Cops are allowed to lie (technically we are all allowed to lie, even me which is ironic because since I’m 7’ tall and rich you’d assume I wouldn’t need to tell lies to make people respect me) when doing their jobs, ie: we have witnesses who saw you, your partner just turned on you and is cooperating, we have evidence so go ahead and confess anyway, if you cooperate we will go lenient on you, etc.
But are there things cops aren’t allowed to lie about? I bring this up because with all the arrests and prosecutions of people for videotaping the police, what happens if someone videotapes a police officer in a city/state where it is legal to videotape the police, but the police lie to the person with the videocamera and say ‘what you are doing is illegal, put the camera away or you will be arrested’ even though what they are doing is legal.
Basically, can cops legally lie about what is illegal and what isn’t? Can they tell people that something that is illegal is legal, or that something that is legal is illegal?
Can a cop lie and say Miranda was overturned? Or lie and say Brown vs Mississippi was overturned (prohibiting torture to gain evidence, which oddly took until the 30s to become law)? Or claim their department doesn’t have a civilian oversight board or an internal affairs division if someone threatens to report them?
I’ve heard of a legal concept called “entrapment by estoppel” that basically says that if the cops (or other authorities) assure you that something is legal, and you accept what they say in good faith, then you shouldn’t have to go to jail over it because you were trying to do the right thing and lacked evil intent.
It looks like there is a test of reasonableness here.
From Wikipedia’s http://en.wikipedia.org/wiki/Entrapment#Entrapment_by_estoppel
A subset of the entrapment defense was first recognized by the Supreme Court in Raley v. Ohio, 360 U.S. 423 (1959). There, four defendants were testifying before a committee of the Ohio State Legislature. The chairman of the committee told them that they could assert their right against self-incrimination. They asserted this right, and refused to answer questions. However, Ohio law provided them immunity from prosecution, so the right against self-incrimination was inapplicable, and they were subsequently prosecuted for their failure to answer questions. The Supreme Court overturned three of the four convictions based on the doctrine of entrapment by estoppel.
As described in United States v. Howell, 37 F.3d 1197, 1204 (1994), the defense “applies when, acting with actual or apparent authority, a government official affirmatively assures the defendant that certain conduct is legal and the defendant reasonably believes that official.”
I don’t have much to help, except that since Sept 11 there have been several stories where the police told people it was illegal to film something like a bridge or a building, and even confiscated the recording, when it wasn’t. I think what usually happens is they put the camera away, or they are detained.
In general anything public is subject to being legally photographed (military installations are probably an exception). There was an article in the Washington Post about how so many law enforcement officers are ignorant of the actual laws involved regarding photography, and hassle people who want to take pictures in situations where it is perfectly legal.
In an airport I was taking photos of my wife getting a secondary screening at security when a TSA official told me it was not allowed. The linked article mentions explicitly that TSA does not prohibit photography in screening area.
It’s illegal for them to search without a warrant (in the sense that it generates inadmissible evidence; I don’t know if they can be prosecuted for it). But that doesn’t mean that it’s illegal to lie about it. I don’t know if lying about a warrant aggravates a warrantless search.
Cops can lie about anything, just as you or I can, The question is whether they can lie and a) still obtain a conviction/usable evidence and b) not commit a crime/infringe someone’s civil rights.
Ahh, no. That one is very, very tricky for the police. When police make a promise of leniency, that needs to be upheld or else any confession is ruled involuntary and any evidence obtained is considered to be produced under duress. IOW, police can’t lie and say “if you cooperate we will go lenient on you” and still obtain a conviction.
IANAL, but I do know that this is one of those issues that gets very complicated around the margins. What constitutes leniency? Is a sentence reduction of 24 hours leniency? Is “it will be easier for you if you confess now rather than making me take you to the station” a promise of leniency? Is “We will make sure the Judge knows you co-operated” a promise of leniency?
Those and a million other factors make the whole issue is grey. But outright lying about leniency is never allowable AFAIK. If police can be shown in court to have made an actual promise of leniency, then leniency must be shown or else any evidence is inadmissible.
So police can not tell the lie “if you cooperate we will go lenient on you”. They can stretch the truth and use ambiguous phrasing, but if they can be shown to have actually lied, then no conviction is possible.
