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You are here: » » Criminal Defense » To Ruse Or Not To Ruse

To Ruse Or Not To Ruse

It is no secret that detectives have an insatiable appetite to procure a confession from a suspect. Most would tell you it is a great and satisfying result of their tedious efforts besides a token to their communication skills when successful. One of the most controversial police procedures is the use of trickery by law enforcement agents during an investigation but particularly in the course of obtaining a confession or admission.

In my police career, I have claimed to have evidence which did not exist and used many other ruses in order to extract information.Whether it is lying to a suspect, using a scheme, or introducing a staged event, the public still criticizes the legitimacy of police craftiness. The courts have ruled that telling a suspect certain evidence was found at a crime scene when in fact it was not, would not compel him or her to lie about whether they were in or on the premise, in possession of stolen property, or committed the criminal act. Therefore, skulduggery would not be the same as coercion, forcing them to confess to false events, nor would it be entrapment.

Standard law enforcement training cautions against overzealous law enforcement practices in order to uphold the integrity of a properly obtained confession, evidence, and to avoid any type of entrapment issues. Specific to police conduct, the courts declared in Sorrells v. US , “Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer.” At the same time, the justices had acknowledged the dangers and illegality of entrapment and warned against improper government conduct. Throughout history, however, numerous courts have upheld the use of deception by an investigator to obtain a confession is legal.

Yet, sometimes society still grasps with approval of this concept which they may surmise tarnishes the moral fiber of law enforcement. Defense attorneys love to use the deceptive strategies as a means to discredit the police to juries. Keeping these factors in mind, trickery is a risky practice and should be used with caution. For example, if a suspect calls your bluff or you expose the truth too soon, your credibility may be irreparable. The suspect may subsequently withdraw from conversations and a confession never secured. So why is it a police praxis? Because it is effective.

Roger Pilon is the Cato’s Institute’s vice president for legal affairs, the founding director of Cato’s Robert A. Levy Center for Constitutional Studies, the inaugural holder of Cato’s B. Kenneth Simon Chair in Constitutional Studies, and the founding publisher of the Cato Supreme Court Review .

Prior to joining Cato, Pilon held five senior posts in the Reagan administration, including at State and Justice, and was a national fellow at Stanford’s Hoover Institution. In 1989 the Bicentennial Commission presented him with its Benjamin Franklin Award for excellence in writing on the U.S. Constitution. In 2001 Columbia University’s School of General Studies awarded him its Alumni Medal of Distinction. Pilon lectures and debates at universities and law schools across the country and testifies often before Congress.

His writing has appeared in the Wall Street Journal , the Washington Post , the New York Times , the Los Angeles Times , Legal Times , National Law Journal , Harvard Journal of Law and Public Policy , Stanford Law and Policy Review , and elsewhere. He has appeared on ABC’s Nightline, CBS’s 60 Minutes II, Fox News Channel, NPR, CNN, MSNBC, CNBC, C-SPAN, and other media.

Pilon holds a BA from Columbia University, an MA and a PhD from the University of Chicago, and a JD from the George Washington University School of Law.

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