Pardon my limited, Law & Orderesque knowledge here - I imagine this will be a can of corn for the attorneys, but…
…in watching those types of shows, the detectives routinely lie in interrogation rooms to the perp about things - like that there’s evidence that can prove his guilt when there really isn’t, or that the other guy in the other interrogation room just fingered him as the ringleader, etc.
Can one detective come into the room, say they’re with the DA’s office and say they’ll consider a plea, just to get the guy to confess? Is this different from being “undercover” so to speak?
I’m always amazed by the “we have a verbal deal” type bargaining that goes on with the attorneys anyway, so a detective saying “yeah, I’m with the DA’s office, go ahead” doesn’t seem like too much of a stretch to me.
I’m pretty much just bumping this thread; I think it’s an interesting question, and I’d like to get some opinions on this, particularly from Bricker and Gfactor.
This article doesn’t answer your question, but it discusses some of the ethical and legal issues involved in police deception.
I realize that a reference to a cultural phenomenon like NYPD Blue might not be a completely appropriate response in GQ, but it’s all i’ve got…
There was an episode of NYPD Blue (Season 2, IIRC, so that would be about 1994), in which exactly the OP’s scenario happens. Andy Sipowicz borrows a briefcase from John the PA, then puts on his glasses and walks in pretending to be a DA and offering the perp a deal.
The next morning, the actual DA comes to see Sipowicz and gives him shit for what he did, but he also says (not an exact quote, but as close as i can remember), “Luckily for you, the Supreme Court has decided that the use of deception in cases like this is legal, as long as an innocent person would not be harmed by it.”
Now, it’s worth noting that Andy never actually uses the words “I’m the District Attorney”; he just walks in with a briefcase, and when the perp says, “You the DA?” he replies “I’m Sipowicz,” and proceeds to act like the DA.
As i said, not exactly a rock-solid citation, but at the same time i’m willing to bet that cop and legal shows make a point of trying to get details like that correct. I’m also interested in hearing some actual lawyers on this issue.
I’ll go ya one better: What if the cops set up a phony courtroom with a phony judge and a phony DA and fool the suspect and the suspect’s lawyer into thinking they are getting a great plea deal?
I would think that such a confession would be thrown out. Perhaps the problem is that an innocent person might confess to a serious crime if he thinks he’s under a cloud of suspicion and this is the best way out.
In the same way, an innoncent person might confess to a phony DA if he thinks it will settle the case.
To extend this question a bit, what if during the deception the suspect refuses to talk without the plea in writing, and the cop returns with something, the suspect signs and comes clean?
I would think that any kind of misrepresentation by an officer of the court in any such fashion would be a violation of the suspect’s civil rights and would get the case tossed in a heartbeat. There is a world of difference between “Your buddy confessed” and “I’s the DA, would you like to cut a deal.” Besides which, without a lawyer present at the time, I would think that even if the suspect waived his Miranda rights, a good lawyer could get the case and confession tossed on appeal. Then the judge would whack the cops responsible. Then the ACLU would launch a multi-million dollar lawsuit. Not really worth it, IMO.
As a general principle, the government has the burden to prove, by a preponderance of the evidence, that a confession used in evidence was freely and voluntarily given.
Roberts v. Commonwealth, 18 Va. App. 554 (1994). The voluntariness
issue is a question of law.
Without more, an unspecific promise of leniency generally is insufficient to support a finding that the accused’s will was overborne. See Harrison v. Commonwealth, 3 Va. App. 260 (1986). But if a confession is induced by a specific promise of leniency, relating to specific dropped or reduced charges or sentencing recommendations made by the commonwealth, then the confession may be found to be a result of the accused weighing the alternatives and seeking to lessen his criminal exposure by cooperation. See Bailey v. Commonwealth, 20 Va. App. 236 (1995). This bargain is enforceable against the commonwealth. The confession may be admitted, but the commonwealth is bound to honor its promise.
So – if a cop pretends to be a DA, and offers specific promises about charges or sentencing, and thereby induces the accused to confess, the prosecution is likely to be bound by those promises. If the cop says he’s a DA, and simply promises to “go easy” or “remember this cooperation,” then the accused has no remedy.
Hey Bricker, congrats on your SDSAB - I hadn’t noticed that before.
So, it sounds from what you’re saying that if a detective says “confess and you’ll only get x years” the DA’s office will have to honor that. I’ll bet they’d be plenty pissed about it.
But if the detective is vague about it, there’s no legal reason why he/she can’t use this tactic.
I don’t have the definitive answer to that question, but it sounds like the premise for a great David Mamet movie. All you need is some snappy, anachronistic dialogue, a clever-but-unlikely third reel deception, and William H. Macy as the defense counsel. Ed O’Neill plays the judge, of course.
So, let’s say the hypo is a defendant being questioned by a detective posing as the DA who’ll promise leniency if the defendant will just tell him if the stabbing was accidental or on purpose, when in reality they can’t even pin the stabbing on him. The defendant admits that he swung the knife at the guy, but that he was just trying to “cut him up a little bit” and didn’t mean to slash him in the jugular. This statement implicates him in murder. Can that statement be used?
I’d suspect that any statement made to a cop posing as a DA considering a plea offer would be inadmissable, and if I were the defense attorney I would vigorously argue the point. The thing is, if the cop actually was the DA, the statement almost certainly would be inadmissable, as it would be privileged as the result of plea negotiations:
I’d argue that posing as a DA and obtaining what would ordinarily be inadmissable information as the result of a sham plea negotiation would be tantamount to gaining a confession by posing as the defendant’s defense attorney or clergyman. I would be very surprised if the statement was allowed to come in.
