by James Duane
One of the worst things about talking to the police, as we will see, is the fact that our legal system permits and even encourages the police to lie to you in ways that are absolutely shocking, and to use all sorts of grotesque deceptions if that is what it takes to get you to waive your right to remain silent. The police are well aware that many of us harbor the mistaken assumption that they are even our “friends.” But the truth is that you cannot safely trust a single thing police officers say when they are trying to get you to answer their questions.
I am not claiming that police officers are, by and large, generally dishonest individuals. I am not saying anything about their personality or their general morality. Certainly there are some who are less honest than most, but that is probably no more true of police officers than it is of other professions. Then why do I say that you cannot believe one word of what they tell you? Because the police are only doing what they were trained to do, and what they are constantly encouraged to do by the courts. They are only following orders, because that is the way our corrupt legal system is designed to work.
Far too many ignorant American citizens naturally assume that there must be some kind of legal oversight of police interrogations. After all, we all know that car salespeople and even shoe salespeople are obligated to be straight with you when they are trying to enter into a transaction involving only money, and they can be prosecuted or sued if they are caught using intentional deception to defraud you into giving up a mere twenty dollars. So it stands to reason, innocent people frequently assume, that there must be some similar rules restricting the ability of the police to trick you into giving up your most precious constitutional rights. I would not blame you for thinking such a thing, but you would be dead wrong.
The rampant use of dishonesty and deception by the police is a serious threat to the administration of justice in two different ways. First of all, it is of course one of the most powerful ways to persuade even innocent people to make a false confession, as we shall see. But it also has a more insidious effect as well, because even if the police do not use deception to persuade you to make an outright confession, they might persuade you to give them a little bit of information that can later be used against you in front of a jury.
Many years ago, when the Supreme Court of the United States was much more liberal than it is today, it stated that there are certain forms of police deception so extreme that they are over the line and might be cause for preventing the police from using against you anything you said after you were so deceived.36 But the Supreme Court never clearly defined what those limits might be and has largely left it to the lower courts to work out how much police dishonesty is “too much” and would preclude the courts from using your admissions against you. And since those vague constitutional protections have been largely left in the hands of the lower courts, they have been so severely watered down that police officers can lie to you concerning just about every aspect of the investigation, and do so without corrupting the admissibility of your testimony.
They will lie to you about what crime they are actually investigating, whether they regard you as a suspect, whether they plan to prosecute you, what evidence they have against you, whether your answers may help you, whether your statements are off the record, and whether the other witnesses have agreed to talk to them—even about what those witnesses have or have not said.37 That is just a partial list. The bottom line is plain: you cannot safely trust a single word that you hear from the mouth of a police officer who is trying to get you to talk. The police may even lie to you about whether your loved ones are dead or alive: In 2004, Illinois police officers called to investigate the disappearance of a three-year-old girl mistakenly thought her father might be a suspect. Under the pretense that they were looking for the parents’ help in locating the girl, they invited the parents to the station and questioned them for an hour before they finally told the parents that her dead body had already been found, even before they asked the parents to come down to the station.38 If you are being questioned by the police and trying to decide what your next move ought to be, you need to proceed on the assumption that everything you think you know about the investigation is a lie, and that you know absolutely nothing for sure about what is going on outside that room.
Let me give you a few examples of how easily the police can use outrageous forms of deception to get almost anyone, including innocent people, to make an outright confession—or at least to give the police a statement that can be used to help convict them. In 2008, just two days after her infant son suffocated, Nga Truong, a sixteen-year old girl, was interrogated for two hours by police officers.39 She was young and unusually vulnerable, having recently experienced both the birth and the death of her infant son. At first, like most innocent people, she denied her guilt repeatedly. And the police officers, as it turned out, actually had no evidence that anyone had killed her child, or that his death was the result of anything other than natural causes. But the officers aggressively questioned her for hours, intentionally misrepresenting that they could prove someone had killed him and she had probably done it.
In an effort to break her down and talk her into admitting that she had smothered her son, the police lied to her and told her that they wanted to “help her,” and that if she confessed, they would keep her case “in the juvenile system, where punishment is minimal, if any—let’s say there is any.” They made an explicit promise that she would face nothing more than “minimal” punishment, even though they never had such an intention. When she finally broke down sobbing and admitted that she had killed her son, she was promptly arrested and charged as an adult with murder. She was held in jail for nearly three years before the charges were dropped, based on a lack of evidence of wrongdoing and a judge’s conclusion that her confession had been the product of illegal interrogation. (Unlike most of the other cases to follow, she was one of the lucky ones, at least in the sense that her confession was thrown out of court before she was convicted—although not until after she had spent three years in jail.)
