You tell Miller you believe he committed the crime and then you present yourself as a friend who wants to help if he'll just unburden himself. You state several times that Miller is not a criminal who should be punished but a sick individual who should receive help. One hour into the interview Miller confesses, then collapses, and is taken to the hospital.
This is a real case - Miller v. Fenton, 796 F.2d 598 (3rd Cir. 1986). Do you think the brutal murder and the investigation were getting any media attention and public interest?
Before trial, Miller moved to suppress his confession. The defense argued that the detective's method of interrogation constituted psychological manipulation of such magnitude that it rendered his confession involuntary. The trial court denied the defense motion and Miller was convicted at a trial in which his confession was admitted.
Miller appealed his conviction. A 3-judge state appellate court unanimously reversed the conviction. Based on the same facts, they ruled the detective engaged in deceptive coercion that shocked the conscience and violated due process.
End of story? Not yet. The state supreme court reinstated the conviction - but only by the hair's breadth of a 4:3 split decision. After that, Miller took his appeal through federal district court and the United States Supreme Court, and had his conviction affirmed on procedural grounds with neither federal court addressing whether the police conduct was unlawfully deceptive.
The moral of this agonizingly long story? Courts are judges, judges are lawyers, and
You can't get two lawyers to agree to kill a rat in a bathtub. - Karl S. Johnstone, Superior Court Judge, Retired.
This is the tangled web officers must navigate every day. A web that even judges on the same court, looking at the same facts and applying the same law - with the benefit of briefs, the arguments of counsel and the assistance of law clerks - disagree on.
And what are the possible consequences for officers if they get it "wrong" (that is, a court later disagrees with them) in the crucible of a high profile investigation of a horrific crime?
- The confession may be suppressed, along with any fruits of the poisonous tree.
- The case may be dismissed - if there is insufficient evidence without the suppressed evidence.
- The officer and, by extension, the entire department may face public condemnation and the censure of the court in a written opinion. (Recall that the 3-judge appellate court in Miller wrote that the police deception shocked the conscience.)
- If the case is high profile and politically hot enough, officers may face job discipline over their use of deception, even if they cleared it with the local prosecutor ahead of time. (Just ask the FBI agents who questioned Richard Jewel in the Atlanta Olympics bombing case. See, web link below.)
So, what can and should the profession do to prepare officers for this tangled web with its critical consequences? Stay tuned for Training Cops to Lie - Part 2, where we'll look at:
- More police deception scenarios.
- The psychological effect on officers of lying.
- A training model for the use of police deception.
- Policies and procedures for employing police deception.
- The response of police leadership to the use of police deception.