When can the police deceive, and when do law enforcement lies go too far? Alex Spiro explores under what circumstances the police are permitted to lie to obtain information or a confession. Alex lays out some choice cases and explains the surprising truth when it comes to police deception.
Alex Spiro is a litigation partner at Quinn Emanuel based in New York. Spiro is a former Manhattan prosecutor and now serves as Chairman of the Board of Harvard's criminal justice initiative—The Fair Punishment Project.
So law enforcement contacts you. You’re down at the station. You’re about to speak to detectives or agents, something you’ve never done before. So often people ask, can they lie to me? Can they deceive me? Can they mislead me? Can they trick me? My name is Alex Spiro. I’m a partner at Quinn Emanuel Urquhart & Sullivan, and I’m here to talk to you today about why and under what circumstances law enforcement can lie to you.
The question here today is can law enforcement lie to a suspect? And the short answer is yes they can. The question at a deeper level is under what circumstances and when? The truth is you do have rights. You don’t have to talk to the police at all. If you call the police or they call you and you’re not down at the station house, understand that you are not in custody, they do not have to read you Miranda, and your confession or whatever you say to them can be used against you. If you are in custody, they do have to read you Miranda rights, which means you have the right to remain silent. At the end of the day, you can always at any time invoke your right to counsel. Say, “I want to talk to my lawyer.” It doesn’t make you sound guilty; it’s smart. And then they can’t question you anymore.
There is a series of factors that courts look at when deciding whether a police interaction goes too far in the manner in which law enforcement conducts themselves. First, they look at the lie or misleading statement or the deception itself. What kind of lie was it, and how misleading was it? The second thing they do is they look to the conduct that occurred in the interrogation. How long was it? How oppressive was it? Did the suspect get water? Was the suspect allowed to use the bathroom? Then they look at the background and characteristics of the suspect themselves. How old are they? How intelligent are they? How sophisticated are they? Do they have any emotional or mental health issues? Have they been through this process before? And when they look at all of those factors, they consider whether or not the confession or the statement that’s procured is voluntary under the law.
Now, in terms of voluntariness, what we mean is would a person such as this person have potentially confessed falsely? Do all those circumstances lead us to believe that a person of that makeup would have been led to give a false confession? In one case, the police lied about a suspect’s fingerprints being at a crime scene. In another case, they lied about whether or not the defendant who had also been shot would survive on his way to the hospital. Even in the case in which a person is on the way to hospital dying and the police say, “you may not make it, I need to know the truth now!”
These were discrete and clear lies, and yet in both cases the court found that the confessions were voluntary. There’s one case in which an Alaska court found that a confession was involuntary based on psychological tactics that law enforcement used. In that case, they used pretty much every tactic under the book. They even went so far as to tell the suspect that they would be forced by court order to take a polygraph exam and went through what kind of conditions and pressure that they would face. It was only after all of that that an otherwise vulnerable suspect did confess, and the Alaska courts ruled that confession involuntary. Police can lie to you. When they are taking your statement, they can lie to you.
And while sitting at home watching this video you think to yourself, “Why would anyone falsely confess to a crime they didn’t commit?”—it happens. The psychological pressure, the intimidation, it causes people to confess falsely. We know this. We know this because of developments in science. So the bottom line is while you may have the sophistication and education to resist almost any police tactic, others don’t, and anything that you do say, no matter what law enforcement does, is likely admissible against you. Again, my name is Alex Spiro. Thanks for watching TalksOnLaw.