The Volokh Conspiracy

This does seem odd. Perhaps it is the police that spread this rumor? It is to their advantage, after all. And if people think that police can't lie when they are undercover they'll really believe that police can't lie when they are formally interviewing a subject in custody--which is also not true since cops are free to lie like a rug in such cases.

You'd think that it would only take a moment to realize that this couldn't be the law, as it would effectively make undercover operations suicidal.

Thoughtful,

Such a contract wouldn't be enforceable.

It isn't entrapment if an officer tells you he isn't a cop.

In other news, you don't owe me a beer.

"My question is, do defense lawyers ever use past lies by a given cop as evidence in court that the cop's testimony is unreliable?"

i made well over a hundred deep cases, and i never had that happen once (in regards to "lies" told to drug dealers to convince them i wasn't a cop. that's role playing. it has nothing to do with veracity. you are SUPPOSED to lie undercover. not on the stand.)

when working undercover, i found it very helpful to play into the misconceptions that dopers had about cops. for example, i got hooked into a big drug/weapons deal by surfing a certain day (that was pretty darn big). a dope dealer who had never sold to me before told me that "cops don't surf big waves like that" so the deal was sealed.

i've also had long and interesting conversations with dopers about "how to spot an undercover cop". some of their tips WERE quite good (for example, they look for people who stand bladed and who constantly adjust their belts - both traits of patrol training), but some were pretty ludicrous. no self-respectin' high level drug dealer believes the canard about undercover cops have to admit that they are cops if asked. most ask the question though, in order to try to gauge veracity. iow, they look for nervousness, overcompensation, etc. most people are not cut out to be cops, and out of those cops a VERY small %age are going to be any good at undercover (at least deep undercover work).

also, undercover cops CAN use (at least some agencies allow it) coke or whatever, but it is frowned upon (to put it mildly). certainly if a guy is deep and it's a matter of officer safety, the officer can do it.

Doh... Preview is your friend - s/Gene/Orin

-Gene

It is "not the law" the a police officer needs to identify him or herself truthfully but it's not as if the SCT decisions were that obvious or unanimous. We should forgive the average folk for having common sense-driven perceptions about what the law requires.

Perhaps, but it's not exactly "common sense" to think that an undercover cop has to admit he's a cop. It would make undercover work impossible.

It's television. There is no back and forth in "bad guy asks if cop is a cop, cop lies." There is all kinds of tension in, "bad guy asks if cop is a cop, cop finds wiley ways to distract him and avoid answering the dangerous question."

Whit,

they look for people who stand bladed

Could you please explain what this means?

K Parker,

I'm not a cop, but a bladed stance is where, rather than being directly lined up and with both feet the same distance from who you're facing, your body is angled with one foot further away than the other.

One reason some people in higher-risk situations do that is to be in a more stable stance to keep from being knocked on their ass if the person they're addressing decides to attack them.

Additionally, if they carry a sidearm, they'll typically stand with it on the side that's kept away from the potential attacker.

But it is true that a traffic ticket is unenforceable if the policeman isn't wearing a hat.

Also, look carefully at that American flag in the corner -- if there's a gold fringe, the court has no jurisdiction.

Possession is nine-tenths of the law.

Oh, and Orthodox Jews have sex through a sheet.

“I remember being aghast to learn that cops can lie with complete impunity during interrogations.”

They can lie, but not with complete impunity. The police cannot say something that would induce an otherwise innocent person to make a false confession. For example they cannot tell you that they are torturing your daughter in the next room until you confess.

An undercover policeman cannot do anything to keep his cover. He’s not allowed to kill someone to prove himself.

I don't understand why you are "aghast." This is real life, not some kind of sport.

I am pretty sure I saw this on an episode of Police Story back in the 70s.

During my first year criminal law class, a student in the class asked whether cops had to tell the truth when you asked them if they were undercover. You could tell from the audience's reaction that while a lot of people thought the answer was obvious, at least some thought the cop had to be honest.

