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"Are You A Cop?" And Other Tales:
When I teach entrapment law, a student sometimes asks if it's entrapment for a undercover cop to lie when asked if he is a police officer. Lots of people think it is. This comment about a prostitution bust is typical:
When will folks ever learn? Ask "The Question" before you do or say anything that can get you pinched for prostitution (giving or getting). What is "the Question"? Simply this... Ask the other person in the planned transaction "Are you a police officer or are you in any way working directly or indirectly with any law enforcement agency?" If they do anything but immediately answer "NO" get out of Dodge. If they are cops or are working with them they will try and avoid answering the question or will try some kind of weasel answer. If they are working with the cops in any way and lie and say "NO" then the entire 'crime' is entrapment and anything (evidence or testimony) gained is inadmissible in court. In some jurisdictions they have tried to criminalize asking "The Question" but there is no way to criminalize it without violating several constitutional rights so any such law, whenever challenged, quickly falls. Just more cases of only the uninformed or stupid getting caught. Ah well...
  Of course, that's not the law, at least in the United States. The commenter's understanding is hilariously wrong, and no doubt a lot of cops find it particularly amusing. But here's the question: Where did this rumor come from? Why do people think this is an accurate statement of the law? Does anyone know the source?

  I'm asking in part because I'm writing the entrapment materials for the new edition of Kamisar, Lafave, et. al., Modern Criminal Procedure. My thought is that if a lot of students have heard this rumor and there's a good story behind it, it might be worth pointing out the history of the rumor (and that it's wrong) in a note. Oh, and I have a vague feeling that I might have posted on this topic at some point years ago. If I have, I apologize for the repeat; I looked in the archives and couldn't find anything.
Scote:
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.
12.17.2007 1:19am
Anonymouseducator (mail) (www):
Yeah, that is really bizarre. It's OK to pretend to be a drug dealer as long as noone asks if you are a cop?
12.17.2007 1:22am
Bill Poser (mail) (www):
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.
12.17.2007 1:29am
Thoughtful (mail):
I'm no lawyer, but is the "solution" to not ASK if someone is a cop, but instead to insist they sign a contract to the effect that if future evidence confirms they are a cop, they agree to pay $1M to ...? Surely a drug lawyer could generate legal forms to be filled in at the appropriate times. It's sad when people don't take advantage of the legal system...
12.17.2007 1:30am
OrinKerr:
Thoughtful,

Such a contract wouldn't be enforceable.
12.17.2007 1:32am
CDU (mail):

I'm no lawyer, but is the "solution" to not ASK if someone is a cop, but instead to insist they sign a contract to the effect that if future evidence confirms they are a cop, they agree to pay $1M to ...?
I thought the solution was to ask them to do some blow.
12.17.2007 1:33am
jim:
It isn't entrapment if an officer tells you he isn't a cop.

In other news, you don't owe me a beer.
12.17.2007 1:37am
Curt Fischer:
Many citizens don't have much more beyond the vague conception that police powers are subject to some kind of restriction. The full extent and nature of the restrictions is not exactly common knowledge.

Perhaps it is just natural for people to assume (incorrectly) that one such restriction is that public officials may not use brazen duplicity in the performance of their public duties.

I am not a lawyer and what little I know about the law comes mainly from reading the VC. I remember being aghast to learn that cops can lie with complete impunity during interrogations.

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?
12.17.2007 1:44am
whit:
"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.
12.17.2007 2:03am
Gene Hoffman (mail) (www):
This story from San Jose seems apropos of the work you are completing Gene:

http://www.mercurynews.com/portal/ci_7736235?_loopback=1

-Gene
12.17.2007 2:34am
Gene Hoffman (mail) (www):
Doh... Preview is your friend - s/Gene/Orin

-Gene
12.17.2007 2:34am
Viceroy:
The common perception is perfectly understandable.

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.
12.17.2007 2:35am
David M. Nieporent (www):
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.
12.17.2007 2:50am
Tek Jansen:
whit: whoah! Johnny Utah posts here.
12.17.2007 3:12am
Phelps (mail) (www):
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."
12.17.2007 3:20am
Jay Levitt (mail) (www):
I've always assumed it came from the same canon of law as "No backsies" and "I called shotgun". There's also something Rumpelstiltskinesque about it.

Closer to home, yet oddly related: There's a general presumption that "As long as I say a rule in the right way, you have to obey it" - e.g. the law rests on phraseology, not, well, laws. In both cases, the law is like a spell - once you learn the exact incantation, you're golden.


Witness the prevalence of utterly unenforceable "If I post a sign in my store, you have to obey it"-style policies, or "If you're reading this web site and you're a LEO, you must leave now", etc. not to mention Terms of Service and EULAs everywhere.

(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.)
12.17.2007 3:22am
K Parker (mail):
Whit,
they look for people who stand bladed
Could you please explain what this means?
12.17.2007 3:27am
DJMoore (mail) (www):
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. I'm guessing that something similar to narcotics agents being able to take a quick snort or toke to "prove" they were cool applies. No idea whether a real prostitute would agree to the freebie either.
12.17.2007 4:09am
wrffr:
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.
12.17.2007 6:12am
Brett Bellmore:

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.


I don't know, perhaps it's actually a good sign for our society that people don't automatically assume everything that would make a cop's life is legal. On the day that the public internalizes the government's own views on what the government ought to be able to get away with, we'll have taken a huge step towards a police state.
12.17.2007 6:27am
djh5:
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.
12.17.2007 6:32am
BruceM (mail) (www):
People believe this is true because they've seen it over and over again as a plot device in movies and TV shows.

Entrapment, whatever it is, sounds cool, and thus makes for an exciting plot device. A cop lying about being a cop, when asked up front, sure sounds like it would be entrapment, thus it's become a standard plot device. Real entrapment would be too difficult to explain in a TV show or movie.

Also, when I take my tinfoil hat off for a brief moment, it seems to me that law enforcement actively encourages the entertainment industry to keep using this "it's entrapment if you ask a cop if he's a cop and he says no" plot device, because the masses then believe it and will rely on a police officer's lie to "The Question" ... law enforcement would be stupid NOT to actively support the continued use of this plot device in movies and TV shows.

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.
12.17.2007 6:36am
A. Zarkov (mail):
"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.
12.17.2007 6:40am
Stephen C. Carlson (www):

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.


That didn't work for George Michael.
12.17.2007 7:15am
James B. (mail):
I am pretty sure I saw this on an episode of Police Story back in the 70s.
12.17.2007 7:39am
rbj:
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.


That actually describes a martial arts stance.
12.17.2007 7:52am
GV:
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.
12.17.2007 7:53am
gawaine (mail):
@djh5
On the "Cop in a hat" urban legend - IIRC, about eleven years ago in Indiana, there was a spate of assaults on people by faux police officers - unmarked cars pulling young women over, you can guess the rest.

The news media came out with reports that said that you could only be pulled over by the State Police if they were in full uniform (including hat), among other things. That may or may not have been true - or it may have been temporarily true, a policy statement to help during a perceived crisis - but I assumed it was true in Indiana. I wouldn't generalize it to other states, though.
12.17.2007 7:58am
Rodger Lodger (mail):
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.
12.17.2007 8:14am
DiverDan (mail):
This is completely off topic, but is Wayne LaFave still writing on this? Or well into a well-earned retirement? I had LaFave as a teacher of both 1L Crim Law and Crim Pro in 1978-79 at University of Illinois, &he was one of the best teachers there, even if I had litte real interest in Criminal law (I still avoid criminal cases at all costs). His passion while discussing "crimes against nature" and the old common law crime of being a "common scold" were both infectious and hilarious (you can tell, I still remember &I haven't opened a criminal text or casebook in almost 30 years). If he's still working on it, tell the old perv a former student sends a fond hello.
12.17.2007 8:35am
BruceM (mail) (www):
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.
12.17.2007 8:40am
Estel1331:
To answer Orin's question, the reason this myth has life is memetic propagation: the idea is plausible, and many people would like to believe it (or would like others to believe it). Props to Jay Levitt, above, for also noting the "incantation" approach to law.
12.17.2007 8:42am
Happyshooter:
Speaking of Kamisar, is he still super impressed with himself and disdainful of the police?

His classes were hard to sit through.
12.17.2007 8:46am
DJR:
In my criminal procedure class we watched a videotaped interrogation by D.C. police. If you see it really happen, you'd be astonished, as I was, at the lies the police officer was telling. It wasn't like law &order, where the cop cleverly outsmarts the defendant with the truth.

