Can the Police Lie to You During Questioning?
I’ve always told clients, friends, family, and whoever will listen that police can and will lie to you during questioning.
It’s one of the reasons you should never agree to talk with police until you have consulted with a criminal defense attorney – you don’t know what they know, you don’t know what their intentions are, and, even if you know you didn’t do anything wrong, they can trick you into saying something that will be used against you later.
But, apparently, there are lies, and then there are lies.
Although trial courts and appellate courts will bend over backward to rubber-stamp just about anything law enforcement does in the interest of “getting the bad guy,” maybe there are some lines that the appellate courts will not cross.
For example, you have the right to remain silent. Anything you say can and will be used against you in a court of law. But what if the investigator then tells the suspect that anything they say won’t be used against them?
Some Law Enforcement Lies are Okay, and Some are Not
In State v. Collins, decided September 8, 2021, the SC Court of Appeals reversed convictions for first-degree arson and conspiracy, finding that Collins’ statement to law enforcement was not voluntary because the investigator, after reading Collins’ Miranda rights to him, then promised him that nothing he said would “leave this room” – exactly the opposite of the Miranda warning, “anything you say will be used against you:”
…we believe that if a defendant receives Miranda warnings and it is thereafter conveyed to him during the interview that his statement, whether in whole or in part, would not be used against him and/or is being obtained for some other purpose, such may render the statement inadmissible…
“Whatever you tell me, it ain’t gonna leave this room. This, um, tape is going into my file. . . . . And we’ll have a copy of this tape. And it ain’t gonna go any further than this room. That’s why we got the door shut, the blinds pulled, there’s no sound device in here.” As in Porter, “the clear thrust” of this statement by Agent Hardee was that Appellant was being told his statement was not going to be told to others to be used against him but was recorded simply for their own files.
Which Police Investigator Lies are Okay, and Which are Not?
The Court makes a distinction between “false representations” and “false promises” to explain when a lying investigator goes too far:
Assuredly, interrogating officers can make false representations concerning the crime or the investigation during questioning without always rendering an ensuing confession coerced. But false promises stand on a different footing…
…though interrogating officers may sometimes make false representations concerning the facts surrounding the crime without rendering an ensuing confession coerced, they cannot make false promises, whether direct or implied, that induce a confession from the individual.
False representations – lies that the Court approves of – consist of lies about the facts of a case. For example:
- “You might as well tell us the truth – we’ve got your fingerprints from the crime scene and we’ve sent off some DNA material for analysis already,”
- “Your buddy is down the hall singing like a bird, and he says this was all your doing,” or
- “We’ve got the video from the convenience store, and your face is on it plain as day.”
False promises or threats are another matter, according to the Court of Appeals:
A statement may not be ‘extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] obtained by the exertion of improper influence.'” (alterations in original) (quoting Rochester, 301 S.C. at 200, 391 S.E.2d at 246)); Preston, 751 F.3d at 1026 (“[I]nterrogating officers can make false representations concerning the crime or the investigation during questioning without always rendering an ensuing confession coerced[, b]ut false promises stand on a different footing.”
But are they?
Cops routinely promise a suspect that they will go to the prosecutor and ask for leniency if the suspect just ‘fesses up – isn’t that a promise? The Court of Appeals confirms that they are okay with this sort of lie/promise:
The officers repeatedly informed Appellant that they would speak to the solicitor on his behalf… We acknowledge that the officers’ assurances that they would speak on Appellant’s behalf are not, alone, sufficient to constitute promises of leniency that induced Appellant’s statement.
So, what kind of lies/promises are not okay?
I hope that it is safe to say that, when police lie about a suspect’s constitutional rights, they have crossed the line. For example, if police read someone’s Miranda rights to them (anything you say can and will be used against you), and then go on to lie about that constitutional right (whatever you tell me, it ain’t gonna leave this room), they have crossed the line from good lie to bad lie:
The State conceded in oral argument that if Miranda warnings were required here, Agent Hardee’s assurance negated the warnings, rendering Appellant’s statements inadmissible as a matter of law.
But was that alone enough to reverse the conviction, or was it only one brick in the wall in Collins’ case?
Cops Lying About Constitutional Rights + Other Coercive Tactics
The police didn’t just lie to Collins about whether they would use his statements against him – the Court of Appeals cites a laundry list of additional lies and coercive tactics that the investigators used during their interview, including telling him:
- They only wanted information for the purpose of prosecuting his codefendant,
- They did not care who started the fire,
- They were there to help Collins,
- No matter what he told them, he was going to go home after the interview,
- They would speak up for him to the prosecutor,
- If he didn’t talk, they would go after him and put him in prison with his codefendant,
- If they didn’t get his codefendant, they would come after him instead, and
- That he would probably die in prison unless he talked to them.
Would this have been enough if the police did not also lie about Collins’ constitutional rights? As additional evidence that the statements were not voluntarily given, the Court of Appeals points out that Collins:
- Had a low education level,
- Was in special education classes in school,
- Had experienced a stroke in the past year, and
- Had impaired cognitive abilities.
Would this have been enough but for the lies about Collins’ constitutional rights?
A statement is involuntary when “the officers’ coercive and deceptive tactics during the interview caused Appellant’s will to be overborne, inducing him to make the inculpatory statement,” and the Court of Appeal’s ruling was that all the above circumstances combined were enough to find that Collins’ will was overborne and that his statement was not voluntary.
It’s disappointing, frustrating, and embarrassing that this is what it takes for an appellate court to find that police crossed the line. It’s disappointing that the trial court, in this case, didn’t think the police crossed the line.
It’s disappointing that SC courts allow police to lie to suspects, and, despite language to the contrary in appellate opinions, threaten suspects to coerce them into making a confession. It’s disappointing that police can do the same to potential witnesses – threatening them with prosecution or promising them leniency – to get them to say what the police want them to say.
It’s disappointing that police and prosecutors in SC are allowed to commit crimes (subornation of perjury, obstruction of justice, for starters), lie to suspects, threaten witnesses, and break the rules with impunity.
Why can’t we have a criminal justice system where, in the pursuit of truth, the government is required to speak only truth? Where, in the pursuit of Justice, the government is required to act justly? Where, in the pursuit of criminal convictions, the government is required to not commit crimes?
This case may go to the SC Supreme Court – we will see if they agree with the Court of Appeals that the officers’ conduct finally crossed a line, or if they agree with the trial judge that no bad conduct is too egregious if done in the interest of “getting the bad guy.”
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