A guilty suspect!? Mama mia!
[…still reeling…]
I don’t think so. I think SM’s ethical determination relies on the presumption that the self-interest of a suspect (whether guilty or not) to base decisions regarding self-incrimination on accurate information is one that ethically must be protected
A police officer’s use of deception in the course of investigation can take many forms, not just lies to obtain confessions, but also deceptions to obtain consent to search, or statements from witnesses.
As a general rule, in cases where officers use deception as an investigative tool, the determining factor Courts look at is if the confession/consent was “voluntary.” The Supreme Court have used a couple of key phrases to help determine voluntariness, that, given the totality of the circumstances, the “confession is the product of an essentially free and unconstrained choice by its maker,” or the “product of a will overborne.” However, those statements aren’t overly helpful, and a vast majority of cases are determined on a case-by-case basis. Add to that the trouble of determining what is “deceptive”, what is “voluntary,” and what is “coercion,” and you have the wonderful confusion that we call Law.
One important upshot of SCOTUS’ rulings is that they are based on the reliablility of the evidence, as opposed to a “fairness” idea that Lib and eris seem to be advocating. However, the Court has held that, regardless of the reliability of the confession, evidence should be excluded if it was gathered by police methods that “shock the conscience” of the community or violate a fundamental standard of fairness. So, in fact, Courts are to consider both issues in determining if deception can be used by law enforcement officers.
I guess the point of summing up this caselaw is to point out that courts have the same concerns that everybody in this thread have regarding the ethics of using deception to obtain evidence. Personally, I take the very pragmatic view that it is fine for police officers to use deception if the confession/consent is still voluntary and not shocking to the conscience. I have no problem with officers overstating their evidence in order to obtain a confession, as long as that confession is voluntarily given. And, oddly enough, most of the caselaw falls here too.
Well, Hamlet, in some ways I agree. I don’t think it is reasonable to hold the police up to some incredible standard that we don’t live up to ourselves. But when I hear something like this I always think of the Allais paradox: the way the information is presented makes people choose differently, even if it is essentially the same situation it always was. And isn’t that the case here? You are in custody, and being questioned. You don’t know whether or not they have any evidence that can link you to the crime (nevermind whether or not you actually did it; this seems quite irrelevant). Right now, you choose choice A: non-incrimination. However, the officers then say, “Hamlet, we’ve got [some incriminating evidence].” Suppose you know the police could be lying. This means that the situation is essentially the same as it was before (that is, you don’t know whether or not they have any evidence that can link you to the crime). But this is hardly an objective presentation of the same situation. In fact, in the analogy at hand, you would choose D.
Do you really feel that both should elicit the same response in subjects? Well, surely not (else it wouldn’t be a tactic!). And it isn’t shocking to hear people lying to get what they want. But is it still a voluntary confession? Objectively: sure. The same information is present the entire time, suspect never knows whether or not the police, in fact, have any evidence. Just like the Allais paradox, the situation is the same. And yet an overwhelming majority of people will choose differently in the Allais paradox. In fact, check Mathworld’s presentation of it.
Where the independence axiom is
Maybe this analogy is a stretch, but how something is presented definitely changes the perception of the event. Using this tactic to elicit a confession seems unethical by any means.
I don’t think the same thing applies to undercover officers (another situation where officers will lie), where entrapment seems to be the guide to go by. And if we think of lying to a suspect in terms of entrapment the issue seems even clearer: were it not for the specific action (a lie) of a government agent, the person would not have confessed. Apart from already having the suspect available for questioning, the officer chose a course of action whose sole purpose was to influence the decision of the suspect into self-incrimination. This is hardly the same thing as approaching a drug dealer selling drugs and saying one isn’t a police officer if asked.
Does that make sense?
Libertarian, I refer to de facto guilt or innocence, not de jure. We are not obliged to protect the self-interest of a suspect who actually committed the crime to avoid punishment, and lies will not harm a suspect who actually did not commit the crime.
The obligation to actually prove a suspect committed the crime, de jure, is not impacted by this, of course.
Sua
Unless they confess to it, as people have already mentioned in the thread (re: Beagle). Or am I missing your point?
As I understand it, yes, it makes sense, Erislover. I think your explanation, as well as the theories surrounding cognitive dissonance, help explain why police deception in obtaining confessions actually work. However, by definition, a confession is going to be against the self-interest (in the long run) of the confessor. If the determination comes down to whether the confessor is acting in his self-interest (or acting in self-interest if he had all the information is available), there would be a innumerable decline in the amount of confessions.
Again, looking at it practically, I think the courts have come down with an appropriate compromise between protecting the suspect and the need for successful law enforcement. Is lying unethical? Sure, in most cases. Does the end of obtaining a voluntary confession justify the means of lying to the suspect is a much tougher question. And the courts have recognized that and reached a compromise.