The cop asks things like, "If you weren't anywhere near the burglary, why did we find your fingerprints inside the house? They are a match, a perfect match. Why did we find the watch that was stolen in your apartment? If you confess, things will go better for you. This is the last time you will have a chance to walk away from this. If you get a lawyer, I can't help you any more. You'll do ten years. If you tell me what happened, I can help you. A lawyer can't help you, not with the evidence we have."

But there's no fingerprint and no watch. I watched this video and even though there eventually was a confession, I could not tell whether he really did it or not, because I think a reasonable person who believed that the cops had the evidence they said they had might confess under the circumstances.
12.17.2007 8:52am
Kieran (mail) (www):
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.
12.17.2007 9:11am
JunkYardLawDog (mail):
I believe this false belief comes from Television cop shows and television dramas.

I've seen it more than once on TV.

Gary
12.17.2007 9:16am
Gilbert (mail):

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.
12.17.2007 9:23am
Patrick216:
DJR:

The basic idea is that a truly innocent suspect would not agree that he committed the crime even if confronted with alleged evidence that tied him to the scene. The use of the kind of bluffing tactics you are seeing above is used as a screening tool.

What worries me about those interrogations is the degree to which they induce false confessions. Project Innocence, for example, has created a cottage industry of proving the innocence of hundreds(!) of guys in prison for rape convictions where they confessed to crimes they didn't commit.

From a game theoretic approach, you can see how someone might be induced to plead guilty to some kind of crime to reduce his likely prison term. I don't know that it works in a burglary context quite as well; if the suspect knows he wasn't in the apartment, then he knows he stands a good chance of "beating the rap" and would probably speak to a lawyer before confessing. But in any situation where there's a plausible connection between the suspect and the victim -- which would likely arise in sex crimes and drugs, to name two examples -- I'd be much more worried about the "strategic pleading" problem described above.
12.17.2007 9:25am
Temp Guest (mail):
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.
12.17.2007 9:28am
Just Dropping By (mail):
I don't get why people think television is blame for this. Just off the top of my head, all of the Law &Order series, NYPD Blue, and Hill Street Blues have featured multiple episodes in which a criminal asks somebody if they are a police officer, the officer says, "No," then moments later busts (or threatens to bust) the criminal, the criminal complains, "That's entrapment," and the police roll their eyes or comment about how stupid the criminal is. It seems to me that this belief is lingering on despite media efforts to correct it.
12.17.2007 9:32am
Crackmonkeyjr (www):
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.
12.17.2007 9:40am
Ralph Phelan (mail):
Perhaps it is just natural for people to assume (incorrectly) that one such restriction is that public officials may not use brazen duplicity in the performance of their public duties.

Why should they assume that police would be held to such a higher standard than politicians?;-)
12.17.2007 9:42am
Ralph Phelan (mail):
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.
12.17.2007 9:49am
Ralph Phelan (mail):
if the suspect knows he wasn't in the apartment, then he knows he stands a good chance of "beating the rap" and would probably speak to a lawyer before confessing.

Only if you assume cops never plant evidence.

"Confess or we'll send you/someone you care about to prison on a trumped up charge" can be a very powerful motivator in the hands of a corrupt police department, such as the pre-reform LAPD Ramparts division, or the current Durham NC police department.
12.17.2007 9:53am
JosephSlater (mail):
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.
12.17.2007 9:58am
Wayne Jarvis:
DJR: The most troubling part of what you describe is the ultimatum.

To the other posters: is that type of ultimatum (i.e., "if you hire an attorney we won't negotiate with you") permissible? To me, this is a much more serious 5th/6th Amendment issue than the mere failure to give a Miranda warning.
12.17.2007 10:16am
Sammimo (mail):
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).
12.17.2007 10:19am
OK lawyer (mail):
I think the original misconception arose from a Beverly hills 90210 episode. Brenda was going on some PETA style raid to free some lab animals, and the undercover cop in the group actually asked her this exact question, with that reasoning. Obviously, if the cop asked the question, the premise is false, but how many people remember that, or paid that close of attention?
12.17.2007 10:21am
Aultimer:

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.
12.17.2007 10:21am
Bama 1L:
There is a folk belief, certainly related, that the owner or occupier of property may post a sign requiring law-enforcement personnel to identify themselves upon entry, and they must comply even if undercover. I've seen professional-looking signs to this effect at fraternity houses.
12.17.2007 10:24am
David Chesler (mail) (www):
(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.)
12.17.2007 10:25am
WHOI Jacket:
But what is the fine for stealing a policeman's helmet?

Is it still five pounds?
12.17.2007 10:26am
uh clem (mail):
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.
12.17.2007 10:30am
ReaderY:
Regarding that rule about if three witnesses testify to previous sexual intercourse one can get out of a rape charge -

See e.g. Mississippi:

SEC. 97-3-67. Rape; carnal knowledge of unmarried persons over fourteen and under eighteen years of age.

Any person who shall have carnal knowledge of any unmarried person of previously chaste character younger than himself or herself and over fourteen (14) and under eighteen (18) years of age, upon conviction, shall be punished either by a fine not exceeding Five Hundred Dollars ($500.00), or by imprisonment in the county jail not longer than six (6) months, or by both such fine and imprisonment or by imprisonment in the penitentiary not exceeding five (5) years; and such punishment, within said limitation, shall be fixed by the jury trying each case, or by the court upon the entry of a plea of guilty.

Still the law in a number of Southern states. It used to be the State had to prove chastity as an element of the crime -- a complaining child had to prove she was a virgin and was presumed not to be -- but the law was modernized to create an affirmative defense. Hence

SEC. 97-3-69. Rape; "chaste character" presumed; uncorroborated testimony of victim insufficient.

In the trial of all cases under the last preceding section, it shall be presumed that the female was previously of chaste character, and the burden shall be upon the defendant to show that she was not; but no person shall be convicted upon the uncorroborated testimony of the injured female.

In other words, not an urban legend at all. (Or perhaps more accurately, not a rural legend.)
12.17.2007 10:38am
wm13:
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.
12.17.2007 10:42am
K Parker (mail):
A. Zarkov,
For example they cannot tell you that they are torturing your daughter in the next room until you confess.
But they can, everywhere or almost everywhere, tell you that your alleged accomplice has confessed. I agree there's quite a distance between these two statements, 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?
12.17.2007 10:55am
A. Zarkov (mail):
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.
12.17.2007 11:03am
William Oliver (mail) (www):
"People believe this is true because they've seen it over and over again as a plot device in movies and TV shows."

This reminds me of a time I was watching TV with one of my godchildren. We were watching a cop show of surprisingly recent vintage and there was a phone call from the bad guy. Of course, in TV land, they had to keep the bad guy on the line 3 minutes so they could trace the call. My godchild turned to me and she asked "Why don't they just get caller ID?"
12.17.2007 11:07am
Ubertrout (mail):
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.
12.17.2007 11:10am
M.:
Speaking of Kamisar, a belief that you are entitled to the truth from law enforcement *may* be related to the Miranda warnings and other changes in criminal procedure from the 1960s. The warning itself and asking for a lawyer are actually incantations that have legal effect, leading to a belief in others.
12.17.2007 11:11am
Thoughtful (mail):
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?
12.17.2007 11:14am
Bama 1L:
This could get very law and anthropology.
12.17.2007 11:14am
cirby (mail):
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..."
12.17.2007 11:22am
A. Zarkov (mail):
K. Parker:

"But they can, everywhere or almost everywhere, tell you that your alleged accomplice has confessed."

Absolutely. That's one of the most common lies the police tell a suspect to get him to confess. But again that would not induce an innocent person to confess. An innocent person would know the police are lying.

" … 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?"

I don't know if such a statute exists. However, as a practical matter, we don't need it. At trial the police would have to testify under oath that they in effect tortured someone into confessing. If they had no other evidence than your coerced confession, the defense could ask the judge to rule the evidence as inadmissible. No evidence, no case. Now if the police are willing to commit perjury by lying under oath, you have a problem.
12.17.2007 11:24am
Christopher Cooke (mail):
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.
12.17.2007 11:29am
Curt Fischer:
A. Zarkov on police interrogators lying to solicit confessions:

But again that would not induce an innocent person to confess. An innocent person would know the police are lying.