When I was a defense lawyer with the New York City Legal Aid Society in Manhattan in 1968 many prostitutes believed it helpful to ask their customers if they were police. Some took it much further, bumping the customer near the waist to see if he was packing a gun. I recall at least once the woman was charged with some kind of assault based on this (a charge I assume disappeared into the vast pit of feeble cases in that court). The general topic of urban law legends always interested me. I traced the belief that if three of your friends testify to sex with a statutory rape complainant, she is declared a prostitute and the charge is dismissed, back to the common law allowing cross-examination of sex victims' sex lives. Similarly the belief that professional fighters have to "register" their fists at their local precinct as deadly weapons goes back to cases where manslaughters were treated as murders because the defendants were prize fighters. I also knew a scholarly fellow who believed the fair use doctrine in copyright law was expressed by an exact number of words that could be copied without fear. But after teaching law for over 30 years I wonder if we professors are propagating endless legal myths of our own when we state so-called rules.

A. Zarkov: For example they cannot tell you that they are torturing your daughter in the next room until you confess.

I'm not so sure. They can say they have your daughter in the next room and will charge her with capital murder and seek the death penalty unless you confess to the murder. Functionally I don't see much difference in terms of coercion, assuming equal believability.

I've seen plea agreements where someone pleads guilty and, among other things, the police promise not to prosecute the defendant's wife/mother/sister/brother/husband. So, cops can and do threaten family members of a defendant to coerce said defendant into confessing. In both cases, the threat is only being communicated to the defendant, whether it's torture or prison/execution (is there a big difference?).

And as for cops not being allowed to murder to prove himself... how do you know that's never happened? They will prosecute and give the cop 1 year probation. I'm quite sure many an undercover police officer has participated in a murder (whether he pulled the trigger or drove the get away car) in order to maintain cover and continue proving himself as a non-cop. All to catch a really big fish. Of course you won't ever hear of such situations, why would you? It would never come up. The state gets to choose whom it prosecutes.

Cops can sell drugs, cops can speed, cops can break the law whenever they desire. Most people don't even resent it. It's an attitude cops get from driving around in cars with license plates that say "EXEMPT" on them. They can do whatever they want, they are the law. And if an undercover cop has to participate in the murder of a small-time drug dealer in order to remain undercover to catch a huge drug trafficking kingpin, you bet he will participate in the murder. I'm quite sure many cops have pulled the trigger themselves while undercover. Whether they "can" or "cannot" is entirely up to the prosecutor.

Speaking of Kamisar, is he still super impressed with himself and disdainful of the police?

His classes were hard to sit through.

To be honest it sounds like a kind of magical thinking, a belief in the power of a form of words to unmask or disempower someone. Like a shibboleth.

It's an attitude cops get from driving around in cars with license plates that say "EXEMPT" on them

I once saw a motorcycle police officer drive up onto the sidewalk, at full traffic speed, not lights or anything, to catch up to a car that was going maybe 45 in a 35mph zone.

I know not all police get this disease where they think they're excempt, but I wish they would do more to prevent it in their fellow officers.

I've seen this urban myth used as a plot device in tv cop shows and movies dating back to the 1960s. It was definitely in a cop movie I saw in the late 1960s or very early 1970s: Perhaps it was Klute or some cop-buddies-using illegal-techniques-to-fight-mob-boss-movie whose name I cannot remember.

I suspect that this comes from the often true idea that cops can't break the law, even to maintain their cover. I heard an interview with the FBI agent who was the basis of Donnie Brasco and he talked about how, on numerous occasions, he almost had to blow his cover because he wasn't allowed to do drugs or actually kill or injure people (although apparently, if the situation called for it, he could do drugs so long as he immediately went to the hospital afterwords or something).

That being said, I doubt that this is a reliable test for whether someone is a cop, and I'm almost certain that a cop who does break the law in the course of their investigation will in no way affect whether you go to jail.

An interesting variation on this that I've heard of is that when soliciting prostitutes, you should insist that "You show me yours and I'll show you mine." In other words, demand that the "prostitute" expose her genitals for a brief glimpse before paying up, the idea being that a cop would refuse.
It seems more likely to me that this opractice is intended to avoid a "crying game" type incident.

Interesting topic. It might be fun to have a blog thread which asks lawyers and law profs to list issues/topics in their fields where there is a widespread belief of what the legal rule is that is simply wrong.

I seem to remember this tactic featured in the 1979 film Hardcore, starring George C. Scott. I think he learns of the maneuver early in the film, and a couple of lowlifes ask him "the question" later in the film (because anyone who looks like Patton is probably a cop).

JYLD: I believe this false belief comes from Television cop shows and television dramas.

Agree. The influence of entertainment media isn't just limited to the humorously uninformed who are guilty. TV and movies perpetuate the idea that detention and questioning by the police often involves assault on the suspect, which leaves the suspects with the incorrect belief that they shouldn't complain about it when it happens. Yes, I've had clients in that position, and that was before NYPD Blue and Departed.

