The "L" word
It was the use of the "L" word that did it. If I had titled last month's article Legal Parameters of Strategic Deception, instead of Training Cops to Lie, I doubt there would have been a brouhaha. If you'd like to see a brouhaha, just click on the web link to Part 1, below, and read all the way through the comments at the end of the article.
My intent in Part 1 was to posit that the U.S. Supreme Court has recognized that the duties of law enforcement may require limited, officially sanctioned deception in the course of criminal investigations. United States v. Russell, 411 U.S. 423, 434 (1973). ("Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer.")
Even criminal defense attorneys empathize with this necessity,
I have not read many reported decisions in which the Courts have been enthusiastic about trick, deception, and artifice by law enforcement personnel, but the Courts do understand that in the real word, a world in which crime loves darkness, stealth, and concealment, crime can sometimes only be detected and prosecuted through those same means.
The Supreme Court has referred to these sanctioned ruses as "strategic deception." Illinois v. Perkins, 496 U.S. 292, 297 (1990).
It was also my intent in Part 1, to look at some court decisions on police deception for some legal guidance on a topic so complex and murky that the courts don't even agree.
Then I intended in Part 2, and possibly subsequent articles,
- To look at some scenarios and see if we could apply case law in a way that would help officers in the field ensure they acted legally.
- To raise consciousness about some of the psychological affects of employing deception in the investigation of criminal activity.
- To discuss appropriate training for the use of police deception.
- To consider agency policies and procedures for employing police deception.
- To examine the response of police leadership to the use of police deception.
But use of the "L" word - lie - rather than something like strategic deception, created an uproar that I had neither intended nor anticipated.
Can we face the truth about lying?
I was taken aback by the intensity of negative response to the idea of law enforcement using any deception in investigating criminal activity. Such a posture would eliminate any undercover investigations of drug trafficking, prostitution, pimping, child pornography, public official misconduct, corporate corruption, and an endless list of etceteras. I was chagrined by the notion, as one reader commented, that I had unwittingly provided reactionary "cop bashers with more ammunition."
In retrospect, I'm glad for several reasons that the "L" word set a fire where strategic deception hasn't even have lit a spark.
- If there are reactionaries who are going to blame officers for the balances our courts draw, and not enforce the law if they don't agree with it, I want to know that. And I want prosecutors to know how to voir dire for such people during jury selection on a case in which officers have used legally sanctioned deception.
- Not all the comments were "knee-jerk" or extreme. Some were inquiring citizens and officers with honest concerns about any use of deception. This raises a separate question: Does legal equals ethical? That is, just because the law says police can use deception, should they? And what are some of the consequences officers, prosecutors and the criminal justice system might face if the public doesn't think a legal use of deception was ethical?
- It's been interesting to see the reaction to telling the truth about police lying and the "how" and "why" the system hides behind jargon.
Addressing this latter point first, it was the Supreme Court that coined the phrase strategic deception, in sanctioning some police lying in the investigation of crimes. Did the court hope to thus shroud the bargain they had struck "in the real word, a world in which crime loves darkness, stealth, and concealment, (and) crime can sometimes only be detected and prosecuted through those same means?"