I agree that an innocent person would know the police are lying. But why do you assume that such knowledge would prevent an innocent person from confessing? That point is far from clear to me.
12.17.2007 11:30am
Greg (www):
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.
12.17.2007 11:30am
Aultimer:

Absolutely. That's one of the most common lies the police tell a suspect to get him to confess. But again that would not induce an innocent person to confess. An innocent person would know the police are lying.

That's silly. If that person were guilty and you were innocent, it's perfectly reasonable that they'd confess and then implicate you to push off some of the blame - "Yeah, I was in on robbing the store but Zarkov shot the shopkeeper."
12.17.2007 11:36am
Rob Perelli-Minetti (mail):
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.
12.17.2007 11:40am
John M. Perkins (mail):
In, People v. Bello, 92 N.Y.2d 523, 705 N.E.2d 1209 (NY 1998), Bello asked the undercover if he was a cop. The asking was:


the evidence ... [of] defendant's alleged role as "screener," [and] was sufficient to support indictment as accomplice to third-degree criminal sale of controlled substance.
12.17.2007 11:44am
abb3w:
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. =)
12.17.2007 11:46am
Rob Perelli-Minetti (mail):
John Perkin's post on the Bello case highlights the problem of asking for the entrapment defense: it would strongly suggest "predisposition" to commit a crime in a subjective test jurisdiction and would go to whether a reasonable law abiding person would have acted as did the defendent did under the circumstances -- except, perhaps, when confronted by someone demanding entry to your house or vehicle, or seeking to stop you going about normal legal business, would a reasonable person ask another if he or she were a cop.

Entrapment really is a very difficult defense to successfully raise under any test, despite the intuitive attractiveness of the defense from a 'who will guard the guardians' viewpoint. Government behavior has to be really egregious, and the defendant has to be something close to pure as driven snow, to convince a court.
12.17.2007 11:55am
Greg (www):

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 .
12.17.2007 12:00pm
Bruce Hayden (mail) (www):
Whit pointed out that dopers seem to have many misconceptions along this line. That reminded me of something that happened maybe a decade or so ago. Mark Lemley would have a CyberLaw conference every spring in Austin. I maybe spoke there once, then found that the speakers were more interesting than the CLE, and would show up just in time for the speakers' dinner to let out, and connect up with them as they set out for the evening (btw, this is how I met EV). One night, we were in a dive on east 6th street listening to music. I was the only one wearing a sport coat. So, this one hippi looking guy lying on a beanbag on the floor got up, pulled up my coat in back, looked, and then sat back down, apparently satisfied. Apparently, he figured that I was a narc, and was looking for my gun. No gun, no narc, and he was fine.
12.17.2007 12:06pm
whit:
"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.
12.17.2007 12:08pm
whit:
"From a game theoretic approach, you can see how someone might be induced to plead guilty to some kind of crime to reduce his likely prison term. "

see: game theory and "the prisoner's dilemma" . Google it.

game theory is often counterintuitive, but amazingly useful and has been incorporated by everybody from military leaders, to CEO's, to futures traders.

classic game theory : the prisoner's dilemma

what's interesting is that an outcome maximizing strategy is often very different from what you think it would be until you actually setup the game matrix and study the relative outcomes
12.17.2007 12:10pm
Duffy Pratt (mail):
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).
12.17.2007 12:11pm
Bama 1L:
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.

I recall that, under some statutory approaches, there can be no criminal liability if a law enforcement officer (police, prosecutor, etc.) misrepresents the illegality of the conduct in question. Of course, that would only protect people who are trying not to break the law.
12.17.2007 12:12pm
whit:
"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
12.17.2007 12:13pm
A. Zarkov (mail):
Aulimer:

That's silly. If that person were guilty and you were innocent, it's perfectly reasonable that they'd confess and then implicate you to push off some of the blame - "Yeah, I was in on robbing the store but Zarkov shot the shopkeeper."

If the person were absolutely innocent and not a party in any way to a crime, why would he confess? If the police tell you that Joe Blow has implicated you in a crime, you would know either the police or Joe Blow is lying. As a practical matter, you don't care. You don't confess.
12.17.2007 12:15pm
H-town Lawyer (mail) (www):
I was told by a former undercover policewoman: If the prostitute has all her teeth, then she's a cop.
12.17.2007 12:16pm
whit:
"Absolutely. That's one of the most common lies the police tell a suspect to get him to confess. But again that would not induce an innocent person to confess. An innocent person would know the police are lying."

in the field of interrogation "science" such lies are referred to as "tactical deception".

lol. you gotta love terms like that.

cops (especially swat guys) love things to be tactical!

Tactical Mouthwash!
Tactical Citation Book!
Tactical Lunch break!

etc.

:)
12.17.2007 12:17pm
whit:
"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
12.17.2007 12:21pm
whit:
"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"

whether or not the cop is allowed to do this varies by agency. i know some agencies do allow cops (usually undercovers picking up prostitutes) to show them their "parts" and even allow the prostitute to touch them.

i could tell some stories... but i won't :)
12.17.2007 12:24pm
whit:
"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.
12.17.2007 12:27pm
Ralph Phelan (mail):
A. Zarkov (mail):
Aulimer:

That's silly. If that person were guilty and you were innocent, it's perfectly reasonable that they'd confess and then implicate you to push off some of the blame - "Yeah, I was in on robbing the store but Zarkov shot the shopkeeper."

If the person were absolutely innocent and not a party in any way to a crime, why would he confess? If the police tell you that Joe Blow has implicated you in a crime, you would know either the police or Joe Blow is lying. As a practical matter, you don't care. You don't confess.


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.

At the other extreme of informedness, if you or anyone you know has ever been directly impacted by "testilieing," you again might not make that assumption.
12.17.2007 12:34pm
Brett Bellmore:

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.
12.17.2007 12:37pm
Ralph Phelan (mail):
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.


That's the ideal, and probably the vast majority of real interrogations. But there are exceptions....
12.17.2007 12:38pm
Q:
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").
12.17.2007 12:38pm
BruceM (mail) (www):
A. Zarkov: Yes, like I said, one would never learn of such a situation. I'm just saying it's likely happened, I don't have cases or known examples of it to cite. I'm sure it's quite infrequent, but the thought that an undercover officer has never been a party to a murder (of a known/presumed criminal) to keep his cover so as to be able to catch a really big target is not believable to me. The evidence of the cop's bad behavior during his undercover investigation would be irrelevant at the defendant's trial, the state would object to keep it out and win every time.

"Officer, while you were undercover infiltrating the mob, didn't you help count the drug money?" OBJECTION - relevance... Sustained.

Note that counting drug money is sufficient to be charged in a drug conspiracy so long as you knew it was drug money.

My point is cops commit crimes all the time. Some big, some small.
12.17.2007 12:46pm
Thorley Winston (mail) (www):
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.
12.17.2007 12:47pm
Mr. Mandias (mail) (www):
<i>That, plus you run the risk of having to marry Anoria Glossip</i>

Honoria Glossop, doncha know?
12.17.2007 12:51pm
Thoughtful (mail):
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...
12.17.2007 12:53pm
whit:
""Officer, while you were undercover infiltrating the mob, didn't you help count the drug money?" OBJECTION - relevance... Sustained.

Note that counting drug money is sufficient to be charged in a drug conspiracy so long as you knew it was drug money.

My point is cops commit crimes all the time. Some big, some small."

that;s not a crime, any more than officer who buys drugs while undercover - possession - is a crime

it's called ROLE PLAYING hth
12.17.2007 12:56pm
SenatorX (mail):
Saw this occur in The Departed just the other day.
12.17.2007 12:57pm
K Parker (mail):
Greg,

Thanks for the cite from Haynes v. Washington. That doesn't however (as far as I can see) back up A. Zarkov's point that there are different degrees of coercion, some of which are legal and some which aren't.

whit,

You (at least based on the persona you present around here) are definitely one of the good guys. However, you really shouldn't make statements like
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).
without at least some kind of disclaimer about it being violated, on occasion, by bad guys in uniform.
12.17.2007 1:00pm
Thoughtful (mail):
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.
12.17.2007 1:01pm
A. Zarkov (mail):
BruceM:

I didn't mean to imply it never happens in the sense that such a thing is impossible. Never say never. That goes for extraterrestrial visitors too.
12.17.2007 1:05pm
Michael Edward McNeil (mail) (www):
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.
12.17.2007 1:08pm
OrinKerr:
Thoughtful,

My apologies if my response was too oracular for you; I am not a contracts scholar, and you are asking me a question of contract law. 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. If you want to learn more, google "contract void public policy" and I'm pretty sure you'll find a lot.
12.17.2007 1:10pm
Muskrat:
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.
12.17.2007 1:10pm
Greg (www):
K Parker, it's a factual inquiry for the fact-finder. Did the coercion amount to such that "the defendant's will was overborne at the time he confessed?" So, you can coerce someone a little, but not a lot.