I also believe that the need for successful law enforcement is getting a bit of a short shrift in the comparison between the undercover officer and the deception to obtain a confession. Granted there is no immediate threat to life or limb in the confession setting, there is still a great deal of “ethical good” being done in succesful law enforcement.
Sua wrote
But they will, and they do — every day. If a man is politically powerless and naive, and he is facing authorities with guns, then he might reasonably believe that his safest course of action is to cooperate with them.
How many suspects, including innocent ones, understand the distinction between de facto and de jure? How many know the intricacies of the law the way you do such that they can know what lies ahead for them?
It is not enough for the authorities to say, “you have the right to remain silent” when everything that they’re doing seems to qualify it more along the lines of “you have the right to remain silent, but I have the right to lie, deceive, and fabricate for the purpose of tricking you into saying something you otherwise would not”.
In other words, the way the system operates is to give the suspect hopelessness in exercising his rights and hope in waiving them. “We’ll be lenient with you if you cooperate, but not if you clam up.”
Ethically, that sucks.
And that’s where the line is drawn - lies that “shock the conscience.” IMO a lie that compels an innocent person to confess to something they didn’t do “shocks the conscience.”
Sua
The idea that the police and prosecutors shouldn’t believe that the person they are charging with a crime is guilty of the crime seems nonsensical.
If the cops don’t think you committed the crime they shouldn’t be charging you with it. They should only charge people with crimes if they believe that the person committed the crime. You wouldn’t want cops charging people with crimes if they have no opinion on whether the person did it or not, right?
Listen, presumption of innocence is a reasonable LEGAL standard. But it has nothing to do with how cops should conduct their investigation. They start with a list of suspects. The suspects are people they believe might have committed the crime. They investigate based on those beliefs, and either uncover evidence or not. I don’t see how cops could function if they couldn’t act on their hunches, or on their personal knowledge. “I saw the guy pull out a pistol and murder the clerk. But since I must presume him innocent, I have no reason to arrest him and charge him with the crime.”
If I kill someone, I have killed them. It doesn’t matter that I haven’t been convicted in court. I’ve still killed them. Yes, the judge and jury must presume me innocent, and the prosecutor should have to prove to the jury beyond a reasonable doubt that I killed them before they should convict me of the crime. But I still did the crime, whether I can and should be convicted or not.
Misrepresenting the evidence of guilt to a suspect during an interrogation does not seem to violate their rights, since they will have a full opportunity to examine the evidence if the case goes to trial.
Sua wrote:
But, if you’ve confessed, it’s used as evidence against you, making it even harder to prove your innocence. And besides, I thought that you didn’t have to prove your innocence, but that the prosecution had to prove your guilt.
Lemur866 wrote:
I agree with that. But it is quite a logical leap from a presumption of guilt to a license to throw truth out the window.
Lemur866 wrote:
Yeah, but meanwhile, especially if they are poor and powerless, they have to live with these people — the ones who are deceiving them.
Slippery slope is often (but not always) a fallacy, but I don’t like the slippery slope here. If men in an institution have power, autonomy, AND a license to lie and cheat, I think that the possibility of even more abuses is immently feasible. Like putting you in a cell with a maniac. Or letting the resident fecal fetishist serve you your food. Or God only knows what.
Sua
Which presents us with an interesting question: if the confession is what is used to determine non-innocence (er, guilt), then by definition lying to obtain a confession can never shock the conscience. But that sort of begs the question, doesn’t it?
Hamlet
For undercover officers, entrapment is
[action of officer itself]->[crime]->[guilt]
whereas in our case we have
[action of officer itself]->[confession]->[guilt].
In both cases, were it but for the deception, guilt would not be determined [in that manner]. I don’t mean to belittle undercover officers. I don’t feel their behavior is unethical, and indeed I think I agree with the handling of entrapment.
But the question isn’t if these ends justify these means, but if these means really represent the obtaining of a voluntary confession (is this some kind of coercion). I thought. Please, correct me if I’m wrong.
Lemur
Then not lying shouldn’t impede the investigation, since the government has a full opportunity to present the evidence at a trial.
sua
As others have noted, this is demonstrably not the case when misrepresentations by police have convinced people to confess to crimes of which they were innocent.
Really, though, this answer seems to boil down to:it’s ethical if the guy is guilty, but not ethical if th guy is innocent. Well, in that case I would argue that the action is unethical until guilt has been determined. Not illegal, not a violation of current professional standards, but unethical.
xeno
I think you understand me perfectly.
hamlet
I think “voluntarily” is a word with very little meaning when it is conjoined with “under the influence of deliberate misinformation”. My volition in a circumstance is quite depending upon my understanding of the circumstance.
