The Efficacy of Police Lies

Cops lie.

This is not a controversial assertion, because there is nobody, but nobody, who has a clue about criminal law who doesn’t know this to be true. But it’s also not sufficient to mean anything, because some lies are not only useful, but lawful, while others are not.

Then cops take the witness stand to testify, they are as obliged to tell the “whole truth” as any other witness. They don’t, of course. At least not most of the time. It’s not that they lie about everything, although that happens, but they lie about little things, the normal gaps in their story that they either never knew, because they can be asked questions on cross that calls for information that they took for granted, or they’ve forgotten the details they deem insignificant and so make them up on the stand.

Some might call it “white lies,” or trivial lies, although if it was so trivial, why not just admit that you don’t know and leave it to the jury to decide whether or not it matters?

But for the most part, cops lie. Some might argue that they lie every time they testify, but that’s hard to say. I’ve had cops who completely blew my cross by telling the truth, when I had them nailed on a detail in their grand jury testimony and then they take the stand, admit they were wrong and leave me hanging with nothing more to say. Fortunately, this almost never happens.

That’s one kind of lying, the bad kind, the unlawful kind, The other kind, the lawful kind, is when police use lies to obtain information, admissions, confessions, in their investigation and gathering of evidence. This type of lie is not only lawful, but endorsed by every court that’s ever considered the issue as a necessary tool in the police belt. Deception is an effective tool of law enforcement.

The problem is that it’s still deception. We can’t lie to a federal agent about a material fact when they ask us questions. Why can they lie to us?

America is losing confidence in its police. According to a recent Gallup poll, public perception of law enforcement is at its lowest point since the organization began tracking that question twenty-seven years ago. For the first time ever, a majority of Americans do not express confidence in the police, with only 48% of people maintaining faith in the institution.

We place confidence in others when they honor their promises, act sincerely, and consistently tell the truth. But rebuilding public confidence in America’s police won’t be easy, in part because police officers themselves aren’t just sporadically and spontaneously dishonest; in fact, American police are trained to lie, and the law-enforcement community itself has embraced deceit as a legitimate investigative tool.

There is, of course, a line to be drawn between the use of deception as a means of getting people to provide information they would not otherwise provide, and lying to a judge or jury when they claim to be under plenty penalty of perjury. But Cato’s James Craven has a point, that when lying is ingrained and pervasive, even if distinguishable, you’re still a liar and the public still perceives you as a liar. And while we can draw a line between deception as a tool and illegal deception in police reports, warrant affidavits, grand jury and trial testimony, that line is fuzzy as can be. If lying is acceptable for the public good, then why should it not be just as acceptable to make sure the bad dude gets convicted as it was to get the bad dude to confess?

My old prosecutor buddy, Ken Lammers, explains why this is very wrong.

Standing alone, it’s a very dubious proposition that the general public distrusts police because they lie during the questioning of suspects, so the author attempts to strengthen it by positing that lying in the questioning of a suspect leads to (1) police lying about searches in court and (2) lying to keep each other out of trouble. He doesn’t provide any proof of that connection and indirectly points toward collateral factors that are much more likely as causes: (1) the imposition of federal search and seizure standards through Mapp, and (2) the loyalty factor found in any group of people who rely upon one another. I agree, these are factors – particularly the second – which can lead the general public to mistrust law enforcement. They aren’t tied into using deception during questioning.

Perhaps Ken’s point would be clearer if he stated that they “aren’t inherently tied” to using deception during question, as they don’t have to be. There is a rational line, a “conceptual ledge” if you will, that could prevent the slide down the slippery slope into lying scoundrels in general. But is this a difference without a distinction? Just because the deception can be rationally justified doesn’t mean it deserves to be, or that lawful deception hasn’t permeated the police mentality to the point that this fine line can’t prevent the tide of lying from washing over the duty to tell the truth.

Ken isn’t wrong about the distinctions in cops using deception as an effective tool in law enforcement. It’s effective. It’s very effective. It’s often too effective, thank you, Mr. Reid. But as long as cops persist in believing that their lies are the good lies outside of the interrogation room, just as they’re the good lines on the inside, they have earned the public’s mistrust.

Can the police manage to regain public trust by being scrupulously honest in every aspect of their performance of their duty, with the interrogation room being the one judge-approved exception? Or would the more effective reaction be to just require cops to tell the truth all the time, giving up the effectiveness of deception as a law enforcement technique in exchange for regaining the public’s trust on the whole?