You can find out more about the legal boundaries of interrogation by googling "interrogation voluntariness."

Here is a longer article on the subject.
12.17.2007 1:12pm
A. Zarkov (mail):
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.
12.17.2007 1:13pm
Adamant (mail):
Jay -- Let's not get ahead of ourselves. Calling shotgun is a common law tradition so old that its origins cannot be accurately traced. The canards about undercover cops having to out themselves may not be true, but he who CALLS shotgun shall RIDE shotgun.
12.17.2007 1:17pm
SeaDrive:
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?
12.17.2007 1:20pm
A. Zarkov (mail):
Of course innocent people sometimes confess. But that's not the issue here. The issue is to what extent the police can coerce a confession with a lie and get away with it in the sense that the innocent confessor gets convicted. An example where this happened would be most useful to the discussion, along with how commonly this happens.

There are cases where people confess to a crime they didn't commit as part of a plea bargain. So technically speaking they get sent to jail for something they didn't do. But that does not mean they didn't something else. Usually far worse.
12.17.2007 1:21pm
gattsuru (mail) (www):
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.
12.17.2007 1:26pm
byomtov (mail):
It's clear from this thread that the public has lots of misinformation as to the laws governing police conduct.

How does, or should, this influence court decisions as to what a "reasonable person" involved in an interaction with the police might believe about their powers and his own rights?
12.17.2007 1:26pm
Ralph Phelan (mail):
"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."
12.17.2007 1:26pm
NaG (mail):
Thoughtful: The simple answer to your question is that no court will enforce a contract that aids or abets criminal activity. Period. And I'm pretty sure the courts are not going to uphold some sneaky lawyer's idea that somehow gets around this by creating an alternative "legitimate" contract for bona-fides that allows a significant penalty to be assessed against undercover agents -- even assuming you get past the "clean hands" problem, which is probably enough in itself to deep-six any such attempts.
12.17.2007 1:31pm
Opus:
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.
12.17.2007 1:33pm
hattio1:
Whit says;

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).

The unfortunate thing is that 99% of the time, the cops already know the truth. Just ask them. I agree with you that most of the time LEO wants to get the person who is guilty. But, if they go in with a pre-conceived notion of what the truth is, and attempt to get that story out, then it is basically indistinguishable from LEO just trying to get a confession.
Oftentimes LEO assume that if they're intentions are good, then coercive tactics (or tactical deception if you will) doesn't harm anyone. But lots of people admit to crimes they don't do, especially when they believe (or know) that officers lie under oath frequently. Why believe your innocence will be proven, if you believe other innocent people were wrongly convicted?
12.17.2007 1:39pm
alkali (mail):
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.
12.17.2007 1:40pm
OrinKerr:
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.

I would guess it's the question cops prep for the most, actually.
12.17.2007 1:47pm
hattio1:
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.
12.17.2007 1:55pm
JBL:

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

For example, it's not unheard of for people to be pressured into relatively minor drug use. It seems perfectly reasonable that at some point a police officer should not be able to get a bust by going undercover and pressuring someone into an illegal action they would not have taken on their own. "We were at a party and I wasn't expecting to do any drugs but this guy just kept harassing me until I agreed to do a little just to get him to lay off," sounds like a plausible defense. I don't know how valid it is, but depending on the circumstances it sounds reasonable.

I would think that the idea behind asking everyone if they are a cop isn't that cops are required to say "Yes," it's that it lays the groundwork for subsequent actions. "Gee, I don't normally have sex with strangers, and I felt awkward when he insisted on paying me afterwards, but he said he wasn't a cop and so I knew it was sleazy behavior but I didn't think it would get me arrested." Or something.

Combine this ambiguity with the law's affinity for bright-line distinctions and procedural rules, and the "are you a cop" rumor is at least comprehensible.
12.17.2007 2:04pm
Q:
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.
12.17.2007 2:17pm
DJR:
How about, instead of getting a sharp lawyer to come up with a contract that ensures a criminal could rely on the assertion that a potential buyer isn't a cop, the criminal could simply ask for ID, then run a background check. Even a simple credit report from freecreditreport.com would tell you if the person is a cop. If you have a front organization that gives loans (like a car dealership), you can do this instantly. This would at least make the cost of conducting undercover investigations a bit more expensive for the police because they would have to come up with actual fake identities for undercover transactions. Of course it would also raise the overhead for drug and prostitution transactions, would take time, and might drive away some customers, but if it minimizes your risk of jail it might be worth it.

The only problem with this is that the reason people are criminals is because they don't want to do business the way ordinary people who want to, the way that minimizes risks.
12.17.2007 2:21pm
Michael Edward McNeil (mail) (www):
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.”
12.17.2007 2:21pm
alkali (mail):
OrinKerr @ 1:47 p.m.: I'm sure that question is covered if there is any kind of meaningful prep for the work, but there's little harm in asking.
12.17.2007 2:22pm
Rob Perelli-Minetti (mail):

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.
12.17.2007 2:23pm
DJR:
Q: I don't think so. To be consideration, the promise must be to do or refrain from doing something that the promisor is legally entitled to do. Someone who promises not to purchase illegal drugs is not promising to forbear doing something he is entitled to do.

An example of an enforceable promise to forbear from doing something would be a promise not to sue if the promisee pays $10,000. You could also promise not to take aspirin, or promise not to drink until you're 22 years old, and both of those would be enforceable.
12.17.2007 2:26pm
Milhouse (www):
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.
12.17.2007 2:38pm
Jay Levitt (mail) (www):
@David Chesler: See this Q&A from NY State about "Posted". It doesn't cite a specific law, and IANAL, but everyone else here is.

And, as you point out, there are a few actual magic incantations. Sometimes they're real (Miranda), and sometimes they're just perpetuated by lawyers (or management) who, once they've found something that seems to work, are loathe to change it for fear of screwing something up.

F'rinstance, most airlines seem to have the exact same safety script, despite the fact that they can (I think) pretty much say anything they want that gets the point across. Virgin America, though, has a new video with such "edgy" takes as "Not only does the safety card have pretty pictures..." and "For the 0.0001% of you who have never operated a seat belt before..."

Someone mentioned Hardcore -- written and directed by Paul Schraeder. He also wrote Taxi Driver

@Duffy: This explains the other legend I heard, which is that if you ask a cop "Are you talking to me? Are YOU talking to ME?" he has to answer "Yes".
12.17.2007 2:45pm
Alaska:
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.
12.17.2007 2:46pm
Alaska:
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.
12.17.2007 2:46pm
Alaska:
I have no idea why that posted twice. I only hit post comment 1x.
12.17.2007 2:47pm
TruePath (aka logicnazi) (mail) (www):
JBL:

Well it's a tough argument to make but that has worked. There was a relatively recent case in SF where the cop went into a gay bar and ended up having drinks and generally flirting with one of the patrons. The cop, knowing that this particular type of gay scene tended to have access to meth, repeatedly pressured the guy he was flirting with to buy him meth. This guy refused several times until he finally gave into the cop and was arrested. This guy successfully plead entrapment but it's the only such case I'm aware of.

-----------

Now here I think is a more interesting question. Can a cop pretend to be an attorney? Presumably he can't do so during the formal interview (certainly not fake a plea deal) but can he do so on the street? Say if I'm a terrorist who takes a bunch of hostages and demands to speak to a prosecuting attorney to negotiate a deal can a cop fake being an attorney? Is there an exception to the rules against lying for attorneys if they are negotiating while a hostage's life is in danger?

More interestingly if you refuse to deal drugs to anyone who doesn't represent themselves to both be an attorney and not working for/reporting to law enforcement are you safe? I mean presumably the non-lawyers who want drugs will just lie to you but can the police get away with this? What if you really do just deal drugs to other attorneys? Are you then safe from undercover officers.