One of the worst forms of deception involves implied promises that statements will not be used against the suspects, or that they will not be prosecuted, because such promises obviously carry the greatest potential for persuading even an innocent person to “to tell the police what they want to hear” if that seems to be the only way to bring a lengthy interrogation to an end. In Massachusetts, one police officer obtained a statement from a suspect after assuring him that the conversation would be “off the record”—and later admitted at his trial that it was a “lie.”40 In Texas, the police got a suspect to talk after falsely promising him that they would be using him “just [as] a witness” in the prosecution of three others who were present at a murder; he was later convicted and sentenced to life in prison.41 In another Massachusetts case, a suspect agreed to let FBI agents record him making statements that were later used against him, even though those agents had given him promises of “immunity”—but those promises were later broken by the agents and by the Department of Justice. The United States Court of Appeals concluded that was not a problem, because a promise of immunity is no good unless it is authorized by an Assistant United States Attorney.42 In New York, a confession made after nine hours of interrogation was held to be admissible even if “the police misled him by informing him that he was the least culpable of the suspects and that he would be released if he cooperated.”43 The appellate courts concluded that such promises, even if they were made, were just part of the game that we encourage the police to play. In all these cases, the courts allowed individuals to be convicted in part on the basis of statements they made after the police promised those statements would not be used against them. Is it any wonder that such forms of deception have sometimes been used to deceive even innocent people into thinking that they might as well say whatever the police obviously want to hear?
In Mississippi, police officers told a suspect that he might be able to “get it straight” and be out of prison in ti
me to see his four-year-old daughter’s first day of school, if he confessed. The court said this offer, because of its seeming specificity, was “more troubling” than those in most similar cases, in which the officer typically makes nothing more than a general promise to bring the suspect’s cooperation to the attention of the judge. But the federal trial judge, and later the court of appeals, overlooked that deception because they felt the defendant should have known from prior experience with the criminal justice system that the police cannot be trusted, and that “there were limits on the authority of detectives to bring lesser charges or offer a shortened sentence.”44 But that did not stop those officers from lying to the suspect and using his trust to their advantage: after he agreed to talk, he was convicted and sentenced to over eighty years in federal prison! It would have been much more honest if the officers had told him that he might get out in time to walk his great-granddaughter to her first day of school.
In a California case, a sixteen-year-old defendant agreed to talk to the police only after one of them told him, “The fact is this, Freddy, is I can’t help you unless you talk to me.” He then gave a statement that was used to help convict him, and he was sentenced to life in prison without any possibility of parole. Of course his lawyer argued that he had been deceived and tricked into making this statement, but the California appeals court disagreed, stating that the officer had “offered no leniency in exchange for a confession.”45 That reasoning by the court was no less deceptive than the lie told by the police. Of course the officer was offering leniency in exchange for a confession; what else would possibly be inferred from a police officer telling a young suspect that he wants to “help” that frightened young man? That is exactly what the officer meant to imply, and exactly how he knew his offer of help would be interpreted by the suspect. It is scandalous that the California court would pretend it could not see such an obvious truth.
In Texas, a police officer deceived a murder suspect into giving up his right to remain silent with a similar series of lies. After asking the young man about his age, he told the suspect that he had his “whole life ahead of him,” as if to imply that the suspect had the potential to put this matter somehow behind him, even though the officer later admitted he knew that the defendant was going to be charged with capital murder and might be sentenced to death.46 In the same interrogation, when discussing the fact that the young man had been using crack, the police officer lied by indicating that an unplanned shooting might not even be a criminal offense when he told the suspect: “You know what[,] if this just happened when you, you know[,] you might [have] been doing something you didn’t realize what you were doing, that’s fine! There’s nothing wrong with that.” The clear and intended implication was that there might be no criminal liability for a spontaneous act by someone high on crack, when the officer knew that was an absolute lie. The defendant was convicted and sentenced to life in prison.
In Illinois, a criminal suspect named Calvin Montgomery was tricked into talking to federal agents with a similar deception.47 After he exhibited some initial reluctance to talk to the agents at all, they deceived him into giving up his rights by making a general offer of some sort of unspecified “help.” When Montgomery pleaded with the agent, “Can’t you just help me?” the agent replied, “I’m helping you more than you know.” After Montgomery agreed to talk and gave information that would be used to help convict him, he was then prosecuted, and the government tried to use that statement against him. When the federal judge asked what the agent meant by that promise of help, the agent later testified that “he meant to say that he was helping Montgomery by bringing charges against him. If Montgomery took advantage of the substance abuse treatment and vocational training available to him in prison, he would be able to turn his life around.” But he never explained that to the suspect, of course, who obviously had no idea that the agent was actually offering to help by putting him in prison. In the same case, the agent also told the defendant, “Well, if you get time, you’re not going to get [ten] years.” That promise, as it turned out, was true—in a perverse way—because Montgomery was eventually convicted and sentenced to more than fifteen years in prison! But that fact did not trouble the federal courts either.
