Deceptive interrogation practices by the police and other law enforcement authorities have existed since the 19th century when Sir Robert Peel formed the London Metropolitan Police in 1829 and the first police forces in the United States were organized. Subject to certain limitations, the U.S. Supreme Court has upheld the use of deception in the interrogation process. In recent years, however, these practices have come under the microscope due to the emergence of innocence projects and issues surrounding false confessions and wrongful convictions.
Done properly and with integrity, the aim of police interrogation is to successfully elicit incriminating responses from those who have indeed participated in the crime in one way or another. Equally, if not more important, is the ability to clear innocent persons of their participation in the crimes alleged. There are many different interrogation techniques or practices that have different degrees of success. Depending upon the experience of the investigator, a blend of more than one style may be employed. The use of deception by the investigator is a frequent component of any successful criminal interrogation when used effectively and lawfully. Confessions are powerful and compelling evidence when produced before a judge or a jury.
When employed improperly or without due regard to the law in this regard, the consequences can be disastrous. The suspect may immediately recognize that the investigator is not telling the truth. Consequently, the suspect may infer that either the investigator does not know all the facts or is bluffing. In either case, this may have a direct impact on the failure to obtain inculpatory statements or a confession from a guilty party. Even worse, there is always a chance that an innocent person may confess to a crime that they did not commit when subjected to unlawful or improper interrogation techniques and practices.
It must be noted that confessions are critical to the criminal investigative process and to successful case closure. Any notion that those who commit crimes readily admit to doing so is simply without merit. The U.S. Supreme Court has consistently upheld the police use of deception and trickery in the interrogation process. Even in the landmark case of Miranda v. Arizona, which dealt with custodial interrogation practices, the court recognized the legitimate police tactic of deceptive interviewing as long as in-custody suspects have been advised of their constitutional rights prior to the commencement of questioning. Indeed, the police may tell suspects that coperpetrators have made inculpatory statements when they have not, that scientific evidence exists when it does not, and eyewitnesses have identified them as the actors when they have not. The court has, however, held that when the police cross the line from making these types of assertions to actually fabricating evidence to be used in the interrogation, the deceptive practice may result in inadmissibility of the evidence.
In order for a confession to be admissible in court it must have been obtained voluntarily. Suspects cannot be threatened, harmed, or coerced. They cannot be deprived of sleep, food, water, or other necessities in order to produce a confession. They cannot be given promises of any kind, including leniency, for such a purpose. American jurisprudence is replete with rules and remedies for constitutional violations such as these.
Accordingly, the present issues relative to deception are the misrepresentations, lies, and trickery used by the police for the purpose of obtaining confessions or inculpatory admissions that take place without regard to the traditional bounds of constitutional protections. In other words, in custody suspects who have not been informed of their rights prior to questioning by the police, or who have been threatened or promised leniency in order to encourage a confession whether accurate or false, have existing means with which to challenge the admissibility of the inculpatory statements.
Deceptions used by the police designed to lead in-custody suspects to believe that they are not being interrogated, being interrogated for another purpose, or that their cell block confidant is truly that (as opposed to an undercover agent) may lead to violations, depending on the jurisdiction and the particular stage of the legal proceedings, of the suspect’s Fifth or Sixth Amendment rights. Moreover, lies regarding legal consequences should the suspect confess or not confess are prohibited, and confessions obtained under such circumstances are quite likely to be suppressed.
Lawful deceptive police practices are designed to encourage guilty persons to admit to their wrongdoings. The deceptions themselves may be subtly implied or explicitly stated by the investigator. For example, a blank video tape or a suspect’s photograph may be placed in the interrogation room within sight of the suspect. The idea is to lead the suspect to believe that these “props” represent inculpatory evidence, and thus, assist in persuading the persons who committed the crimes to admit to their acts.
There is no existing empirical research that could lead to the belief that reasonably intelligent and competent adults, when confronted with such deceptions, will admit to having committed crimes when they were not in fact the guilty actors. Take for instance an innocent woman in downtown Manhattan who fit the description of someone who had robbed a bank in the vicinity of where she was spotted by police. Confronted with statements that her fingerprints were found on the hold-up note in a bank she never entered, would she likely say: “You got me. I did the robbery”?
On the other hand, extreme caution must be exercised when interviewing suspects who are members of vulnerable populations. These include juveniles, the elderly, or individuals who may be cognitively challenged or have learning disabilities, mental illness, or other special needs. Numerous cases have been reported and verified where persons of one or more of these descriptions admitted to crimes that they did not commit, and they did so at the deceptive suggestions of the investigators.
Within recent years there have been social, legislative, and judicial movements toward mandatory audio recording or videotaping of interrogations, particularly those involving serious crimes. This can be an excellent tool as long as the recording equipment is not within the sight of the suspects and is undertaken without their knowledge. This is problematic in a minority of U.S. states where the audio recording cannot be done without the consent of the suspect. In any event, the recording can show whether the suspect had been coerced in any way into giving the confession or if promises of leniency were made.
More particular to this discussion, the recording can also serve as the basis of whether deceptive or untrue statements were made to the suspect. But neither these statements nor the video recording can reveal whether suspects were induced to admit to crimes that they did not commit.
This is done through corroboration of the confession, which is of paramount importance to the successful interrogation. Corroboration ensures that only those who committed or were otherwise involved in the crime make admissions of guilt that will be used against them. This is important for all confessions regardless of the age or mental status of the suspect. The key is providing little to no details of the crime save for necessary general facts to set the stage for the interrogation. Once a guilty person admits to having committed the crime, the corroboration aspect, albeit extremely important, typically comes very easily.
In the end one is not talking about Miranda rights or other constitutional protections. The use of deceptive interrogation practices must be examined outside of these existing protections afforded to criminal suspects. When used properly, deceptive techniques and misrepresentations in the interrogation process can be quite effective in eliciting incriminating responses from guilty parties. But those admissions must be corroborated. The aim is for the suspect to provide details of the crimes that could only have been known by someone who committed the crime, was present during the crime, or was provided these specifics by the person who did indeed commit the crime.
Investigators should be extremely cautious of admissions or confessions made by individuals, particularly those of vulnerable populations, where the detailed corroboration of the crime is not provided by the suspect during the interrogation. This of course does not mean that the individual did not commit the crime, but deception-based interrogation techniques that lead to confessions must be corroborated by the suspect in order to avoid a false confession that will ultimately be used against the defendant in court.
- Declue, Gregory. Interrogations and Disputed Confessions: A Manual for Forensic Psychological Practice. Sarasota, FL: Professional Resource Press,
- Feld, Barry. Kids, Cops, and Confessions: Inside the Interrogation Room. New York: New York University Press, 2012.
- Inabu, Fred, John Reid, Joseph Buckley, and Brian Jayne. Essentials of the Reid Technique: Criminal Interrogations and Confessions. Boston: Jones & Bartlett, 2004.
- Kamisar, Yale, Wayne LaFave, Jerold Israel, and Nancy King. Basic Criminal Procedure: Cases, Comments and Questions. Eagan, MN: West Publishing, 2012.
- Napier, Michael. Behavior, Truth and Deception: Applying Profiling and Analysis to the Interview Process. Boca Raton, FL: CRC Press, 2010.
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