(Funnily enough, I always assumed that "POSTED" signs were of this genre - only just now did I learn that a sign with nothing but the word "POSTED" on it is a legal keep-out sign [at least in NY] rather than a very broadly self-descriptive piece of wood.)

How does that work? (There are some magic incantations that must be posted, like the surgeon general's warning, or (Mass. only?) that eating undercooked food is risky -- does the law refer to posted land, and there's case law that says and becomes posted if it is so labeled?)

I've especially wondered about the similar "No Trespassing" signs. It's good advice (along with "No stealing", "No murdering", and "No talking with your mouth full") but it doesn't explicitly tell you that walking in a particular place is trespassing.

(I put up every variation I could find, especially "This is private property: passing, hunting ... are forbidden", and a fence, so the next time kids walk across my yard, which can tempt them to steal my bicycles, there is no question that they weren't allowed to even walk across my yard.)

But what is the fine for stealing a policeman's helmet?
Is it still five pounds?

That, plus you run the risk of having to marry Anoria Glossip.

Regarding "Posted" or "No Trespassing" signs: obviously your property is your property no matter what you do. My understanding is that in many rural areas, the law creates a presumption that people may cross uncultivated, uninhabited and unfenced land for hiking, hunting, etc. The landowner is allowed to overcome that presumption by posting signs, which (apparently) need only contain the word "posted."

Regarding "show me yours": my understanding is that certain police departments have policies which will not be violated merely to enhance undercover work. Thus, an FBI agent obviously will snort some cocaine is you put a gun to his head and demand that he snort some, but if you offer it casually, he will not, even if he loses some credibility. Similarly, my understanding (from reading "Mayflower Madam") is that the New York Police Department has a policy against officers removing their clothing while on duty. So it may well be a reliable self-protection measure for a prostitute to ask a prospective customer to remove his clothing (or vice versa) before getting down to "brass tacks." But that isn't the same as a valid entrapment defense.

BruceM:

“They can say they have your daughter in the next room and will charge her with capital murder and seek the death penalty unless you confess to the murder.”

Such a statement might coerce an innocent person to confess, especially if he had some reason to believe his daughter murdered someone. However he would have a basis for later repudiating the confession and pleading innocent. Would you as a juror convict someone on the basis of such a confession? I think not.

“I've seen plea agreements where someone pleads guilty and, among other things, the police promise not to prosecute the defendant's wife/mother/sister/brother/husband.”

That’s because they are guilty.

“And as for cops not being allowed to murder to prove himself... how do you know that's never happened?”

You have the burden of proof here to come up with an instance of where the police actually did this. Otherwise you are merely speculating. How could I possibly know something that never got exposed? I can’t prove the non-existence of flying saucers either.

In one of the more recent Simpsons Treehouse of Horror Episodes, a Gypsy Fortuneteller, prior to reading Marge's tarot, asks if she's a cop, because she has to tell her if she is. It's not the source, but worth noting.

Professor Kerr: Thanks for your helpful, if oracular, response to my question at 1:30AM.

Can you elucidate further: Are you saying there is simply no way to convert a lie to an actionable event, or an event to which a monetary penalty attaches?

And if so, are you saying this is true as a general matter of contracts, or simply true when dealing with an agent of the government?

Remember that movie "Rush," with Jason Patric and Jennifer Jason Leigh? It was based on a true story about undercover cops who went off the rails.

I knew these people while they were undercover - and yes, "the question" was asked more than once about most people in that crowd (no, I wasn't part of the user culture, I just knew a lot of folks who were). They ended up getting into all sorts of trouble for lying to try and make the case.

Of course, one of the things about allowing someone to lie about being a cop, or to lie during interrogations, is that it sets them up for "well, you've been lying professionally for all of this time, what makes us think you suddenly decided to start telling the truth today?" Or "we have videotapes of you telling all sorts of lies about evidence that doesn't exist - did you just begin telling the truth the moment you sat down in court? My client told the same story in the interrogation room and here on the stand, but you seem to have a different one for each audience..."

ThoughtfuL: the contract would be unenforceable for two reasons (1) it would be against public policy because its aim is to assist unlawful behavior and (2) the $1 million penalty provision is void as a penalty and not a reasonable measure of damages due to the breach of contract.

