A number of recent cases involving an investigator's use of trickery and deceit during an interrogation have caused problems in the subsequent trial. In some of these cases the confession was suppressed. These cases have not involved a novel legal argument or radical interpretations of current law. Rather, existing laws have been applied in a predictable manner in situations in which investigators attempted to push the envelope to test the court's tolerance. This web tip offers a review of some of the legal aspects regulating an investigator's use of trickery and deceit. An appropriate starting point is to define trickery and deceit from a legal perspective.

Interrogation relies extensively on implication and innuendo. Consequently, almost every interrogation involves some level of at least implied deceit. When the investigator starts out an interrogation by telling the suspect that there is no doubt that he committed the crime, this is oftentimes not a true statement. The investigator may then sit down and explain that the reason he wants to talk to the suspect further is to find out why he committed the crime. Again this is not an accurate description of the purpose of the interrogation. In an effort to establish rapport, the investigator may then state that he believes the suspect is basically a decent and honorable person who acted out of character, which may, in fact, be a false statement.

From a legal perspective, however, the previous false statements merely represent the investigator's beliefs and, therefore, generally do not fall within the category of behaviors that have been traditionally considered as "trickery and deceit." In this regard, there has been a clear distinction between an investigator stating a false belief (which is generally acceptable) and making a false statement which, if carried too far, could jeopardize the admissibility of a confession. Examples of false statements which the courts may encounter include lying to a suspect by telling him that his partner has already confessed; falsely telling the suspect that if he confesses he will be able to sleep in his own bed that evening; or, showing the suspect a fabricated report indicating that his DNA was recovered from the victim.

When asking the question as to whether or not a particular statement or action may cause a confession to be suppressed, there are a few key cases to keep in mind. The landmark decision concerning trickery and deceit is a U. S. Supreme Court case in which a suspect confessed after being falsely told that his partner had already incriminated the suspect in the commission of the crime(1) . Utilizing the "totality of circumstances rule", the defendant's confession was upheld. Within the totality of circumstances guideline, the trickery or deceit employed must not shock the conscience of the court or community. An example of behavior that shock s the conscience would be for the investigator to impersonate a defense attorney or clergyman in an effort to elicit a confession.

In the evolution of trickery and deceit laws, the next significant case is Cayward (2). In this case the police typed up a fabricated crime laboratory report which stated that Cayward's DNA was found during the victim's autopsy. After reading this report Cayward confessed. The confession was suppressed, not because of either concern listed above, but because of a new rationale. In this instance the investigator crossed the line from making a false statement to manufacturing false evidence. The court was concerned that such manufactured evidence may find its way into court and jeopardize the integrity of the evidentiary system as a whole. The legal guideline stemming from Cayward can be summarized as follows:

A distinction must be made between false assertions (which may be acceptable) to fabricating evidence (which is impermissible.)

In addition to Cayward, other examples of fabricated evidence that have resulted in confessions being suppressed include making an audiotape of an investigator pretending to be an eye-witness (3) to the suspect's crime and a fabricated crime lab report indicating that the suspect's DNA was found on a rubber glove recovered from the crime scene (4).

Deliberate falsehoods unrelated to the facts of the crime should be avoided.

While false statements relating to investigative information may be permissible, an investigator should not lie about legal, procedural or administrative issues. Examples of impermissible extrinsic deception include falsely telling a suspect that if he confesses he will be able to sleep in his own bed that evening, or falsely telling the suspect that if he confesses he will be placed into a witness protection program and not be prosecuted. In a recent case a confession was suppressed when the suspect was told during the interrogation, "If you don't give us a reason (for the crime) the jury's never going to hear a reason." (5) This statement, of course was not true and addressed the suspect's legal defense. As the court pointed out, "The officers in this case might have properly (and truthfully) told Novo, ethis is your only chance to talk to us.'"

It is the nature of a good criminal investigator to strive to solve a case, ideally with a confession. Furthermore, good investigators are creative not only in their approach to developing investigative leads and evidence, but also in their efforts to elicit the truth during an interrogation. It is at this stage that the investigator must resist the temptation to elicit a confession at any cost. If an investigator tries too hard to elicit a confession and bends the legal guidelines too far, the result is a suppressed confession. The following guidelines are offered to assist an investigator in deciding whether or not a particular false statement offered during an interrogation may jeopardize a subsequent confession:

1. It is generally acceptable for the investigator to express false opinions during an interrogation.

The exception to this statement is a false belief or opinion regarding legal issues, e.g., "I think since this is your first offense you will probably receive probation," or, "If you did not intend on burning down the whole restaurant, you're probably just looking at a charge of damaging property." Unless the person conducting the interrogation is a prosecutor with the authority to make charging decisions, legal advice or opinions should not be given during an interrogation.

It is generally acceptable for the investigator to use visual props during an interrogation such as a video or audio tape, a fingerprint card or an evidence bag containing carpet fibers, hair follicles or other evidence.

In preparing these props it is absolutely imperative that the prop would never be mistaken for actual evidence against the suspect. An example of an improper prop would be to take the suspect's actual latent fingerprint, and adhere it to an evidence card indicating the fingerprint was lifted from the crime scene. This is clearly manufacturing evidence, which is impermissible.

It is generally acceptable for the investigator to make false statements concerning physical or testimonial evidence that implicates the suspect in the crime.

As a precautionary measure investigators must exercise a great deal of caution when making false statements to suspects with diminished mental or intellectual capacities in view of the fact that some of those individuals may be susceptible to pleasing the investigator and may place more credibility on the investigator's statements than with their own recollections. Similarly, false statements that directly link the suspect to the crime should not be made to a suspect who claims to have no recollections at the time the crime was committed as a result of alcohol or drug intoxication, head trauma, or repression.

The guideline we teach at our seminars is that lying to a suspect should generally be considered as a last resort effort to overcome persistent but weak denials.

If an interrogator is caught in his lie by the suspect he will lose his credibility, and it may cause a custodial suspect to invoke his right to remain silent or ask for an attorney. Furthermore, with electronically recorded interrogations the investigator must be able to articulate his reason at trial for engaging in deception with the suspect.

1 Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420 (1969).

2 State v. Cayward 552, So. 2d 921 (Fla. 1989)

3 State v. Patton 826 A.2d 783 (N.J. 2003)

4 State v. Chirokovskcic, 860 A.2d 986 (N.J.Super.2004)

5 Commonwealth v. Novo, 442 Mass. 262, 812 N.E. 2d 1169 (Mass. 2004)