AuthorMannheimer, Michael J. Zydney

INTRODUCTION 801 I. POLICE DECEPTION DURING INTERROCATIONS 804 A. The Supreme Court on Police Deception 804 B. Taxonomy of Police Deception 811 1. Deception About the Adversary Role of the Police (The False Sympathy Ploy) 812 2. Verbal Deception About Independent Evidence of Guilt (The False Evidence Ploy) 813 3. Fabrication of Independent Evidence of Guilt (The Fabricated Evidence Ploy) 814 4. Deceptive Suggestions That the Offense is Less Serious than It Really Is (The Minimization Ploy) 816 5. Deception That Contradicts or Distorts the Meaning of the Miranda Warnings 817 6. False Promises or Suggestions of Leniency in Exchange for Confession 818 7. Deception About Matters Extrinsic to the Case 821 8. Summary 823 II. SCHOLARLY CRITIQUES OF DECEPTIVE INTERROCATION PRACTICES 823 A. Proposals for a More Extensive Ban on Police Deception 824 B. Defense of the Status Quo 829 III. DECEPTIVE INTERROCATION PRACTICES AS FRAUD, NOT COERCION 838 A. Changing the Vocabulary of Deceptive Interrogation Practices 838 1. Coercion vs. Fraud 839 2. Police Deception During Interrogation as Fraudulent Inducement of a Miranda Waiver 846 B. A Fresh Look at Fraudulently Induced Confessions 849 1. Impermissible Deception 850 2. Permissible Deception 853 CONCLUSION 856 INTRODUCTION

When evaluating claims that a confession has been coerced, courts employ a "totality of the circumstances" standard (1) under the Due Process Clause of the Fourteenth Amendment. (2) Yet, today, a good many police interrogation tactics involve deception, including deception about the existence of incriminating evidence, deception about the adversarial role of the police, even deception about whether an official interrogation is taking place. Indeed, deception has largely replaced coercion as the key issue regarding the legality of custodial interrogation tactics. (3) One might say that deception is the new coercion. Yet, faced with claims that inducement of a confession through deception is constitutionally impermissible, courts generally fall back on the same due process standard they have used to determine whether certain tactics are coercive. Under this standard, courts rarely find deception to be impermissible, but they are unable or unwilling to articulate a useable standard for when police deception goes too far.

But deception is not coercion. The rhetoric of classic interrogation jurisprudence, with its emphasis on the "overborne will," is an ill fit for cases involving deception. Every other area of the law recognizes that deception is different from coercion. Coercion is thought to occur when another person deprives an actor of the free will to make a rational choice--that is, when it leaves the actor with an unfair choice between unattractive alternatives. Deception, by contrast, causes a person to exercise free will to make a seemingly rational choice based on false information, absent which the choice would have been different. Most deceptive police practices fall within the rubric of fraud. Far from being instances where the suspect was deprived of the free will to admit, deny, or refuse to answer, in most cases involving police deception, the suspect appears to have made a calculated decision, to have exercised free will, to confess in exchange for some perceived benefit. Only where statements by the police would be coercive irrespective of their truth or falsity can we say that the suspect has been coerced. But where a person makes a seemingly rational decision to provide information based on an illusory promise of a benefit, and a reasonable person in the situation would have done the same, we should call it fraud.

This view of deceptive interrogation practices is fortified by the Supreme Court's current approach to waiver of Miranda rights. Although the Court has had a permissive attitude toward deception during the interrogation itself, the Miranda Court specifically condemned deception meant to trick a person into waiving her rights. But the Court has recently effected a subtle shift in its Miranda jurisprudence that posits waiver as a continuing process rather than a singular event. That is to say, every time a suspect in custodial interrogation who has been read her Miranda rights answers a question, she implicitly decides to waive (4) those rights rather than invoke or exercise them. (5) This view of waiver dovetails neatly with the view of police deception as potentially fraudulent rather than coercive; rather than depriving her of free will, police deception alters the internal cost-benefit analysis the suspect must make in order to decide whether to speak. Police deception is improper when it falsely skews the relative costs and benefits of speaking so that the suspect is fooled into forgoing rather than invoking or exercising her right to remain silent, and where a reasonable person under the circumstances would have come to the same conclusion.

