Ten with Ben – Episode 2: I don’t think the police should be able to lie

Should police officers be able to lie in order to get a confession?

Hi, I’m Attorney Ben Schwartz,

You are watching Ten with Ben. These are my thoughts, my views, on what is going on in the world in 10 minutes or less. Today we are going to answer a question from a viewer. The viewer asks, is it true that cops are allowed to lie to suspects? It sorta is true and let me give you some background on this. In my law practice, I have done a lot of criminal defense cases and a lot of trials. Sometimes my clients have confessed to doing the crime, sometimes they have not made any statements.

When I was a young attorney, I mean like fresh out of law school, I was in the courthouse and I was standing there and I heard another criminal defense lawyer who was talking to his client. He was telling him to shut up. He was telling him, you don’t talk to anybody, keep your mouth shut. He was using some expletives which I’m not going to tell you what they were, but he was being very very clear with his client that his client was not to talk to anybody about the facts of the case, other than him. I found it shocking. I was fresh out of law school, I heard this going on, I found it shocking the way he was talking to his client. In retrospect I think he was doing the right thing. He was telling his client exactly as it is and that is stock advice for any criminal defense attorney to tell their client, you don’t talk to the police. You don’t talk to anybody. You can talk to me because it is attorney-client privilege. You can talk to your priest, if you want to go to confession, feel-free. Your priest has got the priest penitent privilege, which means that the state, the prosecution, the government, the police, the prosecutor, cannot go into the confession box and get information out of the priest. What you say is confidential when you say it to your criminal defense attorney or priest. Aside from that, I think it is good advice. Don’t talk to anybody about what happened. The reason is because the police. Their job is to get a convection. Their job is if they got you, they brought you down to the station, they probably already view you as being guilty. They want you to confess and every year in the United States of America, there are cases where people have confessed to things they did not do. They have been convicted after a trial based off of what they said.

There are cases where people say, “I don’t remember doing it, but you guys are putting so much pressure on me that you have convinced me that I did it, I must have done it.”

What happens is if the police are pressing the subject that they are interviewing too hard, then they can get a confession when the person is truly & factually innocent? To answer this question, can the cops lie? The answer is, yeah they can, they truly can.

There was a United States Supreme Court case called Frazier vs. Cupp and the citation 394 U.S. 731 (1969) case where there are two defendants. The police contact one defendant, bring them in, and they are interrogating him. They told him that the other defendant made a statement implicating him in the crime. The United States Supreme Court said that is okay. They said the fact that the police misinterpreted the statements that Rawls, Rawls was one of the defendants, the fact that the police misinterpreted the statements that Rawls made is, while relevant, insufficient in our view, to make this otherwise voluntary confession inadmissible.

The US Supreme Court said the police have permission. They can misrepresent the truth. They can lie to you in order to get you to confess. Maybe you did it, maybe you did not do it, but they are going to get a confession out of you. Is that good police work? No. It is absolutely not good police work, but does it happen everyday in the United States of America? I would say so. Here is how they do it. When the police have you and they suspect you of doing a crime, they contact you, they may call you up, they may come and arrest you. They get you to the police station. Once you are in the police station they tell you that they need to know what happened. Often times, we as attorneys are watching the videos of police interrogations and some things they often do is they will often say you need to help yourself, you need to tell us what happened so that we can help you.

Often time, if there are multiple defendants, they will bring one in the interview room and tell them that the other one has already confessed and the other one has already implicated the one that they are interviewing and sometimes it turns out that the other one did not confess. The other one did not say anything, but because now this defendant believes that the other individual has already confessed and implicated them, now they are going to confess. So there are all kinds of things that happen. The problem that I have with police lying to subjects in order to get them to confess is, that in most cases, if that person is guilty and it produces a confession, that is cool. I mean if you do the crime, you should do the time, but the problem is that there are people that, on God’s green earth, that are just not that smart and you can trick them into saying that they did something. You can convince them to say that they did something. There are people and I have had clients where if they are being interrogated by a couple of police officers. First off they are incredibly uncomfortable. Second off, they are not that smart and they are not thinking about the consequences. If they agree that they murdered somebody, then they are not thinking I am going to spend the rest of my life in prison. They are thinking on the short-term and some people only think on the short-term.

So for example, I have had clients where they’re in the police interrogation, the police were asking them questions. They might be hungry and the police told them, well let’s just get through the interrogation questions and we will get you a sandwich. They are only thinking of the sandwich. The consequence for confessing and getting this over with and saying whatever the police seem to want to hear, the consequences, they get a sandwich, and if they hold out and they do not confess, they are going to have to stay hungry. That is the short-term thinking that some people have, because some people are just functioning less efficiently, or functioning under a disability. They are not thinking about the long-term consequences – If I confess to doing this crime, I am going to have to do a long jail term or I might spend the rest of my life in prison. That thought is not there.

I think that the problem is that while in most cases you get the right result, even if the police lie. In an occasional case, you get a false confession, you get a false conviction, an innocent person can go to jail. I am going to say I do not think the police should be able to lie to anybody, because it is morally wrong. The state should not, the court should not, sanction something that is morally wrong, even when it is being used as a tool to get the right result.

I am Attorney Ben Schwartz. That is my two cents on this question, “can the police lie.” I would say wherever you are, if you are viewing this, you should keep one thing in mind. That is, if the police ever contact you and tell you to come in for questioning, or if you ever get arrested and taken back into the interview room for questioning, when the police read you the Miranda Rights and they tell you you have the right to remain silent and you have the right to an attorney, well you know you are blessed. If you are in the United States, you are blessed with being born an American citizen and you were blessed with constitutional rights that people in other countries may not have. From my perspective, if you were blessed with those rights, why don’t you use them and shut up? Let’s go back to the story I started with of the old attorney in the courthouse when I was brand spanking new out of law school. The old attorney that told his client shut up, don’t say anything to anybody. If you have those rights, you should shut up, don’t say anything to anybody. Get an attorney and then follow your attorney’s advice. You have no business, there is no reason to talk to the police. There is no reason to listen to what they say when they tell you they are just going to help you. Your co-defendant has already confessed implicating you. We have got your DNA at the scene. We have got eye witnesses putting you at the scene. Whatever a police officer is telling you in the course of an interrogation, you should know that the United States Supreme Court has said under Frazier versus Cupp that it can be false and that is okay.

That is my 10 minutes of thoughts on the subject of police lying to individuals, to American citizens. I would like to know what your thoughts are on the topic. Give us a comment on this video and let us know what you think or you can send me an email.

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