Wait, how could the police ever investigate corrupt lawyers? So long as the corrupt attorneys aren't idiots they won't invite anyone into their conspiracy who they haven't seen practicing law and then can't they just ask these attorneys if they are working undercover/wearing wire/etc..
12.17.2007 3:08pm
cirby (mail):
whit:

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.



Different situation. We're talking about people claiming they bought drugs from guys who were either NOT dealers at all, or who were in completely different states at the time of their claimed transactions. As opposed to someone with a stable job situation, they were looking at blown careers if they DIDN'T get the arrests, no matter what. That sort of thing is the reason the undercover cops ended up getting into so much trouble. That jurisdiction had some real law enforcement honesty issues at the time - find the book "Smith County Justice" and give it a read to find out how NOT to be a cop.

This is, despite your claims, a major problem with undercover cops, who get into the "get the bust no matter what" mode. I've known way too many ex-undercover cops who had huge issues with this. They get pressure from above ("This is getting expensive, I want some results NOW"), and try to move things along because they "know" they have the right guys.

In the other case, a recorded session of a police interrogator lying his ass off about pretend "evidence" should be great fodder for a halfway competent defense attorney, especially if the accused had a semi-coherent story as counterpoint. A good "we're going to arrest your mother" tossed in should make for an easy trial for the defense... because if someone lies like that in a recording, it sure makes that chain of evidence seem a lot less solid for purposes of real proof.

"So, Sergeant, you lied to the defendant on that tape almost continuously, you threatened his family to try and get a confession, and you said you were going to kick his dog. And now you say this evidence is absolutely, positively, from his house? Why should ANYONE trust anything you have to say after that performance?"
12.17.2007 3:16pm
hattio1:
Alaska
It didn't post twice on my screen. But, I think you are unmasked for any posters here who follow AK cases. BTW, great job on that case.
12.17.2007 4:14pm
William Oliver (mail) (www):
"some do. false confessions happen."

In fact, a surprising proportion of confessions are false -- in some studies more than 20%. This has been a big problem in forensic medicine, resulting in the creation of false syndromes. For instance, much of the basis for so-called "Shaken Baby Syndrome" is based on confession data, and the closer one looks at it, the worse the real medical evidence becomes. However, once it became medical dogma, it snowballed -- to the point that people were confessing to and being convicted of things that simply could not have happened.
12.17.2007 4:22pm
whit:
"Different situation. We're talking about people claiming they bought drugs from guys who were either NOT dealers at all, or who were in completely different states at the time of their claimed transactions. As opposed to someone with a stable job situation, they were looking at blown careers if they DIDN'T get the arrests, no matter what. That sort of thing is the reason the undercover cops ended up getting into so much trouble. That jurisdiction had some real law enforcement honesty issues at the time - find the book "Smith County Justice" and give it a read to find out how NOT to be a cop. "

i remember that case now. iirc, there were some racial issues, too. it was a small town, etc.

"So, Sergeant, you lied to the defendant on that tape almost continuously, you threatened his family to try and get a confession, and you said you were going to kick his dog. And now you say this evidence is absolutely, positively, from his house? Why should ANYONE trust anything you have to say after that performance?"

i understand your point, but i think it's rubbish. lying in an interrogation has ZERO relation to veracity in court. lying in interrogation (and even in some interviews i might add - with victims and witnesses - to test THEIR veracity) is a legal, ethical, and effecitve technique

lying in court is a crime.

the former is accepted, and even encouraged.

the latter is a crime, and should be prosecuted
12.17.2007 4:31pm
whit:
"Well it's a tough argument to make but that has worked. There was a relatively recent case in SF where the cop went into a gay bar and ended up having drinks and generally flirting with one of the patrons. The cop, knowing that this particular type of gay scene tended to have access to meth, repeatedly pressured the guy he was flirting with to buy him meth. This guy refused several times until he finally gave into the cop and was arrested. This guy successfully plead entrapment but it's the only such case I'm aware of. "

imo, that is blatant entrapment. i generally tended to try to avoid (as a male) buying from females, for exactly that reason. this is a problem with female U/C's is that the "i only sold to her cause she was coming on to me defense" (which in some cases may be valid) comes up. it's just not worth it.

i would frequently use women to INTRODUCE me to dealers, which is entirely different. the women weren't going to be prosecuted. a cop can flirt with a female bartender for instance or waitress. they are excellent resources to "intro" you to a dealer.

but imo, any sort of sexual/flirtatious implications between UC and dealer is a total no-go. it just aint cricket
12.17.2007 4:36pm
hattio1:
Whit says;

i understand your point, but i think it's rubbish. lying in an interrogation has ZERO relation to veracity in court. lying in interrogation (and even in some interviews i might add - with victims and witnesses - to test THEIR veracity) is a legal, ethical, and effecitve technique


I'll agree with you that its legal and effective. I'll even accept that the police standards call the technique ethical. I have to disagree.
As to whether it has ZERO relation to a tendency to lie under oath, I have to disagree. I hear officers talk all the time about how they wouldn't put their careers on the line. But, as a practical matter, officers who lie under oath won't be prosecuted unless it's absolutely clear they lied, AND, enough time hasn't gone by that they can't plausibly claim to have forgotten. I would turn the question around. If they have already put their credibility on the line by arresting, testifying in front of the GJ, and writing a police report, and there is no realistic chance of ANY career harm, why wouldn't they lie?
Finally, as to whether it has ZERO relevence, do you consider it irrelevent if the suspect lies in the interrogation? If it's sauce for the goose....
12.17.2007 4:45pm
Just Dropping By (mail):
Can a cop pretend to be an attorney?

There was actually a post on that question several months ago on this blog. IIRC, the Washington Supreme Court found that (in Washington state at least), police officers are free to pose as lawyers and even purport to want to represent the suspect as a client in order to gain evidence against them.
12.17.2007 5:43pm
owd (mail):
Snopes has done some research on the history:
http://www.snopes.com/risque/hookers/cop.asp
12.17.2007 5:44pm
whit:
"But, as a practical matter, officers who lie under oath won't be prosecuted unless it's absolutely clear they lied, AND, enough time hasn't gone by that they can't plausibly claim to have forgotten."

no, you mean presidents won't (see clinton)

fuhrman plead guilty to perjury
:)

" I would turn the question around. If they have already put their credibility on the line by arresting, testifying in front of the GJ, and writing a police report, and there is no realistic chance of ANY career harm, why wouldn't they lie? "

because it's wrong

"Finally, as to whether it has ZERO relevence, do you consider it irrelevent if the suspect lies in the interrogation? If it's sauce for the goose...."

of course it's relevant. but it's a completely different issue. lying on purpose to elicit truthful information is NOT the same as lying (in the case of a suspect) to allay suspicion, or lying (in the case of a "victim" - see: duke rape case) are totally different.

lying under oath is wrong. lying in interrogation IS NOT. you may not agree with that, but it's true.
12.17.2007 6:00pm
whit:
"There was actually a post on that question several months ago on this blog. IIRC, the Washington Supreme Court found that (in Washington state at least), police officers are free to pose as lawyers and even purport to want to represent the suspect as a client in order to gain evidence against them"

now THERE is a case that i agree with the defense on. the cops (seattle PD iirc) sent letter(s) to potential suspects posing as law firm, and then when the person returned the envelope, they used the DNA from the envelope

imo, cops should NEVER pose as a lawyer, a doctor, or a clergy member (or at least i can think of no instances where that should not result in suppression)
12.17.2007 6:02pm
snichael (mail):
We here in the Phoenix area had an excellent "education" in false confessions about 15 years ago, with no fewer than 6 defendants giving them in 3 separate high-profile murder cases within the span of a year (the famous Buddhist Temple massacre; and 2 other cases). If anyone is interested in the actual process, a Phoenix police detective (who may or may not have been involved himself in the Buddhist Temple interrogations) wrote an lengthy article a few years later for Phoenix Magazine detailing exactly HOW ones goes about "forcing" a confession out of a suspect (true or...otherwise). [I'm guessing that the article was in 1994 or 95(?)]

Also: on the topic of The Question...
How about an explanation for its persistence based on "Unnatural Selection"? The prostitutes who asked "Are you a cop?" and then WERE arrested are A) more likely in jail and not physically able to spread that info; and/or B) too embarrassed to admit what happened. On the other hand, prostitutes who asked "Are you a cop?" and WERE NOT arrested, are still out and passing along this surefire "test" - with no personal evidence that it's not valid.
12.17.2007 6:03pm
seadrive:
I should hope that it's not legal for cops to set up a sting using a fake attorney's office and volunteering to represent clients.

