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.
It also means that if a defense attorney suggests on cross examination that it was unfair of the arresting officer to not allow the defendant to practice the Field Sobriety Tests even once before deciding he'd failed them and putting the defendant in jail when the officer got to practice administering the tests numerous times before the officer was tested, the officer may not truthfully reply that the defendant practiced at least twice when he was previously arrested and convicted of drunk driving.
Another rule is the exclusionary rule. Established by the Supreme Court in Weeks v. United States (web link below) it was intended to deter police misconduct by holding that evidence seized in violation of the Constitution is inadmissible at trial. The Court subsequently made the rule binding on the states in Mapp v. Ohio (web link below).
Deterring police misconduct is a good thing. While some argued there were other means for doing that rather than giving a criminal defendant a windfall of suppressing relevant, truthful incriminating evidence (civil lawsuits, job actions, etc.), the Supreme Court decided such deterrence was worth sacrificing the truth.
In United States v. Leon (web link below), however, the Supreme Court decided the exclusionary rule was being used by defense attorneys in a way the Court never intended after a U.S. District Court suppressed drugs found in Leon’s apartment pursuant to a warrant. Another judge subsequently ruled the issuing magistrate had made an error. There was no suggestion of police misconduct.
The Supreme Court could find little benefit in applying the exclusionary rule where there has been good-faith police reliance on an invalid warrant. "The exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates." The Court considered it unlikely that the rule could have much deterrent effect on the actions of truly neutral magistrates with whom a higher judge later disagrees.
The good faith exception makes good sense. But, unlike the exclusionary rule, the Supreme Court has not made it applicable to the states.
This means that in states that have not adopted the good faith exception, such as Alaska when this author was a state prosecutor there, police can do everything right in the investigation, obtain a warrant, and, if a trial judge later disagrees with the magistrate's finding of probable cause, all of the relevant, truthful evidence seized pursuant to that warrant is suppressed.
Permit two points regarding this last suppression of the truth:
- Magistrates and judges are lawyers and you can't get two lawyers to agree to kill a rat in bath tub. Why do you think the Supreme Court, confronted with the same facts and case law and lots of time and briefings and arguments of counsel, disagrees 5 to 4 on matters that officers may have only moments to decide?
- What police misconduct is deterred in this instance? Obtaining a warrant from a neutral magistrate?
It is not the intent of this article to take issue with defense attorneys, the rules and court decisions that insist a criminal trial is not about the truth, although the author encourages readers to do just that. (Okay, I admit taking issue with states not adopting a good faith exception to the exclusionary rule)
Rather, the intent is to clarify misperceptions that a criminal trial in our justice system as it now stands is intended to determine the truth of whether a defendant committed the crimes charged.
Next on Officer.com...
Stay tuned next month as we return to the legal and ethical parameters of police deception. Unlike one reader's comment to Training Cops to Lie - PT 2 that anything goes on the street as long as you tell the truth in the courtroom, it's much more complicated. Officers need to understand the ethical and legal parameters and the possible attendant consequences to using deception to investigate criminal activity.
What is considered legal can depend as much on the jurisdiction in which you investigate crime as it can on the investigative tactics used. And what is considered ethical can depend on whose ox is being gored.
Keep those reader comments coming.