Thursday, February 20, 2020
Christopher Slobogin (Vanderbilt University - Law School) has posted The Legality of Trickery During Interrogation on SSRN. Here is the abstract:
May police use deception during interrogation? In the United States, the judicial answer to that question has often been a resounding “yes.” The literature suggests four possible objections to this position. The first is empirically-based: deception is simply not necessary to get confessions. The other three objections assume that, in some cases, deception is necessary, but posit that, nonetheless, it must still be prohibited in all or many cases. Objection number two is that lying to suspects undermines the suspect’s dignity and therefore ought to banned completely. The third objection is that, even if the dignity concern can be overcome, deception is often impermissibly coercive. The fourth objection is that, separate and apart from concerns about dignity, even non-coercive trickery ought to be prohibited when it constitutes fraud, which is inherently immoral and perhaps a crime. This chapter, which elaborates on my earlier work on this subject, concludes that, while all of these objections have some merit, some types of interrogation trickery are justified.
(1) a judge has determined there is probable cause to believe the person interrogated has committed a crime and that interrogation is necessary to help solve that crime;
(2) the police have been unable to obtain a confession through non-deceptive questioning;
(3) the police do not engage in negotiation techniques (unless a defense attorney is present), or in fraudulent techniques that verge on criminal actions; and
(4) police ensure that they refrain as much as possible from feeding the suspect facts that only the perpetrator would know, so that the reliability of any confession produced can be corroborated.