The Volokh Conspiracy

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?

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...

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.

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?

This story from San Jose seems apropos of the work you are completing Gene:

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

-Gene

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.

whit: whoah! Johnny Utah posts here.

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.)

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.

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.

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.

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.

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.

@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.

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.

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.

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.

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

I've seen it more than once on TV.

Gary

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.

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.

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?;-)

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.

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.

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?

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.

But what is the fine for stealing a policeman's helmet?

Is it still five pounds?

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.)

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?

"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?"

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.

This could get very law and anthropology.

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.

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.

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."

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.

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.

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.

"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

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.

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.

"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.

:)

"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 :)

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.

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....

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.

<i>That, plus you run the risk of having to marry Anoria Glossip</i>

Honoria Glossop, doncha know?

""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

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.

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.

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.

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.

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.

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.

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?

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.

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?

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.

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.

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.

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.

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.

@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".

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.

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..

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.

"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

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....

Snopes has done some research on the history:
http://www.snopes.com/risque/hookers/cop.asp

"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)

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

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.

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.

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?