As we can see from all these cases, a promise from the police to give you “help” is the most useless and worthless promise you will ever receive from anyone in your life, and the courts will laugh and look the other way when the police walk away from that promise without giving you the slightest help in any way. In perhaps the most extreme case of all, one man facing charges of capital murder agreed to talk to the police, after they told him that it “would be better for him” to cooperate with the authorities. He took their word for it, gave them some information that was later used to prosecute and convict him, and he was sentenced to death!48 It is difficult for any open-minded observer to see what kind of “help” he received in exchange for his cooperation with the police. If the police “help you out” by helping you get the death penalty, you might fairly wonder: What is the worse alternative if I don’t agree to talk?
One of the most egregious cases you could possibly imagine was the outrageous deception used by the police against a seventeen-year-old suspect named Salvador Rubio.49 He was interrogated by the police in a murder case in which he faced a mandatory minimum prison sentence of forty-five years; in fact, he was ultimately convicted of first-degree murder and sentenced to sixty years. His lawyers argued on appeal that he had been tricked into making statements that were used to help convict him, because the police told him that the sentencing judge would “hammer” a suspect who falsely denied his guilt. They also told him that he still had the chance to “make it right,” and that the only reason he should not worry about making it right “is if [he] went out there planning on doing this, planning on killing that guy,” as if a lack of premeditation might excuse everything. The officer went on to give Rubio false and worthless legal advice: “If you went out there and this was something that happened spur of the moment, you didn’t expect this guy to come out, things got heated, whatever happened[,] happened, and this is the way it ended up, this is the time to make it right. It’s not later when you don’t have the chance; okay?” Again, the unambiguous and intentional implication was that Rubio could possibly escape serious criminal liability if he got caught up in an unexpected encounter without premeditation, on the spur of the moment. That was a lie, and the police knew it.
But they were not done yet; the officer also told Rubio: “I don’t think . . . you’re a murderer, man. People who murder people sit out there and plan stuff out and they make their moves and they do everything just perfectly and the whole thing, that’s not what this was, this was a sporadic action that happened because a friend was in trouble. I can understand helping a friend out and I can understand that a person gets scared and does something he shouldn’t do but for God sakes, . . . don’t make this look to be anything more than it is; okay.” Just in case Rubio still didn’t get the point, the cop added: “But what I’m saying is you’re a young man, you got a long life ahead of you and this is something that you can get over; okay? But as long as you’re uncooperative, it’s not going to look good. If you’re remorseful and you’re honest about it, that’s the part that looks good, that’s what I’m saying, you got a good chance of getting by. . . . Put this thing behind you, get it done with, get it over with, explain to us in your own words what happened. The sooner you get this over with the sooner you get on with your life. This is not the end of your life. This is the end of a bad part of your life.”
Let’s be honest. There is no room for any reasonable disagreement. These statements by the officer were, beyond a shadow of a doubt, plainly intended to convey to Rubio that he could possibly escape serious criminal liability if he cooperated and confessed that he shot someone without premeditation in an unplanned and impulsive act, and could then “make it right” and “get on with his life.” But after he was convicted and sentenced to sixty
years in prison, the Illinois appellate court concluded that the police had not engaged in any improper deception, and they had not broken any implied promises that they made to Salvador Rubio. In the opinion of the Illinois appellate court, “the detectives did, as defendant notes, consistently contrast [his] alleged actions with more serious crimes, and they did offer that his actions were understandable. However, their comments were limited to moral rationalizations for defendant’s alleged acts—they made no comment on the legal implications of the shooting.” (Emphasis mine.) In other words, according to the Illinois courts, it should have been obvious to this young man that the police were not giving him any legal advice (as he might have naturally expected from a police officer), but were simply engaging with him, as he should have realized, in a little bit of banter involving moral philosophy. What pure nonsense.
I do not know whether Salvador Rubio was guilty or innocent, but it is absolutely disgraceful that our nation allowed a seventeen-year-old teenager to be sentenced for sixty years on the basis of tortured judicial logic and evidence that was extracted from a defendant in exchange for promises such as these. Every time I read one of these stories, I cannot help but wonder: How would these judges feel if one of their own teenage children had been tricked into surrendering sixty years of his life? You know the answer, and so do I. They would be outraged. But they don’t get too upset when it happens to somebody else’s child.
It is possible, although the matter seems debatable, that we could justify all these outrageous forms of deception by the police if there were some way to be sure that all of the people who waive the right to remain silent are guilty. After all, the cynical observer might be tempted to reply, “If we know that they have confessed, that means they are guilty, and so this is just good police work.” But that is far too simplistic, for two reasons. First, not everybody who makes an outright confession is in fact guilty, as I have demonstrated, and some of them will later be proved innocent. Besides, not everyone who is tricked into waiving the right to remain silent is in fact making a “confession” of guilt; many of the suspects in the cases I have described here denied their guilt but simply made a partial admission of some fact that was used to help convict them.