Thoughtful, the contract would be unenforceable because it is entered into in order to advance an illegal end, or, in the alternative, because it is contrary to public policy. Also, a clause requiring a $1 million payout on discovery of a lie would be seen as a punitive liquidated damages clause that would lead to unjust enrichment of the enforcing party.

I think this sort of thing originates in our ordinary language notions of fair play that suggest it is unreasonable for the police to break the law, or to act dishonestly, in enforcing the law. This principle find support in doctrines such as 'fruit of the poisonous tree' exclusions of illegally obtained evidence, and it's easy enough to see how one might intuitively think it applies in the entrapment context; e.g. the police can't lie to get a search warrant, or conduct a search without a warrant (or probable cause in some cases), so, by analogy, they can't lie in inducing an innocent person to commit a crime.

This is, of course, not the law of entrapment, either in federal law (the Sorrells predisposition or the "subjective" test) or those states that follow the "reasonable man" or "objective" test. (As an aside, California used to have a third "origin of intent" test that was superior to both, as I argued in Causation and Intention in the Entrapment Defense, 28 UCLA Law Review 859-905 (1981)).

I think the reason whether the cop lies or not does not help the entrapment defense is because both of the standard tests focus on things other than the conduct of the officer: the subjective test - though sometimes people give lip service to the behavior of the government agent - focuses on whether the person raising the entrapment defense was "predisposed" to commit a crime like the one being prosecuted; while the "objective test focuses on whether a hypothetical "reasonable person" would have committed the crime under the circumstances and inducements presented.

I think that clarifying the underlying focus of the both of the common entrapment tests would go a long way, with law students at least, towards understanding why "the cop lied" won't work.

I've not tested this myself, of course; however, current wisdom-on-the-street from sketchy acquaintances: ask 'em to sign a model release and pose for a few nude shots using some sex toys. Supposedly, cops (generally) won't agree to model, because it's legal (no assurance of a vice bust), and posing nude tends to trigger disciplinary action. Doubtless cops everywhere will figure out what to do about this one soon enough once it spreads a bit more.

In the meanwhile, however, there's one more evil reason to own a good digital camera. =)

but if one is prohibited and the other is not, then perhaps you could point us to a statute or some case law somewhere spelling out the parameters?

The parameters are set in case law, see, for example, Haynes v. Washington, 373 US 503:

The uncontroverted portions of the record thus disclose that the petitioner's written confession was obtained in an atmosphere of substantial coercion and inducement created by statements and actions of state authorities. We have only recently held again that a confession obtained by police through the use of threats is violative of due process and that "the question in each case is whether the defendant's will was overborne at the time he confessed," Lynumn v. Illinois, 372 U.S. 528, 534 . "In short, the true test of admissibility is that the confession is made freely, voluntarily and without compulsion or inducement of any sort." Wilson v. United States, 162 U.S. 613, 623 . See also Bram v. United States, 168 U.S. 532 .

"Whit,
they look for people who stand bladed"

"Could you please explain what this means?"

cops (and martial artists in some disciplines) are taught to stand bladed - at an angle - instead of directly facing people. this is officer safety. it keeps your gun further away, your "strong hand" back, presents a smaller target, and is a more classic entry into offensive maneuvers for martial arts moves than a stance where you face the person.

cops who have patrol training tend to revert to training and when working undercover often need to consciously NOT stand bladed.

Someone mentioned Hardcore -- written and directed by Paul Schraeder. He also wrote Taxi Driver, and a similar sort of conversation happens between Sport (Harvey Keitel) and Travis (DeNiro).

"Okay, putting my tinfoil hat back on now. Strangely enough, I still think you would be able to find some letters written on behalf of law enforcement organizations to entertainment organizations kindly asking them to continue the use of this plot device because it helps them solve crime and keep criminals off the streets and protect the children, yadda yadda yadda.
"

yes. ignorance of investigative techniques definitely helps us, AND victims, AND society. it only hurts criminals

but criminals in general don't do the research they should do. for example.

how many research what jurisdictions do not allow pursuits for stolen cars or for burglary? (lots of jurisdictiosn don't). this is all public record and would make auto theft and burglary MUCH easier to get away with.

but they don't.

nor do most of them study when shift changes happen, what areas take longest ot respond to, etc.

the SMART ones do. but they are EXTREMELY rare

I was told by a former undercover policewoman: If the prostitute has all her teeth, then she's a cop.

