can imagine being the target of such deception.
A Case in Point
On July 27, 1996, a bomb exploded at the Olympics in Atlanta, killing one woman and injuring 111 other people. The detonation was heard round the world. Pressure to solve the crime was global.
Attention focused on Richard Jewell, a security guard who found the bomb before it detonated and began evacuating people. Behavioral experts thought Jewell might have arranged the incident so that he could be a hero. Agents wanted to talk to him.
In consultation with Atlanta federal prosecutors, it was decided that Jewell did not need to be Mirandized. This was based on case law holding that a person speaking voluntarily to federal investigators, who is not in custody, need not be read his rights.
The behavioral guys and agents came up with the ruse of telling Jewell, a police wannabe, that they'd like his help in making a training film about bomb detection. It worked. Jewell came to them and was talking. Then things got FUBAR.
Well into the interview, FBI Director Louis Freeh, in Washington and not fully aware of what was going on, ordered Jewell to be Mirandized. He was - but still under the ruse that it was part of the training video. Apparently that deception didn't fool Jewell because he lawyered up and the interview ended.
- If this had resulted in Jewell truthfully confessing, what do you think would have happened?
- If a Miranda warning is not required, is it illegal to give it under deceptive circumstances?
- Is it unethical?
It turned out Jewell wasn't the bomber. Eric Rudolph was and he managed to elude authorities for years.
In the meantime, the media had a feeding frenzy - first on Jewell as a suspect, then on the FBI when it turned out Jewell was innocent. A firestorm of controversy and investigations followed within the FBI and the Justice Department. Congressional hearings were held amidst Congressional and public outrage.
- One agent suspended and possibly career-halting censure letters for two others.
- An FBI Director who did not take responsibility for his uninformed actions.
- An office that greeted the sanctioned officers with a standing ovation when they returned to the job.
- A public that still has not examined how they might have responded if Jewell had been the murderous bomber.
- A system of law enforcement agencies and prosecutors' offices that still haven't sorted out for cops on the frontline the potential gap between the legal and ethical use of deception and the possible consequences of getting it legally right but ethically wrong - at least in the public's perception.
There's another upshot. When I present the Jewell situation to officers across the country and ask them,
If you were involved in a high-profile, politically charged investigation and made a mistake after getting conflicting information from your prosecutor and a supervisor who doesn't know what's going on, do you think your department would stand by you?
Very few hands go up.
When I ask how many of their departments have provided training on the legal and ethical parameters of investigative deception, fewer hands go up. When I ask how many of their departments have any policies and procedures on the use of investigative deception, even fewer hands go up.
Something needs to be done. Stay tuned for future articles in which we look at
- What ARE the ethical rules for police deception?
- The effects investigative deception can have on the officers using it - and the public as they perceive it.
- What police leadership needs to be doing to prepare and protect frontline cops in this critical, complicated, provocative, high stakes area of policing.