Please tell me it's not.
12.17.2007 6:22pm
Rubber Goose (mail):
Estel1331: Props to Jay Levitt, above, for also noting the "incantation" approach to law.

I....declare....BANKRUPTCY!!!!!!!!!
12.17.2007 6:32pm
BruceM (mail) (www):
Cops want to convict people, they don't want to solve cases. There's a difference, and it's important. They see a conviction as a solved case. Sometimes it's easier to convict the wrong person than the right person, though.
12.17.2007 6:35pm
Just Dropping By (mail):
I should hope that it's not legal for cops to set up a sting using a fake attorney's office and volunteering to represent clients.

I can't find the Volokh post, but here's a post on a different site concerning the event at issue:

http://www.blueoregon.com/2007/05/washington_supr.html
12.17.2007 6:49pm
hattio1:
Whit,
You've got Fuhrman. That actually proves my point. Only if its absolutely certain that an officer was lying under oath will they be prosecuted. And, you have to remember, that case was a freaking media circus from the beginning. How many officers that you have worked with were EVER charged (criminally, not an internal investigation) with perjury? Can you really say that there was never any evidence that any of them committed perjury?
12.17.2007 6:53pm
whit:
"Cops want to convict people,"

rubbish. first of all, we have no power to convict people.

we are merely impartial evidence gatherers. only a jury can convict somebody.

" they don't want to solve cases."

rubbish

"There's a difference, and it's important. They see a conviction as a solved case."

actually, most police agencies (every one i know of) consider a CHARGED case a "solved" case. the actual issue is "cleared cases". cases can be cleared by charging somebody, by exceptional clearance, by finding the case unfounded etc.

it has nothing to do with conviction

" Sometimes it's easier to convict the wrong person than the right person, though"

the goal of the police is to investigate. it's to search for truth. it is just as important to find exculpatory as it is to find inculpatory evidence. a good cop views EVERYBODY with suspicion. just because sally says johnny hit her in the face doesn't mean it happened. i want to find out IF her claim is true.

defense attorneys are not interested in truth, to the contrary. their JOB is to get their client off. my job is not to get a conviction. my job is to gather evidence.

usually, when i gather enough evidence that shows the suspect DIDN'T do it, the case never GOES to trial, so there is a natural survivor case bias in cases that go to court - generally the strong one.

i really take strong offense at what you claim. it's just blatantly false and offensive. any cop with any brains and experience knows that ANYBODY can be lying, and thus we take EVERYBODY with a grain of salt - "victims", witnesses, suspects, etc.

my job is to gather evidence to find out WHAT happened. in many cases that makes the prosecutors job HARDER, but that's not my concern. my concern is WHAT happened, NOT making a strong case. if in my search for evidence, that MAKES a strong case, that's good. the guy is probably guilty, but if it helps exonerate an innocent man, that is just as (if not more) important.
12.17.2007 7:33pm
hattio1:
Whit says;

i really take strong offense at what you claim. it's just blatantly false and offensive. any cop with any brains and experience knows that ANYBODY can be lying, and thus we take EVERYBODY with a grain of salt - "victims", witnesses, suspects, etc.

In that case it must be that damn near every cop in my jurisdiction lacks brains, experience or both. I had a recent case where the alleged victim was definitely beat to shit. But he claimed to have been kidnapped, tortured, etc. As a matter of fact he claimed it in two different interviews. Problem was two different officers did the two different interviews. There were 22 different inconsistencies in the two versions. As far as I can tell, no one except the defense even bothered to compare the stories except on the big issues. And some of the differences were fairly obvious. For example, they were getting drunk while they had me kidnapped, I could hear them opening beer bottles and getting drunker. They don't drink alcohol, they only do coke. Pretty big distinction no?
On a broader note, it seems you're always defending the integrity of the police. And yet, there are numerous examples (LAPD Ramparts division, Durham NC police) where entire departments and/or divisions have been shown to be corrupt and corroborating with DA's to break the rules and "get" the people they think are guilty. Couldn't it be that YOU are the exception when it comes to police conduct rather than the Durham police? Or, at the very least, that even if the Durham police, for example, are the exception, that they're not that rare?
The only other scenario I can believe is that you are so blindered by your years on the force that you can't see yourself or the people you serve with fairly. I would really like to believe that is not the case.
12.17.2007 7:58pm
Dilan Esper (mail) (www):
Whit, I know better than to tar all police, as some in the thread have. But there are certainly institutional pressures towards clearing cases-- not only do cops have them but prosecutors have them too. And there are at least four other things that SOME cops do that give the profession a bad name to many people:

1. What the Alaska defense lawyer commented about above, which is the idea that the cop comes to a preconceived notion of what happened, and then the entire point of the interview is to try and get a confession and discourage the suspect from talking to counsel or standing his or her ground. I realize that in some cases, you really do have the guy dead to rights, but this technique can VERY easily lead to false confessions.

2. Deliberately excessive force. We had this discussion in the Utah taser thread. Extrajudicial punishment is very common. As you say, cops are supposed to be investigators, not convictors. Unfortunately, many cops want to be judge, jury, and executioner, especially with respect to the crime of disrespecting the officer or with respect to offenses that the cop fears will not be sufficiently punished by the penal system.

3. Perjury. My view is that a lot of police perjury DOES NOT come in cases where the defendant is innocent, though there is some of that. I think that actually there is a ton of perjury in cases where the defendant is GUILTY and the police want to ensure a conviction. There is also a ton of perjury and obstruction in excessive force situations.

4. Racial discrimination. In many parts of this country, investigatory stops are made on the basis of race. Either a black man "doesn't belong" in a rich neighborhood, or he "doesn't belong" in a nice car and is "suspicious", or he is wearing "suspicious baggy clothing", or whatever. Seriously, a lot of cops think that being black is inherently suspicious and justifies a stop (or worse treatment during a valid stop).
12.17.2007 8:37pm
David Smith:
The more important question is what does any of the law have to do with how one should act if addressed by a police officer, say in the street.

The correct answer is not to assert rights one learns in law school. The correct answer is to apply basic game theory, and, when faced with an unknown variable (a police officer), to do whatever the f&*&* he wants you to do.

I recall with fondness and amusement a series of cases and discussions about them from a few decades ago in NY concerning whether a person, when simply addressed by a police officer, can just say nothing and walk away.

How answers that question determines whether one is street smart or a high six figure income lawyer. The lawyer usually loses that round.
12.17.2007 9:21pm
Vinnie (mail):
"the famous Buddhist Temple massacre" I remember that case. I was a new resident of AZ. After some of the facts of that confession reached the public I decided that I was too old and fragile to be taken into police custody in that state. IIRC the suspect had an iron clad alibi but confessed after only 36 hour in custody. I am working from memory but I remember that it scared me.
12.18.2007 12:22am
whit:
as to hattio. we can all bring up anecdotes in ANY profession to attempt to "prove" something. just because some cops do X, or whatever does not mean cops in general do X. here's a hint. you don't HEAR about the good stuff. you hear about when people f*ck up.

the difference between you and me (and many here) is that i have been to literally thousands of calls with hundreds of cops. and the "bad things" are EXCEEDINGLY rare. simply put, there are TONS of examples of cops doing stupid, criminal excessive stuff. but they are still exceedingly rare. ime, the people who are most surprised at how restrained, how intelligent, and how caring and thoughtful cops are - are the people who actually go through the trouble of doing ridealong(s) and see cops firsthand. defense attorneys don't (i've never known ONE who has).

but given that cops make literally MILLIONS of citizen encounters a year, scores of thousands of arrests, etc. it is REMARKABLE how rarely cops use excessive force, etc.

for example, the average cop (iirc) fires their firearm at somebody once every 11 years or so. that's astoundingly low.