"I knew these people while they were undercover - and yes, "the question" was asked more than once about most people in that crowd (no, I wasn't part of the user culture, I just knew a lot of folks who were). They ended up getting into all sorts of trouble for lying to try and make the case"

i made well over a hundred buys and never once lied in court, nor would i. why would i? im not going to risk my career for ANY case. period.

but "lying" to help present or maintain your "legend" (your undercover role) is no more lying than brad pitt acting in a movie. it has zero relation to veracity in court etc.

like i said, no defense attorney tried that stupid tactic (i have seen it on TV only).

it comes down to this. society needs honest cops.

drug investigation is scummy, bizarre, and degrading.

otoh, VERY VERY few agencies do deep undercover work any more. very few. i know tons of DEA agents, and none of them have ever done it, and probably 99.5% of cops haven;t either. it's great tv/movie stuff (donnie brasco etc.) but it is rarely done any more.

it's mostly informant work now

"If the person were absolutely innocent and not a party in any way to a crime, why would he confess"

some do. false confessions happen. there are a # of reasons. it has to do with psychology. a skilled interrogator should be on the lookout for false confessions, and should use various techniques and failsafes to help ensure a confession is a true one.

contrary to popular belief, an interrogation is not designed to get a confession (not a good one). it's designed to get THE TRUTH (tm).

that's what investigations are supposed to do in general.

Government behavior has to be really egregious, and the defendant has to be something close to pure as driven snow, to convince a court.

Well, yeah, it's difficult to convince the government that the government has done something wrong. No surprise there. Courts aren't objective between the government and citizens, that's why we have juries, and that's why the judiciary works so hard to neuter juries.

Thoughtful - Either that's not even a contract "If I'm a cop, then I will pay you $$$, /s Me" (not a K - no consideration for my promise) or the K is void for illegality ("I will do this drug deal with you if you promise to pay me $$ if it turns out you're a cop").

ThoughtfuL: the contract would be unenforceable for two reasons (1) it would be against public policy because its aim is to assist unlawful behavior and (2) the $1 million penalty provision is void as a penalty and not a reasonable measure of damages due to the breach of contract.

Not only that, a contract is usually void for lack of consideration (what thing of value was offered to get the police officer to agree to the contract?). Although I’m sure the prosecution would appreciate you providing them with a nifty piece of evidence of your client’s guilt at his trial.

Q: The goal is not to explain why my simplistic non-lawyer notion is not a contract. The (for intellectual curiosity) goal is to see if any of the bright lawyers on this blog can conceive of an enforceable contract that WOULD work. For example, what modifications would be necessary to establish 'consideration'? How can one establish one is or is not a cop without the contract mentioning anything involving illegality? Is this really impossible. As a non-lawyer, that surprises me. Lawyers have been known to draw up some pretty sophisticated and clever contracts...

Saw this occur in The Departed just the other day.

Thorley: Thanks for explaining things to a non-lawyer like myself, but see above my comments to Q. If I understand consideration as you explicated it, wouldn't it be sufficient if I offered in the contract to pay a sum of money for the correct information? If a $1M penalty is too large, would a $10,000 penalty be acceptable? Are all contracts subject to being void if it can be argued that they are "against public policy"? That seems pretty dangerous. Why not an initial contract that has nothing to do with drugs, simply has to do with establishing bone fides. Say I simply have an aversion to working with cops. Are cops a protected class? As I said above, I'm simply amazed that no sharp attorney can come up with a LEGITIMATE contract that avoids these complications and will stand up in court that would help distinguish a cop from non-cop, or at least make it costly for the cop to lie.

Gilbert writes:

It’s an attitude cops get from driving around in cars with license plates that say “EXEMPT” on them

I once saw a motorcycle police officer drive up onto the sidewalk, at full traffic speed, not lights or anything, to catch up to a car that was going maybe 45 in a 35mph zone.

I know not all police get this disease where they think they’re excempt, but I wish they would do more to prevent it in their fellow officers.


It was longtime editor of _Astounding/Analog_ magazine John W. Campbell, Jr. — known as “the father of modern science fiction” for his tutelage of a whole generation of superb science fiction writers — who in one of his provocative editorials (“Constitution for Utopia,” May 1961) insightfully pointed out that, pace Lord Acton, it isn’t that “Power corrupts and absolute power corrupts absolutely,” but rather immunity from the consequences of one’s actions corrupts while absolute immunity corrupts absolutely.  A person having relatively little power (such as a minor bureaucrat) but in possession of practical immunity from the consequences of his or her acts can still oftentimes become quite corrupt; whereas a person may wield enormous power but remain incorruptible — if only subjected to the check of foreknowledge of untoward and severe consequences (such as being tossed out of office or losing an election) were he to succumb to corruption.

