Previously on Officer.com…
In an article titled Training Cops to Lie - PT 1 (web link below), I intended to begin a series on the legal and ethical parameters of police deception in investigating criminal activity.
In the melee of comments generated by that article, some readers expressed outrage about any police deception. That this would mean the elimination of all undercover activity to investigate drug trafficking, child prostitution or pornography, terrorism, or any other criminal activity engaged in secretly was not discussed by these outraged readers - but other readers noted the point.
One rationale of the outraged readers was that the Criminal Justice System, including trial, is a search for the truth and that any deception employed during that search would subvert the entire process.
Before I can proceed with my intended series some misperceptions might need to be cleared up.
A criminal trial is not about the truth... just ask defense attorneys and the courts.
A web site to help criminal defense attorneys with jury instructions asserts,
It is important for the jury instructions to assure the jurors understand that... the question in a criminal case is not whether the defendant committed the acts of which he is accused. ...In other words, the instructions should avoid language that perpetuates the juror's intuitive inclination to make the trial a search for the truth. (Web link below.)
The issue, according to defense attorneys, is whether the prosecution has proven the elements of the crime(s) charged beyond a reasonable doubt.
As a former state and federal prosecutor, I do not disagree that is the issue under the current rules of our criminal justice system. And defense attorneys do not want that system to even suggest to jurors that the trial or their job has anything to do with seeking, finding or determining the truth.
Moreover, some courts are agreeing that any suggestion to jurors that a criminal trial is about the truth is improper. (See web link to Second Circuit ruling, which joins other courts.)
A criminal trial is not about the truth... according to the Rules
A story I heard long enough ago that I can't attribute it aptly demonstrates one of the dilemmas officers face. It goes like this.
A retired officer is called to testify in a case he'd investigated before he retired. The clerk administers the oath,
Do you swear to tell the truth, the whole truth and nothing but the truth?
Standing with his right hand raised in solemn dignity, the retired officer pauses thoughtfully, then replies,
This gets everyone’s attention. The Judge clears her throat and says,
Excuse me, Officer, perhaps I misunderstood. What did you say?
The retired officer replies,
With all due respect, Your Honor. I've never been allowed to tell the whole truth in a criminal case before. Have the rules changed?
The rules haven't changed. Most officers know that the Rules of Evidence prohibit them from telling the whole truth and if they were to tell the whole truth, even inadvertently, the Judge might declare a mistrial.
Most police officers also know that they are expected to swear to tell the whole truth anyway. And so we see a reader commenting to Training Cops to Lie - PT 2 (web link below) that every time he or she swears to tell the whole truth, he or she is lying - and the system not only expects but demands this.
What are some of these rules? There's Federal Evidence Rule 404(b), which most states have adopted in very similar form. It provides that jurors are prohibited from hearing about any other bad acts or conduct of the defendant other than those for which he is on trial. There are exceptions but the prosecutor has to brief the matter beforehand and have the judge rule on it.
This means a jury doesn't get to know the defendant was out on parole following a kidnapping, torture and rape conviction in a subsequent trial for child sexual abuse.