"1. What the Alaska defense lawyer commented about above, which is the idea that the cop comes to a preconceived notion of what happened, and then the entire point of the interview is to try and get a confession and discourage the suspect from talking to counsel or standing his or her ground. I realize that in some cases, you really do have the guy dead to rights, but this technique can VERY easily lead to false confessions. "

cognitive dissonance is basic psychology. anybody, once they buy into a theory WANTS to see that theory reinforced, and thus has a tendency to ignore data that conflicts with their theory (it causes pain/dissonance) and overemphasize that which supports their theory. i've actually found that fighting cognitive dissonance is a huge hurdle to overcome in beginning futures traders, for instance.

and in my experience, cops on average have so much more experience in dealing with people in these situations, and are so incredibly cynical, that any cop with sufficient roadtime is WAY more critical than the average person, way more distrustful of everybody in general, such that they are much less likely to get the wool pulled over their eyes than the average person, to include the average attorney. cops are the only peopel in the world who could walk in to a scene where a guy is lying dead on the ground with 6 bullet holes, and there is a guy standing over him with a gun in his hand, saying " i killed him" and he would STILL not draw a conclusion :)

"2. Deliberately excessive force. We had this discussion in the Utah taser thread. Extrajudicial punishment is very common. As you say, cops are supposed to be investigators, not convictors. Unfortunately, many cops want to be judge, jury, and executioner, especially with respect to the crime of disrespecting the officer or with respect to offenses that the cop fears will not be sufficiently punished by the penal system. "

i certainly don't agree (as is obvious) that the tasering in that incident was excessive force. given that, of course excessive force happens, but it is remarkably rare. if you look at even how many times excessive force is alleged PER felony arrest, etc. it is very small (and of course many claims are bogus).

somebody once said the definition of excessive force is that amount of force that the average untrained civilian would resort to use in a given situation.

"3. Perjury. My view is that a lot of police perjury DOES NOT come in cases where the defendant is innocent, though there is some of that. I think that actually there is a ton of perjury in cases where the defendant is GUILTY and the police want to ensure a conviction. There is also a ton of perjury and obstruction in excessive force situations."

that's simply not my experience. sure, there is perjury. but i don't know a single cop who's admitted to me he did it, nor have i seen it happen (by a cop. i've seen it many times by "victims" and witnesses)

"4. Racial discrimination. In many parts of this country, investigatory stops are made on the basis of race. Either a black man "doesn't belong" in a rich neighborhood, or he "doesn't belong" in a nice car and is "suspicious", or he is wearing "suspicious baggy clothing", or whatever. Seriously, a lot of cops think that being black is inherently suspicious and justifies a stop (or worse treatment during a valid stop)."

racial profiling is largely a media inspired myth. i think heather macdonald has done the most to debunk it, but since the media says its true, it must be true. its also largely about perception. white people don't think "he's pulling me over cause im white" but for many blacks, the perception IS the reality.

if anything, there is REVERSE (so called) racial profiling. most cops would rather bne put in situations where they have to arrest, stop, shoot, etc. ANYBODY but a racial minority because they know that they get all the baggage attached to racial profiling rubbish if they do.

seriously. the media myth has gotten so bad, i know plenty of cops who purposely on-view NOTHING. they sit in their cars and do crosswords in between calls because they know they cant get a complaint about so called racial profiling for that.

for what its worth, the NCVS which is a survey of crime VICTIMS shows almost EXACTLY the same percentage of offenses identified as black male offenders by VICTIMS of crime (and note most crime is intraracial) as cops make stops and arrests of suspects. this pretty much debunks any bias.

accusing cops of racial bias because they stop young black males more often than many other demographics relative to their population representation makes aobut as much sense as saying cops are sexist because they arrest males vs. females for murder, rape, robbery, etc. about 8-10 times as often, despite the fact that females make up the majority of the population.

if racial profiling were TRULY an institutional problem, you would see DISproportionate "cop stops" of certain racial minorities COMPARED to their identification as perpetrators BY crime victims.

note also that (for example) japanese american males are arrested, stopped, searched, etc. FAR less often than whites or blacks (relative to their #'s in the population) which again suggests that cops stop people at almost the exact same proportion as people commit crimes.

also note that the followup studies in new jersey (not reported in the mass media surprise surprise ) went even further to debunk the alleged racial profiling.

anyway, i hate all these tangents. my point was that the OP was simply wrong, and i suggest he has never done a ride along and seen what cops AcTUALLY do, how they conduct an investigation, etc.
12.18.2007 12:36am
A. Zarkov (mail):
" … IIRC, the Washington Supreme Court found that (in Washington state at least), police officers are free to pose as lawyers and even purport to want to represent the suspect as a client in order to gain evidence against them."

Isn't it illegal to practice law without a license? It might not taint the evidence gained, but it might expose the policeman to the risk of prosecution. If the policeman is actually a lawyer as well as a policeman then he has violated his duty of confidentially to this client. It sounds like we need the details here.
12.18.2007 2:03am
TruePath (aka logicnazi) (mail) (www):
At least as far as the link given says the police posed as members of a law firm. There is every difference in the world between saying the police can't represent themselves as an attorney and as an unidentified receptionist or whatever acting for some fictitious law firm. Also I didn't bother to go read the case but it might have mattered that the evidence given was DNA and not testimony or the like.

-------

whit:

I'm going to nit pick a bit but:


if racial profiling were TRULY an institutional problem, you would see DISproportionate "cop stops" of certain racial minorities COMPARED to their identification as perpetrators BY crime victims.


No, that's what we'd see if cops engaged in racial profiling and the rest of the country was perfectly race blind. As it is the best you can stay now is that cops stop members of these minority groups as often as they are accused of crimes. Given that the public is often racially biased don't you think that the false accusations (insurance scams, false reports to avoid embarrassing situations) while disproportionately blame minorities?

Also what's your data source on this? I mean if you are just comparing total complaints to total stops that's useless. That is going to count all the times people in snooty white neighborhoods call in a trespassing event because black kids walked across their lawn even though they wouldn't for white kids.

Besides this is all irrelevant to the original point. Regardless of the fact that certain minorities commit crimes at a higher rate many people think using race as a (nonspecific) factor to pull someone over is always unacceptable. The point is if you are a cop who sees a black kid driving around in a rich white neighborhood especially if it's in the wrong kind of car your sucpiscion might be reasonably aroused the same way it would be for any other person who looks out of place. But even though you may have (in some sense) been acting reasonably there is strong pressure not to admit in court you pulled him over because he was black.

In short racial profiling is a problem not because it's wrong but because of the harm it does to successful minorities. It may be true that black drivers in some rich white neighborhood are way more likely to be up to no good (because so few blacks are there for normal purposes) but if you preferentially pull over black drivers the rich blacks living there end up being pulled over all the time.
12.18.2007 5:48am
TruePath (aka logicnazi) (mail) (www):
Oops, to clarify that last part I meant that racial profiling isn't a problem because it's statistically mistaken (some may be which is bad too). I do think it's bad (because of the effects) even if it doesn't arise from prejudice or bad police behavior.
---------

Anyway I actually agree with both you (whit) and the commenter you are refuting. The vast vast majority of police are good people trying hard to make the world a better place. However, they are people not supermen and suffer from the same flaws that all of us do. If the testimony of a police officer was treated with the same skepticism and hesitance that are given to other kinds of testimony this wouldn't be as much of a problem but there are several institutional reasons that cause police testimony to unduly influence the jury and (sometimes) contribute to false convictions.

1) People fail to appreciate how bad eyewitnesses are at relating what happened. There are hosts of academic studies showing that eye witnesses, even police officers trained in this sort of thing, are extremely unreliable and can fail to notice or incorrectly remember major events. (One amusing study had people watch a basketball game and count baskets or something and most of the viewers didn't notice the guy in the gorrilla suit who walked right across the screen.) Unfortunately it flies so much in the face of common sense most people can't accept this.

This is a huge problem in rape cases (how could the victim be sure it was this guy if he didn't do it) but it's also a problem with police testimony because jurors translate belief in the policeman's honesty to trust in his testimony.

2) Everyone views events through their own perspective. Once you are convinced something is true you see (and falsely remember) details to fit with that theory and forget facts that don't fit into your picture. This is what lets us remember so much stuff but it can be disastrous in a criminal case when the very issue is the presence of evidence that doesn't fit. This is how the whole satanic ritual abuse absurdity happened and it's a constant problem for police work.

3) Everyone is biased to believe what helps them and discredit what hurts them. I mean how many people honestly believe their kid is smarter than average? Thus pressure from above to get results doesn't necessarily cause police to become corrupt but it may bias their thinking.

4) Policemen are good people who don't want to see others hurt or harmed. Very few people can see the judicial process as an end in itself and policemen are no exception. If you were sure someone was a child murdering pedophile who was going to get off and probably kill again and you could tweak one small detail to get him convicted can you tell me you wouldn't be sorely tempted.

