Are the police allowed to use deception and trickery to obtain a confession? The short answer is yes, but there are some limitations on how far they can go. I figured I would write a quick response to the many inquiries to this problem. Let’s look at how the police can obtain a confession from a suspect only AFTER a valid waiver of Miranda has been obtained, and how this affects your crime writing. Remember, a valid waiver has to be given voluntarily, intelligently and knowingly. Your detective cannot lie to the suspect in order to obtain a confession!
The (3) Three Tricks Your Detective Can Do
1. Lie About the Existence of Evidence
“Johnny, I’ve got bad news for you pal. We have your DNA from the crime scene.”
This statement made by the detective is designed to elicit a confession from Johnny. Even if the DNA or any other evidence linking the suspect to the crime does not exist, your detective can lie that it does, and that it will be used against him.
2. Lie About the Condition of a Victim or of a Witness
Detective Smith walked into the absurdly small interview room and pushed record on the tape player. “Mary, Mary, Mary. You got problems.”
“I don’t have any problems.”
“I say you do.” He stamped out his cigarette. “Your husband is still alive. And when we can talk to him, I’m sure he’ll tell us who did it.”
“What? It can’t be! I shot the bastard three times!”
Mary’s confession would be admissible as evidence against her in a court of law. Recording interviews and interrogations is not mandatory; however it can solve many of the problems raised by the defense regarding how Miranda waivers and confessions were obtained. This can be a two-sided coin. Recording the interview can also show where the interviewer dropped the ball.
This can also be used to set one suspect against another, but there is a caveat. Telling the leader of a bank robbery team, that his accomplice has confessed and placed the blame on the leader is also allowable. However, there is a rule that one bad guy’s testimony cannot solely convict the other bad guy in most states. The police still need to find corroborating evidence against the two in order to have a slam-dunk case, i.e. eyewitnesses, video surveillance, etc.
3. Misrepresent the Results of a Lineup or Photo Array
Detective Ketch entered the viewing room. “Congratulations Joey. Five out of five witnesses picked you as the shooter. It’s going to be fun to watch you get the needle.”
Joey stood and looked into the glare of the two-way mirror, “I want to make a deal. I was there, but I didn’t pull the trigger.”
Think about this for a second. If you were in Joey’s position, could you take the chance and call the detective’s bluff? Most of us would not and would be looking somewhere down the line for a possible plea bargain.
What Your Detective Cannot Do
1. The detective can lie about the existence of evidence, but they cannot confront a suspect with phony physical evidence. Different state supreme courts have ruled differently on this matter, so do some research on your character’s home state. For instance, in the 1989 Floridacase of State v. Cayward, the court said no to fabrication. However, in the 1996 Nevada case of Sheriff v. Bessey, the court said it was OK to fabricate. Until the U.S. Supreme Court rules on this, I would stay away from it.
2. The police cannot stage a lineup without any viewing witnesses.
3. The police cannot promise a lighter sentence in exchange for a confession. The decision to give a lighter sentence to the accused for his / her cooperation in an investigation can only be done by the District Attorney’s Office – make sure we get this one right.
4. The police cannot use a person who “claims” to be a psychiatrist and who tells the subject he wants to help by talking about what happened.
5. The police cannot threaten that government benefits will be taken away if the suspect does not confess to the crime, ex. welfare, section 8 etc.
The writer should be aware of the fact that these examples of trickery and deceit can be used to obtain a confession. They cannot be used to obtain a waiver of Miranda. If “it is discovered that” any of the allowable forms of deceit were used to obtain a waiver of Miranda, the information and evidence discovered would be suppressed.
I know many of these example interrogations were short and to the point. Many of them could have been dragged out for pages in a novel. I wanted to give examples of how your detectives can use trickery and deception to provide you with the ability to create more accurate and riveting interrogation scenes. They could also be used to help you break that “block” you have been suffering and get your stories flowing again!
Joe Giacalone is a retired Detective Sergeant and former Commanding Officer of the Bronx Cold Case Squad that has investigated hundreds of homicides, cold cases and missing persons.
He is the author of the Criminal Investigative Function: A Guide for New Investigators published by Looseleaf Law Publications, Inc.
To find out more about Joe or his book, please visit Cold Case Squad or follow him on Twitter @coldcasesquad.