I’m currently reading *Homicide *by David Simon, and got a kick out of his bit on interrogations and the suave conman job cops have to do to get suspects to both acknowledge their rights (to remain silent, to not answer shit, to legal counsel) and immediately give them away. Often by asserting things that are not true, particularly legal-wise ; and preying on the general ignorance of the law in the majority of interviewees.
But it got me thinking, would it be illegal for a cop to pretend to be a lawyer in order to coax a confession out of a suspect ?
Not necessarily impersonating anyone or even claiming outright to be the lawyer, just something like :
I want a lawyer and I refuse to answer questions.
OK, fine. Do you know a lawyer ?
No, but it says here I get to have one.
You do. We’ll call you one.
Cop goes out, another cop puts on a nice suit, a prop briefcase and his best scum-sucking face.
Not only has TV taught me that I should never trust a cop, it has also taught me that once a suspect under arrest utters those magic words, they can no longer be questioned without an actual advocate present–anything after that point would be inadmissible otherwise.
Cops can lie, cheat, act to Academy Award levels, mislead and more ------ but they can’t pretend to be a lawyer, priest, doctor or damn near anything else.
Come to think of it, they can and often do pretend to be things like drug dealers, prostitutes, hitmen, gun runners, etc when undercover. Obviously, this is prior to the arrest and not the same as the OP is asking but it does make me wonder.
Could a LEO go undercover as clergy, an attorney or a doctor?
Normally, certain types of conversations with these people would be privileged, right?
There are two distinct flavors of the right to counsel under the US Constitution. The Fifth Amendment (implicitly) provides a right to counsel during interrogation, though not necessarily at the state’s expense. The Sixth Amendment provides an explicit right to counsel at what SCOTUS calls “each critical stage” of a prosecution. The latter refers to things that happen in the course of the formal prosecution: arraignment, trial, etc. Only the Fifth applies to a jailhouse interrogation.
The Fifth Amendment right to counsel is a bit stronger than the right to remain silent, oddly enough. If you invoke your right to silence the police can ask you if you really mean it or stick you in a cell for a while and try questioning you again. They can even stop questioning you about the original offense and start asking you about another one (assuming you are suspected of two).
Conversely, invocation of the Fifth Amendment right to counsel must be “scrupulously” heeded; the police can’t ask you anything else until you have consulted with a lawyer. The case law probably doesn’t address this but I think we can take it as read that a police officer pretending to be a lawyer doesn’t meet that requirement.
ETA: priest/penitent, attorney/client and physician/patient privileges attach to the person asserting the privilege (that is, you after you confess to a fake priest.) As long as you reasonably believe the priest is a genuine man of the cloth (or whatever) your statements are privileged. Having said that, the privilege only applies to things you say within the context of the relevant relationship. If you are watching a football game with a priest friend and casually mention you murdered your wife the judge is likely to find that the statement is not within the scope of the privilege.
He couldn’t go undercover for the purpose of hearing information confidentially given to him in his “role”. In other words, if an LEO does go undercover as clergy or a doctor any confession or dieing declaration he/she hears is probably going to get tossed. Play priest to gather evidence or protect someone - OK. But the evidence still has to be obtained under the same rules as if he was in uniform.
What you tell your attorney in confidence may end up privileged, but the attorney also can’t materially mislead a tribunal with arguments they know to be false - in other words if you want your defense attorney to argue in court that you didn’t do it, you can’t tell them outright that you did. Consequently, defense attorneys are not interested in getting a confession out of you. If a suspect is aware of this, it may be yet another hitch in this plan, besides the other unethical/illegal aspects of it.
Law & Order, our source of all legal wisdom, also says - once the police know you have a lawyer, they need to contact the lawyer and give him an opportunity to be present during any further interrogation. I.e. X is arrested for crime A and get a lawyer, gets out on bail. X is then arrested for crime B by the same police, who know he has a lawyer, but try to interrogate him without his lawyer. Case B is tossed.
But you have no legal expectation of confidentiality with a fellow inmate, real or pretend. So what you tell a police officer pretending to be an inmate is admissible just as something you told to a real inmate would be.
If I had been Perkins’ lawyer, I’d have made the argument that Perkins’ confession was inadmissible because it was made in response to a threat. The situation was set up where Perkins thought he was locked up in a cell with two other prisoners who were planning an escape and who told him they were willing to commit murder if it was necessary. In such a situation, Perkins may have reasonably believed that they planned on murdering him because he knew about their plan. This threat to his life, even if it wasn’t made explicit, compelled Perkins to confess to his own crime when he would have otherwise kept quiet about it.
Yes, but he told details that only the murder would know… If they were real inmates he could have spun any useless story and they’d never know he was lying; so chalk one up to stupidity.
I suppose if they had explicitly said “we’ll kill you if…” then he would have been coerced. But it’s not unreasonable to think they’d simply leave him behind. I think if I were on the jury (or judge, who decides on excluding evidence) I’d want a more that “I felt uneasy” to accept a valid threat existed.
Canada is alone in still using the “Mr. Big” tactic, where a cold-case suspect is given the royal treatment by “mobsters” -booze, trips, etc. - then told to go higher in the organization he needs to prove he did a crime. A recent case was thrown out on appeal because the way things were presented, the suspect was legitimately fearful for his life if he didn’t tell them something, so it wasn’t a confession freely given. And, what he told them was nowhere near the facts of the case.
(In another interesting case about 10 years ago, a suspect in BC shot the “mobster” he was hanging round with in the same circumstances, claiming he feared for his life. But the guy in Manitoba who told the “mobsters” where the body was buried - well, he’s in jail.)
This one went even further, the “mobsters” convinced him he was helping toss a murder victim’s body off a cliff and therefore they needed “evidence” on him to prove he wouldn’t go to the cops.
I didn’t say his confession was false. I just said it could have been inadmissible.
As for spinning a false tale, inmates have as good a bullshit detector as anyone else. It’s harder to tell a convincing lie than it is to tell the truth.
A threat doesn’t have to be explicit to be considered a genuine threat. I’d want to see the testimony on what was said. I’d say that telling somebody that you’re willing to commit murder is at least in the neighbourhood of a threat. It’s not a subject that comes up a lot in casual conversation.
The other danger with the Mr Big sting is the possibility a person might commit a genuine crime that he wouldn’t have otherwise committed in order to impress the supposed mobsters at an upcoming meeting.
the obvious thing is - don’t give details the public does not know. Tell them you strangled her when you shot her… etc. Tell them the body is buried in a different place. and so on…
Police depend on the fact that most criminals are boastful and not too bright.