Perceptive observer of the young American democracy Frenchman Alexis de Tocqueville in his 1835-40 masterpiece Democracy in America noted that magistrates and administrators in America, from the local level on up, were often granted extensive powers which his homeland of France (then a monarchy) would hesitate to bestow upon officials.  As he noted, “In France we should consider men’s life and liberty in danger if we entrusted any official, whoever he might be, with the exercise of so formidable a right” — but in the United States such officers are made to stand for frequent reelection.  “It can even be said,” Tocqueville went on, “that magistrates become freer as voting rights are wider spread and the duration of office shortened” — which well illustrates the point Campbell was seeking to make.

There's an interesting corollary to this idea, which is that if you ask a presidential candidate "Would you make a lousy president?" they have to answer truthfully. Sadly, this is not actualy the case.

Ralph Phelan:

“Only if you're confident that the police won't continue lying from the witness stand. If you don't know the legal distinction between "tactical deception" and "perjury" you might not make that assumption.”

As I said if the police are willing to lie under oath, then you might have a problem. They would also have to lie during a deposition as well. How many policemen are going to take that risk for a case? What’s in it for them? Now a really stupid innocent person might get tricked into confessing (see Darwin awards) to something he didn’t do. That does not mean he still doesn’t have a good defense.

I'm pretty sure The Question antedates any of the TV shows cited, perhaps even TV itself. It's a pretty obvious gambit for anyone in a position vis-a-vis the police similar to a streetwalker's.

I wonder if Martin Gardner or Raymond Smullyan ever wrote about it.

Every now and then on Forensic Files and similar, they show a segment of tape from a police interrogation where a cop talking to young perp says something similar to "just tell me you did it so we can clear this up, and you can go home." I would think that responding to that would be proof in itself of diminshed competence.

I know that the kindergarden concept of Fairness does not play a big part in police work, but the notion that cops can interrogate someone for half a day spewing lies left and right offends me, especially since any unguarded remark by the subject can get engraved in stone. All the facile analysis that "a innocent person would know ..." or "an innocent person would never..." discounts the disorientation of a high stress, other worldly, situation. Who can tell what Alice might do after falling down the rabbit hole?

As I said above, I'm simply amazed that no sharp attorney can come up with a LEGITIMATE contract that avoids these complications and will stand up in court that would help distinguish a cop from non-cop, or at least make it costly for the cop to lie.

I firmly expect that the police officer's actions would be seen as committed under their duty as police officers. Sovereign immunity or qualified immunity would protect either the eventual breach of contract or other civil suits, just as well as they'd protect the police officer from suits for breaking someone's arm during an arrest.

"How many policemen are going to take that risk for a case?"
Depends on the police department's general culture, whether the prosecutors they work with are more interested in doing justice or getting a high score, and whether or not the judges in their jurisdiction are interested in making sure the State plays by the rules.

For example, in Durham, NC the answer appears to be "almost all of them."

My recollection from studying contracts in the spring of 1995 was that contracts involving criminal activity are void for public policy. Thus a contract to commit a crime or directly involving a crime is unenforceable.

There, however, is a difference between a contract that says "in exchange for you not taking drugs, I will give you X," which is invalid and unenforceable since it involves criminal activity, and a contract that says "in exchange for you passing weekly drug-test I will give you X," which is valid since it involves legitimate activity.

It strikes me that asking someone with whom you are considering engaging in criminal activity, "Are you a cop?", is at the very least good practice even if it has no legally protective effect.

In particular, one would suspect that officers who are not experienced in undercover work -- I'm thinking here of officers making de minimis drug buys and trolling for prostitutes as opposed to more extensive undercover work -- might be caught off guard by the question.

A. Zarkov
If you want to look at false confessions and how often they appear in cases, go to the innocence project website. About 1/4 of all of their cases involve false confessions. Now, if people would falsely confess to a capital crime, how much easier would it be to get folks to admit to a misdo assault for example.

Opus - "There, however, is a difference between a contract that says 'in exchange for you not taking drugs, I will give you X,"\' which is invalid and unenforceable since it involves criminal activity, and a contract that says 'in exchange for you passing weekly drug-test I will give you X,' which is valid since it involves legitimate activity."