And ethical harm is done in the successful prosecution of an innocent man. I think we are all in agreement that lies by police during interrogation have achieved both results. The question, then, becomes how we choose to balance those consequences in determining the ethics of the action (if, in fact, we admit any consequentialist element to our evaluation.)
I think you’re still mixing up the plea and the confession. I can easily enough imagine a defendant, faced with a witness who will lie to put him at the scene (or truthfully put him in the alley hours later) , and a partial fingerprint and a few other bits of evidence, and knowing that evidence exists because his attorney has demanded to see the government’s evidence taking a plea because he fears he will be convicted, although innocent. What I cannot imagine is an innocent suspect writing out (or signing, or making orally on videotape) a statement describing a murder while still in a police station in the relatively short time between the arrest and the court appearance because the police claim there is an eyewitness to something that the suspect knows didn’t happen.
What went through your head when you read this? [note: for some reason I care not to speculate on, I used the name Beagle when I should have used Badge in a previous post.]
Besides which, the point isn’t whether or not you can imagine anything, but whether lying to someone in order to elicit a confession still constitutes a non-shocking, non-overpowering, ethical event. Given the case law, whether or not I find it coercive and shocking is unfortunately irrelevant; but I think I can stand on my ethical leg.
In what circumstances do you find it acceptable to lie in order to get something you want?
Doreen wrote:
You are in an extremely weak position of humility in the presence of people with massive power and guns, backed by an institution that is nearly boundless in scope and has limitless funding and very often a political agenda.
You don’t know the law. You’ve been told you don’t have to talk, but you’ve also been told that cooperation will make things considerably smoother for you. You don’t know truth from fiction. You don’t know whether, despite that you’re innocent, it is true or not that they found all manner of circumstantial evidence.
Your fingerprints might well be on a glass you used well before the crime. A hateful neighbor whom they mention, and who has always despised you, might well have told them information that he saw you at the scene of the crime. Of course, they might be lies that they even exist, but they might not.
You are physically and mentally unequipped to defend yourself, and yet you face the prospect of being locked up with what you’ve always heard were animals who would rape you, beat you, and make your life a living hell.
You are badgered by good-cop bad-cop and interrogated long past the time you are sleepy, groggy, and witless. Your whole world has been reduced to a table top amongst people who glare at you with unrelenting suspicion.
You know you’re innocent, but you’ve seen the movies and TV shows, and the news. You know that OJ Simpson can buy freedom, but that your freedom is contingent on how much these powerful people all around you like you.
It is no longer a matter of whether you are guilty or innocent, but of whether you will survive until trial. You finally decide that you will do anything to avail yourself of their promises of good treatment.
Maybe you’re a snivelling coward for doing it, but that still doesn’t make you guilty. And it still doesn’t justify unethical coercion.
In 1991, at the age of 16, I was willingly arrested as part of an anti-logging protest. Our group’s attorneys told us ahead of time that if we gave them our name and address, they’d probably release us, and we were doing CD and didn’t want to be released; we therefore refused to give officers any identifying information whatsoever.
There’s a lot to this story, but the relevant part is that just before we were arraigned (on injunction trespassing charges), the police took each of us into a room, separately. There we were surrounded by four or five cops who told us that if we didn’t give them our name, we’d be in violation of California Code 142, section 8 (or something like that) and would be charged with a misdemeanor in addition to the injunction, $10-fine charge we were already facing.
I asked the cops if I could see a copy of the statute that I’d supposedly be breaking, and they refused to show it to me – refused, of course, because they were lying through their teeth. When we were arraigned, the nearly-somnolent judge didn’t charge us with anything beyond the original trespassing charge.
Were these cops acting illegally? They were basically telling us that if we remained silent, we were breaking the law, that we didn’t have the right to remain silent. And strangely, they were doing it purely for face-saving: they knew that in half an hour we’d be arraigned and would have to give our identifying information then.
Daniel
Actually, if a lie “shocks the conscience,” the fruits of that lie would be thrown out, including the confession. The suspect would not have to disprove the truth of the confession (or prove his/her innocence).
The police and the prosecutor are allowed to presume the suspect’s guilt - indeed, I hope that they believe the suspect they are charging is guilty.
Presumption of innocence means merely that the burden of proving guilt falls on the prosecutor, not that the prosecutor is supposed to presume the person they are charging is innocent.
Other than this, I’m out of the debate. I acknowledge the validity of the countervailing POV - I just disagree. Besides, I’ve shot my load; all I’ll be able to do from here on is repeat myself.
Sua