Police can certainly do this, but that doesn’t mean they can do it and get away with it. Once again, IANAL but If you could prove that this happened then you could charge the officer concerned with theft or violating your rights via illegal seizure. Police simply can not take property without probable cause.
Once again though, this can get tricky around the edges. All jurisdictions have “public order” laws, and most of those include giving police so-called “move on” and making it a crime to “breach the peace”. Basically, if someone is doing something that is going to cause fear or provoke civil disturbance, it’s a crime under the public order laws. These are the laws that police use when they tell people watching a fight to leave the area. If a police officer can argue that your filming is likely to cause a disturbance, they can certainly confiscate the camera and even arrest you. Freedom of expression has limits: you can’t shout fire in a crowded theatre.
So once again, while the police can’t lie about things and take your camera, it’s a legal grey area as to whether it is in fact a lie.
There are two limitations. The first is estoppel, as already noted. If the state gives you explicit authority to do something, then you can’t be prosecuted by the state for doing it. Doesn’t matter what else comes into play.
The second, and broader limitation, is “overbearing of will”. Basically, if the cops tell you something that makes it impossible to to give evidence of your own free will, everything you say is thrown out. To take the extreme example: your wife is dying of liver failure, and the cops promise to use their influence to put her at the top of the donor list if you confess. That lie would clearly overbear the will of any reasonable person. Most people would be unable to refuse confessing to any crime under those conditions. But even at the more mundane level, the overbearing of will can be an issue. The police arrest me for petty theft, and then they tell me that they don’t care about the arson I committed in the course of the crime, and so long as I confess to the arson I will only be prosecuted for the theft. Once again, this overbears the will of any reasonable person. Anybody would confess to the arson if they have been told there will be no consequences.
Sure, but they will be certainly be found guilty of violating your civil rights. By saying that Miranda has been overturned, they are actually telling you that you have no right to silence. You have a legally prescribed right to know of that right. So by telling you otherwise they are infringing on your right to know. No evidence they collect would be admissible, you have an iron-clad civil suit against them and they have at least a chance of being charged with several crimes.
No chance. This would constitute a very clear *threat *of torture. Such a threat would immediately overbear your will. The threat itself is also a crime.
I imagine that gets tricky. This is a procedural issue. AFAIK there is no legal requirement for a police force to have such a department. So there is a big difference between “nobody on the department will investigate us” and “what we have done is legal”.
This is the rule in other common-law jurisdictions: it’s called the confessions rule.
A confession made to a person in authority must be proven to have been made without any offer of favour or of threats. If the Crown cannot prove that, the confession is considered to be involuntary and will be excluded.
Like I said, IANAL, and it gets very grey around the edges. Obviously this gets assessed on a case by case basis, and depends on the character of the suspect, the amount of leniency promised and so forth. Promising substantial leniency, such as not prosecuting based on the evidence, immediately gets the evidence thrown out. Promising 24 hours off a 30 years sentence when talking to a criminal layers with 40 years experience is much less likely to be considered coercive.
But if a cop makes a direct promise of leniency, as per the wording in the OP, then they are at the very least opening themselves up to appeal because the Superemes “would find a direct promise of leniency more coercive” and then “The burden is on the government to establish, by a preponderance of the evidence, that a challenged confession was voluntary.”
Short version: cops can’t lie about leniency. Falsely imply leniency, sure, but not lie.
“Cruel and unusual punishment” was prohibited by the 8th Amendment, included when the US Constitution was passed in 1787. It just took until 1936 for a specific case to be appealed all the way to the Supreme Court, and the Court to uphold this. (Though they actually relied mostly on the 5th Amendment, saying torture violated the law against self-incrimination.)
Also on their departmental reports. Some local cops have gotten into trouble when what they put in written reports was clearly contradicted by the video camera in their patrol car. Especially when the defense attorney got wind of it.
But that seemed to be a violation of departmental rules, rather than actually illegal.
My impression of how it works in the US is that the prosecutor and the judge are the ones who can offer leniency, but cops will pretend they can offer it if you confess to a crime. So false offers of favors do not seem to be banned here.
And what is the definition of a threat? I am pretty sure cops can claim a minor crime carries a huge penalty, then tell you if you cooperate they will go lenient (all of which is a lie, the penalty may be minor and the cops aren’t/can’t help you regardless of whether you confess or not). So that is a threat when you think about it. It isn’t a physical threat, but it is a kind of threat. But I’m not a law talking guy, no idea.