----

This is not even to mention all the normal factors that come into play whenever people interact with each other (dislike biases our judgements etc..).
-------

In my opinion many of these problems can be fixed by paying proper attention to the science and adopting techniques from double blind trials and the like into police work as well as more use of recording devices to supplement fallible humane memory. Mostly though juries need to stop trusting eyewitness testimony so much whether it is from the police or anyone else.
12.18.2007 6:20am
Big Bill (mail):
No, True Path, let's not move on, let's return to your point. In New Jersey a radar gun and camera were set up to take pictures of motorists, speeding and not speeding, then the pictures alone were given to neutral third parties to be evaluated for race (i.e. who was black and who was white) I believe someone at Rutgers did the study. The pictures, (neutrally evaluated) and the radar gun (which did not know the race of the driver) showed that black folks speed a bunch more than white folks on the Garden State. Thus, the disproportionate stopping of black folks by Jersey troopers was supported by the enhanced black automotive crime rate.
12.18.2007 6:54am
Ralph Phelan (mail):
the difference between you and me (and many here) is that i have been to literally thousands of calls with hundreds of cops. and the "bad things" are EXCEEDINGLY rare.

You may not have a good sample.

Let us hypothesize that "bad" cops (one who uses excessive force, think its ok to lie to convict the guilty, and don't ever recheck their assumptions once they've made a first guess as to what they think happened) are not randomly distributed in all the police forces of the US. Instead, there are many forces where such behavior is not considered normal, and anyone who exhibits it will either be disciplined until they stop or eventually will be let go. But there are also a few forces where such behavior is not considered worthy of punishment, can be committed with impunity, and so over time becomes the norm.

This hypothesis would explain
(1) Your experience
(2) The fact that Himan and Gottlieb are still employed by the Durham NC police department
(3) Skepticism by civilians, who outside of their hometown have no way of knowing if they're dealing with an honest police department or a corrupt one. The probability of the latter is low, but the cost is potentially very high.
12.18.2007 8:47am
Ralph Phelan (mail):
we can all bring up anecdotes in ANY profession to attempt to "prove" something. just because some cops do X, or whatever does not mean cops in general do X.

True and true.

And it's worth knowing about the sorts of bad things that can happen and how likely they are when dealing with any profession.

I'm willing to accept that cops are as good at policing themselves as doctors, nurses and lawyers are. And I'm not real satified with the way those professions police themselves either.
12.18.2007 8:51am
Ralph Phelan (mail):
1. What the Alaska defense lawyer commented about above, which is the idea that the cop comes to a preconceived notion of what happened, and then the entire point of the interview is to try and get a confession and discourage the suspect from talking to counsel or standing his or her ground. I realize that in some cases, you really do have the guy dead to rights, but this technique can VERY easily lead to false confessions. "


cognitive dissonance is basic psychology. anybody, once they buy into a theory WANTS to see that theory reinforced, and thus has a tendency to ignore data that conflicts with their theory (it causes pain/dissonance) and overemphasize that which supports their theory. i've actually found that fighting cognitive dissonance is a huge hurdle to overcome in beginning futures traders, for instance.

It's also a big problem with doctors. For a simple example, if you're overweight that's the first thing that will pop into a doctor's mind as an explanation for just about any condition, and as a result they often overlook other causes of illness in obese patients. I call it "first hypothesis syndrome." Nobody's immune.

Well, maybe you are, but are you really certain that the bozo with the taser from last week's thread is? I could picture him pressuring someone he "knows" is guilty to confess already.
12.18.2007 8:57am
loki13 (mail):
Whit,

The SELECTIVE use of all-CAPS does not MAKE your points STRONGER.

It seems that when any post regarding police comes up, you make points about your personal experience that is at variance with actual public facts (see previous thread- your claim to have witnessed hundreds of positive tests for marijuana laced with LSD, despite this being easily debunked). Perhaps when you *know* something to be true, you shade your testimony and experience? As for myself, I can say the following:

1. Many cops are good, decent, honorable people.
2. Some are not.

This seems to track the regular population, which is not surprising. Cops are put in a difficult role, with institutional pressures to make certain statistics (not find 'the TRUTH') and given authority that the regular citizenry doesn't have. Some handle it better than others. Regarding some of the points raised:

1. There is a strong presumption of honesty on the part of testimony by LEO. Usually, it is warranted. I agree with the above poster that LEO will often shade their testimony when they (ahem) *know* the defendant is guilty.

2. Confessions obtained using 'tactics' as they were referred to earlier should be somewhat suspect. I realize that LEO has to be given some leeway to make a case, but given the belief (even if somewhat unfounded) within certain communities that cops regularly manufacture evidence, is it surprising that there are false confessions?

3. Racial profiling is common by LEO. In my own community, there was a spate of tickets recently for 'walking while black' during first appearances. LEO was going into the 'bad' (aka black) part of town and stopping black men for violations such as walking on the wrong side of the road. If no drugs were found, they would issue them a ticket to cover for the pretext search. If drugs were found, they would be nailed for possession + the original violation. Amazingly, only black pedestrians were so cited.

None of this is a blanket indictment on LEO. It is a tough, dangerous job, mostly filled with decent, honorable individuals. But questions should be asked about what institutional changes can be made so that the problems that occur happen less frequently.
12.18.2007 11:00am
hattio1:
Whit,
As you guessed I have not done a ride-along. However, in my jurisdiction every encounter is supposed to be recorded, and most actually are. I listen to tapes of encounters all the time. Violations (of Miranda, 4th amendment etc.) probably happen in at least 1/3 and probably 1/2 of the audios.
Guess what? It's certain officers over and over and over. That comports with your theory that there are a few bad apples. But, guess what, these few bad apples never get reported by their fellow officers. When citizens report them, the fellow officers back them up. IMO, if you are sheltering and refusing to report a bad apple, you are a bad apple.
Here's the other thing. When new officers first come on the force they're generally excellent. Play by the rules, respectful of the citizens they come in contact with, even when arresting them, etc....for about 6 months. Then, the "bad apples" apparently start teaching them. That's why, when people want to sweep misconduct under the rug, I have a problem. Misconduct breeds misconduct.
Oh, and those same few bad apple officers. They are responsible for most of the suppression/exclusion motions I file, and most of their encounters turn physical. Why do you think that is? I think that "I'm a bad ass cop and you better listen to me" attitude, and a sense of entitlement to bully others physically go hand in hand.
12.18.2007 2:13pm
Ralph Phelan (mail):
But, guess what, these few bad apples never get reported by their fellow officers. When citizens report them, the fellow officers back them up.

Once again, just like nurses, doctors and lawyers.
12.18.2007 4:19pm
hattio1:
Agreed,
And frankly, if you're profession does as bad of a job as doctors and lawyers (can't say I know much about nurses) then they probably need outside scrutiny.
12.18.2007 5:23pm
Smokey:
I remember being aghast to learn that cops can lie with complete impunity during interrogations.
Most cops lie. Read The Blue Knight by Joseph Wambaugh. Even the ones who think they're honest lie. That's how they get their promotions - by helping to put someone away. Guilt is secondary. Cops are expected to be "team players" by other cops.

Not being too critical. That's just the way it is.
12.18.2007 5:29pm
E.S.:
There's probably more than one source of this misinformation in pop culture, but one is the movie "Blow." I'm pretty sure that Derek Foreal asks George Jung if he's a cop when they first meet. He also says something along the lines of, "you have to tell me if you are, otherwise it's entrapment."
12.18.2007 8:15pm
devin chalmers (mail):
Reading these comments is tiding me over until the seventh season of The Shield. "Yer a crooked cop, Vic Mackey!!"

The David Foster Wallace book Infinite Jest had an interesting variation on this urban legend: the tennis academy's resident drug dealer had a policy where his customers had to explicitly ask him to commit a crime before he would sell to them.
So Michael Pemulis is nobody's fool, and he fears the dealer's Brutus, the potential eater of cheese, the rat, the wiretap, the pubescent looking Finest sent to make him look foolish. So whenever someone wants to buy some sort of substance, they have to right off the bat utter the words "Please commit a crime," and Michael Pemulis will reply, "Gracious me and mine, a crime you say?"

Different, or merely slightly higher-brow artistic invention?
12.19.2007 2:40am