I think that the former is also enforceable, as the subject-matter is really the *forbearance* from drug use, which is a perfectly legal activity. There may be a consideration issue(not using drugs isn't 'legal detriment'), but I think there's legal benefit to the promisee, as one doesn't really have the right to have another refrain from using drugs.

wm13 wrote:
Regarding “Posted” or “No Trespassing” signs: obviously your property is your property no matter what you do.  My understanding is that in many rural areas, the law creates a presumption that people may cross uncultivated, uninhabited and unfenced land for hiking, hunting, etc.  The landowner is allowed to overcome that presumption by posting signs, which (apparently) need only contain the word “posted.”

Considering the recent Colorado case of adverse possession (taking over someone else’s land), it would seem that it isn’t the case that “your property is your property no matter what you do” — as depending on what you do, sometimes others can simply take your land away from you.  Beyond actually seizing the land, there is also prescriptive easement, via which someone can force a right of access over a particular parcel of land belonging to another.

I’m no lawyer, but at least in the case of California, it appears that a particular type of posted sign is a magic talisman against prescriptive easement (Civil Code Sec. 1008):

1008.  No use by any person or persons, no matter how long continued, of any land, shall ever ripen into an easement by prescription, if the owner of such property posts at each entrance to the property or at intervals of not more than 200 feet along the boundary a sign reading substantially as follows:  “Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code.”

I think the misconception has to do with ambiguity over exactly where the entrapment line is.

Even the most egregious police conduct to induce the defendant to commit the crime would not sustain an entrapment defense in most jurisdictions if the defendant were determined to be predisposed commit the crime. Hence, the focus of the inquiry is far more on the accused than it is on the conduct of the police.

A Zarkov, you're ignoring the fact that policemen as a class are notorious for perjury. As I understand it juries are instructed that the uncorroborated word of a felon is not reliable. In my opinion the same instruction should be given about policemen.

As a defense attorney, there are two parts I would respond to. In my jurisdiction, all in custody interviews have to be recorded to be admissible. As a practical matter, cops record most interviews to avoid the whole in custody/out of custody dispute and to make statements admissible.

First, I do sometimes (depending upon the circumstances) point out that cops do not tell the truth in interrogations. It can make a difference. As noted above, the Innocence Project has documented numerous cases of people falsely confessing to a crime. In many of them, police lied during the interrogation. I raise this in voire dire and in evidence to show the jury why my client would make some of the statements that he did.

Second, I disagree with whit about cops wanting to get to the truth. In my experience, cops more often than not start an interrogation with their own idea of what happened. The interrogation is designed to get the suspect to re-state that. This was most clearly demonstrated in a case of mine involving a then 16-year-old girl. Two guys killed her mom and one of them said that she put them up to it.

Their statements did not match the physical evidence, nor did they match what she said. But the cops bought those guys' stories and kept pounding on her to get her to admit that she put them up to it.

In cross-examining the cop, I got him to make several interesting statements. For one, he said that he figured everyone he talked to lied. Second, he admitted that he avoided having to tell this girl's father that 1) she was now a suspect, and 2) he was going to interrogate her. Three, he admitted that if his teenager daughter had been interrogated, he would have wanted to know about it. The last point that was interesting had to do with her statements to him. Initially, she repeated numerous times that she did not want them to kill her mother. I got the cop to admit that she said this roughly 20 times. He kept saying he wanted 'the truth', not for her to confirm his version of events. I then asked him how many times she would have had to say that she did not want this before he accepted it. He finally admitted that no matter how many times she said she did not want them to kill her mom, he would never have accepted that answer. I understand that this is anecdotal evidence, but it is consistent with my experience and is the clearest example of what I see. By the way, the jury ultimately hung 10-2 to acquit my client. The court, based in part upon that cross-examination, reconsidered my motion to suppress her statement. The court suppressed the statement and dismissed the indictment against my client since it was tainted by my client's statement. In so doing, the court specifically found that my client's statement was false.

This discussion thread, which shows a great deal of thoughtfulness and insight, shows why you should never, ever, ever talk to the cops if they want to interview you. It also shows why crimes that necessarily involve other people, such as smuggling or dealing in contraband, is never a smart thing to do. Granted, crime itself is generally not a smart thing, but the odds of capture and jail time go up exponentially for each additional person involved.