This Article argues that, putting to one side police statements that would be coercive irrespective of their truth or falsity, police deception during interrogation is constitutionally intolerable if, but only if (1) it causes the suspect to falsely believe that the benefits of speaking outweigh its costs, and (2) a reasonable person in the suspect's position would have the same belief. The Article first and foremost seeks to explain current law. Examination of police deception cases reveals that courts generally follow the principle stated above even if they use the wrong terminology. The Article also argues that this principle makes the most sense given the evolution of Miranda doctrine that has grown up around the jurisprudence of coerced confessions. (6)

Thus, this Article's contribution to the existing literature is threefold. First, it recharacterizes police deception cases as falling outside of the framework of coercion and instead treats police deception as a variety of fraud. Second, it offers a concise explanation for much of existing law on police deception. Finally, it defends current law on police deception as consistent both with our understanding of fraud and with modern Miranda jurisprudence. Professor George Dix wrote forty-five years ago that "the use of deception to obtain a self-incriminating statement has caused the courts unquestionable discomfort; yet existing doctrine provides no adequate vehicle for concrete judicial expression of this attitude." (7) This Article takes up the task of providing such a vehicle.

Part I examines Supreme Court and lower court precedent on deceptive interrogation practices, separately analyzing several different overlapping types of deceptive tactics. Part II discusses some of the scholarly literature on the subject, which generally: fails to provide (or in most cases, even attempt to provide) a full account of why the law is what it is; places too much emphasis on reliability as a rationale behind constitutional constraints on interrogation; and does not offer a genuinely coherent and useable standard for when such practices are impermissible. Part III argues that deceptive interrogation practices are better examined under the rubric of fraud rather than coercion. It examines how this view fits in well with the Court's evolving jurisprudence on Miranda waiver. And it uses the standard articulated above to mostly justify lower court decisions on police deception during interrogation.


    The Supreme Court has said remarkably little about deceptive police interrogation tactics. Although it criticized such practices in its landmark decision in Miranda v. Arizona (8) it at the same time established the famous warnings-and-waiver protocol in order to arm suspects with information to help them stand up to such tactics. Thus, the Miranda Court seemed to presume that such practices would continue. Since then, it has approved of some deceptive interrogation tactics, such as confronting the suspect with false evidence of guilt and failing to disclose certain aspects of the interrogation itself. Lower courts have generally permitted deceptive police interrogation practices, except where the deception involves false promises of leniency, distorts the meaning of the Miranda warnings, or, sometimes, involves matters extrinsic to the offense, such as matters affecting the suspect's family. However, courts have failed to offer a principled approach to separating acceptable from unacceptable police deception.

    1. The Supreme Court on Police Deception

      Both before and after its landmark decision in Miranda v. Arizona, the Supreme Court addressed coercion in only a smattering of cases. In these cases, the Court made clear that police deception was acceptable as long as it, along with any other arguably coercive elements of the interrogation, did not overbear the will of the suspect.

      In some cases, the deception took the form of a police stratagem that hid or downplayed the adversarial nature of the police-suspect relationship. For example, in Spano v. New York, the Court held a confession to have been coerced after police used a "false friend" stratagem. (9) Spano had called a childhood friend of his, Bruno, then "a fledgling police officer," shortly after the killing about which Spano was being questioned. (10) Bruno was later told by higher-ups to play on Spano's sympathy by pretending that Spano's phone call to him threatened his future career as a police officer, and consequently the financial security of Bruno's pregnant wife and their three children. (11) Bruno did so, leading to Spano's confession. (12) However, Spano's precedential value on police deception during interrogations is limited, given that the Court relied on a whole host of other factors in concluding that Spano's will was overborne: Spano was "foreign-born," had limited schooling, was emotionally unstable, had no prior contact with the justice system, and was subjected to interrogation by a team of skilled questioners over the course...

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